Om Prakash vs State of Haryana

R.L. Anand, J.—This is a criminal appeal and has been directed against the judgment dated 1.10.1997 and order dated 4.10.1997, passed by the Court of the Additional Sessions Judge, Rohtak, who convicted the present Appellant Om Parkash, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as �the Act�) and sentenced him to undergo R.1. for a period of 10 years and to pay a fine of Rs. 1 lac ; in default of payment of fine, the Appellant was further directed to undergo R1 for 4 years.

The story of the prosecution can be described as follows :

On 9.5.1995, Inspector Dhian Singh along with his official companions was present at Bahadurgarh Crossing in the area of Village Badli when he received a secret information that the present Appellant clad in a white �Kurta Pyjama� having grey hair, small moustache, shall come from Delhi at about 4/4.15 p.m. and shall bring charas with him. It was on this secret information that the Inspector along with his official companions was present at Bahadurgarh Crossing. In the meanwhile, the I.O. saw a man of the above description coming on foot carrying a cloth bag in his right hand. On seeing the police party at the crossing, he got frightened. He was apprehended by the Inspector with the assistance of his companions. On query, the Appellant disclosed his name as Om Parkash alias Omi, resident of village Badli. The I.O. gave a notice u/s 50 of the Act enquiring from the Appellant as to whether he wanted to give the search in the presence of some Gazetted Officer or a Magistrate as the I.O. had a suspicion that the accused was carrying some intoxicant with him. The Appellant opted for search in the presence of a Gazetted Officer. Accordingly, ASP. Rohtak A.S. Chawla,. IPS, was informed about the matter and was asked to come at the spot. He came at the spot with his companions. In his presence, the I.O. took the personal search of the Appellant and recovered a packet of polythene bag containing five layers in the shape of pieces of charas from the cloth bag. Another polythene bag containing charas in the shape of lump from the cloth bag was recovered. On weighing, the total charas recovered came to 5 kgs. 500 grams. The I.O. separated 100 grams of charas by way of sample and made a sealed parcel thereof. The sample was sealed with the seal of his companion bearing inscription �BS� and the case property was also resealed by ASP A.S. Chawla, with his own seal bearing inscription AS�. The entire case property was taken into possession vide separate recovery memo. Accused could not produce any licence or permit for the possession of charas. Resultantly, a ruqa was sent to the police station for the registration of a case u/s 20 of the Act. The sample of charas was sent to the Office of the Chemical Examiner who vide separate report declared the contents as charas. On the completion of the investigation of the case, the Appellant was challaned in the Court of the Illaqa Magistrate, who supplied the copies of the documents to the accused and vide commitment order, committed the accused to the Court of Sessions to face trial.

Vide orders dated 2.1.1996, the Appellant was charge-sheeted u/s 20 of the Act on the allegations that on 9.5.1995 in the area of Badli, he was allegedly found in possession of charas weighing 3 kgs., without any licence or permit. The charge was read over and explained to the Appellant to which he pleaded not guilty and claimed trial.

I may state here that the charge in this case is not correct. As per the allegations of the prosecution, the Appellant was carrying 5? kgs. of charas. Since, the entire prosecution evidence has been recorded in the presence of the Appellant at the trial stage, therefore, I am of the view that framing of wrong charge against the Appellant has not caused him any prejudice and, therefore, his conviction cannot be set aside on this score, but 1 am inclined to accept the appeal of the Appellant on different grounds, set forth subsequently in this judgment.

In order to prove the charge, the prosecution examined Constable Om Parkash, P.W. 1, SI Chaman Lal, SHO P.S. Sahlawas, P.W. 2, S1 Raghbir Singh P.W. 3, Inspector Dhian Singh, I.O.P.W. 4, H.C. Rohtash Singh.P.W. 5, and Sumer Singh, P.W. 6. The prosecution also tendered into evidence the affidavits of the formal witnesses besides the report of the Chemical Examiner, and closed the case.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313. Code of Criminal Procedure and in his defence he stated as follows :

I had contested election for the office of Sarpanch in the year 1994 against Siri Ram, Sarpanch which led to inimical relations between us. Siri Ram, Sarpanch wields influence in police circle and was friendly with Inspector Dhian Singh P.W. 4. On 8.5.95, I was summoned in the presence of Sumer Singh, son of Shiv Lal, resident of village Badli to C.I.A. Staff through a constable on the pretext of some enquiry against me and then implicated me in a false case on 9.5.95 at the instance of said Siri Ram. No incriminating substance has been recovered from me. I am innocent.

When called upon to enter his defence, the Appellant examined Sumer Singh D.W. 1.

The learned trial Court, however, believed the prosecution version and rejected the defence story and convicted and sentenced the Appellant in the manner stated above. Aggrieved by his conviction and sentence, the present appeal was filed by the Appellant, which I am disposing of with the assistance rendered by Shri H.S. Gill, Sr. Advocate, with Mr.G.S. Gill, Advocate, appearing on behalf of the Appellant and Shri Sanjeev Sheoran, Advocate, appearing on behalf of the Respondent, and with their assistance have gone through the record of the case.

