Crl. Appeal No. 974-SB of 1997
1
IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 974-SB of 1997
Date of decision. 23.07.2008
Ramzan Mohd. Son of Ibrahim son of Phazaldin age 30
years, gujjar, r/o village Takhar Khurd, P.S. Malerkotla.
....... Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Vipin Ghai, Senior Advocate with
Mr. Deepak Garg, 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 26.11.1997,
rendered by the Court of Additional Sessions Judge, Sangrur,
vide which it convicted the accused (now appellant), for the
offence, punishable under Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to be
as the ‘Act’ only) and sentenced him to undergo RI for a period
of 10 years and to pay a fine of Rs. 1 lac, in default of payment
of fine to undergo further rigorous imprisonment, for a period
of one year, for having been found in possession of 15 bags,
each containing 30 Kgs poppy husk, without any permit or
licence.
Crl. Appeal No. 974-SB of 1997
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2. The facts, in brief, are that on 25.03.1991 SI
Pargat Singh, accompanied by ASI Baldev Singh and some
other police officials, was holding a picket at T point Sherwani
Kot, where at about 1.30 AM ( at night ) Jasbir Singh Sandhu,
S.P. (Operation) along with 4/5 gunmen also came and joined
the police party. At about 2.15 AM, truck bearing No. PUG
-4366 came, which was signalled to stop. It did not stop.
Thereafter 2/3 shots were fired to stop the truck. Thereafter,
the truck stopped. Accused Ramzan Mohd. was driving the
truck. He was not having the documents of the truck. He was
apprehended. Search of the truck was conducted. 15 bags,
each containing 30 Kgs of poppy husk, were recovered from
the truck. A sample of 250 grams of poppy husk, was taken
out, from each of the bags. Thereafter, the contents of the
samples were put into small cloth packets, and the remaining
poppy husk was kept in the same bags. The bags, and the
samples, were converted into parcels, duly sealed, and taken
into possession, along with the truck, vide a separate recovery
memo. The ruqa was sent to the Police Station, on the basis
whereof the FIR was recorded. The site plan was prepared.
The accused was arrested. The statements of the witnesses were
recorded. After the completion of investigation, the accused
was challaned.
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3. On his appearance, in the Court, the accused
was supplied the copies of documents, relied upon by the
prosecution. Charge under Section 15 of the Act, was framed
against the accused, to which he pleaded not guilty and
claimed judicial trial.
4. The prosecution, in support of its case,
examined Malkiat Singh,Constable, (PW-1), Baldev Singh,
ASI, (PW-2), Pargat Singh, Inspector, (PW-3), Des Raj, Sub
Inspector, (PW-4), and Prit Pal Singh, MHC, (PW-5).
Thereafter, the Addl. P.P for the State, closed the prosecution
evidence.
5. The statement of the accused, under
Section 313 of the Code of Criminal Procedure, was recorded.
He was put all the incriminating circumstances, appearing
against him, in the prosecution evidence. He pleaded false
implication. He, however, stated that he was arrested from
his house, in the presence of Ranjhakhan Panch of village
Takhar Khurd, and nothing was recovered from him. It was
further stated by him, that Pargat Singh, Inspector, compelled
him, to provide a truck to him, which belonged to his father.
He further stated that Pargat Singh, Inspector wanted to use
the truck for illegal purposes. On account of this reason, there
was an altercation, between him, and Pargat Singh, Inspector.
It was further stated by him, that due to that grudge, he
Crl. Appeal No. 974-SB of 1997
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( Pargat Singh, Inspector ) falsely implicated him in the
present case.
5-A In his defence, the accused examined Ranzha,
DW1. Thereafter, the defence evidence was closed.
6. After hearing the Additional Public
Prosecutor for the State, the Counsel for the accused, and, on
going through the evidence, on record, the trial Court,
convicted and sentenced the 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 the accused-appellant.
8. I have heard the 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, vehemently, contended that no independent witness
was joined by the Investigating Officer, at the time of alleged
search and seizure. He further submitted that non-joining of
an independent witness, by the Investigating Officer, at the
time of alleged recovery, creates a doubt in the prosecution
story. The submission of the Counsel for the appellant, in this
regard, does not appear to be correct. The recovery, in this
case, was effected from the truck, which was being driven by
the accused, at the dead of night. Under these circumstances,
it was not at all possible, to join any independent witness, at
Crl. Appeal No. 974-SB of 1997
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that odd hour, at the time of search and seizure. There is
nothing, on record, that any independent witness was
available at the time of search and seizure. It was under these
circumstances, that no independent witness could be joined.
The mere fact that no independent witness, could be joined,
due to the aforesaid reasons, did not mean that the evidence of
the prosecution witnesses, became, in any way, doubtful. The
evidence of the official witnesses, cannot be disbelieved and
distrusted, merely on account of their official status. In the
face of the evidence of the official witnesses only, the Court
is required to be put, on guard, to scrutinize the same,
carefully and cautiously. After careful and cautious scrutiny,
if the Court comes to the conclusion, that the same does not
suffer from inherent infirmities, the same can be believed.
