High Court Punjab-Haryana High Court

Ram Parkash Alias Billu Son Of … vs The State Of Haryana on 10 November, 2008

Punjab-Haryana High Court
Ram Parkash Alias Billu Son Of … vs The State Of Haryana on 10 November, 2008
                    Crl. Appeal No. 263-SB of 2001
                                  1



     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                  CHANDIGARH

                              Crl. Appeal No. 263-SB of 2001

                              Date of Decision:November 10, 2008


     1. Ram Parkash alias Billu son of Suraj Bhan, resident of
        Kavi Nagar, Ghaziabad.
     2. Vinod son of Sukhbir Singh, resident of village Pali, P.O.
        Sardana, District Meerut.

                                                .... Appellants

                              Versus

     The State of Haryana

                                          .... Respondent


     CORAM: HON'BLE MR. JUSTICE SHAM SUNDER

     Present:     Mr. Sandeep Maan,, Advocate
                  for Ram Parkash, appellant no.1.

                  Mr. Jagjeet Beniwal, Advocate
                  for Vinod Singh, appellant No.2.

                  Mr. R.S. Arya, DAG, Haryana
                  for the respondent.

                              ****

Sham Sunder, J.

This appeal is directed against the judgment of

conviction and the order of sentence dated 20.02.2001

rendered by the Court of Additional Sessions Judge, Bhiwani,

vide which it convicted the accused (now appellants), for the
Crl. Appeal No. 263-SB of 2001
2

offence, punishable under Section 20 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to be

as the ‘Act’ only) and sentenced them to undergo RI for a period

of 10 years each and to pay a fine of Rs.1,00,000/-, each in

default of payment of fine to undergo further rigorous

imprisonment, for a period of six months each, for having been

found in possession of 16 Kgs charas, which falls within the

ambit of commercial quantity, without any permit or licence.

2. The facts, in brief, are that on 28.04.2000

Darshan Kumar,Sub Inspector/ Station House Officer of Police

Station Sadar, Bhiwani, along-with other police officials, was

checking the vehicles. At about 5.30 PM, the accused came

from Chang side, in a Fiat Car. They were signalled to stop, but

they tried to speed away the vehicle. However, both the

accused were apprehended. Search of the car, was conducted, in

the presence of Anil Dhawan, Deputy Superintendent of Police,

who was called to the spot, by sending a VT message. On

search of the dickey of the car, a polythene bag, containing 16

Kgs charas was recovered. A sample of 100 grams charas was

taken out of the polythene bag, and the remaining charas, was

kept in the same polythene bag. The sample and the bag,

containing remaining charas, were converted into parcels, duly
Crl. Appeal No. 263-SB of 2001
3

sealed, and taken into possession, vide a separate recovery

memo. Ruqa was sent to the Police Station, on the basis

whereof, the FIR was recorded. The site plan was prepared.

The statements of the witnesses were recorded. The accused

were arrested. After the completion of investigation, the

accused were challaned.

3. On their appearance, in the Court, the

accused were supplied the copies of documents, relied upon by

the prosecution. Charge under Section 20 of the Act, was

framed against the accused, to which they pleaded not guilty,

and claimed judicial trial.

4. The prosecution, in support of its case,

examined Anil Kumar, DSP, (PW-1), a witness to the

recovery, Dharam Chand, HC, ( PW-2 ), a formal witness, who

tendered his affidavit Ex.PB, Ved Parkash, C.,(PW-3), a

formal witness, who tendered his affidavit Ex.PD, Ram Bilas,

S.I., ( PW-4 ), who prepared the report under Section 173

Cr.P.C., when he was posted as SHO at Police Station Sadar,

Bhiwani, and Darshan Kumar, Inspector/ SHO, ( PW-5 ), the

Investigating Officer. Thereafter, the Public Prosecutor for the

State, closed the prosecution evidence.

