JARNAIL SINGH & ANRversusSTATE OF PUNJAB

196                      [2022]REPORTS
               SUPREME COURT   13 S.C.R. 196               [2022] 13 S.C.R.


A                         JARNAIL SINGH & ANR.
                                       v.
                             STATE OF PUNJAB
                       (Criminal Appeal No. 634 of 2010)
B                                JULY 12, 2022
               [AJAY RASTOGI AND VIKRAM NATH, JJ.]
             Penal Code, 1860: ss. 409/109, 420/109, 467/109, 471/109,
      474/109, 477-A/109 and 120-B – Prevention of Corruption Act,
      1988 – ss. 13(i)(d) and 7 – Allegations against the General Manager
C
      of the State Roadways Depot, that in connivance with conductor
      and others was selling and using tickets got printed on his own and
      sold through his own persons, who used to collect money for him,
      causing huge loss to the Depot – Registration of FIR – Conviction
      and sentence of the three conductors-appellants u/ss. 409/109, 420/
D     109, 467/109, 471/109, 474/109, 477-A/109 and 120-B IPC and
      ss. 13(i)(d) and 7 of the PC Act, and acquittal of the others by the
      courts below – On appeal, held: Failure of the inspecting team, to
      prove the recovery of the tickets to have been validly made as also
      failure to prove the enquiry report as only a photocopy was filed –
      No efforts by the prosecution to prove the existence of the original
E
      and loss thereof in order to take an order for leading secondary
      evidence – Thus, no reliance could be placed upon the enquiry
      report – Once, the recovery of the tickets is found to have not been
      made in accordance with law, nor the seized tickets could be
      connected to the three different buses and the conductors manning
F     the said buses-appellants, not safe to rely upon the unconfirmed
      tickets to connect them to the appellants – Enquiry report not proved
      despite the State applying for leading secondary evidence and not
      pursuing it any further – Thus, no evidence to establish the charge
      against the appellants – Judgment of the High Court and the trial
      court qua the appellants set aside – Evidence.
G
            Ashok Dhulichand v. Madhavrao Dube (1975) 4 SCC
            664 : [1976] 1 SCR 246; Jai Dev v. State of Punjab
            AIR 1973 SC 612; Sharad Birdichand Sarda v. State
            of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;
            Sujit Biswas v. State of Assam (2013) 12 SCC 406;
H
                                      196
        JARNAIL SINGH & ANR. v. STATE OF PUNJAB                        197


      Samsul Haque v. State of Assam (2019) 18 SCC 161;                A
      Sarwan Singh v. State of Punjab AIR 1957 SC 637 :
      [1957] SCR 953; Shivaji S. Bobade v. State of
      Maharashtra (1973) 2 SCC 793 : [1974] 1 SCR 489;
      Subhash Chand v. State of Rajasthan (2002) 1 SCC
      702 : [2001] 4 Suppl. SCR 163; Sujit Biswas v. State of
                                                                       B
      Assam (2013) 12 SCC 406 : [2013] 3 SCR 830; Rajiv
      Singh v. State of Bihar (2015) 16 SCC 369; State of
      U.P. v. Wasif Haider (2019) 2 SCC 303 : [2018] 14
      SCR 1161 – referred to.
                      Case Law Reference
                                                                       C
[1976] 1SCR 246 6             referred to              Para 6 (iv)
AIR 1973 SC 612               referred to              Para 6 (vii)
[1985] 1 SCR 88               referred to              Para 6 (vii)
(2013) 12 SCC 406 6           referred to              Para 6 (vii)    D
(2019) 18 SCC 161 6           referred to              Para 6 (vii)
[1957] SCR 953                referred to              Para 6 (viii)
[1974] 1 SCR 489              referred to              Para 6 (viii)
[2001] 4 Suppl. SCR 163       referred to              Para 6 (viii)   E
[2013] 3 SCR 830              referred to              Para 6 (viii)
(2015) 16 SCC 369             referred to              Para 6 (viii)
[2018] 14 SCR 1161            referred to              Para 6 (viii)
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.             F
634 of 2010.
      From the Judgment and Order dated 14.09.2009 of the High Court
of Punjab & Haryana at Chandigarh in Criminal Appeal No. 205-SB of
2002.
      With                                                             G

