{"id":183024,"date":"2008-07-31T00:00:00","date_gmt":"2008-07-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sham-singh-son-of-ganga-ram-vs-the-state-of-punjab-on-31-july-2008"},"modified":"2015-03-11T17:55:43","modified_gmt":"2015-03-11T12:25:43","slug":"sham-singh-son-of-ganga-ram-vs-the-state-of-punjab-on-31-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sham-singh-son-of-ganga-ram-vs-the-state-of-punjab-on-31-july-2008","title":{"rendered":"Sham Singh Son Of Ganga Ram vs The State Of Punjab on 31 July, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Sham Singh Son Of Ganga Ram vs The State Of Punjab on 31 July, 2008<\/div>\n
               Crl. Appeal No. 484-SB of 1997\n                                1\n\n\n\n\nIN THE HIGH COURT OF PUNJAB & HARYANA,\n             CHANDIGARH\n\n\n                                Crl. Appeal No. 484-SB of 1997\n                                Date of decision. 31.07.2008\n\n\nSham Singh son of Ganga Ram, r\/o H. No. 1991, Colony\nMahant Mool Singh Babeksar Road, Amritsar.\n\n\n                                             ....... Appellant\n\n                   Versus\n\n\nThe State of Punjab\n\n                                             ........ Respondent\n\n\nCORAM: HON'BLE MR. JUSTICE SHAM SUNDER\n\n\nPresent:     Mr. P.S. Hundal, Senior , Advocate with\n             Mr. R.S. Sidhu, Advocate\n             for the appellant.\n\n             Mr. S.S. Bhullar, DAG, Punjab\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 05.06.1997,<\/p>\n
rendered by the Court of Additional Sessions Judge, Amritsar,<\/p>\n
vide which it convicted the accused (now appellant), for the<\/p>\n
offence, punishable under Section 18 of the Narcotic Drugs and
\n                Crl. Appeal No. 484-SB of 1997
\n                               2<\/span><\/p>\n
Psychotropic Substances Act, 1985 (hereinafter referred to be<\/p>\n
as the ‘Act’ only) and sentenced him to undergo RI for a period<\/p>\n
of 10 years and to pay a fine of Rs. 1 lac, in default of payment<\/p>\n
of fine to undergo further rigorous imprisonment, for a period<\/p>\n
of two years, for having been found in possession of 5 KGs<\/p>\n
opium, without any permit or licence.\n<\/p>\n
2.                 The facts, in brief, are that on 31.07.1996<\/p>\n
Inspector Joga Singh along with Assistant Sub Inspector<\/p>\n
Gurinder Pal Singh, and other police officials, was present<\/p>\n
outside Kot Baba Deep Singh, Amritsar, in connection with<\/p>\n
patrol duty and in search of bad elements, in a Government<\/p>\n
vehicle.   Gurbachan Singh son of Vir Singh, independent<\/p>\n
witness, was joined with     the police party.   Thereafter, the<\/p>\n
police party was going towards Anterjami Colony in connection<\/p>\n
with patrol duty and when it reached near the bridge of dirty<\/p>\n
drain, near cremation ground, one person was noticed coming<\/p>\n
from the opposite side, holding one bag (Jhola), in his right<\/p>\n
hand, on foot.     On seeing the police party, the accused<\/p>\n
immediately turned back, but was apprehended. He disclosed<\/p>\n
his name    as Sham Singh son of Ganga Ram, r\/o Colony<\/p>\n
Mahani Mool singh, Bibeksar, Amritsar.        The search of the<\/p>\n
bag ( thela ) being carried by the accused, was conducted in the<\/p>\n
presence of DSP Varinderpal Singh, who was called to the spot
\n                  Crl. Appeal No. 484-SB of 1997
\n                                3<\/span><\/p>\n
by sending a message, as a result whereof, 5 Kgs opium was<\/p>\n
recovered.      A sample of 50 grams of opium, was taken out,<\/p>\n
from the bag. The remaining contents of the bag were put into<\/p>\n
a separate container. The container, containing the remaining<\/p>\n
opium, and the sample, were converted into parcels,        duly<\/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 accused was arrested. The statements of the witnesses were<\/p>\n
recorded.    After the completion of investigation, the accused<\/p>\n
was challaned.\n<\/p>\n
3.                  On his appearance, in the Court, the accused<\/p>\n
