Fateh Singh vs State of Haryana

Virender Singh, J.—Appellant Fateh Singh has suffered conviction u/s 15 of the Narcotic Drugs and Psychotropic Substances Act

(hereinafter to be called the ''Act'') vide impugned judgment of learned Sessions Judge, Sirsa and has been sentenced to undergo rigorous

imprisonment for 5 years and to pay a fine of Rs.50,000/- and in default of payment of fine to suffer further RI for one year.

The case of the prosecution in brief is that on 23.2.2004, ASI Ranjit Singh (P W- 3) of police station Rania along with some other police

officials was present on the bridge of a canal situated on Banni Surjewala road in the area of village Bani. He noticed the appellant coming from the

side of Surjewala carrying a plastic katta (bag) on his right shoulder. On seeing the police party, the appellant turned back and started walking

briskly. He was apprehended. Since ASI Ranjit Singh Suspected that the appellant was carrying some contraband in the bag, he was served with a

notice (PW3/A), apprising him of his right of being searched before a gazetted officer or a Magistrate. He replied to the said notice vide Exhibit

PW-3/B, reposing his faith in ASI Ranjit Singh for taking search of the bag. Thereafter the bag was searched. It was found containing poppy

straw. Two samples of 100 grams each were separated from it. The residue was then weighed and it was found to be 24.800 grams. Both the

samples and the remainder were converted into separate parcels and were separately with the seal impression ''RS'' (of Ranjit Singh). The seal

after use was handed over to HC Dharam Vir (PW-4) Specimen seal impression was also prepared. The case property and the sample parceled

were taken into possession vide recovery memo. Ex.P3/C. A ruqqa (Ex.PW-1/B) was sent to the police station Rania through HC Ram Murti on

the basis of which formal FIR (Exhibit PW1/C) was registered. The rough site plan (Ex.PW3/D) was prepared at the spot. The appellant was

arrested vide memo. Ex.PW3/E. A report u/s 57 of the Act was also prepared. The appellant along with the case property, sample parcels and the

witness was produced before Jagdish Kumar SI/SHO (PW-5) of the police station Rania, who also verified the investigation. He also affixed his

own seal bearing seal impression ''JK'' on parcel of the case property and the sample parcels. He also made his endorsement on the report

prepared u/s 57 of the Act and sent the same to deputy Superintendent of police, Elnabad. It was then initialed by DSP Ronki Ram vide PW-5/B.

Sample was sent for analysis and on receipt of report of the Chemical Examiner, the appellant was challaned to face trial. He was consequently

charged for Section 15 of the Act.

Besides tendering the forensic Science Laboratory report, the prosecution has examined five witness to prove its case.

The stand taken by the appellant, as emerging from his statement recorded u/s 313 of the Code of Criminal procedure is of false implication at

the instance of one Bhangi Ram, MLA as he had supported the rival candidate in the elections. In his defence, he produced one Banwari Lal Head

Constable (DW-1) of police station Rania, who on the basis of Daily Diary Register had stated that on 23.2.2004 Jagdish Kumar, Sub inspector

had returned to police station at 4-5 PM and as per entry No.20 of that day, ASI Ranjit Singh had deposited the case property with the MHC and

put the accused in the police lock up. According to his witness, there is no entry in the Daily diary Register with regard to verification proceedings

of SI/SHO Jagdish Kumar.

On appreciation of entire evidence the trial Court has convicted and sentenced the appellant for the aforesaid charge. Hence this appeal.

I have heard Mr.S.K.Jain learned counsel for the appellant and Mr. Manmohan Sikka, learned Assistant Advocate General, Haryana. With

their assistance, I have also gone through the entire evidence minutely.

Mr.Jain wants to demolish the case of the prosecution submitting that no independent witness was joined by ASI Ranjit Singh at the time of

conducting search. According to him, the recovery is effected at 12-00 noon at a busy place and thus it was bounden duty of the Investigating

Officer to join some independent witness to give sanctity to the search. The learned counsel then submits that during his cross examination. ASI

Ranjit Singh has admitted that the place of recovery was at a distance of 1-1/2 kilometers from Bus Stand Bani, certain persons were also

available at the spot and the explanation given by him for non-joining of independent witness is not appealing, therefore, the case of the prosecution

falls inter alia on this ground. In support of his contentions, the learned counsel places reliance upon a latest decision of this Court in Hawa Singh v.

