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2008 DIGILAW 1799 (PNJ)

Gurdev Singh v. State of Punjab

2008-10-23

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J 1. This appeal is directed against the judgment of conviction, and the order of sentence dated 13.11.2003, rendered by the Judge, Special Court, Rupnagar, vide which he convicted the accused/appellant, for the offence, punishable under Section 18 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him, to undergo rigorous imprisonment for a period of 10 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 three years, for having been found in possession of 1 Kg. opium, (now falling within the ambit of non-commercial quantity) without any permit or licence. 2. The facts, in brief, are that on 2.10.2000, Manvir Singh, SI/SHO, alongwith other police officials, was present at T-point Rangilpur, in connection with checking of vehicles, and holding a special picket. At that time, truck bearing No.UP-13-3787, was stopped by the police party, On enquiry, the driver of the truck, disclosed his name as Balbir Singh S/o Ujjagar Singh. On the left side of the driver, one person was sitting, who disclosed his name as Gurdev Singh. He was carrying a bag, in his right hand. Search of the bag, being carried by Gurdev Singh, accused, was conducted, in the presence of Sukhwinder Singh Uppal, DSP, who was called to the spot, by sending a message. It was found containing one plastic box, in which 1 kg. Opium, wrapped in a glazed paper, was lying. Two samples of 10 grams each, were separated therefrom, and the remaining opium, was kept in the same plastic box. The samples, and the plastic box, containing the remaining opium, 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 prepared. 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 18 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. 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 18 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 Shamsher Singh, MHC, (PW-1), S.S.Uppal, DSP, (PW-2), Kulwinder Singh, Constable (PW-3), Manvir Singh, SI/SHO, (PW-4), the Investigating Officer, Gulzari Lal, Constable (PW-5), and Balbir Singh, SI (PW-6). The Addl. Public Prosecutor for the State, tendered into evidence Ex.PX, report of the Chemical Examiner, and, thereafter, 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 on 1.10.2000, he had gone to purchase Oxen, alongwith Rs.5000/-. It was further stated by him, that he was in drunkard condition. It was further stated by him, that the Police snatched Rs.5000/-from him, and arrested him, in drunkard condition. It was further stated by him, that on the next day, the police involved him, in this false case. He, however, did not lead any evidence, in his defence. 6. After hearing the Addl. 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 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 no independent witness was joined by the Investigating Officer, despite availability, as the alleged recovery was effected, at the public place. He further submitted that even no effort was made, to join, an independent witness, by the Investigating Officer. He further submitted that, under these circumstances, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Manvir Singh, SI, the Investigating Officer (PW-4), stated that the recovery was effected at Bus Stand, Rangilpur. He further submitted that, under these circumstances, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Manvir Singh, SI, the Investigating Officer (PW-4), stated that the recovery was effected at Bus Stand, Rangilpur. Bus Stand is a busy place, where a number of passengers are always available, to board the buses. A number of public witnesses, must be available at the Bus Stand, and at the shops and stalls located inside and outside thereof. Manvir Singh, SI (PW-4), did not state even a single word, that he made an effort to join an independent witness. Had no independent witness been available, the matter would have been different. In this case, independent witnesses, despite availability, were not intentionally and deliberately joined by the Investigating Officer, nor an attempt was made to join them. Since, the minimum stringent punishment is provided for the offences, 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. 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 minor, now falling within the ambit of non-commercial quantity, and chances of plantation of the same, against the accused, could not be ruled out, it 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. 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. In the instant case, the evidence of the prosecution witnesses, does not inspire confidence, in the mind of the Court. In this view of the matter, non-corroboration of the evidence of the official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In State of Punjab Vs. Bhupinder Singh 2001 (01) 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, miscarriage of justice occasioned. 10. 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, miscarriage of justice occasioned. 10. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected on 1.10.2000, yet the samples were sent to the office of the Chemical Examiner on 2.11.2000, and, as such, the delay of one month, was not explained, by the prosecution witnesses. He further submitted that, under these circumstances, the possibility of tampering with the case property, and the sample parcels, could not be ruled out, especially, when the seals after use remained with the police officials throughout. The submission of the Counsel for the appellant, in this regard, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of one month, in sending the samples to the office of the Chemical Examiner. 