Punjab-Haryana High Court
Jagjit Singh vs St Of Hry on 9 September, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:118351-DB
CRA-D-862-DB-2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-862-DB-2005
Reserved on: 30.08.2024
Date of decision: 09.09.2024
JAGJIT SINGH @ KALA
...Appellant
Versus
STATE OF HARYANA
...Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Mohinder Singh Kathuria, Advocate (Legal Aid Counsel)
for the appellant.
Mr. P.P. Chahar, Sr. DAG, Haryana.
****
SURESHWAR THAKUR, J.
1. The instant appeal is directed against the verdict made on
19.08.2005, upon Sessions Case No. 32 of 2004, by the learned Sessions Judge,
Sirsa, wherethrough he convicted the accused for a charge drawn qua an offence
punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances
Act (hereinafter referred to as "the Act"). Moreover, through a separate
sentencing order of 22.08.2005, he proceeded to impose upon the convict
sentence of rigorous imprisonment extending upto a period of 15 years, besides
imposed upon him, sentence of fine of Rs.1,00,000/-, besides in default of
payment of fine amount, he sentenced the convict to undergo rigorous
imprisonment extending upto a period of five years.
2. The accused-convict became aggrieved from the above drawn
verdict of conviction, and, also the consequent therewith sentence(s) (supra), as
became imposed. Resultantly, he instituted thereagainst the instant appeal
bearing No.CRA-D-862-DB-2005.
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FACTUAL BACKGROUND
3. The genesis of the prosecution case are that, on 16.10.2003, ASI
Jagdish Rai while posted as such at CIA staff, Sirsa, was present near Old Truck
Union, Sirsa, in connection with patrolling and crime detection along with ASI
Jai Pal Singh, EHC Karambir Singh, EHC Rajinder Singh and other police
officials. The police party was in a police jeep. ASI Jagdish Rai received a secret
information to the effect that a truck with fictitious No.HR-31-4157 whereas its
real registration number was RJ-31G-1558 was loaded with Choora post bags
and had gone towards Dabwali from Sirsa and that the owner of the said truck
was accused Jagjit Singh @ Kala son of Harjinder Singh and that the accused
was himself driving the said truck. On this secret information ASI Jagdish Rai
sent a written intimation Ex.PE to the Deputy Superintendent of Police (HQ)
Sirsa, as required under Section 41 of the NDPS Act and thereafter he formed
Dabwali a raiding party and proceeded towards Dabwali to apprehend the said
truck. When the police party crossed village Panjuana and reached near a T-Point
Bhangu they noticed the truck and as such the truck in question was apprehended
and got stopped on the T-Point of village Bhangu. A fictitious registration
number plate bearing registration No.HR-31-4157 was found affixed on the truck
on the front as well as back side. The accused Jagjit Singh @ Kala was driving
the said truck and hence he was apprehended. ASI Jagdish Rai then served a
written notice under Section 50 the NDPS Act, Ex.PH to the accused informing
him he had a suspicion that there was some contraband substance in the truck
and, therefore the same was to be searched and that he had a right to get the truck
searched in the presence of a Gazetted Officer or Magistrate if he so desired. The
accused vide his reply Ex.PH/1 desired that the search of the truck be conducted
in the presence of a Gazetted Officer. The notice Ex.PH and the reply Ex.PH/1
were signed by the accused and attested by ASI Jaipal Singh and EHC Karambir
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Singh. ASI Jagdish Rai then summoned Shri Rai Singh, Deputy Superintendent
of Police, Sirsa, for conducting the search of the truck in his presence. He also
summoned a photographer from Sirsa. Shri Rai Singh, Deputy Supdt. of Police
then reached the place of recovery within few minutes and a photographer also
reached there from Police Station Sadar Sirsa. The search of the truck was then
commenced in the presence of Shri Rai Singh, DSP. The photographer had also
taken the photographs before and after conducting the search. On search of the
truck, the same was found with 170 bags containing poppy husk. Two samples of
choora post, each weighing 100 gms., were separated from each bag and the
remaining choora post in each bag was found to be 39 Kgs., 800 gms. All the
samples and the gunny bags with the remaining choora post were separately
sealed with the seals of JR as well as of RS and were taken into possession along
with the and truck vide recovery memo Ex.PF which was attested by ASI Jaipal
Singh, EHC Karambir Singh and DSP Rai Singh. The seal after use was handed
over to ASI Jaipal Singh. ASI Jagdish Rai then conducted the search of the cabin
of the truck in the presence of the Deputy Superintendent of Police and from the
cabin registration certificate Ex.P353 of the truck was recovered besides a
driving licence registration Ex.P.354 and a bilty Ex.P.355. From the registration
certificate Ex.P353, it was found that the correct registration number of the truck
was RJ-31-G-1558. ASI Jagdish Rai also checked the engine number chassis
number as mentioned in registration certificate and the same tallied with the
engine number and chassis number recorded on the chassis of the truck. The
documents were taken into possession vide recovery memo Ex.PG attested by
the aforesaid witnesses. ASI Jagdish Rai then sent a ruqa Ex.PA the police
Station Baragudha which led to the registration of the present case vide formal
FIR Ex.PA/1.
