Punjab-Haryana High Court
Arjun Singh And Anr vs State Of Punjab on 28 July, 2023
Neutral Citation No:=2023:PHHC:096901
CRA-S-1830-SB-2014(O&M)
and other connected matter 1 2023:PHHC:096901
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Order Reserved on: 21.07.2023
Order Pronounced on:28.07.2023
1. CRA-S-1830-SB-2014(O&M)
Arjun Singh @ Marra and another ....... Appellants
Versus
State of Punjab ...... Respondent
2. CRA-S-987-SB-2014(O&M)
Sukhwinder Singh @ Billa ..... Appellant
Versus
State of Punjab ..... Respondent
CORAM : HON'BLE MR. JUSTICE HARPREET SINGH BRAR
***
Present: Mr. A.P.S.Sandhu, Advocate
for the appellants (in CRA-S-1830-SB-2014)
Ms.G.K.Mann, Senior Advocate with
Mr.Anmol Jeevan Singh Gill, Advocate
for the appellant (in CRA-S-987-SB-2014).
Mr.Iqbal Singh Maan, DAG, Punjab.
***
HARPREET SINGH BRAR, J.
1. The above mentioned two appeals have been directed against
the judgment of conviction and order of sentence dated 05.02.2014 passed
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by Special Court (A), Gurdaspur, in FIR No. 116 dated 18.08.2007, under
Section 15-61-85 of the Narcotic Drugs & Psychotropic Substances Act,
1985 (hereinafter referred to as 'the Act' for short), registered at Police
Station Ghoman, District Batala, Punjab, vide which the appellants were
convicted and sentenced to undergo rigorous imprisonment for a period of
10 years each and to pay a fine of Rs. 1,00,000/- for the commission of
offence punishable under Section 15 of the Act and in default of payment of
fine, they were further ordered to undergo rigorous imprisonment for a
period of 02 years.
FACTUAL BACKGROUND
2. Brief facts of the case are that on 18.08.2007, SI/SHO Makhan
Singh (investigating officer) along with other police officials was patrolling
the area of canal bridge Athwal where he received a secret information to
the effect that Sukhwinder Singh alias Billa, Arjun Singh alias Marra and
Manohar Lal were indulging in the sale of poppy husk and other intoxicants.
At that time they were sitting on the bags of poppy husk near Mogha Drain
Distributary, village Mehmadpur on the canal bridge waiting for a vehicle
and if a raid was conducted, they could be apprehended. This information
was passed on to Ajaib Singh DSP, Qadian on his mobile phone by the
investigating officer and he was requested to reach the spot. Thereafter the
investigating officer raided the disclosed place and found three persons
sitting on six bags. On seeing the police party, they tried to run away but
were nabbed with the help of police officials. On interrogation they
disclosed their names as mentioned above. They were told that there was a
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suspicion of their being in possession of poppy husk and some intoxicants
and were required to be searched. They were made aware of their legal right
to be searched in the presence of a Gazetted Officer or a Magistrate. They
showed their willingness to be searched by a Gazetted Officer. Dissent
memos were prepared. DSP, Qadian came to the spot and conducted the
search after disclosing his identity and getting the consent of the aforesaid
persons. On the asking of DSP, Qadian, the investigating officer opened
the six bags from which poppy husk was recovered. Out of the recovered
bags, five were weighed as 24 3/4 kg each and one bag weighed as 193/4 kg. In
total 145 kg of poppy husk was recovered. Samples were taken and sealed
with the seals bearing impression 'MS' and 'AS'. The case property was
taken into possession. A written information/ruqa was sent to the police
station through Constable Harjinder Singh on the basis of which formal FIR
was registered. Accused were arrested at the spot. After completing all the
formalities of investigation, a report under Section 173 Cr.P.C., was prepared
and presented in Court.
3. After complying with the provisions of Section 207 Cr.P.C.,
charge was framed against the accused for the commission of offence
punishable under Section 15 of the Act, to which all the accused did not
plead guilty and claimed trial.
4. In order to prove its case, prosecution examined as many as five
witnesses and its evidence was closed after tendering the report of Chemical
Examiner (Ex.PX).
