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2008 DIGILAW 544 (PNJ)

Rajesh Kumar v. State Of Haryana

2008-02-27

SHAM SUNDER

body2008
Judgment SHAM SUNDER, J. 1. This appeal is directed against the judgment of conviction dated 9.1.1997, and the order of sentence dated 10.1.1997, rendered by the Court of Addl. Sessions Judge, Bhiwani, vide which it convicted the accused/appellant Rajesh Kumar, 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 2 = years. 2. The facts, in brief are that on 25.12.1995, Maman Singh, ASI, alongwith other police officials, was present in the area of Loharu, when Satbir son of Kalu, a public witness, met him. He was joined with the police party. Maman Singh, ASI, was going to the side of Railway Road, and when he reached the said road, the accused was seen coming from the side of Chirawa via Chirawa road. He was having a bag (katta), and on noticing the police party, he started walking swiftly. He was apprehended. The search of the bag, being carried by the accused, was conducted, in accordance with the provisions of law. It was found containing 10 kgs. of poppy-husk. A sample of 100 grams was separated therefrom. The sample, and the remaining poppy-husk, were converted into parcels, duly sealed with the seal bearing impression MS. The seal after use was handed over to Satbir, public witness. Ruqa was sent to the Police Station, on the basis whereof, the 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 trial. 4. The prosecution, in support of its case, examined Ranjit Singh, HC, PW-1, Jagdish Chander, Constable, PW-2, Sunderpal, SI, PW-3, Chander Singh, PW-4, and Maman Singh, ASI, PW-5. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. 4. The prosecution, in support of its case, examined Ranjit Singh, HC, PW-1, Jagdish Chander, Constable, PW-2, Sunderpal, SI, PW-3, Chander Singh, PW-4, and Maman Singh, ASI, PW-5. Thereafter, the Public Prosecutor for the State, 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 he and one Surja Brahman of his village, had gone to purchase a she camel from Rajasthan. They stopped at Loharu, on their way to Rajasthan, and took meals at a hotel in Loharu. They were caught hold by the Police. He further stated that his associate was let off, while he was taken to the Police Station. He, however, did not know, as to why he was apprehended. The accused, however, did not produce 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, 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 accused/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, contended that though the alleged recovery was effected on 25.12.1995, yet the sample was sent to the office of the Forensic Science Laboratory, Madhuban on 16.1.1996. He further submitted that no explanation was furnished by the prosecution witnesses, as to why, the sample was sent to the office of the Forensic Science Laboratory Haryana, Madhuban, after a delay of 22/23 days. He further submitted that, on account of delay in sending the sample, to the office of the Forensic Science Laboratory Haryana, Madhuban, 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 Forensic Science Laboratory, for about a period of 22/23 days. No explanation, whatsoever, was furnished, as to why, the sample was not sent to the office of the Forensic Science Laboratory, for about a period of 22/23 days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. 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. On account of this infirmity, case of the prosecution became doubtful. 10. It was next submitted by the Counsel for the appellant, that Maman Chand, ASI, (PW-5), no doubt, stated that he handed over the seal after use to Satbir, public witness, but the later was not examined, and, as such, it could not be said, as to when, he returned the seal to him (Maman Chand). He further contended that Sunderpal, SI, who was posted as S.H.O., Police Station Loharu, stated that he also affixed his own seal, when the case property was produced before him. He did not state in his statement, that he handed over the seal, after use to any other police official. It means that he retained the seal, after use with him. Since, the seal after use, remained with Sunderpal, SI, the possibility of changing the contents of the sample parcel, and the parcel of the remaining case property, could not be ruled out. The submission of the Counsel for the appellant, that tampering with the sample, until it reached the office of the Forensic Science Laboratory, could not be ruled out, being correct, is accepted. 11. No doubt, as per the statement of Maman Chand, ASI, Satbir, independent witness was joined, at the time of the alleged recovery. However, Satbir, public witness, was not examined, and was given up as won over by the Public Prosecutor for the State, on the basis of an application mark-A, moved by the concerned Police Officer, that he had sided with the accused. However, Satbir, public witness, was not examined, and was given up as won over by the Public Prosecutor for the State, on the basis of an application mark-A, moved by the concerned Police Officer, that he had sided with the accused. In the application Mark-A, it was not stated, as to how, the concerned Police Officer came to know that Satbir, independent witness, was not going to support the case of the prosecution. Merely stating in Mark-A, that Satbir had joined hands with the accused, was, in my opinion, not sufficient to come to the conclusion, that he had actually been won over by the accused. It was the duty of the prosecution to examine Satbir, public witness, especially in view of the fact that the alleged recovery from the accused, was minor, and, in case, he had not supported the case of the prosecution, then permission of the Court could be sought, to put him such questions, as are put during the course of cross-xamination. By simply saying that a particular witness had sided with the accused, without any valid grounds, could not be said to be a sufficient circumstance, for giving up such a witness, as won over. It appears that Satbir, independent witness was not examined by the prosecution, intentionally and deliberately as it feared that, he would tell the truth, which may cast a cloud of doubt, on the prosecution story. Non-examination of Satbir, independent witness in the peculiar facts and circumstances of the present case, must prove fatal to the case of the prosecution. On account of non- examination of Satbir, the case of the prosecution became doubtful. 12. Ex.PB, the affidavit of Jagdish Chander, Constable, who allegedly took the sample to the office of the Forensic Science Laboratory, Madhuban, and deposited the same there, does not speak of handing over the sample seal to him, by Ranjit Singh, HC, and deposit of the same in the office of the Forensic Science Laboratory. It is evident from Ex.PB, the affidavit of Jagdish Chander, Constable, that on 16.1.1996, Ranjit Singh, MHC, Police Station Loharu, handed over to him, a sample parcel, containing poppy-husk, weighing 100 grams, duly sealed with the seal bearing impressions MS and `SP alongwith docket for deposit in the office of the Forensic Science Laboratory, Madhuban. It is evident from Ex.PB, the affidavit of Jagdish Chander, Constable, that on 16.1.1996, Ranjit Singh, MHC, Police Station Loharu, handed over to him, a sample parcel, containing poppy-husk, weighing 100 grams, duly sealed with the seal bearing impressions MS and `SP alongwith docket for deposit in the office of the Forensic Science Laboratory, Madhuban. He further testified vide Ex.PB, the affidavit, that he deposited the same, in the office of the Forensic Science Laboratory, Madhuban, on 16.1.1996, and none tampered with the same, till it remained in his custody. Since, according to Ex.PB, he was not handed over the sample seal, nor he deposited the same, in the Forensic Science Laboratory, it is not known, as to how, in Ex.PH, the report of the said laboratory, it was written that the seals on the parcel, were found intact, and tallied with the specimen seal, as per the forwarding authority. The comparison of the seals, on the sample parcel, could only be made, had the specimen sample seal, been sent, and deposited in the said laboratory. In the absence of deposit of the sample seal, in the said laboratory, no comparison could be made, as to whether the seals on the sample parcel tallied with the specimen seal. In these circumstances, the possibility of tampering with the sample parcel, could not be ruled out. It could also not be said, as to whether, the seals on the sample parcel, tallied with the sample seal. This fact also casts a doubt on the prosecution story. 13. 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 failed to take into consideration, the material infirmities referred to hereinbefore, which made the case of the prosecution highly doubtful, and, as such miscarriage of justice occasioned. The judgment of conviction, and the order of sentence, warrant interference, and are liable to be set aside. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 9.1.1997, and the order of sentence dated 10.1.1997, are set aside. The appellant shall stand acquitted of the charge framed again him. He is discharged of the bail bonds.