High Court Punjab-Haryana High Court

Sham Singh Son Of Ganga Ram vs The State Of Punjab on 31 July, 2008

Punjab-Haryana High Court
Sham Singh Son Of Ganga Ram vs The State Of Punjab on 31 July, 2008
               Crl. Appeal No. 484-SB of 1997
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IN THE HIGH COURT OF PUNJAB & HARYANA,
             CHANDIGARH


                                Crl. Appeal No. 484-SB of 1997
                                Date of decision. 31.07.2008


Sham Singh son of Ganga Ram, r/o H. No. 1991, Colony
Mahant Mool Singh Babeksar Road, Amritsar.


                                             ....... Appellant

                   Versus


The State of Punjab

                                             ........ Respondent


CORAM: HON'BLE MR. JUSTICE SHAM SUNDER


Present:     Mr. P.S. Hundal, Senior , Advocate with
             Mr. R.S. Sidhu, 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 05.06.1997,

rendered by the Court of Additional Sessions Judge, Amritsar,

vide which it convicted the accused (now appellant), for the

offence, punishable under Section 18 of the Narcotic Drugs and
Crl. Appeal No. 484-SB of 1997
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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 two years, for having been found in possession of 5 KGs

opium, without any permit or licence.

2. The facts, in brief, are that on 31.07.1996

Inspector Joga Singh along with Assistant Sub Inspector

Gurinder Pal Singh, and other police officials, was present

outside Kot Baba Deep Singh, Amritsar, in connection with

patrol duty and in search of bad elements, in a Government

vehicle. Gurbachan Singh son of Vir Singh, independent

witness, was joined with the police party. Thereafter, the

police party was going towards Anterjami Colony in connection

with patrol duty and when it reached near the bridge of dirty

drain, near cremation ground, one person was noticed coming

from the opposite side, holding one bag (Jhola), in his right

hand, on foot. On seeing the police party, the accused

immediately turned back, but was apprehended. He disclosed

his name as Sham Singh son of Ganga Ram, r/o Colony

Mahani Mool singh, Bibeksar, Amritsar. The search of the

bag ( thela ) being carried by the accused, was conducted in the

presence of DSP Varinderpal Singh, who was called to the spot
Crl. Appeal No. 484-SB of 1997
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by sending a message, as a result whereof, 5 Kgs opium was

recovered. A sample of 50 grams of opium, was taken out,

from the bag. The remaining contents of the bag were put into

a separate container. The container, containing the remaining

opium, and the sample, were converted into parcels, duly

sealed, and taken into possession, vide a separate recovery

memo. Ruqa was sent to the Police Station, on the basis

whereof 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.

3. On his appearance, in the Court, the accused

was supplied the copies of documents, relied upon by the

prosecution. Charge under Section 18 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 Varinder Pal Singh, DSP, (PW-1), a witness to the

recovery, Joga Singh, Inspector, (PW-2), the Investigating

Officer and Ramesh Kumar, Constable, (PW-3), who tendered

his affidavit Ex.PF. Thereafter Gurbachan Singh,

independent witness, was given up by Public Prosecutor for

the State, as having been won over by the accused. He
Crl. Appeal No. 484-SB of 1997
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tendered into evidence report of the Chemical Examiner

Ex.PG and 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.

5-A. In his defence, the accused examined

Ashwani Kumar, HC, DW1, Girdhari Lal, Constable, DW2,

Ravinder Pal, Clerk, DW3, and G.S. Nischal, DW4.

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.

