IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Crl. Appeal No.1589-SB of 2002 Date of decision : 15-05-2008 Janta alias Gurjant Singh son of Shri Teja Singh, resident of Village Subba Khera, Tehsil and District Sirsa. .............Appellant State of Haryana ..............Respondent CORAM : HON'BLE MR. JUSTICE SHAM SUNDER Present : Mr. Jagjit Gill, Advocate for the appellant. Mr. A.K. Jindal, A.A.G., Haryana for the respondent. Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 21.08.2002, rendered by the Court of Additional Sessions Judge, Sirsa, vide which it convicted the accused/appellant Janta and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.one lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years, for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as `the Act’ only) for having been found in possession of 03 bags, each containing 40 kilograms of poppy husk, without any permit or licence. Crl. Appeal No.1589-SB of 2002 -2- 2. The facts, in brief, are that on 06.05.1997, the police party headed by Harbhajan Singh, ASI and other police officials, was present in Village Subba Khera. The members of the police party were talking to Sada Singh, Chowkidar. Harbhajan Singh, ASI, received a secret information against the accused that he had concealed Poppy Husk in his residential house and if a raid was conducted, the same could be recovered. Sada Singh, Chowkidar, was joined with the police party. Thereafter, the police party went to the house of the accused. The accused ran away by scaling over the wall of the house. Thereafter, a V.T. message was flashed, as a result whereof, Lal Chand, DSP reached the spot. On his directions, search of the house of the accused was conducted by ASI Harbhajan Singh, as a result whereof, three bags, each containing 40 kilograms of poppy husk were recovered. A sample of 100 grams poppy husk, from each of the bags, was taken out, and the remaining poppy husk, was put into the same bags. The samples and the bags were duly sealed, and converted into parcels. Thereafter, the case property was taken into possession vide separate recovery memo. The accused was later on arrested. After the completion of investigation, he 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 Sube Singh, Inspector, PW-1, Lal Chand, D.S.P., PW-2, Jagdish Chander, Constable, PW-3, Jagdish Chander, Head Constable, PW-4 and Harbhajan Singh, Crl. Appeal No.1589-SB of 2002 -3- ASI, PW-5. The Public Prosecutor for the State, tendered into evidence exhibit PD, report of the Forensic Science Laboratory. He also gave up Sada Singh as PW, as won over, by the accused. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, produced Sada Singh, DW-1, in support of his case. 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/appellant, as stated hereinbefore. 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 learned 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 outset, submitted that Sada Singh, Chowkidar, no doubt, was joined by the police party, yet he was not examined by the prosecution, as a result whereof, its case became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, Sada Singh, Chowkidar was joined with the police party, yet he joined hands with the accused, during the trial of the case, and, as such, he was given up, as won over, by the Public Prosecutor for the State, on the basis of the report of Jagdish Crl. Appeal No.1589-SB of 2002 -4- Chander, MHC. The factum that Sada Singh actually joined hands with the accused, during the trial of the case, was strengthened, when he was examined as DW-1 by him (accused). It was stated by Sada Singh (DW1) in his statement that he was summoned to the Police Station, and his thumb impressions were obtained, but no recovery was effected, in his presence. Sada Singh, being Chowkidar, could not be expected to thumb mark the blank documents. Under these circumstances, his explanation, to the effect, while appearing as, DW-1, that his thumb impressions were obtained on blank papers, is not at all correct and acceptable. Since Sada Singh joined hands with the accused, the Public Prosecutor for the State, took a wise decision to give him up, as won over, as he knew that if he was examined as a prosecution witness, he would damage the case of the prosecution. In these circumstances, non-examination of Sada Singh, did not give rise to any adverse interference. Even otherwise, the evidence of the official witnesses cannot be disbelieved and distrusted, merely on account of the fact that the same was not corroborated by an independent witness. In the face of the evidence of the official witnesses, only, the Court is put on guard, to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the evidence of the official witnesses is reliable, then no formidable reason can be coined, to disbelieve the same. In the instant case, the evidence of the official witnesses, has been subjected to in-depth scrutiny, but nothing of consequence came to the fore, which may go to discredit of the same. The evidence of the official witnesses, in this case, has been found to be cogent, convincing, reliable and trustworthy. In Roop Singh Vs.State of Punjab 1996(1) RCR 146, a Division Bench of this Court, Crl. Appeal No.1589-SB of 2002 -5- held that no adverse inference, can be drawn, when the only independent witness was given up, by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over, by the accused, and only the official witnesses were examined, by the prosecution, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. In this view of the matter, the submission of the cousnel for the appellant, being without merit must fail and the same is rejected. 