State of Haiyana, 2006(1) CCC 174 (P&H): 2005(4) RCR (Cri) 292.

The other ground on which the learned counsel attacks the case of the prosecution is that upto the stage of dispatch of the sample parcels to the

office of Forensic Science Laboratory, the seal remained with the police officials and therefore, possibility of the sealed parcels being tempered

with cannot be ruled out. He points out that the seal was handed over to HC Dharam Vir (PW-4), who was under the command of ASI Ranjit

Singh and thus the possibility of the substance being changed and the parcel being re-sealed cannot be ruled out. In support of his contentions, the

learned counsel has placed reliance upon the judgement of this Court rendered in Baldev Singh V, State of Punjab, 2005(2) CCC 29 (P&H):

2005 (1) RCR (Criminal) 823.

Mr.Jain lastly points out certain discrepancies in the statements of the witnesses to the recovery but asks for acquittal primarily on the aforesaid

flaws.

The learned State counsel has controverted the submissions, contending that no prejudice is shown to have been caused to the appellant even

if no independents witness was joined at the time of effecting recovery, because now a days no one from the public is ready to cooperate with the

prosecution agency in such type of cases. He further contends that even otherwise a reasonable explanation has been given by the Investigating

Officer in this regard. The learned State counsel then submits that the other discrepancies pointed out counsel for the petitioner are not so material

as to demolish the case of the prosecution in totality and thus the conviction as recorded, deserves to be upheld.

After giving my thoughtful considerations to the rival submissions of either side, I am of the view that the prosecution has not been able to

prove its case to the hilt and as such the appellant deserves acquittal. I shall be meeting the submissions of learned counsel for the appellant

collectively.

ASI Ranjit Singh (PW-3) has categorically deposed that the place of recovery is a thorough fare. People were passing through the said place.

They were asked by him to join the investigation, but they showed their inability to join. He then states that he did not ask their names, not did he

take any action against them. The explanation put fourth by the investigating Officer is not at all convincing. The argument of learned State counsel

in this regard is not 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 the 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. In my view this lacuna dents the case of the

prosecution and it can be comfortably inferred that in fact, no attempt was made by the Investigating Officer to join the independent witness for the

reasons best known to him. The decision in Hawa Singh''s case (supra) in this regard strengthens the case of the appellant.

I am not extending the benefit of doubt to the appellant merely on the aforesaid flaw, but have also taken into account another material infirmity

as well, which weakens the case of the prosecution. It is with regard to the link evidence. The case of the prosecution is that the seal after use was

entrusted to HC Dharam Vir (PW-4). He has also admitted this fact in his substantive statement. Affidavit of Constable Suresh Kumar (P W-2),

which is Ex. PW-2/A, reflects that the sample was handed over to him on 4.3.2004 for depositing it with the Forensic Science Laboratory for

analysis. No doubt from the evidence on record, I find no infirmity with regard to compliance of Section 55 of the Act, as is evident from the

statement of Jai Kumar, SHO (PW-5), but the fact remains that the seal which had been used for the purposes of sealing the case property,

remained throughout with the police official, who was working under ASI Ranjit Singh, the Investigating Officer. Therefore, the possibility of the

seal being tempered with, the substance being changed and the packet containing the sample being re-sealed, cannot be ruled out. This is a

safeguard which has to be maintained in order to give sanctity to the search. From the stage of effecting the alleged recovery till the sample reaches

the hands of concerned official of Forensic Science Laboratory, It is the duty of the prosecution to prove beyond reasonable shadow of doubt that

the sample remained in tact, In the absence of such safeguards, this Court can presume the possibility of tempering with the sample. The judgement

in Baldev Singh''s case (supra) squarely covers the submissions made by Mr. Jain in this regard. The case of the prosecution thus comes under the

clouds of doubt and the appellant deserves the relief of acquittal inter alia on this weakness as well.

I do not feel the necessity of commenting the discrepancies pointed out in the statements of prosecution witness for the reason that I am

doubting the prosecution case on the aforesaid material flaws.

The net result is that the case of the prosecution is not free from doubts and as such while extending benefit of doubt, the appellant deserves

acquittal.

Resultantly the instant appeal is allowed. The conviction of the appellant as recorded by the learned trial Court is hereby set-aside and he is

acquitted of the charge.

The appellant is stated to be in custody. He shall be released forth with if not required in any other case.

All the concerned quarters be informed without any delay.