was supplied the copies of documents, relied upon by the<\/p>\n
prosecution. Charge under Section 18 of the Act, was framed<\/p>\n
against the accused,      to which he pleaded not guilty and<\/p>\n
claimed judicial trial.\n<\/p>\n
4.                   The prosecution, in support of its case,<\/p>\n
examined Varinder Pal Singh, DSP, (PW-1), a witness to the<\/p>\n
recovery, Joga Singh, Inspector, (PW-2), the Investigating<\/p>\n
Officer and Ramesh Kumar, Constable, (PW-3), who tendered<\/p>\n
his affidavit       Ex.PF.    Thereafter Gurbachan Singh,<\/p>\n
independent witness, was given up by Public Prosecutor for<\/p>\n
the State, as having been won over by the accused. He
\n                Crl. Appeal No. 484-SB of 1997
\n                               4<\/span><\/p>\n
tendered into evidence report of the Chemical Examiner<\/p>\n
Ex.PG and closed the prosecution evidence.<\/p>\n
5.                 The statement of the accused, under<\/p>\n
Section 313 of the Code of Criminal Procedure, was recorded.<\/p>\n
He was put all the incriminating circumstances, appearing<\/p>\n
against him, in the prosecution evidence. He pleaded false<\/p>\n
implication.\n<\/p>\n
5-A.               In his defence, the accused       examined<\/p>\n
Ashwani Kumar, HC, DW1, Girdhari Lal, Constable, DW2,<\/p>\n
Ravinder Pal, Clerk, DW3, and G.S. Nischal, DW4.<\/p>\n
Thereafter, the defence evidence was closed.<\/p>\n
6.                 After   hearing   the   Additional    Public<\/p>\n
Prosecutor for the State, the Counsel for the accused, and, on<\/p>\n
going through the evidence, on record, the trial Court,<\/p>\n
convicted and sentenced the accused, as stated hereinbefore.<\/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 accused-appellant.<\/p>\n
8.                 I have heard the Counsel for the parties,<\/p>\n
and have gone through the evidence and record of the case,<\/p>\n
carefully.\n<\/p>\n
                Crl. Appeal No. 484-SB of 1997
\n                                5<\/span><\/p>\n
9.                 The Counsel for the appellant, at the very<\/p>\n
outset, vehemently, contended that one Gurbachan Singh,<\/p>\n
independent witness      though joined by the Investigating<\/p>\n
Officer, at the time of the alleged search and seizure, yet he<\/p>\n
was not examined.         He further submitted that non-<\/p>\n
examination of this witness, proved fatal to the case of the<\/p>\n
prosecution. He also submitted that he was a witness in 5 to 6<\/p>\n
cases of the police. It is, no doubt, true that Gurbachan Singh,<\/p>\n
independent witness was joined, at the time of search and<\/p>\n
seizure, yet he was given up, by the Public Prosecutor for the<\/p>\n
State,   as won over by the accused, as he came to the<\/p>\n
conclusion, that he was not going to support the case of the<\/p>\n
prosecution. The Public Prosecutor for the State is the master<\/p>\n
of the case. It was for him to decide as to which witness he<\/p>\n
wanted to examine and which witness he did not want to<\/p>\n
examine. The Public Prosecutor for the State, exercised the<\/p>\n
discretion, vested in him, in giving up Gurbachan Singh,<\/p>\n
independent witness, as won over by the accused with a<\/p>\n
bonafide motive. It could not be said that discretion exercised<\/p>\n
by the Public Prosecutor for the State, in giving up Gurbachan<\/p>\n
Singh, as won over by the accused, was, in any way arbitrary<\/p>\n
or capricious. The evidence of the prosecution witnesses, is<\/p>\n
creditworthy, and inspires confidence, in the mind of the<\/p>\n
Court. In Masalti Vs. State of Uttar Pradesh, AIR 1965
\n                 Crl. Appeal No. 484-SB of 1997
\n                                 6<\/span><\/p>\n
(S.C.) 202, it was held that it is, undoubtedly, the duty of the<\/p>\n
prosecution to lay before the Court, all material witnesses,<\/p>\n
available to it, whose evidence is necessary for unfolding its<\/p>\n
case, but it would be unsound to lay down it, as a general rule,<\/p>\n
that every witness, must be examined, even though his<\/p>\n
