Criminal Appeal No.1560-SB of 2004 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.1560-SB of 2004 (O&M)
Date of Decision:09.09.2009
Sanjay Kumar @ Sanju
.....Appellant
Vs.
The State of Haryana
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Atul Lakhanpal, Senior Advocate with
Mr. R.S. Chahal, Advocate for the appellant.
Mr. Tarunveer Vashist, Additional Advocate
General, Haryana.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment dated 16.7.2004/
order of sentence dated 17.7.2004 passed by the Court of learned Additional
Sessions Judge, Fatehabad whereby he convicted and sentenced the accused
Sanjay Kumar alias Sanju to undergo rigorous imprisonment for a period of
ten years and to pay a fine of Rs.1 lac under Section 18 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for brevity, `the Act’) and in
default of payment of fine, to further undergo rigorous imprisonment for
one year.
The facts in brief are that on 22.2.2002 Jagdish Kumar SI
happened to be present at Ratia Octroi Post, Fatehabad being on patrol duty.
In the meanwhile, the accused was spotted approaching from the side of
Balmiki Chowk, Fatehabad with a plastic bag slinging from his shoulder.
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On catching sight of the police party, he turned back and started walking
briskly. On suspicion, he was intercepted and served with a notice under
Section 50 of the Act. He offered to have a search in the presence of a
Gazetted Officer or a Magistrate. Jiwan Singh Naib Tehsildar was called at
the spot. On search of the plastic bag, 10 kg. opium yielded. The usual
formalities were observed. The accused was put under arrest. After
completion of investigation, the charge-sheet was laid in the Court for trial
of the accused.
The accused was charged under Section 18 of the Act to which
he did not plead guilty and claimed trial. To bring home guilt against the
accused, the prosecution examined PW1 HC Om Parkash, PW2 HC Bhaga
Ram, PW3 MHC Jagdish Chanhder , PW4 Balwan Singh, PW5 Inspector
Surat Singh SHO, PW6 C. Dilbag Singh, PW7 S.I. Jagdish Kumar, PW8
Jiwan Singh, Naib Tehsildar, PW9 S.I. Khayali Ram and closed its
evidence. When examined under Section 313 of Cr.P.C, the accused denied
all the incriminating circumstances appearing in the prosecution evidence
against him and pleaded innocence as well as false implication. He has put
forth that “On 22.2.02, two other persons namely Om Parkash son of Kesra
Ram and Bhagwan Dass son of Inder Singh, residents of Dhanger were
detained in the police station and then I.O. told them that if you have
arranged a person in place of you, then you will be released. I was declared
Proclaimed Offender in a case. I was arrested/ detained and at the instance
of abovesaid persons, a false case was registered against me. An application
was made by my wife Monika to DIG, Hisar. On that application, no action
was taken by the officers.”
In his defence, he examined his wife Monika DW1, Constable
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Puran Chand DW2, HC Om Parkash DW3 and closed his evidence.
After hearing the learned Public Prosecutor for the State, the
learned defence counsel and examining the evidence on record, the learned
trial Court convicted and sentenced the accused as noticed at the outset.
Feeling aggrieved with his conviction/ sentence, he has preferred this
appeal.
I have heard the learned counsel for the parties, besides
perusing the record with due care and circumspection.
Mr. Atul Lakhanpal, Senior Advocate strenuously urged that
the appellant had opted to have the search of his bag in the presence of a
Gazetted Officer or a Magistrate, whereas the Investigator had joined Naib
Tehsildar Jiwan Singh PW8 who is neither a Gazetted Officer nor a
Magistrate. Thus, palpably the search was not taken in the presence of a
Gazetted Officer or a Magistrate. Sequelly, the whole trial stands vitiated
because of non-observance of the mandatory provisions of Section 50 ibid.
To buttress this stance, he has sought to place abundant reliance upon the
observations rendered in Dalbir Singh v. The State of Punjab, 2008(3)
Recent Criminal Reports (Criminal) 581.
