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2008 DIGILAW 616 (PNJ)

Khazan Singh v. State Of Haryana

2008-03-03

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction dated 12.08.1997, and the order of sentence dated 13.08.1997, rendered by the Court of Addl. Sessions Judge, Karnal, vide which it convicted the accused/appellant Khazan 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 21.05.1995, Som Nath, ASI, who was posted at Police Post, Sadarpur Police Station Gharaunda alongwith Krishan Chand, Head Constable, was present at Yamuna Band in the area of Village Lalupura near Samadhi of Baba Peer. In the meanwhile, Khazan Singh, accused, with a bag on his head came from the side of Yamuna Band, and, on suspicion he was stopped by the ASI. On interrogation, he told his name and parentage. Search of the bag was conducted, in accordance with the provisions of law, which was found containing 13 kgs. Poppy husk. A sample of 200 grams, was separated therefrom. The sample and the remaining poppy husk, were converted into separate parcels, sealed with the seal, bearing impressions SN, and taken into possession vide memo Ex. PE. duly attested by the witnesses. Ruga was sent to the Police Station, on the basis thereof, formal FIR was registered. Site plan of the place of recovery was prepared. 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 its case, examined Raj Kumar, Head Constable, PW1, Niranjan Singh, Constable, PW2, Naresh Kumar, SI, PW3, Krishan Chand, Head Constable, PW4, and Som Nath, ASI, PW5. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. 4. The prosecution, in support of its case, examined Raj Kumar, Head Constable, PW1, Niranjan Singh, Constable, PW2, Naresh Kumar, SI, PW3, Krishan Chand, Head Constable, PW4, and Som Nath, ASI, PW5. 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. He, however, produced no 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 no independent witness was joined by the Investigating Officer, despite availability. No doubt, Som Nath, ASI, stated that he deputed a Constable to bring some villager, with him, to join the investigation. He, however, reported back to him that nobody from the village was prepared to join the investigation. It appears that such an explanation, furnished by the Investigating Officer, is not correct. In case, no independent witness was ready to join the investigation, then the names of the persons, who refused to join, could be recorded, in the documents, which were contemporaneously prepared, at the time of the alleged search and seizure. Their names could also be mentioned in the case diary. However, the Investigating Officer, neither mentioned their names, in any of the documents, allegedly prepared by him, at the spot, nor in the case diary. This clearly goes to show that no effort was made by the Investigating Officer, to join an independent witness, but a false explanation, in that regard, referred to above, was furnished by him. Had a genuine effort been made to join an independent witness, and he had refused to do so, the matter would have been considered, in the light thereof, but in the absence of any plausible explanation, having been furnished, in this regard, the Court cannot coin any of its own. Had a genuine effort been made to join an independent witness, and he had refused to do so, the matter would have been considered, in the light thereof, but in the absence of any plausible explanation, having been furnished, in this regard, the Court cannot coin any of its own. It is no doubt, true that the evidence of the official witnesses cannot be distrusted and disbelieved, merely, on account of the reason, that the same was not corroborated by an independent witness. However, when it is established, from the evidence, on the record, that there was sufficient opportunity with the Investigating Officer, to join an independent witness but none was intentionally joined, then certainly an element of doubt, in view of the peculiar facts and circumstances of the case, especially when the recovery of poppy straw allegedly effected, is not heavy, but meager casts a cloud of doubt on the case of the prosecution. The trial Court, however, did not 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 there was a delay of 21 days, in sending the sample, as the alleged recovery was effected in this case on 21.05.1995, whereas the sample of the poppy straw, was sent to the office of the Forensic Science Laboratory, Madhuban on 12.06.1995. No explanation, whatsoever, was furnished, as to why the sample was not sent to the office of the Forensic Science Laboratory, Madhuban, for about 21 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 (Crl.) 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 case of the prosecution also become doubtful. 11. There is no evidence, on record, that the sample seal was handed over to Niranjan Singh, Constable, for deposit of the same in the Forensic Science Laboratory. Madhuban. Ex. Ultimately, the appellant was acquitted in that case. On account of this infirmity, the case of the prosecution also become doubtful. 11. There is no evidence, on record, that the sample seal was handed over to Niranjan Singh, Constable, for deposit of the same in the Forensic Science Laboratory. Madhuban. Ex. PA is the affidavit of Raj Kumar, Head Constable, he stated that on 21.05.1995, Som Nath, ASI, deposited with him a sample parcel containing poppy husk, duly sealed with the seal bearing impressions SN and NK. He did not state even a single word, that the sample seal was deposited with him, by the Investigating Officer, at the time of deposit of the case property and the sample. He also stated that he handed over the said sample parcel to Niranjan Singh, Constable who was deputed to deposit the sample parcel, in the Forensic Science Laboratory, Madhuban. Niranjan Singh, in his affidavit, had not stated, even a single word, that he was handed over the sample seal for deposit in the office of the FSL, and that he deposited the same there. Since the sample seal was not deposited in the Forensic Science Laboratory, it is not known, as to how the said Laboratory came to the conclusion, that the seals on the sample, tallied with the specimen seal. The certificate given by the FSL, therefore, was not in consonance with the evidence, produced in this case. Since, there was no material with the said laboratory to tally the seals, on the sample parcels, as the same was not sent to it, it could not be said that the case property was received by the said laboratory, with seals intact, or that the same bore the seals which were actually affixed thereon. This fact also casts a cloud of doubt, on the prosecution story. In this view of the matter, the report Ex. PG of the FSL, becomes redundant. This material aspect of the matter, was not taken into consideration by the trial Court, as a result whereof, miscarriage of justice occasioned. 12. The seal, in this case, after use was handed over to Kishan Chand, Head Constable, by Som Nath, ASI, Kishan Chand, Head Constable stated, during cross-examination that he returned the seal to the ASI, after one week, whereas, the sample parcel was sent to the FSL, after 21 days. 12. The seal, in this case, after use was handed over to Kishan Chand, Head Constable, by Som Nath, ASI, Kishan Chand, Head Constable stated, during cross-examination that he returned the seal to the ASI, after one week, whereas, the sample parcel was sent to the FSL, after 21 days. It means that the seal and the sample parcel remained with the same person. In these circumstances, the possibility of tampering with the case property, and the sample, could not be ruled out. The prosecution, thus, miserably failed to prove beyond doubt, that none tampered with the sample, until it was deposited in the Forensic Science Laboratory. This fact also cast a cloud of doubt, on the prosecution story. 13. The judgment of conviction, and the order of sentence, rendered by the trial Court are, thus, not based on the correct appreciation of evidence, and law, on the point. The same warrant interference, and are liable to be set aside. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 12.08.1997, and the order of sentence dated 13.08.1997, are set aside. The appellant shall stand acquitted of the charge framed against him. He is discharged of the bail bonds.