Criminal Appeal No. 1160-SB of 2005 v. State of Punjab

Ms. Anju Arora, Advocate, for the appellant, in Criminal Appeal No. 1231-SB of 2005. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This judgement shall dispose of Criminal Appeal No. 1160-SB of 2005, filed by Natha, Criminal Appeal No. 1212-SB of 2005, filed by Sukhdev Singh alias Dev, and, Criminal Appeal No. 1231-SB of 2005, filed by Lakhwinder Singh @ Lakha, accused (now appellants), against the judgment of conviction and the order of sentence, dated 02.04.05, rendered by the Judge, Special Court, Jalandhar, vide which, he convicted them, for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the Act only), and sentenced them to undergo Rigorous Imprisonment for a period of ten years each, and to pay a fine of Rs. 1 lac each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 1 ½ years each, Criminal Appeal No. 1160-SB of 2005 Criminal Appeal No. 1212-SB of 2005 Criminal Appeal No. 1231-SB of 2005 3 for having been found in possession of 180 kgs of poppy-husk, without any permit or licence, which falls within the ambit of commercial quantity.

2. The facts, in brief, are that, on 27.12.02, Davinder Singh, Assistant Sub Inspector, alongwith Vijay Singh, Head Constable and other Police officials, was holding a picket at 'T' point of village Talwandi Butain, where, a secret information was received, that the accused, were indulging in the sale of poppy husk. The Police party was further informed that the accused were carrying a huge quantity of poppy husk, in a white colour Maruti Car, bearing No. DDB-6493, and going towards village Kakkar Kalan, and if a picket was held, at Punnian Brick Kiln, they could be apprehended. A wireless message was sent to Sarwan Singh, Deputy Superintendent of Police, to reach the spot. Thereafter, the Police party, proceeded towards the pre- disclosed place. On the way, one Balwinder Singh, met the Police party, who was joined as a witness. The Police party, held a picket, at the pre-disclosed place. The Deputy Superintendent of Police also reached the spot. At about 5.15 PM, a car, was seen coming, from the side of 'T' point Punnian. The car was got stopped. On the stopping the car, its driver and the person, sitting by his side, tried to slip away, but they were overpowered on suspicion. The driver of the car disclosed his name as Natha Ram son of Kura Ram, whereas, the other person disclosed his name as Lakhwinder Singh @ Lakha. The third person, who was sitting between them (Natha Ram and Lakhwinder Singh @ Criminal Appeal No. 1160-SB of 2005 Criminal Appeal No. 1212-SB of 2005 Criminal Appeal No. 1231-SB of 2005 4 Lakha), disclosed his name as Sukhdev Singh @ Sukha. On search of the car, in the presence of Sarwan Singh, Deputy Superintendent of Police, ten plastic bags, containing 180 kgs of poppy husk, were recovered. Two samples of 250 gms poppy husk, were separated from each bag, and the remaining poppy husk, was kept therein. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. On personal search of Sukhdev Singh, Natha Ram and Lakhwinder Singh, accused, Rs. 60/-, 75/- and 70/-, respectively, were also recovered and taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the first information report, was registered. Rough site plan of the place of recovery was prepared. The accused, were arrested. After the completion of investigation, they were challaned.

3. On their appearance, in the Court, the accused, were supplied the copies of documents, relied upon by the prosecution.

4. Charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty, and claimed judicial trial.

5. The prosecution, in support of its case, examined Ram Pal, Head Constable (PW1), Pritam Singh (PW2), Davinder Singh, Assistant Sub Inspector (PW3), the Investigating Officer, Manjit Singh, Constable-II (PW4), and, Sarwan Singh, Superintendent of Police, Excise and Taxation (PW5), a witness to the recovery. Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution Criminal Appeal No. 1160-SB of 2005 Criminal Appeal No. 1212-SB of 2005 Criminal Appeal No. 1231-SB of 2005 evidence. 5

6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Sukhdev Singh, accused, stated that he was innocent and falsely implicated, in the instant case. It was further stated by him that nothing was recovered from him. It was further stated by him that he was picked up by the Police, from his house, on 26.12.02, at the instance of Davinder Singh son of Ravinder Singh of his village.

7. Lakhwinder Singh @ Lakha, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that he was innocent and had been falsely implicated, in the instant case.

