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2008 DIGILAW 1421 (PNJ)

Arun Kumar v. State of Haryana

2008-08-20

SHAM SUNDER

body2008
JUDGMENT Sham Sunder. J.:- This appeal is directed against the judgment of conviction and the order of sentence dated 18.7.2007, rendered by the Court of Additional Sessions Judge (Fast Track Court), Hisar, 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 a further period of one year, for having been found in possession of 1 kg and 20 grams Charas, without any permit or licence. 2. The facts, in brief, are that on 23.7.2003, Balwan Singh SI, along-with other police officials, was going towards Cantt. Hisar, in Government Jeep No.HR-20/E/4485 and when they reached at T-point Satrod Khurd and turned towards Satrod Khurd, the light of vehicle was on. On seeing the vehicle, one person, turned back and started walking towards the field. He was having one polythene bag in his hand. On suspicion, he was apprehended. On enquiry, he disclosed his identity as Arun Kumar, Balwan Singh S.I. served a notice under Section 50 of the Act upon the accused, to the effect, that he suspected for having some contraband in the polythene bag and whether he wanted the search of the bag to be conducted in the presence of a Magistrate or a Gazetted Officer. The accused, however, reposed confidence in Balwan Singh, S.I. Thereafter a V.T. message was sent to Man Singh, D.S.P., to reach the spot. Accordingly, DSP Man Singh, reached the spot. The search of the bag was conducted, in accordance with the provision of law, in the presence of Man Singh, DSP, as a result whereof 1 kg and 20 grams Charas, was recovered therefrom. A sample of 20 grams charas, was taken out. The sample and the remaining charas were converted into separate parcels, duly sealed, and taken into possession vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, FIR was registered. Site plan was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. Ruqa was sent to the Police Station, on the basis whereof, FIR was registered. Site plan was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. On his 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 judicial trial. 4. The prosecution, in support of its case, examined SI Jagbir Singh, PW1, Constable Jai Singh, PW2, HC Jagdish Parshad PW3, A.S.I. Ram Kumar, PW4, SI Kanwal Singh PW5, DSP Man Singh PW6, SI Bani Singh PW7, and SI Balwan Singh PW8. 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 is a blind person, and could not walk without any attendant. He further stated that he was picked up, from his house, and falsely implicated, in the present case. He examined Dr. V.K. Kawatra DW1 and also relied upon the medical certificate Ex.D1 and copy of the order Ex.D2 passed by this Court on 5.2.2004. Thereafter the accused closed 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, 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 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, contended that no independent witness was joined, despite availability, as the alleged recovery was effected on G.T. Road. He further submitted that, on account of non-joining of an independent witness, despite availability, the case of the prosecution became highly doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. He further submitted that, on account of non-joining of an independent witness, despite availability, the case of the prosecution became highly doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. The alleged recovery, in this case, as is evident, from the statement of Balwan Singh, SI, PW8, was effected at T-point i.e. thorough fare. No doubt, Balwan Singh, SI, PW8, in his cross-examination, stated that no person was available at that time. However, there is nothing, on record, that he mentioned this fact, in the case diary or in any other document, prepared at the spot. Had no independent witness been available, at the thorough-fare, wherefrom the alleged recovery was effected, then such a factum would have been mentioned by Balwan Singh, SI, PW8 , the Investigating Officer either in the case diary or any other document prepared at the spot. Non-mentioning of this fact, in the aforesaid documents clearly indicated that independent witnesses were available, but none was joined. Even the statement of this witness, in this regard, is contradicted by Bani Singh, SI, PW7, who stated, during the course of his cross-examination, that one or two vehicles were stopped and the occupants were asked to join the investigation, but none was ready to join. This fact was also not recorded, in any of the documents. The contradiction on this point, between the statement of Bani Singh, SI, PW7 and Balwan Singh, SI, PW8, the Investigating Officer, also clearly indicated that no real and sincere effort, whatsoever, was made to join an independent witness. Not only this, a V.T. message was sent to DSP Man Singh to come to the spot. It must have taken some time, for the DSP to reach the spot, from his office. In the meanwhile, there was sufficient time with the Investigating Officer to join independent witness. There is nothing, on the record, that he made an effort, in between, to join an independent witness, as the search of the bag, was conducted after D.S.P. Man Singh, PW5, reached the spot. It is to be determined, as to what is the effect of non-joining of an independent witness, despite availability, on the merits of the case, especially, when stringent punishment is provided for the offences, punishable under the Act. It is to be determined, as to what is the effect of non-joining of an independent witness, despite availability, on the merits of the case, especially, when stringent punishment is provided for the offences, punishable under the Act. Since minimum stringent punishment is provided, for the offence, punishable under the Act, and according to the provisions of Section 51 of the Act, the provisions of the Code of Criminal Procedure, relating to search, seizure and arrest, shall apply to the extent, the same are not inconsistent with the provisions of the Act, it was imperative, on the part of the Investigating Officer, to join an independent witness, at the time of the alleged search and seizure, or at least to make a genuine, sincere and real effort to join such a witness. The search and seizure, before an independent witness, would have imparted much more authenticity, and creditworthiness, to the proceedings, so conducted. It would have also