Crl. Appeal No.682-SB of 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.682-SB of 2004
Date of Decision : October 23, 2008
Gurdev Singh S/o Gian Chand, ...Appellant
R/o Village Garhi Kanungo,
P.S.Balachaur, Distt. Nawan Shahr.
Versus
The State of Punjab ....Respondent
CORAM:HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Sanjeev Sharma, Advocate,
for the appellant.
Mr. Shilesh Gupta, DAG, Punjab,
for the respondent.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction, and
the order of sentence dated 13.11.2003, rendered by the Judge, Special
Court, Rupnagar, vide which he 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 10
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 1 Kg. opium, (now falling within the
Crl. Appeal No.682-SB of 2004 2
ambit of non-commercial quantity) without any permit or licence.
2. The facts, in brief, are that on 2.10.2000, Manvir Singh,
SI/SHO, alongwith other police officials, was present at T-point
Rangilpur, in connection with checking of vehicles, and holding a special
picket. At that time, truck bearing No.UP-13-3787, was stopped by the
police party, On enquiry, the driver of the truck, disclosed his name as
Balbir Singh S/o Ujjagar Singh. On the left side of the driver, one person
was sitting, who disclosed his name as Gurdev Singh. He was carrying a
bag, in his right hand. Search of the bag, being carried by Gurdev Singh,
accused, was conducted, in the presence of Sukhwinder Singh Uppal,
DSP, who was called to the spot, by sending a message. It was found
containing one plastic box, in which 1 kg. Opium, wrapped in a glazed
paper, was lying. Two samples of 10 grams each, were separated
therefrom, and the remaining opium, was kept in the same plastic box.
The samples, and the plastic box, containing the remaining opium, 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. Rough site plan of the place of
recovery, was prepared. The accused was arrested. 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 18 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 Shamsher
Singh, MHC, (PW-1), S.S.Uppal, DSP, (PW-2), Kulwinder Singh,
Crl. Appeal No.682-SB of 2004 3
Constable (PW-3), Manvir Singh, SI/SHO, (PW-4), the Investigating
Officer, Gulzari Lal, Constable (PW-5), and Balbir Singh, SI (PW-6).
The Addl. Public Prosecutor for the State, tendered into evidence Ex.PX,
report of the Chemical Examiner, and, thereafter, 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.
It was stated by him, that on 1.10.2000, he had gone to purchase Oxen,
alongwith Rs.5000/-. It was further stated by him, that he was in
drunkard condition. It was further stated by him, that the Police snatched
Rs.5000/- from him, and arrested him, in drunkard condition. It was
further stated by him, that on the next day, the police involved him, in
this false case. 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, convicted and sentenced the accused/appellant, 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
no independent witness was joined by the Investigating Officer, despite
availability, as the alleged recovery was effected, at the public place. He
Crl. Appeal No.682-SB of 2004 4
further submitted that even no effort was made, to join, an independent
witness, by the Investigating Officer. He further submitted that, under
these circumstances, the case of the prosecution became doubtful. The
submission of the Counsel for the appellant, in this regard, appears to be
correct. Manvir Singh, SI, the Investigating Officer (PW-4), stated that
the recovery was effected at Bus Stand, Rangilpur. Bus Stand is a busy
place, where a number of passengers are always available, to board the
buses. A number of public witnesses, must be available at the Bus Stand,
and at the shops and stalls located inside and outside thereof. Manvir
Singh, SI (PW-4), did not state even a single word, that he made an effort
to join an independent witness. Had no independent witness been
available, the matter would have been different. In this case, independent
witnesses, despite availability, were not intentionally and deliberately
joined by the Investigating Officer, nor an attempt was made to join them.