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4. He also recorded the statements of witnesses under Section 161
Cr.P.C., prepared rough site plan of the place of recovery Ex.PI with the correct
marginal notes and arrested the accused formally in this case. On return to the
police station, Baragudha, ASI Jagdish Rai produced the accused, witnesses and
the case property before SI/SHO Ramesh Kumar at Police Station Baragudha
who verified the facts from the witnesses and the accused and examined the case
property and the samples which had already been sealed on the spot. After
verification, he affixed his own seal RK on the residue parcels, sample parcels
and also on the specimen sheet. ASI Jagdish Rai also produced his report Ex.PB
before the SHO as required under Section 57 of the NDPS Act and the SHO
made his endorsement Ex.PB/1 and directed ASI Jagdish Rai to deposit the case
property with the MHC and to lodge the accused in the police lock up and ASI
Jagdish Rai did accordingly. ASI Jagdish Rai also recorded the other statements
of formal witnesses and completed other ususal investigation. 170 sealed sample
parcels, (one sample out of the two samples taken from each bag) were sent to
FSL Madhuban for analysis and the report of the FSL Ex.PJ reveals that the same
were of poppy straw (choora post). After completion of the necessary
investigation, the case was sent up in the Court of Session for trial of the
accused.
Trial Court Proceedings
5. On completion of investigations, challan was filed in the learned
trial Court against the accused. On his appearance before the learned trial Court,
he was charge-sheeted for the commission of an offence punishable under
Section 15 of the said Act, besides for offences punishable under Section 468
and 471 of the IPC, to which he pleaded not guilty and claimed trial.
Subsequently after the recordings of depositions of 7 witnesses, the learned
public prosecutor closed the prosecution evidence but after tendering the report
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of the FSL, to which Ex.PJ is assigned. After the closure of the prosecution case,
the learned trial Judge drew proceedings under Section 313 Cr.P.C., whereins,
the accused pleaded innocence, and, claimed false implication. However, he led
one witness in his defence evidence.
Submissions of learned counsel for the convict-appellant
6. Learned counsel for the convict-appellant submits, before this Court
that since the recovery, as become made from the offending vehicle, and, as
carried in Ex.PG. Consequently, as required by Section 42 of the Act, the
mandatory statutory provision, remaining uncomplied with. Therefore, it is
argued that the charge drawn against the appellant rather remaining not cogently
established.
Submissions of the learned State counsel
7. Learned State counsel has argued that the impugned verdict of
conviction, and, consequent thereto sentence (supra), as became imposed upon
the convict by the learned trial Judge concerned, is meritworthy, as the same
does not suffer from any taint of any gross mis-appreciation or non-appreciation
of any evidence germane to the charge. Therefore, he contends that the impugned
verdict of conviction be maintained, and, affirmed by this Court.
Analysis of the submissions of learned counsel for the convict-appellant and
the reasons for accepting the same
8. Through Ex.PG recovery of contraband was made from the
offending vehicle, which was being driven by the accused. Therefore, thereby
there was no requirement for the investigating officer concerned, to beget
compliance with the mandatory statutory provisions, as embodied in Section 50
of the Act.
9. A reading of the deposition of the investigating officer concerned,
reveals that after recovery of the said contraband being made, thus thereons
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becoming embossed seal impressions, carrying thereons English alphabets 'JR'.
The said seals along with the seal impressions 'RS' of the DSP, thus became
made on the seized contraband, rather at the crime site.
10. However, as further revealed by the deposition of the SHO, of the
police station concerned, who stepped into the witness box as PW2, the latter
after receiving the seized contraband, at the police station concerned, thus
proceeded to emboss thereons seal impression 'RK'.
