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2008 DIGILAW 748 (PNJ)

Raju Singh v. State of Punjab

2008-03-24

SHAM SUNDER

body2008
JUDGMENT Sham Sunder. J.:- This appeal is directed against the judgment of conviction and the order of sentence dated 06.03.1997, rendered by the Court of Additional Sessions Judge, Ludhiana, vide which it convicted the accused (now appellant), for the offence, punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac, in default of payment of fine to undergo further rigorous imprisonment, for a period of six months. 2. The facts, in brief, are that on 02.08.1997 Sub Inspector Sikattar Singh, SHO, Police Station, Jagraon was on routine patrol duty, and was going in the illaqa on Govt. vehicle in the company of police officials. He held a nakabandi on narrow bridge of village Akhara, where Head Constable Vijay Kumar and other police officials were associated with the police party. At about 7.00 PM, the accused came from the side of Jagraon. He was apprehended on suspicion. On search of the cloth bag, being carried by him, one killo gram opium was recovered. He could not produce any permit or licence for keeping in possession the opium. Two samples of 10 grams, were separated, and the remaining opium was put into the same bag. The sample and the remaining opium were converted into separate parcels, and the same were taken into police possession. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. The accused was arrested. The site plan was prepared. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 18 of the Act, was framed against the accused, by the Additional Sessions Judge, Ludhiana, to which he pleaded not guilty and claimed judicial trial. z4. The prosecution, in support of its case, examined Rajinder Singh, ASI, (PW-1), Sikattar Singh, Sub Inspector, (PW-2), the investigating officer and Birbhai Singh, Head Constable, (PW-3). Thereafter, he closed the prosecution evidence. 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. Thereafter, he closed the prosecution evidence. 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence in defence. 6. The Additional Sessions Ludhiana, Judge, convicted and sentenced the accused, as stated above. 7. Feeling aggrieved, against the judgment of Additional Sessions Judge, Ludhiana, the instant appeal was filed by the accused/appellant. 8. The appeal was fixed for regular hearing, but none appeared, on behalf of the appellant, despite due notice. 9. I have heard Sh. O.P. Dabla, AAG, Punjab, for the respondent, and have gone through the evidence, and record of the case, carefully. 10. In this appeal, one of the grounds, taken up by the appellant, was that there was a delay of 36 days, in sending the sample to the Chemical Examiner, which remained unexplained. The alleged recovery was effected on 02.08.1994, whereas the sample of the opium, was sent to the office of the Chemical Examiner, Patiala on 07.09.1994. No explanation, whatsoever, was furnished, as to why the sample was not sent to the office of the Chemical Examiner, Patiala, for about 36 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 Vs. State of Punjab, [2006(2) LAW HERALD (P&H) 1006] : 2006(2) RCR (Criminal) 611, there was a delay of 15 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. In the instant case too, the possibility of tampering with the sample, could not be ruled out. Ultimately, the appellant was acquitted in that case. On account of this infirmity, the case of the prosecution became doubtful. 11. The next ground taken up by the appellant, in this appeal, was that no independent witness was joined by the Investigating Officer, at the time of the alleged recovery and the case of the prosecution being solely based, on the evidence of the official witnesses, could not be said to have been fully proved. 11. The next ground taken up by the appellant, in this appeal, was that no independent witness was joined by the Investigating Officer, at the time of the alleged recovery and the case of the prosecution being solely based, on the evidence of the official witnesses, could not be said to have been fully proved. It is, no doubt, true that no independent witness was joined by the Investigating Officer at the time of alleged recovery. Sikattar Singh, Sub Inspector, the Investigating Officer, during the course of cross-examination, stated that the place of recovery was situated at a distance of 3 Kms, from canal bridge Dalla. He further stated that for going to the spot from the Police Station, one has to pass through the Bazar of Jagraon. He further stated, during the course of cross-examination, that when one has to go to Gurdwara Nanaksar, from the Police Station, he has to pass through Mohallas and Bazars of Jagraon. It means that a number of independent witnesses were available, on the way, as is clear from the evidence of the Investigating Officer, but none of them was joined by him, for the reasons, best known to him. In case, the Investigating Officer had made an attempt to join an independent person, and had he refused to join, he would have certainly recorded this fact, in the ruqa, and other documents, prepared at the spot. There is no mention of this fact, in the documents. It is, no doubt, true that the evidence of the official witnesses, cannot be distrusted and disbelieved, merely, on account of the reason, that no independent witness was joined, and examined. However, when in a particular case, it is proved that the, recovery was effected from a public place, and the independent witnesses were available, but no effort was made to join them, certainly a doubt is cast on the prosecution story. Had any independent witness been joined, in the peculiar facts and circumstances of this case, his evidence would have certainly lent genuineness to the case of the prosecution, which is solely based on the evidence of the official witnesses. The prosecution case became doubtful on account of this reason. 