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2008 DIGILAW 171 (PNJ)

Pala Ram v. State Of Haryana

2008-01-23

R.S.MADAN

body2008
Judgment R.S.Madan, J. 1. This is a criminal appeal filed by Pala Ram son of Boga Ram and has been directed against the judgment and order dated 12.5.1997 passed by the learned Additional Sessions Judge, Hisar, who convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (to be referred as "the Act") and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was directed to further undergo rigorous imprisonment for a period of two years. 2. The brief facts of the case as disclosed in the judgment of the learned Additional Sessions Judge are that on 18.10.1993 at about 9.40 p.m., a police party headed by SI Jasrath Singh (investigating officer) along with other police officials was present at Bus-stand, Dhangar, in connection with patrol duty and excise checking. In the meantime a person having a steel Dibba (a tin box) in his right hand was seen coming from the side of the village. The appellant on seeing the police party at once turned back and started walking rapidly, which created suspicion in the mind of the police. The investigating officer suspected the accused to be carrying some contraband and had accordingly served a notice, Ex.PF, upon him asking him whether he wanted to be searched before a Gazetted officer or Magistrate. Pursuant to his reply, Ex.PF/1, the accused was searched in the presence of Mange Ram, the then DSP Fatehabad. On search, 800 grams opium was recovered from the steel box out of which 50 grams was separated as sample. The sample and the remaining quantity of recovered opium, Ex.P1, were separately sealed with the seal "JS" of the investigating officer and also the seal "MR" of Mange Ram DSP. Both the parcels were taken into possession vide recovery memo. Ex.PD. The investigating officer handed over his own seal "JS" to Head Constable Guriya Ram. After preparing spot formalities i.e. the rough site plan, Ex.PG, of the place of recovery, recording of statements of the witnesses, the investigating officer sent a ruqqa, Ex.PH, to the police station which forms the basis of FIR, Ex.PH/1, which was recorded by SI Dharam Pal. The accused along with contraband recovered and report, Ex.PB, was produced before SHO Sukhdev Singh, who also made his own endorsement, Ex.PB/1, on the report. The accused along with contraband recovered and report, Ex.PB, was produced before SHO Sukhdev Singh, who also made his own endorsement, Ex.PB/1, on the report. SHO also verified the investigation. The case property was handed over to the MHC. The sample was sent to the chemical examiner for analysis, who found the contents to be that of opium. 3. The challan against the appellant was presented in the court of Ilaqa Magistrate, who, in turn, sent it to the Court of Sessions. 4. The learned Additional Sessions Judge charged the appellant for the aforesaid offence vide order dated 12.7.1994. He having pleaded not guilty, prosecution was called upon to lead evidence. Prosecution examined four witnesses in support of their case, namely, PW1 Inspector Sukhdev Singh, PW2 DSP Mange Ram, PW3 ASI Guriya Ram, PW4 DSP Jasrath Singh (the then investigating officer) and tendered in evidence the affidavit of Constable Balbir Singh, and report of the chemical examiner Ex.PJ. 5. In his statement under Section 313 Cr.P.C., the appellant pleaded innocence and stated that he has been falsely implicated in this case due to party faction in the village. The appellant did not lead any evidence in defence. 6. On the completion of trial, the trial Court convicted and sentenced the appellant for the aforesaid offence. Feeling aggrieved against the judgment of conviction and sentence under Section 18 of the Act, the appellant came up in appeal to this Court. 7. I have heard arguments addressed by learned Counsel for the appellant and the learned Additional Advocate General, Haryana and have gone through the evidence produced on the record. 