Crl. Appeal No.D-792-DB of 2004 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.D-792-DB of 2004 Date of Decision :21.07.2011 Jasmer @ Guddu ... Appellant Versus State of Haryana .... Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. John Kumar, Advocate for the appellant. Mr. Saurab Mohunta, DAG, Haryana, for the respondent-State. -- Vijender Singh Malik, J. Jasmer @ Guddu son of Ram Kishan, r/o village Nara (hereinafter referred to as 'the appellant') has preferred an appeal questioning the judgment of his conviction dated 09.07.2004 for an offence punishable under section 20 of the Narcotic and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and the order of sentence dated 12.07.2004 passed by learned Special Judge, Panipat, vide which he has been sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs.1,25,000/-, with further rigorous imprisonment for three years in default of payment of fine. The case of the prosecution against the appellant is as under:- Crl. Appeal No.D-792-DB of 2004 --2-- On 18.06.2000 Zile Singh, SI accompanied by other police officials was present at Bus Stand, Matlauda in connection with patrolling. He received a secret information there against the appellant that he is selling charas. Finding the information to be reliable, Zile Singh, SI proceeded towards the bus stand of village Nara. In the meantime, he saw a man in T-shirt and pant coming from the side of Assandh road within the area of village Nara. He was carrying a white bag in his right hand. On suspicion, he was apprehended. On inquiry, he told his name and address. He was suspected to be carrying some contraband item in the bag. So notice was given to him in pursuance of the provisions of section 50 of the Act for his search in the presence of a Gazetted Officer or a Magistrate. The appellant exercised his option in favour of his search, to be conducted in the presence of some Magistrate. Consequently, Mr. Balraj Singh Jakhar, Naib Tehsildar, Panipat was called and in his presence, the bag carried by the appellant was opened. It was found containing 3 kilograms of charas. Out of it, a sample weighing 100 grams was drawn. The sample and the remainder were converted into separate parcels and were sealed with seals 'ZS and 'BR'. The sealed parcels were taken into possession alongwith the bag, in which the same was carried by the appellant as also the weighing scale and weight of 100 grams, which had also been found in the bag. Ruqa Ex.PG was sent to the police station for registration of case against the appellant, on Crl. Appeal No.D-792-DB of 2004 --3-- which FIR Ex.PG/1 was recorded by Joginder Singh,MHC. Zile Singh, SI, then prepared rough site plan of the place of recovery. He had arrested the appellant and recorded the statements of the witnesses. He then produced the appellant, witnesses and the case property before Surinder Singh, SI at Bus Stand, Matlauda for verification. The SHO verified the facts of the case and affixed his seal 'SS' on both the parcels. Zile Singh, SI then recorded statement of Surinder Singh, SI/SHO. He then deposited the case property with the MHC of the police station on the same day. After receipt of the report of Assistant Chemical Examiner to the Government of Haryana, Madhuban to the effect that the sample was identified as Charas (Cannabis) and on completion of the investigation, challan against the appellant was prepared. Finding a prima-facie case against the appellant, learned Special Judge, Panipat, vide his order dated 12.02.2001 charge sheeted him for an offence punishable under section 20 of the Act. To the charge so framed against him, he pleaded not guilty and claimed trial. The prosecution has examined five witnesses during the course of trial. Some witnesses were given up as unnecessary during the course of the same and tendering the report of Assistant Chemical Examiner (Ex.PJ) in evidence, the evidence of the prosecution came to a close. Crl. Appeal No.D-792-DB of 2004 --4-- The appellant was examined thereafter under the provisions of section 313 of the Code of Criminal Procedure. The appellant has denied truth of the prosecution evidence put to him in the shape of questions. He has claimed the witnesses to be deposing falsely. He has claimed himself to be innocent and to have been falsely implicated. He did not lead any evidence in his defence. Hearing learned Public Prosecutor for the State and learned counsel for the defence, learned Special Judge, Panipat, has found the appellant guilty for the offence punishable under section 20 of the Act, vide judgment dated 09.07.2004. Hearing on quantum of sentence was given on 12.07.2004 and the sentence detailed as above was awarded to the appellant. Aggrieved by the aforesaid judgment of conviction and order of sentence, Jasmer alias Guddu, appellant has preferred this appeal. We have heard Mr. John Kumar, learned counsel for the appellant and Mr. Saurabh Mohunta, learned Deputy Advocate General, Haryana for the respondent-State. We have also gone through the record of the case. Learned counsel for the appellant has submitted that despite availability, no independent witness was joined by the investigating officer in the proceedings. According to him, the place of recovery is busy place and the investigating officer could Crl. Appeal No.D-792-DB of 2004 --5-- not be believed saying that he made efforts to join independent witnesses, but they did not oblige him. According to him, he had ample