Sham Sunder, J. — This appeal is directed against the judgment of conviction dated 21.12.1998, and the order of sentence dated 22.12.1998, rendered by the Court of Addl. Sessions Judge, Karnal, vide which it convicted the accused/appellant Pargat Singh, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as ‘the Act’ only) and sentenced him to undergo rigorous imprisonment for a period of ten 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 two years, for having been found in possession of 15 Kgs. poppy straw, now falling within the ambit of noncommercial quantity, without any permit or licence.
2. The facts, in brief, are that on 16.11.1994, Bhim Singh, the then Inspector, SHO, alongwith other police officials, was present on the bridge of augmentation canal, on Karnal-Meerut road, near Sugar Mills, Karnal. Jagpal Singh, public witness, met the police party. In the meantime, the accused was seen coming from the side of Nagla Mehga chowk, with a gunny bag, on his head. On seeing the police party, he tried to retreat, but was apprehended, on suspicion. The search of the gunny bag, being carried by the accused, in the presence of Raj Kumar, DSP, who was called to the spot by sending a V.T message, in accordance with the provisions of law, was conducted, which resulted into the recovery of 15 Kgs. poppy straw. A sample of 250 grams was separated therefrom, and the remaining poppy straw, was put into the same bag. The sample, and the remaining poppy straw, were converted into parcels, duly sealed with the seal, bearing impression ‘BS’, and taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. Rough-site plan of the place of recovery, with correct marginal notes, was prepared. The statements of the witnesses, were recorded. The accused was arrested. After the completion of investigation, the accused was challaned.
3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, examined Raj Kumar, DSP (PW-1), Bhim Singh, Inspector/SHO, (PW-2), Krishan Singh, HC (PW-3), Wazir Singh, ASI (PW-4), Virender Singh, HC (PW-5), Ved Parkash, Constable (PW-6), and Jagpal Singh, (PW-7). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of the accused under Section 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. It was stated by him, that nothing was recovered from him. He, however, did not lead any evidence, in his defence.
6. 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 hereinbefore.
7. 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.
8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellant, at the very outset, contended that Jagpal Singh, independent witness, was joined by the Investigating Officer, at the time of effecting the alleged recovery, but he did not support the case of the prosecution. He further submitted that this clearly showed that no recovery was effected from the accused, but he was falsely implicated in the instant case. The submission of the Counsel for the appellant, in this regard, appears to be correct. Jagpal Singh, independent witness, (PW-7), did not support the case of the prosecution, and, as such, permission of the Court was sought to put him such questions, as are required to be put during the course of cross-examination. The permission was granted. However, he did not improve the case of the prosecution, during the course of such cross-examination by the Addl. P.P During the course of cross-examination, by the Public Prosecutor for the State, Jagpal Singh, independent witness, stated that his signatures were obtained by the SHO, on some papers, by saying that poppy straw was recovered, from one Pargat Singh. The statement made by this witness, during the course of cross-examination, by the Public Prosecutor for the State, clearly revealed that no recovery of the contraband, in his presence, was effected from the accused, but he was only shown poppy straw in the Police-Post, and thereafter, the same was planted against him (accused), and he was made a witness to the recovery. Had it been not so, and had the recovery been effected, in his presence, he would not have deposed that his signatures were obtained on some papers, by saying that poppy straw was recovered, from one Pargat Singh. Since, the evidence of this witness, does not support the case of the prosecution, the Court is put on guard to scrutinize the evidence, of the official witnesses, carefully and cautiously, so as to ascertain, as to whether, the same is truthful, upon which reliance can be placed. The other evidence produced by the prosecution is not reliable. In Padam Singh… v. State Of Haryana…., 1997 (4) RCR (Criminal) 172 (P&H), in similar circumstances, independent witness was joined by the Investigating Officer, at the time of the alleged search and seizure. He was examined as a witness. He deposed that no recovery was effected in his presence, and signatures were obtained in the Police Station. His statement was believed by the Division Bench, in the aforesaid case, whereas, the evidence of the official witnesses, was disbelieved, and, ultimately, the appellant was acquitted. The evidence of the independent witness, referred to above, cast a cloud of doubt, on the genuineness of recovery, allegedly effected from the accused, in his presence. This fact was not taken into consideration by the trial Court, as a result whereof, miscarriage of justice of occasioned.