The learned State Counsel has controverted this submission by
urging that the recovery being from a bag, the provisions of Section 50 were
not to be adhered to. This contention merits acceptance. As would be
apparent from Ex.P9, the notice purportedly served under Section 50 ibid
upon the appellant, the appellant was offered to have search of his bag in
the presence of a Gazetted Officer or a Magistrate. In re: Kalema Tumba
v. State of Maharashtra, 1999(4) Recent Criminal Reports (Criminal)
575 (Supreme Court) 2 kgs of heroin was recovered from the bag of the
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accused and not from his person. It was ruled by the Apex Court that “If a
person is carrying a bag or some other article with him and narcotic drug or
the psychotropic substance is found from it, it cannot be said that it was
found from his `person’. The heroin was found from a bag belonging to the
appellant and not from his person and, therefore, it was not necessary for
making an offer for search in the presence of a Gazetted Officer or a
Magistrate.” Further in re: Megh Singh v. State of Punjab, 2004(1) Apex
Criminal 482 (S.C.), it has been held that “a bare reading of Section 50
shows that it only applies in case of personal search of a person. It does not
extend to search of a vehicle or container or a bag or premises.” On
viewing the matter in hand, in the light of rule laid down by the Supreme
Court in these authorities, it stands crystalised that the provisions of Section
50 ibid were not attracted to the instant case. It is worth mentioning here
that by and large, the naib-tehsildars are vested with the powers of
Executive Magistrate. To crown it all, the appellant was not offered to have
his personal search before a Gazetted Officer or a Magistrate. He was asked
to have the search of his bag before such officers. So, by no stretch of
imagination, the provisions of this Section were required to be observed.
On behalf of the appellant, it has been further agitated at the bar
that no independent and disinterested public witness was joined in the
police party to witness the alleged search and seizure of the contraband
despite the fact that the appellant has allegedly been apprehended at about
6:00 P.M., on Octroi Post, where there could be no dearth as to the
availability of independent witnesses. Thus, it would not be free from risk
to maintain conviction of the appellant. I am unable to persuade myself to
agree with this submission. In re: Appabhai and another v. State of
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Gujarat, 1988 (Supplementary) Supreme Court Cases 241, it has been
held as under:-
“Merely because of the failure on the part of the prosecution to
produce any independent witness to the incident that occurred
at a public place like a bus stand, where there must have been
several of such witnesses, the prosecution case cannot be
thrown out or doubted. Generally people are insensitive when
a crime is committed even in their presence. The court instead
of doubting the prosecution case for want of independent
witness must consider the broad spectrum of the prosecution
version and then search for the nugget of truth with due regard
to probability, if any, suggested by the accused.”
Further in re: State of Punjab v. Balbir Singh, 1994(1)
Recent Criminal Reports 736, it has been ruled by the Hon’ble Supreme
Court that “there is no bar in recording the conviction by relying upon the
statements of police officers.” It has been observed in paragraph No.8 of
the judgment that “It is well settled that the testimony of a witness is not to
be doubted or discarded merely on the ground that he happens to be an
official, but as a rule of caution and depending upon the circumstances of
the case, the courts look for independent corroboration. This again depends
on question whether the official has deliberately failed to comply with these
provisions or failure was due to lack of time and opportunity to associate
some independent witnesses with the search and strictly comply with these
provisions.”
