JUDGMENT
M.R. Verma, J.
1. This appeal is directed against the judgment dated 28-8-2000 passed by the learned Special Judge, Kullu, whereby the appellant-accused (hereafter referred to as ‘the accused’) has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter referred to as ‘the Act’) and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. l.00,000/- and in default of payment of fine to suffer further imprisonment for two years.
2. Case of the prosecution against the accused is that on 16-9-1999 at about 11 a.m. when a police party consisting of ASI Kamla (P.W. 13), LHC Narpat (P.W. 10) and lady Constable Pinki was checking vehicles outside Octroi Post Ramsheela, Kullu, car bearing No. UP-07-B-1722 driven by the accused came there from Manali side and was stopped by the police party. The accused, who was the sole occupant of the car, was asked to produce the documents of the car but failed to do so. On enquiries about his passport and name, he got perplexed whereby P.W. 13 got suspicious that the accused might be in possession of some contraband. She gave him oral as well as written notice Ext. P.W. 1 /A that she was confident that the accused was in possession of some contraband or drug and whether he agreed to give his personal search and search of the vehicle to her or to some Gazetted Officer or a Magistrate. The accused opted to give the search of his vehicle and his personal search to a Gazetted Officer. The accused was then brought by the police party in the said car to the compound of the office of Superintendent of Police, Kullu. P.W. 13 intimated Dy. S. P. Kishan Chand (P.W. 9) about her suspicion and the option of the accused. P.W. 9 then gave a notice Ex. P.W. 6/A to the accused in the presence of Dina Nath (P.W. 6), Mastan Singh (P.W. 7) and Mohan Lal as to whether he wanted to give his personal search and search of the vehicle in his presence or in the presence of a Magistrate. The accused agreed to give the search in the presence of P.W. 9 vide Ext. P.W. 6/A/1. Before conducting the search Photographer Subhash Chand (P.W. 8) was also summoned. Personal search of P.W. 9 was then conducted by the accused and that of P.W. 13 by lady Constable Fula Devi respectively vide Memos Exts. P.W. 6/C and P.W. 6/B. Personal search of the accused was also conducted vide Memo Ext. P.W. 6/J but nothing incriminating was found. The accused was then made to open the Dicky of the car. On opening of Dicky of the car by the accused smell of “Charas” was felt. The accused thereafter was asked to open the door panels and rear light covers of the car which he did with the help of a screw driver. On opening of the back light covers and the door panels, 42 “Charas” packets were found concealed in the back light cover cavity and door cavity. Words like RS, DL, DS, HS etc. were scribed on the “Charas” packets. The entire process of opening of the light covers and door panels leading to the recovery of packets of “Charas” was photographed by Subhash Chand (P.W. 8). The recovered “Charas” was weighed and was found 15 kgs. Four samples of 20 Grams each were separated from the recovered bulk. The samples and the bulk were thereafter separately sealed with Seal ‘H.’ Specimen impressions of seal (P-3) was separately taken and preserved and the seal after use was given to witness Mohan Lal. Memo Ext. P.W. 6/E was prepared regarding the search and seizure. The accused was thereafter arrested after informing him of the grounds of arrest vide Memo Ext. P.W. 6/F. His formal search after arrest was conducted vide Memo Ext. P.W. 6/D and the non-incriminating articles found in his possession were taken in possession. The car was also taken in possession by the police vide Memo Ext. P.W. 6/H. On the basis of Ruka Ext. P.W. 13/A sent to S.H.O., Kullu by P.W. 13 formal F.I.R. Ext. P.W. 13/B came into being at Police Station, Kullu. Out of four samples of the “Charas” taken at the time of the seizure of the .”Charas” two samples along with NCB Form were sent to H.P. C.T.L., Kandaghat for analysis. The Chemical Examiner vide his report Ext. P.W. 14/H opined that both the samples contained contents of “Charas.” On completion of investigation and being satisfied of the commission of an offence under Section 20 of the Act by the accused, the Officer-in-Charge, Police Station, Kullu accordingly submitted the charge-sheet and the accused was tried by the learned Special Judge, Kullu on a charge under Section 20 of the Act.
3. To prove the charge against the accused, prosecution examined as many as 14 witnesses.
4. The accused was examined under Section 313, Cr.P.C. wherein he denied the prosecution case as a whole and claimed that the case was false and he was innocent. The accused, however, did not lead any defence evidence.
5. On the basis of material on record, the learned Special Judge held the accused guilty of the commission of offence punishable under Section 20 of the Act and accordingly convicted and sentenced him as already sated hereinabove.
6. We have heard the learned counsel for the accused and the learned Assistant Advocate General for the respondent-State and have also gone through the records.
7. The learned counsel for the accused assailed the impugned judgment of conviction of the following grounds :-
i) that the provisions of Section 50 of the Act had not been complied with by the Investigating Agency in conducting the search;
ii) that provisions of Section 55 of the Act had not been complied with;
iii) that conscious possession of the accused over the “Charas” is not proved;
iv) that there is no link evidence to connect the case property with the samples which were got analysed; and
v) that incriminating evidence regarding safe custody of the case property and samples had not been put to the accused in his statement under Section 313, Cr.P.C.
GROUND No. 1 :
8. It was contended by the learned counsel for the accused that in conducting search by the police, the provisions of Section 50 of the Act had not been complied with, therefore, the conviction of the accused is bad in law and he is entitled to be acquitted. Referring to the statements of Dy. S. P. Kishan Chand (P.W. 9) and A.S.I. Kamla (P.W. 14), the learned counsel has pointed out that P.W. 9 did not ask the accused whether he wanted to be searched by a Gazetted Officer and P.W. 14 did not ask him whether he wanted to be searched in the presence of a Magistrate, therefore, the options were incomplete and the resultant search was, therefore, vitiated which further vitiates the conviction based on the result of such search. To substantiate his contention, the learned (counsel) cited various judgments. However, we need not refer to such authorities as it is well settled that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (Empowered Officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50 of the Act by intimating him about the existence of his right that, if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case the person to be searched so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, as the case may be, would prejudice the accused and render the recovery of illicit article suspect and vitiated the conviction and sentence of the accused. It is also well settled that a partial offer not in strict compliance with the provisions of Section 50 of the Act requiring the accused to be informed of the right to have search conducted before a Gazetted Officer or a Magistrate cannot be treated as compliance of the provisions of Section 50 of the Act and will have the same consequences as non-compliance of the provisions as a whole.