10. It was next contended by the Counsel for the appellant, that the alleged recovery, in this case was effected on 16.11.1993, yet, the sample was sent to the office of the Forensic Science Laboratory, on 7.12.1994 He further contended that the delay of 21 days in sending the sample to the office of the Forensic Science Laboratory, was not explained, by the prosecution witnesses, as a result whereof, it could not be safely held that the sample remained untampered with, till it reached the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, in this regard, appears to be correct. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 21 days, in sending the sample to the office of the Forensic Science Laboratory. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the sample, till the same reached the office of the Forensic Science Laboratory. Since, the sample was allegedly sent to the office of the Forensic Science Laboratory, after about 21 days, it could not be safely held that the same remained un-tampered with. This fact casts a shadow of doubt, on the case of the prosecution. In Gian Singh…Petitioner v. State Of Punjab…, 2006 (2) RCR (Criminal) 611 (P&H), 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 tampering with the sample, could not be ruled out, and the link evidence was incomplete. Ultimately, the appellant was acquitted, in that case. In State Of Rajasthan v. Gurmail Singh, 2005 (2) RCR (Criminal) 58 : 2005 (1) Apex Criminal 521 (SC)., the contraband remained in the Malkhana for 15 days. The Malkhana register was not produced, to prove that it was so kept in the Malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Forensic Science Laboratory. The other evidence, produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. In these circumstances, the principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. The delay of 21 days, in sending the sample to the office of the Forensic Science Laboratory, and non-strict proof, by the prosecution, that the same was not tampered with, till it was deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the sample, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted.
11. It was next contended by the Counsel for the appellant, that the provisions of Section 57 of the Act, were not complied with. No report was sent by the Investigating Officer, to his superior officer, with regard to the alleged apprehension of the accused, and alleged recovery of contraband, from him. No doubt, the provisions of Section 57 of the Act, are directory in nature. That does not mean that the same, should not be complied with by the Investigating Officer, deliberately and intentionally. In Gurbax Singh v. State Of Haryana., 2001 (1) RCR (Criminal) 702 (SC), it was held that non-compliance of the provisions of Sections 52, 55 and 57, which are, no doubt, directory, and violation thereof, would not ipso-facto vitiate the trial or conviction. However, the Investigating Officer, cannot totally ignore these provisions, and such failure will have bearing on the appreciation of evidence regarding search of the accused and seizure. The object of the provisions of Section 57, is that the superior officer, should be informed immediately after the alleged recovery of contraband, so that he must be aware of the genuineness of the proceedings, conducted by his junior, to ensure that no innocent person was implicated, and the allegations of high handedness against the Police officials, are averted. Had any explanation been furnished by the Investigating Officer, as to what prevented him, from complying with the provisions of Section 57 of the Act, the matter would have been different. In the absence of any explanation, what to speak of plausible, the Court cannot coin any of its own, to fit in with the prosecution case. Since, the provisions of Section 57 of the Act, were observed, more in breach, than in compliance, by the Investigating Officer, intentionally and deliberately, the case of the prosecution became doubtful, on account of this reason. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it committed an error, in recording conviction and awarding sentence.
