Bahadur Singh vs The State of Haryana

Sham Sunder, J.—This appeal is directed against the judgment of conviction dated 21.07.2001 and the order of sentence dated

24.07.2001, rendered by the Court of Additional Sessions Judge, Sirsa, vide which it convicted the accused (now appellant), for the offence,

punishable u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the ''Act'' only) and sentenced him

to undergo RI for a period of 10 years, and to pay a fine of Rs. 1 lac, in default of payment of fine to undergo further rigorous imprisonment, for a

period of one year, for having been found in possession of 1 KG 100 grams opium milk, which now falls within the ambit of non-commercial

quantity, without any permit or licence.

The facts, in brief, are that on 13.03.2000 ASI Balwant Singh, along- with some other police officials, apprehended the accused at Vitas Karma

Chowk, Sirsa, when he was moving under suspicious circumstances, with a bag, resting on his shoulder. The search of the bag, being carried by

him, was conducted, in the presence of Mr. Mahinder Singh Malik, Dy. Superintendent of Police (HQ), who was called to the spot, by sending a

message, as a result whereof, 1 KG 100 grams opium milk, was recovered therefrom. A sample of 100 grams of opium milk, was taken out of the

recovered contraband, and the remaining opium milk, was kept in a separate container. The sample and the container, containing the remaining

opium milk, 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, the FIR was recorded. The site plan was prepared. The accused was arrested. The statements of the witnesses

were recorded. After the completion of investigation, the accused was challaned.

On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge u/s 18 of the Act,

was framed against the accused, to which he pleaded not guilty and claimed judicial trial.

The prosecution, in support of its case, examined Rattan Singh, H.C., (PW- 1), Ramji Lal, C., (PW-2), Mohinder Singh Malik, Dy. Supt. of

Police, (PW-3), Balwant Singh, ASI, (PW-4) and Chander Singh, Inspector (PW- 5). Thereafter, the Public Prosecutor for the State, closed the

prosecution evidence.

The statement of the accused, u/s 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances,

appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that the contraband was lying abandoned, at

the bus stop, which was planted against him. It was further stated by him, that the Dy. Superintendent of Police, was neither informed by the

Investigating Officer, nor he did come to the spot. It was further stated by him, that the signatures of the Deputy Superintendent of Police, were

obtained in his office subsequently.

5-A. In his defence, the accused examined Gurtej Singh, DW1. Thereafter, he closed the defence evidence.

After hearing the 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, as stated hereinbefore.

Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the

appellant.

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

The Counsel for the appellant, at the very outset, vehemently, contended that though the alleged recovery was effected at a very busy and

crowded place, surrounded by a number of shops, yet neither an independent witness was joined, nor an effort, was made by the Investigating

Officer, to join him. He further submitted that, on account of this reason, the prosecution case became doubtful. The submission of the Counsel for

the appellant, in this regard, appears to be correct. Balwant Singh, ASI,(PW-4), during the course of cross- examination, admitted that a number

of shops, were surrounding the place of recovery. It was further stated by him, during the course of crossexamination that the auto-rickshaws and

the rickshaws are generally available, at the place of recovery. He further stated that he asked 2/4 public men, to witness the recovery, but they

pleaded their helplessness. He could not tell their names. He further stated that this fact was not mentioned by him either in the ruqa or in any other

document, prepared at the spot. Under these circumstances, it can be said that, no effort, was actually made by the Investigating Officer, to join an

independent witness, despite availability. Had he made an effort, to join an independent witness, in the search and seizure, and had he refused to

join the same, then this fact must have been recorded, either in the case diary, or in the documents, prepared at the spot. Since, no mention of this

fact, is found in the documents, referred to above, it appears that the explanation, furnished by the Investigating Officer, was just with a view to

cover up his lapse. The Investigating Officer, thus, did not join an independent witness, intentionally and deliberately. Since, the minimum stringent

punishment is provided for the offences, punishable under the Act, and according to the provisions of Section 51 of the Act, the provisions of the

Code of Criminal Procedure, relating to search, seizure and arrest shall apply to the extent the same are not inconsistent with the provisions of the

Act, it was imperative, on the part of the Investigating Officer, to join an independent witness, at the time of the alleged search, and seizure or at

least to make a genuine, sincere and real effort, to join such a witness. 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. That being so, it was imperative for Crl. Appeal No. 812-SB of

2001 7 the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute, and failure to do so, must be viewed

with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of statutory

safeguards, committed by the authorized officer, during search and seizure operation and may also undermine respect of law. That cannot be

permitted. In the instant case, the alleged recovery being minor, now falling within the ambit of non-commercial quantity, and chances of plantation

of the same, against the accused, could not be ruled out, it became the bounden duty of the Investigating Officer, to observe all the safeguards,

provided under the Act, at the time of search and seizure. 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 noncorroboration 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 v. Bhupinder Singh, 2001 (01) RCR (Crl.) 356., a

Division Bench of this Court, held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the

recovery was effected from a busy locality. In State of Punjab v. Ram Chand, 2001 (1) RCR (Crl.) 817., a Division Bench of this Court, held that

it was imperative to join an independent witness, to vouchsafe the fair investigation. On account of non-joining of an independent witness, it was

held that the accused was entitled to be given the benefit of doubt. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to

the facts of the instant case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the

prosecution, became highly doubtful. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, miscarriage of

justice occasioned.

It was next submitted by the Counsel for the appellant, that though the alleged recovery, in this case, was effected on 13.03.2000, yet the

sample was sent to the office of the Forensic Science Laboratory on 18.04.2000, and, as such, there was delay of one month and five days. He

further submitted that the delay of one month and five days, in sending the sample, to the office of the Forensic Science Laboratory, remained

unexplained. He further submitted that, under these circumstances, the possibility of tampering with the sample parcel, could not be ruled out,

especially, when the seals, remained in possession of the police officials, in whose possession the case property, and the sample parcel, remained.

