{"id":250462,"date":"2009-08-19T00:00:00","date_gmt":"2009-08-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hardayal-singh-vs-state-of-haryana-on-19-august-2009"},"modified":"2017-07-14T02:54:54","modified_gmt":"2017-07-13T21:24:54","slug":"hardayal-singh-vs-state-of-haryana-on-19-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hardayal-singh-vs-state-of-haryana-on-19-august-2009","title":{"rendered":"Hardayal Singh vs State Of Haryana on 19 August, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Hardayal Singh vs State Of Haryana on 19 August, 2009<\/div>\n
Criminal Appeal No.2044-SB of 2004                            -1-\n\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA\n                   AT CHANDIGARH\n                        ****\n                                  Criminal Appeal No.2044-SB of 2004\n                                     Date of Decision:19.08.2009\n\nHardayal Singh\n                                                        .....Appellant\n            Vs.\n\nState of Haryana\n                                                        .....Respondent\n\n\nCORAM:- HON'BLE MR. JUSTICE HARBANS LAL\n\nPresent:-   Mr. K.S. Dhaliwal, Advocate for the appellant.\n\n            Mr. Amit Kaushik, Assistant Advocate General, Haryana.\n                        ****\nJUDGMENT\n<\/pre>\n
HARBANS LAL, J.\n<\/p>\n
            This appeal is directed against the judgment dated 28.7.2004\/<\/p>\n
order of sentence dated 29.7.2004 passed by the Court of learned Judge,<\/p>\n
Special Court, Panipat whereby he convicted and sentenced the accused<\/p>\n
Hardayal Singh to undergo rigorous imprisonment for a period of ten years<\/p>\n
and to pay a fine of Rs.1 lac under Section 18<\/a> of the Narcotic Drugs and<\/p>\n
Psychotropic Substances Act<\/a>, 1985 (for brevity, `the Act’) and in default of<\/p>\n
payment of fine, to further undergo rigorous imprisonment for one year.<\/p>\n
            As set up by the prosecution on 23.4.2003, Inspector Bhullan<\/p>\n
Singh CIA II, Samalkha amongst other police officials happened to be<\/p>\n
present at old Bus Stand Samalkha in connection with patrolling and<\/p>\n
checking of crime. He was chattering with Subhash son of Ram Chand, Jat,<\/p>\n
resident of Machhrauli, Police Station Samalkha. Meanwhile, the accused
\n Criminal Appeal No.2044-SB of 2004                               -2-<\/span><\/p>\n
alighted from the bus carrying a bag in his right hand and came towards<\/p>\n
Railway Road, Samalkha. On catching sight of the police party, he abruptly<\/p>\n
made an attempt to beat a retreat by walking briskly. On suspicion, he was<\/p>\n
intercepted. Suspecting the contents of the bag to be some contraband, the<\/p>\n
accused was offered to be searched before a Gazetted Officer. He opted to<\/p>\n
have search before some Gazetted Officer.          On receipt of telephonic<\/p>\n
message, Badan Singh Rana DSP came at the spot. On his direction, the<\/p>\n
search of the bag was carried out. On search of the same, the opium duly<\/p>\n
wrapped in a polythene paper was recovered. 100 grams opium was drawn<\/p>\n
to serve as sample and converted into a parcel.          The remainder when<\/p>\n
weighed came to 2 kg. 900 grams which was also turned into a parcel.<\/p>\n
These parcels were sealed with seals `CS’ and `BS’. The seal after use was<\/p>\n
handed over to PW Subhash. These parcels were seized vide recovery<\/p>\n
memo. Ruqa was sent to the Police Station where on its basis, formal FIR<\/p>\n
was registered. The accused was put under arrest. After completion of<\/p>\n
investigation, the charge-sheet was laid in the Court for trial of the accused.<\/p>\n
             The accused was charged under Section 18<\/a> of the Act, to which<\/p>\n
he did not plead guilty and claimed trial. To bring home guilt against the<\/p>\n
accused, the prosecution examined PW1 Constable Janender Singh, PW2<\/p>\n
Subhash, PW3 Constable Ved Parkash, PW4 DSP Badan Singh, PW5 ASI<\/p>\n
Bhagat Singh, PW6 Sub Inspector Ram Kishan, PW7 HC Rajinder Singh,<\/p>\n
PW8 Inspector Bhullan Singh and closed its evidence by giving up PW<\/p>\n