The evidence of the prosecution witnesses, has been
scrutinized carefully. Nothing came to the force, during the
course of their cross-examination, which may go to discredit
the same. They stood the test of touch-stone of all
probabilities, during the course of their cross-examination. In
Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it
was held that, it is now well-settled that the evidence of
search or seizure, made by the police will not become vitiated,
solely for the reason that the same was not supported by an
independent witness. In State of NCT of Delhi Vs. Sunil
(2000)I S.C.C. 748, it was held as under:-
Crl. Appeal No. 974-SB of 1997
6“It is an archaic notion that actions of the Police officer,
should be approached with initial distrust. It is time now to
start placing at least initial trust on the actions and the
documents made by the Police. At any rate, the Court cannot
start with the presumption that the police records are
untrustworthy. As a proposition of law, the presumption
should be the other way round. The official acts of the Police
have been regularly performed is a wise principle of
presumption and recognized even by the Legislature.”
10. 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 the prosecution. It was
further held, in the said authority, that the civilized people, are
generally insensitive, when a crime is committed, even in
their presence, and they withdraw from the victims’ 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 aforesaid authorities, is fully applicable to the facts of
the present case. In these circumstances, merely on account
of non-joining of an independent witness, when the evidence
of the prosecution witnesses, has been held to be cogent,
convincing, creditworthy, and reliable, and there was no
Crl. Appeal No. 974-SB of 1997
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reason, on their part to falsely implicate the accused, no
doubt, is cast on the prosecution story. 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 though the alleged recovery was effected in
this case on 26.03.1991, yet the samples were sent to the
office of the Chemical Examiner on 01.04.1991 i.e. after the
delay of five days. He further submitted that there was no
explanation, with regard to delay in sending the samples to
the office of the Chemical Examiner. He further submitted
that, under these circumstances, the possibility of tampering
with the samples, until the same reached the office of the
Chemical Examiner, could not be ruled out, especially when
the seals after use, remained with the police officials. It is, no
doubt, true that there is no explanation, with regard to the
delay. However, mere delay, in itself, is not sufficient to
come to the conclusion, that the sample parcels were tampered
with, until the same reached the office of the Chemical
Examiner. Other evidence, produced by the prosecution, has
been held to be cogent, convincing, reliable and trustworthy.
From the other evidence, it was proved that none tampered
with the samples until the same reached the office of the
Chemical Examiner. Even, there is report of the Chemical
Examiner Ex.PH, which clearly proves that the seals on the
Crl. Appeal No. 974-SB of 1997
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exhibits were intact on arrival till the time of their analysis
and agreed with the specimen impression of the seals. The
report Ex.PH of the Chemical Examiner is per-se admissible,
in toto, under Section 293 of the Code of criminal Procedure.
There is no challenge to the report of the Chemical Examiner,
in this case. In State of Orissa Vs. Kanduri Sahoo 2004(1)
RCR (Criminal) 196 (S.C.), it was held that mere delay in
sending the samples to the Laboratory, is not fatal, where
there is evidence that the seized articles remained in safe
custody. Since, it was proved that none tampered with the
samples, until the same were received in the office of the
Chemical Examiner, the submission of the Counsel for the
appellant, merely based on conjectures, does not hold good.
The principle of law, laid down, in the aforesaid authority, is
fully applicable to the facts of the instant case. Since it was
proved that none tampered with the samples, until the same
reached the office of the Chemical Examiner, the submission
of the Counsel for the appellant, in this regard, being without
merit, must fail, and the same stands rejected.
12. It was next submitted by the Counsel for the
appellant, that when the case property was produced, in the
Court, the seals on some of the bags, were found broken. He
further submitted that some bags were in torn condition. He
further submitted that under these circumstances, it could not
be said that the case property produced in the Court, at the
Crl. Appeal No. 974-SB of 1997
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time of evidence of the prosecution witnesses, was the same,
as was allegedly recovered from the accused-appellant. He
further submitted that, under these circumstances, it could be
said that no recovery, whatsoever, was effected from the
accused, but he was falsely implicated in the instant case.
The bags containing poppy husk Ex.P2 to Ex.P16 were
produced at the time of evidence of Inspector Pargat Singh
( PW3 ) on 21.04.1993, when his examination-in-chief was
recorded. His cross-examination was conducted on
11.09.1996, when again the case property was produced.
