Crl.A.No.863-DB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl.A.No.863-DB of 2003
Date of Decision: November 20, 2008
Inderjeet .......Appellant.
Versus
State of Haryana .......Respondent
CORAM:- HON'BLE MR.JUSTICE K. S. GAREWAL
HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr.Gorakh Nath, Advocate
for the appellant.
Mr.SS Randhawa, Additional Advocate General, Haryana.
---
JITENDRA CHAUHAN, J.
1. The present appeal is directed against judgment and order
dated 13.9.2003 passed by the Additional Sessions Judge, Fatehabad
whereby the accused-appellant has been convicted for the offence
punishable under Section 18(b) of the Narcotic Drugs & Psychotropic
Substances Act, 1985 (hereinafter referred to as “the Act”) and sentenced
thereunder to undergo rigorous imprisonment for a period of twelve years
and to pay a fine of Rs.1 lac and in default of payment of fine further
rigorous imprisonment for two years.
2. Accused-appellant was apprehended on the basis of suspicion
when the police was patrolling in the area of village Thirvi on 24.9.2001.
Crl.A.No.863-DB of 2003 -2-
The accused was carrying a plastic drum. A written notice was served upon
the accused to the effect that drum carried by him was suspected to be
containing some narcotic substance. An offer was made to the accused to
get the search conducted either by a Gazetted Officer or a Magistrate who
could be summoned on the spot. Accused Inderjeet expressed his desire to
be searched before a Gazetted Officer.
3. A wireless message was sent to the DSP Headquarters,
Fatehabad. DSP Shri Ashok Kumar reached the spot along with his staff.
Opium, weighing 20 kgs., was recovered from the drum being carried by
the accused. Two samples of 50 grams each were taken out from the
recovered substance and kept in small plastic containers. The samples and
the remainder narcotic substance were sealed with the seal of ‘KS’ and taken
into possession vide recovery memo. The samples were sent to Forensic
Science Laboratory for chemical examination. One Mohinder Singh was
joined as an independent witness.
4. Accordingly, a ruqa was sent by SI Kanwar Singh, SHO, at
8.40 P.M. to the Police Station Sadar, Tohana, for registration of an FIR.
The FIR was registered under Section 18 of the Act by ASI Jai Narain.
Special report was sent to the Illaqa Magistrate.
5. The accused was charge-sheeted on 2.5.2000 by the learned
Additional Sessions Judge, Fatehabad for the offence punishable under
Section 18 of the Act.
6. To establish its case, the prosecution examined as many as
seven witnesses. However, the material witnesses are PW4 ASI Jai Narain
who recorded the FIR; PW5 DSP Ashok Sheoran, in whose supervision the
search was carried out and the narcotic substance was recovered from the
Crl.A.No.863-DB of 2003 -3-
accused-appellant and PW6-SI Kanwar Singh, who apprehended the
accused and investigated the case.
7. After the conclusion of prosecution evidence, the statement of
the accused was recorded under Section 313 of the Code of Criminal
Procedure without oath. In answer to question No.12, the accused-appellant
pleaded innocence and stated that a false case had been registered against
him and nothing was recovered from his possession.
8. On behalf of the appellant, it was argued that Mohinder Singh,
the only witness from the public, in whose presence the search was
conducted and the contraband recovered, was given up by the prosecution.
The witness ought to have been examined and if necessary, cross-examined
by the prosecution and the non-examination of the said witness was fatal to
the case of prosecution.
9. It was further submitted that the investigation of the present
case was confined to the Police Department. The Investigating Officer
ought to have joined a Gazetted Officer of the Department other than the
Police Department. The appellant was totally illiterate and no notice under
Section 50 of the Act was read over and explained to him nor the alleged
reply of the accused was read over and explained to him. Thus, a great
prejudice was caused to the appellant. The learned counsel further stated
that there was a delay of nine days in sending the samples to the laboratory.
The recovery was effected on 24.9.2001 and the samples were sent to the
Forensic Science Laboratory on 3.10.2001. No explanation has been
recorded as to why the samples were not dispatched immediately on
24.9.2001 itself. In this manner, there was no compliance of provisions of
Section 50 of the Act.
Crl.A.No.863-DB of 2003 -4-
10. On the other hand, learned State counsel has argued that the
provisions of Section 50 of the Act were complied with. An effort was
made to join an independent witness, who was, subsequently, given up by
the prosecution on account of his being won over by the accused-appellant.