evidence, may not be very material or, even if, it is known that<\/p>\n
he has been won over or terrorized. In Roop Singh Vs. State<\/p>\n
of Punjab 1996 (1) RCR 146, a Division Bench of this Court,<\/p>\n
held that no adverse inference can be drawn, when the only<\/p>\n
independent witness, was given up by the prosecution, as won<\/p>\n
over by the accused. It was further held, in the said authority,<\/p>\n
that the panch witnesses, being human beings, are quite<\/p>\n
exposed and vulnerable to human feelings of yielding,<\/p>\n
browbeating, threats and inducements and giving up of the<\/p>\n
public witnesses, as won over, is fully justified, in the present<\/p>\n
day situation, prevailing in the society. In Karnail Singh Vs.<\/p>\n
State of Punjab 1983 Criminal Law Journal, 1218, a<\/p>\n
Division Bench of this Court, held that where the independent<\/p>\n
witness, was won over by the accused, and only the officials<\/p>\n
witnesses, were examined, who were considered to be not<\/p>\n
interested persons, their evidence cannot be doubted, on the<\/p>\n
ground of their official status. The principle of law, laid<\/p>\n
down, in the said authorities, is fully applicable to the facts of<\/p>\n
the present case. In this view of the matter, the submission of
\n                Crl. Appeal No. 484-SB of 1997
\n                                7<\/span><\/p>\n
the Counsel for the appellant, being without merit, must fail,<\/p>\n
and the same stands rejected.\n<\/p>\n
10.         Now coming to the second contention of the<\/p>\n
Counsel for the appellant that Gurbachan Singh, had appeared<\/p>\n
in 5 to 6 cases of the prosecution and, as such, he was a stock<\/p>\n
witness, it may be stated here, that the same is not correct.<\/p>\n
The mere fact that Gurbachan Singh appeared in 5 to 6 cases<\/p>\n
of the prosecution, did not mean that he was a stock witness.<\/p>\n
He might have witnessed the recovery, in those cases, and, as<\/p>\n
such, he was cited as a witness. However, no Court declared<\/p>\n
that he was a stock witness. In this view of the matter, the<\/p>\n
submission of the Counsel for the appellant, being without<\/p>\n
merit, must fail, and the same stands rejected.<\/p>\n
11.                It was next submitted by the Counsel for<\/p>\n
the appellant, that though the alleged recovery was effected in<\/p>\n
this case on 31.07.1996, yet the sample was sent to the office<\/p>\n
of Chemical Examiner on 06.08.1996 i.e. after the delay of<\/p>\n
seven days.      He further submitted that there was no<\/p>\n
explanation, with regard to delay, in sending the sample, to<\/p>\n
the office of the Chemical Examiner. He further submitted<\/p>\n
that, under these circumstances, the possibility of tampering<\/p>\n
with the sample, until the same reached the office of the<\/p>\n
Chemical Examiner, especially when the seal after use was<\/p>\n
handed over to the police officials, could not be ruled out. It
\n                 Crl. Appeal No. 484-SB of 1997
\n                                 8<\/span><\/p>\n
is, no doubt, true that there is no explanation, with regard to<\/p>\n
delay. However, mere delay, in itself, is not sufficient to<\/p>\n
come to the conclusion that the sample parcel was tampered<\/p>\n
with, until the same reached the office of the Chemical<\/p>\n
Examiner. Other evidence, produced by the prosecution, has<\/p>\n
been held to be cogent, convincing, reliable and trustworthy.<\/p>\n
From the other evidence, it was proved that none tampered<\/p>\n
with the sample until the same reached the office of the<\/p>\n
Chemical Examiner. Even there is report of the Chemical<\/p>\n
Examiner Ex.PG, which clearly proves that the seals on the<\/p>\n
exhibit, were intact, on arrival, till the time of its analysis and<\/p>\n
agreed with the specimen impression of the seals. The report<\/p>\n
Ex.PG of the Chemical Examiner is per-se admissible, in<\/p>\n
toto, under Section 293 of the Code of criminal Procedure.<\/p>\n
There is no challenge to the report of the Chemical Examiner,<\/p>\n
in 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 sample to the Laboratory, is not fatal, where there<\/p>\n
