Crl. Appeal No. 378-SB of 1997
1
IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 378-SB of 1997
Date of decision. 23.07.2008
Dilawar Singh @ Kala son of Narang Singh son of Waryam
Singh, agriculturist, r/o village Dogarpur, P.S. Garshankar.
....... Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Ms. Deipa Asdhir Dubey, Advocate
for the appellant.
Mr. S.S. Bhullar, DAG, Punjab
fhe respondent.
****
Sham Sunder, J.
This appeal is directed against the judgment of
conviction and the order of sentence dated 22.04.1997,
rendered by the Court of Sessions Judge, Hoshiarpur, 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 two years.
Crl. Appeal No. 378-SB of 1997
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2. The facts, in brief, are that on 05.09.1995
ASI Balwinder Singh along with H.C. Sawinder Pal, and some
other police officials, was present, at the bus stand of village
Denowal Khurd, in connection with patrol duty. He received a
secret information against accused Dilawar Singh, that he was
dealing in the sale of poppy husk, and if a raid was conducted,
recovery of poppy husk could be effected from him. On receipt
of this information, ruqa Ex.PG, was sent to the Police Station,
on the basis whereof FIR Ex.PG/1 was registered. Thereafter,
ASI Balwinder Singh, along with other members of the police
party, went to the house of the accused for raid. The accused
was found present in his house. Ram Lubhaya, Constable, was
sent to bring respectables but due to party faction in the
village, no person was willing to join the raid. Thereafter, the
accused was taken into police custody and interrogated. He
suffered a disclosure statement that he had concealed 13 bags
of poppy husk in a kotha, in which wheat chaff was lying, of
which he only knew and could get the same recovered.
Thereafter, the accused led the police party, to the pre-
disclosed place and got recovered 13 bags, each containing 36
Kgs poppy husk. The accused made another disclosure
statement that he had concealed seven bottles of Indian made
foreign liquor make Binney Aristocrat in a room of his house,
about which only he knew and could get the same recovered.
In pursuance of the said disclosure statement, he got recovered
Crl. Appeal No. 378-SB of 1997
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seven bottles of licit liquor from the pre disclosed place, for
which a separate case was registered. Wireless message was
sent to the DSP, Hoshiarpur, as a result whereof, he came to the
spot. ASI Balwinder Singh produced before him the accused
and 13 bags each containing 36 Kgs poppy husk, referred to
above. The DSP, Hoshiarpur, took out a sample of 250 grams
poppy husk from each of the bags. Thereafter, the contents of
the samples were put into separate packets, and the remaining
poppy husk was kept in the same bags. These were converted
into parcels, duly sealed, and taken into possession, vide
separate recovery memo. The site plan was prepared. 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 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 Nasib Chand, Constable, (PW-1), Paramjit Singh,
Head Constable, (PW-2), Sarwan Singh, DSP, (PW-3),
Sawinder Pal, Head Constable, (PW-4), and Balwinder
Singh, ASI, (PW-5) Thereafter, the Addl. P.P for the State,
closed the prosecution evidence.
Crl. Appeal No. 378-SB of 1997
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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, led no evidence in his defence.
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,
submitted that though a secret information was received by
the Investigating Officer, yet he neither reduced the same into
writing, nor sent the same to the Officer Superior
immediately. He further contended that, as such, there was
breach of the mandatory provisions of Section 42 of the Act,
which must result into vitiation of the investigation, as also
the subsequent proceedings, and, as such, the accused was
entitled to acquittal. The submission of the Counsel for the
Crl. Appeal No. 378-SB of 1997
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appellant, in this regard, does not appear to be correct. It is,
proved from the evidence of ASI Balwinder Singh, that on
receipt of the secret information against the accused ( now
appellant ) that he was in possession of poppy husk, ruqa
Ex.PG, containing the information, was sent to the Police
Station, on the basis whereof, formal FIR Ex.PG/1 was
recorded by Raj Kumar, Sub Inspector. After recording the
FIR, the special reports were sent to the Illaqa Magistrate as
also the higher Police Officers. Even after the recovery of 13
bags each containing 36 Kgs of poppy husk, wireless
message was sent to the DSP, Hoshiarpur, who came to the
spot. He was apprised of the facts and circumstances of the
case, as also the recovery of poppy husk, from the accused,
who verified the same. In the instant case, the provisions of
Section 42 of the Act, were, therefore, complied with. The
Counsel for the appellant relied upon Directorate of
Revenue & Anr. v. Mohammed Nisar Holia 2008(1) RCR
( Criminal ) 241 in support of her contention that violation
of the provisions of Section 42 of the Act amount to the
vitiation of conviction and sentence. The perusal of the facts
of the aforesaid case, clearly goes to show that secret
information, which was received by the Investigating Officer,
was not reduced into writing, but conveyed to another officer,
who reduced the same into writing. It was thus, held that the
officer who received the information was required to reduce
Crl. Appeal No. 378-SB of 1997
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the same into writing and having not done so, the conviction
and sentence stood vitiated. In the instant case, as stated
above, the secret information was received by Balwinder
Singh, ASI. He reduced the same into writing, in the form
ruqa Ex.PG, and sent the same to his Officer Superior i.e.