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 said delay, in sending the sample to the office of the Forensic Science Laboratory. 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 Forensic Science

Laboratory. Since, the sample was allegedly sent to the Laboratory, after one month and five days, it could not be safely held that the same

remained un-tampered with, especially when no other trust-worthy evidence was produced to prove otherwise. This fact casts a shadow of doubt,

on the case of the prosecution. In Gian Singh v. State of Punjab, 2006 (2) RCR (Cri) 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 v. Gurmail Singh, 2005 (2)

RCR (Cri) 58., (Supreme Court), the contraband remained in the Malkhana for 20 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 v. State of Haryana, 2007 (3) RCR (Cri) 452., the sample was sent to the office of the Chemical Examiner after 72

hours, 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 Forensic Science Laboratory. 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 present case. The delay of one month and five days, in sending the sample to the office of

the Forensic Science Laboratory, 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.

It was next submitted by the Counsel for the appellant, that the sample impression of the seals, was not deposited, in the office of the Forensic

Science Laboratory, as a result whereof, it was deprived of comparing the seals on the sample, with the specimen seal. He further submitted that,

under these circumstances, it could not be said that the sample was not tampered with, until it reached the office of the Forensic Science

Laboratory. The submission of the Counsel for the appellant, in this regard, appears to be correct. Ex. PA is the affidavit of Rattan Singh, HC,

who took the sample parcel to the office of the Forensic Science Laboratory. It is evident from his affidavit Ex.PA that he was neither handed over

the sample impression of the seals, nor did he deposit the same, in the Laboratory. In this view of the matter, there was no material with the office

of the Forensic Science Laboratory, to compare the seals on the sample parcel, with the specimen seals, so as to ascertain as to whether, the same

tallied with the seals, allegedly affixed on the same, at the time of alleged recovery. The other evidence produced by the prosecution, in this case,

to prove the link evidence, is not only deficient, but also unreliable. Non-strict proof, by the prosecution, that the sample was not tampered with,

until it was deposited, in the office of the Forensic Science Laboratory, must prove fatal to the case of the prosecution. In these circumstances, the

possibility of tampering with the sample parcel could not be ruled out. In State of Rajasthan v. 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 whereof, miscarriage of justice occasioned.

It was next submitted by the Counsel for the appellant that the statements of Rattan Lal, HC, PW1, with whom the case property and the

sample parcel, were allegedly deposited, and Ramji Lal, Constable, PW-2, who allegedly took the sample parcel to the office of the Forensic

Science Laboratory and Chander Singh, the then SHO, were not recorded, u/s 161 Cr.P.C., by the Investigating Officer. Under these

circumstances, the case of the prosecution became doubtful. In Padam Singh v. State of Haryana, 1997 (4) RCR (Criminal) 172. (Division Bench)

(P&H), the statement of the DSP, who allegedly reached the spot, at the time of search and seizure, u/s 161 Cr.P.C., was not recorded. The

Division Bench, in the aforesaid authority, under these circumstances, held that nonrecording of the statement of such an important witness, was a

serious irregularity, which considerably prejudiced the accused, and may make his testimony tainted. Ultimately, on this ground, and, on other

grounds, the conviction was set aside. On account of non- recording of the statements of Rattan Lal, HC, Ramji Lal, Constable and Chander

Singh, the then SHO, material witnesses, u/s 161 Cr.P.C., the accused was deprived of confronting them, with their previous statements, so as to

shatter the veracity of their testimonies made in the Court. Thus, it was a serious irregularity, committed by the Investigating Officer. This caused a

serious prejudice to the accused, in his defence, and made the statements of the material witnesses, referred to above, tainted. The principle of law,

laid down, in the aforesaid authority, is, thus, fully applicable to the facts of the present case. Non-recording of the statements of Rattan Lal, HC,

Ramji Lal, C., and Chander Singh, the then SHO, by the Investigating Officer, must prove fatal to the case of the prosecution. The trial Court did

not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned.

It was next submitted by the Counsel for the appellant that, there was violation of the provisions of Section 55 of the Act, as the case property

and the sample were not produced before the Magistrate. Section 55 of the Act, lays down that an Officer Incharge of the Police Station shall take

charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized, under this Act, within the local area of that Police

Station, and which may be delivered to him, and shall allow any officer who may accompany such articles, to the Police Station, or who may be

deputed for the purpose, to affix his seal, to such articles, or to take samples of, and from them, and all samples, so taken, shall also be sealed with

a seal of the Officer-in- charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property

and the samples are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that

actually a specific quantity of the contraband, was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in

nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the

Investigating Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the search and

seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the

Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and

intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh v. State

of Haryana, 2001 (1) RCR (Crl.) 702 (S.C.)., it was held that non-compliance of the provisions of Sections 52, 55 and 57, which are, no doubt,

directory and violation thereof, would not ipso-facto vitiate the trial or conviction. However, the Investigating Officer cannot totally ignore these

provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of

law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, since the Investigating Officer,

intentionally and deliberately breached the provisions of Section 55, he could not say that the provisions of Section 55 being directory, in nature, he

was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are

directory, in nature, would be flouted with impunity, by him. Compliance of the said provision, is an indicator, towards the reasonable, fair and just

procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and

intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Courts seem to condone acts of

violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating

agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast

a doubt on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, it fell in error in

recording conviction and awarding sentence.

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 trial Court, 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 u/s 18 of the Act. The judgment of conviction, and the

order of sentence are, thus, liable to be set aside.

For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 21.07.2001, and the order of sentence

dated 24.07.2001, 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.