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 (PW-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 Kgs. Both the samples and the remainder were converted into separate parcels and were separately sealed 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 parcels were taken into possession vide recovery memo Ex.P3/C. A Ruqqa (Ex.PW-1/B) was sent to the police station Rama 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 witnesses was produced before Jagdish Kumar SI/SHO (PW-5) of 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, Elanabad. 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 witnesses 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 (DW1) 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 4-05 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 the police lock up. According to this 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 has convicted and sentenced the appellant for the aforesaid charge. Hence, this appeal.

I have heard Mr. S.K. Jain, learned 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 bounded 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 Haryana, 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 judgment of this Court rendered in Baldev Singh v. State of Punjab, 2005 (1) RCR(Cri) 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 independent 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 by 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 thoroughfare. 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, nor 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 or 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 H.C. Dharm Vir (PW-4). He has also admitted this fact in his substantive statement. Affidavit of Constable Suresh Kumar (PW-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 intact. In the absence of such safeguards, this Court can presume the possibility of tempering with the sample. The judgment 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 upon the discrepancies pointed out in the statements of prosecution witnesses 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.

Appeal allowed.