High Court Punjab-Haryana High Court

Inderjeet vs State Of Haryana on 20 November, 2008

Punjab-Haryana High Court
Inderjeet vs State Of Haryana on 20 November, 2008
Crl.A.No.863-DB of 2003                                        -1-


        IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH.


                            Crl.A.No.863-DB of 2003

                            Date of Decision: November 20, 2008


Inderjeet                                             .......Appellant.

                   Versus

State of Haryana                                      .......Respondent



CORAM:- HON'BLE MR.JUSTICE K. S. GAREWAL
        HON'BLE MR.JUSTICE JITENDRA CHAUHAN



Present:     Mr.Gorakh Nath, Advocate
             for the appellant.

             Mr.SS Randhawa, Additional Advocate General, Haryana.

                        ---


JITENDRA CHAUHAN, J.

1. The present appeal is directed against judgment and order

dated 13.9.2003 passed by the Additional Sessions Judge, Fatehabad

whereby the accused-appellant has been convicted for the offence

punishable under Section 18(b) of the Narcotic Drugs & Psychotropic

Substances Act, 1985 (hereinafter referred to as “the Act”) and sentenced

thereunder to undergo rigorous imprisonment for a period of twelve years

and to pay a fine of Rs.1 lac and in default of payment of fine further

rigorous imprisonment for two years.

2. Accused-appellant was apprehended on the basis of suspicion

when the police was patrolling in the area of village Thirvi on 24.9.2001.
Crl.A.No.863-DB of 2003 -2-

The accused was carrying a plastic drum. A written notice was served upon

the accused to the effect that drum carried by him was suspected to be

containing some narcotic substance. An offer was made to the accused to

get the search conducted either by a Gazetted Officer or a Magistrate who

could be summoned on the spot. Accused Inderjeet expressed his desire to

be searched before a Gazetted Officer.

3. A wireless message was sent to the DSP Headquarters,

Fatehabad. DSP Shri Ashok Kumar reached the spot along with his staff.

Opium, weighing 20 kgs., was recovered from the drum being carried by

the accused. Two samples of 50 grams each were taken out from the

recovered substance and kept in small plastic containers. The samples and

the remainder narcotic substance were sealed with the seal of ‘KS’ and taken

into possession vide recovery memo. The samples were sent to Forensic

Science Laboratory for chemical examination. One Mohinder Singh was

joined as an independent witness.

4. Accordingly, a ruqa was sent by SI Kanwar Singh, SHO, at

8.40 P.M. to the Police Station Sadar, Tohana, for registration of an FIR.

The FIR was registered under Section 18 of the Act by ASI Jai Narain.

Special report was sent to the Illaqa Magistrate.

5. The accused was charge-sheeted on 2.5.2000 by the learned

Additional Sessions Judge, Fatehabad for the offence punishable under

Section 18 of the Act.

6. To establish its case, the prosecution examined as many as

seven witnesses. However, the material witnesses are PW4 ASI Jai Narain

who recorded the FIR; PW5 DSP Ashok Sheoran, in whose supervision the

search was carried out and the narcotic substance was recovered from the
Crl.A.No.863-DB of 2003 -3-

accused-appellant and PW6-SI Kanwar Singh, who apprehended the

accused and investigated the case.

7. After the conclusion of prosecution evidence, the statement of

the accused was recorded under Section 313 of the Code of Criminal

Procedure without oath. In answer to question No.12, the accused-appellant

pleaded innocence and stated that a false case had been registered against

him and nothing was recovered from his possession.

8. On behalf of the appellant, it was argued that Mohinder Singh,

the only witness from the public, in whose presence the search was

conducted and the contraband recovered, was given up by the prosecution.

The witness ought to have been examined and if necessary, cross-examined

by the prosecution and the non-examination of the said witness was fatal to

the case of prosecution.

9. It was further submitted that the investigation of the present

case was confined to the Police Department. The Investigating Officer

ought to have joined a Gazetted Officer of the Department other than the

Police Department. The appellant was totally illiterate and no notice under

Section 50 of the Act was read over and explained to him nor the alleged

reply of the accused was read over and explained to him. Thus, a great

prejudice was caused to the appellant. The learned counsel further stated

that there was a delay of nine days in sending the samples to the laboratory.

The recovery was effected on 24.9.2001 and the samples were sent to the

Forensic Science Laboratory on 3.10.2001. No explanation has been

recorded as to why the samples were not dispatched immediately on

24.9.2001 itself. In this manner, there was no compliance of provisions of

Section 50 of the Act.

Crl.A.No.863-DB of 2003 -4-

10. On the other hand, learned State counsel has argued that the

provisions of Section 50 of the Act were complied with. An effort was

made to join an independent witness, who was, subsequently, given up by

the prosecution on account of his being won over by the accused-appellant.