Adverting to the present one, Jagdish Kumar SI PW7
Investigator has testified that “I tried to join independent witnesses, but
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nobody was prepared.” It clearly indicates that efforts to join such
witnesses were made, but none was willing to join in the investigation. In
re: Appabhai and another’s case (supra), it has been observed in candid
terms that merely because of the failure on the part of the prosecution to
produce an independent witness to the incident that occurred at a public
place like a bus stand where there must have been several of such witnesses,
the prosecution cannot be thrown out or doubted. In the instant case, PW8
Jiwan Singh Naib Tehsildar has been joined. By no process of reasoning, he
would have been interested in the success of the case by siding with the
Investigating Officer. A meticulous perusal of his statement would reveal
that he could not be shattered or shaken in any manner and stood like a
rock. If this huge recovery would have not been effected within his view,
he would have not come forward to depose against the appellant. The
common place experience lends credence to the fact that now-a-days, the
public men are too apathetic to offer themselves to join in the investigation
of even heinous offences much less the recovery cases. It lurks in their
mind that if they come forward to join investigation they will have to waste
their time by coming to the Courts to give evidence besides earning wrath of
the accused. In re: Roop Singh v. State of Punjab, 1996(1) Recent
Criminal Reports 146, a Division Bench of this Court has held as under:-
“A Panch witness may turn hostile and not support the case of
the prosecution or may be hesitant in appearing in the Court
and depose against an accused for various reasons from fear to
bribe. He is an average and ordinary human being and quite
exposed and vulnerable to the human feelings of yielding,
brow-beating, threats, inducements, etc. To figure as a Panch-
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witness at the stage of police investigation, is one thing, and
thereafter to give evidence before the Court is entirely a
different thing. In fact, a Panch witness generally think twice
before entering into a witness-box and if at all he enters the
same, one would not be surprised if he does not support the
prosecution because of variety of the reasons mentioned above.
Therefore, the fact that the prosecution has given up the
independent public person Nirbhai Singh having been won over
by the accused persons, is fully justified in the present day
situation prevailing in the Society and no adverse inference
against the prosecution can be drawn in this case.”
In view of the above discussion, this contention being
untenable is overruled.
The next argument having been raised on behalf of the
appellant is that Om Parkash HC PW1 was allegedly on leave on 22.2.2002,
i.e., the date of alleged recovery. The learned trial Court has noticed the
fact that Sub Inspector Balwan Singh PW4 has admitted that he had
recorded the statement of MHC Om Parkash under Section 161 of Cr.P.C
and that he had added some lines at the bottom of his statement. If this is
the state of affairs, then how the reliance could be placed upon the
testimony of the official witnesses examined by the prosecution. The
affidavits of Om Parkash HC PW1, Jagdish Chander PW3 and of Dilbag
Singh Constable were defective as the same have not been verified
according to law and that being so, these are required to be excluded from
consideration. Once this is done, there is dent in the prosecution case. SI
Jagdish Kumar PW7 has admitted that he remained with the SHO of Police
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Station City Fatehabad till 9:20 P.M. From the defence evidence, it stood
however proved that there is entry in the roznamcha showing his presence in
CIA Staff Fatehabad at 9:20 P.M. on the same day. There is nothing on the
record to show that the sample seal was prepared at the spot. Thus, it is
unknown as to how the sample seal had been sent to the laboratory. All
this goes to show that the entire case has been fabricated in the police
station.
I have well considered these submissions. The thrust of this
argument is that the link evidence is incomplete in this case. This
contention indeed runs counter to the documentary evidence on record. It is
in the evidence of Jiwan Singh Naib Tehsildar PW8 that “SI Jagdish Kumar
handed over his seal to HC Khayali Ram after obtaining sample seal and I
kept my seal with myself after obtaining sample seal.” This evidence leaves
no scope for doubt that the case property including sample parcels were also
sealed with seal JS belonging to this witness. Besides this, the sample seal
was also prepared. This witness had retained his own seal with himself. So,
the possibility of tampering with the contents of sample parcel stands ruled
out, when the matter is viewed in the background of the Forensic Science
Laboratory’s report Ex.P17 which says that the seals were intact and tallied
with the specimen seal as per forwarding authority letter. Inspector Surat
Singh PW5 who was posted as SHO Police Station City Fatehabad on
22.2.2002 has solemnly affirmed that “on that day, SI Jagdish Kumar
produced before me accused present in the Court along-with witnesses and
case property. I verified the facts from accused as well as witnesses and
affixed my seal `SS’ on the sample as well as residue.” This further tends to
show that the provisions of Section 55 of the Act were duly complied with.
