{"id":206832,"date":"2008-11-20T00:00:00","date_gmt":"2008-11-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/daljit-singh-fozzi-vs-the-state-of-haryana-on-20-november-2008"},"modified":"2016-12-30T13:39:43","modified_gmt":"2016-12-30T08:09:43","slug":"daljit-singh-fozzi-vs-the-state-of-haryana-on-20-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/daljit-singh-fozzi-vs-the-state-of-haryana-on-20-november-2008","title":{"rendered":"Daljit Singh @ Fozzi vs The State Of Haryana on 20 November, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Daljit Singh @ Fozzi vs The State Of Haryana on 20 November, 2008<\/div>\n
Crl. Appeal No.2297-SB of 2007                            1\n\n\n     IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n\n                                       Crl. Appeal No.2297-SB of 2007\n                                       Date of Decision : 20.11.2008\n\n\nDaljit Singh @ Fozzi S\/o Rachna Singh,          ...Appellant\nR\/o Dera Daljit Singh Kharaka,\nP.S.Guhla (Kaithal).\n\n                             Versus\n\nThe State of Haryana                            ....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. Vinod Bhardwaj, Advocate,\n         for the appellant.\n\n         Mr. A.K.Jindal, AAG, Haryana,\n         for the respondent-State.\n\nSHAM SUNDER, J.\n<\/pre>\n
         This appeal is directed against the judgment of conviction, and<\/p>\n
the order of sentence dated 31.8.2007, rendered by the Judge, Special<\/p>\n
Court, Kaithal, vide which she convicted the accused\/appellant, for the<\/p>\n
offence, punishable under Section 18 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 from 28.1.2006 to<\/p>\n
9.3.2006, period already undergone, and to pay a fine of Rs.5000\/- , and<\/p>\n
in default of payment of the same, to undergo rigorous imprisonment for<\/p>\n
another period of one month, for having been found in possession of
\n Crl. Appeal No.2297-SB of 2007                             2<\/span><\/p>\n
1 kg. Opium, (falling within the ambit of non-commercial quantity),<\/p>\n
without any permit or licence.\n<\/p>\n
2.        The facts, in brief, are that on 28.1.2006, Atma Nand, ASI,<\/p>\n
alongwith other police officials, was going to Chakuladana for patrol<\/p>\n
duty, and when the police party reached at ‘T’ point of Chakuladana turn,<\/p>\n
Ramthali Smadha, one Maruti Car, came from the side of village<\/p>\n
Chakuladana. It was signalled to stop. It was stopped. The driver of the<\/p>\n
same, came down, and started walking with a white polythene bag, in his<\/p>\n
hand. He was apprehended, on suspicion. On checking of the polythene<\/p>\n
bag, 1 kg. opium, was recovered. Two samples of 20 grams each, were<\/p>\n
taken out, and the remaining opium, was put into a separate container.<\/p>\n
The samples, and the container, containing the remaining opium, were<\/p>\n
converted into parcels, duly sealed, and taken into possession, vide a<\/p>\n
separate recovery memo. Rough site plan of the place of recovery, was<\/p>\n
prepared. The statements of the witnesses, were recorded. The accused<\/p>\n
was arrested. After the completion of investigation, the accused was<\/p>\n
challaned.\n<\/p>\n
3.        On appearance, in the Court, the copies of documents, relied<\/p>\n
upon by the prosecution, were supplied to the accused. Charge under<\/p>\n
Section 18 of the Act, was framed against him, to which he pleaded not<\/p>\n
guilty, and claimed judicial trial.\n<\/p>\n
4.        The prosecution, in support of its case, examined Balwan<\/p>\n
Singh, ASI (PW-1), Om Parkash, EHC (PW-2), Atma Nand, ASI (PW-3),<\/p>\n
the Investigating Officer, Rajbir Singh, Constable (PW-4), Ranjor Singh,<\/p>\n
HC (PW-5), Jai Pal Singh, ASI (PW-6), and Jaimal Singh, SI (PW-7).<\/p>\n
Thereafter, the Public Prosecutor for the State, closed the prosecution
\n Crl. Appeal No.2297-SB of 2007                                3<\/span><\/p>\n
evidence.\n<\/p>\n
5.          The statement of the accused, under Section 313 Cr.P.C., was<\/p>\n
