Criminal Appeal No. 842-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 842-SB of 2004 Date of Decision: 09.02.2010 Avtar Singh son of Maghar Singh son of Kaku Singh, r/o village Khiala Kalan, District Mansa (dead). ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Kuldeep Singh, Advocate, for the appellant. Mr. T.S. Salana, Deputy Advocate General, Punjab for the respondent - State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence, dated 10.04.04, rendered by the Judge, Special Court, Mansa, vide which, he convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced him to undergo Rigorous Imprisonment, for a period of 10 years, and to pay a fine of Rs. 1 lac, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 01 year, for having been found in Criminal Appeal No. 842-SB of 2004 2 possession of 70 kgs and 400 gms of poppy husk, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 03.07.02, Joginder Singh, Sub Inspector, CIA Staff, alongwith Kulwant Singh, Assistant Sub Inspector, and other Police officials, was going through village Khiala Kalan, in connection with the checking of suspected persons and when the Police party reached near the road, leading to village Bhupal, the accused, was seen coming with two gunny bags. He was apprehended on suspicion. On search of the gunny bags, in the presence of Mukhtiar Singh, Deputy Superintendent of Police, who was called, to the spot, by sending the wireless message, 70 kgs and 400 gms poppy husk, was recovered. Two samples of 100 gms each, were taken out therefrom, and the remaining poppy husk, was kept, in the same bag. The samples and the gunny bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide separate recovery memo. Ruqa was sent, to the Police Station, on the basis whereof, the first information report, was registered. Site plan was prepared. The accused, was arrested. After the completion of investigation, he was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 15 of the Act, was framed against the accused, which was read-over and explained to him, to which he pleaded not guilty, and claimed judicial trial. Criminal Appeal No. 842-SB of 2004 3 5. The prosecution, in support of its case, examined Gurmeet Singh, Assistant Sub Inspector (PW1), Mukhtiar Singh, Deputy Superintendent of Police (PW2), a witness to the recovery, Sukhdev Singh, Constable (PW3), Mukhtiar Singh, Sub Inspector (PW4), Kulwant Singh, Assistant Sub Inspector (PW5), and, Joginder Singh, Sub Inspector (PW6), the Investigating Officer. Gurjant Singh, independent witness, who was joined with the Police party, was given up as won over, by the Additional Public Prosecutor, for the State. Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. 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 taken, from his house, by the Police. It was further stated by him that, no recovery, was ever effected from him. He also examined Anup Singh, Head Constable (DW1), Gurjit Singh, Constable (DW2), Gurjant Singh (DW3), Gurnam Singh (DW4), Bikkar Singh (DW5), Harpal Kaur (DW6), and, Surinder Pal (DW7), in his defence evidence, and closed the same. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, the instant appeal, was filed by the Criminal Appeal No. 842-SB of 2004 4 appellant. 9. During the pendency of appeal, the appellant, died. Since the fine also formed part of sentence, the appeal, as a whole, could not abate, in view of the provisions of Section 394(2) of the Code of Criminal Procedure. Under these circumstances, the Counsel for the appellant, has submitted that, he will address arguments, on merits. 10. I have heard the Counsel for the parties, and, have gone the evidence and record of the case, carefully. 11. The Counsel for the appellant, at the very outset, submitted that the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In the instant case, the recovery, was not effected, from the person of the accused, but, from the bags, which, he was carrying. Under these circumstances, the provisions of Section 50 of the Act, were not applicable, to the instant case. 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 in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. The submission of the Counsel for the appellant, thus, being without substance, stands rejected. 12. It was next submitted by the Counsel for the appellant, that Criminal Appeal No. 842-SB of 2004 5 Gurjant Singh, independent witness, was joined, but, he was not examined, by the prosecution, and was given up, as won over by the accused. He further submitted that, Gurjant Singh, independent witness, was examined, as DW3, and, he stated that, no recovery, was effected, in his presence. He further submitted that this clearly cast a cloud of doubt, on the prosecution story. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is, no doubt, true that Gurjant Singh, independent witness, was given up, as won over, by the Additional Public Prosecutor, for the State, vide his statement dated 24.02.04, on the basis of the application, moved by the investigating agency. The Additional Public Prosecutor, for the State, is the master of the case. It is, for him, to decide, as to which witness, he wants to examine, and which witness, he does not want to examine. In the instant case, the Additional Public Prosecutor, for the State, was fully satisfied, that Gurjant Singh, independent witness, was not going to support the case of the prosecution. He was also satisfied that, in case, Gurjant Singh, was examined, he would damage the case of the prosecution. He exercised the discretion, in giving up Gurjant Singh, independent witness, as having been won over, by the accused, in a judicious manner. The discretion, exercised by him, could not be said to be, in any way, arbitrary or capricious. Gurjant Singh, was examined, as DW3, by the accused, which clearly proved, that he had actually been won over, by him (accused). In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held Criminal Appeal No. 842-SB of 2004 6 that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material, or even if, it is known that he/she has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference could 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 officials were examined, as witnesses for the prosecution, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly 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 it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim's Criminal Appeal No. 842-SB of 2004 7 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 said cases, is fully applicable to the facts of the present case. The other evidence produced by the prosecution is reliable. 