5. Accused in their defence examined one witness i.e. DW1-
Amrik Singh and closed their evidence.
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6. After hearing arguments of both sides and perusing the
evidence on record, the trial Court convicted and sentenced the
appellants/accused as discussed above.
CONTENTIONS
7. Learned counsel for the appellants has invited the attention of
the Court towards the shortcomings in the case of the prosecution. He has
argued that the secret information allegedly received by the investigating
officer was not reduced into writing as mandated under Section 42 of the Act
and this fact has been admitted by the prosecution. As per counsel, recovery
of contraband has been shown from a public place but no independent
witness has been joined in the investigation. Further, conscious possession is
not proved.
He has further argued that Form 29 was not filled at the spot. He has
also drawn the attention of the Court towards certain discrepancies like- as
per prosecution DSP Ajaib Singh was called at the spot at 3.00 p.m. but he,
while deposing as PW2, stated that he received a phone call at 4.15 p.m. and
reached the spot 20 minutes thereafter; consent memo contained the number
of the FIR which means that the same was registered while sitting in the
police station. Another discrepancy highlighted by learned counsel is with
regard to depositing of the samples in the office of Assistant Chemical
Examiner, Amritsar. HC Sukhdev Singh, while appearing in the witness box
as PW1, stated that he received the sample on 24.08.2007 whereas the
investigating officer SI Makhan Singh, while appearing as PW3, stated that
the sample was handed over to HC Sukhdev Singh on 23.08.2007 and he
deposited the same on 24.08.2007. As per learned counsel for the appellants
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the sample should have been deposited within the prescribed period of 72
hours and hence the delay in depositing the sample is fatal to the case of the
prosecution and there is every possibility of tampering with the same. The
testimony of HC Sukhdev Singh (PW1) is by way of affidavit and the same
is not recorded before the trial Court as required in a criminal trial.
Moreover, seals were also not sent with the samples and this fact is admitted
by the I.O.
8. Learned senior counsel for the appellants has further argued
that report of Chemical Examiner is not proved on record. She also pointed
out violation of Section 52-A of the Act as the representative samples were
not taken before the Magistrate.
9. On the other hand, learned State counsel has supported the case
of the prosecution by arguing that the accused were found sitting on the bags
of the recovered contraband and hence they were in conscious possession of
the same. He has argued that all the procedural safeguards provided under
the Act were duly complied with. The appellants were found in
possession of a huge quantity of poppy husk which falls within the
'commercial quantity' and the prosecution has proved its case beyond
reasonable shadow of doubt and hence the learned State counsel has prayed
for dismissal of both the appeals.
OBSERVATION AND ANALYSIS
10. This Court has heard learned counsel for the parties and has
perused the record with their able assistance. All the three appellants were
found sitting on six bags of poppy husk on the bridge of the canal in village
Mehmadpur. The contention of learned counsel for the appellants is that the
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FIR was registered on the basis of secret information and the investigating
officer has not reduced the same into writing in compliance of Section 42 of
the Act which also requires sending the report forthwith to his immediate
superior officer. In order to ascertain the adequate or substantial compliance
of Section 42 of the Act, the memo of site plan (Ex.PW3/F) is perused and it
transpires that the place from where the alleged contraband was recovered is
a public place i.e. the road abutting the canal. Thus, the place of recovery is
accessible to the public and it is intended for public use. The argument of
learned counsel for the appellants with regard to non-compliance of Section
42 of the Act is misconceived. The mandatory compliance of Section 42 of
the Act is not applicable when the recovery of any contraband under the Act
is made from a public place. Rather, in the facts and circumstances of the
case, Section 43 of the Act would be applicable.
11. Learned counsel for the appellants has referred to the statement
of PW2-Ajaib Singh, DSP( Retired) who was called at the spot before
preparation of the consent memo. In his cross examination the said witness
had stated that he received the information at 4.15 p.m. and reached the spot
20 minutes thereafter and remained there for 3 1/2 hours and the alleged
contraband was recovered by SI Makhan Singh on searching the gunny bags,
whereas a perusal of the FIR (Ex.PW3/E) indicates the recovery having
taken place at 4.15 p.m. and the information was received at the police
station at 4.35 p.m. vide general diary entry No. 23. This glaring discrepancy
lends credence to the argument of learned counsel for the appellants that the
procedural safeguards under the Act were not followed. The Gazetted
Officer was never called at the spot and all the paperwork had been done
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while sitting in the police station.
