Crl. Appeal No. 484-SB of 1997
1
IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 484-SB of 1997
Date of decision. 31.07.2008
Sham Singh son of Ganga Ram, r/o H. No. 1991, Colony
Mahant Mool Singh Babeksar Road, Amritsar.
....... Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. P.S. Hundal, Senior , Advocate with
Mr. R.S. Sidhu, Advocate
for the appellant.
Mr. S.S. Bhullar, DAG, Punjab
for the respondent.
****
Sham Sunder, J.
This appeal is directed against the judgment of
conviction and the order of sentence dated 05.06.1997,
rendered by the Court of Additional Sessions Judge, Amritsar,
vide which it convicted the accused (now appellant), for the
offence, punishable under Section 18 of the Narcotic Drugs and
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Psychotropic Substances Act, 1985 (hereinafter referred to be
as the ‘Act’ only) and sentenced him to undergo RI for a period
of 10 years and to pay a fine of Rs. 1 lac, in default of payment
of fine to undergo further rigorous imprisonment, for a period
of two years, for having been found in possession of 5 KGs
opium, without any permit or licence.
2. The facts, in brief, are that on 31.07.1996
Inspector Joga Singh along with Assistant Sub Inspector
Gurinder Pal Singh, and other police officials, was present
outside Kot Baba Deep Singh, Amritsar, in connection with
patrol duty and in search of bad elements, in a Government
vehicle. Gurbachan Singh son of Vir Singh, independent
witness, was joined with the police party. Thereafter, the
police party was going towards Anterjami Colony in connection
with patrol duty and when it reached near the bridge of dirty
drain, near cremation ground, one person was noticed coming
from the opposite side, holding one bag (Jhola), in his right
hand, on foot. On seeing the police party, the accused
immediately turned back, but was apprehended. He disclosed
his name as Sham Singh son of Ganga Ram, r/o Colony
Mahani Mool singh, Bibeksar, Amritsar. The search of the
bag ( thela ) being carried by the accused, was conducted in the
presence of DSP Varinderpal Singh, who was called to the spot
Crl. Appeal No. 484-SB of 1997
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by sending a message, as a result whereof, 5 Kgs opium was
recovered. A sample of 50 grams of opium, was taken out,
from the bag. The remaining contents of the bag were put into
a separate container. The container, containing the remaining
opium, and the sample, were converted into parcels, duly
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 accused was arrested. The statements of the witnesses were
recorded. After the completion of investigation, the accused
was challaned.
3. On his appearance, in the Court, the accused
was supplied the copies of documents, relied upon by the
prosecution. Charge under Section 18 of the Act, was framed
against the accused, to which he pleaded not guilty and
claimed judicial trial.
4. The prosecution, in support of its case,
examined Varinder Pal Singh, DSP, (PW-1), a witness to the
recovery, Joga Singh, Inspector, (PW-2), the Investigating
Officer and Ramesh Kumar, Constable, (PW-3), who tendered
his affidavit Ex.PF. Thereafter Gurbachan Singh,
independent witness, was given up by Public Prosecutor for
the State, as having been won over by the accused. He
Crl. Appeal No. 484-SB of 1997
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tendered into evidence report of the Chemical Examiner
Ex.PG and closed the prosecution evidence.
5. The statement of the accused, under
Section 313 of the Code of Criminal Procedure, was recorded.
He was put all the incriminating circumstances, appearing
against him, in the prosecution evidence. He pleaded false
implication.
5-A. In his defence, the accused examined
Ashwani Kumar, HC, DW1, Girdhari Lal, Constable, DW2,
Ravinder Pal, Clerk, DW3, and G.S. Nischal, DW4.
Thereafter, the defence evidence was closed.
6. After hearing the Additional 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 accused-appellant.
8. I have heard the Counsel for the parties,
and have gone through the evidence and record of the case,
carefully.
