{"id":202415,"date":"2008-07-17T00:00:00","date_gmt":"2008-07-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/malkiat-singh-son-of-sadhu-singh-vs-the-state-of-punjab-on-17-july-2008"},"modified":"2015-04-21T20:51:12","modified_gmt":"2015-04-21T15:21:12","slug":"malkiat-singh-son-of-sadhu-singh-vs-the-state-of-punjab-on-17-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/malkiat-singh-son-of-sadhu-singh-vs-the-state-of-punjab-on-17-july-2008","title":{"rendered":"Malkiat Singh Son Of Sadhu Singh vs The State Of Punjab on 17 July, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Malkiat Singh Son Of Sadhu Singh vs The State Of Punjab on 17 July, 2008<\/div>\n
Crl. Appeal No.465-SB of 1999                                               1\n\n           IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                           CHANDIGARH\n\n                                            Crl. Appeal No.465-SB of 1999\n                                            Date of Decision : 17.07.2008\n\n\nMalkiat Singh son of Sadhu Singh,                      ....Appellant\nR\/o Village Behman Jassa Singh.\n\n                                 Versus\n\nThe State of Punjab                                    ....Respondent\n\n\nCORAM: HON'BLE MR. JUSTICE SHAM SUNDER\n\n            1. Whether Reporters of Local Newspapers may be allowed to\n            see the judgment?\n            2. To be referred to the Reporters or not?\n            3. Whether the judgment should be reported in the Digest?\n\n\nPresent:    Mr. Narinder Singh, Advocate,\n            for the appellant.\n\n            Mr. S.S.Bhullar, DAG, Punjab,\n            for the respondent.\n\n\nSHAM SUNDER, J.\n<\/pre>\n
            This appeal is directed against the judgment of conviction, and the<\/p>\n
order of sentence dated 1.4.1999, rendered by the Court of Addl. Sessions<\/p>\n
Judge, Bathinda, vide which it convicted the accused (now appellant), for the<\/p>\n
offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic<\/p>\n
Substances Act, 1985 (hereinafter called as ‘the Act’ only) and sentenced him, to<\/p>\n
undergo rigorous imprisonment for a period of ten years, and to pay a fine of<\/p>\n
Rs.1 lac, and in default of payment of the same, to undergo rigorous<\/p>\n
imprisonment for another period of one year, for having been found in<\/p>\n
possession of 15 Kgs. poppy-husk (now falling within the ambit of non-<\/p>\n
commercial quantity), without any permit or licence.\n<\/p>\n
2.          The facts, in brief, are that on 15.6.1997, Balwant Singh, ASI, of
\n Crl. Appeal No.465-SB of 1999                                               2<\/span><\/p>\n
Police Station Talwandi Sabo, alongwith other police officials, was proceeding<\/p>\n
from the side of village Teona towards village Behman Jassa Singh, in a Govt.<\/p>\n
vehicle, in connection with patrol duty, and when the police party reached the<\/p>\n
bridge, over a canal minor, in the area of the said village, Ujagar Singh, Ex-<\/p>\n
Sarpanch of the said village came across, who was also joined with the police<\/p>\n
party. In the meanwhile, two persons, i.e. Malkiat Singh, accused, and another,<\/p>\n
were spotted coming from the side of village Singhpura, while carrying small<\/p>\n
bags, on their heads. On seeing the police party, they tried to slip away, but<\/p>\n
were apprehended, on suspicion. The search of the bag, being carried by the<\/p>\n
accused, in accordance with the provisions of law, was conducted, in the<\/p>\n
presence of Brij Mohan Sarup Sharma, DSP (D), Bathinda, who was called to<\/p>\n
the spot, by sending a message, as a result whereof, 15 Kgs. poppy-husk, was<\/p>\n
recovered. A sample of 100 grams, was separated therefrom, and the remaining<\/p>\n
poppy-husk, was put into the same bag. The sample, and the bag, containing<\/p>\n
the remaining poppy-husk, were converted into parcels, duly sealed, and taken<\/p>\n
into possession, vide a separate recovery memo. Ruqa was sent to the Police<\/p>\n
Station, on the basis whereof, formal FIR was registered. The statements of the<\/p>\n
witnesses, were recorded. The accused was arrested. After the completion of<\/p>\n
investigation, the accused was challaned.\n<\/p>\n
3.         On appearance, in the Court, the copies of documents, relied upon by<\/p>\n
