Baldev Singh vs State of Punjab

Virender Singh, J.

Baldev Singh son of Jit Singh was charged under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity the Act). He stands convicted for the said charge vide impugned judgment of Additional Sessions Judge, Sangrur dated 16.7.1991 and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac, in default of payment of fine to suffer further RI for one year. Aggrieved by the impugned judgment of conviction and sentence, he has preferred the present appeal.

In short, the case of the prosecution is that on 30.4.1988 SI Darshan Singh (PW1), who was at that time posted as ASI in police station Dhuri, alongwith Head Constable Amrik Singh (PW2) and other police officials was going from Dhuri towards Punawal. One Kheru Din Chowkidar was also joined by SI Darshan Singh. When the police party reached near the bus stand, Rajomajra in the area of Paidnikalan, the present appellant was seen sitting on five bags lying on a corner of the road. He tried to run away after noticing the police party. On suspicion, he was apprehended. In order to show the compliance of Section 50 of the Act, a notice was given to him. The appellant reposed confidence in ASI Darshan Singh and then the said five bags (Exs. P1 to P5) were searched. Each bag was found to contain 40 Kilograms of poppy husk. Out of each bag, one sample of 250 grams was separated. Thereafter all the samples as also the bags were duly sealed with the seal of ASI Darshan Singh bearing the inscription DS and taken into possession vide recovery memo. Ex. PA, attested by HC Amrik Singh, Constable Avtar Singh and Kheru Din Chowkidar. The seal after use was handed over to HC Amrik Singh. Ruqqa Ex. PB was sent to the police station on the basis of which formal FIR Ex. PB/1 was registered. After receipt of report Ex. PD of the Chemical Examiner, which indicated that the substance was poppy heads, the appellant was challaned.

The prosecution has examined SI Darshan Singh (PW1), who was ASI at the time of alleged recovery and HC Amrik Singh (PW2). However, Kheru Din Chowkidar was given up as being won by the appellant. Affidavits Exs. PE and PF of MHC Darshan Singh and Constable Harmesh Singh were also tendered into evidence besides the report Ex. PD of the Chemical Examiner.

The stand taken by the appellant was that since he had a dispute with the police, his house was raided and he was falsely implicated in this case.

However, no evidence was adduced by the appellant in his defence.

I have heard Mr. T.S. Sangha, learned counsel for the appellant and Mr. G.S. Bhandari, learned Deputy Advocate General, Punjab. With their assistance, I have perused the entire record.

Mr. Sangha has attacked the prosecution case from multi angles. To start with, he submits that no effort was made by SI Darshan Singh to join the independent witnesses inspite of the fact that the place of apprehension of the appellant is near the bus stand, where there was no dearth of independent witnesses. Dwelling upon his arguments, Mr. Sangha then contends that the so called independent witness namely Kheru Din Chowkidar joined by the Investigating officer has also not been produced. This lacuna, according to the learned counsel, creates doubt over the entire prosecution case.

The other limb of argument advanced by the learned counsel is that no report was made by ASI Darshan Singh to the higher authorities, which is a serious infirmity in the prosecution case.

The other attack made on the investigation is that there is a complete go bye to the provisions of Section 55 of the Act as ASI Darshan Singh did not deposit the case property with the officer incharge of the police station for its safe custody and straight way deposited it with MHC Darshan Singh. This can be termed as one of the basic infirmities knocking at the bottom.

The next weakness of the prosecution case which the learned counsel points out is that when the affidavits of MHC Darshan Singh and Constable Harmesh Singh Exs. PE and PF respectively were tendered by the Public Prosecutor in the Court, the said two witnesses were not present so as to afford an opportunity to the appellant to crossexamine him. It is then contended that the aforesaid affidavits were, in fact, prepared in the month of July, 1988 and the same were tendered in March, 1991 and furthermore these two affidavits were not even put to the appellant when he was examined under Section 313 Cr.P.C. This infirmity with regard to the link evidence has caused a substantial prejudice to the appellant, making the entire prosecution case doubtful, the learned counsel so contends. In support of his arguments, the learned counsel relies upon a latest decision of this Court rendered in Criminal Appeal No. 334SB of 1993 (Kapil Dev v. State of Punjab) : 2004(2) RCR(Crl.) 275 (P&H), decided on February 25, 2004 , in which while considering this very infirmity as one of the basic weaknesses of the prosecution case, the accused was acquitted.

Lastly, the learned counsel has also pointed out certain discrepancies in the statements of the official witnesses and submits that this weakness be also taken into account against the prosecution.

On the basis of the aforesaid contentions, the learned counsel prays for acquittal of the appellant.

The learned State counsel refuting the arguments advanced on behalf of the appellant submits that a very heavy recovery is involved in this case and there is no reason to disbelieve the official witnesses. He then contends that there may be certain infirmities with regard to the link evidence, but the same cannot be taken as a ground to reject the prosecution case especially when no prejudice is shown to have been caused to the appellant on account of these lacunae.

After hearing the rival submissions of both the sides, I am of the considered view that the prosecution has not been able to bring home guilt to the appellant and he deserves acquittal. My reasoning for arriving at the said conclusion is as under :

No doubt cases under the NDPS Act, if proved, have to be dealt with sternly but the prosecution has to prove the charge beyond any shadow of reasonable doubt, is the accepted principle of Criminal Jurisprudence. In the instant case, the prosecution has failed on this count.