12. Even the provisions of Section 55 of the Act, though the same are directory, in nature, were not complied with, by the Investigating Officer. According to Section 55 of the Act, an officer Incharge of a Police Station, shall take charge of and keep in safe custody, pending the orders of the Magistrate, all the articles seized, within the local area of that Police Station, and which may be delivered to him, and shall allow any officer, who may accompany such articles to the Police Station, or who may be deputed for the purpose to affix his seal to such articles, or to take samples of and from them, and all samples so taken shall also be sealed with a seal of the Officer Incharge of the Police Station. This provision casts a duty on the Officer Incharge of the Police Station, to produce the case property, before a Magistrate, and obtain his orders, with regard to the factum, that the seals on the case property, as also on the sample parcel were intact. If, the case property and the sample, are produced, immediately after the seizure, before the Magistrate, and he verifies the factum of intactness of the seals, on the same, and also affixes his own seal thereon, by passing a separate order, in regard thereto, then certainly a genuineness is lent to the recovery proceedings. Why this provision was not strictly complied with, by the Investigating Officer, is not known. No explanation is forthcoming from his mouth, as to what prevented him (the Investigating Officer) from producing the case property, and the sample parcel, before the Magistrate. In this case, the provisions of Section 55 were intentionally and deliberately observed, more in breach, than in compliance, by the Investigating Officer. When a particular provision, in the Statute, adumberates that a particular act should be done, by the person concerned, in a particular manner, then he is bound to perform the same, in that manner, and cannot take the shelter of the factum, that since that particular provision, was directory, in nature, he was not bound to comply with the same. If such, an explanation is accepted by the Courts, then the concerned officials saddled with the responsibility of performing various duties, under a particular Statute, would breach the provisions of law, by merely saying that the same being directory, they were not bound to comply with the same. Noncompliance of Section 55 intentionally and deliberately, by the Investigating Officer, cast a cloud of doubt, on the prosecution case. Similar principle of law, was laid down, in Gurbax Singhs case (supra). The trial Court failed to take into consideration, this aspect of the matter, as a result of whereof, it committed an error in recording conviction and awarding sentence.
13. Ved Parkash, Constable (PW-6), during the course of his cross-examination, stated that his statement under Section 161 Cr.P.C, was not recorded by the Investigating Officer, during the course of investigation. This Constable, allegedly took the sample parcel to the office of the Forensic Science Laboratory, for deposit of the same therein. He allegedly deposited the sample parcel, in the office of the Forensic Science Laboratory. Under these circumstances, it could be said that Ved Parkash, Constable, (PW-6), was a material witness. No explanation was furnished by the Investigating Officer, as to why the statement, under Section 161 Cr.P.C of such a material witness, was not recorded by him. Non-recording of his statement under Section 161 Cr.P.C, during the course of investigation by the Investigating Officer, gave rise to an adverse inference, against the prosecution. Had his statement been recorded, under Section 161 Cr.P.C, he would have been confronted with the same, during the course of cross-examination, vis-a-vis his examination-inchief. In the absence of recording of statement, under Section 161 Cr.P.C, of this material witness, the accused was deprived of his valuable right of confronting him, with his previous statement, with a view to challenge the veracity of his evidence. In Padam Singh… v. State Of Haryana…., 1997 (4) RCR (Criminal) 172, the statement of the DSP, under Section 161 Cr.P.C, was not recorded. The Division Bench, in the aforesaid authority, held that non-recording of the statement of such an important witness, was a serious irregularity, which considerably prejudiced the accused, and may make his (DSP) testimony tainted. On account of this irregularity, and other irregularities, found in the case of the prosecution, the appellant was acquitted, in the aforesaid case. Since, the statement of Ved Parkash, Constable, who allegedly took the sample, to the office of Forensic Science Laboratory, was not recorded, the Investigating Officer committed a serious irregularity, the benefit of doubt whereof must go to the accused. The trial Court, however, did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned.
14. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, are not based on the correct appreciation of evidence, and law, on the point. The trial Court did not take into consideration, the infirmities and lacunae, enumerated, in the aforesaid paragraphs. Had these infirmities and lacunae, been taken into consideration, by the trial Court, the result would have been different. The judgment of conviction, and the order of sentence, warrant interference, and are liable to be set aside.
15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 21.12.1998, and the order of sentence dated 22.12.1998, are set aside. The appellant shall stand acquitted of the charge, framed against him. If he is on bail, he shall stand discharged of his bail bonds. If he is in custody, he shall be set at liberty at once, if not required in any other case.
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