12. Another conspicuous fact which creates a serious dent in the
story of the prosecution is that a perusal of Ex.PW3/A to Ex.PW3/C (memos
of non-consent), Ex.PW3/F (memo of site plan), Ex.PW3/G, EX.PW3/H and
Ex.PW3/J (memos of search of the appellants), Ex.PW3/K (memo of arrest),
Ex.PE (memo of recovery), Ex.PB, Ex.PC and Ex.PD (the consent memos
of the appellants) shows that they all bear the FIR Number '116'. When
ruqa (Ex.PW3/D) is perused, it transpires that the same was sent through
Constable Harjinder Singh belt No. 2836 to police station and it was
recorded in the ruqa that the FIR be registered and its number be intimated
to the investigating officer. It is the case of the prosecution that ruqa was
sent through Constable Harjinder Singh after preparing all the consent
memos and the poppy husk was recovered from the gunny bags and the
same were taken into possession vide recovery memo (Ex.PE). The samples
were drawn and other formalities were done at the spot. However, there is
no explanation by any of the witnesses as to how the FIR number came to be
reflected on those memos when admittedly the same was lodged later in
time. The above aspect raises a serious suspicion over the investigation
conducted by the investigating officer. In the absence of any reasonable
explanation by the prosecution with regard to reflecting the complete details
of the FIR on the consent memos as well as on the recovery memo which,
according to the case of the prosecution, was prepared at the first instance
before registration of the FIR, the case of the prosecution has become
highly doubtful.
13. The Hon'ble Supreme Court in Kamaljit Singh @ Pappu vs.
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State of Punjab, 2020(14) SCC 9 dealt with a similar issue where the
investigation was found to be suspicious on the ground that the FIR number
was mentioned on the memos which were prepared much prior to the
registration of FIR. Similarly, this High Court has also discarded the
investigation on the ground of mentioning of FIR number on the memos
prepared during investigation prior to registration of the FIR. A reference is
made to Sunny alias Siti vs. State of Punjab, Crl. Appeal No. 3730-SB of
2016 decided on 05.12.2022, Netar Pal vs. State of Haryana , 2018 (8)
RCR(Criminal) 352 and Kewal Singh vs. State of Punjab 2018(4)
RCR(Criminal) 580.
14. Another glaring omission in the investigation of the case is the
non-compliance of Section 52-A of the Act which requires reproduction and
the same is as follows:-
"52A. Disposal of seized narcotic drugs and psychotropic
substances.
(1) The Central Government may, having regard to the
hazardous nature of any narcotic drugs or psychotropic
substances, their vulnerability to theft, substitution, constraints
of proper storage space or any other relevant considerations,
by notification published in the Official Gazette, specify such
narcotic drugs or psychotropic substances or class of narcotic
drugs or class of psychotropic substances which shall, as soon
as may be after their seizure, be disposed of by such officer and
in such manner as that Government may from time to time,
determine after following the procedure hereinafter specified.
2) Where any narcotic drug or psychotropic substance has
been seized and forwarded to the officer-in-charge of the
nearest police station or to the officer empowered under section
53, the officer referred to in sub-section (1) shall prepare an
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inventory of such narcotic drugs or psychotropic substances
containing such details relating to their description, quality,
quantity, mode of packing, marks, numbers or such other
identifying particulars of the narcotic drugs or psychotropic
substances or the packing in which they are packed, country of
origin and other particulars as the officer referred to in sub-
section (1) may consider relevant to the identity of the narcotic
drugs or psychotropic substances in any proceedings under this
Act and make an application, to any Magistrate for the purpose
of
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of
such drugs or substances and certifying such photographs as
true; or
(c) allowing to draw representative samples of such drugs or
substances, in the presence of such Magistrate and certifying
the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence
Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973
(2 of 1974), every court trying an offence under this Act, shall
treat the inventory, the photographs of narcotic drugs or
psychotropic substances and any list of samples drawn under
sub-section (2) and certified by the Magistrate, as primary
evidence in respect of such offence."