Crl. Appeal No. 484-SB of 1997
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9. The Counsel for the appellant, at the very
outset, vehemently, contended that one Gurbachan Singh,
independent witness though joined by the Investigating
Officer, at the time of the alleged search and seizure, yet he
was not examined. He further submitted that non-
examination of this witness, proved fatal to the case of the
prosecution. He also submitted that he was a witness in 5 to 6
cases of the police. It is, no doubt, true that Gurbachan Singh,
independent witness was joined, at the time of search and
seizure, yet he was given up, by the Public Prosecutor for the
State, as won over by the accused, as he came to the
conclusion, that he was not going to support the case of the
prosecution. The Public Prosecutor for the State is the master
of the case. It was for him to decide as to which witness he
wanted to examine and which witness he did not want to
examine. The Public Prosecutor for the State, exercised the
discretion, vested in him, in giving up Gurbachan Singh,
independent witness, as won over by the accused with a
bonafide motive. It could not be said that discretion exercised
by the Public Prosecutor for the State, in giving up Gurbachan
Singh, as won over by the accused, was, in any way arbitrary
or capricious. The evidence of the prosecution witnesses, is
creditworthy, and inspires confidence, in the mind of the
Court. In Masalti Vs. State of Uttar Pradesh, AIR 1965
Crl. Appeal No. 484-SB of 1997
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(S.C.) 202, it was held that it is, undoubtedly, the duty of the
prosecution to lay before the Court, all material witnesses,
available to it, whose evidence is necessary for unfolding its
case, but it would be unsound to lay down it, as a general rule,
that every witness, must be examined, even though his
evidence, may not be very material or, even if, it is known that
he has been won over or terrorized. In Roop Singh Vs. State
of Punjab 1996 (1) RCR 146, a Division Bench of this Court,
held that no adverse inference can be drawn, when the only
independent witness, was given up by the prosecution, as won
over by the accused. It was further held, in the said authority,
that the panch witnesses, being human beings, are quite
exposed and vulnerable to human feelings of yielding,
browbeating, threats and inducements and giving up of the
public witnesses, as won over, is fully justified, in the present
day situation, prevailing in the society. In Karnail Singh Vs.
State of Punjab 1983 Criminal Law Journal, 1218, a
Division Bench of this Court, held that where the independent
witness, was won over by the accused, and only the officials
witnesses, were examined, who were considered to be not
interested persons, their evidence cannot be doubted, on the
ground of their official status. The principle of law, laid
down, in the said authorities, is fully applicable to the facts of
the present case. In this view of the matter, the submission of
Crl. Appeal No. 484-SB of 1997
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the Counsel for the appellant, being without merit, must fail,
and the same stands rejected.
10. Now coming to the second contention of the
Counsel for the appellant that Gurbachan Singh, had appeared
in 5 to 6 cases of the prosecution and, as such, he was a stock
witness, it may be stated here, that the same is not correct.
The mere fact that Gurbachan Singh appeared in 5 to 6 cases
of the prosecution, did not mean that he was a stock witness.
He might have witnessed the recovery, in those cases, and, as
such, he was cited as a witness. However, no Court declared
that he was a stock witness. In this view of the matter, the
submission of the Counsel for the appellant, being without
merit, must fail, and the same stands rejected.
11. It was next submitted by the Counsel for
the appellant, that though the alleged recovery was effected in
this case on 31.07.1996, yet the sample was sent to the office
of Chemical Examiner on 06.08.1996 i.e. after the delay of
seven days. He further submitted that there was no
explanation, with regard to delay, in sending the sample, to
the office of the Chemical Examiner. He further submitted
that, under these circumstances, the possibility of tampering
with the sample, until the same reached the office of the
Chemical Examiner, especially when the seal after use was
handed over to the police officials, could not be ruled out. It
Crl. Appeal No. 484-SB of 1997
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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 Chemical
Examiner. Other evidence, produced by the prosecution, has
been held to be 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
Chemical Examiner. Even there is report of the Chemical
Examiner Ex.PG, which clearly proves that the seals on the
exhibit, were intact, on arrival, till the time of its analysis and
agreed with the specimen impression of the seals. The report
Ex.PG of the Chemical Examiner is per-se admissible, in
toto, under Section 293 of the Code of criminal Procedure.