is evidence that the seized articles remained in safe custody.<\/p>\n
Since, it was proved that none tampered with the sample, until<\/p>\n
the same was received, in the office of the Chemical<\/p>\n
Examiner, the submission of the Counsel for the appellant,<\/p>\n
merely based on       conjectures, does not hold good. The<\/p>\n
principle of law, laid down, in the aforesaid authority, is fully
\n                Crl. Appeal No. 484-SB of 1997
\n                                9<\/span><\/p>\n
applicable to the facts of the instant case. Since it was proved<\/p>\n
that none tampered with the sample, until the same reached<\/p>\n
the office of the Chemical Examiner, the submission of the<\/p>\n
Counsel for the appellant, in this regard, being without merit,<\/p>\n
must fail, and the same stands rejected.\n<\/p>\n
12.                The Counsel for the appellant, however,<\/p>\n
placed reliance on Kaur Singh v. State of Punjab 2007(2)<\/p>\n
RCR (Criminal) 630 to contend that unexplained delay in<\/p>\n
sending the sample to the office of the Chemical Examiner,<\/p>\n
must prove fatal to the case of the prosecution. The perusal of<\/p>\n
the facts of Kaur Singh’s case ( supra ) , decided by a<\/p>\n
Single Bench of this Court, clearly goes to show that the other<\/p>\n
evidence produced by the prosecution to prove the link<\/p>\n
evidence, was found to be deficient and unreliable. There<\/p>\n
were so many other       infirmities, in the prosecution case.<\/p>\n
Taking into consideration the facts and circumstances,<\/p>\n
prevailing therein, it was held that delay in sending the<\/p>\n
sample to the Forensic Science Laboratory, was sufficient to<\/p>\n
hold that the sample was tampered with, until the same<\/p>\n
reached the office of the Chemical Examiner.              Even<\/p>\n
otherwise, the principle of law, laid down, in Kaur Singh’s<\/p>\n
case ( supra ) on the same point, being contrary, to the<\/p>\n
principle of law, laid down,        in   State of Orissa’s case
\n                Crl. Appeal No. 484-SB of 1997
\n                               10<\/span><\/p>\n
(supra), decided by the Apex Court, shall not hold the field.<\/p>\n
No help, therefore, can be drawn, by the Counsel for the<\/p>\n
appellant, from Kaur Singh’s case ( supra ). In this view of<\/p>\n
the matter, the submission of the Counsel for the appellant,<\/p>\n
being without merit, must fail, and the same stands rejected.<\/p>\n
13.                It was next submitted by the Counsel for<\/p>\n
the appellant, that the seal after use, was not given to the<\/p>\n
independent witness. He further submitted that, on the other<\/p>\n
hand, it was given to the ASI by the Investigating Officer,<\/p>\n
who returned the same to him within two days of the<\/p>\n
recovery.       He further submitted that, under these<\/p>\n
circumstances, the possibility of tampering with the contents<\/p>\n
of the sample, until it reached the office of the Chemical<\/p>\n
Examiner, could not be ruled out. It was not necessary, on the<\/p>\n
part of the Investigating Officer, to hand over the seal to the<\/p>\n
independent witness.    An Investigating Officer, cannot be<\/p>\n
expected to keep a number of seals with him, as he is to detect<\/p>\n
the crime, and effect recoveries, in a large number of cases.<\/p>\n
In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447,<\/p>\n
a case decided by a Full Bench of this Court, the seal, on the<\/p>\n
sample of illicit liquor, recovered from the accused, was not<\/p>\n
entrusted to an independent person forthwith. Similarly, the<\/p>\n
independent person, though entrusted with the seal, by the<\/p>\n
Investigating Officer, later on, was not produced as a witness.\n<\/p>\n
                 Crl. Appeal No. 484-SB of 1997
\n                                   11<\/span><\/p>\n
In these circumstances, it was held that this fact alone, was<\/p>\n
not sufficient to affect the merits of the trial, and the<\/p>\n
prosecution case, could not be thrown out, on that score alone.<\/p>\n
