Crl. Appeal No.2083-SB of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.2083-SB of 2008
Date of Decision : 1.12.2008
Bikkar Singh S/o Hazura Singh, ....Appellant
resident of Dhaipai.
Versus
The State of Punjab ....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. Deepak Gupta, 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 22.10.2008, rendered by the Judge, Special
Court, Bathinda, vide which he convicted the accused/appellant, for the
offence, punishable under Section 15 of the Narcotic Drugs &
Psychotropic Substances Act, 1985 (hereinafter called as ‘the Act’ only)
and sentenced him to undergo rigorous imprisonment for a period of one
year and 6 months, and to pay a fine of Rs.1000/-, and in default of
payment of the same, to undergo rigorous imprisonment for another
period of ten days, for having been found in possession of 14 Kgs.
Poppy-husk, (falling within the ambit of non-commercial quantity),
Crl. Appeal No.2083-SB of 2008 2
without any permit or licence. The proceedings against Pala Singh,
accused, abated, as he died during the trial of the case.
2. The facts, in brief, are that, on 22.11.2004, Mohri Lal, ASI,
alongwith other police officials, was present at the crossing of Raman, in
connection with strike of Kisan Union, in Govt. Gypsy No.PB-08-1265.
At that time, Jhanda Singh S/o Suraj Singh, a public witness, met the
police party there, and was joined with it. When the police party was
proceeding, on the link road, from Raman to Malkana, and reached 1 KM
ahead of village Raman, it spotted Bikkar Singh and Pala Singh, accused,
who on seeing the police party, tried to run away, after lifting the bag, but
were apprehended, on suspicion. Due to fall of the bag, some poppy-
husk, spilt therefrom. On search of the bag, in accordance with the
provisions of law, it was found containing 14 kgs. poppy-husk. Two
samples of 100 grams each, were taken out, and the remaining poppy-
husk, was put into the same bag. The samples, and the bag, containing
the remaining poppy-husk, 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, formal FIR was registered. The
statements of the witnesses, were recorded. The accused were arrested.
After the completion of investigation, the accused was challaned.
3. On their appearance, in the Court, the copies of documents,
relied upon by the prosecution, were supplied to them. Charge under
Section 15 of the Act, was framed against them, to which they pleaded
not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Jagtar Singh,
HC (PW-1), Mohri Lal, SI (PW-2), the Investigating Officer, Pargat
Crl. Appeal No.2083-SB of 2008 3
Singh, HC (PW-3), and Hardam Singh, SI (PW-4). Thereafter, the Addl.
Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of Bikkar Singh, 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. He, however, examined Hardeep Singh,
(DW-1), in his defence. Thereafter, he closed the defence evidence.
6. After hearing the Addl. Public Prosecutor for the State, the
Counsel for the accused, and, on going through the evidence, on record,
the trial Court, convicted and sentenced Bikkar Singh, 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 Bikkar Singh, 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 sentence and conviction, stood vitiated. He
also placed reliance on Ram Prasad Vs. State of Haryana 2005(2) RCR
(Criminal) 288, in support of his contention. The submission of the
Counsel for the appellant, in this regard, does not appear to be correct.
The recovery, in this case, was not effected from the person of the
accused, but from the bag, which he was carrying. 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
Crl. Appeal No.2083-SB of 2008 4
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, 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.
Ram Prasad’s case (supra), was decided by a Single Bench, of this
Court. In view of the principle of law, laid down, in State of Punjab’s
and Smt. Krishna Kanwar Thakuraeen’s cases (supra), decided by the
Apex Court, any principle of law, to the contrary, laid down, on the same
point, in Ram Prasad’s case (supra), shall not hold the field. Since, in
view of the principle of law, laid down, in the aforesaid cases, decided by
the Apex Court, the provisions of Section 50 were not applicable, to
search, in the instant case, the question of compliance therewith, did not
at all arise, and, as such, the conviction and sentence, did not stand
vitiated. The submission of the Counsel for the appellant, in this regard,
being without merit, must fail, and the same stands rejected.
10. It was next submitted by the Counsel for the appellant, that
there was delay of 13 days, in sending the samples, which remained
unexplained, as a result whereof, it could not be said that the samples
were not tampered with, until the same reached the office of the Chemical
Crl. Appeal No.2083-SB of 2008 5
Examiner. The submission of the Counsel for the appellant, in this regard,
does not appear to be correct. The mere fact that delay, in sending the
samples, to the office of the Chemical Examiner, was not explained, in
itself, was not sufficient, to come to the conclusion, that the sample
parcels were tampered with, at any stage. In such circumstances, the
Court is required to fall back upon the other evidence, produced by the
prosecution, to complete the link evidence. The other evidence produced
by the prosecution, has been subjected to indepth scrutiny, and, it has
been found to be cogent, convincing, reliable, and trustworthy. From the
evidence, produced by the prosecution, it was proved that none tampered
with the sample parcels, until the same reached the office of the Chemical
Examiner. Above all, there is report of the Chemical Examiner, Ex.PK,
which clearly proves that the seals on the samples, were found intact, and
agreed with the sample seal sent. The report of the Chemical Examiner is
per-se admissible into evidence, in its entirety, as per the provisions of
Section 293 Cr.P.C. The delay, in sending the samples, to the office of
the Chemical Examiner, therefore, did not prove fatal to the case of the
prosecution. Had no other evidence, been produced, by the prosecution,
to prove that the sample parcels, remained untampered with, until the
same reached the office of the Chemical Examiner, the matter would have
been different. 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. In Narinder Singh @ Nindi Vs. State
of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the
recovery of 4 Kgs. of opium, the samples were sent to the office of the
Crl. Appeal No.2083-SB of 2008 6
Chemical Examiner, after 23 days. All the samples were intact. In these
circumstances, it was held that, in the face of the other cogent,
convincing, reliable, and trustworthy evidence, produced by the
prosecution, to prove the completion of link evidence, it could not be
held that the possibility of tampering with the samples, could not be ruled
out. The principle of law, laid down, in the aforesaid authorities, is fully
applicable to the facts of the instant case. Therefore, in the instant case,
unexplained delay of 13 days, in sending the samples to the office of the
Chemical Examiner, did not at all matter much. 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
Form No.29, was not filled up, at the spot, as a result whereof, the case of
the prosecution, became doubtful. The submission of the Counsel for the
appellant, in this regard, does not appear to be correct. There is no
requirement of the Act, or the Rules, framed thereunder, that Form No.29,
should be prepared, at the spot. Had there been any requirement of law,
and the Form aforesaid, had not been prepared, at the spot, it would have
been said that the case of the prosecution was doubtful. In the instant
case, the Form, was prepared, and sent to the Laboratory, alongwith the
sample parcels. Since, there was no requirement of law, of filling up
Form No.29, at the spot, the submission of the Counsel for the appellant,
being without merit, must fail, and the same stands rejected.
