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2009 DIGILAW 291 (PNJ)

Mohinder Singh v. State of Haryana

2009-02-05

K.S.GAREWAL, SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J.:- This appeal is directed against the judgment of conviction dated 27.1.2000, and the order or sentence dated 28.1.2000, rendered by the Court of Sessions Judge, Kurukshetra, vide which it convicted the accused/appellant, for the offence; punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter called as ‘the Act’ only) and sentenced him, to undergo rigorous imprisonment for a period of 12 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 three years, for having been found in possession of 12 bags, each containing 35 kgs. poppy-husk. 2. The facts, in brief, are that on 6.7.1997, Naranjan Singh, ASI of CIA staff, Kurukshetra, alongwith some other police officials, proceeded for patrol duty, at about 10.30 A.M. and when the police party was present near the bridge, on the canal, in the area of village Megha-Majra, a secret information was received, that the accused was engaged in the sale of poppy-husk, and was indulging in such nefarious activities, while sitting in a room (kotha), on the unmetalled path. On receipt of the secret information, Ajaib Singh, an independent witness, was joined by the Investigating Officer. Thereafter, the police officials, alongwith Ajaib Singh, independent witness, proceeded towards the aforesaid room, (kotha), and when they reached near it, Mohinder Singh, accused, was found sitting, in front of the same. He was apprehended. He was told that he was suspected to be in possession of some narcotics, lying in the room (kotha) aforesaid. Notice, in terms of Section 50 of the Act, was served upon him, as to whether, he wanted the search of the room, to be conducted, in the presence of a Gazetted Officer or Magistrate. The accused opted that he wanted the search of the room, to be conducted, in the presence of a Gazetted Officer. Naranjan Singh, ASI, then sent a message to Yogender Nehra, the then DSP, Pehowa, who reached the spot. On receipt of the message, Yogender Nehra, DSP, reached the spot. After he arrived at the spot, he again served a notice, in terms of Section 50 of the Act, upon the accused. Thereafter, the accused took out the key, from his pocket, and opened the lock of the room, referred to above. On receipt of the message, Yogender Nehra, DSP, reached the spot. After he arrived at the spot, he again served a notice, in terms of Section 50 of the Act, upon the accused. Thereafter, the accused took out the key, from his pocket, and opened the lock of the room, referred to above. On search of the room, 12 bags, each containing 35 kgs. poppy-husk, were recovered. Two samples of 250 grams, from each of the bags, were taken out, and the remaining poppy-husk, was put into the same bags. The samples, and the bags, containing the remaining poppy-husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo, attested by the witnesses. Thereafter, Ruqa, Ex.PC, was sent to the Police Station, on the basis whereof, FIR, Ex.PC/1 was registered. Rough site plan of the place of recovery, was prepared. The statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. 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 Mohinder Singh, HC (PW-1), Ujjagar Singh, Constable (PW-2), Darshan Singh, ASI (PW-3), Gulab Singh, SI (PW-4), Yogender Nehra, SP (PW-5), Roshan Lal, Constable (PW-6), and Naranjan Singh, ASI (PW-6), the Investigating Officer. Ajaib Singh, independent witness, was given up, as won over by the accused, vide separate statement made by the Public Prosecutor for the State. After tendering into evidence, report of the Forensic Science Laboratory, Ex.PII, the Public Prosecutor for the State, closed the same. 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 was not apprehended by the Police, in the manner, projected by it. It was further stated by him, that no poppy-husk was recovered from him. It was further stated by him, that, infact, he was a Member Panchayat of Village Pipli Majra at the relevant time. It was further stated by him, that mother of one Karnail Singh informed that he had been apprehended by the Police. It was further stated by him, that no poppy-husk was recovered from him. It was further stated by him, that, infact, he was a Member Panchayat of Village Pipli Majra at the relevant time. It was further stated by him, that mother of one Karnail Singh informed that he had been apprehended by the Police. It was further stated by him, that on account of that reason, he alongwith Buda Singh, Sarpanch, went to the Police Station in order to secure the release of Karnail Singh. It was further stated by him that, on their request, Karnail Singh was released, but he (accused) was falsely implicated, in this case, though he was not found in possession of any poppy-husk. It was further stated by him, that afterwards, on account of the intervention of the Superintendent of Police Kurukshetra, even Karnail Singh was challaned, and he too was falsely implicated, in this case. 6. In defence, the accused examined Des Raj, HC (DW-1), Nand Lal, Ahlmad (DW-2), and Buda Singh (DW3). Thereafter, he closed the defence evidence. 