{"id":5496,"date":"2009-09-11T00:00:00","date_gmt":"2009-09-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balvinder-singh-vs-state-of-haryana-on-11-september-2009"},"modified":"2017-06-21T19:14:10","modified_gmt":"2017-06-21T13:44:10","slug":"balvinder-singh-vs-state-of-haryana-on-11-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balvinder-singh-vs-state-of-haryana-on-11-september-2009","title":{"rendered":"Balvinder Singh vs State Of Haryana on 11 September, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Balvinder Singh vs State Of Haryana on 11 September, 2009<\/div>\n
Criminal Appeal No.1519-SB of 2005                             -1-\n\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA\n                   AT CHANDIGARH\n                         ****\n                                   Criminal Appeal No.1519-SB of 2005\n                                      Date of Decision:11.09.2009\n\nBalvinder Singh\n                                                         .....Appellant\n            Vs.\n\nState of Haryana\n                                                         .....Respondent\n\n\nCORAM:- HON'BLE MR. JUSTICE HARBANS LAL\n\n\nPresent:-   Mr. K.S. Dhaliwal, Advocate for the appellant.\n\n            Mr. Vikas Chaudhary, Assistant Advocate General, Haryana.\n                         ****\nJUDGMENT\n<\/pre>\n
HARBANS LAL, J.\n<\/p>\n
            This appeal is directed against the judgment dated 4.7.2005\/<\/p>\n
order of sentence dated 6.7.2005 passed by the Court of learned Judge,<\/p>\n
Special Court, Kaithal whereby he convicted and sentenced the accused<\/p>\n
Balvinder Singh to undergo rigorous imprisonment for a period of ten years<\/p>\n
and to pay a fine of Rs.1 lac under Section 15(c) of the Narcortic Drugs and<\/p>\n
Psychotropic Substances Act, 1985 (for brevity, `the Act’) and in default of<\/p>\n
payment of fine, to further undergo simple imprisonment for one year.<\/p>\n
            The facts in brief are that on 3.10.1998, Inspector Mange Ram<\/p>\n
amongst other police officials happened to be present in a government<\/p>\n
vehicle No.HR-08-B-4901 at Bus Stand Guhla being on patrol duty as well<\/p>\n
as for detection of crime. He received a secret information to the effect that<\/p>\n
Balvinder Singh accused had concealed gunny bags of poppy husk after
\n Criminal Appeal No.1519-SB of 2005                              -2-<\/span><\/p>\n
digging a pit in his residential house and if a raid is conducted, then he<\/p>\n
could be apprehended with large quantity of poppy husk. This information<\/p>\n
was embodied in a ruqa and sent to the Police Station, where on its basis,<\/p>\n
formal FIR was registered. The house of the accused was raided. The<\/p>\n
accused was found present there.        During investigation, he suffered a<\/p>\n
disclosure statement that he has been selling the poppy husk for the last<\/p>\n
many days and he had concealed 30 gunny bags of poppy husk in his<\/p>\n
residential house beneath the bunker.     He was served with a notice under<\/p>\n
Section 50 of the Act calling upon him to tell as to whether he wants to have<\/p>\n
the search in the presence of a Gazetted Officer or a Magistrate. He replied<\/p>\n
that he wanted to get the search conducted in the presence of a Gazetted<\/p>\n
Officer.   DSP Sajjan Singh and Tehsildar Pirthi Singh on receipt of<\/p>\n
information came at the spot. The accused got recovered 30 bags of poppy<\/p>\n
husk from the pit having been dug in his residential house. The contents of<\/p>\n
each bag when weighed came to 40 Kgs. 250 grams of poppy husk was<\/p>\n
drawn from each bag to serve as sample and converted into parcels. The<\/p>\n
remainder of each bag was also turned into parcels. These parcels were<\/p>\n
sealed with seals MR, SS and PS and were seized vide recovery memo.<\/p>\n
Besides this, nine wooden planks with the aid of which, these bags lay<\/p>\n
covered in the pit were also taken into possession vide separate recovery<\/p>\n
memo.      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 15 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 Sub Inspector Chander Singh,
\n Criminal Appeal No.1519-SB of 2005                             -3-<\/span><\/p>\n
PW2 HC Satbir Singh, PW3 Pirthi Singh District Revenue Officer, the then<\/p>\n
Tehsildar, PW4 Sub Inspector Jagdish Chander, PW5 ASI Rohit Kumar,<\/p>\n
PW6 Guljar Singh Inspector, PW7 Mange Ram Inspector and closed its<\/p>\n
evidence by tendering report Ex.PH of FSL. When examined under section<\/p>\n