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 Chemical Examiner. Since, the samples were allegedly sent to the office of the Chemical Examiner, after one month, 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) 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. In Ramji Singh 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. In Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, the seal remained with the police official, and had not been handed over to any independent witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Chemical Examiner. 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 one month, in sending the samples to the office of the Chemical Examiner, and non-strict proof, by the prosecution, that the same was not tampered with, till it was deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 11. Even the sample impression of the seals, was not sent to the office of the Chemical Examiner, and, as such, the said Examiner, was deprived of comparing the seals, on the sample parcels, with the seals, which were affixed, at the time of alleged recovery. Ex.PL, is the affidavit of Gulzari Lal, Constable, who allegedly took the sample parcels, to the office of the Chemical Examiner. In his affidavit, he did not state that he was handed over the sample impression of the seals, and he deposited the same, in the office of the Chemical Examiner. Thus, it becomes clear that the sample impression of the seals, was never deposited in the office of the Chemical Examiner. In his affidavit, he did not state that he was handed over the sample impression of the seals, and he deposited the same, in the office of the Chemical Examiner. Thus, it becomes clear that the sample impression of the seals, was never deposited in the office of the Chemical Examiner. It is not known, as to how in Ex.PX, the report of the Chemical Examiner, it was recorded that the seals tallied with the specimen seals. In State of Rajasthan Vs. Gurmail 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, as the laboratory, in the absence of deposit of sample impression of the seals, could not come to the conclusion, whether the seals on the sample, were the same, as were affixed, at the time of alleged recovery. 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 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 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 samples 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 samples 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 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, since the Investigating Officer, intentionally and deliberately breached the provisions of Section 55, he could not say that the provisions of Section 55 being 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. Noncompliance of such a provision, deliberately and intentionally, must be viewed with suspicion. 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. Noncompliance 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 statement of Gulzari Lal, Constable, who took the samples, to the office of the Chemical Examiner, was not recorded, under Section 161 Cr.P.C., by the Investigating Officer. Under these circumstances, the case of the prosecution became doubtful. In Padam Singh Vs. State of Haryana 1997 (4) RCR (Criminal) 172 (Division Bench) (P&H), the statement of the DSP, who allegedly reached the spot, at the time of search and seizure, under Section 161 Cr.P.C, was not recorded. The Division Bench, in the aforesaid authority, under these circumstances, held that non-recording of the statement of such an important witness, was a serious irregularity, which considerably prejudiced the accused and may make his testimony tainted. Ultimately, on this ground, and, on other grounds, the conviction was set aside. On account of non-recording of the statement of Gulzari Lal, a material witness, under Section 161 Cr.P.C., the accused was deprived of confronting him, with his previous statement, so as to shatter the veracity of his testimony made in the Court. Thus, it was a serious irregularity, committed by the Investigating Officer. This caused a serious prejudice to the accused, in his defence, and made the statement of Gulzari Lal, tainted. The principle of law, laid down, in the aforesaid authority, is, thus, fully applicable to the facts of the present case. Non-recording of the statement of Gulzari Lal, Constable, by the Investigating Officer, must prove fatal to the case of the prosecution. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 14. No other point was urged, by the Counsel for the parties. 15. Non-recording of the statement of Gulzari Lal, Constable, by the Investigating Officer, must prove fatal to the case of the prosecution. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 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, rendered by the Court below, are not based on the correct appreciation of evidence, and law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 18 of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside. 16. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 13.11.2003, 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 Chief Judicial Magistrate, Rupnagar, shall comply with the judgment, in accordance with the provisions of law, and send compliance report, within 2 months, from the date of receipt of a certified copy of the judgment. Order accordingly.