SHO of the Police Station , as a result whereof, formal FIR
Ex.PG/1 was recorded. Thereafter, special reports were sent
to the Illaqa Magistrate and the Superior Officers. The facts
of the Directorate of Revenue & Anr.’s case ( supra ),
therefore being distinguishable, from the facts of the instant
case, no help, can be drawn, by the Counsel for the appellant,
therefrom. The submission of the Counsel for the appellant,
being without merit, must fail, and the same stands rejected.
10. It was next submitted by the Counsel for
the appellant, that no independent witness, was joined, by the
Investigating Officer, despite receipt of a secret information
against the accused. She further submitted that even no effort
was made to join an independent witness. She further
submitted that, on account of this reason, the case of the
prosecution became doubtful. She placed reliance on State
of Punjab v. Jeet Singh, 2000(4) RCR (Criminal) 509 in
support of her contention. The submission of the Counsel for
the appellant, in this regard, does not appear to be correct.
Balwinder Singh, ASI, who appeared in the witness box as,
PW5, stated that, as soon as, he received a secret information
Crl. Appeal No. 378-SB of 1997
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against the accused-appellant, he along with other police
officials, went to the house of the accused. He further stated
that after reaching the house of the accused/appellant, he sent
Constable Ram Lubhaya to the village to bring the
respectables, but due to party faction, in the village, no person
was willing to join the investigation. This clearly goes to
show that, an effort was made, by the Investigating Officer, to
join an independent witness, but none was ready to join, on
account of party faction. It is a matter of common experience,
that in the villages, there are two to three factions. On
account of the existence of such factions, in the villages, no
body is ready to come forward, to join the search and seizure,
proceedings conducted by the police, so as to avoid the wrath
of the accused and complication, at a later stage, for appearing
as a witness in the Court, from time to time. Had no effort
been made by the Investigating Officer, to join an
independent witness, some merit might have been found, in
the arguments of the Counsel for the appellant. If despite
efforts, having been made by the Investigating Officer, he was
not successful, in joining an independent witness, then his
conduct could not be said to be blame-worthy. In State of
Punjab’s case ( supra ) relied upon by the Counsel for the
appellant, there was violation of the mandatory provisions of
Section 42; no independent witness had been joined by the
Investigating Officer, at the time of recovery and even no
Crl. Appeal No. 378-SB of 1997
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effort had been made by him to join the independent witness.
It was under these circumstances, that in the aforesaid case,
the appellant was acquitted by a Division Bench of this Court.
The facts of the aforesaid case are clearly distinguishable
from the facts of the present case. No help can be drawn by
the Counsel for the appellant therefrom. On account of non
joining of an independent witness, the evidence of the official
witnesses, cannot be distrusted and disbelieved. From the
cogent, convincing and trust-worthy evidence of the official
witnesses, it was proved beyond doubt, that in pursuance of
the disclosure statement made by the accused, he got
recovered 13 bags containing poppy husk. Nothing could be
brought out, during the course of the cross-examination of
these witnesses, which may go to discredit their evidence.
