Joginder Singh vs State of Haryana

P.K. Jain, J.

This appeal is directed against the judgment/order dated January 30, 1996 passed by the Additional Sessions Judge, Ambala whereby the appellant has been convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and sentenced to undergo rigorous imprisonment for a period of 10 years and also to pay a fine of Rs. 1,00,000/ and in default of payment of fine to undergo further imprisonment for a period of two years.

The facts leading to this appeal are that on March 20, 1995, SI Khushal Singh along with his other companions was present at Railway Station, Jagadhri, in connection with routine patrol duty. At about 9.42 a.m. train No. 311UP came from Saharanpur side and stopped at platform No. 3. Ashok Kumar (P.W. 1) was joined in the police party. Then SI Khushal Singh along with others entered a compartment where the appellant was found lying on the upper seat of the cabin with a bag under his head. On enquiry, the appellant disclosed that the bag contained cattlefeed. On conducting the search the bag was found to contain 14 Kgs. of chura post. Two samples weighing 100 grams were separated. The samples as well as the remaining chura post were converted into sealed parcels with the seal of ''SKS'' and the seal after use was handed over to Ashok Kumar (P.W. 1). A ruqa was sent to the Police Station, on the basis of which formal first information report (Exhibit PE/1) was recorded. The accused as well as the case property were produced before the S.H.O. Police Station GRP, Ambala Cantt., who after enquiring the facts put his own seal of ''KD'' on the parcels. The case property was deposited with the moharrir Malkhanna. The sample parcel was sent to the office of the Forensic Science Laboratory, Madhuban. On receipt of the report (Exhibit PG) and after completing the investigation, a chargesheet was filed against the appellant.

A charge under Section 15 of the Act was framed against the appellant which he denied and claimed trial.

In support of this case, the prosecution examined 3 witnesses; namely, Ashok Kumar (P.W. 1), H.C. Pardeep Kumar and S.I. Khushal Singh. Affidavit (Exhibit PA) of MHC Hori Lal and affidavit (Exhibit PB) of Constable Kehar Singh and the report of the Chemical Examiner (Exhibit PG) were tendered in evidence.

In his examination under Section 313 of the Code of Criminal Procedure (for short called ''the Code'') the appellant denied the allegations of the prosecution and pleaded false implication. He did not produce any evidence in his defence.

On appraisal of the evidence produced on the record, the Additional Sessions Judge, Ambala, found the appellant to be guilty of an offence under Section 15 of the Act, and convicted and sentenced him as stated above. Hence this appeal.

I have heard the learned counsel of the parties and have gone through the record of the trial Court with their active help.

Mrs. K.B. Jain, Advocate, learned counsel for the appellant, has assailed the conviction of the appellant on the ground that the provisions of Section 50 of the Act were not complied with before conducting the alleged search. While referring to the testimony of Ashok Kumar (P.W. 1), the learned counsel has argued that it was not a case of chance recovery and the Investigating Officer did express his suspicion that the appellant was carrying some intoxicating substance in his bag.

On the other hand Mr. Hemen Aggarwal, Advocate while appearing on behalf of the State of Haryana, has argued that as per the testimony of SI Khushal Singh (P.W. 3), it is clear that the police party had entered the railway coach for making routine checkup and during the course thereof, it came to light that the petitioner was carrying chura post in his bag. It is, thus, argued that there was no prior information with the police that the appellant was carrying any narcotic drug or psychotropic substance with him.

According to the prosecution case itself, Ashok Kumar (P.W. 1) is an independent public person who was joined with the police party before entering the railway coach in question. This witness has categorically admitted in his crossexamination that immediately after entering the coach the SubInspector of Police had expressed his suspicion to the appellant that he was in possession of intoxicating substance. HC Pradeep Kumar (P.W. 2) was another member of the Police party. In his crossexamination he has expressed his ignorance if the SubInspector had told the appellant that he had suspicion that the bag which the appellant was carrying was containing some intoxicating substance. From a combined reading of the testimony of these two witnesses, the only inference is that SI Khushal Singh (P.W. 3) had expressed his suspicion to the appellant that the latter was having some intoxicating substance in his bag, and this was not a case of chance recovery.

It is not disputed that in the above eventuality SI Khushal Singh was bound to comply with the provision of Section 50 of the Act and to inform the appellant that if he so desired, he could be searched before a Gazetted Officer or a Magistrate. It is also not disputed that the provisions of this Section are mandatory in nature and the noncompliance thereof in itself is enough to strike at the root of the prosecution case. This view finds affirmation in a well known judgment of the Apex Court rendered in State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : 1994(3) SCC 299 . In a subsequent judgment rendered in Saiyad Mohd. Saiyad Umar Saiyad and others v. The State of Gujarat, 1995(2) Recent Criminal Reports 388 : JT 1995(3) SC 489 , their Lordships of the Supreme Court while approving its views in the earlier judgment in Balbir Singh''s case (supra) held that if the provision of Section 50 of the Act have not been complied with, the necessary conclusion would be that the prosecution has not been able to prove that the accused was in possession of the offending article. Admittedly, in this case SI Khushal Singh (P.W. 3) never informed the appellant that if he so desired he could be searched before a Magistrate or a Gazetted Officer. In other words the provisions of Section 50 of the Act were not complied with before conducting the alleged search of the bag alleged to be possessed by the appellant. Noncompliance of the said provision in itself is fatal to the prosecution case.