11. Furthermore, as revealed from a reading of the in-charge of the
malkhana concerned, who stepped into the witness box as PW-3, the said seizure
became deposited in the malkhana concerned. He has also categorically spelt in
his affidavit, that so long as it remained in his custody, thereupto the case
property remained untampered. Subsequently, as deposed by him, vide RC
No.219 dated 23.10.2003 the case property became sent through (Constable Jai
Parkash No.773) to the FSL concerned. During the course of his carrying the
case property to the FSL concerned, no material emerges, thus exemplifying qua
thereons any tampering being made.
12. A reading of the report of the FSL concerned, as becomes enclosed
in Ex.PJ, contents whereof are extracted hereinafter, thus vividly reveals, that
170 sealed cloth parcels became received there, thus through Constable Jai
Parkash 773. The above made narrations in the report of the FSL concerned, do
completely tally with the speakings, as made by the prosecution witnesses
concerned, both in respect of the numbers of the seal impressions, as became
made on the seizure, besides also tally with the English alphabets, as became
embossed thereons. Therefore, but obviously it has to be concluded, that the
enclosed residue in cloth parcels, which became removed from the bulk, for
examinations thereons being made, by the FSL concerned, becoming completely
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related or being compatible, to the numbers of the seal impression, as made
thereons, besides with the English alphabets, as became embossed thereon.
Xxx
Description of parcel(s)
One Hundred Seventy sealed cloth/paper parcel(s) each sealed with
3 seals of JR, 1 seal of RS & 1 seal of RK enclosing ..... containing
the exhibits 1 to 170.
xxx
Results
Qualitative Tests:- (Exbt 1 to 170)
Meconic Acid: Present Thebaine: Present
Morphine: Present Papaverine: Present
Codeine: Present Narcotine: Present
Quantitative Tests:-
Morphine Percentage: NA
OPINION: The samples (Exbt. 1 to 170) were identified as Poppy
straw (Choora post) of Papaver somniferum L.
Weight of the Sample returned: 70 gms each (Exbt. 1 to 170)
Note: After examinations, the remains of the exhibits were sealed
with the seals of AD /General/FSL(H).
xxx"
13. Even no contest became raised by the learned counsel defence that
the FSL report Ex.PJ, thus was not made in respect of contents enclosed in the
sealed cloth parcels (supra), nor any contest became raised by the learned
defence counsel, that the thereons embossed number(s) of seal impressions,
besides the embossed thereons, thus English alphabets, rather not tallying either
with the number(s) of the seal impressions or with the English alphabets, as
became embossed thereons, and, as became depicted in the road certificate. In
consequence, prima facie any argument as becomes raised before this Court by
the learned counsel for the convict-appellant, that the report of FSL (supra), as
made on the stuff retrieved, from the sealed cloth parcels, rather not relating to
the residue enclosed therein, after separating the same from the bulk, thus after
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seizure thereof being made at the crime site, rather tentatively is a pretextually
raised argument before this Court. In consequence, tentatively the same warrants
its rejection, and, is tentatively rejected as such.
14. In addition, whatsoever argument is raised before this Court, by the
learned counsel for the convict-appellant, that the report, as became made by the
FSL concerned, on the sealed cloth parcels, thus is not related to the stuff inside
them, and, as became purportedly separated from the bulk, at the crime site, but
necessarily tentatively is also a pretextual argument.
15. Importantly, the result of the apposite examinations, as becomes
extracted hereinabove, makes vivid echoing that after examinations of the stuff,
as was enveloped in the sealed cloth parcels, thus such examinations unfolding,
that thereins became enclosed remains of contraband. Conspicuously, when the
report of the FSL concerned, also recites that after examination of the stuff inside
the sealed cloth parcels, the said examined stuff, became re-enclosed in sealed
cloth parcels, and, thereons became affixed seals of the FSL concerned.
16. Though the said above recitals, as occur in the report of the FSL
concerned, also do not become contested by the learned counsel. Though, the
sequel of no contest being raised to the above recitals, though is that, the learned
defence counsel, neither asking nor was required to be given any opportunity,
thus for production of the cloth parcel enclosing therein, the stuff examined by
the FSL concerned, and, in respect whereof an affirmative opinion was made.
17. Though the effect of the above opportunity neither being asked nor
being granted to the learned defence counsel, during the course of cross-
examination, of the prosecution witnesses concerned, is prima facie naturally
that, the above opportunity has been waived or abandoned by the learned defence
counsel. In consequence, the further effect thereof, is that, the presumption of
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truth as attachable through attracting theretos, the mandate existing in Section
292 of the Cr.P.C., does thereby rather prim facie acquire conclusivity. Therefore,
though for non-production of the parcel containing the residue, as became
separated from the bulk, at the crime site, rather before the learned trial Court
concerned, does not yet prima facie snap the link, inter se the residue becoming
separated from the bulk, at the time of recovery of the contraband, being made at
the crime site, vis-à-vis, the production of the said residue, which after its
examination became re-enclosed in a cloth parcel by the FSL concerned.
