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2009 DIGILAW 275 (PNJ)

State Of Haryana v. Kundan Lal

2009-02-03

K.S.GAREWAL, SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment dated 26.4.1995, rendered by the Court of Addl. Sessions Judge, Panipat, vide which it acquitted the accused (now respondent), for the offence, punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act. 1985 (hereinafter called as the Act only). 2. The facts, in brief, are that, on 1.11.1994, Mohinder Singh. ASI, of CIA Staff, alongwith other police of officials, was present near Bus Stand. Panipat, when the accused was seen coming out of the same (Bus Stand), carrying a bag, on his shoulder, who on seeing the police party, tried to slip away, but was apprehended on suspicion. On feeling smell of charas, Mohinder Singh, ASI, suspected that some narcotic substance, in the bag, being carried by the accused, was lying. A legal notice, in terms of Section 50 of the Act. was served upon the accused, as to whether, he wanted the search of the bag, to be conducted, in the presence of a Gazetted Officer or a Magistrate. The accused opted that he wanted the search of the bag to be conducted in the presence of a Gazetted Officer. O.K. Bhardwaj. DSP, was sent a message, who came to the spot. He also served a notice, in terms of Section 50 of the Act, upon the accused. He directed Mohinder Singh, ASI. to search the bag. being carried by the accused. On such directions, Mohinder Singh, ASI. conducted the search of the bag, being carried by the accused, as a result whereof, 2 Kgs. 50 grams charas was recovered therefrom. The accused could not produce any permit or licence, for keeping the same in possession. A sample of 50 grams was taken out of the same, and the remaining charas, was put into an empty plastic container. The sample, and the plastic container, containing the remaining charas, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof. formal Fl R was registered. Rough site plan of the place of recovery, was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. formal Fl R was registered. Rough site plan of the place of recovery, was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 20 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 Kehar Singh, HC (PW-1), Azad Singh, SI (PW 2) Om Parkash, SI (PW3), Surinder Kumar (PW-4), Dhan Raj,HC (PW-5), Mohinder Singh, ASI (PW-6), the Investigating Officer. and D.K. Bhardwaj, DSP (PW-7). The Public Prosecutor for the State, tendered into evidence, Ex.PX, affidavit of Siri Krishan, Constable, Ex.PY, affidavit of Ishwar Singh, MHC, and Ex.PZ, report of the Forensic Science Laboratory. Thereafter, he 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, did not lead any evidence, in his defence. 6. After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, acquitted the accused (now respondent), as stated hereinbefore. 7. Feeling aggrieved, against the judgment of acquittal, rendered by the trial Court, the instant appeal, was filed by the appellant-State of Haryana. 8. We 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 submitted that the trial Court was wrong, in coming to the conclusion, that the notice, in terms of Section 50 of the Act, served upon the accused, was partial. He further submitted that the trial Court was also wrong, in coming to the conclusion, that the case of the prosecution was doubtful, as the independent witness namely. Surinder Kumar, who was joined, did not support its case. He further submitted that the other evidence produced by the prosecution was sufficient to bring home the guilt to the accused, but the trial Court failed to take into consideration, that aspect of the matter. Surinder Kumar, who was joined, did not support its case. He further submitted that the other evidence produced by the prosecution was sufficient to bring home the guilt to the accused, but the trial Court failed to take into consideration, that aspect of the matter. He also submitted that the trial Court was wrong in coming to the conclusion, that the possibility of tampering with the sample, could not be ruled out. He, thus, contended that the judgment of acquittal of the trial Court, being not based on the correct appreciation of evidence, and law, on the point, was liable to be set aside. 10. On the other hand, the Counsel for the respondent submitted that the judgment of the trial Court, being, based on the correct appreciation of evidence, and law, on the point, deserves to be upheld. 11. After giving our thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, we have come to the firm conclusion, that the judgment of the trial Court, does not suffer from any infirmity, and is liable to be upheld, for the reasons to be recorded hereinafter. According to the prosecution case, Surinder Kumar, independent witness was joined. He appeared as PW-4, but did not support the case of the prosecution. It was stated by him, that nothing was recovered by the police, from the accused, in his presence. He also denied that Mark-PA, was his . statement, under Section 161 Cr.P.C. He was put such questions, as are put during the course of cross- examination, by the Public Prosecutor for the State, with the permission of the Court, but he did not improve the case of the prosecution, even during the course of such cross-examination. It means that no recovery of charas, was at all effected from the accused, in the presence of Surinder Kumar (PW-4). Since, Surinder Kumar (PW- 4), was joined as an independent witness, had the recovery been effected, in