Crl. Appeal No.465-SB of 1999 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.465-SB of 1999
Date of Decision : 17.07.2008
Malkiat Singh son of Sadhu Singh, ....Appellant
R/o Village Behman Jassa Singh.
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. Narinder Singh, 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 1.4.1999, rendered by the Court of Addl. Sessions
Judge, Bathinda, vide which it convicted the accused (now appellant), for the
offence, punishable under Section 15 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 of 15 Kgs. poppy-husk (now falling within the ambit of non-
commercial quantity), without any permit or licence.
2. The facts, in brief, are that on 15.6.1997, Balwant Singh, ASI, of
Crl. Appeal No.465-SB of 1999 2
Police Station Talwandi Sabo, alongwith other police officials, was proceeding
from the side of village Teona towards village Behman Jassa Singh, in a Govt.
vehicle, in connection with patrol duty, and when the police party reached the
bridge, over a canal minor, in the area of the said village, Ujagar Singh, Ex-
Sarpanch of the said village came across, who was also joined with the police
party. In the meanwhile, two persons, i.e. Malkiat Singh, accused, and another,
were spotted coming from the side of village Singhpura, while carrying small
bags, on their heads. On seeing the police party, they tried to slip away, but
were apprehended, on suspicion. The search of the bag, being carried by the
accused, in accordance with the provisions of law, was conducted, in the
presence of Brij Mohan Sarup Sharma, DSP (D), Bathinda, who was called to
the spot, by sending a message, as a result whereof, 15 Kgs. poppy-husk, was
recovered. A sample of 100 grams, was separated therefrom, and the remaining
poppy-husk, was put into the same bag. The sample, and the bag, containing
the remaining poppy-husk, 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 statements of the
witnesses, were recorded. 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 15 of the
Act, was framed against him, to which he pleaded not guilty, and claimed trial.
4. The prosecution, in support of its case, examined Amarjit Singh,
DSP (PW-1) (earlier Inspector), Brij Mohan Sarup Sharma, DSP (PW-2), Piara
Singh, Constable (PW-3), and Balwant Singh, ASI (PW-4), the Investigating
Officer. Thereafter, the Addl. Public Prosecutor for the State, closed the
prosecution evidence.
5. The statement of the accused under Section 313 Cr.P.C., was
Crl. Appeal No.465-SB of 1999 3
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 picked up by the Police, from his home, at the instance of his
uncle Zora Singh, and after illegally detaining him from 3/4 days, he was
implicated, in this case, by the Police falsely. 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
accused/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
though Ujagar Singh, Ex-Sarpanch, was joined as an independent witness, at the
time of the alleged recovery, yet he was not examined, but, on the other hand,
was given up as won over by the accused, by the Addl. Public Prosecutor for the
State, vide his statement dated 11.11.1998, without assigning any valid reason.
He further submitted that, as such, the prosecution withheld the best evidence,
in its possession, and, thus, an adverse inference can be drawn, that had Ujagar
Singh, independent witness, been examined, he would not have supported its
case. He further submitted that, on account of this reason, the case of the
prosecution became highly doubtful. The submission of the Counsel for the
appellant, in this regard, appears to be correct. There is nothing, in the
statement of the Addl. Public Prosecutor for the State, as to on the basis of
which material and data, he came to the conclusion, that this witness, had been
won over by the accused. There is nothing, on the record, that any application
Crl. Appeal No.465-SB of 1999 4
was moved, by the Investigating Officer, that he had come to know from
reliable sources, that Ujagar Singh, independent witness, was not going to
support the case of the prosecution, and, thus, he be given up. 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 wanted to examine, and as to which
witness he did not want to examine. However, such discretion is required to be
exercised, by the Public Prosecutor, in accordance with the sound Judicial
principles, and, not arbitrarily and capriciously. In the instant case, it is not
known, as to what, persuaded the Public Prosecutor to give up this witness, as
won over. It, therefore, could be be said that the discretion was exercised by
him, arbitrarily and capriciously. It is, no doubt, true that, in the absence of
corroboration, through independent source, to the evidence of the official
witnesses, the case of the prosecution cannot be thrown out. However, when an
independent witness is joined, but is given up, without any rhyme or reason,
then certainly a doubt is cast, on the prosecution story. Had Ujagar Singh,
independent witness been examined, light would have been thrown, on the facts
and circumstances of the case, and credence would have been lent to the
prosecution case, solely based on the evidence of the official witnesses. 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
Crl. Appeal No.465-SB of 1999 5
evidence of the official witnesses, through an independent source,
certainly makes the case of the prosecution suspect. 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 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
terrorised. The discretion exercised by the Public Prosecutor, in giving up
Ujagar Singh, as won over, as stated above, was not bonafide. The principle of
law, laid down, in the aforesaid authority, reveals that the witness whose
evidence is material to unfold the case of the prosecution, must be examined,
until and unless, he has been won over or terrorized. In the instant case, non-
examination of Ujagar Singh, 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.