18. However, learned counsel for the convict-appellant has also
submitted, that since it was a prior information recovery, and, thereby the
investigating officer concerned, was required to, obtain search warrant or
authorization, in terms of Section 42 of the Act, provisions whereof become
extracted hereinafter, whereas, since the said search warrant or authorization
from the jurisdictional Magistrate concerned, has not been obtained, thereby the
mandatory statutory provisions as contained under Section 42 of the Act, on
becoming evidently not complied, as such, the appellant is entitled to a verdict of
acquittal.
"[42. Power of entry, search, seizure and arrest without
warrant or authorisation.-- (1) Any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the departments of
central excise, narcotics, customs, revenue intellegence or any other
department of the Central Government including para-military forces
or armed forces as is empowered in this behalf by general or special
order by the Central Government, or any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the revenue, drugs
control, excise, police or any other department of a State Government
as is empowered in this behalf by general or special order of the State
Government, if he has reason to believe from personal knowledge or
information given by any person and taken down in writing that any
narcotic drug, or psychotropic substance, or controlled substance in
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respect of which an offence punishable under this Act has been
committed or any document or other article which may furnish
evidence of the commission of such offence or any illegally acquired
property or any document or other article which may furnish evidence
of holding any illegally acquired property which is liable for seizure or
freezing or forfeiture under Chapter VA of this Act is kept or concealed
in any building, conveyance or enclosed place, may between sunrise
and sunset,-
(a) enter into and search any such building, conveyance or
place;
(b) in case of resistance, break open any door and remove any
obstacle to such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or
conveyance which he has reason to believe to be liable to confiscation
under this Act and any document or other article which he has reason
to believe may furnish evidence of the commission of any offence
punishable under this Act or furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person
whom he has reason to believe to have committed any offence
punishable under this Act:
[Provided that in respect of holder of a licence for manufacture
of manufactured drugs or psychotropic substances or controlled
substances granted under this Act or any rule or order made
thereunder, such power shall be exercised by an officer not below the
rank of sub-inspector:
Provided further that] if such officer has reason to believe that a
search warrant or authorisation cannot be obtained without affording
opportunity for the concealment of evidence or facility for the escape
of an offender, he may enter and search such building, conveyance or
enclosed place at any time between sunset and sunrise after recording
the grounds of his belief.
(2) Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief under the
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proviso thereto, he shall within seventy-two hours send a copy thereof
to his immediate official superior.]"
19. Moreover, since in the interregnum inter se sunset and sunrise the
search or raid of the conveyance (supra), became made, therebys reiteratedly
unless the raiding party possessed the search warrant or authorization, thereupon
the search of the offending conveyance by the raiding party but was vitiated, the
same breaching the statutory provisions embodied in Section 42 of the Act.
Reasons for accepting the said argument
20. Be that as it may, since the rigor of the said statutory provision
would become relaxed only when in terms of the second proviso to Section 42 of
the Act, the police officer has recorded reasons to believe, that given the evident
consumption of time rather for obtaining the search warrant or authorizations,
therebys but affording an opportunity for the concealment of evidence or facility
for the escape of an offender. However, when evidently no document, in terms of
the exception to the statutory proviso, thus exists on record. Contrarily, when in
the presence of the DSP, the search of the conveyance was carried out.
Therefore, the fact that the search of the conveyance was carried out in the
presence of the DSP, but cannot relieve the statutory necessity (supra), thus
ordaining that the search warrant or authorization is but required to be obtained,
thus obviously from the jurisdictional Magistrate concerned. The reason being
that the issuance of a search warrant or authorization, rather is an empowerment
which is vested in the jurisdictional Magistrate concerned, as the provisions
embodied in Section 100 of the Cr.P.C., provisions whereof becomes extracted
hereinafter, do vest the said apposite empowerment rather only in the
jurisdictional Magistrate and not in the DSP concerned.
"100. Persons in charge of closed place to allow search.--(1)
Whenever any place liable to search or inspection under this Chapter
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is closed, any person residing in, or being in charge of, such place,
shall, on demand of the officer or other person executing the warrant,
and on production of the warrant, allow him free ingress thereto, and
afford all reasonable facilities for a search therein.
(2) If ingress into such place cannot be so obtained, the officer
or other person executing the warrant may proceed in the manner
provided by sub-section (2) of section 47.