      Criminal Appeal No. 633 of 2010.
     Neeraj Kumar Jain, Sr. Adv., D. P. Singh, Ms. Shreya Dutt, Manu
Mishra, Tavishi Kumar, Sanjay Jain, Sanjay Singh, Aniket Jain, Umang
Shankar, Advs. for the Appellants.                                     H
198                SUPREME COURT REPORTS                       [2022] 13 S.C.R.


A               R. K. Rathore, Ms. Jaspreet Gogia, Advs. for the Respondent.
                The Judgment of the Court was delivered by
                VIKRAM NATH, J.
             1. These two appeals question the correctness of the judgment
B     and order dated 14.09.2009 passed by the High Court of Punjab and
      Haryana at Chandigarh in Criminal Appeal No.205 (SB) of 2002 (Sohan
      Lal and others Vs. The State of Punjab) whereby, the High Court
      confirmed the conviction of the appellants namely, Jarnail Singh, Salwant
      Singh and Balkar Singh under Sections 409/109, 420/109, 467/109, 471/
      109, 474/109, 477-A/109 and 120-B of the Indian Penal Code, 1860 1 and
C     Sections 13(i)(d) and 7 of the Prevention of Corruption Act, 1988 2 to
      undergo three years rigorous imprisonment with fine of Rs.1000/- and in
      default of fine to undergo additional six months imprisonment, awarded
      by the Special Judge, Faridkot vide judgment and order dated 28th January,
      2002.
D               FACTS:
                2. Briefly stated the relevant facts could be summarised as under:
            (i) One Malkiat Singh, a driver of the Punjab Roadways Depot,
      Muktsar made a complaint dated 04.05.1996 to the higher officers of
      the Department alleging that General Manager of the Punjab Roadways
E
      Depot, Muktsar in connivance with conductor and others has been selling
      and using tickets got printed on his own and sold through his own persons,
      who used to collect money for him and, as such, has caused loss to the
      tune of crores of rupees to the Depot.
             (ii) On the basis of the said complaint, the Deputy Commissioner
F
      addressed a letter to the Senior Superintendent of Police, Muktsar and
      on its basis, an FIR was registered by Inspector, Dilbag Singh.
             (iii) The Deputy Commissioner, Muktsar also forwarded the
      complaint to the Secretary, Transport Department, Chandigarh regarding
      the alleged scandal. The Secretary in turn required three Officers namely,
G
                   (a) Mr. Darshan Singh Sandhu, Deputy Secretary, Forest and
                   Wildlife, Chandigarh, Muktsar (PW-20),
                   (b) Mr. M.S. Sandhu, S.D.M., Zira (PW-21) and,
      1
          In short “IPC”
      2
H         In short “PC Act”
            JARNAIL SINGH & ANR. v. STATE OF PUNJAB                            199
                       [VIKRAM NATH, J.]