7. 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. 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant. 9. We have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that the prosecution miserably failed, to prove that the accused was found in conscious possession of the poppy-husk, referred to above, and, as such, he did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, appears to be correct. From the evidence, on record, it is evident that the accused was found sitting in front of a room. It was not that he was found sitting inside the room, or on the bags, containing poppy-husk, inside the room. Naranjan Singh, ASI, the Investigating Officer, no doubt, stated that the accused opened the lock of the room, aforesaid, with a key, which was in his possession. It was not that he was found sitting inside the room, or on the bags, containing poppy-husk, inside the room. Naranjan Singh, ASI, the Investigating Officer, no doubt, stated that the accused opened the lock of the room, aforesaid, with a key, which was in his possession. Neither the lock and the key were taken into possession, by the Police, nor the same were produced in the Court. No evidence, during the course of investigation was collected, by the investigating agency, that the accused was either the owner of the room, aforesaid, or was a licensee thereof, or had taken the same on rent. No evidence was also collected, during the course of investigation, that he was in actual physical possession of the room, in question. On the other hand, it has come in the evidence, that it was one Balwant Singh, who was the owner of the room, wherefrom, 12 bags, containing poppy-husk, were allegedly recovered. Neither the statement of Balwant Singh, was recorded, nor he was associated, during the course of investigation, nor it was ascertained from him, that he had either allegedly given the room to the accused, for the purpose of use and occupation, or rented out the same, to him. Had the accused been found inside the room, sitting on the bags, the matter would have been different. In the absence of any corroboration to the statement of Naranjan Singh, ASl, the Investigating Officer, that the lock of the room, was opened by the accused, no reliance can be placed thereon, that he (accused) was either in physical or constructive possession of the room, or the bags, containing poppy-husk, allegedly lying therein. Since, the possession of the poppy-husk, lying in the room, in relation to the accused, was not proved, nor he was proved to be the owner, nor a tenant of the said room, it could not be said that he was in conscious possession of the poppy-husk allegedly lying therein. The accused might be sitting outside the room, just with a view to take rest. Since, the room, in question, was the ownership of Balwant Singh, it was he, .who could be said to be in possession of the same, and allegedly in possession of the poppy-husk, lying therein. In Sukhdev Singh Vs. State of Haryana 2008(1) RCR (Criminal) 503 recovery of contraband was effected, from a room of the house. Since, the room, in question, was the ownership of Balwant Singh, it was he, .who could be said to be in possession of the same, and allegedly in possession of the poppy-husk, lying therein. In Sukhdev Singh Vs. State of Haryana 2008(1) RCR (Criminal) 503 recovery of contraband was effected, from a room of the house. At that time, the accused was sleeping in another room of the house. Under these circumstances, it was held that it could not be said that the accused was in conscious possession of the contraband. In Bikkar Singh Vs. State of Punjab 2006(3) RCR (Criminal) 16 (D.B.) (P&H), recovery of 120 bags of poppy-husk, lying in the sugarcane field, was effected. The accused was found sitting on the bags. In these circumstances, the Division Bench held that the custody and control of the accused, over the substance, was not proved beyond doubt, and, as such, he could not be said to be in conscious possession thereof. Ultimately, the appellant was acquitted of the offence, punishable under Section 15 of the Act. In State of Punjab v. Balkar Singh, 2004 SCC (Crl.) 838 the accused were allegedly found present near the place, where 100 bags of poppy husk were found lying. It was held that their mere presence, near the contraband, did not mean that they were in conscious possession of the same. In the instant case, in view of the facts and circumstances, as also the evidence, discussed above, the accused could not, by any stretch of imagination, be said to be in conscious possession of the contraband. Since, the prosecution miserably failed to prove that the accused was in conscious possession of the bags, containing poppy-husk, allegedly recovered, in this case, no offence punishable under Section 15 of the Act, was committed by him. The trial Court was wrong in coming to the conclusion, that the accused was found in conscious possession of the poppy-husk. The finding of the trial Court, in this regard, deserves to be set aside. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 11. The trial Court was wrong in coming to the conclusion, that the accused was found in conscious possession of the poppy-husk. The finding of the trial Court, in this regard, deserves to be set aside. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 11. It was next submitted by the Counsel for the appellant, that the secret information received against the accused, was neither reduced into writing, nor sent to the Officer superior, by Naranjan Singh ASI, the Investigating Officer, and, as such, he transgressed the mandatory provisions of Section 42 of the Act, which must prove fatal to the case of the prosecution. He further submitted that this point was highlighted before the trial Court, but no proper notice of the same, was taken by it. The submission of the Counsel for the appellant, in this regard, appears to be correct. Naranjan Singh, ASI, the Investigating Officer, who received the secret information, in his cross-examination, admitted that he did not reduce the same, into writing. He also admitted that, therefore, he did not send the same to the Police Station, or the Official superior. The alleged recovery, in this case, was not effected from a public place, but from a room (kotha). Had Naranjan Singh, ASl, the Investigating Officer, deposed or had ‘it been established, from the facts, circumstances and evidence on record, that since there was urgency, in the move, and had he consumed time, in recording the secret information, and sending the same, to the official superior, the chances of the accused, escaping, and thereby, defeating the very purpose of raid, would not have been ruled out, the matter would have been different. There was sufficient time, with the investigating Officer, after the receipt of secret information, to reduce the same, into writing, and send the same to the Official superior. Despite that, he failed in his duty. Thus, this act of the Investigating Officer, amounted to the complete violation of the mandatory provisions of Section 42(2) of the Act. On account of this reason, a great prejudice was caused to the accused, as he was deprived of effectively cross-examining Niranjan Singh, Assistant Sub Inspector, with regard to the secret information, received by him. In Beckodan Abdul Rahiman Vs. On account of this reason, a great prejudice was caused to the accused, as he was deprived of effectively cross-examining Niranjan Singh, Assistant Sub Inspector, with regard to the secret information, received by him. In Beckodan Abdul Rahiman Vs. State of Karala 2002(2) RCR (Criminal) 385 (SC), it was held that under Section 42(2) of the Act, the empowered Officer, who takes down any information in writing or records the grounds, under proviso to Section 42 (1) should forthwith send a copy thereof, to his immediate official superior. It was further held that to that extent, the provisions of Section 42 of the Act, are mandatory, and total non-compliance therewith, would cause a great prejudice to the accused and affect the case. In State of West Bengal and others Vs. Babu Chakraborty, AIR 2004 S.C. 4324, it was held that the provisions of Section 42(2), to the extent of reducing into writing the secret information, and sending the same to the official superior, are mandatory in nature, and complete non-compliance therewith, would render the case of the prosecution suspect, and cause a great prejudice to the accused. Similar principle of law, was laid down, in Gurnam Kaur and others Vs. State of Punjab 2006(6) RCR (Criminal) 984 (D.B.) (P&H). Since, no explanation was furnished, by the investigating Officer for non-compliance with the aforesaid provisions of Section 42 of the Act, to the extent aforesaid, which are mandatory, in nature, the Court cannot coin any of its own, to fit in with the prosecution case. No doubt, the Counsel for the respondent, submitted that it was a lapse, on the part of the Investigating Officer, and, as such, the merits of the prosecution case, on that account, cannot be affected. The submission of the Counsel for the respondent, in this regard, is without merit. There are some irregularities committed by the Investigating Officer, which are curable. If the Investigating Officer ­ commits an illegality amounting to the violation of the mandatory provisions of the Act, the same cannot be ignored. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the present case. There are some irregularities committed by the Investigating Officer, which are curable. If the Investigating Officer ­ commits an illegality amounting to the violation of the mandatory provisions of the Act, the same cannot be ignored. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the present case. On account of complete non-compliance with the mandatory provisions of Section 42 of the Act, the case of the prosecution because highly suspect, causing a great prejudice to the accused, but the trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence. The submission of the Counsel for the appellant, in this regard, carries substance, and stands accepted. 