Balwan Singh vs State of Haryana

Jitendra Chauhan, J.—The present appeal is directed against the judgment and order -dated 11/14.09.2000 passed by the learned

Additional Sessions Judge, Rohtak (for short, the trial Court), whereby the accused-Appellant has been convicted for the offence u/s 20 of the

Narcotic Drugs & Psychotropic Substances Act, 1985 (for short, the Act) and sentenced to undergo RI for a period of 10 years and to pay a fine

of Rs. 1,00,000/- or in default of payment of fine, to further undergo RI for a period of one year.

Briefly stated, the facts of the prosecution case are that the accused- Appellant was facing trial in case FIR No. 99 of 1996 registered u/s 392

IPC at Police Station Civil Lines, Rohtak, in the court of the learned Additional Chief Judicial Magistrate, Rohtak, and was confined in the District

Jail, Rohtak. On 11.9.1997, HC Nihal Singh,. PW6, and Head Constable Neki Ram, took the ac-cused-Appellant from jail to produce him

before the Court. When they along with the accused-Appellant came out of the Court, someone handed over a small packet to the accused

Appellant. HC Nihal Singh, PW6, made an effort to apprehend him but could not do so. On suspicion, alleged packet was taken from the

accused-Appellant. On checking, charas was found in it. They produced the accused-Appellant before SI Ram Parkash, PW8, who happened to

be present in Court compound with his companion officials. The alleged charas was weighed and was found to be 11 grams. 5 grams charas was

separated as sample and both were converted into two separate parcels, which were duly sealed with the seal bearing impression R.P.''

Thereafter, SI Ram Prakash sent ruqa, Ex.PC, to Police Station Civil Lines, Rohtak, through Constable Neki Ram, upon which, formal FIR.

Ex.PC/1, was registered by ASI Nathu Ram, P Ws.

After completion of necessary investigation and other formalities, the Appellant was challaned and charge-sheeted for the offence punishable 20

of the Act, to which, he pleaded not guilty and claimed trial.

The prosecution, in order to prove its case, examined eight witnesses. HC Jag Ram, PW1 and Constable Kulbir Singh, PW2, proved their

affidavits, Ex.PA and PB, respectively. ASI Nathu Ram, PW3, proved registration of formal FIR, Ex. PC/1. Inspector Ram Kumar, PW5, proved

that SI Ram Prakash, PW8, produced case property before him on 11.09.1997 and he put his seal impression on the sample and the case

property. SI Mahinder Singh, PW7, partially investigated the case. SI Ram Prakash, PW8, recorded the ruqa, Ex. PC, on the in formation

Supplied by HC Nihal Singh PW6, which was sent to the Police Station, Civil Lines, Rohtak, on the basis of which formal FIR, Ex.PC/1 was

recorded by ASI Nathu Ram, PW3. Ashok Saini, Criminal Ahlmad, PW4, proved that it being a date of hearing on 11.09.1997, the accused-

Appellant was to be produced before the learned Court.

HC Nihal Singh, PW6, stated that he along with HC Neki Ram, was deputed to produce the accused-Appellant in the Court of learned ACJM,

Rohtak. When they came out of the Court after producing the accused-Appellant, somebody came near the accused-Appellant, whispered

something in his ear and handed over a packet to the accused-Appellant. This witness took this packet from the accused-Appellant and then

handed over the same to SI Ram Prakash, PW8, in the presence of HC Om Prakash. However, Head Constable Om Parkash has not been cited

as a prosecution witness. The packet was found to be containing charas weighing 11 grams. SI Ram Prakash, PW8, and HC Nihal Singh, PW6,

both proved that a sample of 5 grams was separated out of the recovered charas. The sample and the residue charas, Ex. Pl, were taken into

police possession vide recovery memo, Ex. PD, after sealing it, bearing the seal impression RP''. The sample was found to be of charas vide

report, ""Ex.PF, of the Forensic Science Laboratory, Madhuban.

After completion of examination of prosecution witnesses, the accused- Appellant was examined u/s 313 of the Code of Criminal Procedure, in

which he denied all other incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent.

After hearing both the parties, the trial Court convicted the accused- Appellant u/s 20 of the Act and sentenced him as indicated at the outset of

this judgment.

This appeal was admitted for hearing on 31.10.2000 and the accused- Appellant was released on bail on 4.12.2000.

Learned Counsel for the Appellant submits that even if the prosecution version is taken to be true as it is, the fact that the accused-Appellant

was in ''conscious possession'' of the contraband is not established. This case has been falsely foisted upon the accused-Appellant as there was

verbal altercation between the accused-Appellant and HC Nihal Singh, who had produced the accused in Court on 11.09.1997 in another case.

The counsel further submitted that link evidence is missing.

The learned State counsel, on the other hand, submits that the prosecution has fully proved its case against the accused Appellant.

I have heard the learned Counsel for the parties and perused the record with their able assistance.