recorded, and he was put all the incriminating circumstances, appearing<\/p>\n
against him, in the prosecution evidence. He pleaded false implication. It<\/p>\n
was stated by him, that all the witnesses, being police officials, were<\/p>\n
interested in the success of the case. It was further stated by him, that he<\/p>\n
did not make any disclosure statement, that the recovery was effected<\/p>\n
from him. He, however, did not lead any evidence, in his defence.<\/p>\n
6.          After hearing the Public Prosecutor for the State, the Counsel<\/p>\n
for the accused, and, on going through the evidence, on record, the trial<\/p>\n
Court, convicted and sentenced the accused, as stated hereinbefore.<\/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 the 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 trial, conviction, and sentence, stood<\/p>\n
vitiated. It may be stated here, that, in the instant case, the recovery was<\/p>\n
not effected from the person of the accused, but from the popythene bag,<\/p>\n
which was being carried by him, in his hand. As such, the mandatory<\/p>\n
provisions of Section 50 of the Act, were not applicable to the search and<\/p>\n
seizure, in this case.   Had the recovery been effected from the person of<\/p>\n
the accused, then the provisions of Section 50 of the Act, would have<\/p>\n
been attracted to the instant case. In State of Punjab Vs. Baldev Singh,
\n Crl. Appeal No.2297-SB of 2007                                4<\/span><\/p>\n
1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled<\/p>\n
beyond doubt, that the language of Section 50, was implicitly clear that<\/p>\n
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
Since, in view of the principle of law, laid down, in the aforesaid<\/p>\n
authorities, the provisions of Section 50 were not applicable, to search, in<\/p>\n
the instant case, the trial Court was right in recording conviction and<\/p>\n
awarding sentence, to the accused. In this view of the matter, the<\/p>\n
submission of the Counsel for the appellant, being without merit, must<\/p>\n
fail, and the same stands rejected.\n<\/p>\n
10.       It was next submitted by the Counsel for the appellant, that no<\/p>\n
independent witness, was joined, at the time of the alleged search and<\/p>\n
seizure. He further submitted that, as such, the case of the prosecution,<\/p>\n
became doubtful. It may be stated here, that no secret information had<\/p>\n
been received, against the accused, that he was coming in a vehicle, and<\/p>\n
was in possession of opium. It was only a chance recovery, which was<\/p>\n
effected from the accused. When the police party was present, on patrol<\/p>\n
duty, maruti car, being driven by the accused came. It was stopped, and<\/p>\n
after alighting therefrom, the accused started walking, but was<\/p>\n
apprehended, on suspicion.      It was, thereafter, that the search of the<\/p>\n
polythene bag, which was being carried by him, was conducted, and the
\n Crl. Appeal No.2297-SB of 2007                               5<\/span><\/p>\n
opium was recovered. There is nothing, on the record, that at the time of<\/p>\n
the alleged search and seizure, any independent witness was available,<\/p>\n
but he was not joined. If any independent had been joined, after the<\/p>\n
search and seizure, his evidence would have been of no consequence, as<\/p>\n
he would not have been said to be a witness to search and seizure. In the<\/p>\n
absence of corroboration, through an independent source, to the evidence<\/p>\n
of the official witnesses, the prosecution case cannot be distrusted and<\/p>\n
disbelieved. In the face of the evidence of the official witnesses only, the<\/p>\n
Court is required to scrutinize the same, carefully and cautiously. After<\/p>\n
careful and cautious scrutiny, if the Court comes to the conclusion, that<\/p>\n
the same does not suffer from any serious infirmity, the same can be<\/p>\n
believed. The evidence of the official witnesses, in the instant case, has<\/p>\n
been subjected to indepth scrutiny, and nothing came to the fore, which<\/p>\n