There is no challenge to the report of the Chemical Examiner,
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 sample 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 sample, until
the same was received, in the office of the Chemical
Examiner, the submission of the Counsel for the appellant,
merely based on conjectures, does not hold good. The
principle of law, laid down, in the aforesaid authority, is fully
Crl. Appeal No. 484-SB of 1997
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applicable to the facts of the instant case. Since it was proved
that none tampered with the sample, until the same reached
the office of the Chemical Examiner, the submission of the
Counsel for the appellant, in this regard, being without merit,
must fail, and the same stands rejected.
12. The Counsel for the appellant, however,
placed reliance on Kaur Singh v. State of Punjab 2007(2)
RCR (Criminal) 630 to contend that unexplained delay in
sending the sample to the office of the Chemical Examiner,
must prove fatal to the case of the prosecution. The perusal of
the facts of Kaur Singh’s case ( supra ) , decided by a
Single Bench of this Court, clearly goes to show that the other
evidence produced by the prosecution to prove the link
evidence, was found to be deficient and unreliable. There
were so many other infirmities, in the prosecution case.
Taking into consideration the facts and circumstances,
prevailing therein, it was held that delay in sending the
sample to the Forensic Science Laboratory, was sufficient to
hold that the sample was tampered with, until the same
reached the office of the Chemical Examiner. Even
otherwise, the principle of law, laid down, in Kaur Singh’s
case ( supra ) on the same point, being contrary, to the
principle of law, laid down, in State of Orissa’s case
Crl. Appeal No. 484-SB of 1997
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(supra), decided by the Apex Court, shall not hold the field.
No help, therefore, can be drawn, by the Counsel for the
appellant, from Kaur Singh’s case ( supra ). In this view of
the matter, the submission of the Counsel for the appellant,
being without merit, must fail, and the same stands rejected.
13. It was next submitted by the Counsel for
the appellant, that the seal after use, was not given to the
independent witness. He further submitted that, on the other
hand, it was given to the ASI by the Investigating Officer,
who returned the same to him within two days of the
recovery. He further submitted that, under these
circumstances, the possibility of tampering with the contents
of the sample, until it reached the office of the Chemical
Examiner, could not be ruled out. It was not necessary, on the
part of the Investigating Officer, to hand over the seal to the
independent witness. An Investigating Officer, cannot be
expected to keep a number of seals with him, as he is to detect
the crime, and effect recoveries, in a large number of cases.
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 independent person forthwith. Similarly, the
independent person, though entrusted with the seal, by the
Investigating Officer, later on, was not produced as a witness.
Crl. Appeal No. 484-SB of 1997
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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 was 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. Non-examination of an independent witness, by
the prosecution, in view of the cogent, convincing, reliable,
and trustworthy evidence, produced by the prosecution,
regarding the completion of link evidence, did not at all affect
the merits of the case. In this view of the matter, the finding
of the trial Court, is endorsed.
14. The Counsel for the appellant, however,
placed reliance on Bhola Singh v. State of Punjab 2005(2)
RCR (Criminal) 520 to contend that if seal is not given to an
independent witness, but is kept by the Investigating
Officer, then the possibility of tampering with the contraband,
could not be ruled out. The perusal of the facts of the case,
aforesaid, clearly goes to show that there were so many other
Crl. Appeal No. 484-SB of 1997
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infirmities, therein, and after taking into consideration the
same, the Court came to the conclusion, that the chances of
tampering with the sample parcel until the same reached the
office of the Chemical Examiner , could not be ruled out. The
facts of the aforesaid authority, are distinguishable, from the
facts of the present case. Even otherwise, in view of the
principle of law, laid down, in Piara Singh’s case ( supra ),
decided by a Full Bench of this Court, any contrary principle
of law, on the same point, laid down in Bhola Singh’s case
( supra ), decided by a Single Bench of this Court, does not
hold the field.
15. No other point, was urged, by the Counsel
for the parties.
16. 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 appreciation of evidence, and law, on the point.
The same do not warrant any interference. The same
are liable to be upheld.
17. For the reasons recorded,
hereinbefore, the appeal is dismissed. The judgment
of conviction, and the order of sentence, dated
05.06.1997, are upheld. If the appellant is on bail, his
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bail bonds shall stand cancelled. 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 judgment, keeping in view
the applicability of the provisions of Section 428 of
the Code of Criminal Procedure.
(SHAM SUNDER)
JUDGE
July 31, 2008
dinesh