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2013 DIGILAW 1715 (PNJ)

Kuldeep v. State of Haryana

2013-12-19

K.C.PURI

body2013
JUDGMENT Mr. K. C. Puri, J.:- By this common judgment, I intend to dispose of Criminal Appeal No.473 of 2003 titled as Kuldeep versus State of Haryana and Criminal Appeal No.820 of 2003 titled as Mithu versus State of Haryana as both these appeals have arisen out of the same judgment and incident. For convenience facts are being taken from Criminal Appeal No.473 of 2003 titled as Kuldeep versus State of Haryana. 2. The case of the prosecution in brief is that on 10.6.2001 a Police party headed by Ram Singh SI/SHO of Police Station Sadar Dabwali was present at Bus Stand Saktakhera in the early morning when a Maruti Car was spotted coming from the side of Sangaria. The car was got stopped. Accused Kuldeep was on the steering of the car and he was accompanied by co-accused Mithu. Two gunny bags were found lying on the rear seat of the car and on suspecting some contraband in those bags, SHO served the accused with a notice under Section 50 of the Narcotic Drugs and Psychotropic Substance Act, 1985. They, however, reposed faith in the police party. The bags on search were found to contain choora post. Samples were separated and sealed and were taken into possession along with the residue choora post and the car. The accused were arrested and samples were got analyzed from the chemical examiner and these were identified as choora post. After completion of investigation of the case, challan was presented in the Court. 3. Copies of documents were supplied to the accused free of costs as relied upon by the prosecution. The accused were charge sheeted under Section 15 of the Act. They did not plead guilty and claimed trial. 4. In order to substantiate its case prosecution examined Budh Singh (PW- 1), Constable Rajbir Singh (PW-2), HC Ram Kumar (PW-3), SI Ram Singh (PW-4), HC Ram Kumar (PW-5) and closed the prosecution evidence. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr. P. C. They denied the allegations of the prosecution and pleaded innocence. Their version is that they had cultivated the land of Radhey Sham Sarpanch of village Shergarh and there arose a dispute over the share of crop on account of which said Radhey Sham in collusion with the police, got them involved in this case falsely. P. C. They denied the allegations of the prosecution and pleaded innocence. Their version is that they had cultivated the land of Radhey Sham Sarpanch of village Shergarh and there arose a dispute over the share of crop on account of which said Radhey Sham in collusion with the police, got them involved in this case falsely. They did not lead any evidence in defence. 6. The trial Court after hearing the learned counsel for the parties convicted and sentence the accused as aforesaid. 7. Feeling dissatisfied with the aforesaid judgment and order, the appellants have directed the present appeals. 8. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 9. Learned counsel for the appellants have submitted that as per story of the prosecution, recovery of 70Kgs of poppy straw has been effected from both the appellants on 10.6.2001 in a Maruti Car. There was ample opportunity for the prosecution to join the independent witnesses but no independent witness has been joined. Even no efforts to join the independent witness was made. So, the prosecution story is doubtful. 10. Learned counsel for the appellants have further submitted that according to the prosecution story the intoxicant articles were lying in a Maruti car. The prosecution has neither produced any evidence on the file regarding ownership of the said car nor any such owner has been produced. 11. Learned counsel for the appellants have further submitted that according to the case of the prosecution seal was given to ASI Balwant Singh and therefore, he was a material witness for the prosecution. Said ASI Balwant Singh has not been examined by the prosecution. 12. Learned counsel for the appellants have further submitted that according to the prosecution story sample was sent to Forensic Science Laboratory on 11.6.2001 but the same has reached to the said office on 13.6.2001. There was ample opportunity for the prosecution to tamper with the sample during the said period. Rajbir Singh, who is a material witness regarding sending the sample has not been examined. So the link evidence is missing in the present case. 13. Learned counsel for the appellants have further submitted that recovery has been taken place in the morning. The prosecution has the ample opportunity to join the Gazetted Officer but no reasoning has been given for non-joining the Gazetted Officer. 14. So the link evidence is missing in the present case. 13. Learned counsel for the appellants have further submitted that recovery has been taken place in the morning. The prosecution has the ample opportunity to join the Gazetted Officer but no reasoning has been given for non-joining the Gazetted Officer. 14. Learned counsel for the appellants have further submitted that according to the case of the prosecution joint statement was made by both the appellants reposing confidence in the investigating officer. The said joint statement is inadmissible in evidence. So, there is non-compliance of Section 50 of the Act and as such the appellants are entitled for acquittal. 