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2008 DIGILAW 2081 (PNJ)

Bakshish Singh v. State of Haryana

2008-12-09

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J. - This appeal is directed against the judgment of conviction and the order of sentence dated 24.8.2001, rendered by the Judge, Special Court, Jind, vide which he convicted the accused/appellant, for the offence, punishable under Section 15 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 two years, for having been found in possession of 10 kgs poppy husk, without any permit or licence. 2. The facts, in brief, are that on 6.8.2000 Roshan Lal ASI of Police Station Garhi with HC Hem Singh and other police officials of Police Station Garhi was present near Hansdehar turning point on Narwana to Khanori Road. In the meantime one person was seen coming with a plastic bag, on his head from village Data Singhwala, who on seeing the police party, all of a sudden, turned back and started walking fastly. On suspicion, he was apprehended and, on interrogation he disclosed his identity as Bakshish Singh son of Darbara, Jat by caste, resident of village Dindoli. ASI Roshan Lal suspected some contraband in the plastic bag possessed by him. So, he served a notice Ex.PF upon him, as to whether, he wanted the search of the bag, to be conducted in the presence of a Magistrate or a Gazetted Officer. The accused reposed faith in ASI Roshan Lal. Thereafter, the bag was searched, which was found, containing 10 kgs. poppy husk, out of which 100 grams, was separated, as a sample, and the remaining opium, was put in the same bag. The sample and the remaining poppy husk, were converted into separate parcels, duly sealed and taken into possession, vide separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, FIR was registered. Rough site plan of the place of recovery 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. Rough site plan of the place of recovery 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 15 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 MHC Raj Kumar, PW, Constable Madn Lal, PW2, SI Jagat Singh, PW3, HC Hem Singh, PW4, and ASI Roshan Lal, PW5, the Investigating Officer. Thereafter the Public Prosecutor for the State closed the prosecution evidence. 5. The statement of the accused, under Section 313 Criminal Procedure Code, was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. However, the accused did not lead any evidence, in his defence. 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 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, at the time of effecting the alleged recovery, from the accused. He further contended that, even no effort was made, by the Investigating Officer to join an independent witness, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. Roshan Lal, ASI, PW5, during the course of cross-examination stated that the accused was arrested at about 4.30 pm. He further stated that some public persons were coming and going at the spot. He further stated that some were called to join the investigation, but they showed their inability. He further stated that he could not tell their names. Roshan Lal, ASI, PW5, during the course of cross-examination stated that the accused was arrested at about 4.30 pm. He further stated that some public persons were coming and going at the spot. He further stated that some were called to join the investigation, but they showed their inability. He further stated that he could not tell their names. The names of the persons, who refused to join the police party, were not recorded, either in the Ruqa, or in any other document, prepared at the time of the alleged recovery, from the accused. Such a fact was also not recorded, in the case diary. Even, no action was initiated, against any of the persons, who refused to join the police party, at the time of effecting the alleged recovery. It means that no genuine effort was made by the Investigating Officer, to join an independent witness, at the time of effecting the alleged recovery. Had a genuine effort been made, by the Investigating Officer, to join an independent witness, and no independent witness had come forward to join the police party, the matter would have been different. ( Since 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. 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 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. 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 v. 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 v. 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. In State of Punjab v. 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 he 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. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected from the accused on 6.8.2000, yet the sample parcel was sent to the office of the Forensic Science Laboratory on 17.8.2000 i.e. after a delay of 11 days without any explanation. He further submitted that, as such, the possibility of tampering with the sample parcel, until the same reached the office of the Forensic Science Laboratory could not be ruled out especially when the seals after used remained with the police officials. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true that, if the other evidence, produced by the prosecution, to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the sample to the Office of the Forensic Science Laboratory, pales into insignificance. If, on the other hand, the other evidence produced, in this regard, is found to be unreliable, then certainly the delay assumes importance. In the instant case, the other evidence, produced by the prosecution, to prove the completion of link evidence, besides being deficient, is neither reliable, nor creditworthy. In these circumstances, the unexplained delay, referred to above, in sending the sample to the laboratory, certainly proved fatal to the case of the prosecution. In State of Rajasthan v. Gurmail Singh, 2005(2) RCR (Crl.) 58 S.C. the contraband was kept in the Malkhana. 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. In State of Rajasthan v. Gurmail Singh, 2005(2) RCR (Crl.) 58 S.C. the contraband was kept in the Malkhana. 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 unreliable. 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 Chemical Examiner. In Gian Singh v. 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 Rajesh Jagdamba v. State of Goa, 2005(1) RCR (Criminal) 406 (S.C.), the packets of contraband and the seal, remained in the custody of the same person. In these circumstances, it was held that the possibility of the seized substance, being tampered with, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. On account of the aforesaid reason, a doubt was cast on the case of the prosecution. The trial Court failed to take into consideration this aspect of the matter, in its proper perspective, as a result whereof, miscarriage of justice occasioned. On account of this infirmity, the case of the prosecution became doubtful. 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 office of the Forensic Science Laboratory, as a result whereof, it could not be said, as to whether, the seals on the sample, were the same, as were allegedly affixed, at the time of the alleged seizure. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ex.PB is the affidavit of Constable Madan Lal, who took the sample parcel to the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ex.PB is the affidavit of Constable Madan Lal, who took the sample parcel to the office of the Forensic Science Laboratory. He stated that he deposited the sample parcel in the office of the Forensic Science Laboratory on 17.8.2000, the date on which the same was handed over to him.He did not state that he also deposited the sample impression of the seals in the office of the Forensic Science Laboratory. Since, he did not deposit the sample impression of seals, in the office of the Forensic Science Laboratory, it is not known, as to how on Ex.PE, the Laboratory, appended the certificate that the seals on the parcel were found intact, on arrival, and agreed with the specimen seals, sent. 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 Investigation Officer and the SHO, on the same. In State of Rajasthan v. 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. 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. It was next submitted by the Counsel for the appellant that the statements under Section 161 Criminal Procedure Code of Raj Kumar,MHC, with whom the case property was allegedly deposited and of Madan Lal,Constable, who allegedly took the sample parcel, to the Forensic Science Laboratory were not recorded. He further stated that on account of non-recording of the statements of these witnesses, under Sections 161 Criminal Procedure Code, a great prejudice was caused to the accused. The submission of the Counsel for the appellant, in this regard, appears to be correct. MHC Raj Kumar, PW1 and Madan Lal, Constable, PW2, are the material witnesses. He further stated that on account of non-recording of the statements of these witnesses, under Sections 161 Criminal Procedure Code, a great prejudice was caused to the accused. The submission of the Counsel for the appellant, in this regard, appears to be correct. MHC Raj Kumar, PW1 and Madan Lal, Constable, PW2, are the material witnesses. On account of non-recording of their statements under Section 161 Criminal Procedure Code, the accused was deprived of properly and effectively cross-examining these witnesses. He was also deprived of confronting Raj Kumar with his previous statement. In Padam Singh v. 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 Criminal Procedure Code, 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. The principle of law, laid down, in the aforesaid authority, is applicable to the facts of the present case. The case of the prosecution, therefore, became highly doubtful, on account of this reason. 13. No other point, was urged, by the Counsel for the parties. 14. 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, warrant interference, and are liable to be set aside. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction and the order of sentence dated 24.8.2001, 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 of conviction and the order of sentence dated 24.8.2001, 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, Jind, shall comply with the judgment, with due promptitude and send compliance report within a period of one month from the date of receipt of copy thereof.