Criminal Appeal No.419-SB of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.419-SB of 2003 Date of decision: 30.11.2011. Khialo Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE L.N.MITTAL. Present: Mr. Anil Kumar Garg, Advocate for Mr. S.K. Markan, Advocate for the appellant Mr. Amit Chaudhary, DAG, Punjab. ***** L.N. MITTAL, J (ORAL). Accused Khialo has filed the instant criminal appeal to assail her conviction and sentence ordered by learned Judge, Special Court, Sangrur vide judgment and order dated 21.02.2003, thereby convicting the accused appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act') and sentencing her to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1000/- and in default thereof, to undergo further rigorous imprisonment for a period of one month. The prosecution case in brief is that on 29.02.2000, police party comprising of ASI Baljit Singh, ASI Sewa Singh, LPHG Charanjeet Kaur and other police officials, along with Swaran Singh Ex-Sarpanch, intercepted the accused on suspicion while carrying a gunny bag on her head. She was informed about her right to be searched in the presence of Gazetted Officer or Magistrate. She Criminal Appeal No.419-SB of 2003 -2- refused the offer. On search of gunny bag of the accused, it was found to contain 20kg of poppy husk. Out of it, two samples of poppy husk weighing 250gms each were separated. The samples and remaining poppy husk were sealed separately. Seal after use was handed over to Swaran Singh PW. The case property was seized by the police. Rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded. Accused was arrested. On return to the police station, the accused along with witnesses and case property was produced before SI/SHO Jasbir Singh, who verified the facts of the case and affixed his seal on the case property. The sample, on chemical examination, was found to be of poppy husk. On completion of investigation, police presented report Section 173 of the Code of Criminal Procedure (in short- 'Cr.P.C') for prosecution of the accused under Section 15 of the Act. Charge under Section 15 of the Act was framed against the accused, who pleaded not guilty and claimed trial. In support of its case, prosecution examined 5 witnesses:- PW1 ASI Sewa Singh and PW2 S.I. Baljit Singh broadly stated about recovery of 20 kgs poppy husk from the possession of the accused. Baljit Singh, S.I also stated about investigation of the case conducted by him. PW3 MHC Naib Singh and PW4 Constable Baldev Singh tendered their affidavits being formal witnesses. PW5 S.I. Jasbir Singh stated that while posted as SHO of Police Station P.S. Lehra on 29.02.2000, the accused was produced before him along with case property and witnesses. He further Criminal Appeal No.419-SB of 2003 -3- stated that he verified the case and affixed his seal on the case property. PW Swaran Singh was not given up by the prosecution as having been won over by the accused. The accused in her examination under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against her in the prosecution evidence and claimed to be innocent. She alleged that she is Member Panchayat and has been falsely implicated at the instance of Ex-Sarpanch Swaran Singh. In defence, the accused produced copies of two FIRs Mark A and Mark B. Learned Judge, Special Court, Sangrur vide impugned judgment and order dated 21.02.2003 convicted and sentenced the accused as detailed in opening part of this judgment. Feeling aggrieved, the accused has filed the instant criminal appeal. I have heard the learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellant contended that no independent witness has been examined by the prosecution. It was also contended that lady constable Charanjeet Kaur, who allegedly searched the accused, has also not been examined as witness by the prosecution. In support of these contentions, reliance has been placed on a judgment of this Court in the case of Balwinder Kaur Vs. State of Punjab reported as 2011 (2) R.C.R. (Criminal) 465. It was also argued that there was delay of 8 days in sending the sample to chemical examiner. Accordingly, acquittal of the accused appellant has been prayed for. Criminal Appeal No.419-SB of 2003 -4- Learned State counsel vehemently contended that the prosecution evidence is cogent and convincing and statements of prosecution witnesses are sufficient to prove the guilt of the accused. I have carefully considered the rival contentions. All the prosecution witnesses have fully supported the prosecution case. They had no enmity with the accused so as to implicate her in false case. Their veracity could not be impeached in their cross-examination. There was no reason for them to depose falsely against the accused. Their statements cannot be disbelieved merely because they happen to be police officials. Since they had no malice or ill-will against the accused, their statements are as much reliable as those of independent witnesses. It is a matter of common knowledge that independent witnesses do not like to be associated in such cases. Even if, any independent witness is joined, he does not like to depose against the accused, to avoid enmity with him. This is amply demonstrated by this case. Swaran Singh, Ex-Sarpanch independent witness was present with the police party. He had to be given up by the prosecution as having been won over by the accused. This is in spite of the fact that the accused has alleged that she was falsely implicated at the instance of Swaran Singh Ex-Sarpanch. The very fact that Swaran Singh had not appeared as prosecution witness to depose against the accused, demonstrates that the accused was not falsely implicated at the instance of Swaran Singh, as alleged by the accused. Non-examination of Swaran Singh cannot be said to be fatal to the prosecution case. Fate of the case cannot be left to the whims and fancies of the independent witness associated with the Criminal Appeal No.419-SB of 2003 -5- case. The Court has to examine the evidence on record to decide the case. In the instant case, statements of the prosecution witnesses are credible and inspire confidence and are sufficient to prove the guilt of the accused. Non-examination of lady Constable Charanjeet Kaur also cannot be said to be fatal to the prosecution case because poppy husk was not recovered from the personal search of the accused but was recovered on search of the gunny bag, which the accused was carrying on her head. Alleged delay of 8 days in sending the parcel of sample to the Chemical Examiner is also not sufficient to acquit the accused. In the case of Hardeep Singh Vs. State of Punjab (2008)8 Supreme Court Cases 557, there was delay of about 40 days in sending the sample parcels to Chemical Examiner. In spite thereof, conviction of the accused was upheld by the Supreme Court because there was complete link evidence to depict that there was no tampering with the contents of the sample parcels. In the case in hand also, the prosecution has adduced complete link evidence to prove that there was no tampering with the sample parcel. The report of chemical examiner also affirmed that seal impressions on the sample parcel were intact and tallied with specimen seal impressions. In view of the complete link evidence depicting that there was no tampering with the sample parcel, delay of 8 days in sending the sample parcel to chemical examiner becomes immaterial and insignificant. For the reason aforesaid, I find that prosecution has produced sufficient cogent evidence to prove the guilt of the accused. Conviction of the accused-appellant is well founded and well Criminal Appeal No.419-SB of 2003 -6- reasoned. Accordingly, the impugned judgment of conviction is affirmed. As regards quantum of sentence, the recovery took place more than 11 years ago. During this long period, the accused has faced the agony of trial including present appeal. The accused gave her age as 57 years at the time of recording her statement under Section 313 Cr.P.C on 20.12.2002. Presently, the accused-appellant is thus 66 years old. Perusal of the custody certificate filed by the State counsel, which is taken on record subject to all just exceptions, reveals that out of sentence of imprisonment of one year, the appellant-accused has already remained in custody for 5 months 16 days. Keeping in view all these circumstances, I am of the considered opinion that it would not be desirable to again send the accused to jail. In my considered opinion, the ends of justice would be met if the sentence of imprisonment imposed on the appellant is reduced to the period already undergone by her in custody while enhancing the amount of fine from Rs.1,000/- to Rs.5,000/-. It is ordered accordingly. In default of payment of fine, the appellant- accused shall undergo rigorous imprisonment for 2 months. With the modification in sentence as aforesaid, the instant criminal appeal stands disposed of accordingly. (L.N.MITTAL) JUDGE 30.11.2011 Hemlata