12. The Counsel for the appellant, however, placed reliance on
Bhola Singh Vs. State of Punjab 2005(2) RCR (Criminal) 520, to
contend that non-preparation of Form No.29, by the Investigating Officer,
Crl. Appeal No.2083-SB of 2008 7
must prove fatal to the case of the prosecution. The perusal of Bhola
Singh’s case (supra), clearly goes to show, that the accused was
acquitted on a number of grounds; viz; he was not found in conscious
possession of the bags, containing poppy-husk; the seal had not been
given to the independent witness, but kept by the Investigating Officer;
no other evidence was produced, to show that the link evidence was
complete, and none tampered with the sample parcels, until the same
reached the office of the Chemical Examiner; and Form No.29, was not
filled up, at the spot. In the instant case, it has been held above, that
none-tampered with the sample parcels, until the same reached the office
of the Chemical Examiner. The accused was also found in conscious
possession of the bag, containing poppy-husk. Mere non-filling up of
Form No. 29, at the spot, under these circumstances, did not affect the
merits of the case. No help could be drawn, by the Counsel for the
appellant, from Bhola 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 handed over to Jhanda Singh, independent
witness, but to a subordinate police official. He further submitted that,
under these circumstances, the possibility of tampering with the sample
parcels, could not be ruled out. The submission of the Counsel for the
appellant, in this regard, does not appear to be correct. No doubt, the
seal, in this case, was given to a subordinate police official. It may be
stated here, that there was no requirement of law, to hand over the seal,
after use, to the independent witness. In Piara Singh Vs. The State of
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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. 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-entrustment of seal to Jhanda Singh, independent
witness, by the Investigating Officer, 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. It was next submitted, by the Counsel for the appellant, that
though Jhanda Singh, independent witness, was joined by the
Investigating Officer, yet he was not examined, by the prosecution,
without any rhyme or reason, as a result whereof, the case of the
prosecution became doubtful. No doubt, Jhanda Singh, independent
witness, was joined, at the time of search and seizure, by the Investigating
Officer, yet he was given up, as won over by the accused, vide statement
Crl. Appeal No.2083-SB of 2008 9
dated 10.10.2008, made by the Addl. Public Prosecutor for the State, on
the basis of Mark ‘A’, request of the Police. Since, he sided with the
accused, during the trial of the case, the Addl. Public Prosecutor for the
State, took a wise decision, to give him up, as won over, as he knew, that
if he (Jhanda Singh), was examined, the case of the prosecution, would be
damaged. The Public prosecutor for the State, is the master of the case.
It is for him to decide, as to whether, he wanted to examine a particular
witness, or not. However, he is required to exercise the discretion, in a
bona-fide manner. In the instant case, the discretion was exercised by the
Addl. Public Prosecutor for the State, in a bona-fide manner. There is
nothing, on the record, to reveal, that he exercised such a discretion, in an
arbitrary, and capricious manner. The other evidence, produced by the
prosecution, on scrutiny, has been found to be cogent, convincing,
reliable, and trustworthy. Under these circumstances, the mere fact that
Jhanda Singh, independent witness, was given up as won over, did not
affect the merits of the case. In Masalti Vs. State of Uttar Pradesh, AIR
1965 (S.C.) 202, a four Judge Bench of the Apex Court, 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
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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 (DB), it was held that where the independent witness, was
won over by the accused, and only the officials were examined, as
witnesses for the prosecution, who were considered to be not interested
persons, their evidence cannot be doubted, on the ground of their official
status. Similarly 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 it. It
was further held that civilized people, are generally insensitive, when a
crime is committed, even in their presence, and they withdraw from the
victim’s 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 said authorities,
is fully applicable to the facts of the present case. In this view of the
matter, the submission of the Counsel for the appellant, being without
merit, must fail, and the same stands rejected.
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, and are liable to be upheld.
Crl. Appeal No.2083-SB of 2008 11
17. For the reasons recorded, hereinbefore, the appeal is dismissed.
The judgment of conviction, and the order of sentence dated 22.10.2008,
are upheld. If the accused/appellant is on bail, his bail bonds, shall stand
cancelled. The Chief Judicial Magistrate, Bathinda, 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.
18. The District & Sessions Judge, Bathinda, shall ensure the
compliance of directions, referred to above, by the concerned Court, and
submission of report by it, within the time-frame.
19. The Registry shall keep track of the submission of compliance
reports, and put up the papers whether the reports are received or not,
within the time frame, immediately after the expiry thereof.
1.12.2008 (SHAM SUNDER) Vimal JUDGE