             (c) Mr. Amarjit Singh Shahi, S.D.M., Bassi Pathana (PW-22);       A
             to make a surprise checking and submit their report.
      (iv) These three officers made checking of the conductors of the
buses on the routes of Delhi-Muktsar and Sirsa-Muktsar on 11.05.1996.
They took into possession old tickets and tickets value of which was
increased by affixing stamps on the same, the diaries and way-bills of         B
drivers, and the cash in their possession in the ticket bag.
      (v) The Enquiry Committee also recorded statements. The
statements of conductors of some of the buses, which were given on
contract basis by the General Manager were also recorded.
      (vi) The Enquiry Committee also recorded the statements of               C
General Manager, Traffic Manager and the Assistant Mechanical
Engineer.
       (vii) The Committee was of the view that with the connivance of
the General Manager, a big scandal was committed and the Government
was put to loss of lakhs of rupees by the Inspectors of Muktsar Depot          D
and also Inspectors of other Depots and even the Inspectors of the
flying squad and the In-charge of the flying squad were also conniving in
the same.
      (viii) On the basis of the detailed enquiry report, a recommendation
was made for suspending the General Manager, Traffic Manager,                  E
Assistant Mechanical Engineer, concerned Inspectors and Conductors.
      (ix) On the basis of legal opinion given that a prima facie case
was made out for registering a case under Sections 409, 419, 420, 465,
468, 467, 471, 474, 477-A and 120-B of IPC, an FIR was registered.
                                                                               F
      (x) Accordingly, after due investigation, a police report under
Section 173(2) the Code of Criminal Procedure, 1973 3 was submitted on
the basis of which, cognizance was taken and charges were framed
against fifteen (15) persons, viz. seven (7) Conductors, four (4) Inspectors
and four (4) Managers/Senior officials. The prosecution examined as
many as twenty-three (23) witnesses and also filed documentary                 G
evidence.
      3. All the incriminating circumstances and the evidence led by the
prosecution were put to the accused at the stage of section 313 CrPC.
The accused denied all the allegations and pleaded innocence.
3
    In short “CrPC”                                                            H
200                SUPREME COURT REPORTS                      [2022] 13 S.C.R.


A            4. The Trial Court vide judgment dated 28.01.2002 acquitted two
      Managers/Senior officials namely, Iqbal Singh and Amrik Singh and two
      Inspectors namely, Gurucharan Singh and Kharaiti Lal. Rest of the
      eleven(11) accused were convicted by the Trial Court. Against the
      judgment of the Trial Court four (4) appeals were filed bearing Nos.179
      (SB) of 2002, 205 (SB) of 2002, 228 (SB) of 2002 and 245 (SB) of 2002.
B
      The High Court vide judgment and order dated 14.09.2009 acquitted the
      remaining Managers/Senior Officials namely, Jagdip Singh Galwatti and
      Amarjeet Singh Sandhu. It also acquitted remaining two Inspectors
      namely, Sohan Lal and Teja Singh. It further acquitted three Conductors
      namely, Charanjeet Singh, Iqbal Singh and Sham Lal. One of the
C     conductors namely, Jugraj Singh had died during the trial and against him
      proceedings were abated. The High Court thus confirmed the conviction
      of three conductors namely, Jarnail Singh, Salwant Singh and Balkar
      Singh, who are before this Court.
            5. We have heard learned counsel for the parties and perused the
D     material on record.
          6. The submissions advanced on behalf of the appellants may be
      summarized as follows:
             (i) The enquiry report jointly submitted by the three officers who
      were examined as PW-20, PW-21 and PW-22 were not placed on record
E     in original, an objection was taken regarding its admissibility as only a
      xerox copy was filed. The Trial Court had taken it on record subject to
      the objection by the defence that the same would be admitted subject to
      proof and further evidence. This order was passed by the Trial Court on
      15th February, 2001 on an application, filed by the Public Prosecutor
F     under Section 65(c) and the Indian Evidence Act, 18724, seeking
      permission to give secondary evidence of the original document, namely,
      the affidavit of Malkiat Singh and the enquiry report given by the three
      officers. The Trial Court by the above order allowed the application for
      permission to lead secondary evidence of the above-mentioned documents
      subject to proof of its existence and subsequent loss of the said documents.
G     Thereafter, no further evidence was led by the State to prove the loss of
      the existence of the original documents thereby enabling the Trial Court
      to accept the said explanation and permit them to lead secondary evidence.
      No further evidence was led by the State.

      4
H         In short “Evidence Act”
            JARNAIL SINGH & ANR. v. STATE OF PUNJAB                            201
                       [VIKRAM NATH, J.]