9. However, the question, which arises for determination on the facts and in the circumstances of the case, is whether provisions of Section 50 of the Act apply to the search of luggage/baggage of the accused and the vehicle in which he is travelling or only to his personal search as in this case the contraband was recovered on search of the vehicle in which the accused was travelling at the material time and not from his person. According to the learned counsel for the accused, once the Investigating Officer had undertaken to carry out the search of the accused and the vehicle in accordance with the provisions of Section 50 of the Act, those provisions ought to have been complied with as a whole and that the provisions are attracted even in the case of search of the vehicle. To substantiate his contention, the learned counsel has relied on Sukha Singh v. State of Haryana (1996) 3 Rec Cri R 821 (Punj & Har) and Gulzar Singh v. State of Haryana (1993) 2 Rec Cri R 354 (Punj & Har).
10. In Sukha Singh’s case (supra), on search of the gunny bags belonging to the accused poppy husk was recovered in the presence of a Gazetted Officer. However, it was found that while asking option of the accused, he was not made aware that apart from a Gazetted Officer, he could opt for search before a Magistrate. In view of this factual position, a learned single Judge of the Punjab and Haryana High Court held that the mandate of Section 50 of the Act could not be said to have been complied with and mere offer to opt search in the presence of a Gazetted Officer being partial and limited would vitiate the trial.
11. In Gulzar Singh’s case 1998 (2) Rec Cri R 554 (Punj & Har) (supra), the accused was apprehended while carrying a bundle on his shoulder. He was apprehended by the police and was asked whether he was interested to give search in the presence of a Magistrate or some Gazetted Officer of the Police Department. The accused opted for search in the presence of a Gazetted Police Officer and search of the bundle was, therefore, taken in the presence of a Dy. Superintendent of Police and 8 Kgs. of poppy husk was found in the bundle. A learned single Judge of the Punjab and Haryana High Court held that the provisions of Section 50 of the Act were not complied with as the option which had been given to the accused was partial in nature and thus valuable right of the accused was violated and the recovery and the trial stood vitiated.
12. With respect we regret our inability to agree with the conclusions arrived at in the aforesaid judgments by making the provisions of Section 50 applicable to the search of luggage/baggage, because in our considered View the provisions of Section 50 of the Act will apply only to the personal search of the accused and not to the search of his luggage/ baggage and the vehicle in which he was travelling.
13. In Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257 : 2000 Cri LJ 507, the Apex Court while dealing with the applicability of the provisions of Section 50 of the Act held as under (para 5) :
As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh (1999) 6 SCC 172 : 1999 Cri LJ 3672, this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when the person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh (1996) 1 SCC 288, wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in the presence of a Gazetted Officer or a Magistrate, now stands overruled by the decision in Baldev Singh’s case. If a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found from it, it cannot be said that it was found from his “person.” In this case heroin was found from a bag belonging to the appellant and not from his person and, therefore, it was not necessary to make an offer for search in the presence of a Gazetted officer or a Magistrate.
14. In Sarjudas v. State of Gujarat (1999) 8 SCC 508 : 2000 Cri LJ 509, a view similar to the view taken in the aforesaid case was taken by the Apex Court.
15. In Kanhaiya Lal v. State of M.P. (2000) 10 SCC 380 while dealing with the applicability of the provisions of Section 50 of the Hon’ble Supreme Court held as follows :-
The only point raised in this appeal is that the mandatory requirement of Section 50 of the Act was not complied with in this case and, therefore, the conviction of the appellant is illegal. In our opinion, there is no substance in this contention because 1 Kg of opium was not found from the person of the appellant but it was found from a bag which was being carried by the appellant. Therefore, this cannot be said to be a case where on search of the person of the accused, a narcotic drug or psychotropic drug was found. In our opinion, the Courts below have correctly held that the appellant is guilty of committing the said offence. The appeal is, therefore, dismissed.
16. In State of H.P. v. Edward Samual Chareton 2001 Cri LJ 1356 while dealing with the applicability of the provisions of Section 50, a Division Bench of this Court held as under (para 11):-
It is clear from the bare reading of the aforesaid provisions that these will apply only in a case of search of a “person” and not to the search of luggage of such person because luggage does not form part of a “person.” Thus, in this case wherein the luggage of the accused was the subject-matter of search, the provisions of Section 50 of the Act were not applicable, therefore, it was not legally required to make an offer to the accused for search in the presence of a Gazetted Officer or a Magistrate.
17. In Shesh Ram v. State of H.P. 2001 (1) SLJ 764, a Division Bench of this Court held that since the recovery of the contraband was effected from a haversack which the accused was carrying and not from the person of accused, therefore. Section 50 of the Act would not be attracted.
18. Similar view was taken by a Division Bench of this Court in case Ramesh Kumar v. State of Himachal Pradesh (2001) 3 Shim LC 389 : 2002 Cri LJ 1880.
19. In view of the above judgments, it is clear that provisions of Section 50 of the Act will apply only to the personal search of the accused and not to the search of his luggage/ baggage or the vehicle in which he is travelling.
20. In the case in hand, the “Charas” was recovered on search of a vehicle in which the accused was travelling at the relevant time, therefore, the provisions of Section 50 of the Act would not be attracted to such search. Therefore, the contention of the learned counsel that there had been non-compliance of the provisions of Section 50 of the Act and the seizure of the “Charas” and the consequential conviction is vitiated cannot be sustained.
GROUND No. 2 :
21. It was contended by the learned counsel for the accused that there had been non-compliance of the provisions of Section 55 of the Act inasmuch as the Investigating Officer did not produce the recovered bulk property and the samples before the S.H.O. for getting it resealed and keeping in safe custody, therefore, the conviction is vitiated as the provisions of Section 55 of the Act are mandatory. Elaborating his contention, the learned counsel had submitted that it is evident from the statement of Tejinder Verma (P.W. 13) that at the material time he was posted in Police Station, Kullu as an Investigating Officer and the case property of this case was produced before him by A.S.I. Kamla (P. W. 14) who has admitted that the challan in the case was prepared by S.H.O. Hukam Singh which means that the Officer-in-Charge of the Police Station was Hukam Singh. The case property was required to be produced before the Officer-in-Charge of the Police Station and as per the requirements of Section 55, the case property was required to be re-sealed and kept in safe custody by such Officer-in-Charge whereas in this case the case property was produced before an officer who was not the Officer-in-Charge of the Police Station and thus the provisions of Section 55 of the Act had not been complied with which vitiates the trial and the conviction of the accused.
22. To substantiate his contention, the learned counsel for the accused has relied on Mehandi Hassan v. State of Delhi (1997) 1 Rec Cri R332 (Delhi), Patrick Bruno Wafula v. Department of Customs (2001) 94 DLT 221; Wilson Dayal v. State of Delhi (1993) 3 Rec Cri R 54 : 1993 Cri LJ 118 (Delhi); Jadu Mani Sahu v. State (1997) 3 Crimes 486 (Orissa); Thandi Ram v. State of Haryana (1999) 5 JT (SC) 231 : 2000 Cri LJ 588; Kashmiri Lal v. State of Punjab (1996) 1 RCR 244 (Pun) & Har); Gurbax Singh v. State of Haryana (2001) 2 JT (SC) 330 : 2001 Cri LJ 1166 and Rita Karoline Kummel v. Customs (2001) 1 Rec Cri R 328 : 2000 Cri LJ 800 (Delhi).
