Criminal Appeal No. 2111-SB of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 2111-SB of 2006 Date of decision : September 12, 2011 Surender Singh ....Appellant versus State of Haryana ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Rahul Vats, Advocate, for the appellant Mr. Anil Kumar, Deputy Advocate General, Haryana L.N. Mittal, J. (Oral) Convict Surender Singh has filed the instant criminal appeal assailing his conviction and sentence recorded by learned Presiding Officer, Special Court, Bhiwani vide judgment and order dated 11.2.2005, thereby convicting the accused-appellant under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) and sentencing him to undergo rigorous imprisonment for ten years and to pay fine of one lac rupees and in default thereof, to undergo further imprisonment for one year. Prosecution case in brief is that on 24.3.2004, ASI Madan Lal Criminal Appeal No. 2111-SB of 2006 -2- of Police Station Siwani was present along with other police officials on Gurera Road near Railway Crossing, Siwani for nakabandi. A white coloured car bearing No. DL3CD-1693 was seen coming from the side of village Gurera. On seeing the police party, the car driver stopped the car at some distance. A person sitting beside the seat of the driver alighted from the car and fled away. On suspicion police party tried to apprehend the car, but the car driver tried to flee away and in the process the car hit a kikar tree on the road side. Car driver was apprehended. He disclosed his name as Surender Singh i.e. accused. Notice was given to the accused that some narcotic drug or psychotropic substance was suspected in the car and the accused was asked if he wanted to be searched in the presence of gazetted officer or Magistrate. The accused replied that he wanted search in the presence of gazetted officer. Accordingly, VT message was given to Deputy Superintendent of Police, Siwani (Om Parkash Yadav) who accordingly reached the spot. Under his direction car was searched and four bags containing poppy husk were found in its dicky. Out of each bag, 2 samples weighing 250 grams each were taken out and remaining poppy husk in each bag weighed 39 kilograms 500 grams. The samples and the bags were sealed with seals of ASI Madan Lal and DSP Om Parkash Yadav. Case property including car was seized by the police. Ruqa was sent to Police Station, Siwani where on its basis FIR was registered. Rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded. Accused was arrested. Accused along with witnesses and case Criminal Appeal No. 2111-SB of 2006 -3- property was produced before ASI/SHO, Jagdish Singh who verified the case and affixed his own seal on the parcels. On completion of investigation, police presented report under 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. To bring home charge against the accused, the prosecution examined seven witnesses. SI Ram Kumar, PW1 stated that he prepared report under section 173 Cr.P.C. in the present case. Baldev Singh, PW2 stated that he is registered owner of the aforesaid car and the accused was his driver for the said car. This witness had taken the car on sapurdari from the court. DSP Om Parkash Yadav, PW3 and ASI Madan Lal, PW7 broadly stated according to the prosecution version about recovery of contraband poppy husk from the possession of the accused and other necessary proceedings. ASI Madan Lal also stated about investigation of the case conducted by him. HC Balbir Singh, PW4 and Constable Jitender Kumar, PW5 being formal witnesses tendered their affidavits in evidence. HC Balbir Singh also stated that he had recorded formal FIR in this case. ASI Jagdish Singh, PW6 stated that on 24.3.2004, he was Criminal Appeal No. 2111-SB of 2006 -4- working as SHO of Police Station, Siwani and on that day, accused along with case property and witnesses was produced before him. He verified the case and affixed his own seal on the parcels and on his direction, the case property was deposited in malkhana. The accused in his examination under section 313 Cr.P.C. denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that he has been falsely implicated in this case and he had no concern or connection with the car in question. No evidence was led by the accused in his defence. Learned Presiding Officer, Special Court, Bhiwani vide impugned judgment and order dated 11.2.2005 convicted and sentenced the accused as already noticed hereinbefore. Feeling dissatisfied, the convict has preferred the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. All the prosecution witnesses have supported the prosecution case. Statements of Om Parkash Yadav, DSP, PW3 and Madan Lal, ASI, PW7 are sufficient to prove the recovery of contraband poppy husk from the possession of the accused. Their statements are corroborated by other evidence including link evidence as well as evidence regarding compliance with sections 55 and 57 of the Act. Statements of these two material witnesses could not be shaken or impeached in any manner in their cross- Criminal Appeal No. 2111-SB of 2006 -5- examination. They had no enmity, illwill or malice against the accused so as to implicate him in a false case or to depose against him falsely. At the relevant time, they were posted in Siwani District Bhiwani whereas the accused belongs to District Fatehabad. There was no reason for planting huge quantity of poppy husk on the accused to implicate him in false case. Statements of these two material witnesses are also corroborated by testimony of Baldev Singh PW2 registered owner of the car in question. He has also stated that the accused was his driver for the aforesaid car. The prosecution evidence is, thus, sufficient to prove the guilt of the accused beyond reasonable