his presence, there would have been no reason, on his part, to depose otherwise. The evidence of Surinder Kumar (PW-4), could be said to be of great significance, as it could throw light, on the actual state of affairs. Even, Surinder Kumar (PW-4), denied that the documents prepared at the spot, bore his signatures. The evidence of Surinder Kumar (PW-4), could be said to be of great significance, as it could throw light, on the actual state of affairs. Even, Surinder Kumar (PW-4), denied that the documents prepared at the spot, bore his signatures. In the absence of corroboration to the evidence of the official witnesses, through the evidence of Surinder Kumar (PW-4), an independent witness, the case of the prosecution became highly doubtful. From the evidence of Surinder Kumar (PW-4), it could be very well deduced, that the things did not happen, in the manner, presented by the prosecution. In Jagdish v. State of M.P., 2003(9) SCC 134 (139 ?), the judgment of conviction, where the independent witnesses, denied that the search and seizure of opium milk, took place, in their presence, was set aside by the Apex Court. In Padam Singh v. State of Haryana, 1997(4) RCR(Criminal) 172 (P&H)(DB), the independent witness, who was joined, did not support the case of the prosecution. Under these circumstances, it was held that the case of the prosecution became highly doubtful. The trial Court was, thus, right in holding that a cloud of doubt was cast, on the prosecution story, on account of non-corroboration of the evidence of the official witnesses, through the evidence of Surinder Kumar (PW-4), an independent witness. 12. Not only this, even there was delay of 8 days, in sending the sample to the office of the Forensic Science Laboratory, which remained unexplained, and, as such, the possibility of tampering with the same, until it reached, the Laboratory, could not be ruled out. It is, no doubt, true that mere delay in sending the sample to the office of the Forensic Science Laboratory, in itself, is not sufficient to come to the conclusion that the sample parcel, was tampered with, at any stage, until it reached the laboratory. The prosecution could certainly produce other evidence, on record, to prove that the link evidence was complete, and none tampered with the sample parcel, until it reached the office of the Forensic Science Laboratory. In the instant case, the evidence produced by the prosecution, to prove the completion of link evidence is not only deficient, but also unreliable. In Gian Singh v. State of Punjab, 2006(2) RCR(Criminal) 611 (P&H), there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. In the instant case, the evidence produced by the prosecution, to prove the completion of link evidence is not only deficient, but also unreliable. In Gian Singh v. State of Punjab, 2006(2) RCR(Criminal) 611 (P&H), 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 the case. In State of Rajasthan v. Gurmail Singh, 2005(2) RCR(Criminal) 58 : 2005(1) Apex Criminal 521 (SC), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. In Rantji Singh v. State of Haryana, 2007(3) RCR(Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, the seal remained with the police official, and had not 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. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 8 days, in sending the sample to the office of the Forensic Science Laboratory, and non-strict proof, by the prosecution, that the same was not tampered with, till it was deposited in that Laboratory, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The trial Court was, thus, right in coming to such a conclusion. 13. Even the link evidence, in instant case, was incomplete, in as much as, Siri Krishan, Constable, in his affidavit, Ex.PX, did not state that he was handed over the sample impression of the seal, and he deposited the same aiongwith the sample, in the office of the Forensic Science Laboratory. 13. Even the link evidence, in instant case, was incomplete, in as much as, Siri Krishan, Constable, in his affidavit, Ex.PX, did not state that he was handed over the sample impression of the seal, and he deposited the same aiongwith the sample, in the office of the Forensic Science Laboratory. In the absence of deposit of the sample impression of the seal, in the office of the Forensic Science Laboratory, it was deprived of comparing the seals, on the sample, with the specimen seal, to find out, as to whether, the seals on the sample parcel, were the same, as were allegedly affixed, at the time of seizure. In State of Rajasthan v. Gurmail Singh, 2005(2) RCR(Criminal) 58 (SC), the sample seal was not sent to the Laboratory, at the time of sending the sample parcel. The Apex Court, held that the case of the prosecution was doubtful, on account of this reason. In this view of the matter, the case of the prosecution also became doubtful. The trial Court was, thus, right in coming to such a conclusion. 