11. As there is an absolute consistency in the testimony of PW4,

PW5 and PW6, the same cannot be disbelieved only on account of the fact

that they happened to be the official witnesses. The evidence led by the

prosecution was a quality evidence. There was no motive or enmity

attributed to the police officials for false implication of the accused.

12. There was complete compliance of the procedure at the time of

search and seizure of the accused. The search and seizure was completed

under the supervision of the DSP who is a Gazetted Officer of the State.

Though there was a delay of nine days in sending the samples to the

laboratory, but as per FSL report, Exhibit P14, the seals of the samples at

the time of handing over to the laboratory were intact and the substance of

the sample was found to be of opium.

13. There is complete corroboration in the versions of PW4 ASI

Jai Narain, who recorded the FIR, PW5 DSP Ashok Sheoran, under whose

supervision the process of search and seizure was completed and PW6-SI

Kanwar Singh fully corroborated the circumstances, the delay in sending

samples, if any, assumes no significance.

14. PW6 SI Kanwar Singh stated that he served notice, Exhibit

P10, under Section 50 of the Act to the appellant; prepared the report under

Section 57 of the Act on the same day and sent the same to DSP Ashok

Kumar at the spot itself and the cane containing opium was recovered from

the possession of the accused.

Crl.A.No.863-DB of 2003 -5-

15. We have heard the learned counsel for the parties and perused

the records.

16. Admittedly, the quantity of the contraband is heavy. There is

no allegation of malafide by the appellant. An independent witness was

joined by the police during search and seizure. However, he had to be given

up as he was won over by the appellant. It is a case of chance recovery.

The appellant had given option for being searched by the Gazetted Officer.

The search was carried out under the supervision of the Gazetted Officer of

the State. There is a consistency in the statements of PW4, PW5 and PW6

that DSP reached on the spot at about 7.15/7.20 P.M. The FIR was

promptly registered. The irregularity that the samples were not immediately

sent to the Forensic Science Laboratory is also not fatal in view of FSL

report, Exhibit P14, wherein it has been specifically recorded that the

samples were received intact and the contents of the samples were found to

be of opium.

17. What is clinching in the present case was that the opium

recovered from the possession of the accused was produced in the Court

and was exhibited as Exhibit P9. The quantity being very heavy and there

being no allegation of malafide by the appellant, the plea of false plantation

of recovery stands ruled out.

18. The Hon’ble Supreme Court in Hardip Singh Vs. State of

Punjab, 2008(4) RCR (Criminal) 97 dealing with the delay of sending the

samples to chemical analysis observed as under:

“So far as the question of delay in sending the samples of

opium to be Forensic Science Laboratory (FSL) is concerned,

the same in our opinion has no consequence for the fact that the
Crl.A.No.863-DB of 2003 -6-

recovery of the said sample from the possession of the

appellant stands proved and established by cogent and reliable

evidence led in the trial. PW5 has categorically stated and

asserted about the recovery of opium from the possession of the

appellant, which fact is also corroborated by a higher officer,

namely, SS Mann, DSP who was also examined at length

during the trial. The said recovery was effected in the presence

of the said SS Mann, DSP, as senior police officer, who also

put his seal on the said parcels of opium. The then Station

House Officer, Inspector Baldev Singh, who was examined as

PW1, was posted at Police Station Ajnala on the date of

occurrence. He received the said samples of opium along with

case material, being produced before him by PW5. It has come

on evidence that Inspector Baldev Singh kept the entire case

property with him till it was deposited kin the office of the

Chemical Examiner, Amritsar on 30.9.1997 through ASI

Surinder Singh (PW3). It has also come on evidence that till

the date the parcels of sample were received by the Chemical

Examiner, the seal put on the said parcels of sample were

received by the Chemical Examiner, the seal put on the said

parcels were intact. That itself proves and establishes that there

was no tampering with the aforesaid seal in the sample at any

stage and the sample received by the analyst for chemical

examination contained the same opium which was recovered

from the possession of the appellant. In that view of the

matter, delay of about 40 days in sending the samples did not
Crl.A.No.863-DB of 2003 -7-

and could not have caused any prejudice to the appellant. The

aforesaid contention, therefore, also stands rejected.”

19. In view of the above, the present appeal is hereby dismissed

and order of conviction and sentence, dated 13.9.2003, passed by the

learned trial Court is upheld.

( JITENDRA CHAUHAN )
JUDGE

( K .S. GAREWAL )
JUDGE
November 20, 2008
SRM

Note: Whether to be referred to reporter ? Yes/No