Crl. Appeal No. 263-SB of 2001
4

5. The statements of the accused, under Section 313

of the Code of Criminal Procedure, were recorded. They were

put all the incriminating circumstances, appearing against

them, in the prosecution evidence, and pleaded false

implication.

5-A. Vinod Kumar, accused , in his statement

under Section 313 Cr.P.C., stated that on 24.04.2001 he along

with Ram Parkash, accused, was going to village Sai

( Rewari ). He further stated that the police planted this false

recovery of charas against them.

5-B. Ram Parkash, accused, also took up the

similar plea, as was taken by Vinod Singh, accused, under

Section 313 Cr.P.C. The accused, did not lead any evidence in

their defence.

6. After hearing the Public Prosecutor for the

State, the Counsel for the accused, and, on going through the

evidence, on record, the trial Court, convicted and sentenced

the accused, as stated hereinbefore.

7. Feeling aggrieved, against the judgment of

conviction, and the order of sentence, rendered by the trial

Court, the instant appeal, was filed by the appellants.

Crl. Appeal No. 263-SB of 2001
5

8. I have heard the Counsel for the parties, and

have gone through the evidence, and record of the case,

carefully.

9. The Counsel for the appellants, at the very outset,

submitted, that no independent witness, was joined, at the time

of effecting the alleged recovery, despite availability. They

further submitted that even no effort was made by the

Investigating Officer, to join an independent witness. They

further submitted that, as such, the case of the prosecution,

became doubtful. The submission of the Counsel for the

appellants, in this regard, does not appear to be correct. There

was no secret information, against the accused, that they were

coming in a car, with a big haul of charas. It was, only in

routine, when the Police party was present, in connection with

the checking of vehicles that a fiat car, in which both the

accused, were sitting, came. It was, thus,a chance recovery.

No doubt, Darshan Kumar, Inspector/SHO, the Investigating

Officer, when appeared, in the witness box, as PW-5, during

the course of cross-examination, stated that he had tried to join

public witnesses, but they had shown their inability. It means

that an effort was made, to join an independent witness, but the

Investigating Officer did not succeed. There is nothing, on the
Crl. Appeal No. 263-SB of 2001
6

record, that at the time of recovery, any independent witness

was available, but he was not intentionally and deliberately

joined. If despite efforts, having been made by the

Investigating Officer, he was not successful, in joining an

independent witness, then his conduct could not be said to be

blame-worthy. In Akmal Ahmed Vs. State of Delhi, 1999(2)

RCC 297 (S.C.), it was held that, it is now well-settled that the

evidence of search or seizure, made by the police will not

become vitiated, solely for the reason that the same was not

supported by an independent witness. In State of NCT of

Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:-

“It is an archaic notion that actions of the Police officer,

should be approached with initial distrust. It is time now to

start placing at least initial trust on the actions and the

documents made by the Police. At any rate, the Court cannot

start with the presumption that the police records are

untrustworthy. As a proposition of law, the presumption

should be the other way round. The official acts of the Police

have been regularly performed is a wise principle of

presumption and recognized even by the Legislature.”

9-A. In Appa Bai and another Vs. State of Gujrat,

AIR 1988 S.C. 696, it was held that the prosecution story
Crl. Appeal No. 263-SB of 2001
7

cannot be thrown out, on the ground, that an independent

witness had not been examined, by the prosecution. It was

further held, in the said authority, that the civilized people, are

generally insensitive, when a crime is committed, even in

their presence, and they withdraw from the victims’ side, and

from the side of the vigilant. They keep themselves away

from the Courts, unless it is inevitable. Moreover, they think

the crime like a civil dispute, between two individuals, and do

not involve themselves, in it. The principle of law, laid down,

in the aforesaid authorities, is fully applicable to the facts of

the present case. In these circumstances, mere non-joining of

an independent witness, when the evidence of the prosecution

witnesses, has been held to be cogent, convincing,

creditworthy, and reliable, and there was no reason, on their

part to falsely implicate the accused, no doubt, is cast on the

prosecution story. In this view of the matter, the submission

of the Counsel for the appellants, being without merit, must

fail, and the same stands rejected.

