Birbal Dass vs State of Punjab

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 18.3.1999 passed by the court of Additional Sessions Judge, Bathinda who convicted the appellant Shri Birbal Dass under section 18 of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. one lac or in default of payment of fine he was directed to undergo R.I. for a period of one year.

The brief facts of the case are that on 29.8.1993 at about mid day, S.I. Barjinder Kumar, the then S.H.O., P.S. Balianwali accompanied by Constable Shingara Singh and some other police officials left Police Station, Balianwali for village Khokhar, Sooch etc. by a Government Vehicle in connection with patrolling and had also joined in his police party one Sukhpal Singh son of Sarwan Singh at about 2.00 p.m. When the police party reached near Dera Babu Kalu in the area of village Khokhar the accused was spotted coming from the opposite direction on a Bajaj Chetak Scooter No. PIB2340 and on seeing the police party he tried to give slip. On the basis of the suspicion he was apprehended by S.I. Barjinder Kumar and on checking the diggi of the scooter, opium was found lying in the same. The thanedar inquired from the appellant as to whether he wanted to give search in the presence of a Gazetted Officer or a Magistrate. Accordingly, the accused stated that he wanted to give search in the presence of some Gazetted Officer as a result of which D.S.P. Sukhdev Singh who was a Gazetted Officer was called at the spot and in this presence search was conducted and opium was found. On weighment it came to 1 kilograms and 10 grams. S.I. Barjinder Kumar separated 10 grams of opium by way of sample and the same was sealed with the seal bearing inscription BK. The remaining opium was separately sealed with the same seal. Specimen of the seal used was separately prepared and the entire case property was taken into possession in the presence of Sukhpal Singh, DSP Sukhdev Singh and Constable Shingara Singh. The seal after use was handed over to Constable Shingara Singh. From the personal search of the accused a sum of Rs. 20/ was recovered. This currency was taken into possession. The grounds of arrest were supplied to the accused. The accused could not produce any permit or licence for the possession of the same. Resultantly, ruqa Ex.PE was sent to the Police Station Balianwali for the registration of the case on the basis of which formal F.I.R. Ex.PC/1 was registered. The sample of the opium was sent to the office of the Chemical Examiner who vide report Ex.PJ declared the contents to be of opium and on completion of the investigation of the case, challan was submitted in the Court of Area Magistrate who supplied copies of the documents to the accused as required under the law and vide commitment order dated 9.7.1994 committed the accused to the Court of Sessions. Vide orders dated 12.8.1994, the accused was chargesheeted under section 18 of the N.D.P.S. Act on the allegations that on 29.8.1993 in the revenue limits of Village Khokhar, he was found in possession of one kilogram of opium without any valid licence or permit and thereby committed an offence punishable under section 18 of the N.D.P.S. Act. The charge was read over and explained to the accused to which he pleaded not guilty and claimed a trial.

In order to prove the charge, prosecution examined PW.1 S.I. Barjinder Kumar, PW.2 Constable Jarnail Singh who gave his statement on affidavit Ex.PH, PW.3 Head Constable Major Singh and Shri Sukhdev Singh D.S.P. as PW.4. Constable Shingara Singh was given up being unnecessary. Similarly, Darshan Singh was also given up being unnecessary.

On the closure of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. The accused denied those circumstances and stated that he has been falsely implicated in this case. Precisely, his defence was as follows :

"I am innocent. I have been falsely implicated in this case. On that day, I was coming to Nathana for making payment of scooter purchased by him from Nathana a few days earlier. But the Police intercepted me at Naka and grabbed an amount of Rs. 6,000/ from me and when I insisted for the return of the amount, I was taken to Police Station and after detaining there for some time involved in this case falsely."

In defence, the accused did not lead any evidence.

The learned Trial Court believed the story of the prosecution and rejected the defence version and convicted and sentenced the appellant in the manner stated above. Feeling aggrieved against his conviction and sentence, the present appeal.

I have heard Shri P.S. Ghuman, Advocate appearing on behalf of the appellant and Shri S.S. Randhawa, D.A.G., Punjab on behalf of the State and with their assistance have gone through the record of this case.

