{"id":114414,"date":"2008-12-01T00:00:00","date_gmt":"2008-11-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bikkar-singh-vs-the-state-of-punjab-on-1-december-2008"},"modified":"2016-09-24T12:03:16","modified_gmt":"2016-09-24T06:33:16","slug":"bikkar-singh-vs-the-state-of-punjab-on-1-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bikkar-singh-vs-the-state-of-punjab-on-1-december-2008","title":{"rendered":"Bikkar Singh vs The State Of Punjab on 1 December, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Bikkar Singh vs The State Of Punjab on 1 December, 2008<\/div>\n
Crl. Appeal No.2083-SB of 2008                              1\n\n     IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n                             Crl. Appeal No.2083-SB of 2008\n                             Date of Decision : 1.12.2008\n\nBikkar Singh S\/o Hazura Singh,                  ....Appellant\nresident of Dhaipai.\n\n\n                             Versus\n\nThe State of Punjab                             ....Respondent\n\nCORAM:HON'BLE MR. JUSTICE SHAM SUNDER\n\n         1. Whether Reporters of Local Newspapers may be allowed\n         to see the judgment?\n         2. To be referred to the Reporters or not?\n         3. Whether the judgment should be reported in the Digest?\n\nPresent: Mr. Deepak Gupta, Advocate,\n         for the appellant.\n\n         Mr. S.S.Bhullar, DAG, Punjab,\n         for the respondent.\n\nSHAM SUNDER, J.\n<\/pre>\n
         This appeal is directed against the judgment of conviction, and<\/p>\n
the order of sentence dated 22.10.2008, rendered by the Judge, Special<\/p>\n
Court, Bathinda, vide which he convicted the accused\/appellant, for the<\/p>\n
offence, punishable under Section 15 of the Narcotic Drugs &<\/p>\n
Psychotropic Substances Act, 1985 (hereinafter called as ‘the Act’ only)<\/p>\n
and sentenced him to undergo rigorous imprisonment for a period of one<\/p>\n
year and 6 months, and to pay a fine of Rs.1000\/-, and in default of<\/p>\n
payment of the same, to undergo rigorous imprisonment for another<\/p>\n
period of ten days, for having been found in possession of 14 Kgs.<\/p>\n
Poppy-husk, (falling within the ambit of non-commercial quantity),
\n Crl. Appeal No.2083-SB of 2008                                2<\/span><\/p>\n
without any permit or licence.       The proceedings against Pala Singh,<\/p>\n
accused, abated, as he died during the trial of the case.<\/p>\n
2.        The facts, in brief, are that, on 22.11.2004, Mohri Lal, ASI,<\/p>\n
alongwith other police officials, was present at the crossing of Raman, in<\/p>\n
connection with strike of Kisan Union, in Govt. Gypsy No.PB-08-1265.<\/p>\n
At that time, Jhanda Singh S\/o Suraj Singh, a public witness, met the<\/p>\n
police party there, and was joined with it. When the police party was<\/p>\n
proceeding, on the link road, from Raman to Malkana, and reached 1 KM<\/p>\n
ahead of village Raman, it spotted Bikkar Singh and Pala Singh, accused,<\/p>\n
who on seeing the police party, tried to run away, after lifting the bag, but<\/p>\n
were apprehended, on suspicion. Due to fall of the bag, some poppy-<\/p>\n
husk, spilt therefrom. On search of the bag, in accordance with the<\/p>\n
provisions of law, it was found containing 14 kgs. poppy-husk. Two<\/p>\n
samples of 100 grams each, were taken out, and the remaining poppy-<\/p>\n
husk, was put into the same bag. The samples, and the bag, containing<\/p>\n
the remaining poppy-husk, were converted into parcels, duly sealed, and<\/p>\n
taken into possession, vide a separate recovery memo. Ruqa was sent to<\/p>\n
the Police Station, on the basis whereof, formal FIR was registered. The<\/p>\n
statements of the witnesses, were recorded. The accused were arrested.<\/p>\n
After the completion of investigation, the accused was challaned.<\/p>\n
3.        On their appearance, in the Court, the copies of documents,<\/p>\n
relied upon by the prosecution, were supplied to them. Charge under<\/p>\n
Section 15 of the Act, was framed against them, to which they pleaded<\/p>\n
not guilty, and claimed judicial trial.\n<\/p>\n
4.        The prosecution, in support of its case, examined Jagtar Singh,<\/p>\n
HC (PW-1), Mohri Lal, SI (PW-2), the Investigating Officer, Pargat
\n Crl. Appeal No.2083-SB of 2008                                3<\/span><\/p>\n
Singh, HC (PW-3), and Hardam Singh, SI (PW-4). Thereafter, the Addl.<\/p>\n
Public Prosecutor for the State, closed the prosecution evidence.<\/p>\n
5.        The statement of Bikkar Singh, accused, under Section 313<\/p>\n
