Crl. Appeal No.2089-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.2089-SB of 2004 Date of Decision : 17.12.2008 Kishan Lal S/o Shaker Lal, ....Appellant resident of Village Nabria, P.S.Rashmi, Distt. Chittorgarh, Rajasthan. Versus The State of Punjab ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Kunal Siag, Advocate, for the appellant. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 4.9.2004, rendered by the Judge, Special Court, Ludhiana, vide which he convicted the accused/appellant, for the offence, punishable under Section 18 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 simple imprisonment, for another period of one year, for having been found in possession of 6 kgs. Opium, (falling within the Crl. Appeal No.2089-SB of 2004 2 ambit of commercial quantity), without any permit or licence. 2. The facts, in brief, are that on 15.1.1997, Balwinder Pal, ASI, CIA Staff, Ludhiana, accompanied by two ASIs, both named Hakam Singh, and some other police officials, was returning from Shaheed Bhagat Singh Nagar towards Model Town Extension, after patrolling the areas, when public witness, Amar Singh, met the police party, at Jawaddi canal bridge, who was joined with it. Balwinder Pal, ASI, was talking to Amar Singh, public witness, when at about 2.00 PM, Kishan Lal, accused, came on foot, from the side of Dugri. On seeing the police party, he got down from the canal embankment, and sat down, on his right side, on the pretext of urinating. He was apprehended, on suspicion. Balwinder Pal, ASI, suspected that he was carrying some contraband, in the bag, being held by him, in his right hand, and gave him an offer, as to whether, he wanted the search of the bag, to be conducted, in the presence of a Gazetted Officer, or a Magistrate. The accused, however, reposed trust, in Balwinder Pal, ASI. Despite that Hartej Singh Sekhon, SP(D), a Gazetted Officer, was called by Balwinder Pal, ASI, at the spot, who reached there. After the arrival of Hartej Singh Sekhon, SP(D), search of the bag was conducted, as a result whereof, 6 Kgs. Opium, wrapped in a glazed paper, was recovered. Two samples of 10 grams each, were taken out of the same, and the remaining opium, was put into a separate container. The samples, and the container, containing the remaining opium, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The statements of the witnesses, Crl. Appeal No.2089-SB of 2004 3 were recorded. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 18 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 Hakam Singh, ASI (PW-1), a witness to the recovery, Balwinder Pal, ASI (PW-2), the Investigating Officer, who deposed, with regard to the search and seizure, in this case, as also the arrest of the accused, Hartej Singh Sekhon, Assistant Commandant, 8th Batallion, PAP, Amritsar (PW-3) (at the relevant time posted as SP(D), Ludhiana), in whose presence the search and seizure were effected, Jaswinder Singh, Constable (PW-4), who took the sample parcels, to the office of the Chemical Examiner, and deposited the same there, with seals intact, alongwith the sample seal, Harinder Singh, HC (PW-5), with whom the case property, with seals intact, alongwith the sample seal, was deposited, and who sent the sample parcels to the office of the Chemical Examiner. Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 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 was picked up from bus-stand, Ludhiana, by the Police of CIA Staff, and was falsely involved, in this case. He, however, did not lead any evidence, in his defence. 6. After hearing the Addl. Public Prosecutor for the State, the Crl. Appeal No.2089-SB of 2004 4 Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, 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 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 Amar Singh, independent witness, though joined, yet was not examined, and, as such, it could be said that the prosecution withheld the best evidence, in its possession. He further submitted that, under these circumstances, an adverse inference could be drawn, that had he been examined, he would not have supported the case of the prosecution. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, Amar Singh, independent witness, was joined by the Investigating Officer, at the time of effecting the recovery from the accused. He was also summoned, as a witness, for 6.11.2001, as is evident from the summons attached with the file. On the reverse of the summons, there is report of the Prem Dass, Constable, that Amar Singh, independent witness, had already died. Even copy of the death certificate of Amar Singh, independent witness, was also attached with the report made by Prem Dass, Constable. According to copy of the death certificate, Amar Singh, died on 28.4.1998, and his death was registered on 4.5.1998, in the record of the Municipal Corporation, Ludhiana. It, therefore, could not be said that Amar Singh, independent witness, was Crl. Appeal No.2089-SB of 2004 5 not intentionally and deliberately examined, by the prosecution. Even, in the absence of examination of the independent witness, on account of his death, the evidence of the official witnesses, cannot be distrusted and disbelieved. In the face of the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the official witnesses, in the instant case, has been subjected to indepth scrutiny, and nothing came to the fore, which may go to discredit the same. The evidence of the official witnesses, was rightly found to be cogent, convincing, reliable and trustworthy, by the trial Court. The trial Court, was right, in placing reliance on the same, in coming to the conclusion, that the accused committed the offence, punishable, under Section 18 of the Act. This Court, after reappraisal of the evidence of the prosecution witnesses, also comes to the same conclusion. 