{"id":134350,"date":"2008-11-10T00:00:00","date_gmt":"2008-11-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-parkash-alias-billu-son-of-vs-the-state-of-haryana-on-10-november-2008"},"modified":"2017-03-25T04:22:36","modified_gmt":"2017-03-24T22:52:36","slug":"ram-parkash-alias-billu-son-of-vs-the-state-of-haryana-on-10-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-parkash-alias-billu-son-of-vs-the-state-of-haryana-on-10-november-2008","title":{"rendered":"Ram Parkash Alias Billu Son Of … vs The State Of Haryana on 10 November, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Ram Parkash Alias Billu Son Of … vs The State Of Haryana on 10 November, 2008<\/div>\n
                    Crl. Appeal No. 263-SB of 2001\n                                  1\n\n\n\n     IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                  CHANDIGARH\n\n                              Crl. Appeal No. 263-SB of 2001\n\n                              Date of Decision:November 10, 2008\n\n\n     1. Ram Parkash alias Billu son of Suraj Bhan, resident of\n        Kavi Nagar, Ghaziabad.\n     2. Vinod son of Sukhbir Singh, resident of village Pali, P.O.\n        Sardana, District Meerut.\n\n                                                .... Appellants\n\n                              Versus\n\n     The State of Haryana\n\n                                          .... Respondent\n\n\n     CORAM: HON'BLE MR. JUSTICE SHAM SUNDER\n\n     Present:     Mr. Sandeep Maan,, Advocate\n                  for Ram Parkash, appellant no.1.\n\n                  Mr. Jagjeet Beniwal, Advocate\n                  for Vinod Singh, appellant No.2.\n\n                  Mr. R.S. Arya, DAG, Haryana\n                  for the respondent.\n\n                              ****\n\nSham Sunder, J.\n<\/pre>\n
                  This appeal is directed against the judgment of<\/p>\n
     conviction    and the order of sentence dated 20.02.2001<\/p>\n
     rendered by the Court of Additional Sessions Judge, Bhiwani,<\/p>\n
     vide which it convicted the accused (now appellants), for the
\n                Crl. Appeal No. 263-SB of 2001
\n                             2<\/span><\/p>\n
offence, punishable under Section 20 of the Narcotic Drugs and<\/p>\n
Psychotropic Substances Act, 1985 (hereinafter referred to be<\/p>\n
as the ‘Act’ only) and sentenced them to undergo RI for a period<\/p>\n
of 10 years each and to pay a fine of Rs.1,00,000\/-, each in<\/p>\n
default of   payment of fine to undergo further        rigorous<\/p>\n
imprisonment, for a period of six months each, for having been<\/p>\n
found in possession of 16 Kgs charas, which falls within the<\/p>\n
ambit of commercial quantity, without any permit or licence.<\/p>\n
2.                The facts, in brief, are that on 28.04.2000<\/p>\n
Darshan Kumar,Sub Inspector\/ Station House Officer of Police<\/p>\n
Station Sadar, Bhiwani, along-with other police officials, was<\/p>\n
checking the vehicles. At about 5.30 PM, the accused came<\/p>\n
from Chang side, in a Fiat Car. They were signalled to stop, but<\/p>\n
they tried to speed away the vehicle.      However, both the<\/p>\n
accused were apprehended. Search of the car, was conducted, in<\/p>\n
the presence of Anil Dhawan, Deputy Superintendent of Police,<\/p>\n
who was called to the spot, by sending a VT message. On<\/p>\n
search of the dickey of the car, a polythene bag, containing 16<\/p>\n
Kgs charas was recovered. A sample of 100 grams charas was<\/p>\n
taken out of the polythene bag, and the remaining charas, was<\/p>\n
kept in the same polythene bag.     The sample and the bag,<\/p>\n
containing remaining charas, were converted into parcels, duly
\n                Crl. Appeal No. 263-SB of 2001
\n                             3<\/span><\/p>\n
sealed, and taken into possession,     vide a separate recovery<\/p>\n
memo. Ruqa was sent to the Police Station, on the basis<\/p>\n
whereof, the FIR was recorded.       The site plan was prepared.<\/p>\n
The statements of the witnesses were recorded. The accused<\/p>\n
were arrested. After the completion of investigation, the<\/p>\n
accused were challaned.\n<\/p>\n
3.                 On their appearance, in the Court,       the<\/p>\n
accused were supplied the copies of documents, relied upon by<\/p>\n
the prosecution. Charge under Section 20 of the Act, was<\/p>\n
framed against the accused, to which they pleaded not guilty,<\/p>\n
and claimed judicial trial.\n<\/p>\n
4.                  The prosecution, in support of its case,<\/p>\n
examined Anil Kumar, DSP,            (PW-1), a witness to the<\/p>\n
recovery, Dharam Chand, HC, ( PW-2 ), a formal witness, who<\/p>\n
tendered his affidavit Ex.PB,     Ved Parkash, C.,(PW-3), a<\/p>\n
formal witness, who tendered his affidavit Ex.PD, Ram Bilas,<\/p>\n