Cr.P.C., was recorded, and he was put all the incriminating<\/p>\n
circumstances, appearing against him, in the prosecution evidence. He<\/p>\n
pleaded false implication.     He, however, examined Hardeep Singh,<\/p>\n
(DW-1), in his defence. Thereafter, he closed the defence evidence.<\/p>\n
6.        After hearing the Addl. Public Prosecutor for the State, the<\/p>\n
Counsel for the accused, and, on going through the evidence, on record,<\/p>\n
the trial Court, convicted and sentenced Bikkar Singh, accused, as stated<\/p>\n
hereinbefore.\n<\/p>\n
7.        Feeling aggrieved, against the judgment of conviction, and the<\/p>\n
order of sentence, rendered by the trial Court, the instant appeal, was filed<\/p>\n
by Bikkar Singh, appellant.\n<\/p>\n
8.        I have heard the learned Counsel for the parties, and have gone<\/p>\n
through the evidence and record, of the case, carefully.<\/p>\n
9.        The Counsel for the appellant, at the very outset, submitted that<\/p>\n
the mandatory provisions of Section 50 of the Act, were not complied<\/p>\n
with, as a result whereof, the sentence and conviction, stood vitiated. He<\/p>\n
also placed reliance on Ram Prasad Vs. State of Haryana 2005(2) RCR<\/p>\n
(Criminal) 288, in support of his contention. The submission of the<\/p>\n
Counsel for the appellant, in this regard, does not appear to be correct.<\/p>\n
The recovery, in this case, was not effected from the person of the<\/p>\n
accused, but from the bag, which he was carrying.             As such, the<\/p>\n
mandatory provisions of Section 50 of the Act, were not applicable to the<\/p>\n
search and seizure, in this case. Had the recovery been effected from the
\n Crl. Appeal No.2083-SB of 2008                                  4<\/span><\/p>\n
person of the accused, then the provisions of Section 50 of the Act, would<\/p>\n
have been attracted to the instant case. In State of Punjab Vs. Baldev<\/p>\n
Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court,<\/p>\n
settled beyond doubt, that the language of Section 50, was implicitly clear<\/p>\n
that the search had to be, in relation to a person, and not in relation to the<\/p>\n
premises, vehicles, or articles. Similar view was taken in Smt. Krishna<\/p>\n
Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In<\/p>\n
these circumstances, it can be said that the consistent, and particularly the<\/p>\n
view of the larger Bench of the Supreme Court, appears to be that the<\/p>\n
search, must relate to the person, and not vehicles, other luggage and<\/p>\n
articles, and then alone the provisions of Section 50 would be attracted.<\/p>\n
Ram Prasad’s case (supra), was decided by a Single Bench, of this<\/p>\n
Court. In view of the principle of law, laid down, in State of Punjab’s<\/p>\n
and Smt. Krishna Kanwar Thakuraeen’s cases (supra), decided by the<\/p>\n
Apex Court, any principle of law, to the contrary, laid down, on the same<\/p>\n
point, in Ram Prasad’s case (supra), shall not hold the field. Since, in<\/p>\n
view of the principle of law, laid down, in the aforesaid cases, decided by<\/p>\n
the Apex Court, the provisions of Section 50 were not applicable, to<\/p>\n
search, in the instant case, the question of compliance therewith, did not<\/p>\n
at all arise, and, as such, the conviction and sentence, did not stand<\/p>\n
vitiated. The submission of the Counsel for the appellant, in this regard,<\/p>\n
being without merit, must fail, and the same stands rejected.<\/p>\n
10.       It was next submitted by the Counsel for the appellant, that<\/p>\n
there was delay of 13 days, in sending the samples, which remained<\/p>\n
unexplained, as a result whereof, it could not be said that the samples<\/p>\n
were not tampered with, until the same reached the office of the Chemical
\n Crl. Appeal No.2083-SB of 2008                              5<\/span><\/p>\n
Examiner. The submission of the Counsel for the appellant, in this regard,<\/p>\n
does not appear to be correct. The mere fact that delay, in sending the<\/p>\n
samples, to the office of the Chemical Examiner, was not explained, in<\/p>\n
itself, was not sufficient, to come to the conclusion, that the sample<\/p>\n
parcels were tampered with, at any stage. In such circumstances, the<\/p>\n
Court is required to fall back upon the other evidence, produced by the<\/p>\n
prosecution, to complete the link evidence. The other evidence produced<\/p>\n
by the prosecution, has been subjected to indepth scrutiny, and, it has<\/p>\n
been found to be cogent, convincing, reliable, and trustworthy. From the<\/p>\n