verily strengthen the prosecution case. The said safeguard was also intended to avoid criticism of arbitrary and high-handed action, against the authorized Officer. In other words, the Legislature, in its wisdom, considered it necessary to provide such a statutory safeguard, to lend credibility to the procedure, relating to search and seizure, keeping in view the severe punishment, prescribed under the Act. That being so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute and failure to do so, must be viewed with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of statutory safeguards, committed by the authorized officer, during search and seizure operation, and may also undermine respect of law. That cannot be permitted. In the instant case, the alleged recovery being marginally more than commercial quantity, the chances of plantation of the same, against the accused, could not be ruled out. It, thus, became the bounden duty of the Investigating Officer, to observe all the safeguards, provided under the Act, at the time of search and seizure. It is, no doubt, true that, in the absence of corroboration, through an independent source, the evidence of the official witnesses, cannot be disbelieved and distrusted, blind-foldely, if the same is found to be creditworthy. It is, no doubt, true that, in the absence of corroboration, through an independent source, the evidence of the official witnesses, cannot be disbelieved and distrusted, blind-foldely, if the same is found to be creditworthy. However, when the evidence of the official witnesses, is found to be not cogent, convincing, reliable and trustworthy, then on account of non-corroboration thereof, through an independent source, certainly a doubt is cast on the prosecution story. The evidence of the official witnesses, does not inspire confidence, in the mind of the Court. In this view of the matter, non-corroboration of the evidence of official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In State of Punjab Vs. Bhupinder Singh, 2001 (1) RCR (Crl.) 356, a Division Bench of this Court, held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the recovery was effected from a busy locality. In State of Punjab Vs. Ram Chand 2001(1) RCR (Crl.) 817, a Division Bench of this Court, held that it was imperative to join an independent witness, to vouchsafe the fair investigation. On account of non-joining of an independent witness, it was held that the accused was entitled to be given the benefit of doubt. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution, became highly doubtful. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into an error in recording conviction and awarding sentence. The submission of the counsel for the appellant, carries substance and is accepted. 10. It was next submitted by the Counsel for the appellant, that there was delay of 14 days, in sending sample parcel to 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. The submission of the Counsel for the appellant, appears to be correct. The submission of the Counsel for the appellant, appears to be correct. It is, no doubt, true that mere delay in sending the sample parcel, to the office of the Forensic Science Laboratory, in itself, is not sufficient to come to the conclusion, that the sample parcel was tampered with, at any point of time, until the same reached the office of the Chemical Examiner. The Court, under these circumstances, can fall back upon the other evidence, produced by the prosecution. If the Court after careful perusal of the other evidence, comes to the conclusion, that the same was sufficient to prove that none tampered with the sample parcel, until the same reached the office of the Chemical Examiner, the same can be believed. In the instant case, the other evidence produced by the prosecution, is not only deficient, but unreliable also. The other evidence produced by the prosecution, in this regard, does not inspire confidence, in the mind of the Court. In these circumstances, the delay of 14 days, in sending the sample parcel, to the office of the Forensic Science Laboratory, especially when the seal after use remained with the same person, who was in possession of the sample parcel, until the same reached the office of the Laboratory, must prove fatal to the case of the prosecution. In State of Punjab vs. Jaswant Singh 2002 (3) RCR (Crl.) 54 (Division Bench) (P&H) there was delay of 21days, in sending the sample to the Laboratory. In these circumstances, it was held that it must prove fatal to the prosecution case, especially, when admittedly no independent witness was joined, in the recovery proceedings, and seal used for sealing the sample remained with the Police official, during the period. 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 Rajesh Jagdamba Avasthi Vs. State of Goa 2005 (1) RCR (Criminal) 406 (S.C.), charas was recovered from the possession of the accused and sealed in two packets. The packets and the seal remained in the custody of the same person. Ultimately, the appellant was acquitted in that case. In Rajesh Jagdamba Avasthi Vs. State of Goa 2005 (1) RCR (Criminal) 406 (S.C.), charas was recovered from the possession of the accused and sealed in two packets. The packets and the seal remained in the custody of the same person. In these circumstances, it was held that there was every possibility of the seized substance, being tampered with. The conviction of the accused was set aside, inter-alia, on this ground. Since, the possibility of tampering with the case property, and the sample could not be ruled out, in the instant case, a serious doubt, on account of this reason, was cast on the prosecution case. The submission of the counsel for the appellant, carries substance and is accepted. 11. It was next submitted by the Counsel for the appellant that provisions of Section 55 of the Act were not complied with, as a result whereof, a prejudice was caused to the accused. The submission of the Counsel for the appellant, in this regard, appears to be correct. Section 55 of the Act, lays down, that an Officer Incharge of the 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 the 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 him. In the instant case, Balwan Singh (PW8) did not state that the case property, the witnesses and the sample parcel were produced before the Magistrate. 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. In the instant case, Balwan Singh (PW8) did not state that the case property, the witnesses and the sample parcel were produced before the Magistrate. 