Criminal Appeal No. 826-SB of 2000 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Appeal No.826-SB of 2000
Date of decision: September 19 , 2008
Balbir Kaur wife of Paramjit Singh son of Harchand Singh, resident of
village Harraipur,District Bathinda.
....... Appellant/accused
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. T.S.Sangha,Senior Advocate with Mr.
H.S.Sangha,Advocate for the appellant.
Mr. S.S.Bhullar,DAG, Punjab for the respondent.
Sham Sunder, J.
This appeal is directed against the judgment of
conviction, and the order of sentence dated 21.8.2000, rendered by the
Court of Addl. Sessions Judge, Bathinda, vide which it convicted the
accused/appellant, for the offence, punishable under Section 18 of the
Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as
‘the Act’ only) and sentenced him, to undergo rigorous imprisonment for a
period of ten 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 one
year, for having been found in possession 2 kgs. 100 grams of opium,
without any permit or licence.
2. The facts, in brief, are that on 15.5.1995, ASI Chhota Ram,
accompanied by other police officials, left the Police Station, by a Govt.
Jeep for patrol duty, in the area of villages Sukhladhi, Tarkhan Wala,
Bagha etc. and when the Police party reached near village Bagha Balkar
Criminal Appeal No. 826-SB of 2000 2
Singh, a public witness, came across it and he was also joined. When the
police party reached Tarkhan Wala-Sukhladhi road crossing in the area of
said village Bagha, accused Balbir Kaur was seen coming from the side of
village Tarkhan Wala while carrying a bag. However, on seeing the Police
party, she, at once, tried to give a slip by a hasty retreat. On suspicion she
was apprehended. ASI Chhota Ram suspected that some contraband was
being carried by her, in the bag, held by her. Accordingly the search of the
bag was conducted, in accordance with the provisions of law, in the
presence of Jatinder Singh Aulakh,S.P.(H) and Satish Kumar Asthana,
IPS, as a result whereof 2 kgs. and 100 grams opium, was recovered
therefrom. A sample of 10 grams was taken out. The sample, and the
remaining opium in a packet 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 FIR was registered. The
accused was arrested. After the completion of investigation, the accused
was challaned.
3. On her appearance, in the Court, the copies of documents, relied
upon by the prosecution, were supplied to the accused. Charge under
Section 18 of the Act, was framed against her, to which she pleaded not
guilty, and claimed trial.
4. The prosecution, in support of its case, examined Surjit Singh, SHO
Police Station Raman, PW1, who produced the case property as well as
the accused before the Judicial Magistrate Ist Class,Talwandi Sabo on the
next day and also sent the sample to the Chemical Examiner,
Patiala,Constable Bikkar Singh,PW2, who tendered his affidavit Ex.,PE
ASI Chhota Ram, PW3, the Investigating Officer of the case,and Jatinder
Sngh Aulakh, at that time Superintendent of Police (Headquarter) PW4, a
witness to the recovery. Thereafter, the Additional Public Prosecutor for
the State, closed the prosecution evidence.
Criminal Appeal No. 826-SB of 2000 3
5. The statement of the accused under Section 313 Cr.P.C., was
recorded, and she was put all the incriminating circumstances, appearing
against her, in the prosecution evidence. She pleaded false implication. It
was stated by her, that on 13.5.1996, she accompanied by Parveen Kaur,
her husband’s brother’s daughter was coming from Hanumangarh by bus
and when their bus reached at Sangat road crossing some police officials
stopped the bus. She further stated that thereafter the police started
checking the same. In the process of checking of the bus, a police official
tried to misbehave with her, which led to dispute, between her, and some
police officials It was further stated by her that she along with said
Parveen Kaur was taken to Police Station Sangat. On the next day, her
husband also reached there and met the SHO,Police Station Sangat, to get
them released. She further stated that though the police released Parveen
Kaur, yet it involved her, in this false case. She further stated that, in this
respect her husband also filed an application through Counsel before the
Ilaqa Magistrate. She also examined Sukhwant Singh, ASI, DW1, ASI
Malkeet Singh DW2, Surjit Singh,DW3 and Parveen Kaur, DW4, in her
defence. Thereafter she closed her defence evidence.
