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Gian Singh Petitioner v. State Of Punjab
Structured Summary of the Opinion — Gian Singh (Appellant) v. State
Factual and Procedural Background
The appellant, Gian Singh, was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act") by the Additional Sessions Judge by a judgment dated 30.8.1993. He was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, with a further one year R.I. in default of payment of fine. The appellant challenged that conviction by preferring the instant appeal.
The prosecution case, according to the trial record set out in the opinion, is that on 6.4.2002 ASI Jaswant Singh (PW4) and other police officials stopped a truck (regn. UP-81-8729) at a naka near the turning to village Chamba Khurd. The truck was driven by the appellant. Pargat Singh, his co-accused (later acquitted), jumped from the truck and ran away; the appellant was apprehended. The truck was searched by ASI Jaswant Singh; ten bags containing 32.250 kgs. of poppy husk were recovered. From each bag 250 grams were taken as samples, sealed with a seal bearing impression 'JS' (Jaswant Singh); remaining bags were separately sealed with the same impression. The case property, samples, the truck, its registration certificate and the appellant's licence were taken into possession by recovery memos and later sealed by SI Santokh Singh (SHO) with his seal 'AS'. The case property was deposited with Moharrir Head Constable. Subsequently a Chemical Examiner's report was received and the appellant and his co-accused were challaned and charged under Section 15 of the Act. After trial, the appellant was convicted while his co-accused was acquitted.
The appeal was heard by the court with Mr. Bipan Ghai for the appellant and Mr. MS Sidhu for the State. The court reviewed witnesses and documentary exhibits as part of the appeal record.
Legal Issues Presented
- Whether the prosecution's reliance on affidavits (Exhibit PD and Exhibit PD/1) of police personnel, tendered without producing those police witnesses for cross-examination, undermines the prosecution's link evidence and warrants acquittal.
- Whether the handing over/availability of the seal used to seal sample parcels (seal impression 'JS') to a police witness prior to despatch of samples to the Chemical Examiner created a break in the chain of custody or a possibility of tampering sufficient to vitiate the prosecution's case on link evidence.
Arguments of the Parties
Appellant's Arguments (Mr. Bipan Ghai)
- The prosecution's link evidence depends on affidavits Exhibit PD (HC Satnam Singh) and Exhibit PD/1 (Constable Kanwaljit Singh) that were merely tendered by the Public Prosecutor without producing those police witnesses for cross-examination; the accused was therefore deprived of the opportunity to test that evidence.
- There is no reference to these affidavits in the appellant's Section 313 CrPC statement, indicating that this material evidence was never put to the accused during trial.
- The seal impression 'JS' used to seal parcels was handed over to Constable Mohan Singh (a witness) and in cross-examination it was stated he returned the seal the next date; the sample was sent to the Chemical Examiner only on 21.4.1992. The availability of the seal to investigating officers before despatch of samples creates a possibility of tampering, undermining chain-of-custody.
- Reliance was placed on precedents of this Court (Kapil Dev … v. State of Punjab; Baldev Singh v. State of Punjab) to support the challenge to link evidence and chain-of-custody defects, and counsel prayed for acquittal.