evidence, produced by the prosecution, it was proved that none tampered<\/p>\n
with the sample parcels, until the same reached the office of the Chemical<\/p>\n
Examiner. Above all, there is report of the Chemical Examiner, Ex.PK,<\/p>\n
which clearly proves that the seals on the samples, were found intact, and<\/p>\n
agreed with the sample seal sent. The report of the Chemical Examiner is<\/p>\n
per-se admissible into evidence, in its entirety, as per the provisions of<\/p>\n
Section 293 Cr.P.C. The delay, in sending the samples, to the office of<\/p>\n
the Chemical Examiner, therefore, did not prove fatal to the case of the<\/p>\n
prosecution. Had no other evidence, been produced, by the prosecution,<\/p>\n
to prove that the sample parcels, remained untampered with, until the<\/p>\n
same reached the office of the Chemical Examiner, the matter would have<\/p>\n
been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR<\/p>\n
(Criminal) 196 (S.C.), it was held that mere delay in sending the sample<\/p>\n
to the Laboratory is not fatal, where there is evidence that the seized<\/p>\n
articles remained in safe custody. In Narinder Singh @ Nindi Vs. State<\/p>\n
of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the<\/p>\n
recovery of 4 Kgs. of opium, the samples were sent to the office of the
\n Crl. Appeal No.2083-SB of 2008                                  6<\/span><\/p>\n
Chemical Examiner, after 23 days. All the samples were intact. In these<\/p>\n
circumstances, it was held that, in the face of the other cogent,<\/p>\n
convincing, reliable, and trustworthy evidence, produced by the<\/p>\n
prosecution, to prove the completion of link evidence, it could not be<\/p>\n
held that the possibility of tampering with the samples, could not be ruled<\/p>\n
out. The principle of law, laid down, in the aforesaid authorities, is fully<\/p>\n
applicable to the facts of the instant case. Therefore, in the instant case,<\/p>\n
unexplained delay of 13 days, in sending the samples to the office of the<\/p>\n
Chemical Examiner, did not at all matter much. In this view of the<\/p>\n
matter, the submission of the Counsel for the appellant, being without<\/p>\n
merit, must fail, and the same stands rejected.\n<\/p>\n
11.       It was next submitted by the Counsel for the appellant, that<\/p>\n
Form No.29, was not filled up, at the spot, as a result whereof, the case of<\/p>\n
the prosecution, became doubtful. The submission of the Counsel for the<\/p>\n
appellant, in this regard, does not appear to be correct. There is no<\/p>\n
requirement of the Act, or the Rules, framed thereunder, that Form No.29,<\/p>\n
should be prepared, at the spot. Had there been any requirement of law,<\/p>\n
and the Form aforesaid, had not been prepared, at the spot, it would have<\/p>\n
been said that the case of the prosecution was doubtful. In the instant<\/p>\n
case, the Form, was prepared, and sent to the Laboratory, alongwith the<\/p>\n
sample parcels. Since, there was no requirement of law, of filling up<\/p>\n
Form No.29, at the spot, the submission of the Counsel for the appellant,<\/p>\n
being without merit, must fail, and the same stands rejected.<\/p>\n
12.       The Counsel for the appellant, however, placed reliance on<\/p>\n
Bhola Singh Vs. State of Punjab 2005(2) RCR (Criminal) 520, to<\/p>\n
contend that non-preparation of Form No.29, by the Investigating Officer,
\n Crl. Appeal No.2083-SB of 2008                               7<\/span><\/p>\n
must prove fatal to the case of the prosecution. The perusal of Bhola<\/p>\n
Singh’s case (supra), clearly goes to show, that the accused was<\/p>\n
acquitted on a number of grounds; viz; he was not found in conscious<\/p>\n
possession of the bags, containing poppy-husk; the seal had not been<\/p>\n
given to the independent witness, but kept by the Investigating Officer;<\/p>\n
no other evidence was produced, to show that the link evidence was<\/p>\n
complete, and none tampered with the sample parcels, until the same<\/p>\n
reached the office of the Chemical Examiner; and Form No.29, was not<\/p>\n
filled up, at the spot. In the instant case, it has been held above, that<\/p>\n
none-tampered with the sample parcels, until the same reached the office<\/p>\n
of the Chemical Examiner. The accused was also found in conscious<\/p>\n
possession of the bag, containing poppy-husk. Mere non-filling up of<\/p>\n
Form No. 29, at the spot, under these circumstances, did not affect the<\/p>\n
merits of the case. No help could be drawn, by the Counsel for the<\/p>\n
appellant, from Bhola Singh’s case (supra). In this view of the matter,<\/p>\n
