Sham Sunder, J.@mdashThis appeal is directed against the judgment of conviction and the order of sentence dated 14.07.200S, rendered by the
Judge, Special Court, Kapurthala, vide which she convicted the accused (now appellant), for the offence, punishable u/s 15 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred to be as the ''Act'' only) and sentenced him to undergo RI for a period of 10 years
and to pay a fine of Rs. 1 lac, in default of payment of fine to two years, for having been found in possession of 60 Kgs poppy husk, without any
permit or licence.
2. The facts, in brief, are that on 3.7.1997 ASI Harjinder Singh along with H.C. Gian Singh and other police officials was going on the unmetalled
passage, leading from Latianwala to Ahmadpur Channa, in connection with patrol duty, and when the police party reached near the motor of Ex-
Sarpanch Kewal Singh, resident of village Ahmadpur, from the side of Ahmadpur Channa, a person was seen coming, carrying two bags on the
carrier of his cycle. He was apprehended on suspicion. He disclosed his name as Malkiat Singh alias Kala son of Karnail Singh, r/o Village
Latianwala, Police Station Sultanpur Lodhi. The search of the carrier of the cycle was conducted, in the presence of the DSP, Sub Division,
Sultanpur Lodhi, who was called to the spot, by sending a message, as a result whereof, two bags were recovered. Each bags contained 30 kgs
poppy husk. A sample of 250 grams of poppy husk, was taken out, from each of the bags. The samples and the bags, containing remaining poppy
husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station,
on the basis whereof the FIR was recorded. The site plan was prepared. The accused was arrested. The statements of the witnesses, were
recorded. After the completion of investigation, the accused was challaned.
On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge u/s 15 of the Act,
was framed against the accused, to which he pleaded not guilty, and claimed judicial trial.
3. The prosecution, in support of its case, examined Malkiat Singh, Constable, (PW-1), Sakattar Singh, Head Constable, (PW-2), Surinder Singh,
DSP, (PW-3), Balbir Singh, Inspector, (PW-4), and Gian Singh, Head Constable, (PW-5) and Harjinder Singh, ASI, (PW-6). Thereafter, the
Addl. Public Prosecutor of the State, closed the prosecution evidence.
4. The statement of the accused, u/s 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances,
appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that on 29.6.1997, the police officials raided
his house, on the basis of suspicion, in some theft case. It was further stated by him that on 30.06.1997, the police officials, assured the Sarpanch
and respectables of the village that they would leave him (accused), but later on, they did not release him, but on the other hand, planted this case
against him.
In his defence, the accused examined Partap Singh, Head Constable, (DW-1), Harjit Singh, Constable (DW-2), Onkar Singh (DW-3) and Manjit
Singh, Constable (DW-4). Thereafter, the defence evidence was closed.
5. After hearing the Additional 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.
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.
6. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
7. The Counsel for the appellant, at the very outset, submitted that no independent witness, was joined by the Investigating Officer, despite
availability, as a result whereof, the case of the prosecution, became doubtful. The submission of the counsel for the appellant, in this regard,
appears to be correct. Harjinder Singh, ASI, (PW-6), during the course of cross-examination, stated that they did not take any independent
witness, while starting from the Police Station. He further stated that the Constable, who was sent to bring an independent witness, on return, told
him that nobody was ready to join the police party, from village Ahmadpur Chhana. He further stated that he did not mention this fact in the ruqa.
Harjinder Singh, ASI (PW-6) also did not mention this fact in any other document, prepared at the spot. He also did not mention this fact in the
case diary. It means that the statement of Harjinder Singh, ASI to the effect, that the Constable, was sent to bring an independent witnesses, and
on return, he told that none was ready to join the Police Party, is not correct. Under these circumstances, it can be very well held that no effort was
made to join an independent witness. Since minimum stringent punishment is provided for the offences, punishable under the Act, and according to
the provisions of Section 51 of the Act, the provisions of the Code of Criminal Procedure, relating to search, seizure and arrest shall apply to the
extent the same are not inconsistent with the provisions of the Act, it was imperative, on the part of the Investigating Officer, to join an independent
witness, at the time of the alleged search, and seizure, or at least to make a genuine, sincere and real effort, to join such a witness. The search and
seizure, before an independent witness, would have imparted much more authenticity, and creditworthiness, to the proceedings, so conducted. It
would have also verily strengthen the prosecution case. The said safeguard was also intended to avoid criticism of arbitrary and high-handed
action, against the authorized Officer. In other words, the Legislature, in its wisdom, considered it necessary to provide such a statutory safeguard,
to lend creditability to the procedure, relating to search and seizure, keeping in view the severe punishment, prescribed under the Act. That being
so, it was imperative for the authorized Officer, to follow the reasonable, fair and just procedure, as envisaged by the Statute, and failure to do so,
must be viewed with suspicion. The legitimacy of judicial procedure, may come under cloud, if the Court is seen to condone acts of violation of
statutory safeguards, committed by the authorized officer, during search and seizure operation, and may also undermine respect of law. That
cannot be permitted. It is, no doubt, true that, in the absence of corroboration through an independent source, the evidence of the official
witnesses, cannot be disbelieved and distrusted, blind-foldely, if the same is found to be creditworthy. However, when the evidence of the official
witnesses, is found to be not cogent, convincing, reliable and trustworthy, then on account of non-corroboration thereof, through an independent
source, certainly a doubt is cast, on the prosecution story. In the instant case, the evidence of the prosecution witnesses, does not inspire
confidence, in the mind of the Court. In this view of the matter, non-corroboration of the evidence of the official witnesses, through an independent
source, certainly makes the case of the prosecution suspect. In State of Punjab v. Bhupinder Singh 2001(1) R.C.R. 356, a Division Bench of this
Court, held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the recovery was effected
from a busy locality. In State of Punjab v. Ram Chand 2001(1) R.C.R. 817, a Division Bench of this Court, held that it was imperative to join an
independent witness, to vouchsafe the fair investigation. On account of non-joining of an independent witness, it was held that the accused was
entitled to be given the benefit of doubt. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant
case. On account of non-joining of an independent witness, at the time of the alleged search and seizure, the case of the prosecution, became
highly doubtful. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned.
8. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected on 3.7.1997, yet the samples were sent to
the office of the Chemical Examiner on 8.7.1997 and, thus, the delay of 5 days, in sending the same to the office of the Chemical Examiner,
remained unexplained and, as such, the possibility of tampering with the same, until the same reach the Laboratory, could not be ruled out. No
explanation, whatsoever, was furnished as to why the samples were not sent to the office of the Chemical Examiner, for about OS days. Had any
explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been
furnished, in this regard, the Court cannot coin any of its own. In Gian Singh v. State of Punjab 2006(2) R.C.R.611, 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) R.C.R. 58, (Supreme Court), the contraband remained in the Malkhana for 20 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. In Ramji Singh v. State of Haryana 2007(3) R.C.R. 452, the sample was sent to the office of the Chemical
Examiner after 72 hours, the seal remained with the police official, and had not been handed over to any independent witness. Under these
circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. 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 the instant case, the
principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 05 days, in sending the
samples to the office of the Chemical Examiner, 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 same, could not be ruled out. The
submission of the Counsel for the appellant, in this regard, being correct, is accepted.
9. It was next submitted by the Counsel for the appellant, that the provisions of Section 55 of the Act, were not complied with, as a result whereof,
a prejudice was caused to the accused. Section 55 of the Act, lays down that an Officer Incharge of the Police Station, shall take charge of and
keep in safe custody, pending the orders of the Magistrate, all articles seized, under this Act, 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-in-charge of the Police Station. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the
samples are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that actually a
specific quantity of the contraband was recovered from the accused. No doubts the provisions of Section 55 of the Act are directory, in nature,
yet that does not mean that the same should be deliberately and intentionally beached. Had any explanation been furnished, by the Investigating
Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the search and seizure, the
matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer,
in this regard, the Court cannot coin any of its own, it fit in with the prosecution case. Since, there was deliberate and intentional breach of the
provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be. condoned. In Gurbax Singh v. State of Haryana 2001(1)
R.C.R. 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, as such, failure
will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid
authority, is fully applicable to the facts of the instant case. As stated above, since the Investigating Officer, intentionally and deliberately breached
the provisions of Section 55, he could not say that the provisions of Section 55 being directory, in nature, he was not bound to comply with the
same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be
flouted with impunity, by him. Compliance of the said provision is an indicator, towards the reasonable, fair and just procedure, adopted by the
Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed
with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Courts condone acts of violation of statutory safeguards,
committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted.
Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt, on the prosecution
story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned.
10. It was next submitted by the Counsel for the appellant that the provisions of Section 57 of the Act, were not complied with, as a result
whereof, prejudice was caused to the accused. 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. Similar principle of law, was laid down, in
Gurbax Singh''s case (supra). However, the Investigating Officer, cannot totally ignore these provisions, as 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 the contraband, so that he must be aware of the genuineness of the proceedings,
conducted by his junior, to ensure that no innocent person is implicated, and the allegations of highhandedness, 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, prejudice was caused to the accused, and, 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.
11. It was next submitted by the Counsel for the appellant, that the sample impression of the seals was neither deposited with the MHC, nor the
same was sent to the office of the Chemical Examiner, for deposit, as a result whereof, it could not be ascertained, as to whether, the seals on the
samples were the same, as were affixed, at the time of alleged search and seizure. The submission of the Counsel for the appellant, in this regard,
appears to be correct. Ex.PA is the affidavit of Malkiat Singh, Constable, who took the sample parcels, to the office of the Chemical Examiner.
There is nothing, in his affidavit, that he was handed over the specimen impression of the seals and he deposited the same in the office of the
Chemical Examiner, along with the sample parcels. Harjinder Singh, ASI (PW-6), stated that, in the ruqa, he did not mention that specimen seal
was prepared at the spot. The other evidence, produced by the prosecution, in this case, to prove the link evidence, is not only deficient but also
unreliable. Non-strict proof, by the prosecution, that the sample was not tampered with, until it was deposited in the office of the Chemical
Examiner, must prove fatal to the case of the prosecution. In these circumstances, the possibility of tampering with the sample parcel could not be
ruled out. In State of Rajasthan v. Gurmail Singh 2005(2) R.C.R. 58, (Supreme Court), the sample seal was not sent to the Laboratory, at the time
of sending the sample parcel. The Apex Court, held that the case of the prosecution was doubtful, on account of this reason. In this view of the
matter, the case of the prosecution also became doubtful. The trial Court, did not take into consideration, this aspect of the matter, as a result
whereof, miscarriage of justice occasioned.
No other point was urged, by the Counsel for the parties.
12. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based,
on the correct appreciation of evidence, and law, on the point. Had the trial Court taken into consideration, the aforesaid infirmities, and lacunae, it
would not have reached the conclusion, that the accused committed the offence, punishable u/s 15 of the Act. The judgment of conviction, and the
order of sentence are, thus, liable to be set aside.
13. For the reasons recorded, herein before, the appeal is accepted. The judgment of conviction, and the order of sentence dated 14.07.2005, 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.