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, convicted and sentenced the accused, as stated
hereinbefore.
7. 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.
8. I 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, at the very outset, submitted that
Balkar Singh, independent witness, was joined by the Investigating Officer,
Criminal Appeal No. 826-SB of 2000 4
at the time of the alleged recovery, yet he was not examined. He further
submitted that non-examination of Balkar Singh clearly revealed that the
prosecution withheld the best evidence, in its possession. He further
submitted that an adverse inference could be drawn that had he been
examined, he would have not supported the case of the prosecution. He
further submitted that the examination of Balkar Singh, independent
witness, in view of the defence, taken up by the accused, that she was
falsely implicated, on account of the reason, that the police officials
misbehaved with her during the process of checking of the bus, was
essential to reveal the truth. No doubt, the Additional Public Prosecutor
for the State gave up Balkar Singh, independent witness, as won over by
the accused. However, there is nothing, on the record, as to on the basis
of which material or data, the Additional Public Prosecutor, came to the
conclusion, that this witness had been won over by the accused
and,therefore if examined he would damage the case of the prosecution.
It is, no doubt, true that the Additional 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 which witness he does not want to examine.
However, he is required to exercise such a discretion, in a bona fide
manner, and not in an arbitrary and capricious manner. Since, in this
case, the independent witness was given up, as won over by the accused,
without any material or data, or without any application of the police, it
could be said that the discretion was exercised by the Additional Public
Prosecutor, for the State, in an arbitrary and capricious manner. The
evidence of Balkar Singh, independent witness, was very much essential,
to reveal the truth, especially in view of the defence set up by the accused,
who is a lady, regarding misbehaviour with her, by the police officials,
resulting into her false implication. The prosecution, thus, withheld the best
evidence in its possession. In State of Punjab Vs. Nachhattar Singh @
Criminal Appeal No. 826-SB of 2000 5
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. The principle of law, laid down, in the aforesaid
authority, is fully applicable to the facts of the present case. Non-
examination of Balkar Singh, independent witness by the prosecution,
without any valid reason, made its case highly doubtful. The submission of
the Counsel for the appellant, in this regard, being correct is accepted.
10. It was next submitted by the Counsel for the appellant, that the
link evidence, in this case, was completely missing. He further submitted
that Surjit Singh, PW1, the then SHO, before whom the case property was
allegedly produced stated that he did not deposit the same, in the judicial
Malkhana, for want of space. He further stated that on 24.5.1995 he sent
the sample parcel to the office of the Chemical Examiner,Patiala, through
Constable Bikker Singh. This statement of Surjit Singh, retired
Inspector,PW1 is, however, belied by Ex.D2, copy of the entry, in register
No.19 of the Police Station. It is evident from this document, that the case
property and the sample parcel were deposited with the MHC in the
Malkhana. Surjit Singh,PW1, admitted, during the course of cross-
examination that the key of the Malkhana remained with the Head
Constable. Since as per entry D2, the case property was deposited in the
Malkhana, and key thereof remained with the Head Constable, it could not
be said that the case property and the sample parcel remained with the
SHO, until the same (sample) was sent to the office of the Chemical
Examiner. How the sample parcel was taken out of the Malkhana, by him,
is not known. There is no evidence, on the record, as to who handed over
the sample parcel to him for further sending the same to the office of the
Chemical Examiner. Had the case property and the sample parcel
remained with him, and had he not deposited the same, in the Malkhana,
Criminal Appeal No. 826-SB of 2000 6
the matter would have been different. Under these circumstances, the link
evidence was incomplete, in this case. It is incumbent upon the prosecution
to prove beyond a reasonable doubt that there was no possibility of
tampering with the sample parcel, at any point of time, until it reached the
office of the Chemical Examiner. If the prosecution fails to do so, then the
link evidence becames incomplete. In State of Rajasthan V. Daulat Ram
1980 SCC (Crl.) 683, the prosecution failed to prove beyond a reasonable
doubt, all the links starting from seizure. It was held that the possibility of
sample parcel being changed or tampered with, during the period it
changed several hands till its reaching the Public Analyst, could not be
ruled out. The prosecution thus, miserably failed to prove the completion of
link evidence in the instant case.