8. Natha Ram, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, he was picked up by the Police, from his house at Navan Pind Akalian, on 26.12.02, on the plea, that he had a fight with Santokh Singh son of Dharam Singh, resident of Navan Pind Akalian, and, as such, he was required for compromise. It was further stated by him that, on the next day, he was falsely implicated, in the instant case, on account of party faction. It was further stated by him that the prosecution story, was unreliable, on the face value as, in a Maruti Car, ten bags of poppy husk could not be adjusted with three persons travelling therein. It was further stated by him that he was innocent. The accused, however, examined Gian Singh Criminal Appeal No. 1160-SB of 2005 Criminal Appeal No. 1212-SB of 2005 Criminal Appeal No. 1231-SB of 2005 6 (DW1), Darshan Lal, Head Constable (DW2), and, Malkiat Singh (DW3), in their defence. Thereafter, they closed their defence evidence.

9. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.

10. Feeling aggrieved, the instant appeals, have been filed by the accused/appellants.

11. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

12. The Counsel for the appellants, at the very outset, submitted that the case of the prosecution was highly improbable. They further submitted that it was not at all imaginable, that three persons with 10 bags, each containing 18 kgs poppy husk, could travel, in a Maruti car, the size whereof, is very small. They further submitted that 10 bags, each containing 18 kgs poppy husk, could not by any stretch of imagination be adjusted, in the Maruti car, having very small size. The submission of the Counsel for the appellants, in this regard, appears to be correct. The poppy husk is fluffy and not in solid form. 10 bags, each containing 18 kgs poppy husk, need certainly a much larger space, which is not available in a Maruti car, having very small size and small space. It was not a truck or a big vehicle, in which, 10 bags, each containing 18 bags poppy husk, could be adjusted, and three persons, could also travel alongwith the same. It, therefore, clearly goes Criminal Appeal No. 1160-SB of 2005 Criminal Appeal No. 1212-SB of 2005 Criminal Appeal No. 1231-SB of 2005 7 to prove, that the alleged recovery, was not effected, in the manner, deposed to by the prosecution witnesses, or one of the witnesses was not present, at the time of the alleged recovery. The alleged recovery, was apparently either planted or allegedly effected, in some other manner, but, with a view to involve the accused, in the instant case, it was shown to have been effected, from the car, in question. The submission of the Counsel for the appellants, in this regard, being correct, is accepted.

13. It was next submitted by the Counsel for the appellants, that Balwinder Singh, independent witness, though joined, 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 Additional Public Prosecutor, for the State, without any rhyme or reason. They further submitted that non- examination of Balwinder Singh, independent witness, cast a cloud of doubt, on the prosecution story. The submission of the Counsel for the appellants, in this regard, appears to be correct. 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 wanted to examine, and which witness, he did not want to examine. However, he can exercise such a discretion, in a judicious manner. In the instant case, the Additional Public Prosecutor, for the State, exercised the discretion, in giving up Balwinder Singh, independent witness, as won over, in an arbitrary and capricious manner. There was no material, or data with the Additional Public Prosecutor, for the State, to come to the Criminal Appeal No. 1160-SB of 2005 Criminal Appeal No. 1212-SB of 2005 Criminal Appeal No. 1231-SB of 2005 8 conclusion that actually, Balwinder Singh, independent witness, had been won over by the accused. Had there been any cogent material or data with him, that such a witness, had been won over by the accused, the matter would have been different. Had Balawinder 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 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 Criminal Appeal No. 1160-SB of 2005 Criminal Appeal No. 1212-SB of 2005 Criminal Appeal No. 1231-SB of 2005 9 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 Additional Public Prosecutor, in giving up Balwinder Singh, as won over, as stated above, was not bonafide. 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.