23. It may be pointed out here that the provisions of Section 55 of the Act are meant to make the link evidence regarding proper preservation and safe custody of the case property complete and to rule out any possibility of tampering with the same. A perusal of the authorities cited by the learned counsel reveals that except in Wilson Dayal’s case 1993 Cri LJ 1188 (Delhi) (supra) none of these judgments lays down that compliance of the provisions of Section 55 of the Act is mandatory and non-compliance thereof is invariably fatal to the case of the prosecution. However, according to the learned counsel, the provisions of Section 55 are mandatory in view of the decisions in Gurbax Singh and Thandi Ram’s case 2000 Cri LJ 588 (SC).
24. In Gurbax Singh’s case 2001 Cri LJ 1166 (supra), the Hon’ble Supreme Court held as under (para 9) :-
9. The learned counsel for the appellant next contended that from the evidence it is apparent that the I.O. has not followed the procedure prescribed under Sections 52, 55 and 57 of the NDPS Act. May be that the I.O. had not knowledge about the operation of the N.D.P.S. Act on the date of the incident as he recorded the FIR under Sections 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the ‘muddamal’ article was handed over to the witness P.W. 1 and was kept with him for 10 days. He has also admitted that the ‘muddamal’ parcels were not sealed by the officer-in-charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure of his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be witness for search and seizure despite being not asked by the I.O. particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the panch witness that ‘muddamal’ seal used by the PSI was a wooden seal. As against this, it is the say of P.W. 2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk.
25. In Thandi Ram’s case (2000 Cri LJ 588) (supra), the Hon’ble Apex Court held as follows (para 1) :-
Before the High Court it was urged on behalf of the appellant that the provisions of Sections 50, 52, 55 and 57 of the Act had not been complied with. The High Court considered these provisions but was of the opinion that the concerned officer having accidently recovered the article in question of following Section 50 did not arise. So far as the non-compliance of the other provisions are concerned, the High Court was of the view that even though the provisions of Section 55 may be mandatory but no prejudice having been caused the conviction does not get vitiated. Learned counsel for the appellant contended that in view of the decision of this Court in the case of State of Punjab v. Balbir Singh AIR 1994 SC 1872 : 1994 Cri LJ 3702 as well as a Judge Bench decision in the case of Mohinder Kumar v. State, Panaji Goa AIR 1995 SC 1157 the conclusion of the High Court is not sustainable in law and the conviction of the appellant cannot be sustained. We find sufficient force in the aforesaid contention of the learned counsel for the appellant, in view of the pronouncement of this Court in the aforesaid cases and in view of the finding as recorded in the judgment of the High Court that provisions of Sections 55 and 57 have not been complied with the conviction is bad in law. The appellant has already undergone sentence for 9 years. We, accordingly, set aside the impugned judgment of the High Court and that of the learned Additional District and Sessions Judge, Hissar and acquit the appellant of the charges levelled against him.
A bare perusal of the above reveals that the provisions of Section 55 of the Act have not been held mandatory and non-compliance thereof ipso facto fatal to the case of the prosecution. In fact, the Hon’ble Supreme Court in both the cases held the conviction to be bad in law because of the accumulative effect of non-compliance of the provisions of Sections 55 and 57 of the Act. It cannot, however, be interpreted to mean that the provisions of Sections 55 and 57 of the Act have been held to be mandatory and non-compliance of either of them is invariably fatal to the case. Thus, the provisions of Section 55 of the Act cannot be said to be mandatory and its non-compliance fatal to the case of the prosecution on the basis of the aforesaid judgments.
26. In Wilson Dayal’s case (1993 Cri LJ 1188) (supra), a learned single Judge of Delhi High Court held as under (para 12) :
12. She further urged that there was non-compliance of the provisions of Section 55 which provides an officer-in-charge of a police station shall take charge and keep in safe custody all articles seized and under this Act. The officer-in-charge in this case is the SHO but from the testimony of SI K. C. Ahluwalia, the officer-in-charge i.e. SHO was not available, and, therefore, the IO deposited these sealed parcels with the Mohararr Malkhana without getting the seal of the SHO affixed on the sealed sample. Admittedly, in the present case on the sealed parcels there was only one seal and that was of SI K. C. Ahluwalia, the Investigating Officer. No seal of the police station was affixed which is what is the requirement of Section 55 of the Act. Therefore, Ms. Grover was justified in urging that in this case the Investigating Officer gave a complete go-bye to the mandatory provisions of the Act.
27. We respectfully regret our inability to agree with the view taken by the learned single Judge in the aforesaid judgment.
28. Section 55 of the Act reads as under:
55. Police to take charge of articles seized and delivered :
An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
29. On the bare reading of the above said provisions it is clear that these are enabling provisions and give an option to the officer making the seizure under the Act to deposit the recovered contraband etc. with the officer-in-charge of the police station. The section does not contain any mandate to the officer making the seizure to deposit the seized contraband etc. with the officer-in-charge though in the event of the officer seizing the articles producing the same before the officer-in-charge of the police station, it directs him to take charge of the articles so produced, affix his seal to such articles or to take samples thereof and seal them too. and put him in safe custody. Thus, the provisions are directory and not mandatory, intended to reinforce the link evidence regarding safe custody of the case property.
30. In Duni Chand v. State of H.P. (2001) 2 Shim LC 206 while dealing with the effect of non-compliance of the provisions of Section 55 of the Act, a Division Bench of this Court after considering various judgments of various High Courts, held as under :
17. The ratio of the law laid down in the above said judgment is that if it is assumed that the provisions of Section 55 of NDPS Act are directory in nature, this does not mean that those have not to be complied with. The only fact of such provisions would be that the prosecution has to explain that those were not complied with. If explanation for non-compliance is satisfactory, it has to be seen whether any prejudice has been caused to the accused or not. In the present case as stated above, the prosecution has rendered explanation that the officer-in-charge of the police station was out of station at the time when the seized articles were brought by P. W. 7 to police station, Kihar and handed over to P.W. 4. P.W. 4 has categorically deposed that all the parcels remained intact during the period they remained in his custody. P.W. 3 stated that P.W. 4 handed over the sealed parcel duly sealed with seal bearing impression ‘K’ along with parcel seals to him for taking them to CTL Kandaghat on 28-11-1999. He took the same sealed parcels to Kandaghat and deposited them in Kandaghat on 29-11-1999. He categorically stated that the parcels remained intact during the period they remained in his custody. In the teeth of the satisfactory explanation rendered by the prosecution, We are of the view that non-compliance of Section 55 is a mere irregularity and failure to comply with will not vitiate the entire prosecution case which is otherwise proved against the accused.