At the very outset, it may be observed that the case of the prosecution suffers mainly on account of two infirmities. The first infirmity which goes to the root of the case is that the prosecution has failed to establish the link evidence. A close scrutiny of the record reveals that the affidavit Ex. PE of MHC Darshan Singh is dated 20.7.1988, whereas the affidavit Ex. PF of Constable Harmesh Singh is dated 26.7.1988. These two affidavits were tendered into evidence on 26.3.1991 on the statement of the Public Prosecutor. Both these witnesses are not present in Court on that day. For reference, the statement of the Additional Public Prosecutor is reproduced below :

"I tender into evidence report of the Chemical Examiner Ex. PD, affidavits Exhibits PE and PF of MHC Darshan Singh and Constable Harmesh Singh and close the case for the prosecution after giving up Khairu Din as having been won over by the accused.

R.O. A.C.

Addl. S.J.

26.3.1991."

From the aforesaid factual position, it is amply clear that MHC Darshan Singh and Constable Harmesh Singh, who had to prove the link evidence, were not present in Court for crossexamination and their affidavits prepared earlier were simply tendered into evidence without affording an opportunity to the appellant to put questions to them with regard to the link evidence.

The matter does not rest here. Another infirmity which knocks at the bottom is that the aforesaid two affidavits, which are important planks of link evidence, were not even put to the appellant when he was examined in terms of Section 313 of the Code of Criminal Procedure. A perusal of the statement under Section 313 Cr.P.C. reveals that the question put to him is with regard to the report Ex. PD of Chemical Examiner and the aforesaid two affidavits were not put at all. The resultant effect is that the report of the Chemical Examiner cannot be acted upon as the possibility of tampering with the sample, after seizure and before analysis, cannot be ruled out.

In Ramesh v. State of Haryana, 1998(1) RCR(Crl.) 146 , this Court held that the report of the Chemical Examiner cannot be read into evidence in the absence of link evidence as no question was put to the accused when examined under Section 313 Cr.P.C. that the sample was not tampered with while it was in custody of police.

In Sawant Ram v. State of Haryana, 2004(2) RCR(Crl.) 207 (P&H) : Criminal Appeal No. 97SB of 1989 decided on 16.1.2004 and Kapil Dev v. State of Punjab, Criminal Appeal No. 334SB of 1993 decided on 25.2.2004, this Court has considered the link evidence having not been put to the appellant under Section 313 Cr.P.C. as a basic infirmity. In the aforesaid two cases, the other judgments on the point, rendered by this Court were also relied upon.

The present case of the prosecution can be doubted on account of non compliance of Section 55 of the Act as well. Statement of SI Darshan Singh indicates that after completion of all formalities at the spot, including sending of ruqqa for registration of formal FIR, he on return to the police station deposited the case property with the seals intact with MHC Darshan Singh. A clever attempt has been made by SI Darshan Singh by showing that he was the senior police officer in the police station on that day, but could not reconcile the situation in his crossexamination when a specific question was put to him about the Incharge of the police station (Station House Officer). He stated that when he reached the police station at 515 PM and he did not know as to where the SHO had gone at that time. He further states that his (S.H.O.) residence was of course in the police station itself. He goes on to state that he stayed during the night in the police station but did not know as to when the SHO had come back in the police station that night and that he had tried to locate him in the police station, but was not available there. He then states that he did not look into the Daily Diary Report for locating the SI. However, he states that a roznamcha (D.D.R.) was prepared in this regard. He further states that he did not produce the case property before the SHO on the next day at 1200 noon when he meets him. He then states that he even did not send the wireless message to the Deputy Superintendent of Police, who was Senior Officer to the Station House Officer, whose residence was about 17/18 kilometres from Dhuri and even did not make an effort to produce the accused/appellant alongwith the case property before the DSP. No note has been made in the zimni about the factum of the Senior Officer, this witness has so admitted in his crossexamination. From this all, it can be safely said that there is a glaring noncompliance of Section 55 of the Act.

In Baba Budh Giri Chela v. State of Haryana, 1996(1) RCC 410, while dealing with Section 55 of the Act, this Court has gone to the extent of observing that merely signing some endorsement by the Incharge of the police station in this regard would not inspire confidence that there is compliance of Section 55 of the Act. In the instant case, even this is not the situation as the case property was straightaway deposited with MHC Darshan Singh of the police station and was never produced before the Incharge of the police station to verify the facts and to keep it in safe custody pending orders of the Magistrate.

In Thandi Ram v. State of Haryana, AIR 1999 Supreme Court Cases Weekly 468 : 1999(2) RCR(Crl.) 857 (SC) , the accused was acquitted for noncompliance of Section 55 of the Act observing that the conviction in such type of cases stands vitiated. Reference can also be made to another judgment of Hon''ble Apex court rendered in Gurbax Singh v. State of Haryana, 2001 SCC (Crl.) 426 : 2001(1) RCR(Crl.) 702 (SC) , in which there was noncompliance of Sections 52, 55 and 57 of the Act and finding the investigation faulty, the accused was acquitted. No doubt, all these provisions may be considered as directory but the noncompliance thereof can be fatal as well if the prejudice is caused to the accused. Stringent punishment is provided under the Act and it is the duty of the Court to see that the investigation does not fault at any stage. In such eventuality, it would not be safe to convict the accused at all.

In the instant case, in my considered view, when the aforesaid infirmities are considered collectively, it can be safely concluded that the prosecution has not been able to prove its case to the hilt against the appellant.

Since I am doubting the prosecution case on the aforesaid main weaknesses in it, I do not feel the necessity of entering into discussion regarding the remaining contentions raised by learned counsel for the appellant.

In view of the above referred discussion, the prosecution miserably fails to prove the charge against the appellant. Resultantly, the present appeal succeeds and the appellant is acquitted. His bail/surety bonds stand discharged forthwith.