Jai Singh v. State Of Haryana .

Dr. Sarojnei Saksena, J.:— Accused-appellant has preferred these aforesaid appeals against the judgment dated 4.11.1986 delivered by Shri K.C Gupta, Additional Sessions Judge, Karnal, in Sessions Trial Nos. 51 and 52 of 1986 wherein accused-appellant is convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) in Sessions Trial No. 51/1986 and under Section 20 of the Act in Sessions Trial No. 52/1986 and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac in default to further sentence of three years RI in both the cases.

2. Factual matrix of the case is that on 1.2.1986, ASI Dharam Singh alongwith HC Jai Bhagwan and other police officials was present at Meerut Chowk at 3.00 p.m near G.T road in connection with patrolling duty. At about 3.15 p.m he saw the accused coming from the side of Sugar Mill. Seeing the police party, accused took a turn, thus arousing suspicion of the police party. Dharam Singh ASI with the help of the members of his party, apprehended the accused. Accused was carrying a bag in his right hand. Search of this bag was conducted, it contained one kilogram of opium (sic) pocket of the shirt of the accused 50 grams of charas was recovered. Twenty grams of opium and 10 grams of charas were separated therefrom as sample which was sealed in a small tin with the seal of DS. Remaining opium and charas were also sealed in tin separately. Tin exhibit P1 was also duly sealed. Seizure memo exhibit PA was drawn and was attested by Om Parkash Constable and Jai Bhagwan Head Constable. After use, the seal was handed over to Jai Bhagwan, HC. Dharam Singh ASI sent ruqa Ex.PB to the police station whereupon FIR Exhibit PB/1 was recorded by Shanti Dass. On the spot, Dharam Singh ASI prepared rough site plan Exhibit PC and Page: 629recorded the statements of the witnesses also. Then, he brought the accused to the police station alongwith seized contraband. He deposited the case property with seals intact in the Malkhana of the police station. Moharrir Head Constable sent both the samples to the Chemical Examiner for analysis. After analysis, report Exhibit PD was received. In Sessions Case No. 51/86, expert opined that the sample contained opium while in Sessions case No. 52/86 expert opined that the sample was of charas. On these facts, accused was prosecuted in both the cases for the aforesaid offences.

3. In both the cases, prosecution examined Jai Bhagwan PW1 and Dharam Singh PW2. Affidavits of Constable Karan Singh Exhibit PE and that of Surat Singh HC exhibit PF were tendered in evidence.

4. Accused denied guilt in both the cases and pleaded false implication. His defence was that Dharam Singh ASI and Ram Mehar Constable arrested him from his house on 1.2.1986 in the early hours of the morning and took him to the police station, City, Karnal. Under the instructions of City Inspector Mr. Bakshi, he was falsely implicated in these cases on the pretext that they were to give maximum number of cases under the Act. He further stated that earlier also, he was falsely implicated in such two cases under the Act in similar manner and FIR numbers 813 and 814 were registered against him for keeping in his possession opium as well as charas. In both those cases, he was acquitted by Shri B.R Gupta, Addl. Sessions Judge, Karnal on 3.6.1986 He produced copies of the judgments delivered in those cases alongwith copies of the challans (FIRs Exhibits D1 & D2 in both those cases).

5. The trial Court relying on the prosecution evidence and rejecting the defence plea, held the accused guilty in Sessions trial Court No. 51/86 under Section 18 of the Act for keeping in his possession 1 kg. opium without licence and sentenced him to 10 years Rigorous Imprisonment with fine of Rs. 1 lac and in default to further undergo R.I for 3 years. Reiving on the same evidence, he also convicted the accused in Sessions Trial No. 52/86 under Section 20 of the Act for keeping in his possession 50 grams charas and sentenced him to undergo R.I for 10 years with fine of Rs. one lac and in default of payment of fine to further undergo Rigorous Imprisonment for three years.

6. Evidence recorded in both the Sessions Cases is common. The arguments advanced in both the appeals are also common and hence both these appeals are decided by this judgment.

7. The appellant's learned counsel contended that the trial Court has not scanned the evidence of both these prosecution witnesses minutely. Their statements are contradictory and are not dependable. They have not joined any independent witness at the time of alleged search and seizure though even according to these witnesses many persons were present there. To support his arguments, he has relied upon Swama v. The State of Punjab, 1987 (2) Recent CR 117 and Union Territory, Chandigarh v. Shamsher Singh, 1992 (2) Recent CR 67. He also pointed out the discrepancies in the statements of both these witnesses.