S.I., ( PW-4 ), who prepared the report under Section 173<\/p>\n
Cr.P.C., when he was posted as SHO at Police Station Sadar,<\/p>\n
Bhiwani, and Darshan Kumar, Inspector\/ SHO, ( PW-5 ), the<\/p>\n
Investigating Officer. Thereafter, the Public Prosecutor for the<\/p>\n
State, closed the prosecution evidence.\n<\/p>\n
                  Crl. Appeal No. 263-SB of 2001
\n                               4<\/span><\/p>\n
5.             The statements of the accused, under Section 313<\/p>\n
of the Code of Criminal Procedure, were recorded. They were<\/p>\n
put all the incriminating circumstances, appearing against<\/p>\n
them, in the prosecution evidence, and pleaded false<\/p>\n
implication.\n<\/p>\n
5-A.                Vinod Kumar, accused , in his statement<\/p>\n
under Section 313 Cr.P.C., stated that on 24.04.2001 he along<\/p>\n
with Ram Parkash, accused,          was going to village Sai<\/p>\n
( Rewari ). He further stated that the police planted this false<\/p>\n
recovery of charas against them.\n<\/p>\n
5-B.                Ram Parkash, accused, also      took up the<\/p>\n
similar plea, as was taken by Vinod Singh, accused, under<\/p>\n
Section 313 Cr.P.C. The accused, did not lead any evidence in<\/p>\n
their defence.\n<\/p>\n
6.                  After hearing the Public Prosecutor for the<\/p>\n
State, the Counsel for the accused, and, on going through the<\/p>\n
evidence, on record, the trial Court, convicted and sentenced<\/p>\n
the accused, as stated hereinbefore.\n<\/p>\n
7.                  Feeling aggrieved, against the judgment of<\/p>\n
conviction, and the order of sentence, rendered by the trial<\/p>\n
Court, the instant appeal, was filed by the appellants.\n<\/p>\n
                Crl. Appeal No. 263-SB of 2001
\n                             5<\/span><\/p>\n
8.                 I have heard the Counsel for the parties, and<\/p>\n
have gone through the evidence, and record of the case,<\/p>\n
carefully.\n<\/p>\n
9.           The Counsel for the appellants, at the very outset,<\/p>\n
submitted, that no independent witness, was joined, at the time<\/p>\n
of effecting the alleged recovery, despite availability. They<\/p>\n
further submitted that even no effort was made by the<\/p>\n
Investigating Officer, to join an independent witness. They<\/p>\n
further submitted that, as such, the case of the prosecution,<\/p>\n
became doubtful.      The submission of the Counsel for the<\/p>\n
appellants, in this regard, does not appear to be correct. There<\/p>\n
was no secret information, against the accused, that they were<\/p>\n
coming in a car, with a big haul of charas.      It was, only in<\/p>\n
routine, when the Police party was present, in connection with<\/p>\n
the   checking of vehicles that a fiat car, in which both the<\/p>\n
accused, were sitting, came.   It was, thus,a chance recovery.<\/p>\n
No doubt, Darshan Kumar, Inspector\/SHO, the Investigating<\/p>\n
Officer, when appeared, in the witness box, as PW-5, during<\/p>\n
the course of cross-examination, stated that he had tried to join<\/p>\n
public witnesses, but they had shown their inability. It means<\/p>\n
that an effort was made, to join an independent witness, but the<\/p>\n
Investigating Officer did not succeed. There is nothing, on the
\n                Crl. Appeal No. 263-SB of 2001
\n                             6<\/span><\/p>\n
record, that at the time of recovery, any independent witness<\/p>\n
was available, but he was not intentionally and deliberately<\/p>\n
joined.       If despite efforts, having been made by the<\/p>\n
Investigating Officer, he was not successful, in joining an<\/p>\n
independent witness, then his conduct could not be said to be<\/p>\n
blame-worthy. In Akmal Ahmed Vs. State of Delhi, 1999(2)<\/p>\n
RCC 297 (S.C.), it was held that, it is now well-settled that the<\/p>\n
evidence of search or seizure, made by the police will not<\/p>\n
become vitiated, solely for the reason that the same was not<\/p>\n
supported by an independent witness. In State of NCT of<\/p>\n
Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:-<\/p>\n
       “It is an archaic notion that actions of the Police officer,<\/p>\n
       should be approached with initial distrust. It is time now to<\/p>\n
       start placing at least initial trust on the actions and the<\/p>\n
       documents made by the Police. At any rate, the Court cannot<\/p>\n
       start with the presumption that the police records are<\/p>\n
       untrustworthy.   As a proposition of law, the presumption<\/p>\n
       should be the other way round. The official acts of the Police<\/p>\n
       have been regularly performed is a wise principle of<\/p>\n
       presumption and recognized even by the Legislature.”<\/p>\n<\/blockquote>\n
9-A.         In Appa Bai and another Vs. State of Gujrat,<\/p>\n