313 of Cr.P.C., the accused denied all the incriminating circumstances<\/p>\n
appearing in the evidence against him and pleaded false implication. He has<\/p>\n
put forth that the alleged place of recovery was neither owned nor possessed<\/p>\n
by him nor he ever made the alleged disclosure statement. In his defence,<\/p>\n
he examined Om Parkash Secretary, Gram Panchayat Lalpur DW1, Balbir<\/p>\n
Singh DW2, Dharampal DW3, Des Raj Singh DW4, Tara Singh DW5,<\/p>\n
Chander Bhan DW6, Gurmukh Singh DW7, Darshan Singh DW8 and Ranjit<\/p>\n
Singh DW9.\n<\/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 therewith, he has preferred this appeal.           Mr. K.S.<\/p>\n
Dhaliwal, Advocate appearing on behalf of the appellant strenuously urged<\/p>\n
that as alleged by the prosecution, the recovery has been effected in<\/p>\n
pursuance of secret information, but as is borne out from the record, the<\/p>\n
same was not reduced into writing, nor sent to the superior officers in<\/p>\n
adherence to the mandatory provisions enshrined under Section 42 of the<\/p>\n
Act.   Thus, the trial in its entirety stands vitiated.   To overcome this<\/p>\n
submission, the learned State Counsel maintained that a glance through the<\/p>\n
record would reveal that the secret information was taken down in writing<\/p>\n
and sent to the superior officers and thus, the stated provision of law stand
\n Criminal Appeal No.1519-SB of 2005                             -4-<\/span><\/p>\n
complied with. This contention merits acceptance. Mange Ram Inspector<\/p>\n
PW7 Investigator has stated in categoric terms that “There a secret<\/p>\n
information was received that Balvinder Singh accused used to keep poppy<\/p>\n
straw in his house underground and in case raid is conducted, then poppy<\/p>\n
husk can be recovered in a large quantity. I sent ruqa Ex.PC to the Police<\/p>\n
Station for registration of the case.” This evidence nullifies the contention<\/p>\n
raised by the learned counsel for the appellant as on evaluating this<\/p>\n
evidence, it transpires that provisions of Section 42 ibid have been observed<\/p>\n
in stricto senso.\n<\/p>\n
             It has been further sought to be argued by Mr. Dhaliwal that the<\/p>\n
recovery is alleged to have been effected from the house of the appellant. If<\/p>\n
it is presumed to be so, it was incumbent upon the Investigator to have<\/p>\n
called two independent witnesses from the locality to witness search of the<\/p>\n
house in adherence to the provisions of Section 100(4) of the Code of<\/p>\n
Criminal Procedure. I regret my inability to be one with the learned counsel<\/p>\n
for the appellant. It is in the evidence of Mange Ram (sic.) that “There<\/p>\n
accused Balvinder was found present in his house. On noticing the police<\/p>\n
party, respectables of the village also arrived there. Thus respectables were<\/p>\n
asked to join the raid but they refused to join the raid on the pretext that<\/p>\n
they would not be witness in the recovery.”        It is inferable from this<\/p>\n
evidence that the provisions of Section 100(4) ibid were observed.<\/p>\n
Furthermore, as ruled by the Division Bench of this Court in re: Karnail<\/p>\n
Singh v. State of Punjab,<\/a> 1983 Criminal Law Journal 1218, “breach of<\/p>\n
Sub-Section (4) of Section 100 Cr.P.C., which require the officer effecting<\/p>\n
the search to call two or more independent and respectable persons of the
\n Criminal Appeal No.1519-SB of 2005                             -5-<\/span><\/p>\n
locality to witness the search would not render the search defective.<\/p>\n
Though the apprehension may affect the credibility of the evidence let in, it<\/p>\n
does not affect the admissibility of the evidence. Conviction based on such<\/p>\n
evidence is not liable to be disturbed merely because of the non-compliance<\/p>\n
of the provisions.”\n<\/p>\n
              The next argument having been raised on behalf of the<\/p>\n
appellant is that the conscious possession of the appellant over the alleged<\/p>\n
poppy husk bags is not proved. This contention has no legs to stand upon.<\/p>\n
It has been abundantly established by evidence on the record that the<\/p>\n
appellant pursuant to his disclosure statement had got recovered as many as<\/p>\n
30 bags of poppy husk from the bunker which lay covered with wooden<\/p>\n
planks inside his residential house. Thus, the prosecution has adequately<\/p>\n
established the exclusive knowledge as well as possession of the appellant<\/p>\n
qua these bags. In re: Megh Singh v. State of Punjab,<\/a> 2004(1) Apex<\/p>\n