10. It was then contended by the Counsel for the appellant, that though a secret information was received, against the accused, that he was concealing poppy husk, in his house, yet the same was neither reduced into writing, nor sent to the officer superior, as a result whereof, the investigation and the trial stood vitiated. It is, no doubt, true that a secret information was received by the Investigating Officer, namely, Harbhajan Singh, ASI, when he was going towards Suba Khera from Baragudha, in Government Jeep, bearing No.HR-24-6100. It means that the Investigating Officer alongwith other police officials, was in motion, at the time, the secret information was received. Under these circumstances, the Investigating Officer did not waste time, in recording the secret information, received by him, against the accused as had he done so, the chances of abscondance of the accused, on account of leakage of Crl. Appeal No.1589-SB of 2002 -6- information, would not have been ruled out, resulting into the defeat of the very purpose of the raid. Since the raid was to be conducted, at the house of the accused, immediately, the information could not be reduced into writing, nor could it be sent to the officer superior. However, the Investigating Officer informed the Deputy Superintendent of Police, on receipt of the secret information, with regard to the same, by sending a V.T. message. Not only this, even report under Section 57 of the Act, Exhibit PG/1 was sent by the ASI to the SHO, Police Station, Baragudha, on the same day, wherein, a detailed information was given with regard to the secret information and recovery of three bags, containing poppy husk. It means that the Investigating Officer substantially complied with the provisions of Section 42 of the Act in Sajjan Abraham Vs. State of Kerala (2001) 6 Supreme Court Cases 692, a case decided by a three Judge Bench of the Apex Court, in somewhat similar circumstances, it was held by the Apex Court, that substantial compliance with the provisions of Section 42 would be sufficient, and the strict compliance should not be insisted upon. The facts of Sajjan Abraham's case (supra) were to the effect that HC (PW-3), got information, at about 7 PM, that the appellant was selling injectable narcotic drugs, at a particular place. When he proceeded for the Police Station, to give this information, to his immediate superior, Sub Inspector of the police (PW-5), he found him (PW-5) alongwith his police party, which was on patrol duty coming, and hence the said information was communicated there by PW-3 to PW-5. Thereafter, PW-5, alongwith his police party, and, PW-3, proceeded immediately towards the place, where the appellant was standing, and apprehended Crl. Appeal No.1589-SB of 2002 -7- him. It was contended that PW-5 had not reduced into writing, the information, given by PW-3, with respect to the accused/appellant's involvement, before proceeding to arrest him, nor he had communicated it to his immediate superior, which constituted violation of Section 42. The said contention of the Counsel for the appellant, was repelled by the Apex Court, holding that, PW-5, could not have recorded the information given by, PW-3, and communicate the same, to his superior, while he was in motion, being on patrol duty, in a jeep, before proceeding to apprehend the accused. Had he not acted immediately, the appellant would have escaped. On these facts, it was held by the Apex Court, that no inference could be drawn, that there had been any violation of the provisions of Section 42 of the Act. In these circumstances, in the said authority, it was held as under :- “ In construing any facts to find, whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisins obligatory for the prosecution to comply with, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation n the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. The court however while construing such provisions strictly should not interpret the same so literally as to render their compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of Crl. Appeal No.1589-SB of 2002 -8- a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out.” In this view of the matter, the submission of the counsel for the appellant being without merit, must fail and the same is rejected. 11. It was next contended by the Counsel for the appellant, that the provisions of Section 55 of the Act, were not complied with, as a result whereof, a prejudice was caused to the accused. It may be stated here, that the provisions of Section 55 are directory, in nature, and non- compliance thereof, does not ipso facto, vitiate the investigation and trial. However, in the instant case, the provisions of Section 55 were duly complied with, by the Investigating Officer. It was stated by ASI Harbhajan Singh, PW-5, in his statement, that on reaching the Police Station, he produced the case property, the witnesses, as also the samples, before Vijay Kumar, Sub Inspector, SHO of Police Station Baragudha, who verified the facts of the case and affixed his own seal `VK' on the sample parcels and the residue parcels. From the statement of Harbhajan Singh, ASI, it is proved that there was compliance of the provisions of Section 55 of the Act. Under these circumstances, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next submitted by Counsel for the appellant, that the seal, after use, in this case, was handed over by Harbhajan Singh, ASI, to Aman Kumar, Head Constable, and not to Sada Singh, independent witness. He further submitted that, under these circumstances, the possibility of tampering with the samples, until the same reached the Office of the Forensic Science Laboratory, could not be ruled out. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. There is no requirement of law that the seal, after use, should be Crl. Appeal No.1589-SB of 2002 -9- handed over to an independent witness. There is also no requirement of law that the independent witness, to whom, the seal, if handed over, should be examined in the Court. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal affixed, on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person, forthwith. Similarly, the independent person, though entrusted with the seal, by the Investigating Officer, was not produced, as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the case, and the prosecution case could not be thrown out, on that score alone. It was further held, in this case, that it was not incumbent upon the Police Officer, to hand over the seal to a third person forthwith, and even, in cases, where he had done so, it was not obligatory for him, to produce such person, as a witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. In the instant case, the other evidence, produced by the prosecution, clearly proves that none tampered with the samples, until the same reached the Office of the Forensic Science Laboratory. In the face of the cogent, convincing, reliable and trustworthy evidence, produced by the prosecution, regarding the completion of link evidence, non-handing over the seal to an independent witness, by the Investigating Officer, did not at all, go to prove that the samples were tampered with, at any stage. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. 13. It was next submitted by the Counsel for the appellant, that Crl. Appeal No.1589-SB of 2002 -10- the link evidence was missing, in this case, in as much as, there was a delay of 15 days in sending the samples to the Office of the Forensic Science Laboratory. It is, no doubt, true that there was delay of 15 days in sending the samples to the Forensic Science Laboratory. Mere delay in sending the samples to the Forensic Science Laboratory, in itself, is not sufficient to come to the conclusion, that the samples were tampered with, at any stage. In the instant case, other evidence produced by the prosecution, as stated above, has been held to be cogent, convincing, reliable and trustworthy. From the said evidence, it is proved beyond doubt, that none tampered with the samples, till the same reached the Office of the Forensic Science Laboratory. Above all, there is the report exhibit PD of the Forensic Science Laboratory, which clearly goes to prove that the seals on the samples, were intact, and tallied with the sample impression of the seals sent. Under these circumstances, every possibility of tampering with the samples, at any stage, until the same reached the Office of the Forensic Science Laboratory, was ruled out. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellant, that the provisions of Section 100(4) of the Code of Criminal Procedure, were not complied with, as a result whereof, the search and recovery became illegal. It may be stated here, that the provisions of Section 100(4) are not mandatory in nature. These are only directory, in nature. Sada Singh, Chowkidar was present with the police party. However, no two respectables of the locality could be joined, at the time of search. It is a Crl. Appeal No.1589-SB of 2002 -11- matter of general experience that no independent person from the locality, comes forward to join the police party, at the time of raid or recovery, as he does not want to incur the wrath of his neighbourer unnecessarily. In Sunder Singh Vs. State of U.P., AIR 1956 Supreme Court 411, two persons not belonging to the locality, had been joined, at the time of search. It was contended by the Counsel for the appellant, that since the provisions of (Section 103 Cr.P.C. of 1898), now (Section 100(4) Cr.P.C. 1973), were not complied with, at the time of search, the search and the consequent recovery became illegal, and could not be taken into consideration. Repelling the contention, it was held that assuming that the persons, who actually witnessed the search, were not respectable inhabitants of the locality, that circumstance would not invalidate the search. It would only affect the weight of the evidence, in support of the search and recovery. Hence, at the highest, the irregularity in search and the recovery, in so far as the terms of (Section 103 Cr.P.C of 1898) had not been fully complied with, would not affect the legality of the proceedings. In Puran Mal Vs. Director of Inspection (1974) 1 SCC 345, a Constitution Bench of the Apex Court, held that the material obtained by an illegal search, is not inadmissible into evidence, and can be acted upon, to record a conviction. In view of the principle of law, laid down, in the aforesaid authorities, on account of non-joining of two respectables of the locality, at the time of search and seizure, the case of the prosecution did not become doubtful, in any manner. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. No other point, was urged, by the Counsel for the parties. 16. In view of the above discussion, it is held that the judgment of Crl. Appeal No.1589-SB of 2002 -12- 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. 17. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 21.08.2002, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, Sirsa, is directed to comply with the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure. (SHAM SUNDER) JUDGE May 15, 2008 gurpreet