AIR 1988 S.C. 696, it was held that the prosecution story
\n                 Crl. Appeal No. 263-SB of 2001
\n                              7<\/span><\/p>\n
cannot be thrown out, on the ground, that an independent<\/p>\n
witness had not been examined, by the prosecution. It was<\/p>\n
further held, in the said authority, that the civilized people, are<\/p>\n
generally insensitive, when a crime is committed, even in<\/p>\n
their presence, and they withdraw from the victims’ side, and<\/p>\n
from the side of the vigilant. They keep themselves away<\/p>\n
from the Courts, unless it is inevitable. Moreover, they think<\/p>\n
the crime like a civil dispute, between two individuals, and do<\/p>\n
not involve themselves, in it. The principle of law, laid down,<\/p>\n
in the aforesaid authorities, is fully applicable to the facts of<\/p>\n
the present case. In these circumstances, mere non-joining of<\/p>\n
an independent witness, when the evidence of the prosecution<\/p>\n
witnesses, has been held to be cogent, convincing,<\/p>\n
creditworthy, and reliable, and there was no reason, on their<\/p>\n
part to falsely implicate the accused, no doubt, is cast on the<\/p>\n
prosecution story. In this view of the matter, the submission<\/p>\n
of the Counsel for the appellants, being without merit, must<\/p>\n
fail, and the same stands rejected.\n<\/p>\n
10.                 It was next submitted by the Counsel for<\/p>\n
the appellants, that the dickey of the car, wherefrom the<\/p>\n
alleged recovery, was effected, was not locked and, as such, it<\/p>\n
could not be said that the accused were found in conscious
\n                Crl. Appeal No. 263-SB of 2001
\n                             8<\/span><\/p>\n
possession of the recovered contraband.      The submission of<\/p>\n
the Counsel for the appellants, in this regard, does not appear<\/p>\n
to be correct. Both the accused were travelling in the same<\/p>\n
car. One of them was the driver and the other was sitting by<\/p>\n
his side.   It was not a small quantity of charas, which was<\/p>\n
lying in the dickey of the car. It was a big haul of charas,<\/p>\n
which was lying in the dickey of the car, of the accused. The<\/p>\n
accused were having special means of knowledge, with regard<\/p>\n
to the polythene bag, containing charas, lying in the dickey of<\/p>\n
the car. It was for the accused to explain, as to how the bag,<\/p>\n
containing charas, was lying in the dickey of the car, and to<\/p>\n
which destination, the same was being transported. Not only<\/p>\n
this, the conduct of the accused, is also relevant, in this case.<\/p>\n
They instead of stopping the car, when the signal was given,<\/p>\n
by the Police party, accelerated the speed thereof, and tried to<\/p>\n
speed away. Ultimately, they were apprehended along with<\/p>\n
the car. In case, there was no contraband, in the dickey of the<\/p>\n
car, and the accused were not in the knowledge of the same,<\/p>\n
then what was the necessity of trying to speed away the car,<\/p>\n
was for them to explain. This material circumstance, goes<\/p>\n
against them. Under these circumstances, it could be said that<\/p>\n
they were in possession of, and in control over the polythene
\n                Crl. Appeal No. 263-SB of 2001
\n                             9<\/span><\/p>\n
bag, lying in the car. Once the possession of the accused, and<\/p>\n
their control over the contraband, was proved, then statutory<\/p>\n
presumption under Sections 54 and 35 of the Act, operated<\/p>\n
against them, that they were in conscious possession thereof.<\/p>\n
Thereafter, it was for them, to rebut the statutory presumption,<\/p>\n
by leading cogent and convincing evidence. However, the<\/p>\n
appellants, failed to rebut the said presumption, either during<\/p>\n
the course of cross-examination of the prosecution witnesses,<\/p>\n
or by leading defence evidence.    In these circumstances, the<\/p>\n
trial Court was right, in holding that they were in conscious<\/p>\n
possession of the contraband. Sections 54 and 35 of the Act<\/p>\n
read as under :-\n<\/p>\n
      “Presumption from possession of illicit articles:- In<\/p>\n
      trials under this Act, it may be presumed, unless and<\/p>\n
      until the contrary is proved, that the accused has<\/p>\n
      committed an offence under this Act, in respect of:-<\/p>\n<\/blockquote>\n
      a)     any narcotic drug or psychotropic substance or<\/p>\n
      controlled substance;\n<\/p><\/blockquote>\n
      b)     any opium poppy, cannabis plant or coca plant<\/p>\n
      growing on any land which he has cultivated;<\/p>\n<\/blockquote>\n
      c)     any apparatus specially designed or any group<\/p>\n
      of utensils specially adopted for the manufacture of
\n                  Crl. Appeal No. 263-SB of 2001
