High Court Punjab-Haryana High Court

Balvinder Singh vs State Of Haryana on 11 September, 2009

Punjab-Haryana High Court
Balvinder Singh vs State Of Haryana on 11 September, 2009
Criminal Appeal No.1519-SB of 2005                             -1-



      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH
                         ****
                                   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.
                         ****
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
Criminal Appeal No.1519-SB of 2005 -2-

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
Criminal Appeal No.1519-SB of 2005 -4-

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
Criminal Appeal No.1519-SB of 2005 -5-

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
Criminal Appeal No.1519-SB of 2005 -6-

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
Criminal Appeal No.1519-SB of 2005 -7-

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
Criminal Appeal No.1519-SB of 2005 -8-

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
Criminal Appeal No.1519-SB of 2005 -9-

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.
Criminal Appeal No.1519-SB of 2005 -10-

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.

Criminal Appeal No.1519-SB of 2005 -11-

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