Some of the bags were found torn and the seals on some of
the bags were found broken. It may be stated here, that the
recovery, in this case was effected on 26.03.1991, whereas,
the case property was in the first instance, produced in the
Court at the time of the evidence of Pargat Singh, ( PW3 )
after more than two years and for the second time, during the
course of cross examination, after more than five years. The
case property remained lying in the malkhana, where the case
properties of other cases, were also lying. On account of
shortage of spaces, in the malkhanas, the case properties of
the cases, cannot be stacked properly. If, on account of
irresponsible handling, lapse of sufficient time, between the
date of recovery, and production of the case property, in the
Court, and during the course of transit, seals on some of the
bags stood broken and some of the bags containing poppy
Crl. Appeal No. 974-SB of 1997
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husk underwent the process of decay that did not mean that
the case property, produced in the Court, did not stand
connected with the case. Pargat Singh, Inspector ( PW3 ) in
clear-cut terms, stated that the bags, containing poppy husk,
produced, in the Court, were the same, as were recovered
from the truck, being driven by the accused. The only
obligation, upon the prosecution is to produce the case
property in the Court and get it identified, from the
prosecution witnesses, so as to connect the same with the
case. In the instant case, the prosecution produced the
witnesses, who identified the case property, as the same, as
was recovered from the accused. Under these circumstances,
the case property produced in the Court, stood duly connected
with the 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.
13. It was next submitted by the Counsel for the
appellant, that according to the prosecution story, Jasbir
Singh Sandhu, SP ( Operation ) along with 4/5 gunmen came
to the spot, and he also joined the police party. He further
submitted that no document bears the signatures of Jasbir
Singh Sandhu. He further submitted that, Jasbir Singh
Sandhu, referred to above, was not examined by the
prosecution. He further submitted that under these
circumstances, it could be said that Jasbir Singh Sandhu, SP,
Crl. Appeal No. 974-SB of 1997
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neither joined the police party nor was present at the time of
the alleged search and seizure and, as such, the case of the
prosecution became doubtful. It is, no doubt, true that none of
the documents bears the signatures of Jasbir Singh Sandhu.
He was also not examined, by the prosecution The mere fact
that none of the documents was signed by Jasbir Singh
Sandhu, in itself, did not go to prove that the case of the
prosecution was doubtful. It is for the Public Prosecutor for
the State, to decide, as to how many witnesses, he wanted to
examine, to prove his case. Since the Additional Public
Prosecutor for the State, thought that it was not necessary to
examine Jasbir Singh Sandhu, SP, as the other evidence,
produced by the prosecution, was sufficient to unfold the
prosecution story, it could not be said that he exercised the
discretion vested in him arbitrarily or capriciously. The other
evidence, produced by the prosecution, being sufficient to
prove the case, non-examination of Jasbir Singh Sandhu, did
not at all cause any dent, in the prosecution case. In this view
of the matter, the submission of the Counsel for the appellant,
in this regard, being without merit, must fail, and the same
stands rejected.
14. No doubt, Ranza, who was Panch of Gram
Panchayat, Takhar Khurd, at the relevant time, was examined
as DW1, by the accused-appellant. He deposed that the police
was asking the accused to provide the truck of his father , but
Crl. Appeal No. 974-SB of 1997
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he refused to do so, as a result whereof, an altercation took
place. He further submitted that, on account of this reason, the
accused was falsely implicated. If the accused had been taken
away by the police, and falsely implicated in the instant case,
then Ranzha, DW1, could not be expected to sit silent. In
those circumstances, he was required to send an application to
the Higher Officers, regarding the false implication of the
accused. He could also get the resolution passed, in the
panchayat, that the accused was taken by the police, in his
presence, and no recovery of contraband was effected from
him, but he was falsely implicated. However, he did not do so.
The recovery was effected in the year 1991, whereas, this
witness appeared in the Court on 26.11.1997. He slept over
the matter, for more than six and a half years, and, ultimately,
came to the Court, to depose that the accused was falsely
implicated, in the instant case. Mere silence, on his part, for
such a long time, in itself, was sufficient to disbelieve his
statement. The trial Court, was right, in disbelieving his
statement. This Court after re-appraisal of the evidence of the
witnesses, also comes to the same conclusion. In this view of
the matter, the submission of the Counsel for the appellant, in
this regard, being without merit, must fail, and the same
stands rejected.
15. No other point, was urged, by the Counsel
for the parties.
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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. The same
are liable to be upheld.
17. For the reasons recorded,
hereinbefore, the appeal is dismissed. The judgment
of conviction and the order of sentence, dated
26.11.1997, are upheld. If the appellant is on bail, his
bail bonds shall stand cancelled. The Chief Judicial
Magistrate, shall take necessary steps, in accordance
with the provisions of law, to comply with the
judgment, within two months, from the date of receipt
of a certified copy of the judgment, keeping in view
the applicability of the provisions of Section 428 of
the Code of Criminal Procedure.
18. No specific order was passed by the trial
Court, regarding the confiscation or otherwise of the
truck. The truck, in question, as per the appellant,
belongs to his father. The trial Court is directed to
initiate proceedings, regarding confiscation and
Crl. Appeal No. 974-SB of 1997
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submit the compliance report within a period of three
months from the date of receipt of a certified copy of
the judgment.
(SHAM SUNDER)
JUDGE
July 23, 2008
dinesh