State's Arguments (Mr. MS Sidhu)
- The recovery involved a large quantity of contraband (heavy recovery), making false implication unlikely; therefore the trial Court's conviction should be upheld.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kapil Dev … v. State Of Punjab, 2004 (2) RCR 275 (P&H) | Relied upon by the appellant in support of arguments on link evidence and related infirmities. | The court noted the appellant's reliance on this judgment but stated that on the specific point about absence of reference to affidavits in the Section 313 statement, the later Apex Court decision in State of Punjab v. Sawaran Singh governs; therefore Kapil Dev did not assist the appellant on that point. |
| Baldev Singh v. State of Punjab, 2004 (3) RCR (Crl.) 262 (P&H) | Relied upon by the appellant in support of challenges to link evidence and procedural safeguards. | The court observed that earlier Baldev Singh was relied upon by the appellant but, with respect to the failure to refer to affidavits in Section 313, that reliance did not avail the appellant in view of Sawaran Singh. Separately, another Baldev Singh citation (see next row) was applied regarding chain-of-custody concerns. |
| Baldev Singh v. State of Punjab, 2005 (1) RCR (Cri) 823 (P&H) | Cited by the appellant in relation to the necessity of preserving the seal and chain-of-custody to exclude tampering. | The court held that this precedent "squarely covers the case of the appellant" on the point that availability of the seal to investigating officers before despatch creates suspicion and supports acquittal on chain-of-custody grounds. |
| State of Punjab v. Sawaran Singh, 2005 (3) Apex Criminal 8 : 2005 (3) RCR (Criminal) 889 : JT 2005 (6) SC 456 | Cited for the proposition that omission to refer to certain affidavits in the accused's Section 313 CrPC statement does not necessarily undermine the prosecution case in the manner suggested by the appellant. | The court relied on this Apex Court judgment to repel the appellant's contention that absence of reference to the affidavits in the Section 313 statement was fatal; consequently, Kapil Dev and the earlier Baldev Singh citations did not assist the appellant on that specific point. |
| Rajesh Jagdamba Awasthi v. State of Goa, 2005 (1) Apex Criminal 240 : 2005 (1) RCR (Crl.) 406 (SC) | Cited to support concerns about chain-of-custody and the need to exclude tampering between recovery and despatch to the laboratory. | The court stated that this Apex Court judgment further strengthened its view that the possibility of tampering (given the availability of the seal to investigating officers) cannot be ruled out and supported the conclusion adverse to the prosecution on the chain-of-custody issue. |
Court's Reasoning and Analysis
The court examined the rival contentions and the trial record and found that the prosecution case failed for the following principal reasons set out in the opinion.
-
Non-production and lack of cross-examination of police witnesses who constituted the core of the link evidence:
- The prosecution relied on affidavits Exhibit PD (HC Satnam Singh) and Exhibit PD/1 (Constable Kanwaljit Singh) to prove link evidence.
- The court reviewed the zimni orders recorded on 9.6.1993 and 13.7.1993, which showed that affidavits were tendered and that the police witnesses were not produced for examination and cross-examination. The zimni orders recorded that affidavits were produced and that the prosecution sought to summon certain police witnesses for later dates but, in effect, the two main witnesses remained unproduced for cross-examination during trial.
- The court held this factual position is a material lacuna that "knocks at the bottom of the case" and may be taken against the prosecution.
-
Chain-of-custody / seal availability issue and possibility of tampering:
- Cross-examination of ASI Mohan Singh (PW2) revealed that he had returned the seal on the next date (7.4.1992) while the sample was sent to the Chemical Examiner only on 21.4.1992. The court read this as indicating that the seal remained with ASI Jaswant Singh, the Investigating Officer, until despatch to the laboratory.
- The court found that because the seal was with investigating officers during the intervening period, "the possibility of seal being tampered with, substance being changed and the container/packet being re-sealed cannot be ruled out."
- The court emphasized a principle stated in the opinion: "it is the bounden duty of prosecution to prove to the hilt that from the stage of recovery upto the stage of handing over of the sample to the Chemical Examiner, that sample containing contraband is not tampered with at all."
- The court held that absence of safeguards claimed by the prosecution (i.e., preservation of seal and an unimpeachable chain-of-custody) rendered the prosecution's link evidence open to suspicion.
-
Interaction with precedents:
- On the point that the affidavits were not referred to in the accused's Section 313 CrPC statement, the court relied on the Apex Court decision in State of Punjab v. Sawaran Singh to repel the appellant's contention that this omission was fatal. For that limited point, earlier Punjab & Haryana High Court decisions cited by the appellant (Kapil Dev; Baldev Singh) did not assist because Sawaran Singh governed the issue.