15. Learned counsel for the appellants have further submitted that prosecution has failed to prove the conscious possession of the appellants in respect of the contraband planted upon them. 16. Learned counsel for the appellants have further submitted that there is non-compliance of Section 50 of the Act and on that account the prosecution story is doubtful. 17. Learned counsel for the appellants have further submitted that when there is non-compliance of procedure prescribed under the standing instructions for taking sample, in that case, the accused is liable to be acquitted in view of authority Union of India versus Bal Mukund & Ors reported in, [2009(4) Law Herald (SC) 2390] : 2009 (2) RCR (Criminal ) page 574. 18. Learned counsel for the appellants have further submitted that in case the Court is not inclined to accept the prayer of acquittal, in that case the sentence in default clause can be reduced in view of authority Shanti Lal vs. State of M.P. reported in, [2007(4) Law Herald (SC) 3172] : 2007 (4) R. C. R. (Criminal) page 563. 19. Learned State counsel has supported the judgment and order of the trial Court. 20. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case with their able assistance. 21. As per conviction slip Kuldip Singh-appellant has undergone incarceration for a period of two years eight months and twenty one days including parole of one month twenty six days and Mithu accused has undergone incarceration for a period of eleven months sixteen days including parole of twenty eight days. 22. 21. As per conviction slip Kuldip Singh-appellant has undergone incarceration for a period of two years eight months and twenty one days including parole of one month twenty six days and Mithu accused has undergone incarceration for a period of eleven months sixteen days including parole of twenty eight days. 22. The three Judges Bench of Hon’ble Apex Court in authority Union of India versus Bal Mukund & Ors’ case (supra) held that where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years and making stringent provisions for grant of bail, scrupulous compliance of statutory provisions must be insisted upon. 23. In the present case, the counsel for the appellants have seriously challenged the missing link of sending the sample. The case of the prosecution is that constable Rajbir No.824 has taken the sample on 11.6.2001. According to his affidavit Ex.PA on 11.6.2001, he went to the office of DETC, Sirsa and obtained the docket and thereafter deposited the sample with Forensic Science Laboratory, Madhuban. No date has been mentioned regarding preparation of docket or depositing the sample in the Forensic Science Laboratory, Madhuban. The next important witness in this regard is the testimony of Ram Kumar MHC, who has stated that on 10.6.2001 samples of this case were deposited with him on 11.6.2001 Samples were sent through rode No.174 through constable Rajbir No.824 and Rajbir deposited the sample. This witness has also not stated about the date of docket. However, as per the report Ex.PH of Forensic Science Laboratory, Madhuban sample was sent with forwarding memo No.2230 dated 12.6.2001 and the sample was deposited in Laboratory on 13.6.2001. The prosecution has not explained where the sample remains on 12.6.2001 and the custody of sample from 11.6.2001 to 13.6.2001 has not been explained. So, in these circumstances, there could be chances of tampering with the sample. In case there are chances of tampering with the sample, the benefit of doubt goes to accused. 24. In authority Union of India versus Bal Mukund & Ors’ case (supra), it has been further held that non compliance of procedure under the standing instructions for taking sample was given a reason for acquittal of the accused. Although joining of independent witnesses is not the rule of law but rule of prudence. 24. In authority Union of India versus Bal Mukund & Ors’ case (supra), it has been further held that non compliance of procedure under the standing instructions for taking sample was given a reason for acquittal of the accused. Although joining of independent witnesses is not the rule of law but rule of prudence. Sometimes the Court insists on independent corroboration where there is doubt in the prosecution story. So, non-joining of independent witnesses and non-joining of Gazetted officer assume importance on account of the circumstances, mentioned above. 25. According to the prosecution written option under Section 50 of the Act was given to both the appellants jointly as they have reposed confidence in the investigating officer. No doubt, the provision of Section 50 of the Act would not be attracted as the recovery of contraband is not from the person of the appellants but when the prosecution states that option under Section 50 of the Act has been given and that option is defective in that case, the benefit goes to the accused. The joint offer and joint reply in respect of option under Section 50 of the Act, cannot be approved. 26. Authority Shanti Lal’s case (supra) relates to reduction of sentence in respect of default clause regarding payment of fine. So, that authority looses its importance as the prosecution has not been able to prove the guilty of the accused beyond reasonable doubt. 27. So, the cumulative effect of the above discussion is that both the appeals stand accepted. The judgment and order of the trial Court stand set aside. Both the accused stand acquitted from the charges levelled against them by giving them benefit of doubt. 28. A copy of this judgment be sent to the trial Court for strict compliance.