the submission of the Counsel for the appellant, being without merit,<\/p>\n
must fail, and the same stands rejected.\n<\/p>\n
13.       It was next submitted, by the Counsel for the appellant, that the<\/p>\n
seal, after use, was not handed over to Jhanda Singh, independent<\/p>\n
witness, but to a subordinate police official. He further submitted that,<\/p>\n
under these circumstances, the possibility of tampering with the sample<\/p>\n
parcels, could not be ruled out. The submission of the Counsel for the<\/p>\n
appellant, in this regard, does not appear to be correct. No doubt, the<\/p>\n
seal, in this case, was given to a subordinate police official. It may be<\/p>\n
stated here, that there was no requirement of law, to hand over the seal,<\/p>\n
after use, to the independent witness. In Piara Singh Vs. The State of
\n Crl. Appeal No.2083-SB of 2008                                 8<\/span><\/p>\n
Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this<\/p>\n
Court, the seal, on the sample of illicit liquor, recovered from the<\/p>\n
accused, was not entrusted to an independent person forthwith. Similarly,<\/p>\n
the independent person, though entrusted with the seal, by the<\/p>\n
Investigating Officer, later on, was not produced as a witness. In these<\/p>\n
circumstances, it was held that this fact alone, was not sufficient to affect<\/p>\n
the merits of the trial, and the prosecution case, could not be thrown out,<\/p>\n
on that score alone. It was further held, in this case, that it was not<\/p>\n
incumbent upon the Police Officer, to hand over the seal to a third person<\/p>\n
forthwith, and even, in cases, where he had done so, it was not obligatory<\/p>\n
upon him, to produce such person, as a witness, during trial, as there was<\/p>\n
no statutory requirement, whatsoever, to this effect. The principle of law,<\/p>\n
laid down, in the aforesaid authority, is fully applicable to the facts of the<\/p>\n
present case.    Non-entrustment of seal to Jhanda Singh, independent<\/p>\n
witness, by the Investigating Officer, in view of the cogent, convincing,<\/p>\n
reliable, and trustworthy evidence, produced by the prosecution,<\/p>\n
regarding the completion of link evidence, did not at all affect the merits<\/p>\n
of the case. In this view of the matter, the finding of the trial Court, is<\/p>\n
endorsed.\n<\/p>\n
14.         It was next submitted, by the Counsel for the appellant, that<\/p>\n
though Jhanda Singh, independent witness, was joined by the<\/p>\n
Investigating Officer, yet he was not examined, by the prosecution,<\/p>\n
without any rhyme or reason, as a result whereof, the case of the<\/p>\n
prosecution became doubtful. No doubt, Jhanda Singh, independent<\/p>\n
witness, was joined, at the time of search and seizure, by the Investigating<\/p>\n
Officer, yet he was given up, as won over by the accused, vide statement
\n Crl. Appeal No.2083-SB of 2008                                9<\/span><\/p>\n
dated 10.10.2008, made by the Addl. Public Prosecutor for the State, on<\/p>\n
the basis of Mark ‘A’, request of the Police. Since, he sided with the<\/p>\n
accused, during the trial of the case, the Addl. Public Prosecutor for the<\/p>\n
State, took a wise decision, to give him up, as won over, as he knew, that<\/p>\n
if he (Jhanda Singh), was examined, the case of the prosecution, would be<\/p>\n
damaged. The Public prosecutor for the State, is the master of the case.<\/p>\n
It is for him to decide, as to whether, he wanted to examine a particular<\/p>\n
witness, or not. However, he is required to exercise the discretion, in a<\/p>\n
bona-fide manner. In the instant case, the discretion was exercised by the<\/p>\n
Addl. Public Prosecutor for the State, in a bona-fide manner. There is<\/p>\n
nothing, on the record, to reveal, that he exercised such a discretion, in an<\/p>\n
arbitrary, and capricious manner. The other evidence, produced by the<\/p>\n
prosecution, on scrutiny, has been found to be cogent, convincing,<\/p>\n
reliable, and trustworthy. Under these circumstances, the mere fact that<\/p>\n
Jhanda Singh, independent witness, was given up as won over, did not<\/p>\n
affect the merits of the case. In Masalti Vs. State of Uttar Pradesh, AIR<\/p>\n
1965 (S.C.) 202, a four Judge Bench of the Apex Court, held that it is,<\/p>\n
undoubtedly, the duty of the prosecution, to lay before the Court, all<\/p>\n
material witnesses, available to it, whose evidence is necessary for<\/p>\n
unfolding its case, but it would be unsound to lay down it, as a general<\/p>\n