14. The provisions of Section 55 of the Act, were also not apparently complied with. Om Parkash, SI (PW-3), stated that Mohinder Singh, AS1, of CIA Staff, produced before him, the accused, the witnesses, and the case property, and he put his seal, bearing impression KR. He further stated that the sample, and the case property, when the same were produced before him, were bearing the seal ofMS. He, however, did not state, even a single word, in his statement, that he prepared the memo, at the time of production of the case property, before him. He also did not state, even a single word, in his statement, that he made a mention of the production of case-property, before him, in the case diary. According to the prosecution story, the case property, and the sample, were sealed, with the seals bearing impression MS, belonging to Mohinder Singh, ASI, the Investigating Officer, and DK, belonging to D.K. Bhardwaj, DSP. However, according to Om Parkash, SI (PW-3), when the case property was produced before him, it was only bearing the seal of MS. This also clearly goes to show that the case property of this case, was not produced before him. Under these circumstances, the statement of Om Parkash, SI (PW- 3), cannot be taken as a gospel truth. However, according to Om Parkash, SI (PW-3), when the case property was produced before him, it was only bearing the seal of MS. This also clearly goes to show that the case property of this case, was not produced before him. Under these circumstances, the statement of Om Parkash, SI (PW- 3), cannot be taken as a gospel truth. Had any memo been prepared by him, or had any entry been made by him, either in the rojnamcha, or in the case diary, regarding the production of the case property, before him, his ocular evidence, would have been cross-checked. Under these circumstances, it could be said that the case property was not actually produced before Om Parkash, SI. His evidence, in this regard, does not inspire confidence. Section 55 of the Act, lays down that an Officer Incharge of Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized, under this Act, within the local area of that Police Station, and which may be delivered to him, and shall allow any officer who may accompany such articles, to the Police Station, or who may be deputed for the purpose; to affix his seal to such articles, or to take samples of, and from them, and all samples, so taken, shall also be sealed with a seal of the Officer-in-charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the sample are required to be produced before the SHO, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh v. State of Haryana, 2001(1) RCR(Crl) 702 (SC), it was held that non-compliance of the provisions of Sections 52, 55 and 57, which are, no doubt, directory and violation thereof, would not ipso facto vitiate the trial or conviction. In Gurbax Singh v. State of Haryana, 2001(1) RCR(Crl) 702 (SC), it was held that non-compliance of the provisions of Sections 52, 55 and 57, which are, no doubt, directory and violation thereof, would not ipso facto vitiate the trial or conviction. However, the Investigating Officer, cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, the Investigating Officer, intentionally and deliberately breached the provisions of Section 55. He could not say that since the provisions of Section 55 are directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer, is taken, as correct, then the provisions of the Act, which are directory, in nature, would he flouted with impunity, by him. Compliance of the said provisions, is an indicator, towards the reasonable, fair and just procedure, adopted by Om Parkash, SI, during the course of search and seizure. Non- compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt on the prosecution story. 15. Mohinder Singh, ASI (PW-6), during the course of his cross- examination, stated that Surinder Kumar, independent witness, to whom he handed over the seal, returned the same, after 4-5 days, whereas, the sample, in this case, was sent after 8 days of the alleged recovery. It means that the case property, and the sample parcel, remained with Mohinder Singh, ASI, the Investigating Officer, alongwith the seal used, by him. Under these circumstances, the possibility of tampering with the sample, and changing of the contents of the parcel, when the same remained with him, alongwith the seal used, could not be ruled out. Had Surinder Kumar, independent witness, returned the seal to Mohinder Singh, ASI after the sample had been sent to the Forensic Science Laboratory, the matter would have been otherwise. Had Surinder Kumar, independent witness, returned the seal to Mohinder Singh, ASI after the sample had been sent to the Forensic Science Laboratory, the matter would have been otherwise. The other evidence produced by the prosecution, as stated above, to complete the link in the chain of its evidence, has been held to be unreliable. In Rajesh Jagdamba Avasthi v. State of Goa, 2005(1) RCR(Criminal) 406 : 2005(1) Apex Criminal 240 (SC), 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 the possibility of the seized substance, being tampered with, could not be ruled out. The principle of law, laid down, in Rajesh Jagdamba Avasthis case (supra), is full applicable, to the facts of the instant case. Since, the prosecution failed to prove, that none tampered with the sample parcel, until it reached the office of the Forensic Science Laboratory, its case became highly doubtful. The trial Court was, thus, right in comingto such aconclusion. 16. On careful scanning of the evidence, produced by the prosecution, we come to the conclusion, that the view taken by the trial Court, could be said to be the reasonably possible view. The judgment of the trial Court, does not suffer from any illegality, infirmity, or perversity. The judgment of the trial Court, being based on the correct appreciation of evidence, and law, on the point, deserves to he upheld. 17. For the reasons recorded above, Criminal Appeal. No. 646-DBA of 1995, being without merit, must fail, and the same is dismissed. The judgment of the trial Court, is upheld.