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Punjab High Court · body

2009 DIGILAW 2096 (PNJ)

Beera Singh v. State Of Punjab

2009-12-02

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction and the order of sentence, dated 04.04.09, rendered by the Court of Judge, Special Court, Muktsar, vide which, he convicted the accused for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the Act only), sentenced him to undergo Rigorous Imprisonment for a period of 2 years, and to pay a fine of Rs. 10,000/-, and in default thereof, to further undergo rigorous imprisonment, for a period of three months, for having been found in possession of 19 kgs and 250 grams of poppy-husk, without any permit or licence, which falls within the ambit of non-commercial quantity. 2. On 14.09.02, Satpal Singh, Assistant Sub Inspector, alongwith Malkiat Singh, Head Constable, and other Police officials, was going, in a private jeep, from village Khutianwali to Fatehpur Manian, in connection with patrol duty and detection of crime and when the Police party, reached at the canal minor bridge, in the area of village Fatehpur Manian, the accused, was seen, going ahead, carrying a plastic bag, on his head. On seeing the Police party, the accused, turned towards his left hand, on the bank of canal minor towards eastern side. The accused was apprehended, at the spot. The Assistant Sub Inspector, asked the accused, that he suspected some intoxicating substance, in the plastic bag, being carried, by him (accused), and, as such, he wanted to search the same. It was further stated that the accused, was also given an opportunity of being searched, in the presence of some Magistrate or Gazetted Officer. He stated that he wanted the search in the presence of a Gazetted Officer. Thereafter, the Assistant Sub Inspector, sent a wireless message, to Jarnail Singh, Deputy Superintendent of Police (D), to reach the spot, but he told that, he was busy, in some other case, and would reach soon there. In the meanwhile, the consent memo of the accused, was prepared, attested by the witnesses, and thumb marked by him (accused). Thereafter, the Deputy Superintendent of Police, reached the spot, and disclosed his identity, to the accused, vide separate memo, attested by the witnesses and thumb marked by him (accused). In the meanwhile, the consent memo of the accused, was prepared, attested by the witnesses, and thumb marked by him (accused). Thereafter, the Deputy Superintendent of Police, reached the spot, and disclosed his identity, to the accused, vide separate memo, attested by the witnesses and thumb marked by him (accused). After getting directions, from the Deputy Superintendent of Police, the Investigating Officer, conducted the search of the plastic bag, being carried, by the accused, wherefrom, poppy husk, was recovered. Out of the said poppy husk, 250 grams, was taken out as sample and converted into a parcel. The remaining poppy husk, on weighing came to be 19 kgs, which was put into the same bag, and converted into a parcel. Thereafter, both the parcels, containing poppy husk, were sealed, by the Assistant Sub Inspector, with the seal, bearing impression SSS. Sample seal chit, was prepared separately. Thereafter, the seal, was handed over to Malkiat Singh, Head Constable. Form No. 29-M, was also prepared, at the spot. The Deputy Superintendent of Police, besides attesting the sample seal chit, also put his seal, on the parcels, bearing impression IS The entire case property along with the sample seal chit and Form No. 29-M, was taken into possession, by the Assistant Sub Inspector, vide recovery memo, attested by the witnesses. Personal search of the accused, was also conducted, but no incriminating article, was recovered. Memo, in this regard, was also prepared. Ruqa was sent to the Police Station, on the basis whereof, the FIR was recorded. Rough site plan of the place of recovery was prepared. The statements of the witnesses were recorded. The accused was arrested. Intimation regarding the arrest of the accused, was also sent, to his relatives. On reaching the Police Station, the Investigating Officer, produced the accused alongwith the case property, before Baljinder Singh, Station House Officer, who after verifying the facts, took the same in his possession. On the next day, the accused, the case property, as also the inventory report, were produced, in the Court, and after obtaining necessary orders therefrom, the same (case property), was deposited, in the Police Station, Malkhana. 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. 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 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 Satpal Singh, Assistant Sub Inspector (PW1), the Investigating Officer, Malkiat Singh, Head Constable (PW2), Baljit Singh, Constable (PW3), Baljinder Singh, Sub Inspector (PW4), the then Station House Officer, Pritam Singh, Head Constable (PW5), and Jarnail Singh, Deputy Superintendent of Police (Retired) (PW6). Thereafter, the Additional Public Prosecutor for the State, 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. It was stated by him that he was picked up, by the Police, from his house, due to party faction and the entire work, was done, in the Police Station. He further stated that nothing incriminating, was recovered, from him, and he was falsely, involved, in this case. He, however, did not lead evidence, in defence, and closed the same. 6. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, and record of the case, the trial Court convicted and sentenced the accused, as stated above. 