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2008 DIGILAW 1224 (PNJ)

Jaggu v. State of Haryana

2008-07-14

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:- This appeal is directed against the judgment of conviction dated 16.7.1994, and the order of sentence dated 18.7.1994, rendered by the Court of Add!. Sessions Judge, Faridabad, vide which it convicted the accused/appellant, for the offence, punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as ‘the Act’ only) and sentenced him, to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of four years, for having been found in possession of 1 Kg. charas, without any permit or licence. 2. The facts, in brief, are that on 15.6.1993, Ramesh Pal, Inspector/SHO, alongwith other police officials, was present, at Neelam Bata Road, near Ram Dharamkanta, Faridabad, in a Government Jeep, bearing No.HYU-8340, in connection with the investigation of FIR No.474 of 1993, under Sections 302/323/34 IPC. In the meanwhile, Jugraj, public witness, met Ramesh Pal, Inspector, and started talking with him. Ramesh Pal, Inspector/SHO, received a secret information, that accused Jaggu, was coming from the side of Jhuggies towards Dharamkanta, and sufficient quantity of charas, could be recovered from him. Jugraj, public witness, was joined, and a raiding party was constituted. Thereafter, Ramesh Pal, Inspector/SHO, alongwith other police officials, and Jugraj, independent witness, proceeded towards Jhuggies, and when they covered just 5-6 paces, accused Jaggu, was seen coming from the front side, carrying a bag (thaila), in his right hand. On seeing the police party, he tried to turn back, but was apprehended, on suspicion. Search of the bag (thaila), being carried by him, was conducted, by Ramesh Pal, Inspector/SHO, in accordance with the provisions of law, as a result whereof, 1 kg. Charas, was recovered therefrom. Two samples of 50 grams each, were drawn, from the recovered charas, and the remaining charas was put into a separate container. The samples, and the container, containing the remaining charas, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was placed. The statements of the witnesses, were recorded. The accused was arrested. After the completion of investigation, the accused was challaned. 3. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was placed. The statements of the witnesses, were recorded. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 20 of the Act, was framed against him, to which he pleaded not guilty, and claimed trial. 4. The prosecution, in support of its case, examined Ramesh Pal, Inspector/SHO (PW-1), the Investigating Officer, Rajinder Singh, HC, (PW-2), Subey Singh, SI (PW-3), Samey Singh, Constable, (PW-4), and Jugraj, independent witness, (PW-5). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he had to make payment of an amount of Rs.600/- to one lnder Bhatia, Tea Vendor, and since he could not make the payment to him (Inder Bhatia), a quarrel ensued. It was further stated by him, that the police took him in custody, at the instance of that lnder Bhatia, and falsely involved him, in this case. He how ever, examined Kasi Singh (DW-1), in his defence. Thereafter, he closed his defence evidence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused/appellant, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, submitted that Jugraj, independent witness, though joined by the Investigating Officer, when examined as PW -5, did not support the case of the prosecution. He further submitted that, in this view of the matter, the case of the prosecution became highly doubtful, but the trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occassioned. He further submitted that, in this view of the matter, the case of the prosecution became highly doubtful, but the trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occassioned. The submission of the Counsel for the appellant, in this regard, appears to be correct. Jugraj, independent witness, (PW-S), stated that he went to Police Station Kotwali Faridabad, on 15.6.1993. He further stated that when he went to Police Station, the accused was sitting there. He further stated, that no charas was recovered from the accused, in his presence, by Ramesh Pal, Inspector/SHO. With the permission of the Court, he was put such questions, as are put, during the course of cross-examination, by the Public Prosecutor for the State. He stuck to the statement made, by him, in his examination-in-chief. He denied, that Ex.PG, statement was made by him. He also denied the suggestion by the Public Prosecutor for the State, during the course of his cross­ examination by him, that the recovery was effected, in his presence, from the accused. It is, no doubt, true that if the evidence of the official witnesses, on account of non-corroboration through the evidence of an independent witness, is found to be reliable, and trustworthy, then the case of the prosecution can be said to have been proved. In the instant case, the other evidence produced by the, prosecution, in the shape of the statements of the official witnesses, has been subjected to indepth scrutiny. The evidence of the official witnesses has not been found to be reliable, and trustworthy. Had the recovery of charas been effected from the accused, in the presence of Jugraj, independent witness, he would have been the last person, to depose otherwise. The evidence of Jugraj, independent witness, to the effect, that no recovery of charas, was effected, in his presence, from the accused, is sufficient to strike a death knell to the prosecution case. Certainly the case of the prosecution became highly doubtful, on account of this reason. The trial Court was required to take into consideration this material aspect of the matter; but it did not do so, as a result whereof, miscarriage of justice occassioned. 10. Certainly the case of the prosecution became highly doubtful, on account of this reason. The trial Court was required to take into consideration this material aspect of the matter; but it did not do so, as a result whereof, miscarriage of justice occassioned. 10. It was next submitted by the Counsel for the appellant, that there was delay of 8 days, in sending the samples to the office of the Forensic Science Laboratory, which remained unexplained, and, as such, the possibility of tampering with the same, until the same reached the laboratory, could not be ruled out. It is, no doubt, true that mere delay, in sending the samples, in itself, is not sufficient to come to the conclusion, that the same were tampered with, until the same-reached the office of the Forensic Science Laboratory. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 8 days, in sending the samples to the office of the Forensic Science Laboratory. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the samples, till the same reached the office of the Forensic Science Laboratory. Since, the samples were allegedly sent to the office of the Forensic Science Laboratory, after about 8 days, it could not be safely held that the same remained un-tampered with. This fact casts a shadow of doubt, on the case of the prosecution. In Gian Singh Vs. State of Punjab, [2006(2) LAW HERALD (P&H) 1006] : 2006(2) RCR (Criminal) 611 there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. Under these circumstances, it was held that the possibility of tampering with the sample, could not be ruled out, and the link evidence was incomplete. Ultimately, the appellant was acquitted, in that case. In State of Rajasthan Vs. Gurmail Singh, 2005(2) RCR (Criminal) 58 (Supreme Court), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Forensic Science Laboratory. In these circumstances, in the aforesaid case, the appellant was acquitted. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Forensic Science Laboratory. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case, The delay of 8 days, in sending the samples to the office of the Forensic Science Laboratory, and non-strict proof, by the prosecution, that the same were not tampered with, till the same, were deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the samples, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 11. The next limb of the argument of the Counsel for the appellant, was to the effect, that the sample impression of the seals, was not sent to the Forensic Science Laboratory, alongwith the sample parcels, as a result whereof, it could not be said that, as to whether, the seals on the samples, were the same, as were allegedly affixed, at the time of the alleged seizure. Samey Singh, Constable, in his affidavit, Ex.PF, stated that on 23.6.1993, he was handed over by Rajinder Singh, MHC, two sample parcels, which were sealed, with the seals of ‘SS’ and ‘BS’, for sending the same to the Forensic Science Laboratory. He further stated that he deposited the samples, alongwith other documents, in the Laboratory. He did not state, that he was handed over the sample impression of the seals. He also did not state even a single word that he deposited the sample impression of the seals, alongwith the sample parcels. It means that neither this witness as handed over the sample impression of the seals, nor he deposited the same, the office of the Forensic Science Laboratory. Since, he did not deposit the sample impression of the seals, in the office of the Forensic Science Laboratory, it is not known, as to how on Ex.PH, the Forensic Science Laboratory, appended the certificate that the seals on the parcel were found intact, and tallied with the specimen seals, as per forwarding authority. Since, he did not deposit the sample impression of the seals, in the office of the Forensic Science Laboratory, it is not known, as to how on Ex.PH, the Forensic Science Laboratory, appended the certificate that the seals on the parcel were found intact, and tallied with the specimen seals, as per forwarding authority. Such certificate of the Forensic Science Laboratory, therefore, does not appear to be correct. Under these circumstances, it could not be said, as to whether, the ‘sample was received in the office of the Forensic Science Laboratory, with seals intact, and as to whether, the said parcel bore the same seals, as were allegedly affixed-by the Inspector/SHO, the Investigating Officer, on the same. In State or Rajasthan Vs. Grumail Singh, 2005(2) RCR (Criminal) 58, (Supreme Court) the sample seal was not sent to the Laboratory, at the time of sending the sample parcel. The Apex Court, held that the case of the prosecution was doubtful, on account of this reason. In this view of the matter, the case of the prosecution also became doubtful. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof; miscarriage of justice occasioned. 12. In the instant case, there was violation of the provisions of Section 55 of the Act, as the case property and the samples were not produced before the Magistrate. Section 55 of the Act, lays down that an Officer Incharge of Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized, under this Act, within the local area of that Police Station, and which may be delivered to him, and shall allow any officer who may accompany such articles, to the Police Station; or who may be deputed for the purpose, to affix his seal to such articles, or to take samples of and from them, and all samples, so taken; shall also be sealed with a seal of the Officer-in-charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the sample are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband was recovered from the accused. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the sample are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same ­ cannot be condoned. In Gurbax Singh Vs. State of Haryana 2001(1) RCR (Crl) 702 (S.C.), it was held that non-compliance of the provisions of Sections 52,55 and 57, which are, no doubt, directory and violation thereof, would not ipso facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, the Investigating Officer, intentionally and deliberately breached the provisions of Section 55. He could not say that since the provisions of Section 55 are directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provisions, is an indicator, towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Compliance of the said provisions, is an indicator, towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 13. The provisions of Section 57 of the Act, were not complied with. No report was sent by the Investigating Officer, to his superior officer, with regard to the alleged apprehension of the accused, and the alleged recovery of contraband, from him. No doubt, the provisions of Section 57 of the Act, are directory in nature. That does not mean that the same, should not be complied with, by the Investigating Officer, deliberately and intentionally. Similar principle of law was, laid down, in Gurbax Singh’s case (supra). However, the Investigating Officer, cannot totally ignore these provisions, as such failure will have bearing on the appreciation of evidence, regarding search of the accused, and seizure. The object of the provisions of Section 57, is that the Superior Officer should be informed, immediately, after the alleged recovery of contraband, so that he must be aware of the genuineness of the proceedings, conducted by his junior, to ensure that no innocent person was implicated, and the allegations of high-handedness, against the Police officials, are averted. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of the Act, the matter would have been different. In the absence of any explanation, what to speak of plausible, the Court cannot coin any of its own, to fit in with the prosecution case. Since, the provisions of Section 57 of the Act; were observed, more in breach, than in compliance, by the Investigating Officer, intentionally and deliberately, the case of the prosecution became doubtful, on account of this reason. Since, the provisions of Section 57 of the Act; were observed, more in breach, than in compliance, by the Investigating Officer, intentionally and deliberately, the case of the prosecution became doubtful, on account of this reason. The trial Court, failed to take into consideration, this aspect of the matter, as a result whereof, it committed an error, in recording conviction and awarding sentence. 14. It was next submitted by the Counsel for the appellant, that major discrepancies, and contradictions, occurred in the statements of the official witnesses, which remained unexplained, but the trial Court did not take into consideration the same, as a result whereof, the case of the prosecution became doubtful. Ramesh Pal, Inspector/SHO (PW-1), stated that the police party, started at 10.00 AM, from the Police Station, and he had investigated FIR No.474, from 10.00 AM to 5.00 PM, whereas, Subey Singh, SI, (PW-3), deposed, that Jhey had started from the Police Station, at noon time, in connection with the investigation of case FIR No.474, and it took 4 to 5 hours, for the said investigation. Ramesh Pal, Inspector/SHO (PW-1), stated- that Naresh Kumar, Constable, had arranged the scale for weighing the charas, but Subey Singh, SI (PW-3) stated that Sanjay, Constable, was deputed for this purpose. No doubt, when these discrepancies, are taken individually, the same may not seem to be material. When the same are taken collectively, then certainly, the same can be said to be material. Had the alleged recovery been effected, in the manner, deposed to by the prosecution witnesses, then both Ramesh Pal, Inspector/SHO (PW-1) and Subey Singh, SI (PW-3) would not have made contradictory statements, on the very important aspect of the matter, as to when police party started from the Police Station. Had there been difference of time of only a few minutes, or of half an hour, in their statements, with regard to the departure from the Police Station, the discrepancy would have been considered to be in-consequential. In the instant case, there was wide difference of time, when the police party started from the Police Station, in the statements of both the aforesaid witnesses. There was also a wide difference of time, during which the investigation in FIR No.474 was conducted. In the instant case, there was wide difference of time, when the police party started from the Police Station, in the statements of both the aforesaid witnesses. There was also a wide difference of time, during which the investigation in FIR No.474 was conducted. This clearly goes to show that either one of the witnesses, was not present, at the time of the alleged recovery, or no recovery, whatsoever, was effected from the accused, in the manner, deposed to by them. Had any explanation, been furnished, by the prosecution witnesses, in respect of these discrepancies, the matter would have been considered, in the light of the same. However, in the absence of any explanation, the Court cannot coin any of its own, to fit in with the prosecution case. These unexplained discrepancies, which could be said to be vital, cast a cloud of doubt, on the prosecution story, especially, when the independent witness, who was joined, did not support the case of the prosecution. The trial Court was wrong in ignoring this aspect of the matter, which resulted into miscarriage of justice. 15. The next submission of the Counsel for the appellant, was to the effect, that affidavit, Ex.PF of Same Singh, Constable, bore cuttings and deletions, whereas, Ex.PB, affidavit of Rajinder Singh, MHC, bore cuttings and over-writings. He further submitted that these cuttings, deletions, and over­ writings, were not initialled by Same Singh, Constable, and Rajinder Singh, MHC. The perusal of the affidavits, Ex.PF and Ex.PB, tendered by Same Singh, Constable, and Rajinder Singh, MHC, respectively, clearly goes to show, that some words therein were over-written after deletion, but the same were not initialled by them. It is not known, as to whether, the over-writing, deletion and cuttings of these words were made before swearing the affidavits, or these were made later on, and, if so, by whom. These documents, therefore, in the absence of any explanation, on the part of Same Singh, Constable, and Rajinder Singh, MHC, as to how, these over-writings, cuttings, and deletions occurred therein, can be said of doubtful authenticity. No reliance, on the said documents can be placed. If, these documents are taken off the record, then the link evidence in the instant case, becomes incomplete. No reliance, on the said documents can be placed. If, these documents are taken off the record, then the link evidence in the instant case, becomes incomplete. This also cast a doubt, on the prosecution story, but the trial Court, failed to take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occassioned. 16. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, are not based on the correct appreciation of evidence, and law, on the point. The trial Court did not take into consideration, the infirmities and lacunae, enumerated, in the aforesaid paragraphs. Had these infirmities and lacunae, been taken into consideration, by the trial Court, the result would have been different. The judgment of conviction, and the order of sentence, therefore, warrant interference, and are liable to be set aside. 17. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 16.7.1994, and the order of sentence dated 18.7.1994, are set aside. The appellant shall stand acquitted of the charge framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty at once, if not required in any other case. The judgment be complied with. ————————