Crl. Appeal No. 484-SB of 1997
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9. The Counsel for the appellant, at the very

outset, vehemently, contended that one Gurbachan Singh,

independent witness though joined by the Investigating

Officer, at the time of the alleged search and seizure, yet he

was not examined. He further submitted that non-

examination of this witness, proved fatal to the case of the

prosecution. He also submitted that he was a witness in 5 to 6

cases of the police. It is, no doubt, true that Gurbachan Singh,

independent witness was joined, at the time of search and

seizure, yet he was given up, by the Public Prosecutor for the

State, as won over by the accused, as he came to the

conclusion, that he was not going to support the case of the

prosecution. The Public Prosecutor for the State is the master

of the case. It was for him to decide as to which witness he

wanted to examine and which witness he did not want to

examine. The Public Prosecutor for the State, exercised the

discretion, vested in him, in giving up Gurbachan Singh,

independent witness, as won over by the accused with a

bonafide motive. It could not be said that discretion exercised

by the Public Prosecutor for the State, in giving up Gurbachan

Singh, as won over by the accused, was, in any way arbitrary

or capricious. The evidence of the prosecution witnesses, is

creditworthy, and inspires confidence, in the mind of the

Court. In Masalti Vs. State of Uttar Pradesh, AIR 1965
Crl. Appeal No. 484-SB of 1997
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(S.C.) 202, it was held that it is, undoubtedly, the duty of the

prosecution to lay before the Court, all material witnesses,

available to it, whose evidence is necessary for unfolding its

case, but it would be unsound to lay down it, as a general rule,

that every witness, must be examined, even though his

evidence, may not be very material or, even if, it is known that

he has been won over or terrorized. In Roop Singh Vs. State

of Punjab 1996 (1) RCR 146, a Division Bench of this Court,

held that no adverse inference can be drawn, when the only

independent witness, was given up by the prosecution, as won

over by the accused. It was further held, in the said authority,

that the panch witnesses, being human beings, are quite

exposed and vulnerable to human feelings of yielding,

browbeating, threats and inducements and giving up of the

public witnesses, as won over, is fully justified, in the present

day situation, prevailing in the society. In Karnail Singh Vs.

State of Punjab 1983 Criminal Law Journal, 1218, a

Division Bench of this Court, held that where the independent

witness, was won over by the accused, and only the officials

witnesses, were examined, who were considered to be not

interested persons, their evidence cannot be doubted, on the

ground of their official status. The principle of law, laid

down, in the said authorities, is fully applicable to the facts of

the present case. In this view of the matter, the submission of
Crl. Appeal No. 484-SB of 1997
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the Counsel for the appellant, being without merit, must fail,

and the same stands rejected.

10. Now coming to the second contention of the

Counsel for the appellant that Gurbachan Singh, had appeared

in 5 to 6 cases of the prosecution and, as such, he was a stock

witness, it may be stated here, that the same is not correct.

The mere fact that Gurbachan Singh appeared in 5 to 6 cases

of the prosecution, did not mean that he was a stock witness.

He might have witnessed the recovery, in those cases, and, as

such, he was cited as a witness. However, no Court declared

that he was a stock witness. 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 31.07.1996, yet the sample was sent to the office

of Chemical Examiner on 06.08.1996 i.e. after the delay of

seven days. He further submitted that there was no

explanation, with regard to delay, in sending the sample, to

the office of the Chemical Examiner. He further submitted

that, under these circumstances, the possibility of tampering

with the sample, until the same reached the office of the

Chemical Examiner, especially when the seal after use was

handed over to the police officials, could not be ruled out. It
Crl. Appeal No. 484-SB of 1997
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is, no doubt, true that there is no explanation, with regard to

delay. However, mere delay, in itself, is not sufficient to

come to the conclusion that the sample parcel was 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 sample until the same reached the office of the

Chemical Examiner. Even there is report of the Chemical

Examiner Ex.PG, which clearly proves that the seals on the

exhibit, were intact, on arrival, till the time of its analysis and

agreed with the specimen impression of the seals. The report

Ex.PG 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 sample 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 sample, until

the same was 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
Crl. Appeal No. 484-SB of 1997
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applicable to the facts of the instant case. Since it was proved

that none tampered with the sample, 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. The Counsel for the appellant, however,

placed reliance on Kaur Singh v. State of Punjab 2007(2)

RCR (Criminal) 630 to contend that unexplained delay in

sending the sample to the office of the Chemical Examiner,

must prove fatal to the case of the prosecution. The perusal of

the facts of Kaur Singh’s case ( supra ) , decided by a

Single Bench of this Court, clearly goes to show that the other

evidence produced by the prosecution to prove the link

evidence, was found to be deficient and unreliable. There

were so many other infirmities, in the prosecution case.