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PW1 HC Om Parkash has deposed that on 22.2.2002, I was posted in City
Fatehabad as MHC. He has tendered his affidavit Ex.P1. It is in his cross-
examination that “the case property was deposited with me at about 9:30
P.M.” True that he has deposed in his cross-examination that “I proceeded
on leave on the night of 22.2.2002 after handing over the case property to
HC Jagdish Chander.” The latter as PW3 has also deposed that HC Om
Parkash had deposited the case property while proceeding on leave. He has
also tendered his affidavit Ex.P3. It is in the cross-examination of HC
Jagdish Chander PW3 that “at the time of deposit of case property, Om
Parkash HC was working as MHC, thereafter, he proceeded on leave after
handing over the charge.” Constable Dilbag Singh PW6 has deposed that
on 25.2.2002, I was posted in Police Station City Fatehabad. He has
tendered his affidavit Ex.P8. In fact, he carried the sample parcel to the
FSL for chemical analysis. Of course, SI Balwan Singh PW4 in his cross-
examination has stated that I have seen Ex.D1, and it is correct that in
Ex.D1, two lines were written by me with pen later on, however, remaining
lines were not written in original statement under Section 161 of Cr.P.C in
judicial file and it is correct that I have made correction in the statement of
HC Jagdish and Constable Dilbag at the place where date is mentioned and
it is correct that there is no initial after correcting the date on the
statements,” but it is apt to be borne in mind that Om Parkash is a person
with whom only the case property was deposited and the same had remained
with him for few hours only and when he proceeded on leave on that very
day, he handed over the case property to HC Jagdish Chander. Thus, if SI
Balwan Singh who is not the Investigator had added a few lines in Ex.D1,
the same hardly affects merits of the case. Section 161(1) of Cr.P.C reads as
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under:-
“161. Examination of witnesses by police. — (1) Any police
officer making an investigation under this Chapter, or any
police officer not below such rank as the State Government
may, by general or special order, prescribe in this behalf, acting
on the requisition of such officer, may examine orally any
person supposed to be acquainted with the facts and
circumstances the case.”
It has been manifested in plain words in this language that a
witness under this Section can be examined even orally.
A conjoint reading of Ex.P1, the affidavit of HC Om Parkash,
affidavit Ex.P3 of HC Jagdish Chander, affidavit Ex.P8 of Constable Dilbag
Singh PW6 and the FSL report would go a long way in proving that the
chain of link evidence is complete.
It has been further argued by Mr. Lakhanpal that it is in the
cross-examination of Jagdish Kumar SI PW7 that “it is correct that there is
no seal of `SS’ on the case property. It is correct that there is no Madh
(item) number on the case property of police station. However, the case
property and madh number of treasury is mentioned dated 6.3.2002.” That
the case of the prosecution is that the case property was sealed with seals
JK, JS and SS whereas the case property when produced in the Court did
not bear the seal SS. Furthermore, the case property did not bear the item
number of the police station. These two deficiencies bring out that the case
property produced at the trial has not been connected with the appellant. I
regret my inability to be one with Mr. Lakhanpal. It emanates from the
evidence referred to hereinbefore, that the case property was deposited in
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the treasury. As per rules, the opium has to be deposited in the treasury.
The case of the prosecution should not be thrown overboard merely because
the MHC did not scribe the item number assigned in Register No.19 on the
case property. This lapse on his part pales into insignificance in view of the
item number allotted to the case property by the treasury. The recovery was
effected on 22.2.2002. Jagdish Kumar PW7 was examined on 11.7.2003.
During this interregnum, the seal `SS’ affixed on the case property by
becoming brittle due to humidity as well as due to contrition sustained by
coming into contact with the property of other cases would have fallen off.
Now a word about defence needs to be recorded. Monika DW1
none else but wife of the appellant has stated in a nutshell that the police
took up her husband on 21.2.2002 from the house, because he was wanted
in a case under Section 294 of IPC of PS City Fatehabad. On that day, two
other persons namely Om Parkash son of Kesra Ram and Bhagwan Dass son
of Inder Singh resident of Dhangar were also sitting in the Police Station.