the prosecution, were supplied to the accused. Charge under Section 15 of the<\/p>\n
Act, was framed against him, to which he pleaded not guilty, and claimed trial.<\/p>\n
4.         The prosecution, in support of its case, examined Amarjit Singh,<\/p>\n
DSP (PW-1) (earlier Inspector), Brij Mohan Sarup Sharma, DSP (PW-2), Piara<\/p>\n
Singh, Constable (PW-3), and Balwant Singh, ASI (PW-4), the Investigating<\/p>\n
Officer.   Thereafter, the Addl. Public Prosecutor for the State, closed the<\/p>\n
prosecution evidence.\n<\/p>\n
5.         The statement of the accused under Section 313 Cr.P.C., was
\n Crl. Appeal No.465-SB of 1999                                                 3<\/span><\/p>\n
recorded, and he was put all the incriminating circumstances, appearing against<\/p>\n
him, in the prosecution evidence. He pleaded false implication. It was stated by<\/p>\n
him, that he was picked up by the Police, from his home, at the instance of his<\/p>\n
uncle Zora Singh, and after illegally detaining him from 3\/4 days, he was<\/p>\n
implicated, in this case, by the Police falsely. He, however, did not lead any<\/p>\n
evidence, in his defence.\n<\/p>\n
6.         After hearing the Addl. Public Prosecutor for the State, the Counsel<\/p>\n
for the accused, and, on going through the evidence, on record, the trial Court,<\/p>\n
convicted and sentenced the accused\/appellant, as stated hereinbefore.<\/p>\n
7.         Feeling aggrieved, against the judgment of conviction, and the order<\/p>\n
of sentence, rendered by the trial Court, the instant appeal, was filed by the<\/p>\n
accused\/appellant.\n<\/p>\n
8.         I have heard the learned Counsel for the parties, and have gone<\/p>\n
through the evidence and record of the case, carefully.\n<\/p>\n
9.         The Counsel for the appellant, at the very outset, submitted that<\/p>\n
though Ujagar Singh, Ex-Sarpanch, was joined as an independent witness, at the<\/p>\n
time of the alleged recovery, yet he was not examined, but, on the other hand,<\/p>\n
was given up as won over by the accused, by the Addl. Public Prosecutor for the<\/p>\n
State, vide his statement dated 11.11.1998, without assigning any valid reason.<\/p>\n
He further submitted that, as such, the prosecution withheld the best evidence,<\/p>\n
in its possession, and, thus, an adverse inference can be drawn, that had Ujagar<\/p>\n
Singh, independent witness, been examined, he would not have supported its<\/p>\n
case. He further submitted that, on account of this reason, the case of the<\/p>\n
prosecution became highly doubtful. The submission of the Counsel for the<\/p>\n
appellant, in this regard, appears to be correct.         There is nothing, in the<\/p>\n
statement of the Addl. Public Prosecutor for the State, as to on the basis of<\/p>\n
which material and data, he came to the conclusion, that this witness, had been<\/p>\n
won over by the accused. There is nothing, on the record, that any application
\n Crl. Appeal No.465-SB of 1999                                                  4<\/span><\/p>\n
was moved, by the Investigating Officer, that he had come to know from<\/p>\n
reliable sources, that Ujagar Singh, independent witness, was not going to<\/p>\n
support the case of the prosecution, and, thus, he be given up. It is, no doubt,<\/p>\n
true that the Public Prosecutor for the State, is the master of the case. It is, for<\/p>\n
him to decide, as to which witness he wanted to examine, and as to which<\/p>\n
witness he did not want to examine. However, such discretion is required to be<\/p>\n
exercised, by the Public Prosecutor, in accordance with the sound Judicial<\/p>\n
principles, and, not arbitrarily and capriciously. In the instant case, it is not<\/p>\n
known, as to what, persuaded the Public Prosecutor to give up this witness, as<\/p>\n
won over. It, therefore, could be be said that the discretion was exercised by<\/p>\n
him, arbitrarily and capriciously. It is, no doubt, true that, in the absence of<\/p>\n
corroboration, through independent source, to the evidence of the official<\/p>\n
witnesses, the case of the prosecution cannot be thrown out. However, when an<\/p>\n
independent witness is joined, but is given up, without any rhyme or reason,<\/p>\n
