Criminal Appeal No.1519-SB of 2005 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.1519-SB of 2005
Date of Decision:11.09.2009
Balvinder Singh
.....Appellant
Vs.
State of Haryana
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. K.S. Dhaliwal, Advocate for the appellant.
Mr. Vikas Chaudhary, Assistant Advocate General, Haryana.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment dated 4.7.2005/
order of sentence dated 6.7.2005 passed by the Court of learned Judge,
Special Court, Kaithal whereby he convicted and sentenced the accused
Balvinder Singh to undergo rigorous imprisonment for a period of ten years
and to pay a fine of Rs.1 lac under Section 15(c) of the Narcortic Drugs and
Psychotropic Substances Act, 1985 (for brevity, `the Act’) and in default of
payment of fine, to further undergo simple imprisonment for one year.
The facts in brief are that on 3.10.1998, Inspector Mange Ram
amongst other police officials happened to be present in a government
vehicle No.HR-08-B-4901 at Bus Stand Guhla being on patrol duty as well
as for detection of crime. He received a secret information to the effect that
Balvinder Singh accused had concealed gunny bags of poppy husk after
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digging a pit in his residential house and if a raid is conducted, then he
could be apprehended with large quantity of poppy husk. This information
was embodied in a ruqa and sent to the Police Station, where on its basis,
formal FIR was registered. The house of the accused was raided. The
accused was found present there. During investigation, he suffered a
disclosure statement that he has been selling the poppy husk for the last
many days and he had concealed 30 gunny bags of poppy husk in his
residential house beneath the bunker. He was served with a notice under
Section 50 of the Act calling upon him to tell as to whether he wants to have
the search in the presence of a Gazetted Officer or a Magistrate. He replied
that he wanted to get the search conducted in the presence of a Gazetted
Officer. DSP Sajjan Singh and Tehsildar Pirthi Singh on receipt of
information came at the spot. The accused got recovered 30 bags of poppy
husk from the pit having been dug in his residential house. The contents of
each bag when weighed came to 40 Kgs. 250 grams of poppy husk was
drawn from each bag to serve as sample and converted into parcels. The
remainder of each bag was also turned into parcels. These parcels were
sealed with seals MR, SS and PS and were seized vide recovery memo.
Besides this, nine wooden planks with the aid of which, these bags lay
covered in the pit were also taken into possession vide separate recovery
memo. The accused was put under arrest. After completion of
investigation, the charge-sheet was laid in the Court for trial of the accused.
The accused was charged under Section 15 of the Act, to which
he did not plead guilty and claimed trial. To bring home guilt against the
accused, the prosecution examined PW1 Sub Inspector Chander Singh,
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PW2 HC Satbir Singh, PW3 Pirthi Singh District Revenue Officer, the then
Tehsildar, PW4 Sub Inspector Jagdish Chander, PW5 ASI Rohit Kumar,
PW6 Guljar Singh Inspector, PW7 Mange Ram Inspector and closed its
evidence by tendering report Ex.PH of FSL. When examined under section
313 of Cr.P.C., the accused denied all the incriminating circumstances
appearing in the evidence against him and pleaded false implication. He has
put forth that the alleged place of recovery was neither owned nor possessed
by him nor he ever made the alleged disclosure statement. In his defence,
he examined Om Parkash Secretary, Gram Panchayat Lalpur DW1, Balbir
Singh DW2, Dharampal DW3, Des Raj Singh DW4, Tara Singh DW5,
Chander Bhan DW6, Gurmukh Singh DW7, Darshan Singh DW8 and Ranjit
Singh DW9.
After hearing the learned Public Prosecutor for the State, the
learned defence counsel and examining the evidence on record, the learned
trial Court convicted and sentenced the accused as noticed at the outset.
Feeling aggrieved therewith, he has preferred this appeal. Mr. K.S.
Dhaliwal, Advocate appearing on behalf of the appellant strenuously urged
that as alleged by the prosecution, the recovery has been effected in
pursuance of secret information, but as is borne out from the record, the
same was not reduced into writing, nor sent to the superior officers in
adherence to the mandatory provisions enshrined under Section 42 of the
Act. Thus, the trial in its entirety stands vitiated. To overcome this
submission, the learned State Counsel maintained that a glance through the
record would reveal that the secret information was taken down in writing
and sent to the superior officers and thus, the stated provision of law stand
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complied with. This contention merits acceptance. Mange Ram Inspector
PW7 Investigator has stated in categoric terms that “There a secret
information was received that Balvinder Singh accused used to keep poppy
straw in his house underground and in case raid is conducted, then poppy
husk can be recovered in a large quantity. I sent ruqa Ex.PC to the Police
Station for registration of the case.” This evidence nullifies the contention
raised by the learned counsel for the appellant as on evaluating this
evidence, it transpires that provisions of Section 42 ibid have been observed
in stricto senso.