Then the learned counsel for the appellant has assailed the order of conviction on the ground that the prosecution has failed to produce the link evidence to establish that the sample parcel was not tampered with by anybody from the moment it was prepared and handed over to the Officer Incharge of the Police Station till the time it was delivered in the office of Forensic Science Laboratory, Haryana. According to the prosecution case SI Khushal Singh had produced the accused as well as the case property including the sealed sample parcels before SI Krishan Lal SHO, Police Station G.R.P., Ambala Cantt., who had affixed his own seals with initials of ''KL'' on all the three parcels, verified the facts and directed him to continue with further investigation, and the case property was deposited with the Moharrir Malkhana. It is further case of the prosecution that Sh. Hori Lal was the Moharrir Malkhana on that day when the case property was deposited with him and thereafter he had sent the sealed sample parcel to the office of the Forensic Science Laboratory, Haryana, through Constable Kehar Singh. The prosecution has tendered an affidavit (Exhibit P.A.) sworn by MHC Hori Lal and another affidavit (Exhibbit PB) sworn by Constable Kehar Singh.

The question is whether there is any link evidence on the record to establish that the sample parcel was not tampered with by anybody from the moment it was deposited with the Moharir Malkhana till it reached the hands of Chemical Examiner. The prosecution has not examined SI Krishan Lal, the then SHO of Police Station GRP, Ambala Cantt., who is alleged to have sealed the case property and got the same deposited in the Malkhana through SI Khushal Singh. He cannot be said to be a formal witness at all. He was the main witness to prove that as an Officer Incharge of the Police Station, the accused as well as the case property were produced before him, that he had affixed has own seal on the sample parcel and thereafter the case property was deposited in the Malkhana on his direction through SI Khushal Singh. There is no explanation on the record as to why SI Khushal Singh who was a material witness, has not been examined at the trial.

Admittedly, Moharrir Malkhana Hori Lal and Constable Kehar Singh have not been examined by the prosecution and their affidavits Exhibits P.A. and P.B. have been tendered in evidence. In the first instance these two witnesses were never produced by the persecution for crossexamination by the appellant, nor they were present in the Court on the day when these affidavits were tendered in evidence. Still further, the contents of these two affidavits were never put to the appellant in his examination under Section 313 of the Code of Criminal Procedure. Omission to produce these two witnesses for cross examination by the appellant as well as the omission to put the contents of these two affidavits to the appellant in his said examination, lead to the necessary conclusion that these affidavits could not have been read in evidence against the appellant. It has already been stated that S.I. Khushal Singh who was necessary and material witness has been withheld by the prosecution regarding the safe custody of the seized material and the parcels thereof.

At the conclusion of the trial, the prosecution can succeed only on discharging the unshifting burden of proving its case against the accused and strongest of suspicion does not constitute the proof required. One of the essential facts to be proved affirmatively by the prosecution is that right from the stage of seizure till it reached the hands of the Chemical Analyst, there was no possibility of change or tampering with the recovered material. In the present case, the inevitable effect of the omission on the part of the prosecution to produce necessary link evidence is that it failed to rule out the possibility of the sample being changed or tampered with during the period in question a fact which is to be proved affirmatively by the prosecution. This view finds complete affirmation in a decision of this Court in Jai Singh v. State of Haryana, 1995(3) Recent Criminal Reports 627 . This conclusion also casts a serious dent in the prosecution case.

The highly suspicious circumstances have been revealed by Ashok Kumar (P.W. 1) in his crossexamination. Although the appellant is stated to have been arrested from Railway Station, Jagadhari but the seizure and arrest memos. Exhibits PC and PD are stated by this witness to have been prepared in Police Station GRP, Ambala Cantt., or on the platform of Railway Station, Ambala Cantt. It is also interesting to note that this witness has categorically stated in his crossexamination that on the date preceding to the date of his examination in the Court, he was told that the appellant, outside the Court, was the same person who was apprehended from Yamuna Nagar. This admission on the part of the witness, in itself, goes to show that the entire story of the prosecution is a cooked up one and does not inspire any confidence. Much less said, the better.

As a result of the above discussion, this appeal is allowed. The conviction and sentence of the appellant are hereby set aside, and he is acquitted of the charge under Section 15 of the Act. The appellant shall be released forthwith, if not wanted in any other case.