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 Crl. Appeal No.2089-SB of 2004 6 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.” 9-A. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere non-examination of Amar Singh, independent witness, on account of his death, 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. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellant, that the provisions of Sections 52, 55 and 57 of the Act, were not complied with, as a result whereof, a great prejudice was caused to the accused. It may be stated here, that as per the provisions of Section 57 of the Act, the Investigating Officer, is required to send a report, with regard to the search and seizure, to the Officer superior, within 48 hours, of the time of recovery. In the instant case, the ruqa was sent, from the spot itself, containing the details of search and seizure, as also the arrest of the accused, to the Police Station, on the basis whereof, the FIR was registered, and copies thereof, by way of special reports, were sent to the Illaqa Magistrate, as also to the superior Officers of the Police. It means, that there was complete compliance with the provisions of Section 57 of the Act. Even the provisions of Section 55 of the Act, were duly Crl. Appeal No.2089-SB of 2004 7 complied with. Balwinder Pal, ASI, the Investigating Officer, called the Superintendent of Police, to the spot, who reached there, it was in his presence, that the search and seizure of the accused, were effected. The superior Officer, therefore, was apprised of the facts and circumstances of the case. Even the case property was sealed, in his presence, and he also affixed the seal thereon. Not only this, on the next date, the case property, sample parcels, and the accused, were produced before the Illaqa Magistrate, by Balwinder Pal, ASI, (PW-2), as is evident from his statement, vide application, Ex.PF, and the Magistrate concerned passed the order, Ex.PF/1, thereon. There was, thus, complete compliance, with the provisions of Section 55 of the Act, in this case. Balwinder Singh, ASI, also stated that he orally conveyed the grounds of arrest, to the accused. There is no provision of law, that the grounds of arrest, should be served upon the accused, in writing. The accused was apprised that, he was being arrested for having been found in possession of 6 Kgs. opium, without any permit or licence, as he had committed the offence, punishable under Section 18 of the Act. There was, therefore, complete compliance of the provisions of Section 52 of the Act. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellant, that there was delay of 13 days, in sending the samples, which remained unexplained, as a result whereof, it could not be said that the samples were not tampered with, until the same reached the office of the Chemical Examiner. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that delay, in sending the Crl. Appeal No.2089-SB of 2004 8 samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence produced by the prosecution, has been subjected to indepth scrutiny, and, as stated above, it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex.PG, which clearly proves that the seals on the samples, were found intact, and tallied with the specimen seal sent. The report of the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions of Section 293 Cr.P.C. The delay in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In these circumstances, it was Crl. Appeal No.2089-SB of 2004 9 held that, in the face of the other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 13 days, in sending the samples to the office of the Chemical Examiner, 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. It was next submitted by the Counsel for the appellant, that material contradictions, appeared, in the statements of the prosecution witnesses, which remained unexplained, but were not taken into consideration, in its proper perspective, by the trial Court, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence. Hakam Singh, ASI (PW-1), stated that both the seals, were handed over to him, whereas, Hartej Singh Sekhon, at the relevant time SP(D) (PW-3), stated that one seal was handed over to Hakam Singh, ASI, and he retained his own seal. Hakam Singh, ASI (PW-1), in his cross-examination, stated