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2008 DIGILAW 32 (PNJ)

Prem Singh v. State Of Haryana

2008-01-09

KANWALJIT SINGH AHLUWALIA

body2008
Judgment Kanwaljit Singh Ahluwalia, J. 1. Prem Singh son of Jai Narain was prosecuted in case FIR No. 395 dated 24.12.1998, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as `the Act) by the police of police station Sadar Bahadurgarh, District Jhajjar for having in his possession 3 Kgs of charas. 2. The case set out in the FIR is that on 24.12.1998, Inspector Rohtas Singh alongwith his companion officials was present on patrol duty. When he was returning from village Asnauda, near a railway crossing, he spotted a young man having a bag in his right hand coming from the front side. On seeing the police party, he tried to hide himself and on suspicion he was apprehended. He is said to have disclosed his name as Prem Singh son of Jai Narain. An offer as envisaged under Section 50 of the Act was given to him. He opted for being searched by a gazetted officer. Smt. Suman Manjri, DSP was informed on wireless. The appellant was searched Criminal Appeal No. 204 SB of 2001 2 in her presence. 3 Kgs of charas was recovered. After the seizure, the sample was sent to the Chemical Examiner. 3. Investigating Agency submitted its report under Section 173 Cr.P.C. The learned Judge, Special Court, Rohtak framed the charge under Section 20 of the Act, to which the appellant pleaded not-guilty and claimed trial. 4. The prosecution examined 5 witnesses in all. 5. PW 1 Smt. Suman Manjri,DSP, who stated that the accused was produced before her and after conducting search, 3 Kgs of charas was recovered from his possession, out of which 20 grms was separated as a sample, which was sealed with the seal bearing impression `RS. She also appended her seal thereon and the contraband was taken into possession vide recovery memo. Exhibit PA. In cross-examination, she admitted that her office is situated in a busy locality and she made no attempt to associate any independent witness. 6. PW 2 UGC Man Singh tendered his affidavit Exhibit PB. 7. PW 3 is ASI Chattar Singh. Broad aspects of investigation have been divulged by him in Court as he was accompanying Inspector Rohtas Singh at the time of recovery. During cross-examination he stated that the office of the DSP is situated at a distance of ten Kms from the place of recovery. 7. PW 3 is ASI Chattar Singh. Broad aspects of investigation have been divulged by him in Court as he was accompanying Inspector Rohtas Singh at the time of recovery. During cross-examination he stated that the office of the DSP is situated at a distance of ten Kms from the place of recovery. He admitted that the factory of Azad Industries is near the railway station, but it was closed. He saw no person at the place of Criminal Appeal No. 204 SB of 2001 3 recovery at that time. He further stated that no person from the public was contacted during the proceedings. 8. PW 4 Inspector Rohtas Singh has given details of the investigation carried out by him. In cross-examination, he has stated that he had left the CIA staff in the noon. He left the spot at 9-00 PM and the accused was apprehended at 4-00 PM and as such he remained at the spot for about five hours. He admitted that he did not make any attempt to join independent witness. He further admitted that a number of residential houses were there in the vicinity, where the appellant was apprehended. 9. PW 5 Inspector Siri Chand has stated that he was SHO of police station Bahadurgarh at the relevant time. The accused and the case property were produced before him. He has further stated that he had deposited the case property with the Moharrir Head Constable. 10. All incriminating circumstances were put to the accused/appellant in his statement under Section 313 Cr.P.C. He pleaded false implication. 11. Mr. Dhaliwal appearing for the appellant has pointed out that in the statement under section 313 Cr.P.C., there is no mention of the affidavit tendered by PW 2 Man Singh UGC. 12. This Court is dismayed regarding the cryptic manner in which statement of the accused-appellant under Section 313 of the Code of Criminal Procedure has been recorded. In all seven Criminal Appeal No. 204 SB of 2001 4 questions were put to him. Questions No. 5,6 and 7 are usual in nature i.e. as to why the witnesses have deposed against him? Why this case against him and anything else to say? First three questions are regarding apprehension, investigation, recovery and deposit of the case property in the police station. Questions No. 5,6 and 7 are usual in nature i.e. as to why the witnesses have deposed against him? Why this case against him and anything else to say? First three questions are regarding apprehension, investigation, recovery and deposit of the case property in the police station. After deposit of the case property, the only relevant question (No. 4) put to the accused is reproduced as under : Q.4 "It is again in evidence against you that the sample was sent to the Director , FSL Madhuban and vide report Exhibit PF it was confirmed that the sample was of charas. Accordingly report under Section 173 Cr.P.C. was submitted against you in the Court and you were challaned in this case? 13. The accused has not been informed as to who was the Moharrir Head Constable. From the affidavit Exhibit PB of Man Singh UGC, who was examined as PW2, it has come to light that Jagdish Chand was the Moharrir Head Constable. The prosecution has not examined Jagdish Chand, to whom the recovered contraband along with the sample was entrusted. No opportunity to cross-examine has been provided. Mere filing of affidavit in the record without putting the witness in witness-box, causes grave prejudice to the accused. Furthermore incriminating link evidence has not been put to the accused under Section 313 Cr.P.C. There is no evidence on record to show that the case property and the sample remained intact with the Moharrir Head Constable and were not tampered with. No evidence has been produced regarding entry in Criminal Appeal No. 204 SB of 2001 5 register No. 19 in respect of receipt of the sample and the case property. 14. In the cases under the Act, where the minimum sentence of ten years is prescribed, it is required from the prosecution to ensure that all safeguards are taken regarding recovery and the sample. Non-examination of Moharrir Head Constable Jagdish Chand is fatal to the prosecution. The Courts have been insisting that the instructions of the Central Government Standing Committee requiring that representative sample should be prepared, should be strictly adhered to. There is nothing on record to show that the sample prepared was representative or harmonious of the entire lot of recovery. 15. At this stage, when the judgment was being dictated, Mr. The Courts have been insisting that the instructions of the Central Government Standing Committee requiring that representative sample should be prepared, should be strictly adhered to. There is nothing on record to show that the sample prepared was representative or harmonious of the entire lot of recovery. 15. At this stage, when the judgment was being dictated, Mr. Dhaliwal, seeing the tenor of the judgment, influenced by the observations of this Court states that since the appellant has already undergone 3 years and 3 months, he should be compensated. 16. This contention of Mr. Dhaliwal is misconceived as the appellant is being granted only the benefit of doubt. This Court is conscious of the fact that the investigating agency normally does not perform its duty as per the expectations. The appellant may have undergone 3 years and 3 months for being in possession of the contraband, but the Court is extending benefit of doubt on the ground that the link evidence is not established. For the foregoing discussion, the appeal succeeds, the Criminal Appeal No. 204 SB of 2001 6 conviction and sentence awarded by the Court below is set-aside and the appellant is acquitted of the charges.