31. In Raj Kumar v. State of H.P. (2001) 1 Shim LC 150, a Division Bench of this Court took similar view and held as under :
31. In State of H.P. v. Sudarshan Kumar 1989 Cri LJ 1412 (Him Pra) (supra) it has been .held that the provisions contained in Section 55 of the Act are directory and mere non-compliance thereof would not vitiate trial. The defence is required to show that failure of justice has resulted due to such non-compliance.
32. Section 55 of the Act is only an enabling provision authorising and requiring an officer-in-charge of a police station, within whose local limits seizure is made, to keeping safe custody the articles if and when delivered. Providing of separated seal on the article recovered and sample by the in-charge of police station, as required under this section, is only a step provided by the statute against tampering so that quality of substance recovered till it is analysed by the Chemical Examiner, remains the same.
32. In so far the other case law relied upon by the learned counsel for the accused to support his contention is concerned, the crux thereof is that in the given circumstances of a case non compliance of Section 55 of the Act may lead to the conclusion that possibility of the case property having been tampered with cannot be ruled out and as a result of prejudice thus caused to the accused, the conviction of the accused cannot be sustained. There cannot be any dispute with this proposition and once the non-compliance of the provisions of Section 55 of the Act is coupled with such circumstance which may raise doubts about the safe custody of the case property, the benefit of doubt is bound to be given to the accused. It follows that the provisions of Section 55 of the Act are not mandatory and non-compliance thereof ipso facto is not fatal to the case of the prosecution but such non-compliance has to be kept in view while appreciating the link evidence led by the prosecution to prove that the ease properly and samples had not been tampered with.
33. Even otherwise this is not a case of non-compliance of provisions of Section 55 of the Act. There is no dispute that S.I. Tejinder Verma (P.W. 13) at the material time was posted as Investigating Officer in Police Station, Kullu. P.W. 14 A.S.I. Kamla has stated that after completion of the investigation by her the accused and case property were taken by her to Police Station where the case property was entrusted by her to S.I. Tejinder Verma, S.H.O., Police Station, Kullu. Thus, she has referred to P.W. 13 as the Station House Officer i.e. Officer-in-Charge of the Police Station. It is a matter of common knowledge that a Police Station never remains without an Officer-in-Charge. When the Officer-in-Charge is temporarily absent from the Police Station the officer next in rank is deemed to be the Officer-in Charge of the Police Station and discharges the duties of the Officer-in Charge. It has nowhere been suggested to P.W. 14 ASI Kamla that when she produced the case properly to S.I. Tejinder Verma. he was not discharging the duties and functions of the Officer -in-Charge of the Police Station. S.I. Tejinder Verma (P.W. 13) has stated that A.S.I. Kamla produced vehicle UP-07-B-1722 along with accused and one sealed parcel and 4 sealed sample packets which he resealed with seal impression ‘D’ and handed over the case property to Moharar Head Constable. It has not been suggested even to P.W. 13 that at the material time he was not discharging the duties of Officer-in-Charge of the Police Station and, therefore, was not competent to receive and reseal the case property and to hand over it to MHC of the Police Station for safe custody.
34. In view of the above discussion, we are of the considered view that this is not a case of non-compliance of provisions of Section 55 of the Act so as to cause dent in the prosecution case.
GROUND No. 3 :
35. It was contended by the learned counsel for the accused that in view of the material on the record it is not established that the “Charas” was recovered from the conscious possession of the accused. Elaborating the contention, the learned counsel has urged that all the independent witnesses examined by the prosecution to support its case that the accused was in possession of the recovered “Charas” have turned hostile and did not support the prosecution case. The police officials, who have been examined as witnesses, are interested in the success of the case and their statements are contradictory of each other and in view of such contradictions even it is not established as to from which vehicle” the police recovered the “Charas.” It was further contended that the Investigating Agency had not cared even to find out as to who was the owner of the vehicle seized by the police who might have kept the “Charas” in the cavities of the door and back lights of the Car. It was also contended that this may be the only unique case wherein all the independent witnesses examined by the prosecution have turned hostile and have not supported the prosecution version. In these circumstances, according to the learned counsel for the accused, the conscious possession of the accused over the recovered “Charas” is not proved and he could not have been convicted and deserved to be acquitted.
36. In support of his contention that unless it is proved that the accused was in conscious possession of the recovered contraband he could not be convicted, the learned counsel has cited a few judgments. Such judgments need not be referred to here for the reasons that it is well settled that unless the prosecution proves beyond reasonable doubt that the accused was in conscious possession of the recovered contraband he cannot be convicted for possession of such contraband.
37. We are, however, unable to agree with the contention of the learned counsel that since all independent witnesses examined in the case by the prosecution have turned hostile and have not supported the prosecution case and no reliance can be placed on the contradictory statements of the police officials examined as witnesses, therefore, accused could not have been convicted. It is well settled that if the statements of the witnesses who have supported the prosecution case are reliable, trustworthy and inspire confidence, accused can be convicted on the basis of such statements. Even testimony of the hostile witness cannot be ignored as a whole simply because he has turned hostile His evidence to the extent it supports prosecution case and is corroborated by other evidence can be relied upon. Similarly, there is no rule of law that testimony of official witnesses should not be given any credence. It is also well settled that confidence inspiring evidence cannot be rejected on the grounds of minor contradictions arising out of individual perception and conception.
38. In Koli Lakhmanbhai Chanabhai v. State of Gujarat AIR 2000 SC 210 : 2000 Cri LJ 408, the Hon’ble Apex Court held as under :
5. From the aforesaid evidence on record, in our view, it cannot be said that the High Court erred in relying upon some portion of the evidence of P.W. 7 who was cross-examined by the prosecution. It is settled law that evidence of hostile witness also can be relied .upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.
39. In State of Kerala v. M.M. Mathew AIR 1978 SC 1571 : 1978 Cri LJ 1690, the Hon’ble Supreme Court while dealing with the value of the evidence of official witness held as under :
It is true that Courts of law have to judge the evidence before them by applying the well recognised test of basic human probabilities and that some of the observations made by the Sessions Judge especially one to the effect that ‘the evidence of officers constituting the inspecting party is highly interested because they want that the accused are convicted’ cannot be accepted as it runs counter to the well recognised principle that prime facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case.