- On the chain-of-custody and seal issue, the court found Baldev Singh (P&H citation 2005 (1) RCR (Cri) 823) squarely supported the appellant's position, and the court's view was further reinforced by Rajesh Jagdamba Awasthi (SC). Thus, the court concluded that the prosecution's case on link evidence failed for this reason as well.
-
Conclusion of analysis:
- Because of the material lacuna (absence of cross-examination of the affidavits' deponents) and the chain-of-custody/seal defect creating a possibility of tampering, the court concluded that the prosecution failed to prove conscious possession of the contraband by the appellant beyond reasonable doubt.
- The court therefore extended the benefit of doubt to the appellant and set aside the conviction and sentence.
Holding and Implications
Holding:
The appeal is allowed; the impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charge.
Direct consequences and implications:
- The appellant's conviction under Section 15 of the NDPS Act and the sentence imposed by the trial court were set aside.
- The appellant was acquitted and his bail bonds (furnished during the pendency of the appeal) were discharged.
- The opinion treats the decision as resolving the present case on the specific evidentiary deficiencies identified (non-production/cross-examination of witnesses relied on by tendered affidavits and the chain-of-custody/seal defect). The opinion does not purport to lay down a new general precedent beyond application of the cited case law; therefore the immediate effect is the acquittal of the appellant and the setting aside of the trial court's conviction and sentence.
End of summary — based exclusively on the content of the provided opinion text.
Virender Singh, J. — Appellant Gian Singh stands convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as “the Act”) vide impugned judgment of Additional Sessions Judge dated 30.8.1993 and has been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- in default of payment of fine to further undergo rigorous imprisonment for a period of one year. Aggrieved by the said judgment of conviction, he has preferred the instant appeal.
2. The appellant stands charged for the aforesaid offence for allegedly keeping in his possession ten bags of poppy husk each containing 32.250 kgs. On 6.4.2002 when ASI Jaswant Singh, PW4 along with other police officials was holding a Naka on the turning of road leading to village Chamba Khurd, a truck bearing registration No. UP-81-8729 was noticed coming to that side. It was stopped. The same was being driven by the appellant. Pargat Singh, his co-accused (since acquitted) was on the back side of the truck. He jumped from the truck and ran away. The appellant was apprehended. In order to show the compliance of Section 50 of the Act, he wanted to get the search of the truck conducted before some Gazetted Officer or Magistrate. When the appellant reposed confidence in the police, the truck was searched by ASI Jaswant Singh. Ten bags containing 32.250 kgs. of poppy husk were recovered. 250 grams of poppy husk was taken out from each of the bag as sample and put into sealed parcels which were duly sealed with the seal impression of ‘JS’ (Jaswant Singh). The remaining bags were also separately sealed with the same seal impression. The case property was taken into possession along with sample parcels vide recovery memo attested by the PWs. The truck and the registration certificate were also taken into possession vide separate recovery memo. Licence of appellant was also taken into possession vide a separate recovery memo. On receipt of the ruqa sent to the Police Station, formal first information report was recorded. After completing all the formalities at the spot, the appellant and the case property were produced before SI Santokh Singh, the SHO Police Station Sarhali, who, after verification also sealed the parcels with his own seal bearing impression ‘AS’. The case property was then deposited with Moharrir Head Constable.
3. Pargat Singh, co-accused of the appellant was arrested subsequently on 23.4.1993
4. After the receipt of report of the Chemical Examiner, the appellant and his co-accused were challaned. They were charged under Section 15 of the Act. After appreciation of the entire evidence, learned trial Court convicted the appellant, whereas his co-accused has been acquitted.