Suresh as having been won over by the accused. When examined under<\/p>\n
Section 313<\/a> of Cr.P.C, the accused denied all the incriminating<\/p>\n
circumstances appearing in the prosecution evidence and pleaded
\n Criminal Appeal No.2044-SB of 2004                              -3-<\/span><\/p>\n
innocence. He put forth that on 23.4.2004, the police officials consisting of<\/p>\n
Inspector Bhullan Singh CIA Staff Samalkaha, on the instructions of DSP<\/p>\n
Badan Singh took him from his village in the presence of Baldev Singh<\/p>\n
Sarpanch as well as Gurmukh Singh Member Panchayat and was falsely<\/p>\n
implicated in this case due to party faction in the village. In his defence, he<\/p>\n
examined DW1 Baldev Singh and DW2 Suresh. Besides this, Mark A,<\/p>\n
report of the Handwriting and Finger Print Expert was also tendered.<\/p>\n
            After hearing the learned Public Prosecutor for the State, the<\/p>\n
learned defence counsel and examining the evidence on record, the learned<\/p>\n
trial Court convicted and sentenced the accused as noticed at the outset.<\/p>\n
Feeling aggrieved with his conviction and sentence, he has come up in this<\/p>\n
appeal.\n<\/p>\n
            I have heard the learned counsel for the parties, besides<\/p>\n
perusing the record with due care and circumspection.<\/p>\n
            On behalf of the appellant, it has been argued with great<\/p>\n
vehemence that as alleged two independent witnesses, namely, Subhash<\/p>\n
Chand and Suresh were joined. The latter was given up by the prosecution,<\/p>\n
when appeared in defence, he stated in categoric terms that no recovery<\/p>\n
proceedings etc., were conducted against the appellant in his presence and<\/p>\n
that Inspector Bhullan Singh had obtained the signatures of the appellant on<\/p>\n
some blank papers. This evidence strikes a death knell to the prosecution<\/p>\n
case. As against this, the learned State Counsel maintained that Suresh was<\/p>\n
given up on a specific pretext of his having been won over by the accused<\/p>\n
and by appearing in defence, he has affirmed the apprehension of the<\/p>\n
prosecution. This contention merits acceptance. Under the stress of cross-
\n Criminal Appeal No.2044-SB of 2004                            -4-<\/span><\/p>\n
examination, Suresh (sic.) has admitted his signatures on the memos Ex.PC,<\/p>\n
Ex.PC\/1 and Ex.PD and the statement Ex.PX. He has testified that “since<\/p>\n
Subhash was already known to the Inspector Bhullan Singh, so in haste, we<\/p>\n
signed the papers without querying to the Inspector. We never enquired<\/p>\n
subsequently as to in what context, their signatures were taken.” This<\/p>\n
witness has not apportioned the reasons for having blind faith in Bhullan<\/p>\n
Singh Inspector.   He could have pre-conceived that such signed blank<\/p>\n
papers can be misused at any moment. If the recovery had not been effected<\/p>\n
within his view in the normal course of events, he would have not signed<\/p>\n
the blank papers merely at the asking of the aforesaid Inspector. Besides<\/p>\n
this,   he did not take the pains to enquire subsequently from the Sub<\/p>\n
Inspector as to for what purpose, these signed blank papers were used.<\/p>\n
Right from the day of his apprehension till the examination of Suresh<\/p>\n
Kumar as a defence witness, the appellant, his relations and friends had<\/p>\n
ample opportunities to woo this witness to resile from his statement<\/p>\n
recorded under Section 161<\/a> of Cr.P.C. In re: Roop Singh v. State of<\/p>\n
Punjab<\/a>, 1996(1) Recent Criminal Reports 146, a Division Bench of this<\/p>\n
Court has held as under:-\n<\/p>\n
             “A Panch witness may turn hostile and not support the case of<\/p>\n
             the prosecution or may be hesitant in appearing in the Court<\/p>\n
             and depose against an accused for various reasons from fear to<\/p>\n
             bribe. He is an average and ordinary human being and quite<\/p>\n
             exposed and vulnerable to the human feelings of yielding,<\/p>\n
             brow-beating, threats, inducements, etc. To figure as a Panch-<\/p>\n
             witness at the stage of police investigation, is one thing, and