\n                              10<\/span><\/p>\n
       any narcotic drug or psychotropic substance or<\/p>\n
       controller substance; or<\/p>\n<\/blockquote>\n
       d)      any materials which have undergone any<\/p>\n
       process towards the manufacture of a narcotic drug<\/p>\n
       or psychotropic substance or controlled substance, or<\/p>\n
       any residue left of the materials from which any<\/p>\n
       narcotic drug or psychotropic substance or controlled<\/p>\n
       substance has been manufactured,<\/p>\n
       for the possession of which he fails to account<\/p>\n
       satisfactorily.”\n<\/p><\/blockquote>\n
10-A           Section 35 which relates to the presumption of<\/p>\n
culpable mental state, is extracted as under :-<\/p>\n
“Presumption of culpable mental state:-           (1)   In any<\/p>\n
prosecution for an offence under this Act, which requires a<\/p>\n
culpable mental state of the accused, the Court shall presume<\/p>\n
the existence of such mental state but it shall be a defence for<\/p>\n
the accused to prove the fact that he had no such mental state<\/p>\n
with respect to the act charged as an offence in that<\/p>\n
prosecution.\n<\/p>\n
Explanation:- In this section “culpable mental state” includes<\/p>\n
intention, motive knowledge of a fact and belief in, or reason<\/p>\n
to believe, a fact.\n<\/p>\n
                 Crl. Appeal No. 263-SB of 2001
\n                             11<\/span><\/p>\n
(2) For the purpose of this section, a fact is said to be proved<\/p>\n
only when the court believes it to exist beyond a reasonable<\/p>\n
doubt and not merely when its existence is established by a<\/p>\n
preponderance of probability.”\n<\/p>\n
10-B.              From the conjoint reading of the provisions<\/p>\n
of Sections 54 and 35, referred to hereinbefore, it becomes<\/p>\n
abundantly clear, that once an accused, is found to be in<\/p>\n
possession of a contraband, they are presumed to have<\/p>\n
committed the offence, under the relevant provisions of the<\/p>\n
Act, until the contrary is proved. According to Section 35 of<\/p>\n
the Act ibid, the Court shall presume the existence of mental<\/p>\n
state, for the commission of an offence, and it is for the accused<\/p>\n
to prove otherwise. In Madan Lal and another Vs. State of<\/p>\n
H. P. 2003 SCC (Crl.) 1664 it was held as under:-<\/p>\n
The word “conscious” means awareness about a particular
\nfact. It is a state of mind which is deliberate or intended.\n<\/p>\n
        Once possession is established, the person who claims
\nthat it was not a conscious possession has to establish it,
\nbecause how he came to be in possession is within his special
\nknowledge. Section 35 of the Act gives a statutory recognition
\nof this position because of the presumption available in law.
\nSimilar is the position in terms of Section 54 where also
\npresumption is available to be drawn from possession of illicit
\narticles.”\n<\/p>\n
                  Crl. Appeal No. 263-SB of 2001
\n                              12<\/span><\/p>\n
10-C.               The facts of Madan Lal’s case (supra) in<\/p>\n
brief, were that accused Manjit Singh was driving the Car and<\/p>\n
the remaining four accused, were sitting therein. One steel<\/p>\n
container (dolu) in a black coloured bag, was recovered from<\/p>\n
the said Car, which contained 820 gms. charas. All the accused<\/p>\n
were convicted and sentenced by the trial Court, holding that<\/p>\n
they were found in conscious possession of charas, despite the<\/p>\n
fact, that one of the accused, admitted his conscious<\/p>\n
possession, of the contraband. The Apex Court held that the<\/p>\n
trial Court, was right, in coming to the conclusion, that the<\/p>\n
accused were found in conscious possession of charas, as they<\/p>\n
had failed to explain, as to how they were travelling in a Car<\/p>\n
together, which was not a public vehicle. The Apex Court<\/p>\n
upheld the conviction, and sentence, awarded to the accused.<\/p>\n
In the instant case, the accused failed to explain, as to how, the<\/p>\n
polythene bag,     containing charas, referred to above, was<\/p>\n
found in the dickey of the car, which was being driven by one<\/p>\n
of them. The facts of Madan Lal’s case (supra) are similar<\/p>\n
and identical to the facts of the present case. The principle of<\/p>\n
law, laid down, in Madan Lal’s case (supra),             is fully<\/p>\n
applicable to the facts of the present case. In the instant case,<\/p>\n
in   their   statements,   under   Section   313   Cr.P.C.,   the
\n                Crl. Appeal No. 263-SB of 2001
\n                            13<\/span><\/p>\n
accused\/appellants, took up the plea, only of false implication.<\/p>\n
They did not take up the plea, that they did not know the<\/p>\n