40. In Amarjit Singh v. State of Orissa (1997) 1 Cri LJ 1988, it was held as follows (para 6) :
Nothing has been brought out from the witnesses to show that they are in any way inimical towards the appellants. Therefore, only because of the fact that other independent witnesses have not supported the prosecution case, the evidence of the official witnesses including P.W. 3 who can be treated as an independent witness cannot be discarded. There is no reason to suspect the evidence adduced by an official witness only because of the fact that he is an officer of the department. His evidence can very well be accepted to maintain a conviction, if the same is otherwise found reliable.
41. It is in view of the above position in law that the contention raised by the learned counsel for the accused require to be examined.
42. ASI Kamla (P.W. 14), who is the Investigating Officer of the case, has stated that while, along with a few other police officials, including LHC Narpat Ram (P.W. 10), she was checking vehicles at Ramsheela, Car bearing No. UP-07-B-1722 being driven by the accused came there. It was stopped and the accused was called upon to show the documents of the vehicle which he could not produce. He could not produce even his passport and got perplexed. She has further stated that she got suspicious, showed her intention to search the accused and the vehicle, gave option to the accused who opted to be searched in the presence of a Gazetted Officer. Therefore, the police party took the accused in the same vehicle to S.P. Office, Kullu where Dy. S. P. Kishan Chand (P.W. 9) was informed by her about her suspicion and option of the accused. It is further in her statement that after calling for Subhash Chand, photographer (P.W. 8), Dina Nath (P.W. 6) Mastan Singh (P.W. 7) and Mohan Lal P.W. 9 gave offer to the accused who agreed for his search in the presence of P.W. 9; She gave her search to a lady Constable and P.W. 9 gave his search to the accused. Thereafter personal search of the accused was taken vide Memo Ext. P.W. 6/B but nothing incriminating was found. She has further stated that thereafter the accused was asked to open the Dicky of the Car and on opening of such Dicky some smell was observed which led the police to ask the accused to open door panels and rear light covers of the Car which the accused did with screw driver. On opening of the door panels and the back light covers of the Car 42 polythene packets containing “Charas.” were recovered. Letters like RS, DL, DS. HS etc. were scribed on the packets so recovered. She has further stated that when the process of search and recovery was in progress P.W.8 had been taking photographs from different angles. The recovered “Charas” was weighed and was found to be 13 kgs. It has been suggested to her in her cross-examination that the accused was not driving the vehicle on the relevant day nor the vehicle was stopped at Ramsheela and no “Charas” was recovered from the accused. She has denied these suggestions.
43. P.W. 10 LHC Narpat Ram is one of the police officials who were accompanying P.W. 14 and remained with her during the relevant period. He has fully corroborated the version of P.W. 14. There is no suggestion in his cross-examination that he was -not accompanying P.W. 14 during the relevant time. It has been suggested to him that neither the vehicle nor the accused was brought to the S.P. Office nor the vehicle was searched and the vehicle in question was not of the accused and he was not driving it. The witness has denied all these suggestions.
44. Dy. S. P. Kishan Chand (P.W. 9) has also fully corroborated the statement of P.W. 14 regarding bringing of the accused and the vehicle to the office of S.P. Kullu, his giving of the option to the accused regarding search, his giving personal search to the accused, search of P.W. 14 by Fula Devi and then the personal search of the accused wherein nothing incriminating was found and the search of the vehicle and the recovery of the “Charas” in the presence of the witnesses. In his cross-examination, it has been suggested to him that the Car was not of the accused and he did not come in that Car and that no “Charas” was recovered in the presence of the witnesses nor search proceedings were conducted in their presence and that search was not conducted in his presence. He has also denied all these suggestions. The only contradiction which has been pointed out in his statement is that he has given the number of the vehicle as UP-07-B-1727 whereas the vehicle which was searched was numbered UP-07-B-1722…. This contradiction, however, is insignificant for the reason that his statement, in which he gave the number of the Car as aforesaid, was re-corded on 8-8-2000 i.e. after more than 10 months of the search. It is not possible to remember the numbers for such a long period. Otherwise as per the option given by him to the accused for search vide Memo Ext. P.W. 6/A the number of vehicle proposed to be searched has been given as UP-07-B 1722. Thus, the lapse Is entirely attributable to loss of memory and does not affect the prosecution version.
45. In view of the statements, hereinabove referred, it is evident that all these official witnesses have fully supported the prosecution version. There is nothing on record to show that they had any bias or prejudice against the accused to falsely implicate him in the commission of the offence. It may also be pointed out that police would not arrange 13 kgs. of “Charas” simply to implicate an innocent person in the commission of an offence for which very severe punishment has been provided for. Thus, the statements of the aforesaid witnesses are natural, reliable and confidence inspiring and cannot be ignored simply on the ground that these witnesses are police officials connected with the search and recovery of “Charas” and thus ‘ interested in the success of the prosecution case.
46. Jai Singh (P.W. 1) and Ishwar Singh (P.W. 2), in whose presence the said vehicle driven by the accused, was stopped by the police at Ramsheela and the option was given to the accused by P.W. 14 for search whereon the accused opted to be searched by a Gazetted Officer have turned hostile and have not supported the prosecution version in their examination-in-chief. However, their turning hostile does not mean that prosecution version must be disbelieved. P.W. 1 Jai Singh in his cross-examination by the Public Prosecutor has admitted that he and Ishwar Singh had signed the option Memo Ext. P.W. 1/A given by P.W. 14 to the accused. He admits that whatever had been done in their presence and reduced in writing that was signed by him and Ishwar Singh and that he signed the Memo as the proceedings were conducted in his presence. He has admitted that the vehicle stopped at the barrier by the police was driven by a foreigner but he could not say whether it was driven by the accused because he could not recollect the face of the person who was driving the vehicle. It is further admitted by him that the number of the vehicle which was intercepted by the police was mentioned in the Memo Ext. P.W. 1/A and that the incident is of 16-9-1999. He further admits that the ASI along with other officials and the accused came towards Court side in the van which was intercepted. Above all he admits that the accused was brought by the police as he had told that he wanted to give his search before a Gazetted Officer. Though in the cross-examination for the accused, he has stated that Memo Ext. P.W. 1 /A was signed by him on the second day of the incident but on Court question he has clearly and unambiguously admitted that he appended his signatures along With date 16-9-1999 when he signed the Memo Ext. P.W. 1 /A. Thus he has virtually admitted the entire prosecution version about what had happened at Ramsheela where the vehicle driven by the accused was stopped and thus corroborates the version of the aforesaid official witnesses on material particulars.