5. Hence, this appeal.
6. The case of the prosecution mainly hinges on the statement of ASI Mohan Singh (PW2) and ASI Jaswant Singh (PW4), the Investigating Officer as the recovery was allegedly effected in the presence of both these witnesses. In order to prove the compliance of Section 55 of the Act, the prosecution has examined SI Santokh Singh, SHO Police Station Sarhali (PW3). Similarly, in order to prove the link evidence, the prosecution relies upon the affidavit of Head Constable Satnam Singh (Exhibit PD) and of Constable Kanwaljit Singh (Exhibit PD/1). The report of Chemical Examiner is proved as Exhibit PG. Certain witnesses were given up as unnecessary.
7. The defence set up by the appellant, as is clear from his statement under Section 313 of the Code of Criminal Procedure, is of false implication. He takes the plea that his truck was being used by the Police continuously for a number of days and when he demanded the charges, he was falsely implicated in this case. However, no defence was led from the side of the appellant except producing one telegram (marked ‘A’), that too from the side of Pargat Singh, his co-accused.
8. I have heard Mr. Bipan Ghai, learned counsel for the appellant and Mr. MS Sidhu, Senior Deputy Advocate General, Punjab. With their assistance, I have gone through the entire record very minutely.
9. According to Mr. Ghai, the case of the prosecution fails primarily on the following two infirmities.
10. The first flaw highlighted by Mr Ghai is that in order to prove the link evidence, the prosecution relies upon affidavits Exhibit PD of HC Satnam Singh and Exhibit PD/1 of Constable Kanwaljit Singh. The Public Prosecutor had simply tendered their affidavits before the trial Court without producing the aforesaid police officials. No opportunity was given to the accused-side to cross-examine the said witnesses. This weakness touches the core. Learned counsel has drawn my attention to the zimni orders in this regard.
11. Mr. Ghai then draws the attention of this Court to another infirmity stating that there is no reference to the aforesaid affidavits even in the statement of the accused recorded under Section 313 of the Code of Criminal Procedure. This shows that the material evidence in the shape of link evidence was never put to the accused. This again is very material infirmity.
12. In support of his aforesaid contentions, Mr. Ghai has relied upon two judgments of this Court; (a) Kapil Dev… v. State Of Punjab…, 2004 (2) RCR 275 (P&H) and (b) Baldev Singh v. State of Punjab, 2004 (3) RCR (Crl.) 262 (P&H)
13. The other infirmity in the case of the prosecution as projected by Mr. Ghai is that the seal of ASI Jaswant Singh having the impression of ‘JS’, which was used for the purposes of sealing the parcels, was handed over to Constable Mohan Singh who is also one of the witnesses to recovery. This witness in his cross-examination states that he had handed over the seal on the next date. Learned counsel submits that the case property was deposited with Moharrir Head Constable on 6.4.1992, whereas it was sent to Chemical Examiner for analysis on 21.4.1992 Till the case property was despatched to the Office of Chemical Examiner, the seal should not been made available to the Investigating Office as the possibility of tampering with the sample parcel cannot be ruled out. In support of his submissions, the learned counsel relies upon the judgment under Baldev Singh v. State of Punjab, 2005 (1) RCR (Cri) 823 (P&H).
14. Learned counsel has also made an attempt to shatter the case of the prosecution on other weaknesses as well but he sets store mainly on the aforesaid two flaws and prays for acquittal.
15. Learned State counsel while controverting the arguments advanced by Mr. Ghai submits that the recovery allegedly effected from the appellant is heavy. There cannot be any reason for the police officials to falsely implicate him. Therefore, the conviction, as already recorded by the trial Court, deserves to be upheld.
16. After giving my thoughtful consideration to the rival contentions and going through the trial Court records, I am of the considered view that the prosecution case fails.
17. I find substance in the first limb of arguments advanced by learned counsel for the appellant. Admittedly, the case of the prosecution in order to prove link evidence hinges upon the two affidavits Exhibits PD and PD/1 tendered by the Public Prosecutor during the trial I have minutely seen all the zimni orders. Affidavit Exhibit PD was tendered by the Public Prosecutor on 9.6.1993 on which date certain police officials were given up. There is a statement of Public Prosecutor to this effect. The zimni order dated 9.6.1993 is re.-produced as under :
“Present: Addl. PP for the State.