contents of the polythene bag, lying therein. The driver of the<\/p>\n
car, did not take up the plea, that he was directed by the owner,<\/p>\n
to take the polythene bag, to a certain place, and obeying his<\/p>\n
command, he was taking the same, to that destination. The<\/p>\n
other accused, did not take up the plea, that he merely took a<\/p>\n
lift in the car, as he knew the driver thereof, and did not know,<\/p>\n
as to what was contained in the polythene bag. As stated<\/p>\n
above, the accused, thus, miserably failed to rebut the statutory<\/p>\n
presumption, referred to above.        Thus,    their conscious<\/p>\n
possession, in respect of the contraband, was proved, and, as<\/p>\n
such, the submission of the Counsel for the appellants, being<\/p>\n
without merit, must fail, and the same stands rejected.<\/p>\n
11.                The Counsel for the appellants, however,<\/p>\n
placed reliance on     Jasbir Singh alias Jassa v. State of<\/p>\n
Haryana, 2008(3) RCR ( Criminal ) 42, decided by a Single<\/p>\n
Bench of this Court, wherein, it was held that the accused was<\/p>\n
not found in conscious possession of the contraband, recovered<\/p>\n
from the vehicle. Ultimately, that appeal was accepted and the<\/p>\n
appellant was acquitted. The facts of the aforesaid authority,<\/p>\n
are completely distinguishable, from the facts of the present
\n                Crl. Appeal No. 263-SB of 2001
\n                            14<\/span><\/p>\n
case. Even otherwise, in view of the principle of law, laid down<\/p>\n
in Madan Lal’s case ( supra ), decided by the Apex Court,<\/p>\n
on the same point, contrary principle of      law, laid down, in<\/p>\n
Jasbir Singh’s case ( supra ), decided by this Court, shall not<\/p>\n
hold the field.   No help, therefore, can be drawn, by the<\/p>\n
Counsel for the appellants, from the ratio of law, laid down, in<\/p>\n
the authority, cited by them, and referred to above. In this<\/p>\n
view of the matter, the submission of the Counsel for the<\/p>\n
appellants, being without merit, must fail, and the same stands<\/p>\n
rejected.\n<\/p>\n
12.                      It was next submitted by the Counsel<\/p>\n
for the appellants, that no effort was made by the Investigating<\/p>\n
Officer to trace the owner of the vehicle, in question, and, as<\/p>\n
such, the accused, did not commit any offence punishable<\/p>\n
under Section 20 of the Act. The submission of the Counsel<\/p>\n
for the appellants, in this regard, does not appear to be correct.<\/p>\n
No doubt, no effort was made, by the Investigating officer, to<\/p>\n
trace the owner and to find out as to whether he ( owner )<\/p>\n
intentionally permitted the use of the car, for transporting the<\/p>\n
contraband. Such an irregularity or illegality, committed by the<\/p>\n
Investigating Officer, during the course of investigation, did<\/p>\n
not mean that the accused did not commit any offence. If, on
\n                Crl. Appeal No. 263-SB of 2001
\n                            15<\/span><\/p>\n
account of irregularity or illegality,    during the course of<\/p>\n
investigation,committed by the Investigating Officer, benefit of<\/p>\n
doubt is given to the accused, then         every dishonest or<\/p>\n
negligent Investigating Officer, will certainly leave lacunae, in<\/p>\n
the case of the prosecution, so as to create an escape route for<\/p>\n
the accused. The Court is not to play, in the hands of the<\/p>\n
investigating Officer.   If the Court comes to the conclusion,<\/p>\n
that such an illegality or irregularity was committed by the<\/p>\n
Investigating Officer, with a view to help the accused, then the<\/p>\n
same can certainly be ignored. In this case, this Court has<\/p>\n
reached the aforesaid conclusion.        At the most, if the<\/p>\n
Investigating Officer had traced the owner of the car, after<\/p>\n
finding that he permitted the use thereof knowingly, for<\/p>\n
transporting the contraband, he(owner) could be challaned<\/p>\n
under Section 25 of the Act. However, the liability of the<\/p>\n
accused, who were found in conscious possession of the<\/p>\n
polythene bag, containing charas, could not be diluted. No<\/p>\n
prejudice, whatsoever, was caused to the accused, on account<\/p>\n
of non-tracing of the owner of the car, nor it was the case of<\/p>\n
the accused, in their statements under Section 313 Cr.P.C., that<\/p>\n
they were transporting the contraband, in the car, at the<\/p>\n
instance of the owner thereof. The appellants, thus, committed
\n                 Crl. Appeal No. 263-SB of 2001
\n                             16<\/span><\/p>\n
the offence under Section 20 of the Act. In this view of the<\/p>\n
matter, the submission of the Counsel for the appellants, being<\/p>\n
without merit, must fail, and the same stands rejected.<\/p>\n
