Crl. Appeal No.1003-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.1003-SB of 1997 Date of Decision : March 25, 2008 Gopal S/o Sher Singh, ....Appellant R/o Village Sardarewala, P.S.Ratia. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.S.Chahal, Advocate, for the appellant. Mr. Kartar Singh, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 27.11.1997, and the order of sentence dated 28.11.1997, rendered by the Court of Addl. Sessions Judge, Hisar, vide which it convicted accused/appellant Gopal for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years. 2. The facts, in brief, are that on 6.8.1996, Prem Chand, ASI, alongwith other police officials, was on patrol duty, on the katcha path, leading to village Miran, from village Daroli, and when they reached near village Daroli, the accused was seen coming from the side of village Miran, on a Moped, on which 3 bags, were loaded. He was intercepted. The search of the bags, in accordance with the provisions of law, was conducted. One bag was found containing 45 kgs. Poppy-husk, and the remaining two bags, were found containing 20 kgs. poppy-husk each. A sample of 100 grams from each of the Crl. Appeal No.1003-SB of 1997 2 bags, was drawn. The samples and the remaining poppy-husk were converted into parcels, duly sealed with the seal, and were taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. The statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Tek Chand, HC, (PW-1), Pritam Singh, Constable (PW-2), Lal Singh, HC (PW-3), Prem Chand, ASI, (PW-4), and Rajinder Singh, SI (PW-5). Threafter, the Public Prosecutor for the State, after tendering into evidence, Ex.PJ, report of the Forensic Science Laboratory, closed the same. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that he had gone to Adampur alongwith co-villagers to meet his relation and to purchase goats because he was doing the business of goats. He further stated that he was apprehended on suspicion, and later on, implicated falsely. It was also stated by him that nothing was recovered from his possession. He, however, examined Mahabir Parshad, Constable (DW-1), Randhir Singh, ASI (DW-2), and thereafter, closed the defence evidence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. Crl. Appeal No.1003-SB of 1997 3 7. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very out-set, contended that there was complete violation of the mandatory provisions of Section 50 of the Act, in this case. It may be stated here, that the provisions of Section 50 of the Act, were not applicable to the facts of the present case, as the recovery of poppy-husk, was effected from bags, being carried by the accused, on the Moped. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt that the language of Section 50, was implicitly clear that the search had to be in relation to a person, and not search of premises, vehicles, or articles. Similar, view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In these circumstances, it can be said that the consistent, and particularly, the view of the larger Bench of the Supreme Court appears to be that the search, must relate to the person, and not vehicle, other luggage and articles, and then alone the provisions of Section 50 would be attracted. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts and circumstances of the present case. Since the provisions of Section 50 were not applicable, to the facts of the present case, the question of non-compliance of the provisions of Section 50 of the Act, paled into insignificance. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellant, that no independent witness was joined, though the place of recovery was a public place. It is, no doubt, true that no independent witness was joined, at the time of Crl. Appeal No.1003-SB of 1997 4 recovery. Prem Chand, ASI, (PW-4), during the course of his cross- examination stated that persons, who had come to the spot, at the time of the alleged recovery, refused to join them in investigation. It means that an effort was made, but the Investigating Officer, was not successful. The evidence of the official witnesses, cannot be distrusted and disbelieved, merely on account of their official status. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled that the evidence of search or seizure, made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:- “It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.” 10-A. In Appa Bai and another Vs. State of Gujrat, AIR 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined, by the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves in it. The principle of law, laid down, in the aforesaid authorities, is Crl. Appeal No.1003-SB of 1997 5 fully applicable to the facts of the present case. In these circumstances, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate, the accused, no doubt is cast on the prosecution story. In this view of the matter, the submission of the Counsel for the appellants, stands rejected. 11. It was further contended by the Counsel for the appellant, that the alleged recovery was effected on 6.8.1996, whereas the sample was sent to the Forensic Science Laboratory on 26.8.1996. He further contended that the delay of 20 days in sending the sample, was not explained. He further contended that the possibility of tampering with the sample, until it reached the office of the Forensic Science Laboratory, could not be ruled out. It is, no doubt, true that no explanation was furnished by the prosecution witnesses, with regard to the delay of 20 days, in sending the sample to the office of the Forensic Science Laboratory, yet this fact alone in my considered opinion, is not sufficient to throw away the case of the prosecution over board. In such circumstances, the Court is required to take into consideration the entire evidence produced by the prosecution. If after indepth analysis of the evidence, produced by the prosecution, the Court comes to the conclusion, that the delay in sending the sample, had not at all affected the merits of the case, then such delay pales into insignificance. In the instant case, the cogent, convincing, reliable and trustworthy evidence of the official witnesses, has been subjected to indepth scrutiny. On such an indepth scrutiny of the evidence of these witnesses, including the report of the said laboratory, the trial Court came to the conclusion that delay in sending the sample to the office of the Forensic Science Laboratory, did not affect the merits of the case, nor did it go to prove, in the instant case, that, at any stage, the sample parcel and the case property, were tampered with. This Court, after careful perusal of the evidence, referred to Crl. Appeal No.1003-SB of 1997 6 above, also comes to the same conclusion. Therefore, in the instant case, unexplained delay of about 20 days in sending the sample to the office of the Forensic Science Laboratory, did not at all matter much. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. No other point, was urged, by the Counsel for the parties. 13. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 14. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 27.11.1997, and the order of sentence dated 28.11.1997, are upheld. If the accused/appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment, with due promptitude. March 25, 2008 (SHAM SUNDER) Vimal JUDGE