47. Ishwar Singh (P.W. 2) in his cross-examination by the Public Prosecutor has admitted the laying of the “Naka” by the police and stopping of one vehicle at the barrier. He could not state whether the vehicle so stopped was driven by the accused because he had forgotten the face of the person who was driving the same. He has admitted signing of Memo Ext. P.W. 1 /A when it was signed by Jai Singh (P.W. 1). Though he claim’s that his signatures were forcibly obtained by the police but there is no suggestion to P.W. 14 or P.W. 1 in this regard nor there is anything on the record which may lend credibility to his statement about the alleged forcible taking of his signatures on Ext. P.W. 1/A. It is further evident from his cross-examination that he has not denied the existence of the facts put to him but had pleaded ignorance thereof. Evidently this witness who is contradicted on material particular even by P.W. 1 has not stated the truth.
48. To prove the search and seizure of the “Charas” the prosecution apart from the aforesaid police officials examined Dina Nath (P.W. 6), Mastan Singh (P.W. 7) and Subhash Chand (P.W. 8). These three witnesses also did not support the prosecution case and were declared hostile, and cross-examined by the Public Prosecutor. P.W. 6 in his cross-examination for the State has admitted his signatures on Ext. P.W. 6/A. Ext. P.W. 6/B. Ext. P.W. 6/C, P.W. 6/E. P.W. 6/G, P.W. 6/H and Ext. P.W. 6/J. According to the prosecution version, as unfolded by the police witnesses, all these documents were prepared at the time of the process of search of the accused and the vehicle and recovery and seizure of the “Charas” outside the S.P. Office, Kullu. He claims that all these documents were signed by him on the asking of the police. Be it stated that he is Member of Municipal Committee, Kullu and thus not an illiterate, rustic and innocent person who would go on signing papers on the mere asking of the police. To the same effect is the statement of P.W. 7 who has also admitted signing of all the aforesaid documents and has claimed to have signed the papers merely on the asking of the police. Though P.W. 6 has stated that when he was summoned to the spot no other witness was present there but according to P.W. 7 when he had reached the S.P. Office P.W. 6 came there. He has reaffirmed this statement and is true in view of the photograph Mark ‘Y’ (Ext. P10) wherein both these witnesses have identified themselves amongst others. Thus, their presence on the spot at the same time is fully established in view of the said photograph and statement of P.W. 8 Subhash Chand. It has been suggested to both of them that they had been bribed by the accused, therefore, they are making false statement. The suggestion, however, had been denied by both of them. One thing is clear that these two witnesses have not made true statements because of the contradictions pointed out in their statements and also in view of the statement of Subhash Chand (P.W. 8).
49. According to the prosecution, PW-8 photographed the entire process of search and seizure in the case. He was also declared hostile and was cross-examined by the Public Prosecutor. In the cross-examination he has admitted that on being called to S.P. Office, Kullu when he reached there a foreigner was there but PW-1 and PW-2 came later on. Vehicle of the foreigner was parked there. Dina Nath (PW-6), Mastan Singh (PW-7) and Mohan Lal came within 10-15 minutes after his arrival at the S. P. Office. He has further admitted that the vehicle of the accused was searched in his presence and when the accused was removing the back lights etc. he clicked photograph Ext. P. 5. After removal of screws, packets were recovered which were photographed by him and the photograph thereof is Ext. P-6. After recovery of the packets from the door panels he took photograph Ext. P-7 and about opening of the back light he took photograph Ext. P-8 and after opening of the door panel the packets were visible in the panel of the door, photograph whereof is Ext. P-9. He has further admitted that the recovered thing in packets from door panels and back lights of the vehicle were weighed and found 13 Kgs. He has further admitted that during the entire proceedings Dina Nath (PW-6), Mastan Singh (PW-7) and Mohan Lal remained present. He has stated that photograph Ext. P-10 was taken by him after recovery when the recovered packets were displayed in front of everybody including S.P., DSP, accused and the witnesses. He has also admitted that four samples were separated and sealed in four small boxes. He admits signing of Memo Ext. PW-6/E. He has affirmed that in the entire proceedings Dina Nath (PW-6), Mastan Singh (PW-7) and Mohan Lal were present and thereafter all of them left the place. Though in the cross-examination for the accused he stated that the photographs were taken at the Police Station whereas in his cross-examination by the Public Prosecutor he has stated that photographs were taken outside the office of S.P. To clarify the confusion he was questioned by the trial Court and in reply he stated that photographs were taken by him outside the S.P. Office and his statement that they were taken in Police Station is incorrect. It is, thus, evident from the statement of this witness that he not only supports the provisions version regarding search and seizure of the “Charas” from the concerned vehicle but when his statement is read with the photographs taken by him it also proves beyond any reasonable doubt that PW-6 Dina Nath and PW-7 Mastan Singh have made false statement for the reasons best known to them. There is no reason to disbelieve those parts of the statements of PW-8 which supports the prosecution version because those parts of the statement find corroboration from other material on record like production of the recovered “Charas” exhibited photographs and the statements of the official witnesses which we have already held as reliable and confidence inspiring.
50. The defence of the accused, as emerges from the suggestions put to the prosecution witnesses in their cross-examination and from a perusal of his statement under Section 313, Cr.P.C. appears that he has nothing to do with vehicle No. UP-07-B-1722. This version apparently is believed by the evidence as already discussed hereinabove. It is nowhere the case of the accused that he was picked up by the police from a place other than from inside the vehicle. It is also not the case of the accused that after stopping the vehicle at Ramsheela till it was brought to the place outside the Office of S.P. where it was searched he was not with the vehicle for any duration during which the contraband could be planted in the vehicle. If he was not taken by the police party from Ramsheela to the place outside the Office of S.P. along with the vehicle then from where he landed there is not explained which only the accused could explain. The false defence that the accused was not the driver-occupant of the vehicle is an additional circumstance against the accused. It is thus fully and firmly established that the accused was the sole occupant-driver of the vehicle from which the “Charas” was recovered. One of the contradictions in the statements of the witnesses which were pointed out by the learned counsel for the accused and on which great emphasis was laid is about the number of vehicle which had been given as UP-07-B-1727 by PW-9 instead of UP-07-B-1722. We have already considered this contradiction in the earlier part of this judgment and held that it is insignificant having no adverse impact on the case of the prosecution. The other contradiction as pointed out is that PW-14 has referred to the vehicle in question as ‘Car’, PW-13 has referred to it as Vehicle’, PW-10 has referred to it as ‘car’, PW-9 has referred to it as Vehicle’, PW-8 has referred to if as ‘Jeep’, PW-1 has referred to it as ‘Maruti van’ and PW-2 has referred to it as ‘white vehicle’. Referring to the Car as a vehicle cannot be said to be a contradiction. PW-8 though has referred to the vehicle as a ‘Jeep’ but at the same time has referred to it in his statement as a vehicle and also as a ‘car’. Evidently referring to the vehicle by the witnesses as vehicle, van, car or jeep is a result of perception and conception. This contradiction, in our view, is insignificant and incapable of belying the prosecution version. The other contradictions were pointed out in the statements of the police officials on one hand and the hostile witnesses on the other and such contradictions are bound to occur when the witnesses other than the police officials had been declared hostile and such contradictions cannot be said to be fatal to the case of the prosecution.