Two submissions were raised by the learned counsel appearing on behalf of the appellants in order to secure acquittal in this case. The frontal argument raised by the learned counsel was that the link evidence in this case was missing. He submitted that the case property at one stage passed to the hands of Gamdur Singh M.H.C. of Police Station Balianwali but he has not been examined nor his affidavit has been produced on the record to show that so long as the case property remained in his possession it was not tampered with neither by him nor he allowed any body else to tamper with the same. On the contrary Mr. Randhawa submitted that in this case the case property was produced before the Magistrate with seals intact and the case property remained in possession of the Investigating Officer who was incharge of the Police Station and no prejudice has been caused to the appellant in case Shri Gamdur Singh Head Constable has not been examined. I do not subscribe to the arguments raised by the learned counsel for the respondent. In Padam Singh v. State of Haryana, 1997(4) Recent Criminal Reports 172 the Hon''ble Division Bench of this Court had held that the prosecution has to prove affirmatively that right from the stage of seizure till it reached the hands of Chemical Analyst, the case property has not been tampered with and that there was no possibility to change the same with other. In this judgment reliance was placed upon the decision of the Hon''ble Supreme Court reported as AIR 1980 SC 1314, State of Rajasthan v. Daulat Ram. In 1998(2) RCR 659, Sukhwinder Singh v. State of Punjab this court held that the accused has right to know that the case property was in safe custody from the stage of seizure till it reached hands of Chemical Examiner. In the present case the things had happened in the following manner.

The recovery was effected on 29.8.1993. It was sealed with the seal of S.I. Barjinder Kumar bearing inscription BK. The seal was not handed over to independent witness but it was handed over to Constable Shingara Singh. The case property was not resealed with the seal of any body else though search was taken and recovery was effected in the presence of D.S.P. Sukhdev Singh. Thereafter, this case property was handed over to Head Constable Major Singh by S.I. Barjinder Kumar on 30.8.1993 in order to produce it before the Illaqa Magistrate. Sample was not produced before the Illaqa Magistrate. The Illaqa Magistrate vide endorsement Ex.PG/1 ordered for the deposit of the case property in judicial Malkhana. When the case property was taken to MHC Judicial Malkhana, he made report that there was no place to keep the case property in the Malkhana and accordingly the same was deposited by Head Constable Major Singh with M.H.C. Gamdur Singh of Police Station Balianwali meaning thereby that at one point of time the case property remained in safe custody of H.C. Gamdur Singh. In these circumstances, it was obligatory on the part of the prosecution to examine Gamdur Singh who was supposed to make a statement that so long as the case property and the sample remained with him he did not tamper with the same nor he allowed any body else to do the same. This was vital link which is missing in this case. It further appears that the case property was again entrusted to S.I. Barjinder Kumar and it remained under his possession and power upto 8.9.1993 when it was handed over to Shri Jarnail Singh Constable who gave his statement on affidavit Ex.PF. This Constable handed over the sample in the office of the Chemical Examiner on 9.9.1993. As I have stated above the vital link in the shape of the statement of Gamdur Singh is missing and therefore possibility cannot be ruled out that the case property might have been tampered with when it was in the custody of Gamdur Singh. Moreover, when the case property reached in the office of the Chemical Examiner, it had only seal bearing inscription BK. There was no second seal and thus it can be said that the directory provisions of Section 55 of the N.D.P.S. Act have also not been complied with and noncompliance of these provisions has caused serious prejudice to the accused about the sanctity of the case property.

The second argument of the learned counsel appearing on behalf of the appellant is with regard to noncompliance of Section 57 of the N.D.P.S. Act which too is directory. Resultantly, this court is of the opinion that the prosecution has not completed the chain of the evidence so far as handling of the case property is concerned and there is violation of provisions of Sections 55 and 57 as a result of which serious prejudice has been caused to the appellant who has been able to cause reasonable dent in the story of prosecution. In such cases, onus lies heavily on the prosecution to prove the charge by leading cogent, reliable and satisfactory evidence which is missing in this case.

Resultantly, I accept this appeal and set aside the impugned judgment and order of the Trial Court and acquit the appellant of the charge framed against him. The appellant is in custody and is serving the sentence in Central Jail, Bathinda. Let intimation about acceptance of this appeal besent to Superintendent, Central Jail, Bathinda so that appellant may be released forthwith if not wanted or convicted in any other case.