14. It was next submitted by the Counsel for the appellants, that the sample impression of the seals, was not deposited with the Chemical Examiner, at the time of depositing the sample parcels. They further submitted that, in the absence of deposit of the sample impression of the seals, the Chemical Examiner, was deprived of the opportunity of verifying, as to whether, the seals, on the sample parcels, were the same, as were allegedly affixed thereon, at the time of the alleged recovery. The submission of the Counsel for the appellants, in this regard, appears to be correct. Ram Pal, Moharrir Head Constable, tendered his affidavit PA, testifying therein, that the case property and the sample parcels were deposited with him. He did not state even a single word, in his affidavit PA, that he handed over the sample impression of the seals to Manjit Singh, Constable, for deposit, in the office of the Chemical Examiner, alongwith the sample parcels. Criminal Appeal No. 1160-SB of 2005 Criminal Appeal No. 1212-SB of 2005 Criminal Appeal No. 1231-SB of 2005 10 Similarly, Manjit Singh, Constable-II, PW4, did not state even a single word, in his statement, that he was handed over the sample impression of the seals, alongwith the sample parcels, and that, he deposited the same, in the office of the Chemical Examiner. Under these circumstances, it is not known, as to how, in the report of the Chemical Examiner, it was recorded, that the seals tallied with the sample impression. Such a certificate, therefore, does not carry any weight. The possibility of tampering with the sample parcels, therefore, could not be ruled out. 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.

15. It was next submitted by the Counsel for the appellants, that though the alleged recovery, was effected, on 27.12.02, yet the sample parcels, were sent, to the office of the Chemical Examiner, on 02.01.03 i.e. after six days, which remained unexplained, and, as such, the possibility of tampering with the same, until, the same reached the office of the Chemical Examiner, could not be ruled out especially when the seal throughout, remained in the possession of the Police official. The submission of the Counsel for the appellants, in this regard, appears to be correct. It is, no doubt, true that if the other evidence, produced by the prosecution to prove the completion of link Criminal Appeal No. 1160-SB of 2005 Criminal Appeal No. 1212-SB of 2005 Criminal Appeal No. 1231-SB of 2005 11 evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the samples to the Chemical Examiner, pales into insignificance. However, if the other evidence, is not found to be creditworthy, then delay certainly proves fatal to the prosecution case. In this case, the other evidence, produced by the prosecution, to prove the completion of link evidence, is neither reliable nor trustworthy. It is for the prosecution, to prove affirmatively, that right from the date of seizure, until the samples were sent to the Chemical Examiner, the same were not tampered with. If the prosecution fails to prove this factum, then its case is bound to dwindle down. In State of Rajasthan Vs. Gurmail Singh, 2005(2) RCR (Crl.), 58, S.C., the contraband, was kept in the Malkhana for 15 days. The Malkhana register was not produced to prove that it was so kept, till the sample was handed over to the Constable, for deposit in the laboratory. The other evidence, produced was also found to be un-reliable. In these circumstances, it was held that the prosecution miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Examiner. In State of Punjab Vs. Jaswant Singh, 2002(3), RCR (Crl.), 54 (DB) (P&H), there was a delay of 21 days, in sending the sample to the laboratory. In these circumstances, it was held that it must prove fatal to the prosecution case, especially when admittedly no independent witness was joined, in the recovery proceedings, and seal used for sealing the sample, remained with the Police Official, during the period. In Gian singh Vs. State of Punjab, Criminal Appeal No. 1160-SB of 2005 Criminal Appeal No. 1212-SB of 2005 Criminal Appeal No. 1231-SB of 2005 12 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 Rajesh Jagdamba Avasthi Vs. State of Goa, 2005(1), RCR (Criminal), 406 (S.C.), charas was recovered from the possession of the accused, and sealed in two packets. The packets and the seal remained, in the custody of the same person. In these circumstances, it was held that there was every possibility of the seized substance, being tampered with. The conviction of the accused was set aside, inter-alia, on this ground. 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. Since the possibility of tampering with the case property, and the samples, could not be ruled out, in the instant case, a serious doubt, on account of this reason, was cast on the prosecution case. The submission of the Counsel for the appellants, being correct is accepted.

17. No other point, was urged, by the Counsel for the parties. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, Criminal Appeal No. 1160-SB of 2005 Criminal Appeal No. 1212-SB of 2005 Criminal Appeal No. 1231-SB of 2005 13 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 15 of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside.

18. For the reasons recorded, hereinbefore, the aforesaid appeals, are accepted. The judgment of conviction and the order of sentence, rendered by the trial Court, are set aside. The appellants, shall stand acquitted of the charge, framed against them. If, they are on bail, they shall stand discharged of their bail bonds. If, they are in custody, they shall be set at liberty, at once, if not required, in any other case.

19. The concerned Chief Judicial Magistrate, shall comply with the judgment, forthwith, and send the compliance report, within a period of 15 days, from the date of receipt of a copy of the same.

16.02.2010 Amodh (SHAM SUNDER) JUDGE