then certainly a doubt is cast, on the prosecution story. Had Ujagar Singh,<\/p>\n
independent witness been examined, light would have been thrown, on the facts<\/p>\n
and circumstances of the case, and credence would have been lent to the<\/p>\n
prosecution case, solely based on the evidence of the official witnesses. It is,<\/p>\n
no doubt, true that, in the absence of corroboration through an<\/p>\n
independent source, the evidence of the official witnesses, cannot be<\/p>\n
disbelieved and distrusted, blind-foldely, if the same is found to be<\/p>\n
creditworthy. However, when the evidence of the official witnesses, is<\/p>\n
found to be not cogent, convincing, reliable and trustworthy, then on<\/p>\n
account of non-corroboration thereof, through an independent source,<\/p>\n
certainly a doubt is cast, on the prosecution story. In the instant case, the<\/p>\n
evidence of the prosecution witnesses, does not inspire confidence, in the<\/p>\n
mind of the Court. In this view of the matter, non-corroboration of the
\n Crl. Appeal No.465-SB of 1999                                                 5<\/span><\/p>\n
evidence of the official witnesses, through an independent source,<\/p>\n
certainly makes the case of the prosecution suspect. In State of Punjab Vs.<\/p>\n
Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by<\/p>\n
a Division Bench of this Court, an independent witness was joined, but was not<\/p>\n
examined. In these circumstances, it was held that the case of the prosecution<\/p>\n
became doubtful. In Masalti Vs. State of UP, AIR 1965 SC 202, a four Judge<\/p>\n
Bench of the Apex Court, held that it is, undoubtedly, the duty of the<\/p>\n
prosecution to lay before the Court, all material evidence, available to it, which<\/p>\n
is necessary for unfolding its case, but it would be unsound to lay down, as a<\/p>\n
general rule, that every witness must be examined, even though, his evidence<\/p>\n
may not be very material, or even if, it is known that he has been won over or<\/p>\n
terrorised. The discretion exercised by the Public Prosecutor, in giving up<\/p>\n
Ujagar Singh, as won over, as stated above, was not bonafide. The principle of<\/p>\n
law, laid down, in the aforesaid authority, reveals that the witness whose<\/p>\n
evidence is material to unfold the case of the prosecution, must be examined,<\/p>\n
until and unless, he has been won over or terrorized. In the instant case, non-<\/p>\n
examination of Ujagar Singh, made the case of the prosecution doubtful. The<\/p>\n
trial Court did not take into consideration, this aspect of the matter, as a result<\/p>\n
whereof, it fell into a grave error, in recording conviction, and awarding<\/p>\n
sentence, to the accused.\n<\/p>\n
10.        It was next submitted by the Counsel for the appellant, that though<\/p>\n
the alleged recovery was affected on 15.6.1997, yet the sample was sent to the<\/p>\n
office of the Chemical Examiner on 19.6.1997, i.e. after a delay of 4 days. He<\/p>\n
further submitted that no explanation was furnished by the prosecution<\/p>\n
witnesses, for such a delay, in sending the sample to the office of the Chemical<\/p>\n
Examiner, as a result whereof, the possibility of tampering with the same, could<\/p>\n
not be ruled out, especially when Balwant Singh, ASI, after using the seal,<\/p>\n
handed over the same to Brij Mohan Sarup Sharma, DSP (PW-2), and not to
\n Crl. Appeal No.465-SB of 1999                                                   6<\/span><\/p>\n
Ujagar Singh, independent witness. The submission of the Counsel for the<\/p>\n
appellant, in this regard, appears to be correct. No explanation, whatsoever, has<\/p>\n
been furnished, by the prosecution witnesses, with regard to the delay of 4 days,<\/p>\n
in sending the sample to the office of the Chemical Examiner. It is the duty of<\/p>\n
the prosecution, to prove beyond a reasonable doubt, that none tampered with<\/p>\n
the sample, till the same reached the office of the Chemical Examiner. Since,<\/p>\n
the sample was allegedly sent to the office of the Chemical Examiner, after 4<\/p>\n
days, it could not be safely held that the same remained un-tampered with. This<\/p>\n
fact casts a shadow of doubt, on the case of the prosecution. In Gian Singh Vs.<\/p>\n
State of Punjab 2006(2) RCR (Criminal) 611, there was a delay of 14 days, in<\/p>\n