11. The next limb of argument of the Counsel for the appellant,
regarding the non-completion of link evidence was to the effect, that though
the alleged recovery was effected, on 15.5.1995, yet the sample parcel
was sent to the Chemical Examiner on 24.5.1995. He further submitted
that delay of 9 days in sending the sample was not explained, and, as
such, the possibility of tampering with the same, could not be ruled out.
The submission of the Counsel for he appellant, in this regard , appears to
be correct. It is, no doubt, true that mere delay in sending the sample
parcel to the office of the Chemical Examiner, in itself, is not sufficient to
come to the conclusion that the sample parcel was tampered with, at any
point of time. In such a situation, the Court is required to fall back, on the
other evidence, produced by the prosecution. If after perusal of the other
evidence, the Court comes to the conclusion, that there was no
possibility of tampering with the sample parcel, until it reached the office of
the Chemical Examiner, then the same can be believed. In the instant
case, as stated above, the prosecution miserably failed to prove the
completion of link evidence. The other evidence produced by the
Criminal Appeal No. 826-SB of 2000 7
prosecution, therefore, could be said to be not only deficient but also
unreliable. In this background, the Court is to see, as to whether, the
possibility of tampering with the sample parcel until it reached the office of
the Chemical Examiner could be ruled out, or not. 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. In State of
Rajasthan Vs. 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 (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. No doubt,
the prosecution could lead other independent evidence, to prove that none
tampered with the sample, till it reached the office of the Chemical
Examiner. The other evidence produced by the prosecution, in this case,
to prove the link evidence, as held above, is not only deficient, but also
unreliable. In these circumstances, the principle of law, laid down, in the
aforesaid authorities, is fully applicable to the facts of the present case.
The delay of 9 days, in sending the sample to the office of the Chemical
Examiner, and non-strict proof, by the prosecution, that the same was not
tampered with, till it was deposited in that office, must prove fatal to the
case of the prosecution, as the possibility of tampering with the same,
Criminal Appeal No. 826-SB of 2000 8
could not be ruled out. The submission of the Counsel for the appellant, in
this regard, being correct, is accepted.
12. The next limb of argument of the Counsel for the appellant,
regarding the non-completion of link evidence, was to the effect, that no
specimen impression of the seal, was deposited, in the Malkhana, and, as
such, the question of handing over the same to Bikker Singh, Constable,
did not arise. The submission of the Counsel for the appellant, in this
regard appears to be correct. Ex.D2, copy of the entry of Malkhana register
does not show that the sample impression of the seal, was deposited
therein. Since the documentary evidence belies the deposit of the sample
impression of the seal, where from it was handed over to Constable Bikker
Singh, for deposit thereof, in the office of the Chemical Examiner, along
with the sample parcel is not known. It,therefore, can be said that the
sample impression of the seal was never deposited with the Chemical
Examiner. In these circumstances, the Chemical Examiner was deprived
of ascertaining as to whether the seals affixed on the sample parcel, at the
time of alleged recovery, tallied with the specimen impression of the seals.
The other evidence produced by the prosecution to prove its link evidence
has already been held to be deficient and unreliable. In State of
Rajasthan’s case (supra), the sample impression of the seal was not sent
to the Laboratory for the comparison of the seals, on the sample. It was
held that, therefore, there was no evidence to prove satisfactorily that the
seals found were, in fact the same, as were affixed on the sample parcel
immediately after seizure of the contraband. The principle of law laid down
in State of Rajasthan’s case (supra) if fully applicable to the facts of the
instant case. On account of this reason, the case of the prosecution also
became doubtful.