8. Learned counsel appearing on behalf of the respondent relied on Inderjit v. The State of Punjab, 1978 PLR 341, The State of Punjab v. Ram Parkash, 1977 PLR 571, Jai Parkash v. State, 1979 Criminal Law Journal 1167 and Nathusing v. The State of Madhya Pradesh, (1974) 3 SCC 584 : AIR 1973 SC 2783. He strongly stressed that no doubt no independent witness was joined at the time of the alleged seizure, but its reason is duly explained by both these prosecution witnesses. They have categorically stated that they asked the persons who were present there to join investigation, but, they declined. Further in such a case where no independent witness is joined, the Court is cautioned to scrutinise the prosecution evidence minutely and to arrive at a conclusion whether the statements of these official witnesses are reliable or not. Learned counsel pointed out that the learned trial Court has minutely scanned the evidence of both these prosecution witnesses and finding them dependable convicted the appellant-accused Page: 630for both these offences. He further submitted that though there are certain discrepancies in the statements of both these witnesses, but they are not on material facts and further those parts of their statements can be discarded, but on the basis of the remaining part of the testimony, the accused could have been and is rightly convicted by the trial Court. No oblique motive is suggested by the accused as to why he has been falsely implicated in these cases.

9. The contention of the learned counsel for the appellant is forceful. Jai Bhagwan PW has stated that before the search they were standing towards Sugar Mill road after crossing G.T road. At a distance of 20 paces from the place where they were standing, there are many shops of tea vendors, tyre repairs and other mechanical workshops. There is a Truck Union officer also on the other side of the G.T Road. He has admitted that they were standing at a crowded place when they saw the accused. People on foot were also going on the road in front and behind the accused. Accused started walking swiftly and went about 15-20 paces. He was apprehended by the police party. At that time, he was holding a bag in his hand. According to Jai Bhagwan, 2-4 persons collected at the spot where the accused was apprehended. ASI Dharam Singh also admits that there is office of the truck union across the GT Road where they were standing. Dharam Singh has stated that when they apprehended the accused, none had collected at the spot. Dharam Singh again admits that people were coming and going on the road when he apprehended the accused, but, still none was joined at the time of search and seizure. He is unable to give the names of the persons whom he asked to join because he never asked their names. In the case diary also only vague entries are made that passers-by refused to become witnesses. In the police diary also, names of these persons are not mentioned. He has not taken any action against those persons who refused to join investigation. Thus, on this material point, the statements of these two witnesses are contradictory.

10. At the time of seizure, Dharam Singh was standing with the police party near the crossing of G.T Road, a place which is a business centre and of heavy traffic as well. Explanation of Dharam Singh is only with regard to the passers-by. He has not said a word as to why these shopkeepers or anybody from the truck union's office were not called to witness the alleged search and seizure. From their statements, it is evident that witnesses were available, but, still on flimsy explanation that they refused to join, none was joined. Had this explanation been true, ASI Dharam Singh might have been able to state the names of those persons who refused to join and their names would have been recorded in the case diary as well. Thus, it becomes apparent that deliberately independent witnesses were not joined.

11. Accused-appellant has filed copies of the judgments Exhibits D1 and copies of challan Ex.D2 in both these cases. In Sessions Case No. 36/86 (in connection with FIR No. 813 dated 16.12.85 recorded at police station City Karnal) accused was prosecuted under Section 15 of the Act on the allegation that on 16.12.1985 police party consisting of ASI Parkash Chand and Constable Krishan Kumar were present at Meerut Chowk, Karnal in connection with patrol duty. They spotted the accused-Jai Singh coming from the side of Sugar Mill carrying a bag in his right hand. On seeing the police party, he tried to slip away. On suspicion, he was apprehended. Search of the bag was taken. It was found that it contained 5 kg. of poppy husk. His personal search was also taken. From the front pocket of the shirt, 50 grams of charas was recovered.

