Jarnail Singh and Another vs State of Punjab

Sham Sunder, J.—This appeal is directed against the judgment of conviction and the order of sentence dated 11.7.1997, rendered by the Court of Addl. Sessions Judge, Sangrur, vide which it convicted the accused/appellant Jarnail Singh, for the offence punishable u/s 15 of the Narcotic Drugs &. Physchotropic Substances Act, 1985 (hereinafter called as ''the Act'' only) and sentenced him to undergo rigorous imprisonment for a period often years, and to pay a fine of Rs. 1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of three year.

The facts, in brief, are that on 9.5.1994, Guljar Singh, ASI, Incharge Police Post Gharachon accompanied by other officials was on patrol duty from Village Nagra to Village Akbar Pur. At about 7.30 P.M. when the police party reached the canal minor bridge, in the area of Village Nagra, the accused was seen coming from the side of Village Sanghreri along with canal Bank. On seeking the police party, the accused tried to slip away, but, were apprehended on suspicion. The accused were carrying two gunny bags. Two samples were separated from each bag, and the remaining poppy husk, in each bag, came to be 17 kgs. The samples, and the remaining poppy husk were converted into parcels, sealed with the seal bearing impression ''GS'' and taken into possession vide memo Ex. P.C. duly attested by the witnesses. The seal after use was handed over to Darshan Singh, Head Constable. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Site plan of the place of recovery was prepared. The accused was arrested. After the completion of investigation, the accused was challaned.

On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge u/s 15 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial.

The prosecution, in support of its case, examined Gulzar Singh, ASI, PW-1, Gurjit Singh, ASI, PW-2, Satnam Singh, Head Constable, PW-3, Nachhatar Singh, Constable, PW-4. Affidavits Ex. PF of MHC Narinder Singh and EX. PG of Nachhatar Singh were tendered into evidence. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.

The statement of the accused u/s 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, produced no evidence, in his defence.

After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated herein before. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant.

I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.

The Counsel for the appellant, at the very outset, contended that there was a delay of 8 days, in sending the sample, as the alleged recovery was effected in this case on 9.5.1994 whereas, the sample of the poppy straw, was sent to the office of the Forensic Science Laboratory, Madhuban on 17.5.1994. No Explanation, whatsoever, was furnished, as to why the sample was not, sent to the office of the Forensic Science Laboratory, Madhuban, for about 8 days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. In Gian Singh v. State of Punjab 2006 (2) R.C.R.611, there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. Under these circumstances, it was held that the possibility of tempering with the sample, could not be ruled out, and the link evidence was incomplete. Ultimately, the appellant was acquitted in that case. On account of this infirmity, the case of the prosecution become doubtful.

It was next contended by the Counsel for the appellants, that the accused were deprived of their valuable and indefeasible right of cross-examination, as Narinder Singh, MHC, who tendered into evidence, his affidavit was never offered for cross-examination. In the absence of producing him for cross-examination, his affidavit could not be said to be legally admissible into evidence and the same was required to be ignored. In Gian Singh''s case (supra), the affidavits of police Constables, were tendered into evidence, but they were not produced, in the Court for cross-examination. In these circumstances, it was held that the link evidence was missing, which was a material infirmity, and, ultimately, the conviction was set aside. In Jai Singh v. State of Haryana 1995 (3) R.C.R. 627, the affidavits of the Police Constable and the HC were tendered into evidence, but both of them, were not kept present, in the Court, for cross-examination. In these circumstances, it was held that the affidavits could not be read into evidence and, as such, the link evidence was incomplete, and the case of the prosecution was bound to fail. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. Under these circumstances, the affidavit of Narinder Singh, without offering him for cross-examination, by the accused, could not be read into evidence. As such, the link evidence, being incomplete, the appellant/accused was liable to be acquitted. The trial Court, in my opinion, was wrong in holding that the link evidence was complete.

The recovery in this case was effected from a thoroughfare, but no independent witness was joined, as stated by Gulzar Singh, ASI. Since, the alleged recovery was effected from a thoroughfare, a number of independent witnesses, could be available. In case, they were not available, they could be summoned from the village, to witness the search and seizure. Had any explanation been furnished, by the Investigating Officer, as to what, prevented him from joining an independent witness, the matter would have been considered, in the light thereof. However, in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. It is, no doubt, true that the evidence of the official witnesses cannot be distrusted and disbelieved, merely on account of the reason that no independent witness was joined and examined. However, when in a particular case, it is proved that the alleged recovery was effected, from a thoroughfare, and the independent witness were available, but no effort was made to join them, certainly a doubt is cast on the prosecution story. Had any independent witness been joined, in the peculiar facts and circumstances of this case, his evidence would have certainly lent genuineness to the case of the prosecution, which is solely based on the evidence of the official witnesses. The prosecution case also became doubtful on account of this reason.

The judgment of conviction and the order of sentence, rendered by the trial Court are, thus, not based on the correct appreciation of evidence, and law, on the point. The same warrant interference, and are liable to be set aside.

For the reasons recorded, herein before, the appeal is accepted. The judgment of conviction, and the order of sentence dated 11.7.1997, are set aside. The appellants shall stand acquitted of the charge framed against them. They are discharged of the bail bonds.