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2010 DIGILAW 715 (PNJ)

Jagwinder Singh v. State Of Haryana

2010-01-29

HARBANS LAL

body2010
Judgment HARBANS LAL, J. 1. This appeal is directed against the judgment dated 27.7.2002/order of sentence dated 30.7.2002 passed by the Court of learned Additional Sessions judge-cum-Special Judge, Panipat whereby he convicted and sentenced the accused jagwinder Singh to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.5000/- under Sec.20 of the Narcotic Drugs and Psychotropic Substances act, 1985 (for short, the Act) and in default of payment of fine to further undergo rigorous imprisonment for 3 months. 2. Succinctly put, facts of the prosecution case are that on 3.3.1998 a. S. I. Jai Pal Singh amongst other police officials happened to be present near the outer gate of the bus stand of Panipat for patrolling and detection of crime. In the meantime, Ram Kishan Ex-sarpanch son of Tula Ram of Panipat came across. He started chattering with ASI Jai Pal Singh. Meanwhile, the accused was spotted coming out from inside the bus stand holding a bag in his right hand. On catching sight of the police party, he Criminal Appeal No.1360 SB of 2002 2 turned back and started entering the bus stand. On suspicion, he was intercepted by the aforesaid ASI. He was suspected to be in possession of some contraband. He opted to have the search before a Gazetted Officer. Then D. S. P. Partap Singh on being called, came at the spot. On search, charas yielded from the bag. When weighed, it came to 700 grams out of which 50 grams was drawn to serve as sample and it was converted into a parcel. The residue was also turned into a parcel. These parcels were sealed with the seal JP and taken into possession alongwith the bag. The seal after use was handed over to HC Ranbir singh. The accused was put under arrest. Ruqa was sent to the Police Station, where on its basis formal F. I. R. was recorded. After completion of investigation, the charge-sheet was laid in the court for trial of the accused. 3. The accused was charged under Sec.20 of the Act to which he did not plead guilty and claimed trial. The accused was put under arrest. Ruqa was sent to the Police Station, where on its basis formal F. I. R. was recorded. After completion of investigation, the charge-sheet was laid in the court for trial of the accused. 3. The accused was charged under Sec.20 of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined ASI Randhir Singh PW-1, Partap Singh DSP pw-2, SI Jai Pal Singh PW-3, Samunder Singh Inspector PW-4, Constable Naresh kumar PW-5 and closed its evidence by giving up Ram Kishan PW as having been won over by the accused. When examined under Sec.313 Cr. P. C. , the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He closed his evidence by tendering mark DA the affidavit of Ram Kishan. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. Criminal Appeal No.1360 SB of 2002 3 i have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. D. D. Sharma, Advocate, on behalf of the appellant urged with a good deal of force that the seal having not been handed over to Ram Kishan an independent witness gives an inkling that in fact, his name has been introduced in the story with an end in view to establish that the independent witness was joined. He further puts that there is delay of as many as 13 days in sending the sample parcels to the Chemical Examiner for analysis. The seal being with HC Ranbir Singh, the possibility of their contents being tampered with cannot be ruled out. The learned State Counsel countered these arguments by urging that a glance through the Forensic Science Laboratory Ex. PE would reveal that the seals of the sample parcels were intact and agreed with the sample seal, when the same was received in the laboratory. That being so, such possibility stands ruled out. 4. I have given a deep and thoughtful consideration to the rival contentions. 5. PE would reveal that the seals of the sample parcels were intact and agreed with the sample seal, when the same was received in the laboratory. That being so, such possibility stands ruled out. 4. I have given a deep and thoughtful consideration to the rival contentions. 5. The most glaring circumstance in this case is that in the presence of Ram Kishan public man, the seal after use was handed over to HC ranbir Singh who has been kept off the witness box for the reasons best known to the prosecution. In the absence of his examination, it is very difficult to say that he had returned the seal to the Investigator after dispatch of the sample parcels to the Forensic Science Laboratory. To add further to it, the appellant has been deprived of his valuable right to cross-examine him. The prosecution has not apportioned any reason worth the name for withholding this witness from the trial. There is delay of 13 days in Criminal Appeal No.1360 SB of 2002 4 forwarding the sample parcels for chemical analysis. This delay coupled with non-examination of HC Ranbir Singh cause a dent in the prosecution case. It is in the cross-examination of Partap Singh DSP PW-2 that many persons were coming and going from the gate of bus stand of Panipat. Some rehriwalas and shopkeepers were present nearby. Furthermore, it is in the cross-examination of S. I. Jai Pal Singh PW-3 that "it is correct that the place was a public place and the people were passing from that place. Many persons came there. They were asked to join investigation, but they did not oblige. I do not know their names and addresses. " It clearly indicates that there was no dearth as to the availability of the independent witnesses. If such persons had refused to join investigation, they would have been proceeded against under law. Of course, mark DA the affidavit of Ram Kishan DW could not be got exhibited due to his non-examination but as per the contents thereof, his signatures were obtained by Jai Pal ASI (referring to the Investigator) in the police Station on the blank papers. In view of the infirmities catalogued above, this appeal is accepted. Sequelly, the impugned judgment/order of sentence stands set aside and the appellant is hereby acquitted of the charged offence.