Ramesh vs State of Haryana

Harphul Singh Brar, J.

This is an appeal against the judgment/order dated 30.5.1995/31.5.1995 of Additional Sessions Judge, Bhiwani, vide which both the accused Ramesh and Azad Singh were convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called `the Act'') and each was sentenced to ten years rigorous imprisonment and a fine of rupees one lac each. In default of payment of fine they were further ordered to suffer rigorous imprisonment for 21/2 years.

Briefly stated the facts are that ASI Dharampal, Incharge of Police Post, Dighawa, was present along with other police officials at `T'' point of Nakipur at about 4.00 p.m. on 26.7.1992. A motor cycle on which two persons were riding came there at about 4.30/4.45 p.m. Noticing the policeparty the driver of the motor cycle tried to turn it back. Both i.e. the driver of the motor cycle and the pillion rider were apprehended on suspicion. Azad Singh was driving the motor cycle i.e. DBW2495, while Ramesh accused was sitting on the pillion seat. ASI Dharampal told the accused persons that he suspected some narcotic substance in their possession and asked them as to whether they would get their personal search conducted in the presence of a gazetted officer or a Magistrate. Written notice to this effect was given and the accused opted for their personal search in the absence of any gazetted officer or a Magistrate. The personal search of the two accused was then conducted by ASI Dharampal and the bag which was lying on the motor cycle in between the two accused, on the seat of the motor cycle, was found to contain 5 kgs of opium. The sample of 100 grams was separated. The sample and the remainder were made into two parcels and they were sealed with the seal of DPB. The recovery memo Ex. PD was prepared which was attested by constable Satish Kumar. The seal after use was handed over to Head Constable Ishwar Singh. The motor cycle was also taken into possession through recovery memo. Ruqa Ex. PE was sent to the police station on the basis of which the formal FIR Ex. PE/1 was recorded, by Inder Singh S.I. Rough site plan Ex. PF was also prepared at the spot. Jamatalasi memos of the belongings of the accused were separately prepared. The accused were then produced before Shri Bhoop Singh Yadav the then D.S.P. Loharu and he also made enquiries from the accused and made entries in the case diary. Thereafter, the accused were produced before the SHO who verified the facts of the case and put his own seal IS on the sample and the other recovered opium. The case property was then deposited with the MHC of the Police Station and the sealed sample was sent to the Forensic Science Laboratory, Madhuban and vide Ex. PA, the sample was found to be of opium.

After completion of investigation the challan under Section 18 of the Act was submitted in the Court. The case was committed for trial to the Court of session by the learned Judicial Magistrate, Loharu, vide his order dated 17.5.1993.

Both the accused were charged under Section 18 of the Act on the above said allegations on 12.7.1993 by the Additional Sessions Judge, Bhiwani. The accused pleaded not guilty and claimed trial.

The prosecution examined as many as six prosecution witnesses and tendered into evidence the relevant documentary evidence in support of its case.

Azad Singh accused when examined under Section 313 Cr.P.C. made the following statement :

"I am innocent. In fact, on 25.7.1992, after the sunset, my co accused and myself were taken into custody by the police from in front of liquor vend at Dighawa where we had gone to one Narain who was not available. At that time we had purchased liquor from the liquor vend. I had made a harrow for Narain of Dighawa and we had gone to receive the outstanding amount from Narain Singh. Havildar Ishwar who was in plain clothes had hurled abuses on us. We also exchanged abuses. We were nabbed by the police and were falsely involved in this case."

Accused Azad Singh further stated that the motorcycle did not belong to him and that he was not found in possession of any such motor cycle or alleged opium.

Ramesh accused rather made an identical statement under Section 313 Cr.P.C. and further stated that there was exchange of abuses between them and Head Constable Ishwar. He denied the recovery of opium from them.

No evidence was led by the accused in defence.

After hearing the learned counsel for the parties, the learned Addl. Sessions Judge convicted and sentenced both the accused as stated above.

The learned counsel for the appellants at the outset submits that the link evidence is missing in this case. He submitted that the statement of ASI Dharam Pal, PW 4 that the case property so far as it remained with him was neither tampered with nor he allowed anybody to tamper with it was not put to the accused when they were examined under Sections 313 Cr.P.C. Similarly, the contents of the affidavit Ex. PH of M.H.C. Hoshiar Singh wherein he has stated that so far as the case property remained in this possession it was neither tampered by him nor he allowed anybody to tamper the same were not put to the accused when they were examined under section 313 Cr.P.C. According to the learned counsel it is necessary to prove the fact that the sample of the opium which is alleged to have been taken from the accused was not tampered with and after the seizure it was sealed and kept intact in police malkhana in the same condition in which it was sent to the Chemical Examiner for analysis. In support of his argument he has cited 1995(3) RCR 365, Darshan Singh v. State of Punjab, 1997(1) >Chandigarh Criminal Cases 488, Sarwan Singh v. State of Punjab, 1996(1) All India Criminal Law Reporter, 310, Jal Singh v. The State of Haryana, 1995(3) RCR (Crl.) 18 : 1996(1) All India Criminal Law Reporter, 394, Lal Singh v. The State of Punjab, 1995(3) RCR (Crl.) 746.

I have gone through the statements of both the accused under section 313 Cr.P.C. No question has been put to them regarding the safe custody of the sample of opium alleged to have been recovered from them or that it was not tampered with or was not allowed to be tampered with until and unless it remained in the custody of ASI Dharam Pal and MHC Hoshiar Singh.

In these circumstances, the link evidence of ASI Dharam Pal and MHC Hoshiar Singh having not been put to the appellants when examined under Section 313 Cr.P.C. cannot be considered by the Court for convicting the appellants. Since this link evidence cannot be considered, the report of the Chemical Examiner also cannot be read into evidence against the appellants.