rule, that every witness, must be examined, even though his evidence,<\/p>\n
may not be very material or, even if, it is known that he has been won<\/p>\n
over or terrorized.   In Roop Singh Vs. State of Punjab 1996 (1) RCR<\/p>\n
146, a Division Bench of this Court, held that no adverse inference, can<\/p>\n
be drawn, when the only independent witness, was given up by the<\/p>\n
prosecution, as won over by the accused. It was further held, in the said
\n Crl. Appeal No.2083-SB of 2008                               10<\/span><\/p>\n
authority, that the panch witnesses, being human beings, are quite<\/p>\n
exposed and vulnerable to human feelings of yielding, browbeating,<\/p>\n
threats and inducements, and giving up of the public witnesses, as won<\/p>\n
over, is fully justified, in the present day situation, prevailing in the<\/p>\n
society.   In Karnail Singh Vs. State of Punjab 1983 Criminal Law<\/p>\n
Journal, 1218 (DB), it was held that where the independent witness, was<\/p>\n
won over by the accused, and only the officials were examined, as<\/p>\n
witnesses for the prosecution, who were considered to be not interested<\/p>\n
persons, their evidence cannot be doubted, on the ground of their official<\/p>\n
status. Similarly in Appa Bai and another Vs. State of Gujrat AIR 1988<\/p>\n
S.C. 696, it was held that the prosecution story cannot be thrown out, on<\/p>\n
the ground, that an independent witness had not been examined by it. It<\/p>\n
was further held that civilized people, are generally insensitive, when a<\/p>\n
crime is committed, even in their presence, and they withdraw from the<\/p>\n
victim’s side, and from the side of the vigilant. They keep themselves<\/p>\n
away from the Courts, unless it is inevitable. Moreover, they think the<\/p>\n
crime like a civil dispute, between two individuals, and do not involve<\/p>\n
themselves in it. The principle of law, laid down, in the said authorities,<\/p>\n
is fully applicable to the facts of the present case. In this view of the<\/p>\n
matter, the submission of the Counsel for the appellant, being without<\/p>\n
merit, must fail, and the same stands rejected.\n<\/p>\n
15.        No other point, was urged, by the Counsel for the parties.<\/p>\n
16.        In view of the above discussion, it is held that the judgment of<\/p>\n
conviction and the order of sentence, rendered by the trial Court, are<\/p>\n
based on the correct appreciation of evidence, and law, on the point. The<\/p>\n
same do not warrant any interference, and are liable to be upheld.
\n Crl. Appeal No.2083-SB of 2008                                 11<\/span><\/p>\n
17.         For the reasons recorded, hereinbefore, the appeal is dismissed.<\/p>\n
The judgment of conviction, and the order of sentence dated 22.10.2008,<\/p>\n
are upheld. If the accused\/appellant is on bail, his bail bonds, shall stand<\/p>\n
cancelled. The Chief Judicial Magistrate, Bathinda, shall take necessary<\/p>\n
steps, to comply with the judgment, with due promptitude, keeping in<\/p>\n
view the applicability of the provisions of Section 428 of the Cr.P.C., and<\/p>\n
submit compliance report, to this Court, within a period of two months,<\/p>\n
from the date of receipt of a copy thereof.\n<\/p>\n
18.         The District & Sessions Judge, Bathinda, shall ensure the<\/p>\n
compliance of directions, referred to above, by the concerned Court, and<\/p>\n
submission of report by it, within the time-frame.\n<\/p>\n
19.         The Registry shall keep track of the submission of compliance<\/p>\n
reports, and put up the papers whether the reports are received or not,<\/p>\n
within the time frame, immediately after the expiry thereof.<\/p>\n
1.12.2008                                            (SHAM SUNDER)\nVimal                                                    JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Bikkar Singh vs The State Of Punjab on 1 December, 2008 Crl. Appeal No.2083-SB of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.2083-SB of 2008 Date of Decision : 1.12.2008 Bikkar Singh S\/o Hazura Singh, ….Appellant resident of Dhaipai. Versus The State of Punjab ….Respondent […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-114414","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nBikkar Singh vs The State Of Punjab on 1 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bikkar-singh-vs-the-state-of-punjab-on-1-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bikkar Singh vs The State Of Punjab on 1 December, 2008 - 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