10. It was next submitted by the Counsel for

the appellants, that the dickey of the car, wherefrom the

alleged recovery, was effected, was not locked and, as such, it

could not be said that the accused were found in conscious
Crl. Appeal No. 263-SB of 2001
8

possession of the recovered contraband. The submission of

the Counsel for the appellants, in this regard, does not appear

to be correct. Both the accused were travelling in the same

car. One of them was the driver and the other was sitting by

his side. It was not a small quantity of charas, which was

lying in the dickey of the car. It was a big haul of charas,

which was lying in the dickey of the car, of the accused. The

accused were having special means of knowledge, with regard

to the polythene bag, containing charas, lying in the dickey of

the car. It was for the accused to explain, as to how the bag,

containing charas, was lying in the dickey of the car, and to

which destination, the same was being transported. Not only

this, the conduct of the accused, is also relevant, in this case.

They instead of stopping the car, when the signal was given,

by the Police party, accelerated the speed thereof, and tried to

speed away. Ultimately, they were apprehended along with

the car. In case, there was no contraband, in the dickey of the

car, and the accused were not in the knowledge of the same,

then what was the necessity of trying to speed away the car,

was for them to explain. This material circumstance, goes

against them. Under these circumstances, it could be said that

they were in possession of, and in control over the polythene
Crl. Appeal No. 263-SB of 2001
9

bag, lying in the car. Once the possession of the accused, and

their control over the contraband, was proved, then statutory

presumption under Sections 54 and 35 of the Act, operated

against them, that they were in conscious possession thereof.

Thereafter, it was for them, to rebut the statutory presumption,

by leading cogent and convincing evidence. However, the

appellants, failed to rebut the said presumption, either during

the course of cross-examination of the prosecution witnesses,

or by leading defence evidence. In these circumstances, the

trial Court was right, in holding that they were in conscious

possession of the contraband. Sections 54 and 35 of the Act

read as under :-

“Presumption from possession of illicit articles:- In

trials under this Act, it may be presumed, unless and

until the contrary is proved, that the accused has

committed an offence under this Act, in respect of:-

a) any narcotic drug or psychotropic substance or

controlled substance;

b) any opium poppy, cannabis plant or coca plant

growing on any land which he has cultivated;

c) any apparatus specially designed or any group

of utensils specially adopted for the manufacture of
Crl. Appeal No. 263-SB of 2001
10

any narcotic drug or psychotropic substance or

controller substance; or

d) any materials which have undergone any

process towards the manufacture of a narcotic drug

or psychotropic substance or controlled substance, or

any residue left of the materials from which any

narcotic drug or psychotropic substance or controlled

substance has been manufactured,

for the possession of which he fails to account

satisfactorily.”

10-A Section 35 which relates to the presumption of

culpable mental state, is extracted as under :-

“Presumption of culpable mental state:- (1) In any

prosecution for an offence under this Act, which requires a

culpable mental state of the accused, the Court shall presume

the existence of such mental state but it shall be a defence for

the accused to prove the fact that he had no such mental state

with respect to the act charged as an offence in that

prosecution.

Explanation:- In this section “culpable mental state” includes

intention, motive knowledge of a fact and belief in, or reason

to believe, a fact.

Crl. Appeal No. 263-SB of 2001
11

(2) For the purpose of this section, a fact is said to be proved

only when the court believes it to exist beyond a reasonable

doubt and not merely when its existence is established by a

preponderance of probability.”