There is another factor which is to be taken into consideration in this case is that it has come in the evidence of both the PWs i.e. H.C. Ishwar Singh, PW 3 and ASI Dharam Pal, PW 4 that 100 gram of opium was separated as sample which was put in tin dibbi and converted into sealed parcel with seal `DPB''. But the report of the Forensic Science Laboratory, Madhuban Ex. PA shows that the sample of opium which was received by them for analysis contained 85 grams only. It means that it was not the same sample of opium which was recovered from the accused and was sent to the Forensic Science Laboratory, Madhuban Karnal for chemical examination.

From the above discussion it seems that even the sample of opium alleged to have been recovered from the accused and the sample sent to the Chemical Examiner for examination could not be taken as the same. The accused cannot be linked with the sample of opium recovered from them as well as the sample of opium examined by the Forensic Science Laboratory.

There is another most important factor which is taken for consideration is that the alleged sample was taken on 26.7.1992 and it was sent to the Chemical Examiner on 12.8.1992. There is no explanation furnished by the prosecution for the delay in sending the sample to the Forensic Science Laboratory so late. This lapse of the prosecution that the delayed sending of sample to the Forensic Science Laboratory (delay in this case is 17 days) has not been taken happily by the Courts. In Narain v. State of Haryana, 1997(1) RCR 414 even the delay of 10 days for sending the sample of the contraband to the Forensic Science Laboratory was taken to be such a delay which caused a dent in the prosecution story. In Khuba Ram alias Khubba v. State of Haryana, 1995(3) RCR 317, it was held that unexplained delay in sending the property for analysis to the Laboratory caused a dent in the prosecution story. In that case the delay was of 15 days in sending the property for analysis to the Laboratory.

The learned counsel has next contended that no independent witness has been joined by the prosecution. The evidence of the police witnesses only does not inspire confidence.

I find force in this contention of the learned counsel. PW4 ASI Dharam Pal has stated at the trial in his examination in chief that he along with HC Ishwar Singh, Constable Satish, Ramesh Kumar and Hans Raj were present for patrolling and crime detection at Tpoint Nakipur at about 4/4.40 p.m. when they had apprehended the accused. He did not mention at the trial in his examinationinchief about any effort made by them to join independent witnesses at the time of recovery of the contraband from the accused. PW 3 H.C. Ishwar Singh who accompanied PW 4 ASI Dharam Pal at the time of alleged recovery of opium from the accused also did not tell even about any effort made by them to join any independent witnesses at the time of recovery or at any point of time particularly when it was admitted by PW 3 Ishwar Singh, HC in his crossexamination that one driver and one conductor of the four wheeler on which they had gone to the place of recovery, were present in the four wheeler.

The statements of PW3 H.C. Ishwar Singh and PW 4 ASI Dharam Pal are also contradictory on very material particulars. PW 3 H.C. Ishwar Singh has admitted in his crossexamination that on 26.7.1992 they had departed from the police post Dighawa at 2.30 p.m. and they had boarded a private four wheeler from Bus Stop Dighawa and went upto Nakipur `T'' point in that four wheeler, the place from where the recovery of opium is alleged to have been made from the accused. He has further admitted in his crossexamination that the four wheeler remained with them all the time during the proceedings at the spot and after doing the whole task they left the spot in that very four wheeler. He has further admitted in his crossexamination that the driver and conductor of the fourwheeler accompanied them upto the police station. It means that he along with ASI Dharam Pal and the other constables had gone on that private four wheeler which remained with them till the recovery and they kept the same four wheeler till they returned to the police station.

But on the other hand, ASI Dharam Pal, PW 4 has stated in his cross examination that they had gone to the place of recovery in a private vehicle but he did not remember as to what was the nature of vehicle; whether it was a car, a jeep, a four wheeler. He further stated that they had left that vehicle on reaching the spot, and after doing the entire work at the spot they had gone to the police station in some other vehicle. He further stated that he could not say as to what was the nature of that vehicle also.

In all these circumstances as have been stated above, it becomes difficult for the Court to rely upon the evidence of the police witnesses only.

I need not discuss any other infirmity in the prosecution case canvassed by the learned counsel for the appellants; though he has contended before me that in fact, due to enmity with Head Constable Ishwan Singh, PW 3 a false case was made out against the accused and they were in fact arrested on 25.7.1992 when an altercation took place between PW 3 and the accused in front of a liquor vend at Dighwa where the said Head Constable had hurled abuses on them and they had exchanged abuses with him and the learned counsel further pointed out that Ex. PB i.e. the report under section 57 of NDPS Act is dated 27.7.1992 and it has been clearly written on that report by the DSP that he saw the report on 27.7.1992 when the report has been alleged to have been prepared and placed before the DSP on 26.7.1992 and it has been further pointed out by the learned counsel that even on Ex. PC and PC/1 i.e. the offer which is alleged to have been made by the Investigating Officer to the accused offering them to be produced before the DSP or the Magistrate was also of 27.7.1992 and the dates have clearly been interpolated lateron; instead of `27'' it has been fabricated as `26''. The interpolation to change the dates from 27.7.1992 to 26.7.1992 is clearly visible on Exhs. PC & PC/1 even to a naked eye.

As the circumstances discussed by me, particularly the missing link evidence, not putting the incriminating circumstances to the accused under Section 313 Cr.P.C. and not joining the independent witnesses in the circumstances of this case, the convictappellants cannot be convicted for the charge framed against them.

Resultantly, this appeal is accepted, judgment/order dated 30.5.1995/31.5.1995 of Additional Sessions Judge, Bhiwani is set aside and the appellants are acquitted of the charges framed against them.