12. Ajaib Singh, independent witness, no doubt, was joined, at the time of effecting the alleged recovery, yet he was not examined, and, on the other hand; given up as won over, by the accused. On account of non examination of Ajaib Singh, an independent witness, the case of the prosecution became doubtful. It is, no doubt, true that the Public Prosecutor for the State, is the master of the case. It is for him, to decide, as to which witness, he wants to examine and as to which witness, he wants to give up. However, the Public Prosecutor for the State is required to exercise such a discretion, in a bona fide manner. He cannot be expected to exercise such a discretion, in an arbitrary and capricious manner. In the instant case, there was no data or material, on the record, which persuaded the Public Prosecutor for the State, to come to the conclusion, that Ajaib Singh, Member Panchayat, an independent witness, had actually been won over, by the accused. The discretion, exercised by the Public Prosecutor for the State, in giving up Ajaib Singh, independent witness, as won over, therefore, could be said to be capricious and arbitrary. It means that Ajaib Singh, independent witness, was not intentionally and deliberately examined, by the prosecution, as it knew that he would not support its case, because of the reason, that no recovery, whatsoever, was effected in his presence. Had Ajaib Singh, independent witness, been examined, he would have thrown light on the correct position of the case. It means that Ajaib Singh, independent witness, was not intentionally and deliberately examined, by the prosecution, as it knew that he would not support its case, because of the reason, that no recovery, whatsoever, was effected in his presence. Had Ajaib Singh, independent witness, been examined, he would have thrown light on the correct position of the case. The evidence of the official witnesses produced, in this case, on scrutiny, has not been found to be cogent, convincing, and reliable, for various reasons, some of which have been indicated hereinabove. In Masalti Vs. State of UP, AIR 1965 SC 202 a four Judge Bench of the Apex Court, held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material evidence, available to it, which is necessary for unfolding its case, but it would be unsound to lay down as a general rule, that every witness must be examined, even though, his evidence may not be very material, or even if, it is known that he has been won over or terrorized. In State of Punjab Vs. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution became doubtful. In the instant case, non-examination of Ajaib Singh, independent witness, made the case of the prosecution doubtful. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused. The submission of the Counsel for the appellant, being correct, is accepted. 13. It was next submitted by the Counsel for the appellant, that though the alleged recovery, in this case, was effected on 6.7.1997, yet the sample parcels were sent to the office of the Forensic Science Laboratory, on 21.7.1997 i.e. after a delay of 15 days, without any explanation, and, as such, the possibility of tampering with the same, until the same reached the Laboratory, could not be ruled out, especially when the seal, after use, was handed over by the Investigating Officer, to Siya Ram, ASI, who returned the same, to him, before sending the sample parcels, to the Laboratory. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is, no doubt, true that mere delay in sending the samples to the Laboratory, by itself, may not be sufficient to prove that the same were tampered with, at any point of time. In such a situation, the Court is required to fall back upon the other evidence, produced by the prosecution, to come to the conclusion, as to whether, the possibility of tampering with the samples, at any stage, stood ruled out, or not. In the instant case, the other evidence produced, in the case, to complete the link evidence, is not only unreliable, but deficient too, as would be discussed hereinafter. Gulab Singh, SI (PW-4), who was the SHO of Police Station Ismailabad, at the relevant time, did not state even a single word, in his statement, that when he handed over the case/property to the Investigating Officer, the seals thereon were intact. Naranjan Singh, ASl, the Investigating Officer, (PW -7), also did not state, in his statement, even a single word, that when he deposited the case property, and the sample parcels, with the MHC, the seals on the same, were intact, and none tampered with the same. Naranjan Singh, ASJ, the Investigating Officer, no doubt, stated that the seal after use was handed over to Ajaib Singh, independent witness. However, in remand paper, Ex.DC, it was stated by him, that the seal after use was handed over to Siya Ram, ASI, who was not examined. It means that the statement made by Naranjan Singh, ASI, the Investigating Officer, in the Court is contradicted by Ex.DC, the remand paper dated 10.7.1997, drafted by him, and presented before the Court. The seal was returned by Siya Ram to the Investigating Officer, before sending the samples to the laboratory. In these circumstances, the possibility of tampering with the samples, until the same reached the office of the Forensic Science Laboratory, could not be ruled out. In Gian Singh Vs. 