The witnesses had no ill-will, grudge or enmity against the
accused, to falsely implicate him, in the present case. Even
otherwise, it can not be imagined that such a big haul of
poppy husk, could be planted, against the accused, by the
police party. 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 it. It was further held that
civilized people, are generally insensitive, when a crime is
committed, even in their presence, and they withdraw from
the victim’s side, and from the side of the vigilant. They keep
Crl. Appeal No. 378-SB of 1997
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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. In State
of NCT of Delhi versus Sunil (2000) ISCC 748, it was held
as under:-
“It is an archaic notion that actions of
the Police Officers 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 can not 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-A The principle of law, laid down, in the
aforesaid cases, is fully applicable to the facts of the present
case. On account of non-joining of an independent witness,
the case of the prosecution, did not become doubtful. The
submission of the learned Counsel for the appellant, being
without merit, must fail, and the same stands rejected.
11. It was next submitted by Counsel for the
appellant, that no investigation was conducted, in respect of
the ownership of the house, where from the alleged recovery
was effected. She further submitted that, as such, the
accused-appellant could not be said to be in conscious
Crl. Appeal No. 378-SB of 1997
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possession of the poppy husk, referred to above. The
submission of the Counsel for the appellant, in this regard,
does not appear to be correct. The recovery, in this case,
was effected, in pursuance of the disclosure statement,
made by the accused. The accused knew, as to where, he
had concealed the bags, containing poppy husk. The
concealment of the bags of poppy husk was not in the
knowledge of anybody else. The bags, containing poppy
husk, were in the exclusive knowledge of the accused.
Under these circumstances, the Investigating agency was not
required to conduct any investigation, with regard to the
ownership of the house, from where the recovery of poppy
husk was got effected. Had the recovery of poppy husk
been effected, from an open and accessible place and had
the bags been not concealed, and had the same been visible
to everybody, the matter would have been different. The
Counsel for the appellant placed reliance on Mohd Alam
Khan v. Narcotics Control Bureau and another 1996 Crl.
L.J. 2001 ( SC ) in support of her contention. The facts of
the aforesaid case are clearly distinguishable, from the facts
of the instant case. In the aforesaid case, the recovery was
not effected, in pursuance of the disclosure statement, made
by the accused. The recovery was effected, from a house, as
a result of the general search on receipt of a secret
information. The investigating agency had failed to
Crl. Appeal No. 378-SB of 1997
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investigate into the matter, as to who was the owner of the
house, from where the recovery of contraband was effected
in pursuance of the general search. It was, under these
circumstances, and keeping in view the other facts and
circumstances prevailing therein, that the appellant was
acquitted. The facts of the aforesaid case being
distinguishable from the facts of the instant case, no help
can be drawn, by the Counsel for the appellant, therefrom.
The submission of the Counsel for the appellant, being
without merit, must fail, and the same stands rejected.
12. It was next submitted by the Counsel for
the appellant that only one sample of poppy husk, was
taken from each bag. She further submitted that as per the
requirement of law, two samples were required to be taken
out of each bag. She further submitted that, on account of
this reason, the case of the prosecution became doubtful.
She placed reliance Chhabil Das v. State of Haryana
1998(1)RCR (Criminal) 133 (P&H), a case decided by a
Single Bench of this Court. In the said case, it was observed
that two samples were required to be taken , whereas only
one sample was taken. Even the mandatory provisions of
Sections 50, 52, 55 and 42 had not been complied with in
the said case. Taking into consideration, the facts and
circumstances, prevailing therein, this Court came to the
conclusion that the prosecution had failed to prove its case,
Crl. Appeal No. 378-SB of 1997
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against the appellant, and, as such, he was acquitted. It may
be stated here, that the facts of the aforesaid authority, are
clearly distinguishable, from the facts of the present case.
Even otherwise,there is no mandatory requirement of law,
to the effect, that two samples from the poppy husk, were
required to be taken. The samples are taken with a view to
send the same to the office of the Chemical Examiner, to
find out, as to whether, the same are of contraband or not.
