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PUNJAB & HARYANA HIGH COURT
Sarojnei Saksena, J.
Jai Singh
Versus
State Of Haryana
Criminal Appeal No. 809 of 1986,
Decided On : MAY 17, 1995
CRIMINAL APPEAL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 18 AND 20 - POSSESSION OF OPIUM AND CHARAS - EVIDENCE - LINK EVIDENCE - AFFIDAVITS OF POLICE OFFICIALS - CROSS-EXAMINATION - SECTION 313 CR.P.C. - ANALYSIS REPORT - SEAL ON SAMPLE - TAMPERING - BENEFIT OF DOUBT.
Fact of the Case:
Accused-appellant was convicted under Sections 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possession of opium and charas. The prosecution case was that the accused was apprehended with a bag containing opium and charas, and that a sample of the seized contraband was sent to the Chemical Examiner for analysis. The accused denied the charges and claimed false implication.
Finding of the Court:
The court found that the prosecution evidence was contradictory and unreliable. The police witnesses failed to explain why they did not join any independent witnesses at the time of the alleged search and seizure, despite the presence of several persons at the scene. The court also found that the accused had been previously acquitted in two similar cases, which raised suspicion of false implication.
Issues: 1. Whether the prosecution evidence was sufficient to prove the guilt of the accused beyond reasonable doubt. 2. Whether the link evidence in the form of affidavits of police officials was admissible in evidence. 3. Whether the analysis report of the Chemical Examiner was reliable.
Ratio Decidendi: 1. The court held that the prosecution evidence was contradictory and unreliable, and that the failure of the police witnesses to join independent witnesses at the time of the alleged search and seizure raised suspicion of false implication. 2. The court held that the link evidence in the form of affidavits of police officials was inadmissible in evidence, as the deponents were not kept present for cross-examination and the accused was not given an opportunity to cross-examine them. 3. The court held that the analysis report of the Chemical Examiner was not reliable, as the prosecution failed to prove beyond doubt that the seal on the sample was intact and had not been tampered with after the seizure.
Final Decision: The court allowed the appeals, set aside the convictions and sentences, and acquitted the accused.
1. Accused-appellant has preferred these aforesaid appeals against the judgement 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 Substance 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 lakh in default to further sentence of three years in both the cases.
2. Factual matrix of the case in that on 1-2-1986, ASI Dharam Singh along with 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 wrapped in wax paper. Immediately, thereafter personal search of the accused was taken and from the front pocket of shirt of the accused 50 grams of charas were 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 PI was also duly sealed. Seziure memo Exhibit PA was drawn and was attested by Om Prakash 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 recorded the statements of witnesses also. Then, he brought the accused to the police station along with 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, experts opined that the sample was charas. On these facts, accused was prosecuted on both the cases for the aforesaid offences.
3. In both the cases, prosecution examined Jai Bhagwan P.W. 1and Dharam Singh P.W. 2. 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, be 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 along, he was acquitted by Shri B. R. Gupta, Addl. Sessions Judge, Karnal on 3-6-1986. He produced copies of the judgements delivered in those cases along with copies of the challans (FIRs Exhibits D1 and 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 lakh and default to further undergo R.I. for 3 years. Relying on the same evidenc
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