The safeguard provided under Section 52-A is in furtherance of Article
21 of the Constitution of India which guarantees fair and impartial
investigation. A perusal of Ex.P6-Chemical Examiner's report along with the
statement of PW1-HC Sukhdev Singh indicates that the sample was drawn
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on 18.08.2007 and it was sent to the Chemical Examiner on 23.08.2007
which was received in his office on 24.08.2007. As such, there is a delay of
more than five days in sending the samples to the Chemical Examiner. As
per the prescribed procedure, representative sample of any contraband after
seizure and deposit in the Malkhana or with the concerned SHO is required
to be sent to Chemical Examiner within 72 hours as per instructions issued
vide Standing Order No. 1 of 1988 dated 15.03.1988 by the Narcotics
Control Bureau. A further scrutiny of the evidence reveals that after drawing
the sample on 18.08.2007, it is not discernible who was the custodian of the
same till 23.08.2007 when PW1-HC Sukhdev Singh received the same and
further deposited it on the next day i.e. 24.08.2007 in the office of the
Chemical Examiner. Neither the concerned MHC was produced as a witness
nor Register No. 19 was produced to establish the deposit of the samples in
safe custody which was necessary to be produced to rule out the possibility
of any tampering. Reliance in this regard can be made on Narcotics
Control Bureau vs. Ajmer Kumar and another, 2016 ILR (HP) 1090 and
Jitender Singh Rathore vs. State of U.P. 2014 (4) RCR (Criminal) 462
wherein on the basis of the above lapse, accused were acquitted.
15. Even Form 29 was not filled at the spot which was required to
be verified by the Magistrate along with inventory and the representative
samples were also required to be drawn in the presence of the concerned
Magistrate as mandated under Section 52-A of the Act. The case of the
appellants is fully covered by the ratio of law laid down in Union of India
vs. Bal Mukund and others, 2009(2) RCR (Criminal) 574. As such, there
is a clear non-compliance of Section 52-A of the Act as also the guidelines
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issued by a two Judge Bench of the Hon'ble Supreme Court in Union of
India vs. Mohan Lal, 2016 (1) RCR (Criminal) 858, speaking through
Justice T.S.Thakur, which are reproduced hereasunder:-
"20. To sum up we direct as under:
(1) No sooner the seizure of any Narcotic Drugs and
Psychotropic and controlled Substances and Conveyances is
effected, the same shall be forwarded to the officer in-charge of
the nearest police station or to the officer empowered under
Section 53 of the Act. The officer concerned shall then
approach the Magistrate with an application under Section
52A(ii) of the Act, which shall be allowed by the Magistrate as
soon as may be required under Sub-Section 3 of Section 52A, as
discussed by us in the body of this judgment under the heading
'seizure and sampling'. The sampling shall be done under the
supervision of the magistrate as discussed in paras 13 and 14 of
this order."
16. It is a well settled proposition that the representative samples
must be drawn before the Magistrate as per the ratio laid down in UOI vs.
Mohan Lal (supra). Recently, a two Judge Bench of the Hon'ble Supreme
Court in Mangilal vs. The State of M.P., Crl. Appeal No. 1651 of 2023
decided on July 12, 2023, speaking through Justice M.M.Sundresh, while
acquitting the accused, has observed that the mandate of Section 52-A of the
Act has to be duly complied with. The following was observed:-
"8. Before any proposed disposal/destruction mandate of
Section 52A of the NPDS Act requires to be duly complied with
starting with an application to that effect. A Court should be
satisfied with such compliance while deciding the case. The
onus is entirely on the prosecution in a given case to satisfy the
Court when such an issue arises for consideration. Production
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of seized material is a factor to establish seizure followed by
recovery. One has to remember that the provisions of the NDPS
Act are both stringent and rigorous and therefore the burden
heavily lies on the prosecution. Non-production of a physical
evidence would lead to a negative inference within the meaning
of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter
referred to as the Evidence Act). The procedure contemplated
through the notification has an element of fair play such as the
deposit of the seal, numbering the containers in seriatim wise
and keeping them in lots preceded by compliance of the
procedure for drawing samples."