(3) Where any person in or about such place is reasonably
suspected of concealing about his person any article for which search
should be made, such person may be searched and if such person is a
woman, the search shall be made by another woman with strict regard
to decency.
(4) Before making a search under this Chapter, the officer or
other person about to make it shall call upon two or more independent
and respectable inhabitants of the locality in which the place to be
searched is situate or of any other locality if no such inhabitant of the
said locality is available or is willing to be a witness to the search, to
attend and witness the search and may issue an order in writing to
them or any of them so to do.
(5) The search shall be made in their presence, and a list of all
things seized in the course of such search and of the places in which
they are respectively found shall be prepared by such officer or other
person and signed by such witnesses; but no person witnessing a
search under this section shall be required to attend the Court as a
witness of the search unless specially summoned by it.
(6) The occupant of the place searched, or some person in his
behalf, shall, in every instance, be permitted to attend during the
search, and a copy of the list prepared under this section, signed by the
said witnesses, shall be delivered to such occupant or person.
(7) When any person is searched under sub-section (3), a list of
all things taken possession of shall be prepared, and a copy thereof
shall be delivered to such person.
(8) Any person who, without reasonable cause, refuses or
neglects to attend and witness a search under this section, when called
upon to do so by an order in writing delivered or tendered to him, shall
be deemed to have committed an offence under section 187 of the
Indian Penal Code"
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21. Resultantly, when since neither search warrant nor authorization(s)
became obtained by the raiding party rather before the making(s) of search of the
offending vehicle, thus from the jurisdictional Magistrate concerned, nor when
any document become scribed thus echoing therein the reason to believe that in
case time is consumed on obtaining such a search warrant or authorization,
thereupons an opportunity would become afforded for concealment of evidence
or for the fleeing of the offender. Therefore, the search as made of the offending
vehicle, even if it was made in the presence of a Gazetted Officer, is a statutorily
vitiated search. Resultantly, the non obtaining of search warrant or authorization
by the raiding party, thus before theirs making search of the offending vehicle,
naturally comprise a deep pervasive breach being made to the relevant statutory
provisions. Therefore, the prosecution case staggers.
Arguments of the learned State counsel and the reasons for rejecting
22. Nonetheless, the learned State counsel submits that since in terms of
Section 293 and 294 of the Cr.P.C., provisions whereof becomes extracted
hereinafter, thus a rebuttable presumption of truth becomes assigned to the
reports prepared by the Experts, as become detailed in sub Section 4 of Section
293 of the Cr.P.C. Resultantly, he submits that since therebys the Court has a
discretion to summon and examine any such expert, as to the subject matter of
his report. Moreover, since therebys an opportunity is assigned to the accused
rather to bely the results of the examination made over the subject examined by
the Expert concerned. Therefore, he submits that since the said opportunity is
waived by the accused, through the learned defence counsel permitting the
making of exhibition marks on the report of the FSL concerned. Resultantly the
results of the incriminatory examination (supra), as made by the FSL concerned,
over the subject concerned, is admissible in evidence but irrespective of the fact,
that after examination of the stuff at the FSL, the same remaining unenclosed in
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cloth parcels, nor the seal impressions of the FSL concerned, becoming
embossed thereons, besides the cloth parcels remaining unproduced in Court for
the same being then shown to the prosecution witnesses concerned.
293. Reports of certain Government scientific experts.--(1)
Any document purporting to be a report under the hand of a
Government scientific expert to whom this section applies, upon any
matter or thing duly submitted to him for examination or analysis and
report in the course of any proceeding under this Code, may be used as
evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such
expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a Court, and he is
unable to attend personally, he may, unless the Court has expressly
directed him to appear personally, depute any responsible officer
working with him to attend the Court, if such officer is conversant with
the facts of the case and can satisfactorily depose in Court on his
behalf.
(4) This section applies to the following Government scientific
experts, namely:--
(a) any Chemical Examiner or Assistant Chemical Examiner
to Government;
[(b) the Chief Controller of Explosives;]
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director [, Deputy Director or Assistant Director] of a
Central Forensic Science Laboratory or a
State Forensic Science Laboratory;
(f) the Serologist to the Government;
[(g) any other Government scientific expert specified, by
notification, by the Central Government for this
purpose.]
294. No formal proof of certain documents.--(1) Where any
document is filed before any Court by the prosecution or the accused,
the particulars of every such document shall be included in a list and
the prosecution or the accused, as the case may be, or the pleader for
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the prosecution or the accused, if any, shall be called upon to admit or
deny the genuineness of each such document.