13.                 It was next submitted by the Counsel for the<\/p>\n
appellants, that CFSL form, was not prepared, at the spot, by<\/p>\n
the investigating officer, and, as such, the link in the chain of<\/p>\n
prosecution evidence, became incomplete. He further submitted<\/p>\n
that non-preparation of CFSL Form, at the spot, cast a cloud of<\/p>\n
doubt, on the prosecution case, as also caused a prejudice to the<\/p>\n
accused. He also placed reliance on Bhola Singh v. State of<\/p>\n
Punjab, 2005(2) RCR 520, in support of his contention. It may<\/p>\n
be stated here, that there is no provision in the Act, as also in<\/p>\n
the Rules, framed thereunder, that the aforesaid form, should be<\/p>\n
prepared, at the spot, and if it is not so prepared, then the trial,<\/p>\n
conviction and sentence shall stand vitiated. The form is<\/p>\n
required to be prepared, so as to send the same, along with the<\/p>\n
sample parcel. Under these circumstances, if the same was not<\/p>\n
prepared, at the spot, that did not transgress any provision of<\/p>\n
the Act, or the Rules framed thereunder.             Under these<\/p>\n
circumstances, the Investigating Officer, did not commit any<\/p>\n
irregularity or illegality, in not preparing the form, aforesaid, at<\/p>\n
the spot, and rather preparing the same later on, at the time of
\n                  Crl. Appeal No. 263-SB of 2001
\n                              17<\/span><\/p>\n
sending the sample parcel, to the Forensic Science Laboratory.<\/p>\n
No prejudice has been caused to the appellant, on account of<\/p>\n
non-preparation the said form, at the spot. The other evidence,<\/p>\n
as stated above, is reliable and trust-worthy that none tampered<\/p>\n
with the sample parcel, until the same reached the office of the<\/p>\n
Forensic Science Laboratory. No help, therefore, can be drawn<\/p>\n
by the Counsel for the appellants, therefrom. In this view of<\/p>\n
the matter, the submission of the Counsel for the appellants,<\/p>\n
being without merit, must fail, and the same stands rejected.<\/p>\n
14.                 It was next submitted by the Counsel for the<\/p>\n
appellants that only one sample was taken out of the charas,<\/p>\n
allegedly recovered, whereas, the requirement of law, was to<\/p>\n
take two samples. They further submitted that, on account of<\/p>\n
this reason, a prejudice was caused to the accused.             The<\/p>\n
submission of the Counsel for the appellants, does not appear<\/p>\n
to be correct.     There is no provision, in the Act, or in the<\/p>\n
Rules, framed thereunder, that two samples, from the<\/p>\n
contraband, should be taken.       The purpose of taking the<\/p>\n
sample, is only to send the same to the Laboratory, for the<\/p>\n
purpose of analysis. In the instant case, the Forensic Science<\/p>\n
Laboratory analyzed the same, and came to the conclusion, that<\/p>\n
the same constituted charas. Had the quantity of the sample
\n                Crl. Appeal No. 263-SB of 2001
\n                            18<\/span><\/p>\n
been found to be insufficient, by the Laboratory, it would not<\/p>\n
have been analyzed the same, and sent back the same. On<\/p>\n
account of drawing of one sample only, from the recovered<\/p>\n
charas, no prejudice, whatsoever, was shown to have been<\/p>\n
caused, to the accused. The submission of the Counsel for the<\/p>\n
appellants, being without merit, must fail, and the same stands<\/p>\n
rejected.\n<\/p>\n
15.               It was next submitted by the Counsel for<\/p>\n
the appellants, that the sample parcel was sent after about<\/p>\n
seven days, whereas, it was required to be sent to the<\/p>\n
Laboratory, within 72 hours. They further submitted that, as<\/p>\n
such, the possibility of tampering with the same, could not be<\/p>\n
ruled out. The submission of the Counsel for the appellants,<\/p>\n
in this regard, does not appear to be correct. There is no<\/p>\n
provision in the Act, or in the Rules, framed thereunder, that<\/p>\n
the sample was sent within 72 hours to the Laboratory. The<\/p>\n
instructions, issued by the concerned department, do not have<\/p>\n
the force of law and are not binding on the Courts. Those<\/p>\n
instructions, are only for their guidelines. Had there been any<\/p>\n
provision of law that the sample should be sent within 72<\/p>\n
hours, on account of non-compliance with that provision, the<\/p>\n
possibility of tampering with the sample, until the same
\n                Crl. Appeal No. 263-SB of 2001
\n                            19<\/span><\/p>\n
reached the office of the Forensic Science Laboratory, may<\/p>\n
not have been ruled out. It is, no doubt, true that there is no<\/p>\n
explanation, with regard to delay. However, mere delay, in<\/p>\n
itself, is not sufficient to come to the conclusion, that the<\/p>\n