sending the sample to the office of the Chemical Examiner.             Under these<\/p>\n
circumstances, it was held that the possibility of tampering with the sample,<\/p>\n
could not be ruled out, and the link evidence was incomplete. Ultimately, the<\/p>\n
appellant was acquitted, in that case. In State of Rajasthan Vs. Gurmail Singh<\/p>\n
2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the<\/p>\n
Malkhana for 15 days. The malkhana register was not produced, to prove that it<\/p>\n
was so kept in the malkhana, till the sample was handed over to the Constable.<\/p>\n
In these circumstances, in the aforesaid case, the appellant was acquitted. In<\/p>\n
Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample<\/p>\n
was sent to the office of the Chemical Examiner after 72 hours, and the seal<\/p>\n
remained with the police official, and had not been handed over to any<\/p>\n
independent witness.      Under these circumstances, it was held that this<\/p>\n
circumstance would prove fatal to the case of the prosecution. No doubt, the<\/p>\n
prosecution could lead other independent evidence, to prove that none tampered<\/p>\n
with the sample, till it reached the office of the Chemical Examiner. The other<\/p>\n
evidence produced by the prosecution, in this case, to prove the link evidence, is<\/p>\n
not only deficient, but also unreliable. In these circumstances, the principle of<\/p>\n
law, laid down, in the aforesaid authorities, is fully applicable to the facts of the
\n Crl. Appeal No.465-SB of 1999                                               7<\/span><\/p>\n
present case. The delay of 4 days, in sending the sample to the office of the<\/p>\n
Chemical Examiner, and non-strict proof, by the prosecution, that the same was<\/p>\n
not tampered with, till it was deposited, in that office, must prove fatal to the<\/p>\n
case of the prosecution, as the possibility of tampering with the same, could not<\/p>\n
be ruled out. The submission of the Counsel for the appellant, in this regard,<\/p>\n
being correct, is accepted.\n<\/p>\n
11.        It was next submitted by the Counsel for the appellant, that the<\/p>\n
sample impression of the seals, was not sent to the office of the Chemical<\/p>\n
Examiner, as a result whereof, it could not be ascertained, as to whether, the<\/p>\n
seals on the sample were the same, as were allegedly affixed, on the same, at the<\/p>\n
time of alleged recovery. Ex.PG, is the affidavit of Piara Singh, Constable.<\/p>\n
According to Para No.4, of this affidavit, he was handed over the sample parcel,<\/p>\n
of this case, on 18.6.1997, and after getting the docket issued from the SSP<\/p>\n
office, he deposited the sample parcel, on 19.6.1997, in the office of the<\/p>\n
Chemical Examiner. In Para No.4 of the affidavit, which speaks of deposit of<\/p>\n
the sample parcel, in the office of the Chemical Examiner, there is no mention<\/p>\n
that the sample impression of the seals, was also deposited by him, therein. It<\/p>\n
means that neither this witness was handed over the sample impression of the<\/p>\n
seal, nor he deposited the same, in the office of the Chemical Examiner. Under<\/p>\n
these circumstances, it could not be said, whether the sample was received in<\/p>\n
the office of the Chemical Examiner, with seals intact, and whether, the said<\/p>\n
parcel bore the same seals, as were allegedly affixed by the Investigation<\/p>\n
Officer and the SHO, on the same. In State of Rajasthan Vs. Gurmail Singh<\/p>\n
2005(2) RCR (Criminal) 58, (Supreme Court), the sample seal was not sent to<\/p>\n
the Laboratory, at the time of sending the sample parcel. The Apex Court, held<\/p>\n
that the case of the prosecution was doubtful, on account of this reason. In this<\/p>\n
view of the matter, the case of the prosecution also became doubtful. The trial<\/p>\n
Court, did not take into consideration, this aspect of the matter,as a result
\n Crl. Appeal No.465-SB of 1999                                                8<\/span><\/p>\n
whereof, miscarriage of justice occasioned.\n<\/p>\n
12.        It was next submitted by the Counsel for the appellant, that major<\/p>\n
discrepancies and contradictions, appeared in the evidence of the official<\/p>\n
