Crl. Appeal No.673-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.673-SB of 1997 Date of Decision : March 25 , 2008 Manoj Kumar S/o Hira Singh, ....Appellant R/o Supoli, P.S. Sindhwalia, Distt. Gopalganj (Bihar) Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Narinder Hooda, Advocate, for the appellant. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 26.7.1997, and the order of sentence dated 29.7.1997, rendered by the Court of Addl. Sessions Judge, Rohtak, vide which it convicted the accused/appellant Manoj Kumar, for the offence, punishable under Section 20 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 19.10.1993, Ram Phal, Inspector/SHO, Police Station City, Rohtak, alongwith Chhelu Ram, ASI and other police officials, was present at Hissar bye-pass Chowk, Rohtak, in connection with patrolling and excise checking. Jogi Ram, PW, met them. Accused Manoj Kumar with an attache-case, in his right hand, came from the side of Jind Chowk, Railway Gate, on foot. On seeing the police party, he at once, turned towards the left side and ran away. On suspicion, he was apprehended, while scaling over a wall. A wireless message was sent to Manoj Crl. Appeal No.673-SB of 1997 2 Kumar, Addl. S.P., Rohtak, who accordingly came to the spot. Search of the attache-case, was conducted, in accordance with the provisions of law, as a result whereof, 3 kgs. charas, was recovered therefrom. A sample of 50 grams, was separated, and the remaining charas was kept in the same attache-case. The sample and the remaining charas were converted into parcels, duly sealed with the seal bearing impression 'RP' of Ram Phal, SHO, and were taken into possession, vide memo Ex.PE, attested by Jogi Ram, PW, Chhelu Ram, ASI, and Manoj Yadav, Addl.S.P., Rohtak. The sample impression of the seal was prepared. The seal, after use, was handed over the Jogi Ram. A spring actuated knife, was also recovered, from the possession of the accused, for which a separate case, was registered. Ruqa was sent to the Police Station, on the basis whereof, the formal FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. The statements of the witnesses 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 20 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of his case, examined Ranbir Singh, SI (PW-1), who recorded the FIR, on the basis of the ruqa, received by him, Jogi Ram, (PW-2), the independent witness, who deposed with regard to the recovery of 3 kgs. charas, from the accused, on the relevant day, Ram Phal, Inspector (PW-3), the Investigating Officer, and Manoj Yadav, Addl.S.P., Rohtak, (PW-4), in whose presence, the search of the attache-case, being carried by the accused, was conducted and recovery of 3 kgs. charas was effected. Thereafter, the Public Prosecutor for the State, after tendering into evidence, report of the Forensic Science Laboratory, Ex.PJ, closed the same. Crl. Appeal No.673-SB of 1997 3 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. He, however, did not lead any evidence, in his defence. 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. 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 outset, contended that Jogi Ram, was not an independent witness, but a stock witness of the Police, and, as such, no reliance could be placed on his evidence. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Jogi Ram (PW-2), was put a specific suggestion, by the Counsel for the accused, that he had appeared in more than 10 cases of police, concerning Police Station City and Sadar. He, however, stoutly denied this suggestion. He, on the other hand, stated that he appeared only in one case as PW, which was registered by the Police. No other evidence was produced to show that Jogi Ram (PW-2), always remained at the beck and call of the Police and, therefore, was its convenient witness. The mere fact that Jogi Ram, appeared in one case, registred by the Police, as a witness, did not make him a stock witness. He must have seen the occurrence, in that case, and that was why he appeared as a witness, on behalf of the prosecution. Every citizen of the Country, can be said to be independent. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. Crl. Appeal No.673-SB of 1997 4 10. It was next submitted by the Counsel for the appellant, that no doubt, as per the evidence produced by the prosecution, the seal after use was handed over to Jogi Ram, but the same was taken from him, before the sample was actually sent to the Forensic Science Laboratory, and, as such, there was every possibility, of tampering with the same. The mere fact that the seal was returned by Jogi Ram to the Investigating Officer, before the sample was sent to the Office of the Forensic Science Laboratory, did not go to prove that the case property and the sample were tampered with, at any stage. The Court is required to take into consideration the entire evidence, produced by the prosecution, to come to a conclusion, as to whether, the link evidence was complete or not. Ram Phal, Inspector (PW-3), the Investigating Officer, in this case, in clear-cut terms, stated that on reaching the Police Station, on the same day, the case property was deposited, with seals intact, with the MHC. There is affidavit Ex.PA of Jagdish Chander, Head Constable, who stated that on 19.10.1993, when he was posted as MMHC, in Police Station Rohtak, the case property, and the sample