doubt. Learned counsel for the appellant vehemently contended that no independent witness was joined although independent witnesses were available, and therefore, the prosecution case is doubtful. The contention cannot be accepted. The recovery of contraband substance was not effected on the basis of any prior or secret information, but was effected per chance. Consequently, there was no occasion for the police party to have joined any independent witnesses. Moreover, it is well known that no independent witness likes to be associated in such cases as independent witnesses have no personal interest in such cases. In the instant case, ASI Madan Lal has stated that he had asked some independent persons to join but they refused. Moreover, Om Parkash Yadav, DSP, PW3 is a gazetted officer. He has also stated about recovery of the contraband poppy husk from the possession of the accused. Statement of Madan Lal ASI is corroborated by Criminal Appeal No. 2111-SB of 2006 -6- the statement of Om Parkash Yadav, DSP. Statements of both these witnesses cannot be discarded merely because of their official garb. Statements of official witnesses are also as much credible as those of non- official witnesses unless official witnesses are hostile to the accused or have any illwill or malice to implicate him in false case. In the instant case, the aforesaid official witnesses were not inimical or hostile to the accused in any manner and had no motive or illwill against him. Consequently, their statements cannot be doubted in any manner. Learned counsel for the appellant also contended that DSP Om Parkash Yadav, PW3 stated that seals on the bags of poppy husk when produced in court were in broken condition and number of FIR etc. written on the bags was also not clearly visible. However, prosecution case cannot be thrown away merely on this ground. While handling the case property, seals are likely to be broken and particulars of FIR number etc. written on the gunny bags would also fade with dust and with the passage of time. The case property was taken from the spot to the Police Station and then to malkhana and then during trial, it was brought to the Court. Therefore, in transit, the seals are likely to be broken. Keeping in view all these circumstances, section 52-A has been inserted in the Act by Amendment Act No. 2 of 1989 providing for disposal of the case property even before trial, after preparing its inventory in the manner provided under the said provision, thereby dispensing with the requirement of production of the case property in Courts during trial. Consequently, in the instant case, Criminal Appeal No. 2111-SB of 2006 -7- if the seals were broken when the case property was produced in court during trial or if particulars of FIR number etc. written on the gunny bags of poppy husk were not visible at that time, the prosecution case cannot be doubted. Learned counsel for the appellant also contended that accused is not owner of the car in question. However, this argument is not sufficient to acquit the accused because it was the accused who was driving the car at the relevant time and contraband poppy husk was recovered from the dicky of the car. As noticed hereinbefore, Baldev Singh registered owner of the car has appeared as PW2 and he has also stated that the accused was driver of the aforesaid car. The accused as driver of the car was in conscious possession of the contraband poppy husk and therefore, he has been rightly convicted, notwithstanding that he is not owner of the car. There is presumption regarding the accused being in conscious possession of the contraband substance in view of sections 35 and 54 of the Act. Moreover, on seeing the police party, the accused stopped the car and when the police party tried to apprehend the car, the accused tried to flee away and in the process, the car hit the road side tree. This conduct of the accused also amply depicts and demonstrates that the accused was in conscious possession of the contraband poppy husk. Learned counsel for the appellant lastly contended that the contraband poppy husk was allegedly recovered on 24.3.2004 but samples were sent to Chemical Examiner on 15.4.2004 i.e. after delay of three Criminal Appeal No. 2111-SB of 2006 -8- weeks and therefore, the prosecution case is doubtful. The contention is again devoid of merit. Mere delay in sending the samples to Chemical Examiner cannot be said to be fatal to the prosecution case, particularly because the prosecution has led sufficient link evidence to demonstrate that there was no tampering with the case property including sample parcels. There are affidavits of HC Balbir Singh, PW4 and Constable Jitender Kumar, PW5 to this effect. In addition to it, report of Chemical Examiner also depicts that the sample parcels were received with seals in tact. Consequently, when the seals of sample parcels remained intact and there is sufficient link evidence to depict that there was no tampering with the contents of the sample parcels, mere delay in sending the sample parcels to Chemical Examiner would not cause any dent in the prosecution case. For the reasons recorded hereinbefore, I conclude that the prosecution evidence is credible and sufficient to prove guilt of the accused beyond reasonable doubt. Accordingly, impugned judgment of conviction is affirmed. As regards quantum of sentence, quantity of contraband poppy husk recovered from the accused is commercial one. Trial court has imposed minimum sentence on the convict for the offence in question. Consequently, sentence also does not warrant reduction. Criminal Appeal No. 2111-SB of 2006 -9- As a necessary consequence, the instant criminal appeal is dismissed being meritless. ( L.N. Mittal ) September 12, 2011 Judge 'dalbir'