Taking into consideration the facts and circumstances,

prevailing therein, it was held that delay in sending the

sample to the Forensic Science Laboratory, was sufficient to

hold that the sample was tampered with, until the same

reached the office of the Chemical Examiner. Even

otherwise, the principle of law, laid down, in Kaur Singh’s

case ( supra ) on the same point, being contrary, to the

principle of law, laid down, in State of Orissa’s case
Crl. Appeal No. 484-SB of 1997
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(supra), decided by the Apex Court, shall not hold the field.

No help, therefore, can be drawn, by the Counsel for the

appellant, from Kaur Singh’s case ( supra ). In this view of

the matter, the submission of the Counsel for the appellant,

being without merit, must fail, and the same stands rejected.

13. It was next submitted by the Counsel for

the appellant, that the seal after use, was not given to the

independent witness. He further submitted that, on the other

hand, it was given to the ASI by the Investigating Officer,

who returned the same to him within two days of the

recovery. He further submitted that, under these

circumstances, the possibility of tampering with the contents

of the sample, until it reached the office of the Chemical

Examiner, could not be ruled out. It was not necessary, on the

part of the Investigating Officer, to hand over the seal to the

independent witness. An Investigating Officer, cannot be

expected to keep a number of seals with him, as he is to detect

the crime, and effect recoveries, in a large number of cases.

In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447,

a case decided by a Full Bench of this Court, the seal, on the

sample of illicit liquor, recovered from the accused, was not

entrusted to an independent person forthwith. Similarly, the

independent person, though entrusted with the seal, by the

Investigating Officer, later on, was not produced as a witness.

Crl. Appeal No. 484-SB of 1997
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In these circumstances, it was held that this fact alone, was

not sufficient to affect the merits of the trial, and the

prosecution case, could not be thrown out, on that score alone.

It was further held, in this case, that it was not incumbent

upon the Police Officer, to hand over the seal to a third person

forthwith, and even, in cases, where he had done so, it was not

obligatory upon him, to produce such person, as a witness,

during trial, as there was no statutory requirement,

whatsoever, to this effect. The principle of law, laid down, in

the aforesaid authority, is fully applicable to the facts of the

present case. Non-examination of an independent witness, by

the prosecution, in view of the cogent, convincing, reliable,

and trustworthy evidence, produced by the prosecution,

regarding the completion of link evidence, did not at all affect

the merits of the case. In this view of the matter, the finding

of the trial Court, is endorsed.

14. The Counsel for the appellant, however,

placed reliance on Bhola Singh v. State of Punjab 2005(2)

RCR (Criminal) 520 to contend that if seal is not given to an

independent witness, but is kept by the Investigating

Officer, then the possibility of tampering with the contraband,

could not be ruled out. The perusal of the facts of the case,

aforesaid, clearly goes to show that there were so many other
Crl. Appeal No. 484-SB of 1997
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infirmities, therein, and after taking into consideration the

same, the Court came to the conclusion, that the chances of

tampering with the sample parcel until the same reached the

office of the Chemical Examiner , could not be ruled out. The

facts of the aforesaid authority, are distinguishable, from the

facts of the present case. Even otherwise, in view of the

principle of law, laid down, in Piara Singh’s case ( supra ),

decided by a Full Bench of this Court, any contrary principle

of law, on the same point, laid down in Bhola Singh’s case

( supra ), decided by a Single Bench of this Court, does not

hold the field.

15. No other point, was urged, by the Counsel

for the parties.

16. In view of the above discussion, it

is held that the judgment of conviction and the order of

sentence, rendered by the trial Court, are based on the

correct appreciation of evidence, and law, on the point.

The same do not warrant any interference. 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

05.06.1997, are upheld. If the appellant is on bail, his
Crl. Appeal No. 484-SB of 1997
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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.

(SHAM SUNDER)
JUDGE
July 31, 2008
dinesh