Her husband told her that the police wanted to involve him in a false case
under Sections of NDPS Act instead of above two persons who were present
in the Police Station. That at the instance of above said two persons, her
husband was falsely implicated in this case. And that the police did not take
any action on her application Ex.DW1/A. I have considered this evidence.
A glance through Ex.DW1/A would reveal that it was purportedly got typed
on 3.7.2002 though the recovery was effected on 22.2.2002. It tends to
show that this was moved after more than four months of the recovery.
During this interregnum, she had got ample time to cook up a story to save
her husband from the clutches of the prosecution. Had her husband-
appellant been whisked away from her house in the alleged manner, in the
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normal course of her conduct, she would have raised hue and cry in the
locality where her house is situated and moved telegrams to the high-ups
besides approaching the higher authorities of the police hierarchy
personally. Thus, the version set forth in Ex.DW1/A can be hardly
believed.
DW2 Constable Puran Chand No.321 has deposed that the
Roznamcha at Rapat No.39 dated 22.2.2002 entry relating to deposit of case
property is mentioned and time of returning of Jagdish Kumar Inspector is
9:10 P.M. It is correct that there is no rapat mentioned about leave of MHC
in the rapat rojnamcha and there is no entry regarding change of MHC from
Serial No.39 to 49 till 23.2.2002. It is correct that there are signatures of
HC Om Parkash. By dwelling over this evidence, Mr. Lakhanpal argued
that as per this record, MHC Om Parkash had not proceeded on leave, nor
there is entry regarding change of the Moharrar Head Constable. This
contention is also unacceptable. Towards the end of his cross-examination,
this witness Puran Chand Constable has testified that “It is correct that
record regarding the leave is separate.” If the appellant did entertain any
doubt that on 22.2.2002 Om Parkash MHC had not proceeded on leave, then
the record pertaining to his leave could have been got summoned and
produced in the Court. It is also in the cross-examination of this witness
that “It is correct that as per Entry No.39 SI Jagdish Kumar produced the
accused present in the Court, the case property and witnesses before SHO
and SHO after verifying the facts affixed his seal and directed I.O to deposit
the case property with MHC. This evidence ostensibly shows that the
provisions of Section 55 of the Act were complied with. HC Om Parkash
DW3 has deposed that as per Entry No.9, SI Jagdish Chander left the CIA
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Staff at 12:15 P.M along with HC Khayali Ram and others. Earlier, the
learned counsel for the appellant had argued that as per Puran Chand
Constable’s evidence, the time of returning of Jagdish Kumar Sub Inspector
is 9:10 P.M whereas according to HC Om Parkash DW3 as per Entry No.9
SI Jagdish Chander had left the CIA staff on 12:15 P.M, if it is so, the entire
prosecution version is rendered highly doubtful. This contention fails to
inspire confidence. Towards the end of his cross-examination Om Parkash
HC DW3 has stated in clear and unambiguous terms that “It is correct that
the distance between the Police Station and CIA Staff was covered in a
vehicle within 4-5 minutes. The CIA Staff Office is situated in the
jurisdiction of police station City Fatehabad.” It follows from this evidence
that the distance between the Police Station as well as CIA Staff is hardly 4-
5 minutes run by a vehicle. This evidence nullifies the limb of Mr.
Lakhanpal’s arguments.
Needless to say, the officer of the rank of Sub Inspector could
not afford to plant such a heavy recovery of opium worth lacs upon the
appellant. He could not arrange it from any source. The record is also quite
barren to show that the investigator was inimically disposed of towards the
appellant.
No other material point has been urged or agitated by either
counsel. On scrutinising and analysing the entire evidence, it emerges out
that no infirmity surge to the surface. Sequelly, the appeal is dismissed
being devoid of any merit.
September 09, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No