51. The above discussion leads us to the conclusion that on the basis of the evidence, as discussed hereinabove, it is established that the accused was in conscious possession of the recovered “Charas” and the contention of the learned counsel to the contrary, therefore, cannot be upheld.
GROUND No. 4 :
52. It was contended by the learned counsel for the accused that the link evidence regarding safe custody of the case properly is not established in this case. While pressing this ground, the emphasis of the learned counsel to support his contention was mainly on the ground of non-compliance of Section 55 of the Act which we have already dealt with heretofore. To substantiate this ground, the learned counsel had further urged the following submissions :-
(i) that there is difference of weight in the samples as per version of the prosecution and the report of the Public Analyst Ext. PW-14/H;
(ii) that the seals used for sealing and re-sealing of the case property had not been produced, and
(iii) the case property, as shown in the photograph Ext. P-10 is in exposed position lying before so many persons and that from it the only permissible conclusion is that the case property and the samples had been tampered with.
53. According to PW-9, PW-10 and PW-14 four samples of 20 grams each were separated from the bulk case property. According to the report Ext. PW- 14/H, two samples sent to the Chemical Examiner weighed 28.2890 grams and 23.8898 grams. Thus, apparently there is difference in the weight of the samples. However, in our view, in the facts and circumstances of the case, this difference does not benefit the accused in any manner.
54. PW-14 has stated that after recovery of the “Charas” four samples each of 20 grams were separated and the bulk case property and the samples were sealed with seal ‘H’ and the seal after use and taking sample thereof Ext. P-3 was handed over to Mohan Lal (who was one of the search witnesses but was not produced). She has further stated that she produced the case property and samples thereof to S.I. Tejinder Verma, (PW-13) S.H.O., Police Station, Kullu who re-sealed the same with his own seal. No suggestion has been given to PW-14 that the case property and samples were not sealed by her and were not handed over to PW-13 and were not sealed by him. It is also not suggested that she did not take the sample of the seal Ext. P-3.
55. PW-13 has stated that PW-14 produced, amongst others, one sealed parcel and four sealed sample parcels before him When he re-sealed the parcels except P-2 and four sample parcels with seal impression ‘D’ and handed over the case property to the MHC. This witness has also not been cross-examined on this aspect of the case and no suggestion has been put to him that the bulk case property and the samples were not produced before him or ,were not re-sealed by him with seal impression ‘D’.
56. Lal Singh (PW-11) has stated that in September, 1999 he was posted as Additional M.H.C. Police Station, Kullu. On 16-9-1999 Tejinder Verma (PW-13) “entrusted with him in the “Malkhana” one sealed packet containing 12 Kgs. 920 grams of “Charas” and also four sealed parcels bearing seal impression “D” along with triplicate NCB form”. He has further stated that the case property was kept in the “Malkhana” and he handed over two sealed sample packets to Constable Sant Ram (PW-5) on 18-9-1999 for taking the same to CTL Kandaghat vide RC No. 262/99. He has further stated that the case property remained safe, intact and untampered with while in his custody. There is no contrary suggestion in his cross-examination.
57. Sant Ram (PW-5) has stated that on 18-9-1999 MHC Lal Singh (PW-11) .handed over two sealed parcels to him with relevant papers which he took to CTL Kandaghat vide RC No. 262/99 and that the parcels remained intact so long those remained in his possession. No contrary suggestion has been put to this witness also in his cross-examination.
58. In the first part of Ext. PW- 14/H, the weight of the samples has been mentioned as 20 grams each and these are stated to be bearing seal impression ‘H’ and re-sealed with seal impression ‘D’. Seal impressions were also sent therewith. As per the certificate appended thereto by the Chemical Examiner two samples of “Charas” were received in. H.P-CTL Kandaghat through Sant Ram by hand and their seals were found intact and unbroken. It has further been certified that the seals on the samples tallied with the specimen impressions of seals went separately. However, in this report weight of one of the samples is mentioned as 28.2890 grams and of the other as 23.8898 grams. Thus, apparently there is difference regarding weight of the samples as in the version of the aforesaid witnesses and as mentioned in the report Ext. PW. 14/H.
59. In Duni Chand v. State of Himachal Pradesh (2001) 2 Shim LC 206, while dealing with the difference in the quantity of sample, a Division Bench of this Court held as under :
19. The prosecution has proved that 25 grams of sample was sent to Laboratory for test with seal ‘K’ all the seal was found intact by Chemical Examiner. The apprehension of the accused that the sample was tampered with by the police when it was deposited in the Malkhana or thereafter when it reached the Laboratory, appears to be unfounded and untenable. Nothing was suggested by the accused to P.Ws. 3, 4 and 7 in their cross-examination that the seal packets were tampered with either before they were deposited in the Police Malkhana or after they were taken to Laboratory for analysis. The evidence coming on record establishes beyond reasonable doubt that the seal packets contained the samples bearing seal ‘K’ were not tampered with from the time the same were seized and sealed till they reached the Chemical Examiner. The deficiency in the weight of the sample article for use in the Laboratory cannot be held to be prejudicial to the accused in any manner. Therefore, these contentions being unfounded deserve to be rejected.
60. In Cr. Appeal No. 100 of 2000 titled Manjit Singh v. State of H.P. decided on 10-1-2001, a Division Bench of this Court relying on Pon Adithan v. Dy. Director, Narcotics Control Bureau, Madras (1999) 6 SCC 1 : 1999 Cri LJ 3663 held as follows :
Be it stated that the variation in the weight of sample in the aforesaid case was to the extent of 38% whereas the variations in this case are of 20% lesser weight in case of one sample and 5.6% more weight in another sample. These variations in weight of the “Charas” are inconsequential.
61. In view of the above position in law and the fact that there is unchallenged and reliable testimony of the concerned witnesses that the case property and samples remained untampered with and intact at various stages till their analysis by the Chemical Examiner, as already discussed, the variations in the weight of the samples are inconsequential.
62. It is a fact that the seals used for sealing and re-sealing the bulk case propentry and the samples have not been produced at the trial. In Manjit Singh’s case (2001 (2) Cri LJ (CCR) 74) (supra) while dealing with the effect of non-production of the seal, this Court held as under :
In the absence of any mandatory provision in the law/Rules of procedure relating to sealing of the case property, that the seal used in sealing the case property must be produced at the trial, it cannot be said that failure to produce such seal at the trial will be fatal to the case of the prosecution. It will depend on the facts and circumstances of each case whether by non-production of the seal at the trial any doubt is raised about the safe custody of the case property or not.