Criminal 482, the accused was sitting on gunny bags containing<\/p>\n
contraband.    It was held by Hon’ble the Supreme Court that “Word<\/p>\n
`conscious’ means awareness about a particular fact. It is a statement of<\/p>\n
mind which is deliberate or intended.        Expressions `possession’ is a<\/p>\n
polymorphus term which assumes different colours in different contexts. It<\/p>\n
is impossible to work out a completely logical and precise definition of<\/p>\n
“possession” uniformly applicable to all situations in the context of all<\/p>\n
statutes. Once possession is established, the person who claims that it was<\/p>\n
not a conscious possession has to establish it, because how he came to be in<\/p>\n
possession is within his special knowledge. Section 35 of the Act gives a<\/p>\n
statutory recognition of this position because of presumption available in
\n Criminal Appeal No.1519-SB of 2005                                 -6-<\/span><\/p>\n
law. Similar is the position in terms of Section 54 where also presumption is<\/p>\n
available to be drawn from possession of illicit articles. This position was<\/p>\n
highlighted in Madan Lal and another v. State of Himachal Pradesh,<\/p>\n
2003(6) SCALE 483″.         In view of these observations, as soon as the<\/p>\n
prosecution proved by adducing evidence, the possession of the appellant<\/p>\n
qua these bags, the onus shifted on to him to prove that it was not his<\/p>\n
conscious possession, which has not been done.               So, his conscious<\/p>\n
possession stands established and the presumption arising under Section 35<\/p>\n
as well as 54 of the Act operates in favour of the prosecution.<\/p>\n
             Mr. Dhaliwal further canvassed at the bar that the alleged place<\/p>\n
of recovery is neither owned nor possessed by the appellant. There is<\/p>\n
sufficient evidence on the record that he was not residing at the place of<\/p>\n
alleged recovery. I have considered his submission. Om Parkash Secretary,<\/p>\n
Gram Panchayat Lalpur DW1 has stated in a nutshell that as per register<\/p>\n
brought by me from 1991 to 2002, there is no house in the abadi of Lalpur<\/p>\n
in the name of Balvinder Singh resident of Village Lalpur. This witness has<\/p>\n
been examined to prove that the house of the appellant is not situated within<\/p>\n
the abadi of Village Lalpur. Under the stress of cross-examination, he has<\/p>\n
stated that “it is correct that in the register, at many entries, there are over-<\/p>\n
writing in the figures.” If such is the state of entries in this register, how the<\/p>\n
same can be relied upon. It is in his further cross-examination that “I do not<\/p>\n
know whether Harvel Singh son of Lal Singh and Balvinder Singh reside<\/p>\n
together or not.” Obviously, he has given an evasive reply to this question.<\/p>\n
Balbir Singh DW2, Tara Singh DW5, Gurmukh Singh DW7, Darshan Singh<\/p>\n
DW8 and Ranjit Singh DW9 have been examined to prove that appellant
\n Criminal Appeal No.1519-SB of 2005                              -7-<\/span><\/p>\n
along with members of his family is residing outside the abadi of Village<\/p>\n
Lalpur. To prove this fact, he should have produced his ration card and<\/p>\n
voter’s list.   To his utter consternation, he has not adduced such<\/p>\n
documentary evidence on which reliance could have been placed. The ipse<\/p>\n
dixit of the above-mentioned witnesses are not conclusive proof of the fact<\/p>\n
that he is not residing in the house from which the recovery has been got<\/p>\n
effected by him. Furthermore, he would have produced and proved the<\/p>\n
record of his electricity connection to substantiate this fact. There being no<\/p>\n
cogent, convincing and clear evidence, it would be going too far to say on<\/p>\n
the basis of the above discussed oral evidence that he is not putting up in the<\/p>\n
stated house. It has come in the evidence that his brother Ravel Singh is<\/p>\n
living in abadi. A careful delving into the cross-examination of Mange Ram<\/p>\n
Investigator would reveal that no suggestion has been put to him that the<\/p>\n
appellant is not residing in the house from which the recovery has been<\/p>\n
effected or that the same is not his ownership or that the same is in<\/p>\n
occupation of somebody else.       Had somebody else been the owner in<\/p>\n
possession of this very house, the name of that very person would have<\/p>\n
certainly been disclosed and put to the Investigator as well as other<\/p>\n
witnesses of the prosecution. Besides this, such person would have been<\/p>\n