Accused on bail with counsel.
Two PWs examined. No other witness is present. Affidavit of one witness produced. Two PWs given up. Learned Additional PP wants to summon ASI Jaswant Singh and Constable Kanwaljit Singh. Both the witnesses now be summoned for 13.7.1993, 9.6.1993
Additional Sessions
Judge”
18. Thereafter, on 13.7.1993 the Public Prosecutor had tendered another affidavit Exhibit PD/1 of Kanwaljit Singh. The zimni order of that date is also re-produced as under for reference :
“Present: Additional PP for the State.
Accused on bail
Affidavit of Kanwaijit Singh tendered. ASI Jaswant Singh served but is absent. He be summoned through bailable warrants in the sum of Rs. 2,000/- for 20.8.1993, 13.7.1993
Additional Sessions Judge”
19. The aforesaid factual position indicates that the aforesaid two main witnesses, who had to prove the link evidence, were not produced in the Court for cross-examination.
20. This certainly is a material lacuna which knocks at the bottom of the case and can be taken against the prosecution.
21. It may be mentioned here that the other argument advanced by Mr. Ghai to the effect that there is no reference to the affidavits of the aforesaid persons. In the statement of the accused recorded under Section 313 of the Code of Criminal Procedure has to be repelled in the light of the latest judgment of Hon'ble Apex Court rendered in State of Punjab v. Sawaran Singh, 2005 (3) Apex Criminal 8 : 2005 (3) RCR (Criminal) 889 : JT 2005 (6) SC 456 and, therefore, the reliance of Mr. Ghai upon two judgments of the Court rendered in Kapil Dev… v. State Of Punjab… and Baldev Singh v. State of Punjab (supra) do not come to the rescue of the appellant on this very aspect, whereas the aforesaid two case laws squarely cover the case of the appellant on the point of link evidence as discussed hereinabove.
22. In my view, the other infirmity in this regard highlighted by Mr. Ghai is also fatal to the prosecution. The cross-examination of ASI Mohan Singh, PW2 reflects that he had returned the seal on the next date i.e 7.4.1992 and the sample was sent to the Chemical Examiner on 21.4.1992 This shows that the seal remained with ASI Jaswant Singh, the Investigating Officer till the sample was despatched to the Office of the Forensic Science Laboratory. The possibility of seal being tampered with, substance being changed and the container/packet being re-sealed cannot be ruled out. All these safeguards are necessary to show that in between the sample or the case property is not tampered with and in the absence of such safeguard as it has happened in the instant case, the prosecution case with regard to link evidence can be seen with an eye of suspicion. It is well settled that it is the bounden duty of prosecution to prove to the hilt that from the stage of recovery upto the stage of handing over of the sample to the Chemical Examiner, that sample containing contraband is not tampered with at all. The judgment rendered in the case of Baldev Singh (supra) cited by learned counsel for the appellant squarely covers the case of the appellant and he deserves acquittal, inter alia, on this ground also. My view is further strengthened by a latest judgment of the Apex Court rendered in Rajesh Jagdamba Awasthi v. State of Goa, 2005 (1) Apex Criminal 240 : 2005 (1) RCR (Crl.) 406 (SC).
23. I do not feel the necessity of entering into detail discussion with regard to the other flaws projected by Mr. Ghai for the reason that in my considered view the prosecution case fails on account of the aforesaid material infirmities.
24. The net result is that the prosecution fails in proving the conscious possession of the appellant qua the contraband beyond any shadow of reasonable doubt and, therefore, while extending benefit of doubt to him, I hereby set aside the impugned judgment of conviction and sentence. He is acquitted of the charge framed against him and is also discharged of the bail bonds furnished by him during the pendency of the instant appeal.
Appeal allowed.
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