[CASE NUMBER] 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] DATE OF DECISION : November 20, 2013 [ENTITY] and another Appellants Versus [ENTITY] Respondent CORAM: HON'BLE MR.JUSTICE [ENTITY] HON'BLE MRS. JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate for the appellants. Mr.[ENTITY], Additional Advocate General, Punjab for the State-respondent. 1. Whether the judgment should be reported in the digest? Yes [ENTITY], J.
1. Accused [ENTITY] and [ENTITY] who were convicted under [SECTION] of the [ACT] and sentenced thereunder have preferred the present appeal.
2. The case of the prosecution is well projected through the evidence of PW4 [ENTITY], Station House Officer, Police Station Sadar Faridkot. He has deposed as follows:-
On 4.6.2007 he proceeded along with PW8 ASI [ENTITY] and other police officials to Bajakhana Chowk, Jaitu in connection with patrolling and checking of bad elements. He received a secret information that accused [ENTITY], [ENTITY] and [ENTITY] were indulging in selling poppy husk and opium in that area. The police party headed by PW4 held a naka at the bus stand Bhagtuana. [ENTITY] an independent witness joined the police party. A Ford Ikon car with blue light installed on the roof was found coming. The car was signalled to stop. One person succeeded in running away after opening the conductor side window of the vehicle. Accused [ENTITY] and [ENTITY] were apprehended. [ENTITY] was found driving the vehicle. [ENTITY] was sitting on the front seat besides the driver. The person who escaped was found sitting on the back seat. A jute bag used for tea packing was found near the feet of [ENTITY].
3. PW4 informed the accused that he suspected transportation of contraband through the above vehicle. He also informed them that they had the right to get the search conducted in the presence of a Magistrate or a Gazetted Officer. The accused expressed his desire to have the search conducted in the presence of a Gazetted Officer. Message was sent to PW5 DSP [ENTITY] to come to the spot. On his arrival, he disclosed his identity to the accused. As both the accused reposed confidence in him, a search was conducted in the presence of PW5. A sum of `7,95,602/- was recovered from the bag found in the car. There was a plastic box in the bag. Opium was wrapped in a glazed paper. Two samples of 10 gms. each were separated. The remaining quantity of opium weighed 10Kg. and 200 grams. The samples and the remaining quantity were separately parcelled and sealed with the seal of PW4 and PW5. The seal of PW4 after use was handed over to PW8 SI [ENTITY]. The accused and the material objects were produced before PW7 ASI [ENTITY] who, in turn, produced the same before the learned Judicial Magistrate.
4. The sample sent for examination was found to be opium as per the FSL report.
5. The accused set up a plea that no recovery was effected from them but a false case was foisted by associating a stock witness [ENTITY]. In fact `8 lacs were recovered from the house of [ENTITY] of village Sewewala. The arrest and recovery were falsely shown, it was contended.
6. On the side of the defence, about 9 witnesses were examined to dispute the alleged recovery of `7,95,602/- from the possession of the accused. Rather they have let in defence evidence that it was recovered from the house of [ENTITY].
7. The trial court having adverted to the evidence on record returned a verdict of conviction under [SECTION] of the [ACT].
8. The learned counsel appearing for the appellants would vehemently submit that a stock witness [ENTITY] was cited but not examined by the prosecution. No independent witness was examined to establish the case of the prosecution. The seal after use should have been handed over to the independent witness. The Ford Ikon vehicle allegedly recovered was not connected to the accused. The recovery of Bollero Jeep and Motorcycle had no connection with the case. Though, PW4 received secret information, the mandate of [SECTION] of the [ACT] was not adhered to. Gun allegedly recovered was not at all produced before the court. There was no reason for PW4 to be present at the site for 12 long hours. The trial court failed to appreciate the defence evidence let in by the accused. Therefore, it is his submission that the appellants are entitled to acquittal.
9. We heard the submissions made by the learned Additional Advocate General appearing for the [ENTITY] supporting the verdict of conviction and sentence passed by the trial court.
10. PW4 [ENTITY] who was serving as CIA staff, Faridkot and PW8 ASI [ENTITY] have spoken in one voice about the search of Ford Ikon car bearing Registration No. RJ-19-2C-0862 wherein the accused [ENTITY] was sitting on the front side of the seat besides accused [ENTITY] who was driving the vehicle. The jute bag was found lying underneath the feet of accused [ENTITY]. It is to be noted that PW4 had received secret information that these two accused appellants along with another accused were indulging in selling poppy husk and opium.