       (ii) The enquiry report at best could be said to be a fact-finding      A
report and was not a piece of evidence. It could have been the basis for
registering the FIR and nothing more than that. Even the Trial Court,
when the true copy of the report was being exhibited, had recorded the
objections of the defence in the following terms in the statement of Arjan
Singh, PW-18, who had come to prove the said report in the following
                                                                               B
terms: “Objected to as these documents will be exhibited subject to
proof of the existence of documents in original and loss thereof.”
       (iii) The Investigating Officer, Baljeet Singh Buttar, PW-23 stated
that he had received a photocopy of the affidavit of Malkiat Singh marked
with a letter of Deputy Commissioner and enquiry report from the Station
House Officer, Dilbag Singh and that he conducted the investigation. He        C
further goes on to say that he does not know whether the original of the
enquiry report, affidavit and other documents were lost.
      (iv) In support of the above submissions, the appellants have relied
upon the judgment in the case of Ashok Dhulichand Vs. Madhavrao
Dube 5.                                                                        D

       (v) The alleged used tickets/fake tickets/tickets bearing the
nomination of higher value were taken into custody by the Inspection
Committee while inspecting the three buses from the conductors present
on the vehicle. These seized tickets are said to have been subsequently
handed over to the Investigating Officer or at the Police Station-Dilbagh.     E
These seized tickets were never seen either by the Inspecting Team or
by the police at any stage. There was no segregation of the tickets
seized by the Inspection Team from the conductors of the three different
buses. Even before the Court, these tickets were produced in an unsealed
form and are said to have been proved by PW-8 and PW-15. Both these            F
witnesses were neither the witnesses of recovery nor they had personal
knowledge of said recovery of tickets. They only said that these are the
same tickets which they had seen at the police station.
        (vi) There is no evidence of sale of such tickets of higher
denomination to any passenger as no passenger was examined during              G
the trial. The case of the prosecution at best is that of possession of such
fake tickets and nothing beyond that.
      (vii) Lastly, it was submitted that the excess cash alleged to have
been found at the time of inspection also has neither been proved, nor
5
    (1975) 4 SCC 664 (Para 7 thereof)                                          H
202              SUPREME COURT REPORTS                       [2022] 13 S.C.R.


A     any evidence was led with respect to the same, nor were any such
      questions put to the accused at the stage of Section 313 CrPC. Such
      evidence as such could not be read against the accused. For the above
      proposition, reliance has been placed upon the following judgments: -
             (1) Jai Dev Vs. State of Punjab6,
B            (2) Sharad Birdichand Sarda Vs. State of Maharashtra7,
             (3) Sujit Biswas Vs. State of Assam8,
             (4) Samsul Haque Vs. State of Assam9
             (viii) Lastly, the counsel for the appellants submitted that the
C     prosecution failed to prove his case not only beyond reasonable doubt
      but, in fact, it completely failed to prove its case in the absence of any
      legally, reliable, admissible and unimpeachable evidence. In support of
      the above submissions, he placed reliance upon the following judgments:
             (1) Sarwan Singh Vs. State of Punjab10,
D
             (2) Shivaji S. Bobade Vs. State of Maharashtra11,
             (3) Subhash Chand Vs. State of Rajasthan12,
             (4) Sujit Biswas Vs. State of Assam13,
             (5) Rajiv Singh Vs. State of Bihar14,
E
             (6) State of U.P. Vs. Wasif Haider15.
             7. On the other hand, learned counsel for the State of Punjab has
      supported the judgment of the High Court. It was submitted that conviction
      of the appellants is based upon reliable, cogent and convincing evidence
F     led by the prosecution. It is also submitted that PW-8 and PW-15 proved
      the recovery of the tickets and further that PW-20, PW-21 and PW-22
      proved the inspection and the enquiry report and, as such, nothing further
      6
        AIR 1973 SC 612 (Para 21)
      7
        (1984) 4 SCC 116 (Para 143-145)
      8
        (2013) 12 SCC 406 (Para 20)
G     9
        (2019) 18 SCC 161 (Paras 13, 22, 23)
      10
         AIR 1957 SC 637 (Para 12)
      11
         (1973) 2 SCC 793 (Para 19)
      12
         (2002) 1 SCC 702 (Para 24)
      13
         (2013) 12 SCC 406 (Para 13)
      14
         (2015) 16 SCC 369 (Page 69)
      15
H        (2019) 2 SCC 303 (Para 22).
         JARNAIL SINGH & ANR. v. STATE OF PUNJAB                              203
                    [VIKRAM NATH, J.]