10-B. From the conjoint reading of the provisions

of Sections 54 and 35, referred to hereinbefore, it becomes

abundantly clear, that once an accused, is found to be in

possession of a contraband, they are presumed to have

committed the offence, under the relevant provisions of the

Act, until the contrary is proved. According to Section 35 of

the Act ibid, the Court shall presume the existence of mental

state, for the commission of an offence, and it is for the accused

to prove otherwise. In Madan Lal and another Vs. State of

H. P. 2003 SCC (Crl.) 1664 it was held as under:-

The word “conscious” means awareness about a particular
fact. It is a state of mind which is deliberate or intended.

Once possession is established, the person who claims
that it was not a conscious possession has to establish it,
because how he came to be in possession is within his special
knowledge. Section 35 of the Act gives a statutory recognition
of this position because of the presumption available in law.
Similar is the position in terms of Section 54 where also
presumption is available to be drawn from possession of illicit
articles.”

Crl. Appeal No. 263-SB of 2001
12

10-C. The facts of Madan Lal’s case (supra) in

brief, were that accused Manjit Singh was driving the Car and

the remaining four accused, were sitting therein. One steel

container (dolu) in a black coloured bag, was recovered from

the said Car, which contained 820 gms. charas. All the accused

were convicted and sentenced by the trial Court, holding that

they were found in conscious possession of charas, despite the

fact, that one of the accused, admitted his conscious

possession, of the contraband. The Apex Court held that the

trial Court, was right, in coming to the conclusion, that the

accused were found in conscious possession of charas, as they

had failed to explain, as to how they were travelling in a Car

together, which was not a public vehicle. The Apex Court

upheld the conviction, and sentence, awarded to the accused.

In the instant case, the accused failed to explain, as to how, the

polythene bag, containing charas, referred to above, was

found in the dickey of the car, which was being driven by one

of them. The facts of Madan Lal’s case (supra) are similar

and identical to the facts of the present case. The principle of

law, laid down, in Madan Lal’s case (supra), is fully

applicable to the facts of the present case. In the instant case,

in their statements, under Section 313 Cr.P.C., the
Crl. Appeal No. 263-SB of 2001
13

accused/appellants, took up the plea, only of false implication.

They did not take up the plea, that they did not know the

contents of the polythene bag, lying therein. The driver of the

car, did not take up the plea, that he was directed by the owner,

to take the polythene bag, to a certain place, and obeying his

command, he was taking the same, to that destination. The

other accused, did not take up the plea, that he merely took a

lift in the car, as he knew the driver thereof, and did not know,

as to what was contained in the polythene bag. As stated

above, the accused, thus, miserably failed to rebut the statutory

presumption, referred to above. Thus, their conscious

possession, in respect of the contraband, was proved, and, as

such, the submission of the Counsel for the appellants, being

without merit, must fail, and the same stands rejected.

11. The Counsel for the appellants, however,

placed reliance on Jasbir Singh alias Jassa v. State of

Haryana, 2008(3) RCR ( Criminal ) 42, decided by a Single

Bench of this Court, wherein, it was held that the accused was

not found in conscious possession of the contraband, recovered

from the vehicle. Ultimately, that appeal was accepted and the

appellant was acquitted. The facts of the aforesaid authority,

are completely distinguishable, from the facts of the present
Crl. Appeal No. 263-SB of 2001
14

case. Even otherwise, in view of the principle of law, laid down

in Madan Lal’s case ( supra ), decided by the Apex Court,

on the same point, contrary principle of law, laid down, in

Jasbir Singh’s case ( supra ), decided by this Court, shall not

hold the field. No help, therefore, can be drawn, by the

Counsel for the appellants, from the ratio of law, laid down, in

the authority, cited by them, and referred to above. In this

view of the matter, the submission of the Counsel for the

appellants, being without merit, must fail, and the same stands

rejected.

12. It was next submitted by the Counsel

for the appellants, that no effort was made by the Investigating

Officer to trace the owner of the vehicle, in question, and, as

such, the accused, did not commit any offence punishable

under Section 20 of the Act. The submission of the Counsel

for the appellants, in this regard, does not appear to be correct.