12. Thus, it is apparent that on 16.12.1985 also accused was prosecuted under Sections 15 & 20 of the Act for carrying a bag containing poppy husk and 15 grams of charas in his front left pocket of the shirt. The place of recovery is the same. The place where the police party was standing, the direction from where the accused was coming is also the same in both those cases decided earlier (Ex.D1) and in these cases under appeal. This is sufficient to give rise to suspicion that the accused is falsely implicated in these cases. Even otherwise, the prosecution story is improbable and unbelievable. If earlier on 16.12.1985 the appellant was arrested on the very spot for carrying Page: 631opium husk and charas, then on 1.2.1986 when he saw the police party approaching towards him, it would have been a prudent step for him to throw away the bag and packet of charas from his pocket. As per the statements of both these witnesses, accused-appellant did not try to run away. According to them, he started retreating to rescue himself. No attempt was made to join any independent witnesses. In this background also non-joining of the independent witnesses becomes more significant. It supports the defence plea that he has been falsely implicated in these two cases as well.

13. The appellant's learned counsel further contended that under the above circumstances, it cannot be said that it is a case of chance recovery. Under the garb of patrolling, the investigating officer has tried to avoid the mandate of Section 50 of the Act. He clarified that previous history (referred to previous judgment Ex.D1 in both the cases) shows that Dharam Singh must be having some secret information, in pursuance thereof at that point of time, he came to that very spot to arrest the accused. This contention has little force. Dharam Singh has stated that he went there on patrol duty. Further, I have discussed above that the accused-appellant appears to have been falsely implicated in these cases as well. In view thereof, this contention has little force.

14. Appellant's learned counsel further contended that ASI Dharam Singh was in no better position than complainant in this case. He had admitted that he investigated these offences as well. He not only seized contraband from the accused, prepared its sample; sealed the parcel, sent the ruqa, prepared the site plan, but also recorded the statements of the witnesses and later on deposited seized contraband with MHC of the police station. Thus, according to him, the whole of the investigation being against the settled principle of criminal jurisprudence, is ipso facto contrary to the legislature, the accused is entitled to acquittal. He has supported his arguments by relying on Gian Chand v. The State of Rajasthan, 1993 Cr. Law Journal 3716 and Darshan Kumar v. The State of Rajasthan, 1994 Cr. Law Journal Notes of Cases 28.

15. In Piara v. State of Punjab, Crl. A. No. 815-SB/86 similar argument was advanced before me. Disagreeing with the view of the Rajasthan High Court, I have repelled this contention and have held that under Section 67(c) of the Act, police official, seizing the contraband from the accused, is entitled to record the statement of any person acquainted with the facts of the case. I find this contention has no force.

16. His another contention is that link evidence should not have been considered by the learned trial Court as Constable Karan Singh and HC Surat Singh were not kept present in the Court for cross-examination and hence their evidence exhibits PE and PF could not have been read as evidence in the case. In this connection, he further contended that this link evidence was not even put to the accused when he was examined under Section 313 Cr.P.C

17. This contention has force. In both the cases, affidavits were tendered in evidence, but in the zimni order, there is no mention that Constable Karan Singh and HC Surat Singh were present in Court for cross-examination. Even in the order-sheet of this date, there is no mention that these witnesses were present in the Court for cross-examination. Thus, no opportunity was given to the accused-appellant to cross examine these witnesses. When accused-appellant was examined under Section 313 Cr.P.C in question No. 2, he was asked that the sample was taken out from the seized contraband, both parcels were duly sealed with the seal of DS and in question No. 3 he was asked that the sample was sent to the Chemical Examiner and his report Ex.PD shows that the article recovered from the accused was opium/charas. Thus, it is apparent that the aforesaid link evidence is not put to the accused under Section 313 of the Criminal Procedure Code.

18. By adducing such link evidence, prosecution intends to prove that on the spot after the seizure sample was duly sealed by the police officials. Then, on that very day Page: 632it was deposited in the Malkhana of the police station. At that time, the seal on the sample was intact. MHC kept it in the Malkhana in safe custody and thereafter this sample was handed over by MHC to Constable to be taken to Chemical Examiner's laboratory. At that time also, seal on the sample was intact. It was not tampered with. The constable who took it to the laboratory also did not tamper with the seal. Thus, the prosecution wants the Courts to believe that from the stage the sample was prepared till it reached the Chemical Examiner's laboratory, the seal put on the sample was intact and it was not tampered with because in all such cases the seal used is of the name of the police official, who seized the contraband. In these cases after the seal was used on the sample, it was handed over to Jai Bhagwan HC PW1. He is also posted in this very police station.