remains to be established for conviction of the appellants. It is also        A
submitted that appellants are assailing the judgment of the High Court
on purely technical grounds; the Court should examine the substantive
material on record, which has been relied upon by the High Court to
uphold the conviction.
      8. Having considered the submissions advanced and the material          B
on record, we now proceed to analyse the evidence relevant for the
conviction of the appellants as also the submissions made.
        9. PW-8 is Charanjeet Singh, who at the relevant time was posted
as Station Supervisor, Muktsar Depot. In his examination-in-chief, he
has stated that he, along with Tarlochan Singh, Chief Inspector, Punjab       C
Roadways, Muktsar had compared the tickets with the way-bills and
dockets. He has sought to distinguish the tickets of Jarnail Singh and
Salwant Singh as also Balkar Singh. He has also sought to identify those
tickets vis-a-vis, the respective buses being conducted by the aforesaid
three conductors. On his statement, exhibits were marked of the tickets
shown to him. However, in the cross-examination, PW-8 clearly states          D
that all the tickets and the way-bills shown to him in Court were actually
shown to them in the Police Station by the police. None of these documents
were sealed at that time. We did not know at that time that which tickets
are relating to which bus or conductor. He was not present, when the
alleged tickets and way-bills were taken into possession by the police or     E
anyone else from the bus conductors. He cannot say whether these
way-bills and these tickets were connected or relevant with any bus
mentioned in his report. Lastly, in the cross-examination, he states that
numbers of the tickets issued to the conductors by the Head Office
were note supplied to them for comparison and checking.
                                                                              F
       10. PW-15 is Tarlochan Singh, Inspector Punjab Roadways,
Muktsar. He states in his examination-in-chief that on 04.08.1986, he
along with Charanjeet Singh, Station Supervisor (PW-8) were deputed
to check the vouchers, way-bills and tickets pertaining to the three buses.
After checking the records, they have submitted their report Ext. PW-8/
A, which bears his signatures. He further repeats the same statement          G
as given by Charanjeet Singh (PW-8) regarding the tickets of the three
buses, where Jarnail Singh, Salwant Singh and Balkar Singh were deputed
as conductors. However, in the cross-examination, he admits that all the
way-bills and tickets referred to above, were shown to them in the Police
Station. None of these were sealed at that time. He did not know which        H
204             SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A     tickets or way-bills were relating to which bus as they were not recovered
      in his presence. No numbers of the tickets issued by the Office or Depot
      were supplied to them for checking purposes.
             11. PW-8 and PW-15 are the two witnesses relied upon by the
      High Court to uphold the conviction of the appellants. From the perusal
B     of their statement as noted above, we are afraid that the High Court
      could have recorded conviction on its basis for the following reasons:
            •      Firstly, there is no evidence of the seized tickets being sealed
                   at any stage.
            •      PW-8 and PW-15 have clearly stated that they were not
C                  present at the time of recovery of these tickets.
            •      They have also clearly stated that these tickets were not
                   sealed, when they went to the Police Station.
            •      They have further stated that they do not know whether
D                  these way-bills and tickets are connected or relevant to
                   any of the vehicles mentioned in their report.
            •      They also stated that no numbers of the tickets issued to
                   the conductors by the Head office, were supplied to them
                   for comparison in checking.
E            12. PW-20, PW-21 and PW-22 are the members of the Inspection
      Committee constituted by the Deputy Commissioner. They had checked
      three buses on 11.05.1996, which are said to be manned by the present
      appellants as conductors. Their statements are more or less similar, as
      such, they are not being repeated but the contents as stated in their
      examination-in-chief and in their cross- examination are referred to
F
      hereunder:
            (i) In their examination-in-chief, it is stated that the Committee
            was constituted by the Deputy Commissioner to check buses of
            the Punjab Roadways, Muktsar Depot, as there was a complaint
            regarding use of already sold tickets (Khaddar tickets) by the
G           conductors in connivance with the officers of Muktsar Depot of
            Punjab Roadways.
            (ii) The Members of the Committee were Darshan Singh Sandhu,
            M.S. Sandhu and Mr. Amarjeet Singh Shahi.