\n Criminal Appeal No.2044-SB of 2004                               -5-<\/span><\/p>\n
               thereafter to give evidence before the Court is entirely a<\/p>\n
               different thing. In fact, a Panch witness generally think twice<\/p>\n
               before entering into a witness-box and if at all he enters the<\/p>\n
               same, one would not be surprised if he does not support the<\/p>\n
               prosecution because of variety of the reasons mentioned above.<\/p>\n
               Therefore, the fact that the prosecution has given up the<\/p>\n
               independent public person Nirbhai Singh having been won over<\/p>\n
               by the accused persons, is fully justified in the present day<\/p>\n
               situation prevailing in the Society and no adverse inference<\/p>\n
               against the prosecution can be drawn in this case.”<\/p><\/blockquote>\n
\n
               In re: Masalti v. State of UP<\/a>, AIR 1965 SC 202, the Apex<\/p>\n
Court has held that it is undoubtedly, the duty of the prosecution to lay<\/p>\n
before the Court all material evidence available to it which is necessary for<\/p>\n
unfolding its case, but it would be unsound to lay down as general rule that<\/p>\n
every witness must be examined, even though his evidence may not be very<\/p>\n
material or even, if it is known that he has been won over or terrorised.<\/p>\n
               It follows from the above observations rendered in re: Masalti<\/p>\n
(supra) that if it comes to knowledge of the prosecution that a private<\/p>\n
witness has been gained over by the accused, the prosecution cannot be<\/p>\n
expected to produce him\/ her as its own witness. By appearing in defence,<\/p>\n
this witness Suresh Kumar has confirmed the apprehension of the<\/p>\n
prosecution.\n<\/p>\n
               Learned counsel for the appellant further pressed into service<\/p>\n
that another independent witness Subhash when examined as PW2 did not<\/p>\n
lend support to the prosecution version and his evidence clearly goes to
\n Criminal Appeal No.2044-SB of 2004                             -6-<\/span><\/p>\n
show that indeed the recovery was not effected in the alleged manner. To<\/p>\n
tide over this submission, the learned State Counsel argued that the<\/p>\n
appellant had sufficient time to win over this witness too and that being so,<\/p>\n
the other prosecution evidence should not be discarded merely because of<\/p>\n
the fact that this witness has been declared hostile. I have well considered<\/p>\n
the rival contentions. In view of the observations extracted from Roop<\/p>\n
Singh’s case (supra), this contention is overruled.\n<\/p>\n
            It is further argued that the recovery in this case was effected<\/p>\n
on 23.4.2003 whereas the sample parcel was despatched on 29.4.2003 and<\/p>\n
during this interregnum, the possibility of the contents of the sample parcel<\/p>\n
being changed or tampered with cannot be ruled out. This contention is<\/p>\n
unsustainable. The seal after use was entrusted to Subhash Chand PW. In<\/p>\n
re: State of Orissa v. Kanduri Sahoo<\/a>, 2004(1) Supreme Court Cases<\/p>\n
337, the sample of cannabis (ganja) was sent for chemical examination after<\/p>\n
four days of recovery.    It was observed by the Apex Court that “The<\/p>\n
evidence of PW-1 was categorical to the effect that the articles were kept in<\/p>\n
the Excise Malkhana from where they were brought and sent for chemical<\/p>\n
examination. This relevant aspect appears to have been missed by the High<\/p>\n
Court. In Valasla’s case (supra), it was not laid down that whenever there<\/p>\n
is delay in sending the samples, the prosecution version would become<\/p>\n
vulnerable. What was emphasised related to proper and safe custody of the<\/p>\n
seized articles. In the background to that particular case, when delay of 3<\/p>\n
months was there and there was no clear evidence as to with whom the<\/p>\n
articles were lying, the decision was rendered. No evidence was led to<\/p>\n
show that the contraband articles were in proper custody and in proper form.