It was further held, in this case, that it was not incumbent<\/p>\n
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<\/p>\n
obligatory upon him, to produce such person, as a witness,<\/p>\n
during trial, as there was no statutory requirement,<\/p>\n
whatsoever, to this effect. The principle of law, laid down, in<\/p>\n
the aforesaid authority, is fully applicable to the facts of the<\/p>\n
present case. Non-examination of an independent witness, by<\/p>\n
the prosecution, in view of the cogent, convincing, reliable,<\/p>\n
and trustworthy evidence, produced by the prosecution,<\/p>\n
regarding the completion of link evidence, did not at all affect<\/p>\n
the merits of the case. In this view of the matter, the finding<\/p>\n
of the trial Court, is endorsed.\n<\/p>\n
14.                 The Counsel for the appellant, however,<\/p>\n
placed reliance on Bhola Singh v. State of Punjab 2005(2)<\/p>\n
RCR (Criminal) 520 to contend that if seal is not given to an<\/p>\n
independent witness,       but      is kept by the Investigating<\/p>\n
Officer, then the possibility of tampering with the contraband,<\/p>\n
could not be ruled out. The perusal of the facts of the case,<\/p>\n
aforesaid, clearly goes to show that there were so many other
\n                    Crl. Appeal No. 484-SB of 1997
\n                                   12<\/span><\/p>\n
infirmities, therein, and after taking into consideration the<\/p>\n
same, the Court came to the conclusion, that the chances of<\/p>\n
tampering with the sample parcel until the same reached the<\/p>\n
office of the Chemical Examiner , could not be ruled out. The<\/p>\n
facts of the aforesaid authority, are distinguishable, from the<\/p>\n
facts of the present case.      Even otherwise, in view of the<\/p>\n
principle of law, laid down, in Piara Singh’s case ( supra ),<\/p>\n
decided by a Full Bench of this Court, any contrary principle<\/p>\n
of law, on the same point, laid down in Bhola Singh’s case<\/p>\n
( supra ), decided by a Single Bench of this Court, does not<\/p>\n
hold the field.\n<\/p>\n
15.                   No other point, was urged, by the Counsel<\/p>\n
for the parties.\n<\/p>\n
16.                   In view of the above discussion, it<\/p>\n
is held that the judgment of conviction and the order of<\/p>\n
sentence, rendered by the trial Court, are based on the<\/p>\n
correct appreciation of evidence, and law, on the point.<\/p>\n
The same do not warrant any interference. The same<\/p>\n
are liable to be upheld.\n<\/p>\n
17.                   For    the        reasons   recorded,<\/p>\n
hereinbefore, the appeal is dismissed. The judgment<\/p>\n
of conviction, and the order of sentence, dated<\/p>\n
05.06.1997, are upheld. If the appellant is on bail, his
\n                    Crl. Appeal No. 484-SB of 1997
\n                                  13<\/span><\/p>\n
     bail bonds shall stand cancelled. The Chief Judicial<\/p>\n
     Magistrate, shall take necessary steps, in accordance<\/p>\n
     with the provisions of law, to comply with the<\/p>\n
     judgment, within two months, from the date of receipt<\/p>\n
     of a certified copy of the judgment, keeping in view<\/p>\n
     the applicability of the provisions of Section 428 of<\/p>\n
     the Code of Criminal Procedure.\n<\/p>\n<\/p>\n
                                              (SHAM SUNDER)
\n                                                  JUDGE
\nJuly 31, 2008
\ndinesh\n <\/p>\n","protected":false},"excerpt":{"rendered":"
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 1 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 […]<\/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-183024","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nSham Singh Son Of Ganga Ram vs The State Of Punjab on 31 July, 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\/sham-singh-son-of-ganga-ram-vs-the-state-of-punjab-on-31-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sham Singh Son Of Ganga Ram vs The State Of Punjab on 31 July, 2008 - 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