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. 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 State of Rajasthan v. Gurmail Singh 2005(2) RCR (Criminal) 58. (Supreme Court), 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 Ramji Singh Vs. State of Haryana 2007(2) 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 delay of 15 days, in sending the samples to the office of the Forensic Science Laboratory, and non-strict proof by the prosecution, that the same were not tampered with until the same were deposited in the Laboratory, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out . The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 14. It was next submitted by the Counsel for the appellant, that there was violation of the mandatory provisions of Section 100(4) of the Cr.P.C., as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. In this case, the alleged recovery was not effected from the public place, but from the room, aforesaid, not belonging to the accused, but to one Balwant Singh. It was, thus, required of the Investigating Officer, to join at least two respectable persons, from the locality, at the time of search of the room, or at least to make efforts to join them. No doubt, Naranjan Singh, ASI, when appeared as PW-7, stated that he had sent Nachhatar Singh, HC, to the nearby locality, so as to call a few persons therefrom. No doubt, Naranjan Singh, ASI, when appeared as PW-7, stated that he had sent Nachhatar Singh, HC, to the nearby locality, so as to call a few persons therefrom. He also stated that Nachhatar Singh, HC, contacted Sukha Singh and Nirmal Singh of Pipli Majra, another Sukha Singh S/o Hazara Singh and Kundan Singh S/o Hazara Singh, residents of the deras of village Pipli Majra but they refused to join the investigation. However, Nachhatar Singh, HC, was not examined, as a witness by the prosecution, to prove that actually he was sent to the nearby locality, and the deras, to make an effort to join two independent witnesses. Nachhatar Singh, HC, could be said to be the material witness, to prove this factum. In the absence of the statement of Nachhatar Singh, HC, no reliance can be placed, on the statement of Naranjan Singh, ASI, the Investigating. Officer. Had Nachhatar Singh, HC, been examined, the accused would have been afforded an opportunity to cross-examine him, on the aforesaid aspect of the matter. During the course of cross-examination, his veracity could be challenged, so as to demolish the statement of Naranjan Singh, ASI, that infact no effort was made to join two respectable persons, from the locality, but a story was concocted, in that regard. Why Nachhatar Singh, HC, was not examined, is not known? Had he been not a material witness, the matter would have been different. Even, no mention of this fact, was made, in the ruqa, or in other documents, prepared at the spot, that Sukha Singh and Nirmal Singh of Pipli Majra, another Sukha Singh S/o Hazara Singh and Kundan Singh S/o Hazara Singh, public witnesses, were contacted by Nachhatar Singh, HC, but they refused to join the Police Party. It, therefore, can be said that neither two respectable persons of the locality were joined, despite availability, nor any effort was made to join them, at the time of search of the room, in question. It is, no doubt, true that mere violation of the provisions of Section 100(4) of the Cr.P.C., by itself, is not sufficient to throwaway the case of the prosecution over-board. It is, no doubt, true that mere violation of the provisions of Section 100(4) of the Cr.P.C., by itself, is not sufficient to throwaway the case of the prosecution over-board. However, on account or non-joining of two respectable persons of the locality, at the time of search of the room, or non-making an effort to join them in violation or the provisions of Section 100(4) of the Cr.P.C., certainly cast a cloud of doubt, on the prosecution story. The trial Court, however, did not take into consideration, this aspect of the matter, as a result whereof, it fell into an error, in coming to the conclusion, that the prosecution, proved its case, against the accused beyond reasonable doubt. The submission of the Counsel for the appellant, carries force, and stands accepted. 15. No other point, was urged, by the Counsel for the parties. 16. 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 prosecution was able to prove its case, against the accused, beyond a reasonable doubt. The judgment of conviction, and the order of sentence, warrant interference, and are liable to be set aside. 17. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 27.1.2000, and the order of sentence dated 28.1.2000, 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. The Chief Judicial Magistrate, Kurkshetra, shall take necessary steps, to comply with the judgment, with due promptitude, in accordance with law, on receipt of a copy thereof. --------------