H
  JARNAIL SINGH & ANR. v. STATE OF PUNJAB                                205
             [VIKRAM NATH, J.]

(iii) They checked three buses and in one of the buses they found        A
a suspended conductor was present in place of the regular
conductor.
(iv) Upon enquiry, the conductors informed that they were carrying
used tickets and that they were doing this on the orders of higher
authorities.                                                             B
(v) They took the tickets in their possession.
(vi) They further stated that they cannot identify the accused from
whom they had taken which ticket.
(vii) They made further enquiry after inspecting three buses and         C
recorded the statements of the General Manager and the Traffic
Manager and also the concerned conductors and also inspected
the relevant records.
(viii) Upon enquiry, it was found that even some buses of Punjab
Roadways were plying on roads without permit and without any             D
time schedule.
(ix) It is specifically stated in the examination-in-chief that they
could not tell the name of the conductor, number of the buses and
the number of the Khaddar tickets recovered from the accused
conductor and which Khaddar tickets were recovered from which
                                                                         E
accused.
(x) It is further stated that they had mentioned the details in the
enquiry report Ext.PW-20/A.
(xi) They admitted that Ext. PW-20/A is a photocopy. The original
enquiry report was submitted to the Deputy Commissioner,                 F
Muktsar, who had forwarded the same to the Secretary, Transport
for immediate action and suspension.
(xii) They also stated that their statements were recorded by the
police.
(xiii) Apparently, in view of the statements given in the examination-   G
in-chief not much of cross-examination was required, as such,
only formal questions were put during cross-examination, which
we need not refer to here.

                                                                         H
206                SUPREME COURT REPORTS                       [2022] 13 S.C.R.


A             13. From the above statements of the Inspecting Team, they failed
      to firstly prove the recovery of the tickets to have been validly made.
      Secondly, they also failed to prove the enquiry report as only a photocopy
      was filed and objections to the same was recorded in the statement
      itself, that the same would be exhibited subject to proof of the existence
      of the documents in original and loss thereof. The prosecution did not
B
      make that effort to prove the existence of the original and loss thereof in
      order to take an order for leading secondary evidence. Thus, no reliance
      could be placed upon the enquiry report and even the High Court has
      recorded that enquiry report was not a piece of evidence. Once, the
      recovery of the tickets is found to have not been made in accordance
C     with law, nor the seized tickets could be connected to the three different
      buses and the conductors manning the said buses (the appellants), it
      would not be safe to rely upon the unconfirmed tickets to connect them
      to the appellants. Secondly, the enquiry report having not been proved
      despite the State applying for leading secondary evidence and not pursuing
      it any further, there appears to be a complete vacuum of substratum on
D
      the basis of which, the entire case was set up by the prosecution.
             14. In view of our finding that there is no evidence to establish the
      charge against the appellants, we need not burden this judgment by
      referring to the case laws relied upon by the appellants.
E             15. Accordingly, the Appeals are allowed.
            16. The judgment of the High Court and the trial court qua the
      present appellants are set aside.
             17. The conviction of the appellants is set aside. They stand
      acquitted of all the charges levelled against them. They are already on
F     bail. Their bail-bonds stand discharged.


      Nidhi Jain                                                   Appeals allowed.



G




H