No doubt, no effort was made, by the Investigating officer, to

trace the owner and to find out as to whether he ( owner )

intentionally permitted the use of the car, for transporting the

contraband. Such an irregularity or illegality, committed by the

Investigating Officer, during the course of investigation, did

not mean that the accused did not commit any offence. If, on
Crl. Appeal No. 263-SB of 2001
15

account of irregularity or illegality, during the course of

investigation,committed by the Investigating Officer, benefit of

doubt is given to the accused, then every dishonest or

negligent Investigating Officer, will certainly leave lacunae, in

the case of the prosecution, so as to create an escape route for

the accused. The Court is not to play, in the hands of the

investigating Officer. If the Court comes to the conclusion,

that such an illegality or irregularity was committed by the

Investigating Officer, with a view to help the accused, then the

same can certainly be ignored. In this case, this Court has

reached the aforesaid conclusion. At the most, if the

Investigating Officer had traced the owner of the car, after

finding that he permitted the use thereof knowingly, for

transporting the contraband, he(owner) could be challaned

under Section 25 of the Act. However, the liability of the

accused, who were found in conscious possession of the

polythene bag, containing charas, could not be diluted. No

prejudice, whatsoever, was caused to the accused, on account

of non-tracing of the owner of the car, nor it was the case of

the accused, in their statements under Section 313 Cr.P.C., that

they were transporting the contraband, in the car, at the

instance of the owner thereof. The appellants, thus, committed
Crl. Appeal No. 263-SB of 2001
16

the offence under Section 20 of the Act. In this view of the

matter, the submission of the Counsel for the appellants, being

without merit, must fail, and the same stands rejected.

13. It was next submitted by the Counsel for the

appellants, that CFSL form, was not prepared, at the spot, by

the investigating officer, and, as such, the link in the chain of

prosecution evidence, became incomplete. He further submitted

that non-preparation of CFSL Form, at the spot, cast a cloud of

doubt, on the prosecution case, as also caused a prejudice to the

accused. He also placed reliance on Bhola Singh v. State of

Punjab, 2005(2) RCR 520, in support of his contention. It may

be stated here, that there is no provision in the Act, as also in

the Rules, framed thereunder, that the aforesaid form, should be

prepared, at the spot, and if it is not so prepared, then the trial,

conviction and sentence shall stand vitiated. The form is

required to be prepared, so as to send the same, along with the

sample parcel. Under these circumstances, if the same was not

prepared, at the spot, that did not transgress any provision of

the Act, or the Rules framed thereunder. Under these

circumstances, the Investigating Officer, did not commit any

irregularity or illegality, in not preparing the form, aforesaid, at

the spot, and rather preparing the same later on, at the time of
Crl. Appeal No. 263-SB of 2001
17

sending the sample parcel, to the Forensic Science Laboratory.

No prejudice has been caused to the appellant, on account of

non-preparation the said form, at the spot. The other evidence,

as stated above, is reliable and trust-worthy that none tampered

with the sample parcel, until the same reached the office of the

Forensic Science Laboratory. No help, therefore, can be drawn

by the Counsel for the appellants, therefrom. In this view of

the matter, the submission of the Counsel for the appellants,

being without merit, must fail, and the same stands rejected.

14. It was next submitted by the Counsel for the

appellants that only one sample was taken out of the charas,

allegedly recovered, whereas, the requirement of law, was to

take two samples. They further submitted that, on account of

this reason, a prejudice was caused to the accused. The

submission of the Counsel for the appellants, does not appear

to be correct. There is no provision, in the Act, or in the

Rules, framed thereunder, that two samples, from the

contraband, should be taken. The purpose of taking the

sample, is only to send the same to the Laboratory, for the

purpose of analysis. In the instant case, the Forensic Science

Laboratory analyzed the same, and came to the conclusion, that

the same constituted charas. Had the quantity of the sample
Crl. Appeal No. 263-SB of 2001
18

been found to be insufficient, by the Laboratory, it would not

have been analyzed the same, and sent back the same. On

account of drawing of one sample only, from the recovered

charas, no prejudice, whatsoever, was shown to have been

caused, to the accused. The submission of the Counsel for the

appellants, being without merit, must fail, and the same stands

rejected.