(2) The list of documents shall be in such form as be prescribed
by the State Government.
(3) Where the genuineness of any document is not disputed, such
document may be read in evidence in inquiry, trial or other proceeding
under this Code without proof of the signature of the person to whom it
purports to be signed:
Provided that the Court may, in its discretion, require such
signature to be proved.
23. Be that as it may, he yet further reiteratedly submits that in terms of
Section 294 of the Cr.P.C., provisions whereof becomes extracted hereinabove,
since the said report became included in a list and when upon its/their production
in Court, at the instance of the learned Public Prosecutor concerned, there was an
opportunity vis-a-vis the accused to either admit or deny the genuineness of the
said report. Therefore, reiteratedly he submits that since the said opportunity
remained unavailed. Contrarily with the learned defence counsel rather
permitting the making of an exhibition mark thereons, thereupon in terms of
Section 293(4) of the Cr.P.C., the report of the FSL was per se readable in
evidence.
24. He further reiteratedly submits that thereby yet the link commencing
from the date of preparation of recovery memo and upto the drawing of the
report remains fully established, therebys the charge drawn against the accused
becomes cogently proven, irrespective of existence of the above infirmity
relating to the non production of the examined stuff before the Court concerned,
for the same then being shown to the prosecution witness or to the expert
concerned.
However, for the reasons to be assigned hereinafter the said made argument
before this Court by the learned State counsel is not acceptable.
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25. Firstly for the reason that though in terms of the Section 293(3) of
the Cr.P.C., rather the experts concerned, when proceed to make a report in
respect of the subject matter concerned, thereupon the said report is usable as
evidence. However, the usability of such report rather is not conclusive proof
vis-a-vis the results of the examinations as disclosed therein. The reason for
making the said conclusion becomes sparked from the factum, that the coinages
"may be used as evidence in any inquiry, trial or other proceeding under this
Code", do garner an inference that the said report, but acquires only a
presumption of truth, thus is not conclusive proof in respect of the results of the
examination, as become echoed thereins.
26. In sequel, the makings of a close analyses of the provisions as
embodied in Section 293(2) of the Cr.P.C., leads to the sequel that therebys the
learned trial Court becoming empowered to summon and examine the expert
concerned, whereupons, the said vested empowerment in the trial Judge
concerned, is to be read to be thus bestowing also a leverage vis-a-vis the
defence to cross-examine the expert concerned.
27. Moreover, though in terms of Section 293(3) of the Cr.P.C., the
expert concerned, may be with the leave of the Court, choose not to make his
personal appearance before the learned trial Judge concerned, wherebys the
learned trial Judge concerned, may permit the responsible officer concerned, so
deployed by the author of the report for proving the said apposite report but who
is also well conversant with the facts of the case besides can satisfactorily depose
in Court on behalf of the expert, who prepared the report.
28. However, yet the recourse to Section 293(3) of the Cr.P.C., but
cannot whittle down the conferment of an indefeasible right upon the accused to
seek a personal cross-examination being made vis-a-vis the author of the report
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concerned, as thereby a full opportunity of fair trial, as envisaged under Article
21 of the Constitution of India, thus would become well preserved vis-a-vis the
accused.
29. Necessarily therebys the statutory discretion (supra) as becomes
conferred upon the learned trial Judge concerned, thus to summon and examine
any such expert as to the subject matter of his report, rather has to be read to be
not conferring an idle discretion upon the learned trial Judge concerned.
Contrarily, it has to be construed to be injuncting the learned trial Judge
concerned, to ensure that he summons the expert, especially when this Court
after assigning the directory signification (supra), to the directory coinages "may
be used as evidence in any inquiry, trial or other proceeding under this Code", as
occur in Section 293 of the Cr.P.C., rather has therebys inferred that the report of
an expert only enjoys a presumption of truth. If so, especially when this Court
has also made the above inference, that for fully awakening the innate purpose of
Article 21 of the Constitution of India, as appertains to the fullest opportunity of
fair trial becoming assigned to the accused. Therefore, for facilitating the
assigning of the fullest opportunity of fair trial to the accused, therebys the
personal appearance of the author of the report, after his being summoned, is but
imperative, as only thereafters he can be cross-examined by the defence.
Therefore too, the import of the provisions (supra), thus is to forward the
mandate of fair trial as enshrined in Article 21 of the Constitution of India,
therebys the summoning of the accused is imperative for his being not only
examined-in-chief rather for proving the incriminatory report as become drawn
by the expert concerned, but also for his being subsequently cross-examined.