17. This Court in Malkeet Singh alias Kala vs. State of Punjab,
2009(1) RCR (Criminal) 353 has relied upon the observations made by the
Hon'ble Supreme Court in State of Rajasthan vs. Gurmail Singh, 2005(2)
RCR(Criminal) 58 with regard to delay in sending the samples to the
Chemical Examiner and observed as under:-
"11. It was next submitted by the Counsel for the appellant,
that though the alleged recovery was effected on 03.07.1997,
yet the samples were sent to the office of the Chemical
Examiner on 08.07.1997 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 reached 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 05 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) RCR (Criminal) 611
(P&H), there was a delay of 14 days, in sending the sample to
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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) RCR
(Criminal) 58 : 2005(1) Apex Criminal 521 (SC)., 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) RCR (Criminal) 452 (P&H), 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."
18. Admittedly, Section 52-A of the Act was inserted by Act 2 of
1989 which came into force w.e.f. 29.05.1989. Section 52-A (2) (c) of the
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Act provides for drawing a representative sample of the seized contraband in
the presence of a Magistrate. On the other hand, para 1.5 of the Standing
Order No. 1 of 1988 requires that the samples of the seized contraband must
be drawn on the spot of recovery in duplicate. Similar provision is provided
in Standing Order No.1 of 1989 dated 13.06.1989. As such, the Standing
Orders cannot supersede the implication of Section 52-A of the Act. Further,
the law is well settled that whenever there is a conflict between the Act and
the instructions relating to the same subject matter, the Act would prevail but
where the instructions supplement the Act, the former would have a binding
force.
19. The sanctity of the statutory instructions contained in the
Standing Orders issued by the Narcotics Control Bureau came up for
consideration before the Hon'ble Supreme Court in Noor Aga vs. State of
Punjab, 2008 (16) SCC 417, where a two Judge Bench, speaking through
Justice S.B.Sinha, held as under:-
"32. Recently, this Court in State of Kerala & Ors. v. Kurian
Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582], following the
earlier decision of this Court in Union of India v. Azadi Bachao
Andolan [(2004) 10 SCC 1] held that statutory instructions are
mandatory in nature.
Logical corollary of these discussions is that the guidelines
such as those present in the Standing Order cannot be blatantly
flouted and substantial compliance therewith must be insisted
upon for so that sanctity of physical evidence in such cases
remains intact. Clearly, there has been no substantial
compliance of these guidelines by the investigating authority
which leads to drawing of an adverse inference against them to
the effect that had such evidence been produced, the same
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would have gone against the prosecution."
A comparison of the Standing Order No.1 of 1988 with Section 52-
A (2) (c) of the Act shows that there there is a divergence with regard to
drawing of the representative samples. Standing Order No.1 of 1988
provides for drawing of sample at the spot, whereas Section 52-A of the Act
provides for drawing of sample in the presence of a Magistrate. Therefore, in
the light of Act 2 of 1989, inserting Section 52-A in the Act as well as the
ratio of law laid down in UOI vs. Mohan Lal (supra), it is clear that as far
as the manner in which representative samples are required to be drawn, the
investigating agency is bound to follow the drill of Section 52-A of the Act.
As far as the mode and time limit for dispatch of samples is concerned, para
1.13 of the Standing Order No. 1 of 1988 provides that samples must be
dispatched to the laboratory within 72 hours of seizure to avoid any legal
objection and this time limit. In view of the ratio of law laid down by the
Hon'ble Supreme Court in Noor Aga (supra), Bal Mukund (supra) and
Mangilal (supra), the Investigating Officers are bound to follow the
procedural safeguards provided under Standing Order No. 1 of 1988 and
Standing Order No. 1 of 1989 as these are in addition to the procedural
safeguards provided under the Act and the same further strengthen the
procedural protection keeping in view the stringent punishment provided
under the Act. These Standing Orders are mandatorily required to be
adhered to as long as they do not override the provisions of the NDPS Act.