powers to proceed against them for non-joining of the proceedings and his failure to even take note of their names would go a long way to discredit the very recovery of the contraband at the spot. Learned counsel for the appellant has further submitted that the sample had been drawn from the recovered charas on 18.06.2000 and the sample had been sent for chemical analysis on 27.06.2000. According to him, there is delay of nine days in sending the sample. He has submitted that during this period, the seal remained with the police and there was every possibility of changing the recovered material. According to him, this circumstance itself creates a doubt about the proceedings of recovery conducted by the investigating officer. Learned counsel for the appellant has next contended that the evidence on record shows that the sample of the material recovered did not reach the chemical examiner. He drew our attention to the affidavit of Joginder Singh,HC wherein he says that the sample was handed over by him to Dharambir,C. for being taken to the Forensic Science Laboratory, Madhuban by way of RC No.356. According to him Dharambir,C by way of his affidavit Ex.PB has again mentioned that the sample was given to him by way of RC No.356 for being taken to Forensic Science Laboratory, Crl. Appeal No.D-792-DB of 2004 --6-- Madhuban. He has submitted that report of the Assistant Chemical Examiner, Ex.PJ where the material of the sample is opined to be Charas (Cannabis) has been received vide RC No.256. He has, thus, submitted that this circumstance clearly shows that the sample of this case by way of RC no.356 did not reach the office of Assistant Chemical Examiner and the sample analyzed was received by way of another RC. Learned counsel for the appellant has next contended that FIR No. appears on the Ruqa Ex.PG. He has submitted that in the Ruqa Ex.PG, Zile Singh, SI has stated that he had handed over a sample to Prithvi Raj, ASI and this witness has not been examined. According to him, therefore, an important chain in the link evidence is missing in this case. He has also tried to capitalize on some disparity regarding impression of the seal of the investigating officer, which is mentioned as 'KS' in the statement of Balraj Singh Jakhar, PW-4 and is mentioned as 'ZS' at other place. Learned counsel for the appellant has lastly submitted that Balraj Singh Jakhar, Naib Tehsildar, Panipat has not supported the prosecution case in its entirety. He has submitted that there were seven police officials in the police party headed by Zile Singh, SI but only Zile Singh, SI has appeared. Even Balraj Singh Jakhar, Naib Tehsildar, who can be said to provide corroboration to his statement has failed to fully support the prosecution case. Crl. Appeal No.D-792-DB of 2004 --7-- He has, therefore, submitted that the prosecution has not been able to lead cogent and convincing evidence and consequently, the conviction of the appellant cannot be sustained. On the other hand, learned Deputy Advocate General, Haryana, has submitted that independent witnesses are not available now-a-days and in the absence of independent witnesses, the statements of the official witnesses cannot be discarded under all circumstances. According to him, Balraj Singh Jakhar, Naib Tehsildar appearing as PW-4 has supported the prosecution case in all the material particulars except for the fact that he has stated about the seal impression of the investigating officer as 'KS' instead of 'ZS'. According to him, it was on account of forgetfulness on the part of the witness, which he corrected when he was cross-examined by the prosecution with the leave of the court. He has further submitted that variance in the RC numbers is a clerical mistake for which no undue benefit can be extended to the appellant. He has further submitted that nine days delay in sending the sample to the chemical examiner, is not enough to discard the prosecution case, particularly when the sample and the remainder were sealed by the seal of Balraj Singh Jakhar, Naib Tehsildar bearing initials 'BR' and those of Surinder Singh,SI/SHO bearing impression 'SS'. According to him, the sample or the remainder could be tampered with after collecting the seals of Balraj Singh Jakhar, Naib Tehsildar and the SHO Crl. Appeal No.D-792-DB of 2004 --8-- which was not possible. According to him, there was no motive moreover on the part of the investigating officer to do so. Hence, he has submitted that the trial Court has been right in placing reliance on the prosecution evidence and holding the appellant guilty for the offence punishable under section 20 of the Act and awarding him the sentence, referred to as above. Zile Singh, Sub Inspector is the investigating officer of this case. He has appeared in the witness box as PW-5 and in his cross-examination, he has stated that he tried to join independent witnesses but they did not oblige him. He failed to tell their names and has admitted that he took no action against them. In the modern society, people are very busy. They even try to keep them insulated from any trouble, even of having to visit the court or the police station in connection with the prosecution case. It is common knowledge that whenever something happens on a road, people gather there in plenty, but when the police would arrive, none would come forward to tell as to what had happened or offer himself as a witness. Moreover, it would be unfortunate if the police officials