Since, the minimum stringent punishment is provided for the offences,
punishable under the Act, and according to the provisions of Section 51
of the Act, the provisions of the Code of Criminal Procedure, relating to
search, seizure and arrest shall apply to the extent the same are not
inconsistent with the provisions of the Act, it was imperative, on the part
of the Investigating Officer, to join an independent witness, at the time of
the alleged search, and seizure or at least to make a genuine, sincere and
real effort, to join such a witness. The search and seizure, before an
independent witness, would have imparted much more authenticity, and
creditworthiness, to the proceedings, so conducted. It would have also
verily strengthen the prosecution case. The said safeguard was also
intended to avoid criticism of arbitrary and high-handed action, against
Crl. Appeal No.682-SB of 2004 5
the authorized Officer. In other words, the Legislature, in its wisdom,
considered it necessary to provide such a statutory safeguard, to lend
credibility to the procedure, relating to search and seizure, keeping in
view the severe punishment, prescribed under the Act. That being so, it
was imperative for the authorized Officer, to follow the reasonable, fair
and just procedure, as envisaged by the Statute, and failure to do so, must
be viewed with suspicion. The legitimacy of judicial procedure, may
come under cloud, if the Court is seen to condone acts of violation of
statutory safeguards, committed by the authorized officer, during search
and seizure operation and may also undermine respect of law. That
cannot be permitted. In the instant case, the alleged recovery being minor,
now falling within the ambit of non-commercial quantity, and chances of
plantation of the same, against the accused, could not be ruled out, it
became the bounden duty of the Investigating Officer, to observe all the
safeguards, provided under the Act, at the time of search and seizure. It
is, no doubt, true that, in the absence of corroboration through an
independent source, the evidence of the official witnesses, cannot be
disbelieved and distrusted, blind-foldely, if the same is found to be
creditworthy. However, when the evidence of the official witnesses, is
found to be not cogent convincing, reliable and trustworthy, then on
account of non-corroboration thereof, through an independent source,
certainly a doubt is cast, on the prosecution story. In the instant case, the
evidence of the prosecution witnesses, does not inspire confidence, in the
mind of the Court. In this view of the matter, non-corroboration of the
evidence of the official witnesses, through an independent source,
certainly makes the case of the prosecution suspect. In State of Punjab
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Vs. Bhupinder Singh 2001 (01) RCR (Crl.) 356, a Division Bench of
this Court, held the case of the prosecution, to be doubtful, on account of
non-joining of an independent witness, though the recovery was effected
from a busy locality. In State of Punjab Vs. Ram Chand 2001 (1) RCR
(Crl.) 817, a Division Bench of this Court, held that it was imperative to
join an independent witness, to vouchsafe the fair investigation. On
account of non-joining of an independent witness, it was held that the
accused was entitled to be given the benefit of doubt. The principle of
law, laid down, in the aforesaid authorities, is fully applicable, to the facts
of the instant case. On account of non-joining of an independent witness,
at the time of the alleged search and seizure, the case of the prosecution,
became highly doubtful. The trial Court failed to take into consideration,
this aspect of the matter, as a result whereof, miscarriage of justice
occasioned.
10. It was next submitted by the Counsel for the appellant, that
though the alleged recovery was effected on 1.10.2000, yet the samples
were sent to the office of the Chemical Examiner on 2.11.2000, and, as
such, the delay of one month, was not explained, by the prosecution
witnesses. He further submitted that, under these circumstances, the
possibility of tampering with the case property, and the sample parcels,
could not be ruled out, especially, when the seals after use remained with
the police officials throughout. The submission of the Counsel for the
appellant, in this regard, appears to be correct. No explanation,
whatsoever, has been furnished, by the prosecution witnesses, with regard
to the delay of one month, in sending the samples to the office of the
Chemical Examiner. It is the duty of the prosecution, to prove beyond a
Crl. Appeal No.682-SB of 2004 7
reasonable doubt, that none tampered with the samples, till the same
reached the office of the Chemical Examiner. Since, the samples were
allegedly sent to the office of the Chemical Examiner, after one month, it
could not be safely held that the same remained un-tampered with. This
fact casts a shadow of doubt, on the case of the prosecution. 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, 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.
Crl. Appeal No.682-SB of 2004 8
The delay of one month, in sending the samples 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, could not be ruled out. The submission of the Counsel for
the appellant, in this regard, being correct, is accepted.
11. Even the sample impression of the seals, was not sent to the
office of the Chemical Examiner, and, as such, the said Examiner, was
deprived of comparing the seals, on the sample parcels, with the seals,
which were affixed, at the time of alleged recovery. Ex.PL, is the
affidavit of Gulzari Lal, Constable, who allegedly took the sample
parcels, to the office of the Chemical Examiner. In his affidavit, he did
not state that he was handed over the sample impression of the seals, and
he deposited the same, in the office of the Chemical Examiner. Thus, it
becomes clear that the sample impression of the seals, was never
deposited in the office of the Chemical Examiner. It is not known, as to
how in Ex.PX, the report of the Chemical Examiner, it was recorded that
the seals tallied with the specimen seals. In State of Rajasthan Vs.
Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), 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, as the laboratory, in the absence of
deposit of sample impression of the seals, could not come to the
conclusion, whether the seals on the sample, were the same, as were
affixed, at the time of alleged recovery. In this view of the matter, the
case of the prosecution also became doubtful. The trial Court, did not
Crl. Appeal No.682-SB of 2004 9
take into consideration, this aspect of the matter,as a result whereof,
miscarriage of justice occasioned.
12. In the instant case, there was violation of the provisions of
Section 55 of the Act, as the case property and the samples were not
produced before the Magistrate. Section 55 of the Act, lays down that an
Officer Incharge of the 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 samples are required to be produced before the Magistrate, 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. Had any explanation been furnished, by the
Investigating Officer, as to what prevented him, from producing the case
property, before the Illaqa Magistrate, immediately after the search and
seizure, the matter would have been considered, in the light thereof, but
in the absence of any explanation, having been furnished, by the
Investigating Officer, in this regard, the Court cannot coin any of its own,
to fit in with the prosecution case. Since, there was deliberate and
Crl. Appeal No.682-SB of 2004 10
intentional breach of the provisions of Section 55 of the Act, by the
Investigating Officer, the same cannot be condoned. In Gurbax Singh
Vs. State of Haryana 2001 (1) RCR (Crl.) 702 (S.C.), 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, since the
Investigating Officer, intentionally and deliberately breached the
provisions of Section 55, he could not say that the provisions of Section
55 being 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 be flouted
with impunity, by him. Compliance of the said provision is an indicator
towards the reasonable, fair and just procedure, adopted by the
Investigating Officer, 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. The trial Court did not take into consideration, this
Crl. Appeal No.682-SB of 2004 11
aspect of the matter, as a result whereof, miscarriage of justice
occasioned.
13. The statement of Gulzari Lal, Constable, who took the samples,
to the office of the Chemical Examiner, was not recorded, under Section
161 Cr.P.C., by the Investigating Officer. Under these circumstances, the
case of the prosecution became doubtful. In Padam Singh Vs. State of
Haryana 1997 (4) RCR (Criminal) 172 (Division Bench) (P&H), the
statement of the DSP, who allegedly reached the spot, at the time of
search and seizure, under Section 161 Cr.P.C, was not recorded. The
Division Bench, in the aforesaid authority, under these circumstances,
held that non-recording of the statement of such an important witness,
was a serious irregularity, which considerably prejudiced the accused and
may make his testimony tainted. Ultimately, on this ground, and, on
other grounds, the conviction was set aside. On account of non-recording
of the statement of Gulzari Lal, a material witness, under Section 161
Cr.P.C., the accused was deprived of confronting him, with his previous
statement, so as to shatter the veracity of his testimony made in the Court.
Thus, it was a serious irregularity, committed by the Investigating
Officer. This caused a serious prejudice to the accused, in his defence,
and made the statement of Gulzari Lal, tainted. The principle of law, laid
down, in the aforesaid authority, is, thus, fully applicable to the facts of
the present case. Non-recording of the statement of Gulzari Lal,
Constable, by the Investigating Officer, must prove fatal to the case of the
prosecution. The trial Court did not take into consideration, this aspect
of the matter, as a result whereof, miscarriage of justice occasioned.
14. No other point was urged, by the Counsel for the parties.
Crl. Appeal No.682-SB of 2004 12
15. 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 accused
committed the offence, punishable under Section 18 of the Act. The
judgment of conviction, and the order of sentence are, thus, liable to be
set aside.
16. For the reasons recorded, hereinbefore, the appeal is accepted.
The judgment of conviction, and the order of sentence dated 13.11.2003,
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, Rupnagar, shall comply
with the judgment, in accordance with the provisions of law, and send
compliance report, within 2 months, from the date of receipt of a certified
copy of the judgment.
October 23, 2008 (SHAM SUNDER) Vimal JUDGE