15. It was next submitted by the Counsel for

the appellants, that the sample parcel was sent after about

seven days, whereas, it was required to be sent to the

Laboratory, within 72 hours. They further submitted that, as

such, the possibility of tampering with the same, could not be

ruled out. The submission of the Counsel for the appellants,

in this regard, does not appear to be correct. There is no

provision in the Act, or in the Rules, framed thereunder, that

the sample was sent within 72 hours to the Laboratory. The

instructions, issued by the concerned department, do not have

the force of law and are not binding on the Courts. Those

instructions, are only for their guidelines. Had there been any

provision of law that the sample should be sent within 72

hours, on account of non-compliance with that provision, the

possibility of tampering with the sample, until the same
Crl. Appeal No. 263-SB of 2001
19

reached the office of the Forensic Science Laboratory, may

not have been ruled out. It is, no doubt, true that there is no

explanation, with regard to delay. However, mere delay, in

itself, is not sufficient to come to the conclusion, that the

sample parcel was tampered with, until the same reached the

office of the Forensic Science Laboratory. The other

evidence, produced by the prosecution, is cogent, convincing,

reliable and trustworthy. From the other evidence, it was

proved that none tampered with the sample, until the same

reached the office of the Forensic Science Laboratory. Even,

there is report of the Laboratory Ex.PE, which clearly proves

that the seals on the exhibits were intact, on arrival, till the

time of their analysis and agreed with the specimen

impression of the seals. The report Ex.PE of the Forensic

Science Laboratory is per-se admissible, in toto, under

Section 293 of the Code of criminal Procedure. There is no

challenge to the report of the Forensic Science Laboratory, in

this case. In State of Orissa Vs. Kanduri Sahoo 2004(1)

RCR (Criminal) 196 (S.C.), it was held that mere delay in

sending the samples to the Laboratory, is not fatal, where

there is evidence that the seized articles remained in safe

custody. Since, it was proved that none tampered with the
Crl. Appeal No. 263-SB of 2001
20

sample, until the same was received, in the office of the

Forensic Science Laboratory, the submission of the Counsel

for the appellants, merely based on conjectures, does not hold

good. The principle of law, laid down, in the aforesaid

authority, is fully applicable to the facts of the instant case.

The submission of the Counsel for the appellants, in this

regard, being without merit, must fail, and the same stands

rejected.

16. It was next submitted by the Counsel for

the appellants, that when the case property was produced, in

the Court, the same did not carry any chit, containing the

details of the FIR, Police Station etc.. They further

submitted that, under these circumstances, it could not be said

that the case property produced, in the Court, at the time of

evidence of the prosecution witnesses, was the same, as was

allegedly recovered, from the accused. They further

submitted that, under these circumstances, it could be said

that no recovery, whatsoever, was effected from the accused,

but they were falsely implicated, in the instant case. The

submission of the Counsel for the appellants, in this regard,

does not appear to be correct. The recovery, in this case, was

effected on 28.04.2000, whereas, the case property was, in the
Crl. Appeal No. 263-SB of 2001
21

first instance, produced, in the Court, at the time of the

evidence of Anil Kumar, DSP, HQ, Kurukshetra, ( PW1 ) on

02.11.2000. It means that he was examined seven months

after the date of recovery. The case property remained lying

in the malkhana, where the case properties of other cases,

were also lying. On account of shortage of space, in the

malkhanas, the case properties of the cases, cannot be stacked

properly. If, on account of irresponsible handling, lapse of

sufficient time, between the date of recovery, and production

of the case property, in the Court, and during the course of

transit, the chits affixed, on the bag, containing charas,

underwent the process of decay, that did not mean that the

case property, produced in the Court, did not stand connected

with the case. Anil Kumar, DSP ( PW1 ), in clear-cut terms,

stated that the polythene bag, containing charas, produced, in

the Court, was the same, as was recovered from the car, being

driven by one of the accused. The only obligation, upon the

prosecution, is to produce the case property, in the Court, and

get it identified, from the prosecution witnesses, so as to

connect the same with the case. In the instant case, the

prosecution produced the witnesses, who identified the case

property, as the same, as was recovered from the accused.