19. Surprisingly enough, in the order sheet dated 13.10.1986, the presence of the accused and his counsel is mentioned, but, in this order sheet, there is a mention that affidavits of formal witnesses are tendered in evidence and thereafter it is mentioned that Public Prosecutor closed the prosecution evidence. On that very day, accused was examined under Section 313 of the Criminal Procedure Code. Order-sheet contains proceedings conducted in a case on particular day. In view of this fact, I fail to understand why the zimni order was written separately to record that affidavits were tendered in evidence and thereafter the Public Prosecutor closed the prosecution evidence. Sometimes, it creates confusion because in the zimni order presence of the accused and his counsel is not mentioned.

20. In State of Punjab v. Sewa Singh, 1992 (3) Recent CR 359, Division Bench of this High Court has held that after the recovery of the opium on the spot, Investigating Officer deposited the same alongwith sample prepared with MHC in the police station Lehra. Therefrom, the sample must have been sent through the messenger to be handed over in the office of the Chemical Examiner. The prosecution was required to place evidence on record to show that this was done by a particular messenger and when the sample was taken from the police station to the office of the Chemical Examiner, seal on the sample was not tampered with. The Court further observed that this evidence could only be produced by examining the said constable in the Court or by an affidavit duly proved by him in the Court. This evidence is certainly of material nature. It was held that in the absence of this evidence, the prosecution has failed to prove that the material recovered was opium.

21. In Sham Lal v. State of Haryana, 1993 (2) Recent CR 403 prosecution did not examine the constable who deposited the opium and MHC with whom the opium was deposited. Constable who took the sample to Chemical Examiner was also not examined. Their affidavits were also not tendered in evidence. Hence, it was held that the link evidence was missing. It was further held that the evidence of PWs was not put to the accused when his statement was recorded under Section 313 of the Criminal Procedure Code, their affidavits have to be excluded from consideration. In that case also so-called link evidence was not put to the accused when he was examined under Section 313 Cr.P.C In that case such affidavits were tendered after the final arguments were heard. At the evidence stage, no doubt when the prosecution evidence was being recorded, these affidavits were tendered in evidence, but the deponents were not kept present for cross-examination. In this case, there is no such mention either in the zimni order or in the order sheet dated 13.10.1986 that the counsel of the accused declined to cross-examine these deponents. Further, this link evidence is not put to the accused-appellant when he was examined under Section 313 of the Criminal Procedure Code. Thus, the conclusion is inevitable. This so-called link evidence tendered in the shape of affidavits of Constable Karan Singh Exhibit PE and HC Sural Singh Ex.PF cannot be taken into consideration. The resultant effect is that the report of the Chemical Examiner Exhibit P.D in both the cases cannot be acted upon as this possibility is not ruled out that after the seizure and before the analysis the sample was not tampered with. The prosecution is required to prove beyond Page: 633doubt that after the seizure till the sample analysed, the seal affixed on the sample/parcel was intact and was not tampered with.

22. In this connection, learned Assistant Advocate General relied upon Hariram Balram Pande v. State of Maharashtra, 1911 (1) FAC 56 and Durlab Singh v. State of Punjab, 1984 (2) FAC 107 and drew my attention to the reports of the chemical examiner Ex.PD wherein it is mentioned that the seal on the sample was found intact and had agreed with the sample seal sent.

23. The above two authorities are distinguishable on facts as stated above. So far as the endorsement made on the report Ex.PD is concerned that is not in dispute, the sample was found duly sealed and agreed with the sample seal sent, but on the basis of this endorsement it cannot be held that after the seizure when this sample was prepared and sealed till it reached the Chemical Examiner's Laboratory, the seal was not tampered with. On this count also I find that the accused is entitled to get the benefit of doubt.

24. No other point is pressed before me.

25. In view of the above findings, the appellant-accused is entitled to the benefit of doubt. Resultantly, both the appeals are allowed. Appellant-accused is acquitted of both the charges. Conviction and sentence awarded in both the judgments under appeal are set aside. If he is in custody, and if he is not required in any other case, he be released forthwith. Fine if deposited be refunded to him.