Crl. Appeal No.2297-SB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.2297-SB of 2007
Date of Decision : 20.11.2008
Daljit Singh @ Fozzi S/o Rachna Singh, ...Appellant
R/o Dera Daljit Singh Kharaka,
P.S.Guhla (Kaithal).
Versus
The State of Haryana ....Respondent
CORAM:HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Vinod Bhardwaj, Advocate,
for the appellant.
Mr. A.K.Jindal, AAG, Haryana,
for the respondent-State.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction, and
the order of sentence dated 31.8.2007, rendered by the Judge, Special
Court, Kaithal, vide which she convicted the accused/appellant, for the
offence, punishable under Section 18 of the Narcotic Drugs &
Psychotropic Substances Act, 1985 (hereinafter called as ‘the Act’ only)
and sentenced him, to undergo rigorous imprisonment from 28.1.2006 to
9.3.2006, period already undergone, and to pay a fine of Rs.5000/- , and
in default of payment of the same, to undergo rigorous imprisonment for
another period of one month, for having been found in possession of
Crl. Appeal No.2297-SB of 2007 2
1 kg. Opium, (falling within the ambit of non-commercial quantity),
without any permit or licence.
2. The facts, in brief, are that on 28.1.2006, Atma Nand, ASI,
alongwith other police officials, was going to Chakuladana for patrol
duty, and when the police party reached at ‘T’ point of Chakuladana turn,
Ramthali Smadha, one Maruti Car, came from the side of village
Chakuladana. It was signalled to stop. It was stopped. The driver of the
same, came down, and started walking with a white polythene bag, in his
hand. He was apprehended, on suspicion. On checking of the polythene
bag, 1 kg. opium, was recovered. Two samples of 20 grams each, were
taken out, and the remaining opium, was put into a separate container.
The samples, and the container, containing the remaining opium, were
converted into parcels, duly sealed, and taken into possession, vide a
separate recovery memo. Rough site plan of the place of recovery, was
prepared. The statements of the witnesses, were recorded. The accused
was arrested. After the completion of investigation, the accused was
challaned.
3. On appearance, in the Court, the copies of documents, relied
upon by the prosecution, were supplied to the accused. Charge under
Section 18 of the Act, was framed against him, to which he pleaded not
guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Balwan
Singh, ASI (PW-1), Om Parkash, EHC (PW-2), Atma Nand, ASI (PW-3),
the Investigating Officer, Rajbir Singh, Constable (PW-4), Ranjor Singh,
HC (PW-5), Jai Pal Singh, ASI (PW-6), and Jaimal Singh, SI (PW-7).
Thereafter, the Public Prosecutor for the State, closed the prosecution
Crl. Appeal No.2297-SB of 2007 3
evidence.
5. The statement of the accused, under Section 313 Cr.P.C., was
recorded, and he was put all the incriminating circumstances, appearing
against him, in the prosecution evidence. He pleaded false implication. It
was stated by him, that all the witnesses, being police officials, were
interested in the success of the case. It was further stated by him, that he
did not make any disclosure statement, that the recovery was effected
from him. He, however, did not lead any evidence, in his 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 appellant.
8. I have heard the learned Counsel for the parties, and have gone
through the evidence and record of the case, carefully.
9 The Counsel for the appellant, at the very outset, submitted that
the mandatory provisions of Section 50 of the Act, were not complied
with, as a result whereof, the trial, conviction, and sentence, stood
vitiated. It may be stated here, that, in the instant case, the recovery was
not effected from the person of the accused, but from the popythene bag,
which was being carried by him, in his hand. As such, the mandatory
provisions of Section 50 of the Act, were not applicable to the search and
seizure, in this case. Had the recovery been effected from the person of
the accused, then the provisions of Section 50 of the Act, would have
been attracted to the instant case. In State of Punjab Vs. Baldev Singh,
Crl. Appeal No.2297-SB of 2007 4
1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled
beyond doubt, that the language of Section 50, was implicitly clear that
the search had to be, in relation to a person, and not in relation to the
premises, vehicles, or articles. Similar view was taken in Smt. Krishna
Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In
these circumstances, it can be said that the consistent, and particularly the
view of the larger Bench of the Supreme Court, appears to be that the
search, must relate to the person, and not vehicles, other luggage and
articles, and then alone the provisions of Section 50 would be attracted.
Since, in view of the principle of law, laid down, in the aforesaid
authorities, the provisions of Section 50 were not applicable, to search, in
the instant case, the trial Court was right in recording conviction and
awarding sentence, to the accused. In this view of the matter, the
submission of the Counsel for the appellant, being without merit, must
fail, and the same stands rejected.