may go to discredit the same. In Akmal Ahmed Vs. State of Delhi, 1999<\/p>\n
(2) 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 become<\/p>\n
vitiated, solely for the reason that the same was not supported by an<\/p>\n
independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C.<\/p>\n
748, it was held as under:-\n<\/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<\/p>\n
             cannot start with the presumption that the police records<\/p>\n
             are untrustworthy. As a proposition of law, the presumption<\/p>\n
             should be the other way round. The official acts of the
\n Crl. Appeal No.2297-SB of 2007                                 6<\/span><\/p>\n
             Police have been regularly performed is a wise principle of<\/p>\n
             presumption and recognized even by the Legislature.”<\/p>\n<\/blockquote>\n
11.       In Appa Bai and another Vs. State of Gujrat, AIR 1988 S.C.<\/p>\n
696, it was held that the prosecution story cannot be thrown out, on the<\/p>\n
ground, that an independent witness had not been examined, by the<\/p>\n
prosecution. It was further held, in the said authority, that the civilized<\/p>\n
people, are generally insensitive, when a crime is committed, even in<\/p>\n
their presence, and they withdraw from the victims’ side, and from the<\/p>\n
side of the vigilant. They keep themselves away from the Courts, unless<\/p>\n
it is inevitable. Moreover, they think the crime like a civil dispute,<\/p>\n
between two individuals, and do not involve themselves, in it.           The<\/p>\n
principle of law, laid down, in the aforesaid authorities, is fully applicable<\/p>\n
to the facts of the present case. In these circumstances, mere non-joining<\/p>\n
of    an independent witness, when the evidence of the prosecution<\/p>\n
witnesses, has been held to be cogent, convincing, creditworthy, and<\/p>\n
reliable, and there was no reason, on their part, to falsely implicate the<\/p>\n
accused, no doubt, is cast on the prosecution story. The submission of<\/p>\n
the Counsel for the appellant, in this regard, being without merit, must<\/p>\n
fail, and the same stands rejected.\n<\/p>\n
12.       It was next submitted by the Counsel for the appellant, that the<\/p>\n
Investigating Officer, did not investigate into the source of opium, and, as<\/p>\n
such, the case of the prosecution became doubtful.           No doubt, the<\/p>\n
Investigating Officer, did not investigate into the source of opium, yet<\/p>\n
that fact, in itself, is not sufficient to disbelieve the prosecution case.<\/p>\n
Once, the accused was found in possession of opium, he committed the<\/p>\n
offence, punishable under Section 18 of the Act. If the Investigating
\n Crl. Appeal No.2297-SB of 2007                               7<\/span><\/p>\n
Officer, committed any illegality or irregularity, during the course of<\/p>\n
investigation of the case, that did not mean, that the liability of the<\/p>\n
accused, in any way, stood diluted. If the illegalities or irregularities,<\/p>\n
committed by the Investigating Officer, are taken into consideration, for<\/p>\n
the purpose of acquittal of accused, then every dishonest and negligent<\/p>\n
Investigating Officer, shall leave a lacuna, in the prosecution case, so as<\/p>\n
to create an escape route, for the accused. In this view of the matter, such<\/p>\n
an illegality or irregularity, committed by the Investigating Officer, was<\/p>\n
rightly not taken into consideration, by the trial Court. The submission of<\/p>\n
the Counsel for the appellant, in this regard, being without merit, must<\/p>\n
fail, and the same stands rejected.\n<\/p>\n
13.       It was next submitted by the Counsel for the appellant, that at<\/p>\n
the time of the evidence of the prosecution witnesses, the case property,<\/p>\n
was not produced, and, as such, it could be said that no recovery was<\/p>\n
effected from the accused, but he was falsely implicated, in the instant<\/p>\n
case. The submission of the Counsel for the appellant, in this regard,<\/p>\n