63. In view of the above position in law and the conclusion we have already arrived at hereinabove that there is unchallenged and trustworthy evidence that the case property was not tampered with at any stage, the non-production of the seals used for sealing and re-sealing of the bulk case property of the samples is also of no help to the accused.
64. A bare look on the photograph Ext. P-10 reveals the packets of the case property lying on the table and so many persons are standing behind the table and one sitting in front of the table. This photograph was taken by PW-8, who has stated that it was taken by him after recovery when the recovered material was displayed in front of everybody including S.P., Dy. S. P., accused and the witnesses. A display of the case property undoubtedly is undesirable and deprecable because it is not a step in aid to prove the case against the accused but prima facie a publicity stunt. However, it cannot be treated as fatal to the prosecution case because the acts and omissions which do not go to the root of the case will have no impact on the merits of the case. There is no suggestion whatsoever either to the photographer or other material witnesses shown in the photograph (some of whom have turned hostile) that there had been tampering of the case property at the time of taking of photograph Ext. P-10 after the case property was recovered. Thus, the accused cannot take advantage of this act of show off by the police.
65. In view of the above discussion, the contention of the learned counsel that the prosecution case must fail for want of link evidence is also not sustainable.
GROUND No. 5 :
66. It was contended by the learned counsel for the accused that the accused has not been questioned in his statement Under Section 313, Cr.P.C. about the alleged safe custody of the case property when it remained in possession of different officials resulting in prejudice to him, therefore, whatever link evidence has been led by the prosecution to prove the safe custody of the case property and the samples thereof cannot be used against the accused and as a consequence the prosecution case must fail.
67. Section 313 of the Code of Criminal Procedure provides for the examination by the Court of the accused. The section embodies the principle involved in the maxim audi alteram partem i.e. no one should be condemned unheard. Thus, the object of the section is to enable the accused to explain the circumstances appearing against him in the evidence led by the prosecution. In view of the object of the Section it is necessary to question the accused regarding all incriminating evidence brought on record. Failure to do so will deprive the accused of explaining his stand and thus cause prejudice to him and vitiate the conviction based on such evidence which the accused has no opportunity to explain.
68. In Jai Dev v. State of Punjab AIR 1965 SC 612 : 1963 (1) Cri LJ 495, while dealing with the scope of Section 342 of the Code of Criminal Procedure, 1898 which corresponds to the provisions of Section 313 of the Code of Criminal Procedure, 1973, the Hon’ble Supreme Court held as under :
(21) In support of his contention that the failure to put the relevant point against the appellant Hari Singh would affect the final conclusion of the High Court, Mr. Anthony has relied on a decision of this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 : 1953 Cri LJ 1933. In that case, this Court has no doubt referred to the facts that it was important to put to the accused each material fact which is intended to be used against, him and to afford him a chance of explaining it if he can. But these observations must be read in the light of the other conclusions reached by this, Court is that case. It would, we think, be incorrect to suggest that these observations are intended to lay down a general and inexorable rule that wherever it is found that one of the points used against the accused person has not been put to him, either the trial is vitiated or his conviction is rendered bad. The examination of the accused person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under Section 342. the Court must take care to put all relevant circumstances appearing in the evidence against him. In exercising its powers under Section 342, the Court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for, by adopting such a course, the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the Court should put to the accused person detailed questions which may amount to his cross-examination. The ultimate test in determining whether or not accused has been fairly examined Under Section 342 would be to enquire whether having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which accused person should be examined under Section 342. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to cross-examination of the accused person. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material.
69. In Bakhshish Singh Dhaliwal v. State of Punjab AIR 1967 SC 752 : 1967 Cri LJ 656, while dealing with the same subject, the Hon’ble Apex Court held as follows :-
(33) It was also submitted that these Wai-Diaries were not put to the accused when he was examined under Section 342 of the Code of Criminal Procedure and consequently, their use to the prejudice of the appellant to record findings against him was not justified. This submission is clearly based on a misapprehension of the scope of Section 342. Cr.P.C. Under that provision, questions are put to an accused to enable him to explain any circumstances appearing in the evidence against him, and for that purpose, the accused is also to be questioned generally on the case, after witnesses for the prosecution have been examined and before he is called on for his defence. These War Diaries were not circumstances appearing in evidence against the appellant. They were, in fact, evidence of circumstances which were -put to the accused when he was examined under Section 342, Cr.P.C. It was not at all necessary that each separate piece of evidence in support of a circumstances should be put to the accused and he should be questioned in respect of it under that section; and consequently, the High Court committed no irregularity at all in treating these War Diaries as part of the evidence against the appellant.
70. In view of the above settled position in law what is necessary is that the accused must be questioned so as to enable him to explain the circumstances appearing in the evidence against him but each separate piece of evidence need not be put to him. In the case in hand, it is evident from the perusal of the statement of the accused under Section 313, Cr.P.C. that he has been questioned in the manner so as to enable him to offer his explanation to the incriminating evidence brought on record against him. It has been put to him in question No. 10 that the recovered “Charas” and the sample, after recovery, were sealed with seal ‘H’ and taken in possession vide Memo Ext. PW-6/A. It has further been put to him vide question No. 14 that specimen of seal ‘H’ used for sealing the bulk case property and the samples at the time of recovery and which seal was handed over to Mohan Lal is Ext. P3 and the case property was re-sealed on production before the S.H.O. with seal ‘D’. It has also been put to him vide question No. . 17 that the sample was sent to the Chemical Examiner CTL Kandaghat vide RC Ext. PW. 11/A (which mentions that each of the samples so sent is sealed with nine impressions of seal ‘D’ and is accompanied by the sample of the seals) and that the report of the Chemical Examiner is Ext. PW-14/H (which mentions that the seals of the samples were intact and tallied with the sample seals).
71. It may also be pointed out that the first question put to the accused is whether he had heard and understood the prosecution evidence recorded in his presence. The accused answers it in the affirmative. Then vide question No. 21 he was called upon to state if he had anything to say in order to explain the incriminating circumstances appearing against him in the prosecution evidence and the accused had replied that he is innocent and the case is false. Thus, all the material evidence about the custody and transit of the case property was put to the accused in his statement and he had the opportunity to explain his stand and explain the circumstances appearing against him in the evidence. It was not necessary to put to him each and every piece of evidence brought on record to prove the circumstances. Thus, the accused has been properly examined and there is no question of any prejudice having been caused to him as was contended by the learned counsel.
72. In view of the reliable, cogent and confidence inspiring evidence of the official witnesses and other corroborating evidence, as already discussed, the accused has rightly been convicted and sentenced. Therefore, there is no merit and substance in this appeal arid the impugned conviction and sentence does not call for any interference by this Court.
73. As a result, this appeal is dismissed.