In this case, the Chemical Examiner, after testing the
contents of the contraband, came to the conclusion, that the
same constituted poppy husk. The Chemical Examiner did
not find the contents of the samples to be insufficient for
analysis. Once the Chemical Examiner found the contents
of the samples, to be sufficient, for analysis, the question
whether one sample was taken or two samples were taken,
was hardly of any consequence. No help can be drawn, by
the Counsel for the appellant, therefrom. 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 there was a delay of nine
days, in sending the samples, to the office of the Chemical
Examiner, which remained unexplained, as a result whereof,
the case of the prosecution, became doubtful. The
submission of the Counsel for the appellant, in this regard,
Crl. Appeal No. 378-SB of 1997
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does not appear to be correct. Mere delay, in sending the
samples, in itself, is not sufficient to come to the conclusion,
that the link evidence was incomplete. In the absence of any
explanation regarding delay, the Court is required to place
reliance upon the other evidence produced by the
prosecution. The other evidence produced, on record, by the
prosecution, which has been held to be cogent, convincing,
reliable, and trustworthy, is sufficient to prove, that none-
tampered with the samples, until the same reached the office
of the Chemical Examiner. Had no other evidence been
produced, in this regard, the matter would have been
different. In this view of the matter, mere delay, in sending
the samples to the Laboratory, did not at all, either affect the
merits of the case, or make the link evidence incomplete, in
any manner. 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 sealed articles remained in safe
custody. In Narinder Singh @ Nindi Vs. State of Punjab
2005(3) RCR (Criminal) 343, which was a case relating to
the recovery of 4 Kgs. of opium, the samples were sent to
the office of the Chemical Examiner, after 23 days. All the
samples were intact. In these circumstances, it was held
that, in the face of other cogent, convincing, reliable, and
trustworthy evidence, produced by the prosecution, to prove
Crl. Appeal No. 378-SB of 1997
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the completion of link evidence, it could not be held that the
possibility of tampering with the samples, could not be ruled
out. The principle of law, laid down, in the aforesaid
authorities, is fully applicable to the facts of the instant case.
Under these circumstances, delay of nine days in sending
the samples was hardly of any consequence. The submission
of the Counsel for the appellant, being without merit, must
fail, and the same stands rejected.
14. The Counsel for the appellant, however,
placed reliance on Darshan Singh v. State of Punjab 2006
(2) RCR (Criminal) in support of her contention that delay
in sending the samples to the office of Chemical Examiner,
must prove fatal to the case of the prosecution. In that case
there was a delay of 13 days, in sending the samples to the
office of the Chemical Examiner. From the other evidence,
it was not proved that the samples remained untampered
with until the same reached the office of the Chemical
Examiner. It was, under these circumstances, and taking into
consideration the other circumstances of the case, that this
Court had held that the link evidence was incomplete. In the
face of the principle of law, laid down in State of Orissa’s
case ( supra ), decided by the Apex Court, the principle of
law laid down, to the contrary in Darshan Singh’s case
( supra ), would not hold the field. No help can be drawn,
by the Counsel for the appellant, therefrom. The submission
Crl. Appeal No. 378-SB of 1997
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of the Counsel for the appellant, being without merit, must
fail, and the same stands rejected.
15. It was next submitted by the Counsel for the
appellant that the seal after use, in this case, was not handed
over to an independent witness. It may be stated here that, in
the instant case, no independent witness could be joined
and, as such, the question of handing over the seal to him,
did not at all arise. Had any independent witness been
joined, and the seal after use, had not been given to him, the
matter would have been different. The Counsel for the
appellant, however, placed reliance on Balwinder Singh
alias Billa v. State of Punjab 1999(3) RCR (Criminal)
117 , in support of her contention. Balwinder Singh alias
Billa’s case (supra ) related to the decision of a bail
petition, and not to the decision of an appeal. No invariable
principle of law, was laid down, therein, that if the seal after
use, is not given to an independent witness, the case of the
prosecution becomes doubtful. No help can be drawn by the
Counsel for the appellant, from the aforesaid case. The
submission of the Counsel for the appellant, being without
merit, must fail, and the same stands rejected.
16. No other point, was urged, by the
Counsel for the parties.
Crl. Appeal No. 378-SB of 1997
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17. 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.
18. For the reasons recorded,
hereinbefore, this appeal is dismissed. The judgment
of conviction and the order of sentence dated
22.04.1997, 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, with due promptitude.
(SHAM SUNDER)
JUDGE
July 23, 2008
dinesh