examined in defence. In the absence of such evidence, it is very difficult to<\/p>\n
say that this house is not in the possession of the appellant. In his cross-<\/p>\n
examination, the Investigator has deposed that “The said Bunkar was 4-1\/2″<\/p>\n
deep and depth was having the width of 3-1\/2″ and having the length of 9′.<\/p>\n
The same was having the wooden battens and the roof was made of tile.”<\/p>\n
Thus, he has even given the dimensions of the bunkar from which poppy
\n Criminal Appeal No.1519-SB of 2005                              -8-<\/span><\/p>\n
husk bags were recovered.\n<\/p>\n
            It has been further agitated at the bar that the recovery is stated<\/p>\n
to have been effected on 3.10.1998 whereas the sample parcels were<\/p>\n
received in the Forensic Science Laboratory on 9.10.1998 which is<\/p>\n
obviously after six days. During this inexplicable delay, the possibility of<\/p>\n
the contents of the sample parcels being changed cannot be ruled out. I have<\/p>\n
well considered this submission. In re:     Jaili v. The State of Haryana,<\/p>\n
2008(2) Recent Criminal Reports (Criminal) 264, there was a delay of<\/p>\n
one month in sending sample to the Forensic Science Laboratory. There<\/p>\n
was no evidence that samples of the case property were tampered with. The<\/p>\n
seals on the samples, tallied with the specimen seal as per the forwarding<\/p>\n
authority letter. Under these circumstances, it was held by this Court that<\/p>\n
mere delay in sending the samples did not, in any way cause prejudice to the<\/p>\n
accused, nor did it go to prove that the samples were tampered with, until<\/p>\n
the same were deposited in the Office of Forensic Science Laboratory.<\/p>\n
Further in re: Mohan Singh v. State of Punjab, 2007(4) Recent Criminal<\/p>\n
Reports (Criminal) 705, there was a delay of 10 days in sending the<\/p>\n
samples to the Forensic Science Laboratory. It was held by the Division<\/p>\n
Bench of this Court that mere delay in sending the same to the laboratory is<\/p>\n
not fatal, when there is evidence that the seized articles were kept in proper<\/p>\n
and safe custody. Further in re: Ganesh son of Kapil Dev, resident of<\/p>\n
Haraj, Police Station Sheela Ganj, District Moti Hari (Bihar) v. The<\/p>\n
State of Haryana,<\/a> 2009(2) Recent Criminal Reports (Criminal) 39, there<\/p>\n
was a delay of 7 days in sending the sample to the Forensic Science<\/p>\n
Laboratory. The delay was not explained. It was held that the prosecution
\n Criminal Appeal No.1519-SB of 2005                              -9-<\/span><\/p>\n
has led cogent and convincing evidence that the sample was not tampered<\/p>\n
with during the period and thus the delay was not fatal to the prosecution.<\/p>\n
Again in Motia Bai v. State of Haryana,<\/a> 2005(3) Recent Criminal<\/p>\n
Reports (Criminal) 56, there was a delay of 20 days in sending the sample<\/p>\n
to the Forensic Science Laboratory. There was no evidence that the sample<\/p>\n
was tampered with.      The report of the Forensic Science Laboratory<\/p>\n
indicated that the seals of the sample were intact, when it reached the<\/p>\n
laboratory. The conviction was upheld. In re: State of Orissa v. Kanduri<\/p>\n
Sahoo,<\/a> 2004(1) Supreme Court Cases 337, the sample of cannabis (ganja)<\/p>\n
was sent for chemical examination after four days of recovery. It was<\/p>\n
observed by the Apex Court that “The evidence of PW-1 was categorical to<\/p>\n
the effect that the articles were kept in the Excise Malkhana from where<\/p>\n
they were brought and sent for chemical examination. This relevant aspect<\/p>\n
appears to have been missed by the High Court. In Valasla’s case (supra),<\/p>\n
it was not laid down that whenever there is delay in sending the samples, the<\/p>\n
prosecution version would become vulnerable.         What was emphasised<\/p>\n
related to proper and safe custody of the seized articles. In the background<\/p>\n
to that particular case, when delay of 3 months was there and there was no<\/p>\n
clear evidence as to with whom the articles were lying, the decision was<\/p>\n
rendered. No evidence was led to show that the contraband articles were in<\/p>\n
proper custody and in proper form. But the factual situation is different<\/p>\n
here. That being so, the High Court’s judgment does not stand scrutiny and<\/p>\n
is set aside. The conviction as done by the trial Court was proper.” It was<\/p>\n
also held that merely because the articles were kept in the excise malkhana<\/p>\n
for four days would not make the prosecution version suspect.