Some of the relevant provisions of the Standing Order No. 1/88 are as
follows:-
"1. Quantity of different drugs required in the sample - The
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quantity to be drawn in each sample for chemical test should be
5 grams in respect of all narcotic drugs and psychotropic
substances except in the cases of Opium Ganga and
Charas/Hashsish were a quantity of 24 grams in each case is
required for chemical test. The same quantities should be taken
for the duplicate sample also.
2. The seized drugs in the packages/containers should be
well mixed to make it homogeneous and representative before
the sample in duplicate is drawn.
3. When more than one sample is drawn, each sample
should also be serially numbered and marked as S-1, S-2, S-3
and so on, both original and duplicate sample. It should carry
the serial number of the packages and marked as P1, 2, 3, 4
and so son.
4. It needs no emphasis that all samples must be drawn and
sealed in presence of the accused, Panchnama witnesses and
seizing officer and all of them shall be required to put their
signature on each sample.
5. Samples must be dispatched to the Laboratory within 72
hours of seizure to avoid any legal objection."
The above omission on the part of the investigating officer with
regard to total non-compliance of the instructions issued vide Standing
Order No.1 of 1988 coupled with the delay and non-filling of Form 29 at the
spot would tantamount to a serious flaw in the investigation and it suffocates
the prosecution case completely.
20. It is settled law that non-examination of an independent witness
is not fatal for the case of the prosecution but in the instant case neither any
effort was made to associate any independent witness nor any explanation is
forthcoming for not doing so. The Hon'ble Supreme Court in Kishan
Chand vs. State of Haryana AIR 2017 (SC) 3751 has laid down the ratio
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that the failure of the investigating officer to associate an independent
witness at the time of recovery creates a dent in the case of the prosecution.
A two Judge Bench of the Hon'ble Supreme Court in Gorakh Nath Prasad
vs. State of Bihar, 2018(1) RCR (Criminal) 108 has acquitted the accused
holding that the case of the prosecution cannot be entirely based upon the
statements of the official witnesses when no independent witness has been
joined in the investigation.
21. In the present case the investigating officer, SI Makhan Singh-
PW3 is also the complainant of the case. He should have refrained himself
from investigating the case as this would negate the concept of fair and
impartial investigation which is the bedrock of the principle of fairness of
official action in terms of Article 21 of the Constitution of India. The
Hon'ble Supreme Court in State by Inspector of Police, Narcotic
Intelligence Bureau, Madurai, Tamil Nadu v. Ranjangam 2010(15) SCC
369, reaffirmed that since the arrest and search is made by the complainant,
he should not involve himself with the investigation of the case. Such an
officer leading the investigation would forthrightly raise questions as to the
fairness and impartiality of the said investigation process. Following the
suit, a Division Bench of Calcutta High Court in Laltu Prasad v. The State
of West Bengal 2017(2) RCR(Criminal) 237 set aside a conviction in view
of delayed depositing of sample and the complainant acting as the
investigating officer. Similarly, the Hon'ble Supreme Court in Megha
Singh v. State of Haryana 1996(11) SCC 709, opined that the complainant
who had intercepted the accused, recovered the arms and registered the case
should have recused himself from the investigation as it raises doubts
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regarding the impartial nature of the investigation. Free and fair trial
inspiring confidence in the public is the cornerstone of the criminal justice
system.
22. As discussed by the Hon'ble Supreme Court in Ajay Singh
and another v. State of Chhattisgarh and another 2017(1)
RCR(Criminal) 559, all litigants deserve to be treated with the fair hand,
without being partial to the agony of the victim or too sympathetic to the
cause of the accused. The parties rightly expect certain principles of natural
justice and fundamental postulates of substantive and procedural law to be
adhered to. Criminal jurisprudence is rooted in the assumption that the
accused is innocent until proven guilty.
23. The Hon'ble Supreme Court in State of Gujarat v. Hon'ble
Mr. Justice R.A. Mehta (Retd) 2013(3) SCC 1 observed that the doctrine
of bias is a leg of principles of natural justice and stems from the legal
maxim nemo debet esse judex in sua propria causa - one shall not be the
judge in his own case. If the circumstances are such that it would create a
reasonable apprehension of bias in the minds of the onlookers, it is sufficient
to invoke the doctrine of bias. The test for likelihood of bias and reasonable
apprehension of bias are interchangeable and hence, the parameters for both
can be construed to be similar.