11. As there is an absolute consistency in the testimony of PW4,
PW5 and PW6, the same cannot be disbelieved only on account of the fact
that they happened to be the official witnesses. The evidence led by the
prosecution was a quality evidence. There was no motive or enmity
attributed to the police officials for false implication of the accused.
12. There was complete compliance of the procedure at the time of
search and seizure of the accused. The search and seizure was completed
under the supervision of the DSP who is a Gazetted Officer of the State.
Though there was a delay of nine days in sending the samples to the
laboratory, but as per FSL report, Exhibit P14, the seals of the samples at
the time of handing over to the laboratory were intact and the substance of
the sample was found to be of opium.
13. There is complete corroboration in the versions of PW4 ASI
Jai Narain, who recorded the FIR, PW5 DSP Ashok Sheoran, under whose
supervision the process of search and seizure was completed and PW6-SI
Kanwar Singh fully corroborated the circumstances, the delay in sending
samples, if any, assumes no significance.
14. PW6 SI Kanwar Singh stated that he served notice, Exhibit
P10, under Section 50 of the Act to the appellant; prepared the report under
Section 57 of the Act on the same day and sent the same to DSP Ashok
Kumar at the spot itself and the cane containing opium was recovered from
the possession of the accused.
Crl.A.No.863-DB of 2003 -5-
15. We have heard the learned counsel for the parties and perused
the records.
16. Admittedly, the quantity of the contraband is heavy. There is
no allegation of malafide by the appellant. An independent witness was
joined by the police during search and seizure. However, he had to be given
up as he was won over by the appellant. It is a case of chance recovery.
The appellant had given option for being searched by the Gazetted Officer.
The search was carried out under the supervision of the Gazetted Officer of
the State. There is a consistency in the statements of PW4, PW5 and PW6
that DSP reached on the spot at about 7.15/7.20 P.M. The FIR was
promptly registered. The irregularity that the samples were not immediately
sent to the Forensic Science Laboratory is also not fatal in view of FSL
report, Exhibit P14, wherein it has been specifically recorded that the
samples were received intact and the contents of the samples were found to
be of opium.
17. What is clinching in the present case was that the opium
recovered from the possession of the accused was produced in the Court
and was exhibited as Exhibit P9. The quantity being very heavy and there
being no allegation of malafide by the appellant, the plea of false plantation
of recovery stands ruled out.
18. The Hon’ble Supreme Court in Hardip Singh Vs. State of
Punjab, 2008(4) RCR (Criminal) 97 dealing with the delay of sending the
samples to chemical analysis observed as under:
“So far as the question of delay in sending the samples of
opium to be Forensic Science Laboratory (FSL) is concerned,
the same in our opinion has no consequence for the fact that the
Crl.A.No.863-DB of 2003 -6-recovery of the said sample from the possession of the
appellant stands proved and established by cogent and reliable
evidence led in the trial. PW5 has categorically stated and
asserted about the recovery of opium from the possession of the
appellant, which fact is also corroborated by a higher officer,
namely, SS Mann, DSP who was also examined at length
during the trial. The said recovery was effected in the presence
of the said SS Mann, DSP, as senior police officer, who also
put his seal on the said parcels of opium. The then Station
House Officer, Inspector Baldev Singh, who was examined as
PW1, was posted at Police Station Ajnala on the date of
occurrence. He received the said samples of opium along with
case material, being produced before him by PW5. It has come
on evidence that Inspector Baldev Singh kept the entire case
property with him till it was deposited kin the office of the
Chemical Examiner, Amritsar on 30.9.1997 through ASI
Surinder Singh (PW3). It has also come on evidence that till
the date the parcels of sample were received by the Chemical
Examiner, the seal put on the said parcels of sample were
received by the Chemical Examiner, the seal put on the said
parcels were intact. That itself proves and establishes that there
was no tampering with the aforesaid seal in the sample at any
stage and the sample received by the analyst for chemical
examination contained the same opium which was recovered
from the possession of the appellant. In that view of the
matter, delay of about 40 days in sending the samples did not
Crl.A.No.863-DB of 2003 -7-and could not have caused any prejudice to the appellant. The
aforesaid contention, therefore, also stands rejected.”
19. In view of the above, the present appeal is hereby dismissed
and order of conviction and sentence, dated 13.9.2003, passed by the
learned trial Court is upheld.
( JITENDRA CHAUHAN )
JUDGE
( K .S. GAREWAL )
JUDGE
November 20, 2008
SRM
Note: Whether to be referred to reporter ? Yes/No