11. As per the evidence of PW4 [ENTITY] wireless message had been sent to PW5 DSP [ENTITY]. The search was made in the presence of a Gazetted Officer namely PW5 DSP [ENTITY]. PW4, PW5 and PW8 have spoken to the recovery of 10 Kilograms and 200 grams of opium apart from a sum of `7,95,602/- from the car which was driven by accused [ENTITY] and occupied by [ENTITY]. The samples as well as the remainder of the contraband had been separately parcelled and sealed. The seal on the sample was found intact by the FSL. The FSL report would disclose that the sample sent for examination was nothing but opium. In our view, the prosecution has stablished that the accused were found in conscious possession of large quantity of opium.
12. It is true that the only independent witness [ENTITY] who was associated by PW4 was found to be a witness who had already been cited as a witness in a similar case. In other words, we can conclude that [ENTITY] was a stock witness. In our view, the Investigating Officer had to resort to the assistance of a stock witness as no public person had come forward to assist him in the process of investigation.
13. In this context, it would be very useful to refer to the decision of Hon'ble Supreme Court in [PRECEDENT] wherein it has been held as follows:-
"As far as first submission is concerned, it is evincible from the evidence on record that the police officials had requested the people present in the 'dhaba'; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weights over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil [ENTITY], 1990 (3) R.C.R. (Criminal) 585 : 1988 Supp SCC 686, [PRECEDENT] and [PRECEDENT]. Appreciating the evidence on record on the unveil of the aforesaid principles, we do not perceive any acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and absolutely trustworthy."
14. In view of the ratio laid by the Hon'ble Supreme Court the trustworthy evidence of PW4, PW5 and PW8 cannot be discarded just because no independent witness was examined by the prosecution.
15. It is true that the secret information was not reduced into writing by PW4 but the fact remains that he had sent a wireless message to PW8, the immediate superior officer, who had come down responding to the request of PW4 and supervised the entire process of recovery made by PW4. In our considered view, the wireless message sent by PW4 intimating PW8 his official superior about the secret information he received would amount to material compliance of the provision of [SECTION] of the [ACT].
16. In this context reference may be made to the ratio in Bahadur [ENTITY] versus State of Haryana 2010 (2) R.C.R. Criminal 586 where in the Supreme Court has held as follows:-
"It cannot but be noticed that with the advancement of technology and the availability of high speed exchange of information, some of the provisions of the [ACT], including [SECTION], have to be read in the changed context. Apart from the views expressed in [PRECEDENT]'s case (supra) that the delay caused in complying with the provisions of [SECTION] could result in the escape of the offender or even removal of the contraband, there would be substantial compliance, if the information received were subsequently sent to the superior officer. In the instant case, as soon as the Investigating Officer reached the spot, he sent a wireless message to the Deputy Superintendent of Police, Kurukshetra, who was his immediate higher officer and subsequent to recovery of the contraband, a Ruqa containing all the facts and circumstances of the case was also sent to the Police Station from the spot from where the recovery was made on the basis whereof the First Information Report was registered and copies thereof were sent to the Ilaqa Magistrate and also to the higher police officers. As was held by the High court, there was, therefore, substantial compliance with the provisions of [SECTION] of the [ACT] and no prejudice was shown to have been caused to the accused on account of non-reduction of secret information into writing and non-sending of the same to the higher officer immediately thereafter."
17. It is found that PW2 ASI [ENTITY] had recovered a Bollero vehicle and some arms and ammunitions at the instance of accused [ENTITY]. In our view, the recovery of those material objects do not have any connection with the case in hand. Therefore, any lapse on the part of the Investigating Officer in not depositing those material objects does not throw any doubt on the case of the prosecution.
18. PW4 had remained at the site for 12 hours. It may be a case where such a long duration was taken for carrying out all formalities. Even otherwise long stay at the site by the Investigating Officer does not in any way tilt the case of the prosecution in favour of the defence.
19. The evidence let in by the defence to show that a sum of `8 lacs was recovered from the house of [ENTITY] does not appear to be believable, as we find that such a huge amount would not have been shown as a recovery from the accused, if at all the same had been recovered from the house of some other person.
20. In our considered view, the trial court has rightly passed the verdict of conviction as against the accused, having properly evaluated the evidence on record. We do not find any merit in the appeal. Therefore, the appeal stands dismissed.
([ENTITY]) JUDGE ([ENTITY]) JUDGE November 20, 2013 p.singh