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. 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 vitiate 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 provision 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 a serious prejudice was caused to the accused. 12. 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 a serious prejudice was caused to the accused. 12. It was next submitted by the Counsel for the appellant, that Balwan Singh, SI, PW8, the investigating Officer did not state even a single word that he prepared the sample impression of the seal, in this case, after affixing the same on the case property as also on the sample parcel. He further submitted that Ram Kumar, ASI, PW4 who was posted as SHO, Police Station Sadar, Hisar, did not state even a single word that he prepared the sample impression of the seal after affixing his seal on the case property as also on the sample parcel. He further submitted that since both the Investigating Officer and the SHO did not prepare the sample impression of the seals, how the same could be deposited with the MHC, by the Investigating Officer, and how the same could be sent to the office of the Forensic Science Laboratory, with the sample parcel. He further submitted that, in these circumstances, it could not be ascertained, as to whether, the seals on the sample parcel were the same, as were allegedly affixed on the same, at the time of search and seizure. The submission of the Counsel for the appellant, appears to be correct. A perusal of the statements of Balwan Singh, SI, PW8, the Investigating Officer, and Ram Kumar PW4, ASI/SHO, does not reveal that they prepared the sample impression of the seals or deposited the same with the MHC. Wherefrom the MHC obtained the sample impression of the seals, and sent the same to the Forensic Science Laboratory is not, at all, known. It is for the prosecution to prove beyond doubt that, at no stage, the sample parcel was tampered with, in any manner. In the absence of preparation of sample impression of the seals, by the Investigating Officer, and the SHO of the Police Station concerned, it could not be ascertained, as to whether, the seals on the sample parcel were the same as were allegedly affixed, at the time of alleged search and seizure. In the absence of preparation of sample impression of the seals, by the Investigating Officer, and the SHO of the Police Station concerned, it could not be ascertained, as to whether, the seals on the sample parcel were the same as were allegedly affixed, at the time of alleged search and seizure. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Crl.) 58 S.C., the contraband was kept in the Malkhana for 15 days. The Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence, produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Laboratory. On account of the aforesaid season, the link evidence became incomplete, resulting into causing dent in the prosecution case. 13. It was next submitted by the Counsel for the appellant that the appellant was 100% blind, at the time of alleged search and seizure and, as such, the story of the prosecution that he was carrying the bag containing charas, could be said to be completely improbable, and unnatural. The submission of the Counsel for the appellant, appears to be correct. Dr. V.K. Kawatra, Kawatra Eye Hospital, near Bus Stand, Hisar, was examined as DW1. He gave certificate Ex.D1. Dr.V.K. Kawatra stated that Arun Kumar son of Hajari Lal, aged 30 years, was examined by a Board of Doctors, regarding percentage of handicap of his eyes. He further stated that he was found 100% blind and certificate Ex.D1, in this regard, was issued by the said Board. He further stated that this certificate bore his signatures as also the signatures of the other members. No doubt, during the course of his cross-examination, it was stated by him, that there was little visibility in the left eye of Arun Kumar, accused, and he could see the fingers etc. from very close distance. He further stated during, the course of his cross-examination, that the blindness in respect of Arun Kumar, accused was not curable. He further stated that Arun Kumar was having adherent leucoma in the left eye. This certificate was issued in the year 1995. from very close distance. He further stated during, the course of his cross-examination, that the blindness in respect of Arun Kumar, accused was not curable. He further stated that Arun Kumar was having adherent leucoma in the left eye. This certificate was issued in the year 1995. He denied the suggestion that Arun Kumar, accused had got reasonable good vision to carry out his normal functions. From the Statement of Dr.V.K. Kawatra, it was proved, beyond doubt, that the accused was completely blind and hence it could not be expected of him, to carry the bag, containing charas, without an attendant or helper. The story of the prosecution to the effect that the accused was found carrying a bag containing charas referred to above, without any attendant or helper or without any stick, therefore, could be said to be highly improbable and unnatural. The statement of Dr. V.K. Kawatra, DW1, therefore, completely improbalises the story of the prosecution. In these circumstances, it could be said that no recovery was effected from the accused, but he was falsely implicated. The submission of the Counsel for the appellant, in this regard, thus, being correct, is accepted. 14. No other point, was urged, by the Counsel for the parties. 15. In view of the above discussion, it is held that the judgment of conviction and the order of sentence dated 18.7.2007, rendered by the trial Court, 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, referred to above. Had the trial Court taken into consideration the aforesaid infirmities and lacunae, the fate of the case, would have been different. In these circumstances, the judgment of conviction and the order of sentence warrant interference, and are liable to be set aside. 16. For the reasons recorded above, the appeal is accepted. The judgment of conviction and the order of sentence are set aside. The appellant, if he is on bail, shall stand discharged of his bail bonds. If the appellant is in custody, he shall be set at liberty at once, if not required in any other case. The Chief Judicial Magistrate shall comply with the judgment with due promptitude. --------------