does not appear to be correct. In the instant case, at the time of the<\/p>\n
production of the accused, before the Illaqa Magistrate, on 29.1.2006, an<\/p>\n
application, under Section 52-A of the Act, alongwith the case property,<\/p>\n
for the purpose of disposal thereof, was also moved. The Sub Divisional<\/p>\n
Judicial Magistrate, Guhla, on 29.1.2006, passed the following order :<\/p>\n
          “Accused produced before me, being Duty Magistrate.            An<\/p>\n
          application under Section 52-A of NDPS Act, for disposal of<\/p>\n
          the case property moved by ASI Atma Ram. Heard. Case<\/p>\n
          property sealed with two seals JS and samples sealed with two<\/p>\n
          seals BS produced by the police, which has been attested by
\n Crl. Appeal No.2297-SB of 2007                                8<\/span><\/p>\n
          me. Prosecution is allowed to dispose of the case property, as<\/p>\n
          per Rules”.\n<\/p><\/blockquote>\n
13-A.     It is evident from this order, that the prosecution was allowed<\/p>\n
to dispose of the case property, as per the Rules. It was, thereafter, that<\/p>\n
the case property was disposed of.            Since, due compliance of the<\/p>\n
provisions of Section 52-A of the Act, was made, the inventory, being the<\/p>\n
primary evidence, non-production of the case property, as the same had<\/p>\n
been disposed of, did not at all affect the case of the prosecution. The<\/p>\n
submission of the Counsel for the appellant, in this regard, being without<\/p>\n
merit, must fail, and the same stands rejected.\n<\/p>\n
14.       No other point, was urged, by the Counsel for the parties.<\/p>\n
15.       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.<\/p>\n
16.       For the reasons recorded, hereinbefore, the appeal is dismissed.<\/p>\n
The judgment of conviction, and the order of sentence dated 31.8.2007,<\/p>\n
are upheld.    If the appellant is on bail, his bail bonds, shall stand<\/p>\n
cancelled. The Chief Judicial Magistrate, Kaithal, 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
17.       No order was passed by the trial Court, regarding the<\/p>\n
confiscation of maruti car, in question. The trial Court shall initiate the<\/p>\n
proceedings, if already not initiated, regarding the confiscation of the car,
\n Crl. Appeal No.2297-SB of 2007                              9<\/span><\/p>\n
as per the relevant provisions of law, complete the same, and submit<\/p>\n
compliance report, within three months, from the date of receipt of a copy<\/p>\n
of the judgment.\n<\/p>\n
18.       The District & Sessions Judge, Kaithal, is directed to ensure<\/p>\n
that the directions are complied with strictly, by the Courts concerned,<\/p>\n
and the compliance report is sent within the time-frame.<\/p>\n
19.       The Registry shall keep track that the compliance report is<\/p>\n
received within the time-frame.       Whether the compliance report is<\/p>\n
received within the time-frame or not, the papers shall be put up after 10<\/p>\n
days of the expiry of the same, for further action.\n<\/p>\n<\/p>\n
20.11.2008                                            (SHAM SUNDER)\nVimal                                                     JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Daljit Singh @ Fozzi vs The State Of Haryana on 20 November, 2008 Crl. Appeal No.2297-SB of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.2297-SB of 2007 Date of Decision : 20.11.2008 Daljit Singh @ Fozzi S\/o Rachna Singh, …Appellant R\/o Dera Daljit Singh Kharaka, […]<\/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-206832","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nDaljit Singh @ Fozzi vs The State Of Haryana on 20 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\/daljit-singh-fozzi-vs-the-state-of-haryana-on-20-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Daljit Singh @ Fozzi vs The State Of Haryana on 20 November, 2008 - 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