\n Criminal Appeal No.2044-SB of 2004                             -7-<\/span><\/p>\n
But the factual situation is different here. That being so, the High Court’s<\/p>\n
judgment does not stand scrutiny and is set aside. The conviction as done<\/p>\n
by the trial Court was proper.” It was also held that merely because the<\/p>\n
articles were kept in the excise malkhana for four days would not make the<\/p>\n
prosecution version suspect.\n<\/p>\n
            In re:    Jaili v. The State of Haryana, 2008(2) Recent<\/p>\n
Criminal Reports (Criminal) 264, there was a delay of one month in<\/p>\n
sending sample to the Forensic Science Laboratory. There was no evidence<\/p>\n
that samples of the case property were tampered with. The seals on the<\/p>\n
samples, tallied with the specimen seal as per the forwarding authority<\/p>\n
letter. Under these circumstances, it was held by this Court that mere delay<\/p>\n
in sending the samples did not, in any way cause prejudice to the accused,<\/p>\n
nor did it go to prove that the samples were tampered with, until the same<\/p>\n
were deposited in the Office of Forensic Science Laboratory. Further in re:<\/p>\n
Mohan Singh v. State of Punjab<\/a>, 2007(4) Recent Criminal Reports<\/p>\n
(Criminal) 705, there was a delay of 10 days in sending the samples to the<\/p>\n
Forensic Science Laboratory. It was held by the Division Bench of this<\/p>\n
Court that mere delay in sending the same to the laboratory is not fatal,<\/p>\n
where there is evidence that the seized articles were kept in proper and safe<\/p>\n
custody. Further in re: Ganesh son of Kapil Dev, resident of Haraj,<\/p>\n
Police Station Sheela Ganj, District Moti Hari (Bihar) v. The State of<\/p>\n
Haryana, 2009(2) Recent Criminal Reports (Criminal) 39, there was a<\/p>\n
delay of 7 days in sending the sample to the Forensic Science Laboratory.<\/p>\n
The delay was not explained. It was held that the prosecution has led<\/p>\n
cogent and convincing evidence that the sample was not tampered with
\n Criminal Appeal No.2044-SB of 2004                             -8-<\/span><\/p>\n
during the period and thus, the delay was not fatal to the prosecution. Again<\/p>\n
in Motia Bai v. State of Haryana<\/a>, 2005(3) Recent Criminal Reports<\/p>\n
(Criminal) 56, there was a delay of 20 days in sending the sample to the<\/p>\n
Forensic Science Laboratory. There was no evidence that the sample was<\/p>\n
tampered with. The report of the Forensic Science Laboratory indicated that<\/p>\n
the seals of the sample were intact, when it reached the laboratory. The<\/p>\n
conviction was upheld. Adverting to the instant case, the affidavit Ex.PA\/1<\/p>\n
of Ved Parkash Constable PW3, affidavit Ex.PG of HC Rajinder Singh PW7<\/p>\n
coupled with FSL’s report Ex.PL go a long way in proving that the sample<\/p>\n
parcel remained in proper and safe custody. Hence, the alleged delay is<\/p>\n
inconsequential.\n<\/p>\n
            The next argument having been raised on behalf of the<\/p>\n
appellant is that as per the prosecution case, notice under Section 50<\/a> of the<\/p>\n
Act was given to appellant in Hindi language which he does not know and<\/p>\n
there is no evidence to the effect that the same was read over to him.<\/p>\n
Moreover, on the notice, one line “above facts read over” was inserted later<\/p>\n
on as opined by Mr. M.Jain, Examiner of questioned documents & Forensic<\/p>\n
expert vide his report Mark A. Thus, the mandatory provisions of the said<\/p>\n
Section have not been complied with. This contention carries no substance.<\/p>\n
In re: Kalema Tumba v. State of Maharashtra<\/a>, 1999(4) Recent Criminal<\/p>\n
Reports (Criminal) 575 (Supreme Court) 2 kgs of heroin was recovered<\/p>\n
from the baggage of accused and not from his person. It was ruled by the<\/p>\n
Apex Court that “If a person is carrying a bag or some other article with him<\/p>\n
and narcotic drug or the psychotropic substance is found from it, it cannot<\/p>\n
be said that it was found from his `person’. In that case, heroin was found