30. Be that as it may, though Section 294 of the Cr.P.C., provisions
whereof becoming extracted hereinabove, appear to make an injunction upon the
learned trial Judge concerned, to vis-a-vis any document which is filed by the
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prosecution or by the accused, particulars whereof are included in the list, thus
permit respectively the prosecution or the accused, either to admit or deny the
genuineness of every such document. Moreover, in the event of the genuineness
of any document rather remaining undisputed, thereupon the said document
being permissible to be read in evidence in any enquiry, trial of other proceeding
as drawn under the Code, but without proof of the signature of the person to
whom it purports to be signed. The proviso appended under Section 294(3) of
the Cr.P.C., also well empowers the Court to in its discretion require proof of
signatures.
31. Since as stated (supra), the corner stone of Section 293 of the
Cr.P.C., is that, therebys only a rebuttable presumption of truth becoming
assigned to a report prepared by the experts detailed in Section 293(4) of the
Cr.P.C. Therebys reiteratedly when an opportunity to the accused to lead
evidence in rebuttal to the said prepared report, through making cross-
examination upon the author concerned, is in consonance with the ordainment
occurring in Article 21 of the Constitution of India, thereupons irrespective of no
denial being made by the defence counsel at the time of production of the report
of the FSL by the Public Prosecutor concerned, but would not relieve the learned
trial Judge concerned, vis-a-vis the statutory obligation as enclosed in Section
294 Cr.P.C. Importantly, when the said statutory obligation is cast in a mandatory
tone, besides when the said assigning of an overload of mandatoriness to the
provisions carried in Section 294 Cr.P.C., becomes well grooved in the
mandatory statutory coinage "shall be called upon to admit or deny the
genuineness of each such document", as exist in Section 294 Cr.P.C.
32. Though, the learned State counsel has vigorously argued that since
the report of the FSL concerned, enclosed in Ex.PJ, thus makes an incriminatory
pronouncement vis-a-vis the accused, whereafter he has further submitted that
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since the said report was tendered into evidence by the learned Public Prosecutor
concerned. Therefore since at the said stage, there was an opportunity to the
accused to admit or deny the genuineness of the said report, whereas, the said
opportunity remaining unavailed, thereupon when within the domain of Section
294(3) of the Cr.P.C., the FSL report has earlier remain undisputed, as such it
was per se readable in evidence.
33. In nutshell he argues that the mere tendering into evidence vis-a-vis
the report, without the stuff examined being produced in Court, rather is
sufficient and clinching proof, in respect of the incriminatory results drawn
against the accused, especially when after the tendering of the report by the
Public Prosecutor concerned, the accused rather waived for reason (supra) or had
forgone the opportunity to deny the results of the examination as made.
34. Even the said submission (supra), is rudderless, thus on the ground
that it has sprung from the learned trial Judge concerned, remaining unawakened
in entirety vis-a-vis the innate nuance (supra) as become assigned to the above
extracted provisions.
35. Since as stated (supra), the fine rubric ingraining the provisions
comprised in Section 294 Cr.P.C., is to ensure the furtherance of fair trial as
envisaged under Article 21 of the Constitution of India, in respect of the charges
drawn against the accused. Moreover, if the said would yet happen only after the
expert stepping into the witness box, thus for enabling the defence to cross-
examine him, qua the processes' engaged by him for making examinations of the
stuff enclosed in the sealed cloth parcels, therebys the mere tendering of the
report by the Public Prosecution concerned, but would not ipso facto prove the
charge drawn against the accused. In addition, even if at that stage the defence
counsel, did not refute the makings of an exhibit mark thereon, but yet to the
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objective insightful mind of this Court, the said purported waiver did not thus,
empower the learned trial Judge concerned, to omit to obey the statutory
obligation cast upon him, thus contemplated within the domain of the
significations as assigned, vis-a-vis the mandatory statutory coinages "shall be
called upon to admit or deny the genuineness of each such document". The said
statutory coinages do cast a peremptory diktat upon the Court to irrespective of
no refutation being made vis-a-vis the apposite report rather by the defence
counsel, yet to rather call upon the accused to also either admit or deny the
genuineness of the documents.
36. In other words, the said was a solemn duty cast upon the Court.
Moreover, the said duty could be said to be well exercised only when the
accused was peremptorily called upon to admit or deny the genuineness of the
said document. Moreover, the said right is personal to the accused, and, is to be
both ensured to be availed as also to be well exercised only by him, unless of
course the defence counsel makes a statement that he has instructions to permit
the making of an exhibition mark in the instant case.