10. It was next submitted by the Counsel for the appellant, that though
the alleged recovery was affected on 15.6.1997, yet the sample was sent to the
office of the Chemical Examiner on 19.6.1997, i.e. after a delay of 4 days. He
further submitted that no explanation was furnished by the prosecution
witnesses, for such a delay, in sending the sample to the office of the Chemical
Examiner, as a result whereof, the possibility of tampering with the same, could
not be ruled out, especially when Balwant Singh, ASI, after using the seal,
handed over the same to Brij Mohan Sarup Sharma, DSP (PW-2), and not to
Crl. Appeal No.465-SB of 1999 6
Ujagar Singh, independent witness. 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 4 days,
in sending the sample to the office of the Chemical Examiner. It is the duty of
the prosecution, to prove beyond a reasonable doubt, that none tampered with
the sample, till the same reached the office of the Chemical Examiner. Since,
the sample was allegedly sent to the office of the Chemical Examiner, after 4
days, 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, and 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
Crl. Appeal No.465-SB of 1999 7
present case. The delay of 4 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, could not
be ruled out. 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
sample impression of the seals, was not sent to the office of the Chemical
Examiner, as a result whereof, it could not be ascertained, as to whether, the
seals on the sample were the same, as were allegedly affixed, on the same, at the
time of alleged recovery. Ex.PG, is the affidavit of Piara Singh, Constable.
According to Para No.4, of this affidavit, he was handed over the sample parcel,
of this case, on 18.6.1997, and after getting the docket issued from the SSP
office, he deposited the sample parcel, on 19.6.1997, in the office of the
Chemical Examiner. In Para No.4 of the affidavit, which speaks of deposit of
the sample parcel, in the office of the Chemical Examiner, there is no mention
that the sample impression of the seals, was also deposited by him, therein. It
means that neither this witness was handed over the sample impression of the
seal, nor he deposited the same, in the office of the Chemical Examiner. Under
these circumstances, it could not be said, whether the sample was received in
the office of the Chemical Examiner, with seals intact, and whether, the said
parcel bore the same seals, as were allegedly affixed by the Investigation
Officer and the SHO, on the same. 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. In this
view of the matter, the case of the prosecution also became doubtful. The trial
Court, did not take into consideration, this aspect of the matter,as a result
Crl. Appeal No.465-SB of 1999 8
whereof, miscarriage of justice occasioned.
12. It was next submitted by the Counsel for the appellant, that major
discrepancies and contradictions, appeared in the evidence of the official
witnesses, which remained unexplained, and, as such, the same proved fatal to
the case of the prosecution, especially, when the independent witness, who was
joined, but was given up as won over, by the accused, arbitrarily. The
submission of the Counsel for the appellant, in this regard, appears to be
correct. Brij Mohan Sarup Sharma, DSP (PW-2), stated that the poppy-husk
recovered from the accused, was weighed in 15/16 lots. On the other hand,
Balwant Singh, ASI (PW-4), stated that it was weighed only in 8 lots. Brij
Mohan Sarup Sharma, DSP (PW-2), stated that weighing material had already
been requisitioned by the Investigating Officer, and was lying, at the spot,
before he reached there, whereas, Balwant Singh, ASI (PW-4), deposed that
weighing material was sent for after the arrival of the DSP. Brij Mohan Sarup
Sharma, DSP (PW-2), stated that he remained at the spot for about 6 hours, but
no public person, passed by the side, during that period, whereas, Balwant
Singh, ASI (PW-4), stated that after the recovery was effected, some public
persons, passed by the side. No doubt, when these discrepancies, are taken
individually, the same may not be said to be of vital importance. When these
discrepancies are taken collectively, then certainly a dount is cast, on the
prosecution case, in view of the reason that it does not find corroboration
through an independent source, and no explanation was furnished, regarding the
occurrence such discrepancies. The discrepancies, referred to above, could not
be said to be normal, which could occur, on account of fading of memory, or
lapse of time. These discrepancies clearly go to show that either no recoverey
was effected, from the accused, as alleged by the prosecution witnesses, or at
least one of them, was not present, at the time of the alleged recovery. The trial
Court, was wrong, in not taking into consideration, the aforesaid material
Crl. Appeal No.465-SB of 1999 9
discrepancies, and contradictions, occurring in the evidence of Brij Mohan
Sarup Sharma, DSP (PW-2), and Balwant Singh, (PW-4), the Investigating
Officer, especially, when the case of the prosecution, was not corroborated
through an independent source. These discrepancies, certainly made the
prosecution case doubtful.
13. 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.
14. For the reasons recorded, hereinbefore, the appeal is accepted. The
judgment of conviction, and the order of sentence dated 1.4.1999, 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.
17.7.2008 (SHAM SUNDER) Vimal JUDGE