sample parcel was tampered with, until the same reached the<\/p>\n
office of the Forensic Science Laboratory. The other<\/p>\n
evidence, produced by the prosecution, is cogent, convincing,<\/p>\n
reliable and trustworthy. From the other evidence, it was<\/p>\n
proved that none tampered with the sample, until the same<\/p>\n
reached the office of the Forensic Science Laboratory. Even,<\/p>\n
there is report of the Laboratory Ex.PE, which clearly proves<\/p>\n
that the seals on the exhibits were intact, on arrival, till the<\/p>\n
time of their analysis and agreed with the specimen<\/p>\n
impression of the seals. The report Ex.PE of the Forensic<\/p>\n
Science Laboratory is per-se admissible, in toto, under<\/p>\n
Section 293 of the Code of criminal Procedure.      There is no<\/p>\n
challenge to the report of the Forensic Science Laboratory, in<\/p>\n
this case. In State of Orissa Vs. Kanduri Sahoo 2004(1)<\/p>\n
RCR (Criminal) 196 (S.C.), it was held that mere delay in<\/p>\n
sending the samples to the Laboratory, is not fatal, where<\/p>\n
there is evidence that the seized articles remained in safe<\/p>\n
custody. Since, it was proved that none tampered with the
\n                Crl. Appeal No. 263-SB of 2001
\n                            20<\/span><\/p>\n
sample, until the same was received, in the office of the<\/p>\n
Forensic Science Laboratory, the submission of the Counsel<\/p>\n
for the appellants, merely based on conjectures, does not hold<\/p>\n
good. The principle of law, laid down,        in the aforesaid<\/p>\n
authority, is fully applicable to the facts of the instant case.<\/p>\n
The submission of the Counsel for the appellants, in this<\/p>\n
regard, being without merit, must fail, and the same stands<\/p>\n
rejected.\n<\/p>\n
16.                It was next submitted by the Counsel for<\/p>\n
the appellants, that when the case property was produced, in<\/p>\n
the Court, the same did not carry any chit, containing the<\/p>\n
details of the FIR,       Police Station etc..    They further<\/p>\n
submitted that, under these circumstances, it could not be said<\/p>\n
that the case property produced, in the Court, at the time of<\/p>\n
evidence of the prosecution witnesses, was the same, as was<\/p>\n
allegedly recovered, from the accused.           They further<\/p>\n
submitted that, under these circumstances, it could be said<\/p>\n
that no recovery, whatsoever, was effected from the accused,<\/p>\n
but they were falsely implicated, in the instant case. The<\/p>\n
submission of the Counsel for the appellants, in this regard,<\/p>\n
does not appear to be correct. The recovery, in this case, was<\/p>\n
effected on 28.04.2000, whereas, the case property was, in the
\n                Crl. Appeal No. 263-SB of 2001
\n                            21<\/span><\/p>\n
first instance, produced, in the Court, at the time of the<\/p>\n
evidence of Anil Kumar, DSP, HQ, Kurukshetra, ( PW1 ) on<\/p>\n
02.11.2000. It means that he was examined seven months<\/p>\n
after the date of recovery. The case property remained lying<\/p>\n
in the malkhana, where the case properties of other cases,<\/p>\n
were also lying. On account of shortage of space, in the<\/p>\n
malkhanas, the case properties of the cases, cannot be stacked<\/p>\n
properly. If, on account of irresponsible handling, lapse of<\/p>\n
sufficient time, between the date of recovery, and production<\/p>\n
of the case property, in the Court, and during the course of<\/p>\n
transit, the chits affixed, on the bag, containing charas,<\/p>\n
underwent the process of decay, that did not mean that the<\/p>\n
case property, produced in the Court, did not stand connected<\/p>\n
with the case. Anil Kumar, DSP ( PW1 ), in clear-cut terms,<\/p>\n
stated that the polythene bag, containing charas, produced, in<\/p>\n
the Court, was the same, as was recovered from the car, being<\/p>\n
driven by one of the accused. The only obligation, upon the<\/p>\n
prosecution, is to produce the case property, in the Court, and<\/p>\n
get it identified, from the prosecution witnesses, so as to<\/p>\n
connect the same with the case.      In the instant case, the<\/p>\n
prosecution produced the witnesses, who identified the case<\/p>\n
property, as the same, as was recovered from the accused.\n<\/p>\n
                 Crl. Appeal No. 263-SB of 2001
\n                             22<\/span><\/p>\n
Under these circumstances, the case property produced, in the<\/p>\n
Court, stood duly connected with the case.       In this view of<\/p>\n
the matter, the submission of the Counsel for the appellants,<\/p>\n
being without merit, must fail, and the same stands rejected.<\/p>\n
17.                It was next submitted by the Counsel for<\/p>\n
the appellants, that the seal, after use, was handed over to Om<\/p>\n
