Bhoolan vs State of Punjab

Dr. Sarojnei Saksena, J.

Accused/appellant has preferred this appeal against judgment delivered in Sessions Case No. 396 of 1986 by Shri Iqbal Singh, Additional Sessions Judge, Ludhiana, wherein, he has convicted him under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and is sentenced to undergo rigorous imprisonment for ten years and with a fine of Rs. 1,00,000/ and in default of payment of fine, to further undergo rigorous imprisonment for six months.

Adumbrated facts of the case are that on 17.7.1986, Assistant Sub Inspector Chanan Singh along with E.I. G.L. Verma and other officials, were going on patrol duty from Booth Grah to Mand. When they were 100 yards away from the Mill, they saw the accused sitting on four bags. Search was taken of these bags. Each bag contained 35 Kgs of poppy husk. 250 gms of poppy husk was taken out from each bag. The samples and four bags were duly sealed with the seal of ''GLV''. Recovery memo was drawn. Ruqa was sent to Police Station. First Information Report was recorded. After the usual investigation at the spot, the police party returned to the police station. ASI Chanan Singh deposited the sample and all the four bags with Moharrar Head Constable of the Police Station. These samples were sent to the Analyst. The Analyst After analysis gave the report that samples contained poppy husk. On these facts, charge was framed against the accusedappellant. During trial, the prosecution examined ER. G.L. Verma as PW1 and Assistant Sub Inspector Chanan Singh as PW2. Affidavits of MHC Manjit Singh Ex. PW3 and Constable Hartej Singh Ex. PW4 were tendered in evidence.

Accused denied the guilt. He pleaded that on that date, the police officials raided the factory where he was earlier working. They recovered 17 bags of poppy husk from the factory. The police by letting of the owner of the factory falsely implicated him for keeping in his possession these four bags of poppy husk. He has not adduced any evidence in defence.

The trial Court finding the ocular evidence worthy of credence relied on their testimony and convicted the appellant of the said offence and sentenced him accordingly.

The appellant has submitted his jail appeal, later on Shri J.S. Dhillon appeared as AmicusCuriae and helped the Court by advancing arguments on behalf of the appellant He had assailed the impugned judgment only on two counts. First contention is that though three independent witnesses were present at the time of recovery but they were not examined, simply on the ground that they had been won over. It is settled legal position that even if an important witness is won over by the accused, the prosecution is duty bound to examine him in the Court.

According to him, on this count alone, any adverse inference is to be drawn against the prosecution. The second contention is that there is no link evidence in this case. PW2 Assistant Sub Inspector Chanan Singh has deposed that after seizing the contraband from the possession of the accused, he prepared four samples by taking out 250 gram of poppy husk from each bag. All the four bags and all the four samples was scaled by him by the seal of ''GLV''. Seizure memo was drawn by him and, thereafter, he brought the contraband along with the accused to the police station. He deposited the case property with MHC Manjit Singh. At that time, Station House Officer was not present at the Police Station and Head Constable Moharrar was the Incharge. He has further testified that on receipt of the report of the Chemical Examiner Ex.PD, challan was filed in the Court. During trial, on 18.11.1986 affidavits of MHC Manjit Singh Ex.PW.3 and that of Hartej Singh Ex.PW.4 were tendered in evidence by the Additional PP. These witnesses were not kept present in the Court. Accused was not given any opportunity to cross examine these witnesses. He further pointed out that even these affidavits are not in accordance with Section 297(2) of the Code of Criminal Procedure. The verification clause is not in accordance with law. To buttress his contention, he has relied on Om Parkash v. State of Haryana, 1994(2) C.C. Cases 534. Elaborating his argument further, he contended that this link evidence is not put to the accused while he was examined under Section 313 Code of Criminal Procedure. Only one question was put to him to the effect that the case property was deposited with MHC Manjit Singh in the Police Station and, thereafter, questioned with regard to the report of the Chemical Examiner. Thus, relying on Shyam Lal v. State of Haryana, 1993(2) Recent CR 403 , he contended that as the prosecution suffers from these lacunas and accused is not examined with regard to the link evidence under Section 313 Cr.P.C., affidavits are required to be excluded from consideration and thus report of the Chemical Examiner cannot be relied on for convicting the accused.

Learned Assistant Advocate General, Punjab, was unable to support the judgment so far as the above contentions are concerned.

From the evidence on record as well as from the impugned judgment, it is evident that at the time of seizure, Bachan Singh, Santokh Singh and Malkiat Singh were present. They have been given up only on the count that they have been won over by the defence. Even if they have been won over by the defence, it was incumbent upon the prosecution to examine these witnesses as they were the independent witnesses to the alleged search and seizure. Thus, it is apparent that deliberately independent witnesses were withheld. On this count, adverse inference is to be drawn against the prosecution that had these witnesses been examined, they would not have corroborated the statements of E.I. G.L. Verma and ASI Chanan Singh.

A bare glance at these affidavits Exs. PW3 and PW4 leaves no doubt that the deponents have not stated separately as to which facts are within their own knowledge and what facts are believed to be true by them on reasonable belief. In both these affidavits, the deponents have simply stated that the above referred facts are true to the best of their knowledge and belief. Thus, these affidavits being not in accordance with law, cannot be considered to prove the facts which the prosecution intends to prove by tendering this link evidence.

Further, on 18.11.1986, these affidavits were tendered in evidence. In the order sheet of the lower Court, there is no mention that these affidavits are tendered in evidence but in the statement of Addl. P.P. It is mentioned that these affidavits are tendered in evidence by Additional PP and, thereafter, he closed the prosecution evidence. On this date, these deponents were not kept present in the Court and no opportunity was given to the accused to crossexamine these witnesses. On this count also, this link evidence cannot be used against the accused. Further, from a plain perusal of the statement recorded under Section 313 Code of Criminal Procedure, it is evident that the contents of these affidavits were not put to the accused while he was examined under this provision. Only one question was put to him that the case property was deposited with the MHC Manjit Singh in the Police Station. He has denied it. Since this link evidence is not in accordance with law and also due to the above lacunas, it cannot be considered. The resultant effect is that the report of the Public Analyst Ex.PD cannot be acted upon. In an identical situation in Shyam Lal''s case (supra) affidavits were excluded from consideration and it was held that Chemical Examiner report cannot be read into evidence.

During arguments, the learned counsel lastly contended that samples were tampered with as this link evidence is not in accordance with law and is not put to the accused under Section 313 Code of Criminal Procedure, serious prejudice is being caused to the accused.

The above contention is forceful. The possibility of tampering with the sample is not ruled out by the prosecution. The affidavits produced in evidence are not in accordance with law. The deponents were not kept present in the Court, thereby no opportunity was given to the accused to crossexamine these deponents and lastly when accused was examined under Section 313 Code of Criminal Procedure, this link evidence was not put to the accused. Only one question was put that the sample was deposited with MHC Manjit Singh which he denied. Thus it is obvious that not only serious prejudice has been caused to the accused but this link evidence cannot be considered on account of facts enumerated above and resultantly the report of the Chemical Analyst Ex.PD cannot be read in evidence. Thus, there is no evidence on record to prove that on 17.7.1986 accused was in possession of the aforesaid contraband articles.

No other point is pressed before me.

Consequently, appeal is allowed, the conviction and sentence of the appellant is set aside. He is acquitted of the said charge. If the appellant is not required in any other case, he be released forthwith. Fine, if deposited, be returned to him.