12. The next ground, taken up in this appeal, was that even the provisions of Section 57 of the Act, were violated by the Investigating Officer. The prosecution case became doubtful on account of this reason. 12. The next ground, taken up in this appeal, was that even the provisions of Section 57 of the Act, were violated by the Investigating Officer. The Investigating Officer stated that he did not send any report to the Officer superior, with regard to the alleged seizure. No doubt, the provisions of Section 57 of the Act, are directory in nature. It does not mean that the same should not be complied with. No explanation, whatsoever, was furnished by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of the Act. Had any plausible explanation, been furnished by him, in that regard, the matter would have been considered, in the light thereof. In the absence of any explanation, what to speak of plausible, the Court cannot coin any of its own, to fit in with the prosecution case. Keeping in view the stringent punishment, provided for the offence, punishable under Section 18 of the Act, it was required of the Investigating Officer, to strictly comply with the provisions of the Act, so that no doubt was cast, on the prosecution story. This fact also cast a cloud of doubt on the prosecution story. 13. The next ground taken up by the appellant, in this appeal, was that the seal, in this case, after use, was handed over to Assistant Sub Inspector Rajinder Singh, by the Investigating Officer and possibility of changing the contents of the sample, until it reached the Chemical Examiner, could not be ruled out. Sikattar Singh, Sub Inspector (PW2) during the course of cross-examination, stated that Rajinder Singh, ASI returned the seal to him, on the next day of the recovery. It means that the seal throughout remained with the Investigating Officer from 03.08.1994 until the sample was received in the office of Chemical Examiner on 05.09.1994. Even the case property and the sample also remained in the Police Station, during this period. Accordingly, the contents of the sample and the case property, could be changed by breaking the seals of the same, and again re-sealing the same. It is incumbent, upon the prosecution, to prove that right from the date of recovery, until the sample reached the office of Chemical Examiner, none tampered with the case property and the samples. Accordingly, the contents of the sample and the case property, could be changed by breaking the seals of the same, and again re-sealing the same. It is incumbent, upon the prosecution, to prove that right from the date of recovery, until the sample reached the office of Chemical Examiner, none tampered with the case property and the samples. Since, in the instant case, the seal was returned to the Investigating Officer, by Rajender Singh, ASI on 3.08.1994, and it remained with him, until the sample was received in the office of Chemical Examiner on 05.09.1994 thus, the possibility of tampering with the contents of sample parcels and the seal, could not be ruled out. The, trial Court failed to take into consideration, this important fact, as a result whereof, the miscarriage of justice occasioned. 14. The affidavit, of Davinder Singh, MHC Ex.PG and the affidavit of Kkulwant Rai, Constable, Ex.PH, were tendered into evidence, by the Public Prosecutor for the State, vide his statement dated 13.01.1997. These formal witnesses, were neither present in the Court on 13.1.1997, nor were they offered for cross-examination, by the accused, at any point of time, during the course of trial. On account of non-production of these witnesses, for cross-examination, by the accused, his valuable and indefeasible right was defeated. Had these witnesses been produced for cross-examination, the accused would have certainly tested the veracity of their affidavits. He might have been able to shatter their veracity, during the course of cross-examination. These affidavits, without offering the deponents thereof, for cross-examination, by the accused, could be said to be the incomplete statements of these witnesses, which could not be acted upon. In Gian Singh Vs. State of Punjab, [2006(2) LAW HERALD (P&H) 1006] : 2006(2) RCR (Crl.) 611, the formal witnesses, whose affidavits were tendered, were not offered for cross-examination. In these circumstances, it was held that their affidavits could not be read into evidence. It was held that the link evidence was incomplete, and the conviction of the appellant, was set aside. The principle of law, laid down, in aforesaid authority, is fully applicable, to the facts of the instant case. Since the link evidence was incomplete, the case of the prosecution became doubtful. This infirmity, hit at the root of the case of the prosecution. On account of this glaring infirmity, the accused was liable to be acquitted. 15. The principle of law, laid down, in aforesaid authority, is fully applicable, to the facts of the instant case. Since the link evidence was incomplete, the case of the prosecution became doubtful. This infirmity, hit at the root of the case of the prosecution. On account of this glaring infirmity, the accused was liable to be acquitted. 15. 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, and the same are liable to be set aside. 16. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 06.03.1997, are set aside. The appellant shall stand acquitted of the charge framed again him. If, on bail, he shall stand discharged of his bail bonds. If the appellant is in custody, he shall be set at liberty, in not required in any other case. ----------------------------