that independent witness Amar Singh, was on foot, whereas, Balwinder Pal, ASI (PW-2), the Investigating Officer, stated that the independent witness, came on a bicycle. Hakam Singh, ASI (PW-1), stated that Amar Singh, independent witness, stayed at the spot, for one hour, whereas, Balwinder Pal, ASI (PW-2), stated that Amar Singh, independent witness, stayed for about 15 minutes. It appears that the contradictions aforesaid, which are not material, but insignificant, Crl. Appeal No.2089-SB of 2004 10 cropped up, in the evidence of the aforesaid witnesses, on account of considerable lapse of time, between the date of recovery, they date of their deposition, and fading of memory. The recovery, in this case, was effected on 15.1.1997, whereas, Hakam Singh, ASI (PW-1) and Balwinder Pal, ASI (PW-2), were examined on 21.4.2001, whereas Hartej Singh Sekhon, Assistant Commandant, 8th Batallion, PAP, Amritsar (PW-3), was examined on 19.7.2001. It means that these witnesses, were examined after more than 4 years of the date of recovery. It was, therefore, not possible for them, to remember all the minute details, relating to the recovery. The evidence of these witnesses, with regard to the date, time and place of recovery, is consistent. Such like contradictions, are bound to occur, in the statements of the truthful witnesses. These contradictions, also clearly go to prove, that the witnesses were not tutored, but truthful. They were not expected to make parrot-like statements, in the Court. These contradictions, being immaterial, and insignificant, were rightly ignored by the trial Court. No doubt, whatsoever, was cast on the case of the prosecution, on account of existence of these contradictions, in the statements of the prosecution witnesses. 13. It was next submitted by the Counsel for the appellant, that Harinder Singh, HC (PW-5), in his affidavit, Ex.PG (doubly numbered), stated that there were two seals, bearing impressions 'HS' and 'BP', on the case property, and the samples, whereas, in his statement, under Section 161 Cr.P.C., he stated that there was only one seal, on the case property, and the sample parcels. The Counsel for the appellant, submitted that this clearly proved that the link evidence was incomplete. He also submitted Crl. Appeal No.2089-SB of 2004 11 that, in view of the statement of Harinder Singh, HC (PW-5), it could be said that the sample parcels, were tampered with. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is proved from the evidence of Hakam Singh, ASI (PW-1), Balwinder Pal, ASI (PW-2), the Investigating Officer, Hartej Singh Sekhon, Assistant Commandant, 8th Batallion, PAP, Amritsar (PW-3) (at the relevant time posted as SP(D), Ludhiana), and Jaswinder Singh, Constable (PW-4), that the sample parcels, were sealed with two seals, bearing impressions 'BP' and 'HS'. Jaswinder Singh, Constable (PW-4), in his statement, in the Court, also stated that the sample parcels, and the case property, were sealed with two seals, bearing impressions 'BP' and 'HS'. Somehow, or the other, in his statement, under Section 161 Cr.P.C., it was stated by Harinder Singh, HC, that the case property, and the sample parcels, carried only one seal, bearing impression 'HS'. If some discrepancy cropped up, in the statement, under Section 161 Cr.P.C., of this witness, that did not make the substantive evidence of the aforesaid witnesses, in any way, incredible. In the face of the cogent, convincing, ocular and documentary evidence, produced by the prosecution, the statement of Harinder Singh, HC, under Section 161 Cr.P.C., mentioning that there was only one seal, bearing impression 'HS', was hardly of any consequence. Above all, there is a report of the Chemical Examiner, Ex.PG, to the effect, that the seals, on the sample parcels, were intact, and tallied with the sample impression of the seals. Sample impression of the seals is Ex.P-1. It is evident from Ex.P-1, that the seals bearing impressions 'BP' and 'HS', are affixed thereon. As such, the submission of the Counsel for the appellant, being without merit, must fail, and the Crl. Appeal No.2089-SB of 2004 12 same stands rejected. 14. No other point, was urged, by the Counsel for the parties. 15. 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. 16. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 4.9.2004, are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Ludhiana, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Cr.P.C., and submit compliance report, to this Court, within a period of two months, from the date of receipt of a copy thereof. 17. The District & Sessions Judge, Ludhiana, is directed to ensure that the directions are complied with strictly by the Court of Chief Judicial Magistrate, Ludhiana, and the compliance report is sent within the time-frame. 18. The Registry shall keep track that the compliance report is received within the time-frame. Whether the compliance report is received within the time-frame or not, the papers shall be put up after two days of the expiry of the same, for further action. 17.12.2008 (SHAM SUNDER) Vimal JUDGE