Crl.Appeal No.2215-SB of 2004 v. Mr. Rajiv Malhotra, Addl.A.G., Haryana

11/12.8.2004 passed by the Special Judge, Ambala, whereby in case FIR No.253 dated 4.7.2002 at Police Station Baldev Nagar, under Sections 15, 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, the accused-appellant has been convicted. Under Section 18 of the Act, he has been 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 R.I. For two years; under Section 20, to undergo rigorous imprisonment for two years and to pay a fine of Rs.2000/- and in default of payment of fine, to further undergo RI for one month and under Section 15, to undergo rigorous imprisonment for three months. All the substantive sentences were however ordered to run concurrently. In brief the facts of the case are that on 4.7.2002, a police party headed by ASI Shakti Singh was present at Patiala Chowk, Ambala City, in connection with patrol duty and general checking when one Rinku met them and when the police party was having conversation with said Rinku, Crl.Appeal No.2215-SB of 2004 2 accused Tarlochan Singh was noticed coming from the side of Baldev Nagar and on seeing the police party, he retraced his steps with fast pace but was apprehended. He was told that since there was suspicion regarding carrying of some contraband by him, his search was to be made and accordingly, after serving him a notice, he was asked to give option whether he wanted to be searched before gazetted officer of a Magistrate, to which he opted to be searched in the presence of gazetted officer. Accordingly, a wireless message was sent to DSP Udey Shankar to reach at the spot and he reached there accordingly. On the directions of said DSP, search of the accused was made and he was found carrying 4.250 kg. Opium, 190 grams Charas and 800 grams of poppy straw. Two samples of 50 grams each were taken out from the opium, two samples of 10 grams each were taken out of Charas and two samples of 100 grams each were taken out from the poppy straw. Thereafter, the samples as well as residue were converted into parcels and were sealed with seal 'SS' and 'US' and the case property was taken into police possession, whereupon the present case came to be registered against the accused and he was accordingly arrested. On completion of investigation and certain formalities, the accused was challaned under Sections 15, 18 and 20 of the Act ibid whereafter charge under the said Sections was framed by the trial Court to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined PW-1 HC Ram Kumar, PW-2 S.K.Nagpal, Sr. Scientific Officer, FSL, PW-3 Inspector Harbans Singh, PW-4 EHC Dharam Pal, PW-5 HC Bhupinder Singh, PW-6 DSP Udey Shankar, PW-7 ASI Shakti Singh and PW-8 Constable Parbhu Ram and after tendering into evidence the report Exhibit PB of the Forensic Science Laboratory, Madhuban (Karnal), closed its evidence. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded by putting him incriminating evidence qua him to which he pleaded innocence and false implication. He pleaded that one Chaman Lal, Constable, who was his neighbourer, and was posted in CIA Staff in the year 2002, had borrowed a sum of Rs.8000/- from him for his personal need in October, 2001, and when said Chaman Lal did not return his money, he had made a complaint to SP Ambala and SHO PS Ambala City. When Chaman Lal was summoned by SHO, he returned a sum of Crl.Appeal No.2215-SB of 2004 3 Rs.3000/- to him but did not return the balance amount in spite of giving an assurance. Thereafter, when he again demanded the balance amount from Chaman Lal, he got him implicated falsely in the presence and that his signatures were obtained on blank papers and he was further forced to give in writing regarding having received full and final settlement of the lent money. In defence evidence, he examined DW-1 Kulbir Singh. The learned Special Judge, Ambala, upon appreciation of evidence adduced on record, vide the above stated impugned judgment and order held the accused appellant guilty and convicted and sentenced him in the manner indicated above. Hence the present appeal. I have heard counsel for the parties. The provisions of Section 100 Cr.P.C. would be applicable to arrest and search in the case relating to N.D.P.S. Act. In a large number of cases, this Court as also various High Courts have emphasized the need of conducting search in the presence of an independent witness. The law requires that the search should normally be conducted in the presence of independent witness(es) to inspire confidence in the mind of the Court. 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 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. However, in the instant case, it is evident from the statement of PW-7 ASI Shakti Singh that the search and seizure had been effected near Patiala Chowk, Ambala City, which is a busy place. No doubt, one Rinku is shown to have been joined but he has not been examined on the plea that he has been won over by the accused. When the prosecution alleges that a material witness has been won over by the accused, it is still necessary that such witness must be examined to reveal the truth. This has been held in State of Punjab v. Surjit Singh, 2008(1) RCR(Criminal) 266 (P&H) and has been followed in Basir Mohammad v. State of Haryana,2008(3) RCR(Criminal) 244. In the instant case, it has come in the statement of PW-6 DSP Uday Shankar Crl.Appeal No.2215-SB of 2004 4 that though public witnesses were already present there and were passing by but none stopped during the search and seizure. To the contrary, it has come in the statement of ASI Shakti Singh that though numerous persons were going from the said place and he tried his best to join them as witnesses but they refused. This explanation is not at all convincing for the reason that no effort was made by the Investigating Officer to even know the names of the persons who had refused to join as witnesses. Legally