parcel, duly sealed, alongwith the sample seal, were deposited with him, and none tampered with the same, till it remained in his custody. There is affidavit Ex.PC of Sahab Singh, HC, according to which, on 5.11.1993, he was handed over the sample parcel, duly sealed with the seal, and sample seal, in the instant case, for deposit in the office of the Forensic Science Laboratory, and he deposited the same, on the same day. He further stated that none tampered with the same, till it remained in his custody. Above all, there is report Ex.PJ, of the Forensic Science Laboratory, Haryana, Madhuban (Karnal), to the effect, that the seals on the sample parcel, were found intact, and tallied with the specimen seal sent. In these circumstances, even if, the seal was returned by Jogi Ram, PW-2, before the sample was sent to the Forensic Science Laboratory, it did not affect the merits of the case. The Court is not required to act, on conjectures and surmises. When the evidence, referred to Crl. Appeal No.673-SB of 1997 5 above, indicates that none tampered with the sample parcel, till it was sent to the office of the Forensic Science Laboratory, no possibility can be entertained, by the Court to the contrary. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. It was next contended by the Counsel for the appellant, that according to Ram Phal, Inspector, 3 kgs. charas was recovered from the attache- case, being carried by the accused, whereas, according to affidavit Ex.PA of Jagdish Chander, HC, a parcel containing 3 kg. 50 grams charas, and another parcel containing 50 grams charas, were deposited with him. He further contended that, if charas weighing 3 Kgs. was recovered, then how charas weighing 3 kg. 50 grams in one parcel and 50 grams in another parcel, was deposited with Jagdish Chander, HC, is not known. He further contended that this fact, casts doubt on the prosecution story. It appears that Jagdish Chander, HC, on account of clerical mistake, made an incorrect mention of the quantity of charas, deposited with him. However, one fact is clear from his affidavit, that the charas, which was recovered in this case, was deposited with him. The evidence of the other witnesses is unambiguous, that 3 Kgs. charas was recovered from the accused. In this view of the matter, the submission of the Counsel for the appellant, being without merit, is rejected. 12. It was further contended by the Counsel for the appellant, that the alleged recovery was effected on 19.10.1993, whereas, the sample was sent to the Forensic Science Laboratory on 5.11.1993. He further contended that the delay of 16 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. He placed reliance on State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, in support of his contention. The perusal of the facts of the aforesaid case, Crl. Appeal No.673-SB of 1997 6 shows that the seized articles were kept in the malkhana for 15 days. The sample seal was not sent to the said laboratory, for the purpose of comparing with the seal appearing on the sample bottles. There was no evidence, to prove satisfactorily that the seals found were, in fact, the same seals, as were put on the sample bottles, immediately after seizure of the contraband. In these circumstances, the Apex Court, came to the conclusion, that the infirmity aforesaid, was sufficient to cast a doubt, on the case of the prosecution and, ultimately, acquitted the appellant. However, in the instant case, the sample seal alongwith the sample parcel, containing the charas, was sent to the office of the Forensic Science Laboratory, as is evident from Ex.PA, affidavit of Jagdish Chander, HC. Even, it is evident from the report of the Forensic Science Laboratory Ex.PJ, that the seals on the parcel, were found intact, and tallied with the specimen seal, as per the forwarding authority. The facts of the aforesaid authority, being distinguishable, from the facts of the present case, no help can be drawn by the Counsel for the appellant, therefrom. The possibility of tampering with the sample parcel, in the instant case, was completely ruled out, from the cogent and convincing evidence. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. It was next contended by the Counsel for the appellant, that the case of the prosecution was highly improbable. He further contended that according to Jogi Ram, PW, he was not earlier knowing Ram Phal, Inspector. Ram Phal, Inspector, also made a similar statement. He further contended that according to Ram Phal, Inspector, he was talking to Jogi Ram. The Counsel for the appellant, contended that, in case, Jogi Ram was not earlier known to Ram Phal, Inspector, then how he was talking to him. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Since, Jogi Ram, was passing by that side, and, if for the purpose of joining him, in the Crl. Appeal No.673-SB of 1997 7 investigation, Ram Phal, Inspector, started talking with him, that did not mean that he was earlier known to him. In this view of the matter, the case of the prosecution, could not be said to be improbable. 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 dated 26.7.1997, and the order of sentence dated 29.7.1997, are upheld. If the accused/appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, Rohtak, shall take necessary steps, to comply with the judgment, with due promptitude. March 25, 2008 (SHAM SUNDER) Vimal JUDGE