First of all, the point for determination in this case is whether the accused-Appellant was in conscious possession of ''charas''. The case is

based on the statement of HC Nihal Singh, PW6, who is an interested witness and the recovery is small quantity of charas.

HC Nihal Singh, PW6, stated that when they came out of the Court, after producing him, an unknown person met the Appellant, while he was

in police custody, whispered something in the ear of the accused-Appellant and handed over to him a small packet and ran away. It has not come

in evidence as to what was whispered in the ears of the Appellant by the said person, who allegedly handed over the packet to him in the presence

of the Police officials. Further, it does not come on record by way of any kind of evidence that the Appellant was aware of the contents of that

packet. If the accused-Appellant would have known or it was in the knowledge of the Appellant that the said packet contained ''charas'', only in

that eventuality, he could be said to have been in ''conscious possession'' of the contraband. It has also not come in evidence whether that. stranger

knew the accused-Appellant or that the accused-Appellant had asked him to bring the contraband. The prosecution story, itself negates the

''conscious possession'' of the contraband by the accused-Appellant. It is not easy to supply contraband to an accused in police custody

particularly in the strong presence of two police officials, without their knowledge. So, no conscious possession can be attributed to the Appellant.

Apart from this, in his statement u/s 313 Code of Criminal Procedure the specific word ''conscious possession'' was not put to the accused to elicit

as to whether the accused-Appellant was in conscious possession of ''charas''.

There is no corroboration to the statement of HC Nihal Singh, PW6, who actually took the contraband packet from the accused-Appellant

immediately, after the stranger ran away from the spot. Another police employee, HC Neki Ram, who was also responsible for the custody of the

accused-Appellant along with HC Nihal Singh, PW6, has not been examined by the prosecution. This witness has been withheld for the reasons

best known to the prosecution. It is unsafe to convict the accused-Appellant on the solitary testimony of a police official, in the circumstances of

the case especially when corroboration was available by way of the examination of HC Neki Ram. It goes totally unexplained, on behalf of the

prosecution, as to how HC Neki Ram, who was initially cited as an eye-witness could have been given up as unnecessary.

Section 50 of the Act, mandates an offer to the suspect for getting his search conducted either before a Magistrate or a Gazetted Officer.

Admittedly, the place of recovery is verandah of District Courts, Rohtak. There is no dearth of Judicial Magistrates or other Gazetted Officers.

The fact of recovery of ''charas'' was not immediately brought to the notice of the Additional Chief Judicial Magistrate, before whom the accused-

Appellant had been, produced. In the present case, admittedly, no offer of search to be conducted in the presence of a magistrate or a gazetted

officer, before the physical search of the Appellant, was given to the accused Appellant. His search could have been conducted in '' the presence

of the Id. Judicial Officer by bringing back the accused-Appellant before whom he had just been produced. There were a large number of people

available in the District Courts on a working day but no effort was made to join any independent witness in the search proceedings. The evidence

of SI Ram Prakash, PW8, is not sufficient to convict the accused-Appellant as the accused-Appellant was produced before him by HC Nihal

Singh, PW6, and HC Neki Ram, along with the ''charas'' which was allegedly recovered from the accused-Appellant. This witness was not present

at the time of recovery of the ''charas''.

The recovery of ''charas'' in this case is on 11.9.1997. The prosecution case from its inception, during investigation as well as during trial, was

that out of 11 grams ''charas'' seized from the small Packet, 5 grams was separated and converted into a parcel, which was duly sealed and

deposited in Malkhana on the day of recovery. The said sample remained in custody of the police till it was deposited with forensic Science

Laboratory, Madhuban on 30.09.1997, after a delay of 18 days. The sample is required to be deposited within 72 hours as per Standing

Instructions No. 1 dated 15.03.1988 issued by narcotics Control Bureau, New Delhi, During the aforesaid period, used seal remained available to

police as it was handed over to HC Om Prakash and not to any independent person, though easily available in the Court premises. This casts a

serious doubt regarding the assertion by the Prosecution that the said sample was not tampered in any manner.

The testimony of HC Nihal Singh also reveals that at the time of alleged occurrence, within the court premises, a number of members of the

general public as well as police officials were present. However, strangely enough, HC Nihal Singh did not deem it proper to associate anyone

either from the general public or take the assistance of the police officials present in the court premises.

What is even more glaring is the fact that despite being in court premises, the Appellant was not produced before any Judicial Officer for

getting his personal search done. As per HC Nihal Singh, weighing scale was got arranged by SI Ram Parkash to weigh the contents of the

packet. However, when entered into the witness box, SI Ram Parkash did not depose even a word as to whether he arranged the weighing scale

leading to the irresistible conclusion that the contents of the packet as well as its weight was within the knowledge of the HC Nihal Singh even

before it was actually verified and weighed, as per the prosecution story.

On further examination of the testimony of HC Nihal Singh, it comes out that in fact the Appellant was being held by hand by HC Neki Ram.