It has been further sought to be argued by Mr. Dhaliwal that the
recovery is alleged to have been effected from the house of the appellant. If
it is presumed to be so, it was incumbent upon the Investigator to have
called two independent witnesses from the locality to witness search of the
house in adherence to the provisions of Section 100(4) of the Code of
Criminal Procedure. I regret my inability to be one with the learned counsel
for the appellant. It is in the evidence of Mange Ram (sic.) that “There
accused Balvinder was found present in his house. On noticing the police
party, respectables of the village also arrived there. Thus respectables were
asked to join the raid but they refused to join the raid on the pretext that
they would not be witness in the recovery.” It is inferable from this
evidence that the provisions of Section 100(4) ibid were observed.
Furthermore, as ruled by the Division Bench of this Court in re: Karnail
Singh v. State of Punjab, 1983 Criminal Law Journal 1218, “breach of
Sub-Section (4) of Section 100 Cr.P.C., which require the officer effecting
the search to call two or more independent and respectable persons of the
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locality to witness the search would not render the search defective.
Though the apprehension may affect the credibility of the evidence let in, it
does not affect the admissibility of the evidence. Conviction based on such
evidence is not liable to be disturbed merely because of the non-compliance
of the provisions.”
The next argument having been raised on behalf of the
appellant is that the conscious possession of the appellant over the alleged
poppy husk bags is not proved. This contention has no legs to stand upon.
It has been abundantly established by evidence on the record that the
appellant pursuant to his disclosure statement had got recovered as many as
30 bags of poppy husk from the bunker which lay covered with wooden
planks inside his residential house. Thus, the prosecution has adequately
established the exclusive knowledge as well as possession of the appellant
qua these bags. In re: Megh Singh v. State of Punjab, 2004(1) Apex
Criminal 482, the accused was sitting on gunny bags containing
contraband. It was held by Hon’ble the Supreme Court that “Word
`conscious’ means awareness about a particular fact. It is a statement of
mind which is deliberate or intended. Expressions `possession’ is a
polymorphus term which assumes different colours in different contexts. It
is impossible to work out a completely logical and precise definition of
“possession” uniformly applicable to all situations in the context of all
statutes. 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 presumption available in
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law. Similar is the position in terms of Section 54 where also presumption is
available to be drawn from possession of illicit articles. This position was
highlighted in Madan Lal and another v. State of Himachal Pradesh,
2003(6) SCALE 483″. In view of these observations, as soon as the
prosecution proved by adducing evidence, the possession of the appellant
qua these bags, the onus shifted on to him to prove that it was not his
conscious possession, which has not been done. So, his conscious
possession stands established and the presumption arising under Section 35
as well as 54 of the Act operates in favour of the prosecution.
Mr. Dhaliwal further canvassed at the bar that the alleged place
of recovery is neither owned nor possessed by the appellant. There is
sufficient evidence on the record that he was not residing at the place of
alleged recovery. I have considered his submission. Om Parkash Secretary,
Gram Panchayat Lalpur DW1 has stated in a nutshell that as per register
brought by me from 1991 to 2002, there is no house in the abadi of Lalpur
in the name of Balvinder Singh resident of Village Lalpur. This witness has
been examined to prove that the house of the appellant is not situated within
the abadi of Village Lalpur. Under the stress of cross-examination, he has
stated that “it is correct that in the register, at many entries, there are over-
writing in the figures.” If such is the state of entries in this register, how the
same can be relied upon. It is in his further cross-examination that “I do not
know whether Harvel Singh son of Lal Singh and Balvinder Singh reside
together or not.” Obviously, he has given an evasive reply to this question.
Balbir Singh DW2, Tara Singh DW5, Gurmukh Singh DW7, Darshan Singh
DW8 and Ranjit Singh DW9 have been examined to prove that appellant
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along with members of his family is residing outside the abadi of Village
Lalpur. To prove this fact, he should have produced his ration card and
voter’s list. To his utter consternation, he has not adduced such
documentary evidence on which reliance could have been placed. The ipse
dixit of the above-mentioned witnesses are not conclusive proof of the fact
that he is not residing in the house from which the recovery has been got
effected by him. Furthermore, he would have produced and proved the
record of his electricity connection to substantiate this fact. There being no
cogent, convincing and clear evidence, it would be going too far to say on
the basis of the above discussed oral evidence that he is not putting up in the
stated house. It has come in the evidence that his brother Ravel Singh is
living in abadi. A careful delving into the cross-examination of Mange Ram
Investigator would reveal that no suggestion has been put to him that the
appellant is not residing in the house from which the recovery has been
effected or that the same is not his ownership or that the same is in
occupation of somebody else. Had somebody else been the owner in
possession of this very house, the name of that very person would have
certainly been disclosed and put to the Investigator as well as other
witnesses of the prosecution. Besides this, such person would have been
examined in defence. In the absence of such evidence, it is very difficult to
say that this house is not in the possession of the appellant. In his cross-
examination, the Investigator has deposed that “The said Bunkar was 4-1/2″
deep and depth was having the width of 3-1/2″ and having the length of 9′.
The same was having the wooden battens and the roof was made of tile.”
Thus, he has even given the dimensions of the bunkar from which poppy
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husk bags were recovered.
