Ramji Singh v. State of Haryana

Nirmal Yadav, J. - This common judgment shall dispose of both the abovementioned appeals which arise out of the judgment of conviction and order of sentence dated 20.4.2002 passed by Additional Sessions Judge, Sirsa whereby appellants have been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short `the NDPS Act') and sentenced to undergo R.I. for ten years and to pay a fine of Rs. 1 lac and in default of payment of fine, to further undergo R.I. for two years.

2. As per prosecution story, on 19.9.1995, when police party headed by Hoshiar Singh, S.I. was present in the area of Village Khari Sureran along with one Babu Lal, a car bearing registration No. DHA-2810 came from the side of Nohar, which was got stopped. The said car was occupied by Sukhvinder Singh and Ramji (present appellants/accused). Suspecting some contraband being carried in the car, the Sub-Inspector served notice-Exhibit PF under section 50 of the ndps act on the occupants of the car, who vide Exhibit PF/1 desired the search to be conducted in the presence of a Gazetted Officer. Accordingly, Darshan Kumar Bali, DSP, Ellenabad was called to the spot. The car was searched and it was found to contain total 8 bags of Choora Post, 5 bags lying under a blanket and 3 in the dickey. Each bag weighed 41 kgs. Samples weighing 100 grams of the recovered substance were drawn from each of the bags. The samples as well as the remaining contents of the bags were made into parcels separately and sealed with the seals `HS' of Hoshiar Singh, SHO and `DKB' of Darshan Kumar Bali, DSP. After use the seal bearing impression `HS' was handed over to Maha Singh, ASI and the other seal bearing `DKB' impression was retained by the DSP himself. The case property along with car and blanket was taken in possession vide recovery Memo Exhibit-PA. The Sub-Inspector sent Ruqa, Exhibit-PD to Police Station for registration of FIR and also prepared the rough site plan, Exhibit-PG of the place of recovery. Both the accused were served with notice of arrest, Exhibit-PH and statements of witnesses were recorded. On return to Police Station, the case property was deposited with MHC and accused were put behind the bars. The samples were got analysed from the Forensic Science Laboratory, Madhuban, which were reported to be of poppy straw (Choora Post).

3. I have heard learned counsel for the parties and perused the material on record.

4. Learned Counsel for the appellants, at the outset argued that Babu Lal, the alleged independent witness cannot be termed as an independent witness, as he was a Home Guard personnel. It is argued that recovery was effected at a public place and the Investigating Officer had sufficient opportunity to join an independent witness from the public. The explanation that the Investigating Officer tried to associate some public persons, but they refused, cannot be accepted. It is further urged that even the said Babu Lal, who is alleged to have witnessed the search and seizure, has not been produced in the witness box. He was given up by the prosecution as having been won over by the accused. The non-production of the alleged independent witness certainly creates a doubt in the prosecution case. It is further argued that even the link evidence has not been proved beyond reasonable doubt. It is pointed out that the seal of the Investigating Officer bearing impression `HS' was handed over to Maha Singh, ASI, whereas, the seal of DSP bearing impression `DKB' was retained by the DSP himself. In case Babu Lal was cited by the prosecution as independent witness, the seal, after use, should have been handed over to him. There is no explanation coming forth on the record as to why the seal, after use, was not given to him, as, in normal circumstances, it is given to the independent witness. Learned counsel, thus, pointed that it may be possible that the alleged independent witness was not present at the spot. Another flaw pointed out by the learned counsel is that the seals affixed on the case property produced in Court were found in broken condition and were not even legible.

5. The next argument raised by learned counsel for the appellants is that samples remained with the prosecuting agency for about 8 days. The contraband is alleged to have been seized on 19.9.1995 and samples were sent to the forensic science laboratory on 27.9.1995. Since the seal remained with the prosecuting agency, the possibility of the samples having been changed, cannot be ruled out.

6. The learned State counsel while repudiating the submissions made by learned counsel for the appellants, argued that the case of the prosecution is proved to the hilt. He further submitted that there is no reason to disbelieve the testimony of Deputy Superintendent of Police and the Investigating Officer as they had no reason to falsely implicate the appellants. He further argued that even if there is no compliance of certain provisions of the Act, those are not mandatory in nature and it does not affect the case of the prosecution. He further submitted that non-examination of Babu Lal, PW would not demolish the case of the prosecution as he had been given up having been won over by the accused.

7. After hearing the rival contentions of both the sides and scanning the entire record carefully, I am of the view that prosecution has not been able to prove its case against the appellants beyond a reasonable shadow of doubt. In order to lend credibility to the prosecution case and to ensure transparency and fairness during search and seizure, some independent witness should have been associated by the Investigating Officer. Be that as it may, even the alleged independent witness Babu Lal, who was a Home Guard personnel, was not examined. Another material inconsistency in the prosecution case is that the seal of the Investigating Officer Hoshiar Singh was handed over to Maha Singh, ASI, though it could have well been handed over to Babu Lal, the said independent person. The prosecution has not been able to explain as to why the seal was not given to Babu Lal when in normal circumstances it should have been given to him. In such circumstances possibility cannot be ruled out that Babu Lal was not joined at all by the Investigating Officer and he was not present at the spot. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not despatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out. In the present case, the seal of Investigating Officer-Hoshiar Singh bearing impression `HS' was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out.

8. Undisputedly, the contraband was seized on 19.9.1995 and the samples were drawn on that very day. The samples remained with the prosecuting agency upto 27.9.1995. As per the standing instructions issued by the Narcotics Control Bureau, the sample must be despatched to the laboratory within 72 hours of its seizure to avoid any legal objection. However, in the present case, the samples were forwarded to the Chemical Examiner after 8 days of their seizure. It is well established by number of judicial pronouncements that where the seal remains with the police after use and the sample has been sent after a delay of 72 hours, this circumstance would be fatal to the prosecution case.

9. It has also been admitted by the Investigating Officer that when the remainder case property was produced in the Court, the seals were broken and indecipherable. No attempt appears to have been made by the prosecution to show as to how the seals were broken, therefore, the possibility of the case property being tampered with cannot be ruled out.

10. Yet another infirmity in the prosecution case is that the Investigating Officer did not even state that Form No. 29 was prepared at the spot on 19.9.1995, the date on which specimen seals were affixed. The said form was supposed to be deposited along with the samples of the case property in the Malkhana. But the Investigating Officer-Hoshiar Singh has nowhere stated that the said form was deposited in the Malkhana on 19.9.1995. Since the seals remained with the police after use and Form No. 29 was neither prepared on the spot nor deposited in the Malkhana, such circumstance has materially affected the prosecution case. Filling of Form 29 at the spot is a very valuable safeguard to ensure that the sealed sample is not tampered with till its analysis by the forensic science laboratory. The CFSL form should not only be prepared and sealed by the officer making seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO to whom the sample and the case property are handed over and the same should accompany the sample to the Chemical Examiner. The idea behind taking such a precaution is to complete the material link in the prosecution evidence by eliminating the possibility of the sample being tampered with. Co-related with the above facts is the importance of retaining the case property. The prosecution must make every attempt to preserve the case property till such time the appeal or revision, as the case may be, is decided. In the present case the prosecution has miserably failed to prove the link evidence to prove the guilt of the accused beyond a reasonable doubt. Therefore, extending the benefit of doubt, the appellants are acquitted of the charges framed against them and appeals are allowed. The impugned judgment of conviction and order of sentence are set aside. The bail/surety bonds, if any furnished in case appellants were on bail, shall stand discharged. Appeals allowed.