(A.M. Khanwilkar and Ajay Rastogi, JJ.)
Kamaljit Singh _____________________________________ Appellant;
v.
State of Punjab ____________________________________ Respondent.
Criminal Appeal No. 424 of 2009, decided on January 31, 2019
The Order of the court was delivered by
Order
1. Heard learned counsel for the parties.
2. This appeal takes exception to the judgment and order passed by the High Court of Punjab and Haryana at Chandigarh dated 13.03.2008 in Criminal Appeal No. 685- SB of 2001.
3. The appellant along with two other accused was tried for the offence punishable under section 15 of the Narcotic, Drugs and Psychotropic Substances Act, 1985. The appellant was arrested on the spot after Search and Seizure was carried out on 14.05.1999, as he was carrying a huge quantity of bulk poppy husk.
4. The Trial Court recorded finding of guilt against all the accused. They preferred an appeal before the High Court, which came to be dismissed vide the impugned judgment.
5. The sole ground on which we are inclined to allow this appeal is that the prosecution has miserably failed to explain why the sole independent witness, Gurdev Singh Mann, who was present on the spot and in whose presence the search and seizure was carried out and being one of the witnesses for drawing the panchanamas, has not been examined by the prosecution.
6. Indeed, the Trial Court has noted that the prosecution could not have examined Gurdev Singh Mann as he was won over by the accused. The basis on which such finding has been recorded by the Trial Court, however, is not forthcoming. Neither the Investigating Officer nor any other police official has offered an explanation on that factual position. In addition, we find force in the argument of the appellant that witness PW-2, who claimed to have received the information telephonically and had passed it on to his contemporary who, in turn, promptly recorded the FIR concerning the offence, eventually was entrusted with the investigation of the case. This Court, in the recent decision in the case of Mohan Lal v. The State of Punjab – AIR 2018 SC 3853, has frowned upon the same police official being the informant and the investigating officer. The court has observed thus:
“25. In view of the conflicting opinions expressed by different two Judges Benches of this Court, the importance of a fair 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.”
7. Indeed, Manjit Singh (PW 2) had received information telephonically and had passed on the same to his contemporary who recorded the FIR but the fact remains that he himself investigated the case. The unfairness in investigation becomes more glaring when we peruse the search and seizure panchanamas. It is seen that the FIR number has been noted at the top of these panchanamas. It is unfathomable as to how the FIR number could be noted on the search and seizure panchanamas when the same were drawn up obviously at an earlier point in time and preceded the registration of the FIR. Even this discrepancy has not been explained by the prosecution at all. Furthermore, we find that the FIR has been registered by Nirmaljit Singh but he has not been examined by the prosecution and no explanation is offered in this regard as well.
8. All these deficiencies, in our opinion, create serious doubts and are fatal to the prosecution case, for which reason the appellant deserves to be acquitted of the stated offence by giving him the benefit of doubt. We order accordingly. The bail bond stands discharged. The appeal is allowed.
Criminal Appeal No(s). 424/2009
Kamaljit Singh @ Pappu ___________________________ Appellant
v.
The State of Punjab ______________________________ Respondent
Date : 31-01-2019 This appeal was called on for hearing today.
(Before A.M. Khanwilkar and Ajay Rastogi, JJ.)
For Appellant(s) Mr. Nitin Sangra, Adv.
Mr. Gaurav Agrawal, AOR
For Respondent(s) Mr. Jeevesh Nagrath, Adv.
Ms. Jaspreet Gogia, AOR
UPON hearing the counsel the Court made the following
ORDER
9. The appeal is allowed in terms of the signed order.
10. Pending applications, if any, stand disposed of.
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