are disbelieved for the only reason that they are the police officials. So the explanation of Zile Singh, SI that he tried to join independent witnesses but they did not oblige him, cannot be disbelieved. It is true that Zile Singh, SI, could proceed against them for not joining the proceedings. However, it is again common Crl. Appeal No.D-792-DB of 2004 --9-- knowledge that police is busy in investigating cases and discharging their other duties and they have no time to initiate action against the persons, who refuse to join the investigation. For these reasons, we find no difference to have been made to the case by non-joining of the independent witnesses. Moreover in this case, Balraj Singh Jakhar, Naib Tehsildar, who has no common interest with the investigating officer, has supported the prosecution case. The only point on which he was cross-examined by the prosecution, on the plea that he was suppressing the truth, was his failure to recollect the impression of the seal used by the investigating officer. Such a detail could easily be forgotten by anyone and when he was reminded of the same, he re-collected the impression of the seal used by the investigating officer as 'ZS' and not 'KS'. Zile Singh, SI (PW-5) nowhere says that he had handed over the sample or the entire case property to Prithvi Raj, ASI. He clearly says that he had handed over the case property to the MHC on the same day in the police station after producing it before the Station House Officer. The submission in this regard of learned counsel for the appellant seems to be misconceived. The sample had been sent by Joginder Singh,MHC as stated in his affidavit Ex.PA, by way of RC No.356 on 27.06.2000. He has stated that so long as the sample parcel remained in his custody, he did not tamper with the same nor allowed anyone else Crl. Appeal No.D-792-DB of 2004 --10-- to do so. He appeared in the witness box as PW-1. It was not even suggested to him that the sample was tampered with while it was in his custody. So the statement of Joginder Singh made by way of affidavit Ex.PA goes un-questioned in this case. The argument that the sample sent to the chemical examiner after a delay of nine days would introduce the possibility of tampering with the same cannot be accepted in view of this statement of Joginder Singh, HC, PW-1. Ex.PA is the affidavit of Joginder Singh, MHC wherein the sample is claimed to have been dispatched through RC No.356. Dharambir, C. in Ex.PB has also stated that Joginder Singh, MHC gave him the sample vide RC No.356 for being taken to Forensic Science Laboratory, Madhuban. In the report of Forensic Science Laboratory, Ex.PJ, the RC number came to be recorded as 256. The question is to what is the impact of this inconsistency in the number of RC on the case in hand. In our opinion, the answer to this question would have to be that there is no impact of this inconsistency on the prosecution case. This seems to be a clerical mistake in view of the fact there are so many other particulars mentioned in the report of the Forensic Science Laboratory, Madhuban, such as FIR number, date, offence, date of RC, name of the carrier and the description of the seal impressions, which tally with the sample sent by Joginder Singh,MHC through Dharambir, C. by way of RC No.356. Crl. Appeal No.D-792-DB of 2004 --11-- Presence of number of FIR of this case on the ruqa Ex.PG seems to have no significance. It is on receipt of ruqa at Police Station Matloda that the FIR was recorded and the ruqa was sent back with the information that case with such and such FIR number has been registered. This shows that mentioning of the FIR number on the ruqa is a natural event and nothing strange appears to have been there in appearance of FIR number on this ruqa. Zile Singh, SI, Incharge Anti-Crime-Cell, Panipat was having six police officials with him. It is true to say that out of these seven police officials, including the investigating officer, only Zile Singh, SI, has appeared in the witness box in support of the prosecution case. There is no rule of law laying down any particular number of witnesses to be required to prove a case. Had it been a case of examination of one witness out of seven, it would have been something serious. However, in the case in hand, the statement of Zile Singh, SI, PW-5 has been duly corroborated by Balraj Singh Jakhar, Naib Tehsildar and the evidence of both these material witnesses cannot be discarded for the reason that out of the seven police officials only one witness has been put in the witness box. Balraj Singh Jakhar, Naib Tehsildar (PW-4) is a responsible officer of the State and his statement provides ample corroboration to the statement of Zile Singh, SI. Crl. Appeal No.D-792-DB of 2004 --12-- In view of the discussion made above, we find no merit in the submissions made by learned counsel for the appellant. Therefore, we find no reason to interfere with the judgment of learned Special Judge, Panipat. Therefore, we uphold the conviction of the appellant for an offence punishable under section 20 of the Act. We, however, find that the sentence awarded to the appellant is harsh. Consequently, we partly allowed the appeal by modifying the sentence to rigorous imprisonment for a period of 10 years and to a fine of Rs.1,00,000/-, in default of payment of which, to further undergo rigorous imprisonment for a period of one year. ( HEMANT GUPTA) (VIJENDER SINGH MALIK) JUDGE JUDGE 21.07.2011 dinesh