10. It was next submitted by the Counsel for the appellant, that no
independent witness, was joined, at the time of the alleged search and
seizure. He further submitted that, as such, the case of the prosecution,
became doubtful. It may be stated here, that no secret information had
been received, against the accused, that he was coming in a vehicle, and
was in possession of opium. It was only a chance recovery, which was
effected from the accused. When the police party was present, on patrol
duty, maruti car, being driven by the accused came. It was stopped, and
after alighting therefrom, the accused started walking, but was
apprehended, on suspicion. It was, thereafter, that the search of the
polythene bag, which was being carried by him, was conducted, and the
Crl. Appeal No.2297-SB of 2007 5
opium was recovered. There is nothing, on the record, that at the time of
the alleged search and seizure, any independent witness was available,
but he was not joined. If any independent had been joined, after the
search and seizure, his evidence would have been of no consequence, as
he would not have been said to be a witness to search and seizure. In the
absence of corroboration, through an independent source, to the evidence
of the official witnesses, the prosecution case cannot be distrusted and
disbelieved. In the face of the evidence of the official witnesses only, the
Court is required to scrutinize the same, carefully and cautiously. After
careful and cautious scrutiny, if the Court comes to the conclusion, that
the same does not suffer from any serious infirmity, the same can be
believed. The evidence of the official witnesses, in the instant case, has
been subjected to indepth scrutiny, and nothing came to the fore, which
may go to discredit the same. 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
Crl. Appeal No.2297-SB of 2007 6Police have been regularly performed is a wise principle of
presumption and recognized even by the Legislature.”
11. In Appa Bai and another Vs. State of Gujrat, AIR 1988 S.C.
696, it was held that the prosecution story 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. The submission of
the Counsel for the appellant, in this regard, being without merit, must
fail, and the same stands rejected.
12. It was next submitted by the Counsel for the appellant, that the
Investigating Officer, did not investigate into the source of opium, and, as
such, the case of the prosecution became doubtful. No doubt, the
Investigating Officer, did not investigate into the source of opium, yet
that fact, in itself, is not sufficient to disbelieve the prosecution case.
Once, the accused was found in possession of opium, he committed the
offence, punishable under Section 18 of the Act. If the Investigating
Crl. Appeal No.2297-SB of 2007 7
Officer, committed any illegality or irregularity, during the course of
investigation of the case, that did not mean, that the liability of the
accused, in any way, stood diluted. If the illegalities or irregularities,
committed by the Investigating Officer, are taken into consideration, for
the purpose of acquittal of accused, then every dishonest and negligent
Investigating Officer, shall leave a lacuna, in the prosecution case, so as
to create an escape route, for the accused. In this view of the matter, such
an illegality or irregularity, committed by the Investigating Officer, was
rightly not taken into consideration, by the trial Court. The submission of
the Counsel for the appellant, in this regard, being without merit, must
fail, and the same stands rejected.
13. It was next submitted by the Counsel for the appellant, that at
the time of the evidence of the prosecution witnesses, the case property,
was not produced, and, as such, it could be said that no recovery was
effected from the accused, but he was falsely implicated, in the instant
case. The submission of the Counsel for the appellant, in this regard,
does not appear to be correct. In the instant case, at the time of the
production of the accused, before the Illaqa Magistrate, on 29.1.2006, an
application, under Section 52-A of the Act, alongwith the case property,
for the purpose of disposal thereof, was also moved. The Sub Divisional
Judicial Magistrate, Guhla, on 29.1.2006, passed the following order :
“Accused produced before me, being Duty Magistrate. An
application under Section 52-A of NDPS Act, for disposal of
the case property moved by ASI Atma Ram. Heard. Case
property sealed with two seals JS and samples sealed with two
seals BS produced by the police, which has been attested by
Crl. Appeal No.2297-SB of 2007 8me. Prosecution is allowed to dispose of the case property, as
per Rules”.
13-A. It is evident from this order, that the prosecution was allowed
to dispose of the case property, as per the Rules. It was, thereafter, that
the case property was disposed of. Since, due compliance of the
provisions of Section 52-A of the Act, was made, the inventory, being the
primary evidence, non-production of the case property, as the same had
been disposed of, did not at all affect the case of the prosecution. The
submission of the Counsel for the appellant, in this regard, being without
merit, must fail, and the same stands rejected.
14. No other point, was urged, by the Counsel for the parties.
15. 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, and are liable to be upheld.
16. For the reasons recorded, hereinbefore, the appeal is dismissed.
The judgment of conviction, and the order of sentence dated 31.8.2007,
are upheld. If the appellant is on bail, his bail bonds, shall stand
cancelled. The Chief Judicial Magistrate, Kaithal, shall take necessary
steps, to comply with the judgment, with due promptitude, keeping in
view the applicability of the provisions of Section 428 of the Cr.P.C., and
submit compliance report, to this Court, within a period of two months,
from the date of receipt of a copy thereof.
17. No order was passed by the trial Court, regarding the
confiscation of maruti car, in question. The trial Court shall initiate the
proceedings, if already not initiated, regarding the confiscation of the car,
Crl. Appeal No.2297-SB of 2007 9
as per the relevant provisions of law, complete the same, and submit
compliance report, within three months, from the date of receipt of a copy
of the judgment.
18. The District & Sessions Judge, Kaithal, is directed to ensure
that the directions are complied with strictly, by the Courts concerned,
and the compliance report is sent within the time-frame.
19. The Registry shall keep track that the compliance report is
received within the time-frame. Whether the compliance report is
received within the time-frame or not, the papers shall be put up after 10
days of the expiry of the same, for further action.
20.11.2008 (SHAM SUNDER) Vimal JUDGE