24. A three Judge bench of the Hon'ble Supreme Court of India in
Mohan Lal v. State of Punjab AIR 2018 SC 3853, speaking through
Justice Navin Sinha, made the following observations in this regard:-
"25. In view of the conflicting opinions expressed by different
two Judge Benches of this Court, the importance of a fair
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investigation from the point of view of an accused as a
guaranteed constitutional right under Article 21 of the
Constitution of India, it is considered necessary that the law in
this regard be laid down with certainty. To leave the matter for
being determined on the individual facts of a case, may not only
lead to a possible abuse of powers, but more importantly will
leave the police, the accused, the lawyer and the courts in a
state of uncertainty and confusion which has to be avoided. It is
therefore held that a fair investigation, which is but the very
foundation of fair trial, necessarily postulates that the
informant and the investigator must not be the same person.
Justice must not only be done, but must appear to be done also.
Any possibility of bias or a predetermined conclusion has to be
excluded. This requirement is all the more imperative in laws
carrying a reverse burden of proof."
25. A three Judge bench of the Hon'ble Supreme Court in
Varinder Kumar v. State of Himachal Pradesh 2020(3) SCC 321,
speaking through Justice Navin Sinha, has further clarified the applicability
of the ratio of law laid down in Mohan Lal (supra) in cases pending before
the decision in this case and observed as follows:-
"18. The criminal justice delivery system, cannot be allowed to
veer exclusively to the benefit of the offender making it
unidirectional exercise. A proper administration of the criminal
justice delivery system, therefore requires balancing the rights
of the accused and the prosecution, so that the law laid down in
Mohan Lal (supra) is not allowed to become a spring board for
acquittal in prosecutions prior to the same, irrespective of all
other considerations. We therefore hold that all pending
criminal prosecutions, trials and appeals prior to the law laid
down in Mohan Lal (supra) shall continue to be governed by
the individual facts of the case."
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The instant appeals pertain to the year 2014. As such, even without
applying the ratio of law laid down in Mohan Lal (supra) in view of the
directions issued by the Hon'ble Supreme Court in Varinder Kumar
(supra), still there are gaping holes and inadequacies in prosecution
evidence. The link evidence is completely missing. The prosecution has
miserably failed to knit together the circumstances which point towards the
hypothesis of complicity of the appellants beyond a reasonable shadow of
doubt.
CONCLUSION
26. In Mousam Singha Roy vs. State of West Bengal, (2003) 12
SCC 377, the Hon'ble Supreme Court has observed that it is a settled
principle of criminal jurisprudence that more serious the offence, stricter the
degree of proof, since a higher degree of assurance is required to convict the
accused.
27. The foundation of justice dispensation rests upon the public
faith and trust. Every accused is entitled to the procedural safeguards and the
investigating agencies cannot deviate therefrom. Hence, the fundamental
right to a fair trial, as envisaged under Article 21 of the Constitution,
becomes all the more essential to dispensation of justice. An investigating
officer, in this context, becomes the linchpin of criminal justice delivery
system. Articles 14, 21 and 39-A of the Constitution cast an obligation on
him to follow the procedural safeguards in ensuring fair investigation.
28. In view of the above discussion, the aforesaid appeals are
allowed. The judgment of conviction and order of sentence dated
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05.02.2014 passed by passed by Special Court (A), Gurdaspur, are set aside.
Appellants namely Arjun Singh @ Marra, Manohar Lal and Sukhwinder
Singh @ Billa are acquitted of the charges framed against them. Their bail
bonds and surety bonds stand discharged.
29. Pending miscellaneous application(s), if any, shall also stand
disposed of.
30. The case property, if any, may be dealt with as per rules after
the expiry of period of limitation for filing the appeal(s). Record of the case
be sent back to the Court below.
(HARPREET SINGH BRAR)
JUDGE
28.07.2023
sunita
Whether speaking/non speaking : Yes/No
Whether reportable/non reportable : Yes/No
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