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. Now coming to the statement of Gurjant Singh, DW3, who deposed, that no recovery, was effected, in his presence, it may be stated here, that he was out and out to support the case of the accused, right from the very beginning. It was, on account of this reason, that he was given up, as won over, by the Additional Public Prosecutor, for the State. In case, Gurjant Singh, independent witness, was not present, at the time of recovery, then how his signatures, were found, in existence, on the consent memo exhibit PA and recovery memo exhibit PB. He did not furnish any explanation, in regard thereto. If, it is assumed, that his signatures, had been taken, on blank papers, then he had many occasions, to make a complaint, to the higher Police authorities, that no recovery, in this case, was effected, in his presence, but, on the other hand, he was falsely introduced, as a witness. He did not move any application, before the higher Police authorities, in this regard. He kept mum throughout. This clearly goes to show, that the recovery, had actually been effected, in his presence, but, he joined hands with the Criminal Appeal No. 842-SB of 2004 8 accused, during the trial of the case, and, thus, he appeared, as DW3, on his behalf, on 26.03.04, though the recovery, was effected, on 03.07.02. No reliance, therefore, could be placed, on the statement of Gurjant Singh, DW3. The trial Court, was, thus, right, in discarding his statement. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellant, that the trial Court, did not take into consideration the statements of Gurnam Singh, DW4 and Bikkar Singh, DW5. He further submitted that, from the statements of Gurnam Singh, DW4 and Bikkar Singh, DW5, it was proved, that the appellant, was falsely implicated, in the instant case, on account of enmity. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The defence version set up and the defence evidence, led by the accused, during the course of trial of the case, was duly discussed and analyzed, in paras 33, 34, 35, 36 and 37, by the trial Court. After due scrutiny of the defence evidence vis-a-vis the prosecution evidence, the trial Court, was right, in holding, that the defence evidence, did not make the case of the prosecution doubtful. The trial Court, was right, in holding, that the defence version, was not reliable, so as to make the case of the prosecution, in any way doubtful. The trial Court, was, thus, right in discarding the defence version and the defence evidence, produced by the accused. The conclusion, arrived at, by the trial Court, in this regard, does not suffer from any illegality. The same is accordingly Criminal Appeal No. 842-SB of 2004 9 upheld. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. It is next submitted by the Counsel for the appellant, that Mukhtiar Singh, Deputy Superintendent of Police, was not present, at the spot, and his signatures, were obtained, on the documents later on. He has further submitted that, underneath the signatures of the Deputy Superintendent of Police, on the recovery memo, no date, is written. The mere fact, that no date, was written underneath the signatures of the Deputy Superintendent of Police, on the recovery memo, could not be said to be a sufficient circumstance, to prove, that he was not present, at the time of the recovery of the contraband, from the accused. When Mukhtiar Singh, Deputy Superintendent of Police, appeared as PW2, he in clear-cut terms, stated that, he was present, at the time, the alleged recovery, was effected, from the accused. The substantive evidence, in the Court, therefore, could not be said to be unreliable, in any manner. Not only this, on the consent memo, underneath the signatures of the Deputy Superintendent of Police, date 03.07.02, was written. In this view of the matter, the submission of the Counsel for the appellant, that Mukhtiar Singh, Deputy Superintendent of Police, was not present, at the time of the alleged recovery, being without merit, must fail, and the same stands rejected. 16. No other point, was urged, by the Counsel for the parties. 17. For the reasons recorded above, the appeal, filed by Avtar Singh, appellant, is partly accepted. The judgement of conviction, Criminal Appeal No. 842-SB of 2004 10 recorded by the trial Court, qua him, is upheld. The appeal qua substantive sentence and the sentence, awarded, in default of payment of fine, shall stand abated, as the appellant, died, during the pendency of the same (appeal). The order of imposition of fine, is upheld, qua him. 18. The Chief Judicial Magistrate, shall take necessary steps to recover the amount of fine, if already not deposited, from the property, of the appellant (deceased), if any, inherited, by his legal representatives, and, submit compliance report, within 03 months. 19. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 20. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 09.02.2010 (SHAM SUNDER) Amodh JUDGE