witnesses, which remained unexplained, and, as such, the same proved fatal to<\/p>\n
the case of the prosecution, especially, when the independent witness, who was<\/p>\n
joined, but was given up as won over, by the accused, arbitrarily.           The<\/p>\n
submission of the Counsel for the appellant, in this regard, appears to be<\/p>\n
correct. Brij Mohan Sarup Sharma, DSP (PW-2), stated that the poppy-husk<\/p>\n
recovered from the accused, was weighed in 15\/16 lots. On the other hand,<\/p>\n
Balwant Singh, ASI (PW-4), stated that it was weighed only in 8 lots.         Brij<\/p>\n
Mohan Sarup Sharma, DSP (PW-2), stated that weighing material had already<\/p>\n
been requisitioned by the Investigating Officer, and was lying, at the spot,<\/p>\n
before he reached there, whereas, Balwant Singh, ASI (PW-4), deposed that<\/p>\n
weighing material was sent for after the arrival of the DSP. Brij Mohan Sarup<\/p>\n
Sharma, DSP (PW-2), stated that he remained at the spot for about 6 hours, but<\/p>\n
no public person, passed by the side, during that period, whereas, Balwant<\/p>\n
Singh, ASI (PW-4), stated that after the recovery was effected, some public<\/p>\n
persons, passed by the side. No doubt, when these discrepancies, are taken<\/p>\n
individually, the same may not be said to be of vital importance. When these<\/p>\n
discrepancies are taken collectively, then certainly a dount is cast, on the<\/p>\n
prosecution case, in view of the reason that it does not find corroboration<\/p>\n
through an independent source, and no explanation was furnished, regarding the<\/p>\n
occurrence such discrepancies. The discrepancies, referred to above, could not<\/p>\n
be said to be normal, which could occur, on account of fading of memory, or<\/p>\n
lapse of time. These discrepancies clearly go to show that either no recoverey<\/p>\n
was effected, from the accused, as alleged by the prosecution witnesses, or at<\/p>\n
least one of them, was not present, at the time of the alleged recovery. The trial<\/p>\n
Court, was wrong, in not taking into consideration, the aforesaid material
\n Crl. Appeal No.465-SB of 1999                                                  9<\/span><\/p>\n
discrepancies, and contradictions, occurring in the evidence of Brij Mohan<\/p>\n
Sarup Sharma, DSP (PW-2), and Balwant Singh, (PW-4), the Investigating<\/p>\n
Officer, especially, when the case of the prosecution, was not corroborated<\/p>\n
through an independent source.          These discrepancies, certainly made the<\/p>\n
prosecution case doubtful.\n<\/p>\n
13.         In view of the above discussion, it is held that the judgment of<\/p>\n
conviction and the order of sentence, rendered by the Court below, are not<\/p>\n
based on the correct appreciation of evidence, and law, on the point. The trial<\/p>\n
Court did not take into consideration, the infirmities and lacunae, enumerated,<\/p>\n
in the aforesaid paragraphs. Had these infirmities and lacunae, been taken into<\/p>\n
consideration, by the trial Court, the result would have been different. The<\/p>\n
judgment of conviction, and the order of sentence, warrant interference, and are<\/p>\n
liable to be set aside.\n<\/p>\n
14.         For the reasons recorded, hereinbefore, the appeal is accepted. The<\/p>\n
judgment of conviction, and the order of sentence dated 1.4.1999, are set aside.<\/p>\n
The appellant shall stand acquitted of the charge, framed against him. If, he is<\/p>\n
on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall<\/p>\n
be set at liberty, at once, if not required in any other case.<\/p>\n
17.7.2008                                          (SHAM SUNDER)\nVimal                                                  JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Malkiat Singh Son Of Sadhu Singh vs The State Of Punjab on 17 July, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-202415","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nMalkiat Singh Son Of Sadhu Singh vs The State Of Punjab on 17 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/malkiat-singh-son-of-sadhu-singh-vs-the-state-of-punjab-on-17-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Malkiat Singh Son Of Sadhu Singh vs The State Of Punjab on 17 July, 2008 - 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