Crl. Appeal No. 263-SB of 2001
22

Under these circumstances, the case property produced, in the

Court, stood duly connected with the case. In this view of

the matter, the submission of the Counsel for the appellants,

being without merit, must fail, and the same stands rejected.

17. It was next submitted by the Counsel for

the appellants, that the seal, after use, was handed over to Om

Parkash, ASI, a Police official, who was not examined, by the

Investigating Officer, as a result whereof, the possibility of

tampering with the sample parcel, which was sent to the office

of the Forensic Science Laboratory, after a period of seven

days, could not be ruled out. The submission of the Counsel

for the appellants, in this regard, does not appear to be correct.

As stated above, no independent witness could be joined, for

the reasons, referred to above, at the time of search and

seizure. It was, under these circumstances that the seal after

use was handed over to another Police official, a member of

the party. Thus, the possibility of the tampering with the

sample parcel, until the same reached the office of the

Chemical Examiner, did not at all arise. In Piara Singh Vs.

The State of Punjab 1982 C.L.R. (2) 447, a case decided by a

Full Bench of this Court, the seal, on the sample of illicit

liquor, recovered from the accused, was not entrusted to an
Crl. Appeal No. 263-SB of 2001
23

independent person forthwith. Similarly, the independent

person, though entrusted with the seal, by the Investigating

Officer, later on, was not produced as a witness. In these

circumstances, it was held that this fact alone, was not

sufficient to affect the merits of the trial, and the prosecution

case, could not be thrown out, on that score alone. It was

further held, in this case, that it was not incumbent upon the

Police Officer, to hand over the seal, to a third person

forthwith, and even, in cases, where he had done so, it was not

obligatory upon him, to produce such person, as a witness,

during trial, as there is no statutory requirement, whatsoever,

to this effect. The principle of law, laid down, in the

aforesaid authority, is fully applicable to the facts of the

present case. From the cogent, convincing, reliable, and

trustworthy evidence, produced by the prosecution, the

completion of link evidence was proved. In this view of the

matter, the finding of the trial Court, is endorsed.

18. No other point, was urged, by the Counsel

for the parties.

19. In view of the above discussion, it is held

that the judgment of conviction and the order of sentence,

rendered by the trial Court, are based on the correct
Crl. Appeal No. 263-SB of 2001
24

appreciation of evidence, and law, on the point. The same do

not warrant any interference. The same are liable to be upheld.

20. For the reasons recorded, hereinbefore, the

appeal is dismissed. The judgment of conviction and the

order of sentence, dated 20.02.2001, are upheld. The Chief

Judicial Magistrate, shall take necessary steps, in accordance

with the provisions of law, to comply with the judgment, within

two months, from the date of receipt of a certified copy of the

same, keeping in view the applicability of the provisions of

Section 428 of the Code of Criminal Procedure, and send the

compliance report immediately thereafter.

21. The District & Sessions Judge, Bhiwani, is

also directed to ensure that the directions, referred to above,

are complied with, within the time-frame, and the compliance

report is sent immediately thereafter, to this Court.

22. The Registry shall keep track of the matter,

and put up the action taken report, if received, within the time

frame. Even if, the same is not received, within the time frame,

the matter shall be put up, within 10 days, after the expiry of the

same.

10.11.2008                      (SHAM SUNDER)
dinesh                              JUDGE