\n Criminal Appeal No.2044-SB of 2004                               -9-<\/span><\/p>\n
from a bag belonging to the appellant and not from his person. Further in re:<\/p>\n
Megh Singh v. State of Punjab<\/a>, 2004(1) Apex Criminal 482, it has been<\/p>\n
held that “a bare reading of Section 50<\/a> shows that it only applies in case of<\/p>\n
personal search of a person. It does not extend to search of a vehicle or<\/p>\n
container or a bag or premises. Reverting back to the present one, the<\/p>\n
recovery having been effected from a bag, the provisions of Section 50<\/a> were<\/p>\n
not attracted.   As such, this contention being bereft of any merit is<\/p>\n
overruled.\n<\/p>\n
             Last of all, learned counsel for the appellant canvassed at the<\/p>\n
bar that a glance through Ex.PA\/1, the affidavit of Constable Ved Parkash<\/p>\n
No.846 who allegedly carried the sample parcel to the Forensic Science<\/p>\n
Laboratory would reveal that in paragraph No.2, it is mentioned that on<\/p>\n
29.4.2003, MHC handed over sample parcels sealed with seals `CS’, `BS’<\/p>\n
and `RK’ to him after taking out the same from the malkhana for being<\/p>\n
carried to the Forensic Science Laboratory but a meticulous perusal of the<\/p>\n
words `seals’ would reveal that in the initials of the seal `BS’, there is<\/p>\n
material alteration in the letter `s’ as the same has been converted from `c’ to<\/p>\n
`s’ and this infirmity causes a dent in the prosecution case. He further puts<\/p>\n
that this contention is also fortified by the opinion of Mr. M. Jain (sic.).<\/p>\n
This contention is unsustainable for the reason that the said expert has not<\/p>\n
been produced as a witness for being cross-examined by the prosecution.<\/p>\n
Further for a little while, if it is assumed that the said letter `c’ has been<\/p>\n
converted into `s’ despite that this fact proprio vigore does not cause dent in<\/p>\n
the prosecution case for the reason that Rajinder Singh MHC in his affidavit<\/p>\n
Ex.PG has also mentioned that the sample parcel was duly sealed with seal
\n Criminal Appeal No.2044-SB of 2004                             -10-<\/span><\/p>\n
`BS’, `CS’ and `RK’. It is probable that by way of inadvertence, the word `c’<\/p>\n
instead of `s’ was written. Furthermore, it has all along been the case of<\/p>\n
the prosecution that the parcels were sealed with the above-mentioned seals.<\/p>\n
The sample seal was also sent to the Forensic Science Laboratory. In the<\/p>\n
FSL report Ex.PL, while giving the description of parcels, it has been<\/p>\n
mentioned that the parcel was duly sealed with two seals of `CS’, two seals<\/p>\n
of `BS’ and two seals of `RK’. Thus, there is voluminous evidence on the<\/p>\n
fact that the sample parcel did bear the impressions of said seals. Hence,<\/p>\n
this contention is also turned down.\n<\/p>\n
            No other material point has been urged or agitated.\n<\/p>\n
            As a sequel of the above discussion, this appeal fails and is<\/p>\n
dismissed being devoid of any merit.\n<\/p>\n
\n
August 19, 2009                                   ( HARBANS LAL )\nrenu                                                   JUDGE\n\nWhether to be referred to the Reporter? Yes\/No\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Hardayal Singh vs State Of Haryana on 19 August, 2009 Criminal Appeal No.2044-SB of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Appeal No.2044-SB of 2004 Date of Decision:19.08.2009 Hardayal Singh …..Appellant Vs. State of Haryana …..Respondent CORAM:- HON’BLE MR. JUSTICE HARBANS LAL Present:- Mr. K.S. […]<\/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-250462","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nHardayal Singh vs State Of Haryana on 19 August, 2009 - 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\/hardayal-singh-vs-state-of-haryana-on-19-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hardayal Singh vs State Of Haryana on 19 August, 2009 - 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