In such a situation, HC Neki Ram was the most important witness to depose regarding the actual occurrence. However, he has been given up as

unnecessary even though he was initially cited as a prosecution witness. It has also come on record that one hand of the Appellant was not in a fit

condition since there were only two fingers of this hand and the thumb was nonfunctional. In view of this fact, it became all the more relevant to

specify as to which hand of the Appellant was being held by HC Neki Ram since as per the description of one hand of the Appellant, as given by

the prosecution, it is improbable that the Appellant could have held a packet in this particular hand i.e. the one having 2 fingers and a non-functional

thumb. It is most reasonable to assume that HC Neki Ram was purposely given up as an unnecessary witness so as to shield the falsity of the

prosecution story.

There are two other glaring lacunas in the prosecution case. Firstly, no investigation was cbn-ducted so as to somehow establish the identity of

the person who allegedly handed over the packet of ''charas''to the Appellant. Secondly, as per HC Nihal Singh, this unknown person whispered

something in the ear of the Appellant immediately prior to handing over the packet of ''charas'' to the Appellant but nothing was deposed as to

what transpired between that unknown person and the Appellant. It is unbelievable that when the Appellant was being held so closely by the police

officials i.e. by HC Neki Ram, even then somebody could come up to the Appellant, say something in his ear, hand over a packet allegedly

containing a contraband and just vanish away. Given the physical proximity of HC Neki Ram with the Appellant and the manner in which the said

unknown person is supposed to have come close to the Appellant and said something in his ear, it is most reasonable to assume mat atleast HC

Neki Ram was in a good position to hear their conversation. However, HC Neki Ram himself was given up as unnecessary, for reasons which

have deliberately not been brought on record.

Furthermore, even CFSL Form No. 29, which is required to be filled up at the spot and attested by witnesses was neither prepared at spot

nor deposited with case property in Malkhana. The absence of same is fatal to the case of the prosecution.

This case falls in the category of those pases where the prosecution story, instead of being merely doubtful, is out rightly improbable and, false,

even to the point of being characterized as absurd. Thus, the false implication of the Appellant cannot be ruled out.

Resultantly, this appeal is allowed. The judgment of conviction and sentence dated 11.09.2000/14.09.2000 passed by the learned Additional

Sessions Judge, Rohtak, is, hereby, set aside and Balwan Singh, accused, is acquitted of the charge framed against him.

However, before parting with the judgment, this Court wishes to express its deep pain and anguish at the way in which the basic rights of the

citizens of this country are being violated even by those who are under an oath to lay down their lives while protecting the citizens from any harm.

The present case is a telling""example of the misuse of police powers, almost non-existent prosecution investigation and an open, albeit successful

attempt at the trial court level, to sabotage the process of justice. Such a state of affairs cannot be ignored because any further laxity shown in this

regard will initiate the process of the decay of the cardinal principle of rule of law which is the foundation of any civilized society.

Deprivation of one''s life and liberty, by the State authorities, without the authority of law, has since long been considered to constitute the

gravest kind of official misconduct. Our Constitution, under Article 21, has put the concept of personal liberty on such a high legal pedestal that it

not only protects the life and liberty of its citizens but of any person i.e. within the territorial limits of India. The words ''No person shall be deprived

of his life or personal liberty except according to procedure established by law'' as they appear in the language of Article 21, Constitution of India

has been elaborated by Hon''ble the Supreme Court so as to incorporate the principle of Due Process of law as understood under the US

Constitution. The principle of Due Process of law itself encompasses within itself a huge connotation of fairness - both of procedure and

application of law.

When applied to the facts of the present case, the principle of Due Process and the concept of fairness, which is inherent in it, appear to be

sacrificial lambs so as to achieve the most shameful act of subverting the process of justice. At the cost of repetition, it needs to be highlighted that

in the present case every effort was made simply to ensure that an innocent citizen is condemned. At the initial stage, police investigation was

botched up to make sure that the Appellant is sent up for trial and goes through the agony of the same. It was followed up by a deliberate attempt

by the prosecuting agency to tender evidence in such a fashion so that the truth remains buried and so it did. It is noteworthy that the Appellant was

also acquitted by the trial court in the criminal case, during the course of one of the hearing of which the present case came to be registered. A man

who could have utilized the good years of his life in trying to make out a meaningful life for himself, for his family and could have possibly

contributed in a small measure towards nation building was forced to spend, probably the most fruitful years of his life, in the corridors of our

overburdened courts and overcrowded jails.

No second thought,comes to the mind of this Court except that the responsibility of ruining the life of the Appellant must be fastened to the

State and for which it must suffer. Accordingly, I deem it appropriate to award a compensation of Rs. 1 lakh to the Appellant which is to be paid

by the State of Haryana. However, the said amount of Rs. 1 lakh shall be paid initially by the State of Haryana and thereafter it can recover the

same from the concerned officials, after due enquiry and fixing responsibility regarding the false implication of the Appellant and also regarding the

withholding of material witnesses/ best evidence.