The learned senior Counsel has assailed the judgment and order of the trial Court by making the first submission that in this case, the mandatory provisions of Section 42 of the Act have not been complied with. According to the senior counsel, on receipt of the secret information by the I.O., it was obligatory on his part to send the information in writing to the authorities with regard to the receipt of the secret information. Since, he has not done so, therefore, he has violated the provisions of Section 42 of the Act, making the recovery of charas illegal. In this regard, the Learned Counsel for the Appellant has relied upon the judgment of the Hon�ble Supreme Court in State of Punjab v. Balbir Singh 1994 (1) RCR 736 (SC), wherein it has been stated that the officer who takes down any information in writing and records the ground u/s 42(1), should forthwith send a copy thereof to his immediate officer superior. If there is total noncompliance of this provision, the same affects the prosecution case. To that extent, Section 42 of the Act is mandatory.

In the present case, when the I.O. received the secret information against the Appellant that he would appear with narcotic drug, it was obligatory on his part to record the information in writing and send it to his superior officer. He has not done so. Thus, he has violated the provisions of Section 42 of the Act. On account of non-compliance of these provisions, the present recovery stands vitiated.

The things do not rest here. In this case, even the link evidence is totally missing. Repeatedly, it has been stated by the Hon�ble Supreme Court as well as the High Courts that the prosecution is obliged to show that the right from the time of the seizure upto the time when the sample of the opium reaches the office of the Chemical Examiner, it remained untampered and in this regard, the prosecution must bring the evidence with reasonable certainty excluding every chance of tampering with the sample. In this case, the things have happened in the following manner :

As I have stated above, the recovery of charas is dated 9.5.1995. The recovery was effected by Inspector Dhian Singh, who sealed the case property with the seal bearing inscription �BS� and it was resealed with the seal of ASP A.S. Chawla bearing inscription �AS�. As per the story of the prosecution, the entire case property was handed over the M.H C. on the same day. In this regard, I can refer to the statement of Inspector Dhian Singh, P.W. 4, who deposed on the following lines :

On returning to the police station, I had deposited the case property with the MHC and the accused was also handed over to him to be put in the police lockup.

MHC Jai Kishan tendered his statement by way of an affidavit, Ex. PG. The affidavit, Ex. PG would show that it was produced before the Addl. Sessions Judge on 9.5.1997 as his endorsement is quite evident in this regard. This aspect of the case I shall discuss in the subsequent portion of this judgment. Be that as it may, the affidavit of HC Jai Kishan would show that he has stated in his affidavit that the case property was produced before him by Inspector Dhian Singh on 9.5.1997 and that he handed over this case property to Constable Om Parkash, No. 75, on 19.5.1995, who delivered the sealed sample of charas in the Office of the Director Forensic Science Laboratory, Madhuban, vide R.C. No. 269 dated 19.5.1995, on the same day and on return to the police station the said Constable Om Parkash handed over to him the said receipt. In fact, this is, not the position when I go through the statement of Constable Om Parkash who appeared as P.W. 1. According to this witness, the sample was handed over to him on 19.5.1995 with seals intact and when he went to the office of the Director, Forensic Science Laboratory, Madhuban, it refused to accept the same with some objections and some irregularity. As per the statement of this witness, he was again entrusted with the sample on 29.5.1995 with six seals and he handed over the sample in the office of the Chemical Examiner on 29.5.1995. Even the report of the Director, Forensic Science Laboratory indicates that this sample was received in his office on 29.5.1995 and not on 19.5.1995 as stated by the MHC. In these circumstances, it cannot be ruled out that the sample remained in the custody and possession of the police untampered.

Even otherwise ; the affidavit, Ex. PG, as its endorsement suggests, was taken into evidence on 9.5.1997. Is it so ?

The counsel for the Appellant has invited my attention to the zimny order dated 9.5.1997 which would show that this affidavit was not tendered into evidence by the prosecution on 9.5.1997. My attention has been invited to the statement dated 9.7.1997 of Shri R.S. Chauhan, Public Prosecutor, who made a statement before the Addl. Sessions Judge, Rohtak, to the effect that he gives up AS I Brahm Dutt, P.W., and closed the evidence of the prosecution, after tendering affidavit Ex. PG of Jai Kishan, HC. meaning thereby that the affidavit has been tendered on 9.7.1997. This is not factually correct as per the endorsement on the affidavit signed by the Addl. Sessions Judge which is dated 9.5.1997. Even at the time of tendering the affidavit, Ex. PG, on 9.7.1997, no opportunity has been given to the accused to cross-examine the witness. In fact, HC Jai Kishan was not present before the trial Court on 9.7.1997 as the affidavit Ex. PG has been verified by a Magistrate on 2.4.1997. Thus, it can be safely concluded that this affidavit was not tendered on 9.5.1997. It was tendered on 9.7.1997. Even in the zimny order dated 9.7.1997, there is no mention that this affidavit has been tendered. Even on that day, the words �after tendering affidavit Ex. PG of Jai Kishan HC� appearing in the statement of R.S. Chauhan, Public Prosecutor, is in a different typewriting impression. The ink of the ribbon through which aforesaid words have been typed in the statement of Mr. Chauhan are of a darker shade. Thus, there is no difficulty in concluding that the link evidence in this case has not been satisfactorily explained. It is not established on the record where and in what manner the sample remained in the custody of the police from 19.5.1995 to 29.5.1995. On this ground also, the appeal is liable to succeed.

Resultantly. I accept this appeal, set aside the judgment and order of the trial Court and acquit the Appellant of the charge framed against him. The Appellant shall be set at liberty forthwith if not wanted in any other case. The case property stands confiscated to the State. Intimation about the acceptance of this appeal be sent to the Superintendent, District Jail, Rohtak.