Parkash, ASI, a Police official, who was not examined, by the<\/p>\n
Investigating Officer, as a result whereof, the possibility of<\/p>\n
tampering with the sample parcel, which was sent to the office<\/p>\n
of the Forensic Science Laboratory, after a period of seven<\/p>\n
days, could not be ruled out. The submission of the Counsel<\/p>\n
for the appellants, in this regard, does not appear to be correct.<\/p>\n
As stated above, no independent witness could be joined, for<\/p>\n
the reasons, referred to above, at the time of search and<\/p>\n
seizure. It was, under these circumstances that the seal after<\/p>\n
use was handed over to another Police official, a member of<\/p>\n
the party. Thus, the possibility of the tampering with the<\/p>\n
sample parcel, until the same reached         the office of the<\/p>\n
Chemical Examiner, did not at all arise. In Piara Singh Vs.<\/p>\n
The State of Punjab 1982 C.L.R. (2) 447, a case decided by a<\/p>\n
Full Bench of this Court, the seal, on the sample of illicit<\/p>\n
liquor, recovered from the accused, was not entrusted to an
\n                    Crl. Appeal No. 263-SB of 2001
\n                                23<\/span><\/p>\n
independent person forthwith.        Similarly, the independent<\/p>\n
person, though entrusted with the seal, by the Investigating<\/p>\n
Officer, later on, was not produced as a witness. In these<\/p>\n
circumstances, it was held that this fact alone, was not<\/p>\n
sufficient to affect the merits of the trial, and the prosecution<\/p>\n
case, could not be thrown out, on that score alone. It was<\/p>\n
further held, in this case, that it was not incumbent upon the<\/p>\n
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<\/p>\n
obligatory upon him, to produce such person, as a witness,<\/p>\n
during trial, as there is no statutory requirement, whatsoever,<\/p>\n
to this effect.      The principle of law, laid down, in the<\/p>\n
aforesaid authority, is fully applicable to the facts of the<\/p>\n
present case. From the cogent, convincing, reliable, and<\/p>\n
trustworthy evidence, produced by the prosecution, the<\/p>\n
completion of link evidence was proved. In this view of the<\/p>\n
matter, the finding of the trial Court, is endorsed.<\/p>\n
18.                   No other point, was urged, by the Counsel<\/p>\n
for the parties.\n<\/p>\n
19.                   In view of the above discussion, it is held<\/p>\n
that the judgment of conviction and the order of sentence,<\/p>\n
rendered by the trial Court, are based on the correct
\n                Crl. Appeal No. 263-SB of 2001
\n                            24<\/span><\/p>\n
appreciation of evidence, and law, on the point. The same do<\/p>\n
not warrant any interference. The same are liable to be upheld.<\/p>\n
20.                For the reasons recorded, hereinbefore, the<\/p>\n
appeal is dismissed. The judgment of conviction and the<\/p>\n
order of sentence, dated 20.02.2001, are upheld.        The Chief<\/p>\n
Judicial Magistrate, shall take necessary steps, in accordance<\/p>\n
with the provisions of law, to comply with the judgment, within<\/p>\n
two months, from the date of receipt of a certified copy of the<\/p>\n
same, keeping in view the applicability of the provisions of<\/p>\n
Section 428 of the Code of Criminal Procedure, and send the<\/p>\n
compliance report immediately thereafter.<\/p>\n
21.                The District & Sessions Judge, Bhiwani, is<\/p>\n
also directed to ensure that the directions, referred to above,<\/p>\n
are complied with, within the time-frame, and the compliance<\/p>\n
report is sent immediately thereafter, to this Court.<\/p>\n
22.                The Registry shall keep track of the matter,<\/p>\n
and put up the action taken report, if received, within the time<\/p>\n
frame. Even if, the same is not received, within the time frame,<\/p>\n
the matter shall be put up, within 10 days, after the expiry of the<\/p>\n
same.\n<\/p>\n<\/p>\n
10.11.2008                      (SHAM SUNDER)\ndinesh                              JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Ram Parkash Alias Billu Son Of … vs The State Of Haryana on 10 November, 2008 Crl. Appeal No. 263-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 263-SB of 2001 Date of Decision:November 10, 2008 1. Ram Parkash alias Billu son of Suraj […]<\/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-134350","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nRam Parkash Alias Billu Son Of ... vs The State Of Haryana on 10 November, 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\/ram-parkash-alias-billu-son-of-vs-the-state-of-haryana-on-10-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Parkash Alias Billu Son Of ... vs The State Of Haryana on 10 November, 2008 - 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