8. It is contended by the learned Counsel for the appellant that the case of the prosecution has no legs to stand as the investigating officer had not joined any independent witness which is essential to prove the case. Admittedly, the appellant was apprehended at the bus stand at about 9.40 p.m. while coming from Village Dhanger. No doubt, the bus stand is a busy location where many passengers are coming daily, the investigating officer did not make any attempt to summon any witness to witness the recovery. It is not disputed that the police party was on patrol duty at the relevant time at the bus stand and the appellant met them per chance. No doubt, the bus stand is a busy location where many passengers are coming daily, the investigating officer did not make any attempt to summon any witness to witness the recovery. It is not disputed that the police party was on patrol duty at the relevant time at the bus stand and the appellant met them per chance. It has come in the prosecution evidence that several persons were present at the bus-stand and the police did not join any of those persons as witness. No explanation was furnished by the investigating officer for not joining of any of the person present at the bus-stand or that he has asked them but nobody was ready to witness the recovery. It is a case where no request was made to any of the person present there to join the investigation. Neither it is a case of the prosecution that they made requests to the persons to witness the recovery but no body was ready to do so. 9. The aforesaid plea of non-joining of independent witness was also raised before the learned trial court but the same was not accepted by the trial court after relying upon judgment reported as Roop Singh v. State of Punjab 1996 (1) Recent Criminal Reports 146. 10. It was next contended by the learned Counsel for the appellant that the appellant has been falsely implicated in this case due to party faction in the village. This contention of the learned Counsel is also falsified from the fact that in his defence the appellant did not disclose the name of any person with whom he had any enmity. 11. It is a case where the provisions of Section 50 of the Act are not attracted since the recovery was effected from the steel box. It is not a case of personal physical search of the accused but it is the search of the steel box which the appellant was carrying in his hand. In this connection reference is made to State of H.P. v. Pawan Kumar, wherein the Apex Court has held as under: A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort of energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act. 12. Another argument put forth by the learned Counsel for the appellant is that recovery was effected on 18.10.1993 and the sample, Ex.PJ, was dispatched vide RC No. 935 dated 6.12.1993 to the chemical examiner for analysis and was received on 13.12.1993 after about 56 days from the date of recovery. There is every chance that the sample could have been tempered with by the investigating agency. No explanation has been furnished by the prosecution about the delay which caused in sending the sample to the Chemical Examiner. Reference in this connection made to, Buta Singh v. State of Punjab (P&H) 2006 (1) RCR (Criminal) 835, wherein it was held that, "Prosecution failed to explain delay of 8 days in dispatch of samples to FSL for Chemical examination. It is fatal. Such a delay is also in violation of the standing instruction No. 1/88 dated 15.3.1988 (Narcotic Control Bureau, New Delhi). Learned Counsel for the appellant also referred to Mohammad Salim Bashir Shaikh v. State of Maharashtra 2004 (2) RCR (Criminal) 403, wherein instructions of the Ministry of Finance, Government of India, were produced. As per that instructions a sample of the contraband item should be sent to the Chemical Examiner within 72 hours of seizure. But in the present case, there is delay of 56 days in not sending the sample which remained unexplained. As per that instructions a sample of the contraband item should be sent to the Chemical Examiner within 72 hours of seizure. But in the present case, there is delay of 56 days in not sending the sample which remained unexplained. He further referred to State of Punjab v. Jaswant Singh (P&H)(DB) 2002 (3) RCR (Criminal) 548, wherein it was held that, "sample deposited with chemical examiner after 21 days of recovery. Delay is fatal coupled with the fact that no independent witness was joined and seal used for sealing the samples remained with the police." 13. Even if a certificate has been issued by the Chemical Examiner that the seals of sample were found intact, the prosecution has not furnished any cogent and convincing evidence or explanation for sending the sample after such a long period of 56 days. The possibility of the substance of sample having been tampered with cannot be ruled out. 14. Learned Additional Advocate General was not in a position to answer about this long delay of 56 days in sending the sample to the Chemical Examiner rather he has admitted this lapse on the part of the prosecution. 15. In view of the above discussion, this appeal is allowed and the impugned judgment dated 12.5.1997 is set aside. The appellant is acquitted of the charge framed against him. He is also discharged from the bail bonds furnished by him.