he could take action against them. By giving the prosecution some latitude in this regard, the Investigating Officer could record their names at least so as to convince this Court about sanctity of the search. However, in absence of it, it can comfortably be inferred that in fact, no such attempt was made by the Investigating Officer to join the independent witnesses for the reasons best known to him. In State of Punjab v. Bhupinder Singh, 2001(1) RCR (Criminal) 356, this Court held the case of the prosecution to be doubtful on account of non-joining of an independent witness, though recovery was effected from a busy locality. In State of Punjab v. Ram Chand 2001(1) RCR(Criminal) 817, it was held that it was imperative to join an independent witness, to vouchsafe the fair investigation and on account of non-joining of independent witness, the accused was entitled to be given the benefit of doubt. Bhupinder Singh's and Ram Chand's cases(supra) have been duly followed in Dharambir v. The State of Haryana, 2008(4) RCR (Criminal) 40. In Hawa Singh v. State of Haryana, 2005(4) RCR (Criminal) 292, recovery of contraband was effected near the bus stand. As all the persons refused to join and it was not shown as to who were those persons who had refused to be witnesses, it was held that the testimony of the official witnesses cannot be relied upon and the conviction was set aside. Hawa Singh's case(supra) has been duly followed in Amarjit Singh v. State of Haryana 2008(3) RCR(Criminal) 502. In Bhola Singh v. State of Punjab, 2005(2) RCR(Criminal) 520, this Court has held that CFSL Form No. 29 should be prepared by the Investigating Officer at the spot and be deposited in the Malkhana along with sealed contrabands. Where the seals remained with the police after use and the CFSL form was neither prepared on the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case. Filling up of CFSL form at the spot is a very valuable safeguard to ensure that the Crl.Appeal No.2215-SB of 2004 5 seal sample is not tampered with till its analysis by the Forensic Science Laboratory. However, in the instant case, PW-7 ASI Shakti Singh no where states that CFSL form was filled or deposited in the Malkhana nor Head Constable Ram Kumar, say so who was then MHC. Add to this, PW- 3 Inspector Harbans Singh who was then SHO and before whom the entire substance of the contraband had been produced by the Investigating Officer, himself stated that in order to verify whether the parcels contained opium and other contraband or not, he had broke open the seals and put his seal, he though when recalled for further examination, took a somersault stating that he never broke open the seals, which is only an after-thought. The seal was thus, with the police. It need not be emphasized that this Court in the case of Baldev Singh v. State of Punjab, 2005(1) RCR(Criminal) 823 (P&H), has held that till the case property is dispatched to the office of the Forensic Science Laboratory, these seals should not be made available to the prosecuting Agency and in the absence of such a safeguard, the possibility of the seal being tampered with, substance being changed and the container being re-sealed cannot be ruled out. This kind of safeguard is, however, missing in the present case. There is another staggering circumstance against the prosecution. It is itself the case of the prosecution that the entire search and seizure had been conducted in the presence of PW-6 DSP Uday Shankar. This is apparent from the statements of PW-6 DSP Uday Shankar and PW-7 ASI Shakti Singh. In the instant case, though the recovery was from the bag and as such, Section 50 of the Act ibid is not applicable but since the prosecution claims to have complied with Section 50 of the Act while giving an offer to accused by the Investigating Officer about his legal right to be searched either in the presence of a Magistrate of gazetted Officer and upon his option to be searched in the presence of gazetted officer, PW-6 DSP Uday Shankar came in but this version has been completely shattered by PW-5 HC Bhupinder Singh. He was also a recovery witness. He has admitted in cross-examination that when the accused was apprehended, the personal search of the accused was taken by the SHO and Charas, opium and poppy husk was recovered. The DSP thereafter had reached the spot after 20 minutes. Two things are apparent from his statement; firstly, that the accused was also personally searched and secondly, the recovery had Crl.Appeal No.2215-SB of 2004 6 been effected prior to the arrival of the DSP, which on the face of it is in contravention of the provisions of Section 50 of the Act ibid. There is another dent in the case of the prosecution. There was difference of weight of contraband substance allegedly recovered than what was received by the Forensic Science Laboratory, Madhuban. In the instant case, it is evident from the statement of PW-7 ASI Shakti Singh that from the opium, two samples of 50 grams each were separated and sent to the Laboratory but as per report of the FSL, Madhuban, Exhibit PB, sample weighed 52.500 grams which leads to the inference that what had been recovered, was not sent to the Forensic Science Laboratory or vice-versa. The discrepancy in the weight of the sample is fatal to the case of the prosecution as held in Bhaiyan @ Shiv Murti v. State of Rajasthan, 2004 (4) Recent Criminal Reports 31 followed in Ram Sarup v. State of Haryana, 2006(1) RCR(Criminal) 52. In view of the discussion above and the cumulative effect of the infirmities, the prosecution has failed to prove the charge against the appellant beyond reasonable doubt. The present appeal is accordingly allowed. The conviction and sentence awarded to the appellant is, therefore, set aside and he stands acquitted of the charge. The bail bonds and surety bonds, if any furnished in the trial Court, shall stand discharged. November 16, 2010 JS ( ARVIND KUMAR ) JUDGE