\n Criminal Appeal No.1519-SB of 2005                             -10-<\/span><\/p>\n
             Herein, Satbir Singh HC PW2 has deposed that “On 3.10.1998,<\/p>\n
I was posted as MHC in Police Station Guhla. On that day, Mange Ram<\/p>\n
Inspector CIA Staff Kaithal deposited with me 30 bags of poppy husk<\/p>\n
sealed with the seals of MR, SS, PS and JC along with sample seal and 30<\/p>\n
sample of poppy husk sealed with the same seals. On 9.10.1998 samples<\/p>\n
(30) along with sample seal were sent to FSL through C. Dhoop Singh<\/p>\n
No.680 vide R.C. No.659 dated 9.10.1998. After depositing the same with<\/p>\n
FSL, C. Dhoop Singh handed over receipt thereof to me on the same day.<\/p>\n
So long as the case property, sample remained with me I did not tamper<\/p>\n
with it nor allowed any body to do so.” Mange Ram PW7 has testified that<\/p>\n
“SHO Jagdish Chander also reached the spot. In his presence, accused, case<\/p>\n
property and witnesses were produced before him.          SHO verified the<\/p>\n
invsetigation and affixed his seal JC on each parcels, and directed me to<\/p>\n
deposit the case property with the MHC. Accordingly on the same day, I<\/p>\n
deposited the case property with MHC. Ex.P1 to Ex.P30 are the same bags,<\/p>\n
which were recovered from the accused.” In FSL report Ex.PH, it has been<\/p>\n
mentioned that 30 sealed cloth parcels each sealed with one seal of PS, one<\/p>\n
seal of SS, one seal of MR and one seal of JC were received in the<\/p>\n
laboratory. These seals on the parcels were found intact and tallied with the<\/p>\n
specimen seals as per forwarding authority letter. All this evidence go a<\/p>\n
long way in proving that right from seizure till their receipt in the<\/p>\n
laboratory, the contents of sample parcels were not tampered with. Thus,<\/p>\n
there is no dent in the prosecution case.   Pirthi Singh District Revenue<\/p>\n
Officer PW3, a disinterested person has fully supported the prosecution<\/p>\n
version.\n<\/p>\n
 Criminal Appeal No.1519-SB of 2005                              -11-<\/span><\/p>\n
            No other material point has been urged or agitated by either<\/p>\n
counsel. On scrutinising and analysing the entire evidence, it emerges out<\/p>\n
that no infirmity surge to the surface. Sequelly, the appeal is dismissed<\/p>\n
being devoid of any merit.\n<\/p>\n
            The Chief Judicial Magistrate, Kaithal is directed to take<\/p>\n
necessary steps to procure the presence of the appellant and to send him to<\/p>\n
the prison for serving out the unexpired portion of his sentence.          The<\/p>\n
Registry is directed to send a copy of this judgment to the learned trial Court<\/p>\n
as well as the Court of learned Chief Judicial Magistrate, Kaithal.<\/p>\n
September 11, 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 Balvinder Singh vs State Of Haryana on 11 September, 2009 Criminal Appeal No.1519-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Appeal No.1519-SB of 2005 Date of Decision:11.09.2009 Balvinder Singh …..Appellant Vs. State of Haryana …..Respondent CORAM:- HON’BLE MR. JUSTICE HARBANS LAL Present:- Mr. K.S. 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