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2008 DIGILAW 486 (PNJ)

Janta Singh: v. State Of Punjab:.

2008-02-20

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J. - This appeal is directed against the judgment of conviction and the order of sentence dated 26.4,1997, rendered by the Court of Addl. Sessions Judge, Mansa, vide which it convicted the accused/appellant Janta Singh, 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 another period of one year. 2. The facts, in brief, are that on 8.12.1994, Mukhtiar Singh, SI, alongwith Mohinder Singh, ASI, Baldev Singh, HC, and the other police officials, was going on official vehicle, from village Mussa towards village Attawali, and when the police party reached 1-1/2 k.ms. ahead of village Mussa, two persons, one of them Janta Singh, accused, were seen coming on foot from the side of Autawali. They were having plastic bags on their heads. They tried to slip away, but were apprehended. On search of the bag, being carried by Janta Singh, accused, in accordance with the provisions of law, it was found containing 5 kgs 100 grams poppy-husk. A sample of 100 grams was separated, and the remaining poppy-husk was put into the same bag. Both the parcels were duly sealed, with the seal bearing impression MS, and taken into possession. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, 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 his case, examined Prem Singh, HC (PW1), Mukhtiar Singh, SI (PW2) and Hardavinder Singh, SI (PW3). 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. 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. He, however, examined Jangir Singh, as DW1, Harbilas, Asstt. C.R.S. SSP Office, Mansa as DW2, and BalwinderSingh, Constable, As DW3. Thereafter, he closed the 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 herein before. 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 accused/appellant. 8. I have heard the 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, though the alleged recovery was effected from a public place. It is, no doubt, true that the evidence of the official witness, cannot be doubted, merely, on account of the reason, that no independent witness was joined by the Investigating Officer. However, in peculiar circumstances of the present case, when the accused alleged that he was falsely implicated, in this case, it can be held that non-joining of an independent witness, despite availability, clearly cast a doubt on the prosecution story. Since, the alleged recovery was effected from a public place and the independent witnesses were present even at the time, when the accused was allegedly apprehended, it became the bounden duty of the Investigating Officer, to join one of them, so as to show the genuineness of proceedings. The prosecution case becomes doubtful, on this ground. 10. The counsel for the appellant, at the very outset, contended that though the alleged recovery was effected on 8.12.1994, yet the sample was sent to the that no explanation was furnished by the prosecution witness, as to why, the sample was sent to the office of the Chemical Examiner, after a delay of 6 days. He further submitted that, on account of delay, in sending the sample to the office of the Chemical Examiner, Patiala, the possibility of tampering with the same, could not be ruled out. He further submitted that, on account of delay, in sending the sample to the office of the Chemical Examiner, Patiala, the possibility of tampering with the same, could not be ruled out. No explanation, whatsoever, was furnished, as to why, the sample was not sent to the office of the Chemical Examiner, for about a period of 6 days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, havingbeen furnished, in this regard, the Court cannot coin any of its own. In Gian Singh v. State of Punjab 2006(2) R.C.R. (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. On account of this infirmity, the appellant is liable to be acquitted. 11. Before Harvinder Singh, SI, (PW3), the case property and the accused were produced by Mukhtiar Singh, SI, (PW2). He verified the case property and appended his own seal thereon. It is evident from his statement that he sent the sample for Chemical Examination, through Raghbir Singh, Constable. He did not state that sample impression of the seal was also sent to the office of Chemical Examiner, through Raghbir Singh, Constable. When the sample seal was not handed over to Raghbir Singh, Constable, for deposit in the office of the Chemical Examiner, wherefrom the said specimen seal came, in the office of the Chemical Examiner is un-known. Under these circumstances, the report of the Chemical Examiner, to the effect, that the seals on the parcel, tallied with the sample seal, becomes doubtful. The link, in the chain of the prosecution evidence was, therefore, incomplete. It was the bounden duty of the prosecution, to prove beyond doubt, that none tampered with the sample, till it reached the office of the Chemical Examiner. In the instant case, the prosecution failed to prove, as to whether, the seals on the sample, when deposited in the office of the Chemical examiner, were intact, and how the said seals were compared with the sample seal which was not sent to this office. The case of the prosecution, thus became doubtful, and the accused was entitled to acquittal. The case of the prosecution, thus became doubtful, and the accused was entitled to acquittal. The trial Court was, thus, wrong in convicting the accused. 12. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based on the correct appreciation of evidence and law, on the point, and the same are liable to be set aside. 13. For the reasons recorded, herein before, the appeal is accepted. The judgment of conviction and the order of sentence dated 26.4.1997, are set aside. The appellant shall stand acquitted of the charge, framed against him. He is discharged of the bail bonds. Appeal allowed.