7. Feeling aggrieved, the instant appeal, has been 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, submitted that, no independent witness, was joined, by the Investigating Officer, at the time of affecting the alleged recovery, from the accused, despite availability. She further submitted that, even no real and sincere efforts, were made, by the Investigating Officer, to join an independent witness. The submission of the Counsel for the appellant, in this regard, appears to be correct. According to Satpal, Assistant Sub Inspector, the Investigating Officer, Angrej Singh, Punjab Home Guard (Volunteer), was sent, to bring weight and scale, as also an independent witness, from the village. But, on return, he told, that no-body, had met him. He further stated that, he did not record his statement. According to Satpal, Assistant Sub Inspector, the Investigating Officer, Angrej Singh, Punjab Home Guard (Volunteer), was sent, to bring weight and scale, as also an independent witness, from the village. But, on return, he told, that no-body, had met him. He further stated that, he did not record his statement. Even no reference, was made, in the case diary. Had real and sincere efforts, been made, by the Investigating Officer, to join an independent witness, and had Angrej Singh, Punjab Home Guard (Volunteer), on return, told him, that no person, from the village met him, he would have certainly recorded this factum, in the case diary. On the other hand, the statement of Satpal, Assistant Sub Inspector, the Investigating Officer, on the aforesaid aspect of the matter, was belied by Malkiat Singh, Head Constable, PW2, a recovery witness, when he stated that nobody, was sent, to the village, to bring an independent witness. Even no reference, was made, in any of the documents, prepared, at the spot, that an attempt, was made, to join an independent witness, but, on account of non-availability of such a witness, in the village, he could not be joined. It even, could not be imagined, that if a Police Official, was sent, to the village, no villager, was present there. It appears that, only a cock and bull story, was put- forth, by the Investigating Officer, just with a view, to cover up his lapse of non-joining of an independent witness. Had any real and sincere efforts, been made, to join an independent witness, the matter would have considered, in the light thereof. Since, the minimum stringent punishment is provided for the offences, punishable under the Act, and according to the provisions of Section 51 of the Act, the provisions of the Code of Criminal Procedure, relating to search, seizure and arrest shall apply to the extent, the same are not inconsistent with the provisions of the Act, it was imperative, on the part of the Investigating Officer, to join an independent witness, at the time of the alleged search, and seizure or at least to make a genuine, sincere and real effort, to join such a witness. The search and seizure, before an independent witness, would have imparted much more authenticity, and creditworthiness, to the proceedings, so conducted. It would have also verily strengthen the prosecution case. The search and seizure, before an independent witness, would have imparted much more authenticity, and creditworthiness, to the proceedings, so conducted. It would have also verily strengthen the prosecution case. The said safeguard was also intended to avoid criticism of arbitrary and high-handed action, against the authorized Officer. In other words, the Legislature, in its wisdom, considered it necessary to provide such a statutory safeguard, to lend credibility to the procedure, relating to search and seizure, keeping in view the severe punishment, prescribed under the Act. That being so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute, and failure to do so, must be viewed with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of statutory safeguards, committed by the authorized officer, during search and seizure operation and may also undermine respect of law. That cannot be permitted. In State of Punjab v. Bhupinder Singh, 2001(01) RCR(Crl.) 356 a Division Bench of this Court, held the case of the prosecution, to be doubtful, on account of non- joining of an independent witness, though the recovery was effected from a busy locality. In State of Punjab v. Ram Chand, 2001(1) RCR (Crl.) 817, a Division Bench of this Court, held that it was imperative to join an independent witness, to vouchsafe the fair investigation. On account of non-joining of an independent witness, it was held that the accused was entitled to be given the benefit of doubt. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. In the instant case, the alleged recovery being minor, now falling within the ambit of non-commercial quantity, and chances of plantation of the same, against the accused, could not be ruled out, it became the bounden duty of the Investigating Officer, to observe all the safeguards, provided under the Act, at the time of search and seizure. It is, no doubt, true that, in the absence of corroboration through an independent source, the evidence of the official witnesses, cannot be disbelieved and distrusted, blind-foldely, if the same is found to be creditworthy. It is, no doubt, true that, in the absence of corroboration through an independent source, the evidence of the official witnesses, cannot be disbelieved and distrusted, blind-foldely, if the same is found to be creditworthy. However, when the evidence of the official witnesses, is found to be not cogent convincing, reliable and trustworthy, then on account of non-corroboration thereof, through an independent source, a doubt is cast, on the prosecution case. 10. It was next contended, by the Counsel for the appellant, that though the alleged recovery, was effected, on 14.09.02, yet the sample, was sent, to the Chemical Examiner, on 23.09.02, and reached the said laboratory, on 24.09.02, after a delay of 10 days. She further submitted that, on account of delay of 10 days, in sending the sample, to the Chemical Examiner, the possibility of tampering with the same, could not be ruled out, especially when, the seals, after use, were handed over, to an official witness, who returned the same, before sending the sample. The case property and the seals, thus, throughout remained with the Police Officials. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true that if the other evidence, produced by the prosecution to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the sample to the Chemical Examiner, pales into insignificance. However, if the other evidence, is not found to be creditworthy, then delay certainly proves fatal to the prosecution case. In this case, the other evidence produced by the prosecution, to prove the completion of link evidence, is neither reliable nor trustworthy. It is for the prosecution to prove affirmatively, that right from the date of seizure, until the sample was sent to the Chemical Examiner, it was not tampered with. If the prosecution fails to prove this factum, then its case is bound to dwindle down. In State of Rajasthan v. Gurmail Singh, 2005(2) RCR (Crl.), 58, S.C., the contraband, was kept in the Malkhana for 15 days. The Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence, produced was also found to be un-reliable. In State of Rajasthan v. Gurmail Singh, 2005(2) RCR (Crl.), 58, S.C., the contraband, was kept in the Malkhana for 15 days. The Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence, produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Examiner. In State of Punjab v. Jaswant Singh, 2002(3), RCR (Crl.), 54 (DB) (P&H), there was a delay of 21 days, in sending the sample to the laboratory. In these circumstances, it was held that it must prove fatal to the prosecution case, especially when admittedly no independent witness was joined, in the recovery proceedings, and seal used for sealing the sample, remained with the Police Official, during the period. 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. In Ra- jesh Jagdamba Avasthi v. State of Goa, 2005(1), RCR (Criminal), 406 (S.C.), charas was recovered from the possession of the accused and sealed in two packets. The packets and the seal remained, in the custody of the same person. In these circumstances, it was held that there was every possibility of the seized substance, being tampered with. The conviction of the accused was set aside, inter-alia, on this ground. Since the possibility of tampering with the case property, and the sample, could not be ruled out. in (he instant case, a serious doubt, on account of this reason, was cast on the prosecution case. In Ramji Singh v. State of Haryana, 2007(3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, and the seal remained with the police official, and had n6t been handed over to any independent witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. 11. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. 11. It was next submitted by the Counsel for the appellant, that Baljinder Singh, Sub Inspector, who was the Station House Officer of the Police Station, at the relevant time, when appeared, as PW4, stated that the case property and the sample parcel, duly sealed with the seal, bearing impression SSS and JS alongwith the specimen seal and CFSL form, were produced, before him. He further stated that, after verifying the same, he affixed his own seal, bearing impression BS, on both the parcels. However, during the course of his cross-examination, it was stated by him, that there was only one specimen seal, produced before him. He did not state, that the specimen seal, which was produced, before him, bore the impression SSS and JS. When only one specimen seal, was produced, before him, it is not known, as to how, on the chit P3, affixed, on the report of the Chemical Examiner, impression of three seals, bearing impression SSS, JS and BS, was found in existence. As stated above, it was for the prosecution, to prove, through cogent and convincing evidence, that none tampered with the sample, until the same reached the office of the Chemical Examiner. Once the specimen impression of the other seal, was not produced, before the Station House Officer, who appeared, as PW4, then certainly a doubt, was cast, on the prosecution story, that at one or the other stage, the sample, was tampered with, until it reached the office of the Chemical Examiner. On account of non-furnishing of any plausible explanation, on the aforesaid point, by the prosecution witnesses, it could not be definitely said, that the sample parcel, remained intact and safe, until it reached the office of the Chemical Examiner. 12. It was next submitted by the Counsel for the appellant, that the evidence of the official witnesses, is contradictory, and no explanation, was furnished, as to how, those contradictions, cropped up. According to Satpal, Assistant Sub Inspector, Angrej Singh, Punjab Home Guard (Volunteer), was sent, to bring an independent witness. Malkiat Singh, Head Constable, PW2, a witness, to the recovery, stated that, nobody was sent to call the independent witness, from the village. According to Satpal, Assistant Sub Inspector, Angrej Singh, Punjab Home Guard (Volunteer), was sent, to bring an independent witness. Malkiat Singh, Head Constable, PW2, a witness, to the recovery, stated that, nobody was sent to call the independent witness, from the village. Jarnail Singh (Retired) Deputy Superintendent of Police, PW6, stated that, it was Malkiat Singh, who was sent, to the village, to bring weight and scale and an independent witness. Had all the witnesses, been present, at the spot, such contradictions, would not have cropped up, in their statements. This goes to prove, that either one of the prosecution witnesses, was not present, at the time of the alleged recovery, or the recovery, was not effected, in the manner, deposed to, by the prosecution witnesses. Since the case of the prosecution is based, on the evidence of the official witnesses only, even the minor contradictions assume significant role, to cast a doubt, on the prosecution story, relating to the alleged recovery of poppy-husk, constituting the noncommercial quantity. Had any explanation been furnished, the matter, would have been considered, in the light thereof. In the absence of furnishing of any explanation, in this regard, the Court, cannot coin any of its own, to fit in, with the prosecution case. The case of the prosecution, thus, became doubtful, oaaccount of the occurrence of the aforesaid discrepancies. 13. No other.point was urged, by the Counsel for the parties. 14. 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. Had the trial Court taken into consideration, the aforesaid infirmities and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 15 of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 04.04.09, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required, in any other case.