It has been further agitated at the bar that the recovery is stated
to have been effected on 3.10.1998 whereas the sample parcels were
received in the Forensic Science Laboratory on 9.10.1998 which is
obviously after six days. During this inexplicable delay, the possibility of
the contents of the sample parcels being changed cannot be ruled out. I have
well considered this submission. In re: Jaili v. The State of Haryana,
2008(2) Recent Criminal Reports (Criminal) 264, there was a delay of
one month in sending sample to the Forensic Science Laboratory. There
was no evidence that samples of the case property were tampered with. The
seals on the samples, tallied with the specimen seal as per the forwarding
authority letter. Under these circumstances, it was held by this Court that
mere delay in sending the samples did not, in any way cause prejudice to the
accused, nor did it go to prove that the samples were tampered with, until
the same were deposited in the Office of Forensic Science Laboratory.
Further in re: Mohan Singh v. State of Punjab, 2007(4) Recent Criminal
Reports (Criminal) 705, there was a delay of 10 days in sending the
samples to the Forensic Science Laboratory. It was held by the Division
Bench of this Court that mere delay in sending the same to the laboratory is
not fatal, when there is evidence that the seized articles were kept in proper
and safe custody. Further in re: Ganesh son of Kapil Dev, resident of
Haraj, Police Station Sheela Ganj, District Moti Hari (Bihar) v. The
State of Haryana, 2009(2) Recent Criminal Reports (Criminal) 39, there
was a delay of 7 days in sending the sample to the Forensic Science
Laboratory. The delay was not explained. It was held that the prosecution
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has led cogent and convincing evidence that the sample was not tampered
with during the period and thus the delay was not fatal to the prosecution.
Again in Motia Bai v. State of Haryana, 2005(3) Recent Criminal
Reports (Criminal) 56, there was a delay of 20 days in sending the sample
to the Forensic Science Laboratory. There was no evidence that the sample
was tampered with. The report of the Forensic Science Laboratory
indicated that the seals of the sample were intact, when it reached the
laboratory. The conviction was upheld. In re: State of Orissa v. Kanduri
Sahoo, 2004(1) Supreme Court Cases 337, the sample of cannabis (ganja)
was sent for chemical examination after four days of recovery. It was
observed by the Apex Court that “The evidence of PW-1 was categorical to
the effect that the articles were kept in the Excise Malkhana from where
they were brought and sent for chemical examination. This relevant aspect
appears to have been missed by the High Court. In Valasla’s case (supra),
it was not laid down that whenever there is delay in sending the samples, the
prosecution version would become vulnerable. What was emphasised
related to proper and safe custody of the seized articles. In the background
to that particular case, when delay of 3 months was there and there was no
clear evidence as to with whom the articles were lying, the decision was
rendered. No evidence was led to show that the contraband articles were in
proper custody and in proper form. But the factual situation is different
here. That being so, the High Court’s judgment does not stand scrutiny and
is set aside. The conviction as done by the trial Court was proper.” It was
also held that merely because the articles were kept in the excise malkhana
for four days would not make the prosecution version suspect.
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Herein, Satbir Singh HC PW2 has deposed that “On 3.10.1998,
I was posted as MHC in Police Station Guhla. On that day, Mange Ram
Inspector CIA Staff Kaithal deposited with me 30 bags of poppy husk
sealed with the seals of MR, SS, PS and JC along with sample seal and 30
sample of poppy husk sealed with the same seals. On 9.10.1998 samples
(30) along with sample seal were sent to FSL through C. Dhoop Singh
No.680 vide R.C. No.659 dated 9.10.1998. After depositing the same with
FSL, C. Dhoop Singh handed over receipt thereof to me on the same day.
So long as the case property, sample remained with me I did not tamper
with it nor allowed any body to do so.” Mange Ram PW7 has testified that
“SHO Jagdish Chander also reached the spot. In his presence, accused, case
property and witnesses were produced before him. SHO verified the
invsetigation and affixed his seal JC on each parcels, and directed me to
deposit the case property with the MHC. Accordingly on the same day, I
deposited the case property with MHC. Ex.P1 to Ex.P30 are the same bags,
which were recovered from the accused.” In FSL report Ex.PH, it has been
mentioned that 30 sealed cloth parcels each sealed with one seal of PS, one
seal of SS, one seal of MR and one seal of JC were received in the
laboratory. These seals on the parcels were found intact and tallied with the
specimen seals as per forwarding authority letter. All this evidence go a
long way in proving that right from seizure till their receipt in the
laboratory, the contents of sample parcels were not tampered with. Thus,
there is no dent in the prosecution case. Pirthi Singh District Revenue
Officer PW3, a disinterested person has fully supported the prosecution
version.
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No other material point has been urged or agitated by either
counsel. On scrutinising and analysing the entire evidence, it emerges out
that no infirmity surge to the surface. Sequelly, the appeal is dismissed
being devoid of any merit.
The Chief Judicial Magistrate, Kaithal is directed to take
necessary steps to procure the presence of the appellant and to send him to
the prison for serving out the unexpired portion of his sentence. The
Registry is directed to send a copy of this judgment to the learned trial Court
as well as the Court of learned Chief Judicial Magistrate, Kaithal.
September 11, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No