13. It was next submitted by the Counsel for the appellant, that the
defence version set up by the accused, was more probable, than the
Criminal Appeal No. 826-SB of 2000 9
prosecution version, but the trial Court failed to take into consideration the
same, 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, appears to be correct. A specific stand was taken up by the
accused in her statement under Section 313 Cr.P.C. that, in the bus, in
which she along with Parveen Kaur, her husbnd’s brother’s daughter was
travelling on 13.5.1996, during the process of checking thereof, by the
police officials of Police Station Sangat, they misbehaved with her, as a
result whereof, a dispute arose. She further stated that she along with
Parveen Kaur was taken to the Police Station and when her husband came
to know of all this, he went to the Police Station, for the purpose of their
release. She was not released but Parveen Kaur was released and,
ultimately, on 15.5.1995, this false case was registered against her. This
version of the accused was duly supported by Parveen Kaur,DW4, in all
material particulars and Surjit Singh, DW3, at the relevant time a Clerk with
Shri K.S.Bhullar,Advocate,District Court, Bathinda. Normally, a lady, in the
Indian society would not come up with such an allegation. However, when
she is compelled by the circumstances, then she can muster courage to
bring to the notice of the entire world, that a particular person misbehaved
with her. Had the police officials not misbehaved with the accused, she
would have been the last lady to make such an allegation against them.
The witness, in whose presence, the police officials misbehaved with the
accused, supported her version, while appearing as DW4. Not only this,
even an application was given by Mr. K.S.Bhullar,Advocate on 15.5.1995
at 11.45 am against the police of Police Station Sangat.Ex.D4 is the copy
of that application. In this application it was stated that when Balbir Kaur
and Parveen Kaur were travelling in a bus on 13.5.1996, the police of
Police Station Sangat conducted search thereof. It was further stated that
during the course of search it used filthy language against Balbir Kaur and
Criminal Appeal No. 826-SB of 2000 10
Parveen and on their intervention, the police felt annoyed with them.
Thereafter they took them into custody forcibly. The instant case was
registered against the accused at about 3.15 pm on 15.5.1995. Ruqa was
sent at 2.30 pm. It means that the alleged recovery was shown against the
accused, after moving of application dated 15.5.1995 at 11.45 am by Mr.
K.S.Bhullar, Advocate, detailing therein the misbehaviour of the police
officials of Police Station Sangat with her (accused). Mr. K.S.Bhullar could
not make such an application, before the registration of the case, had
actual incident, as detailed therein, not taken place. The defence version
duly corroborated by the defence evidence, produced by the accused, was
more probable, than the prosecution story. The accused is not required to
prove the same beyond a reasonable doubt. She was only required to
probalise her defence. As stated above, defence evidence in this case was
more probable than the prosecution version. The trial Court was required to
act upon the same. It had failed to do so wrongly. Once the defence
version is held to be more probable than the prosecution version, the
accused is entitled to acquittal. The submission of the Counsel for the
appellant, in this regard, appears to be correct and stands accepted.
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. The
trial Court did not take into consideration, the infirmities and lacunae,
enumerated, in the aforesaid paragraphs. Had these infirmities and
lacunae, been taken into consideration, by the trial Court, the result would
have been different. The judgment of conviction, and the order of
sentence, warrant interference, and are 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 21.8.2000, are set
aside. The appellant shall stand acquitted of the charge framed against
Criminal Appeal No. 826-SB of 2000 11
her. If, she is on bail, she shall stand discharged of her bail bonds. If, she
is in custody, she shall be set at liberty at once, if not required in any other
case.
September 19, 2008 (SHAM SUNDER) sks JUDGE