Punjab And Haryana High Court · 2010

Mr. Manish Deswal, Deputy Advocate General, Haryana T.P.S. MANN, J. The appellant had challenged, by way of the present appeal, the judgment and order dated 25/29.4.1998 passed by Additional Sessions Judge, Kurukshetra, whereby he was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as “the Act” and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year. According to the prosecution, on 14.6.1996, when ASI Rajinder Singh, alongwith three other police officials, crossed village Dunia Majra in Government Jeep No. HR05-3317, one Mahal Singh met him. In the meantime, the appellant was noticed coming from village Ajmatpur on the metalled road, carrying a plastic bag of white colour on Crl. Appeal 463-SB of 1998 -2- his shoulder, who on seeing the police jeep tried to slip and on suspicion, he was apprehended. The appellant was offered whether he wanted to be searched by the ASI himself, Gazetted Officer or a Magistrate after serving notice Ex.PA upon him, to which he replied that he be searched before a Gazetted Officer. Thereafter, Hazari Singh, DSP, Pehowa was summoned by way of V.T. Message, who alongwith his staff reached at the spot. As per his direction, the bag of the appellant was searched which was found to contain chura post, out of which, two samples of 100 grams each were separated and the residue was found to be 3 kgs. and 800 grams, which was sealed with the seal of 'JN'. DSP Hazari Singh also affixed his seal 'HS' over the said parcels. The seal of 'JN' after use was handed over to HC Jai Narain, whereas DSP retained his seal 'HS'. On the ruqa EX.PD sent through Constable Mangat Ram, FIR Ex.PD/1 was registered against the appellant at Police Station, Jhansa. The appellant, the witnesses and the case property were also produced before the SI/SHO Shamsher Singh, who also verified the facts from the witnesses and the accused and put his seal 'SS' on the residue as well as on the two sample pullandas and on sample seal. ASI Rajinder Singh prepared the rough site plan Ex.PE. Upon completion of investigation and presentation of challan followed by commitment of the case to the Court of Sessions, the appellant was charge sheeted under Section 15 of the Act to which he pleaded not guilty and claimed trial. Crl. Appeal 463-SB of 1998 -3- In support of its case, the prosecution examined PW1 HC Jai Narain, PW2 ASI Rajinder Singh, PW3 MHC Balbir Singh, PW4 Constable Balwan Singh, PW5 SHO Shamsher Singh and PW5 DSP Hazari Singh. When examined under Section 313 Cr.P.C., the appellant stated that he was falsely implicated in this case and nothing was recovered from him. In defence, he examined his father Ram Sarup as DW1 and Pritam Singh as DW2 After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court believed the prosecution case and convicted and sentenced the appellant, as mentioned above. Having heard counsel for the parties, this Court finds that though the police had associated Mehal Singh as an independent witness and in his presence the appellant was apprehended and the search of the bag carried by him on his shoulder led to recovery of 4 kgs. of poppy husk yet he was not examined as its witness. Infact, he was given up by the Public Prosecutor as having been won over. In this regard, there is Zimini order dated 13.1.1997 passed by the trial Court recording therein that three witnesses were being given up by the Public Prosecutor and the statement of the Public Prosecutor recorded separately on the same date that he was giving up Mehal Singh as having been won over. No basis was laid as to how the Public Prosecutor came to the conclusion Crl. Appeal 463-SB of 1998 -4- that Mehal Singh had been won over. No application had been submitted by the Investigator/police officer looking after the case from which it could be said that aforementioned Mehal Singh need not be examined as he was won over by the defence. It would have been appropriate for the Public Prosecutor to have produced Mehal Singh before the Court and get his statement recorded and in case said Mehal Singh was not to support the case of the prosecution then he could have been got declared hostile and subjected to cross-examine by the Public Prosecutor. Under these circumstances, non-examination of Mehal Singh, an independent witness and, that too, on the pretext of being won over which plea was not substantiated on the record, establishes that there is no independent corroboration to the prosecution case which is based on the testimony of only official witnesses. It is true that the official witnesses are as good witnesses as any independent witness and the conviction of the accused can be recorded on the basis of the testimonies of the official witnesses but their testimonies should be such as to inspire confidence of the Court. Section 57 of the Act required the Investigating Officer to send report of arrest and seizure to higher officer. Though the provisions of Section 57 of the Act are directory but non-compliance would cause prejudice to the appellant as the case was based on the evidence of official witnesses and independent witness was not examined. Reliance in this regard can be placed upon the judgment in the case of Bachittar Singh Vs. State of Crl. Appeal 463-SB of 1998 -5- Punjab, 2006(4) RCR (Crl.) 213. PW5 SI Shamsher Singh admitted in his cross-examination that he did not send any report in this case to the DSP or to the SP. Even PW2 ASI Rajinder Singh testified that no detailed information other than the FIR was sent to the senior officers. Even the presence of PW6 DSP Hazari Singh at the time of the recovery was doubtful. He testified that he had received the VT message in the office and though there was a register maintained qua receiving such like messages yet the VT message received in this case was not recorded therein. Even the wireless Operator did not record the same any where. He also did not know as to whether his driver had recorded the message in the log book or not. Therefore, it cannot be said with certainty that DSP Hazari Singh was present on being summoned by ASI Rajinder Singh and in his presence the contraband was recovered from the bag belonging to the appellant. In view of the above, there arises suspicion in the mind of the Court about the veracity of the prosecution case. Extending of benefit of doubt to the appellant would, thus, be in order. Resultantly, the appeal is accepted, impugned judgment of conviction and sentence is set-aside and the appellant is acquitted of the charge against him. The appellant is on bail. His bail bonds and surety bonds shall stand discharged. ( T.P.S.MANN ) Crl. Appeal 463-SB of 1998 -6- November 23, 2010 ajay-1 JUDGE Kumar-I Ajay 2013.08.22 15:09 I attest to the accuracy and integrity of this document Chandigarh