37. Since at the time of the tendering into evidence of the report of the
FSL, to which Ex.PJ is assigned, the learned defence counsel, did make a
statement, that he has instructions from the accused to not oppose, the making of
an exhibition mark upon the report of the FSL concerned, therebys the learned
trial Judge concerned, appears to have derogated from the mandatory statutory
obligation cast upon him rather to ensure qua the accused appearing before him,
thus for admitting or denying the genuineness of apposite report. The said
avoidance of performance of duty by the learned trial Judge concerned, has
resulted in the accused becoming denied the fullest opportunity to admit or deny
the report, and, to also subsequently ask that the expert concerned, be
summoned, so that he can then cross-examine him, about the correctness of the
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report or vis-a-vis the correctness of the processes engaged into by him for his
making an examination of the stuff inside the sealed cloth parcel.
38. Moreover, Section 294(3) of the Cr.P.C., declares that when the
genuineness of any document is not disputed, thereupon the said document being
readable in evidence but without proof of the signatures of the person to whom it
purports to be signed, but with a proviso that the Court may, in its discretion,
require such signature to be proved.
39. In aftermath, the statutory right of admission or denial as bestowed
in Section 294 of the Cr.P.C., though prima facie relates only to the apposite
admission/denial covering the genuineness of the signatures of the author of the
document concerned, which may be even a report made in terms of Section
Section 293(4) of the Cr.P.C., but it does not yet relieve the learned trial Judge
concerned, to yet in terms of Section 293(2) of the Cr.P.C., though the coinages
therein, are in a directory language, but further ensure the conducting of a fair
trial vis-a-vis the accused. The said would occur only if the expert concerned,
becoming summoned, as therebys the accused would be permitted to cross-
examine the expert concerned, wherebys the right of fair trial would become
fully preserved vis-a-vis the accused, the same being a Constitutional right.
40. Emphatically also there is no evidence on record which forthrightly
speaks that the said examined contents enclosed in the apposite cloth parcels
became returned to the FSL concerned, nor obviously qua the said examined
sealed cloth parcels became deposited in the police malkhana concerned.
Moreover, the apposite sealed cloth parcels never became produced in Court, for
theirs becoming shown to the prosecution witnesses concerned, thus for ensuring
the makings of speakings by them, vis-a-vis, the apposite sealed cloth parcels
becoming received in the police malkhana and subsequently in Court, thus in an
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untampered and unspoiled condition. Since the above did not happen therebys, it
appears that the prosecution has withheld a vital incriminatory link comprised in
the production in Court of the apposite cloth parcels in respect of whose
contents, an incriminatory report comprised, thus in Ex.PJ, thus was made. The
suppression or withholding of the above vital link, thus snaps the link inter se the
recovery being made at the crime site, vis-a-vis the apposite incriminatory
opinion being made thereons by the FSL concerned.
41. If so, it appears that the apposite sealed cloth parcels did disappear,
wherefrom an inference arises that the incriminatory report made on the stuff
inside the cloth parcels concerned, may not be related to the stuff which as a
matter of fact, became examined at the FSL concerned, irrespective of the
factum, that the residue enclosed in sealed cloth parcels may have travelled in an
unspoiled or untampered condition to the FSL concerned. Conspicuously, when
the apposite returns of the apposite cloth parcel rather in an unspoiled or
untampered condition but was imperative. Consequently, if grave skepticism
makes it enrodes vis-a-vis the prosecution case, therebys the vital incriminatory
link (supra) becomes snapped. Therefore, benefit of doubt is to be given to the
accused.
Final Order
42. The result of the above discussion, is that, this Court finds merit in
the appeal, and, is constrained to allow it. Consequently, the appeal is allowed.
The impugned judgment convicting, and, sentencing the appellant, and, as
become recorded by the learned trial Judge concerned, is quashed, and, set aside.
The appellant is acquitted of the charge framed against him. The fine amount, if
any, deposited by him, be, in accordance with law, refunded to him. The
personal, and, surety bonds of the accused shall stand forthwith cancelled, and,
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discharged. The case property be dealt with, in accordance with law, but after
the expiry of the period of limitation for the filing of an appeal. The appellant, if
in custody, and, if not required in any other case, be forthwith set at liberty.
Release warrants be prepared accordingly.
43. Case property, if any, be dealt with in accordance with law, but only
after the expiry of the period of limitation for the filing of an appeal.
44. Records be sent down forthwith.
(SURESHWAR THAKUR)
JUDGE
09.09.2024 (SUDEEPTI SHARMA)
Ithlesh JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable: Yes/No
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