Crl.Appeal No.335-DB of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.335-DB of 2003 Date of decision: 5.3.2010 Neki Ram ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Naresh Kumar, Advocate, for the appellant. Mr.S.S.Randhawa, Addl.AG, Haryana. ... JORA SINGH, J. Neki Ram was sent for trial by the SHO, Police Station City, Fatehabad, on the allegation that while present near Bus Stand, Fatehabad, 5 kgs. of opium without any permit or licence was recovered from his possession and thereby, he has committed an offence punishable under Section 18 of the NDPS Act (for short `the Act'). Vide judgment of conviction dated 14.3.2003 and order of sentence dated 17.3.2003 passed by Additional Sessions Judge, Fatehabad, he was convicted under Section 18 of the Act and sentenced to undergo RI for eleven years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for two years. Prosecution story, in brief, is that on 22.12.2000, police party headed by ASI Jai Narain was on the road adjoining to rear wall of Bus Stand, Fatehabad, towards Dahiya Hospital, in connection with crime Crl.Appeal No.335-DB of 2003 2 checking. On the way, Constable Rajpal and one Balbir Singh had met the party and were joined in the party. In the meantime, accused was sighted carrying a bag in his right hand and attachi case in left hand, while coming from the side of western wall of the bus stand. On seeing the police party, the accused became nervous and tried to retreat. Investigating Officer suspected that the accused was carrying some intoxicant in the bag. On suspicion, the accused was apprehended by the Investigating Officer and on enquiry, he disclosed his name as Neki Ram son of Girdhari Lal, resident of Village Gulabpura. Notice under Section 50 of the Act was issued as to whether the accused wanted to be searched before any Magistrate or Gazetted Officer. Accused replied that he wanted to be searched before a Magistrate. Constable Attar Singh was sent to summon the Magistrate. After some time, Constable Attar Singh along with Rajinder Singh Gahlot, Tehsildar, came to the spot. The Tehsildar was apprised about the facts of the case by the Investigating Officer. Then Tehsildar directed the Investigating Officer to search the accused. After offering his personal search to the accused in the presence of witnesses, the accused was searched. Plastic container, containing opium, was found in the bag. Two samples, each weighing 20 grams, were separated and the remaining opium was found to be 4.460 kgs. Samples and the remaining opium in the same container were separately sealed with the seal of Tehsildar bearing impression `RS'. Case property was taken into police possession vide memo (Ex.P5). Seal after its use was handed over to Rajinder Singh, Tehsildar. Ruqa (Ex.P1) was sent to the police station at 5.30 PM, on the basis of which, formal FIR (Ex.P2) was recorded. After receipt of report of Chemical Examiner, challan was presented in the Court. Crl.Appeal No.335-DB of 2003 3 Accused was charged under Section 18 of the Act, to which he pleaded not guilty and claimed trial. PW1 SI Baljit Singh after completion of investigation prepared report under Section 173 Cr.P.C. PW2 Inspector Krishan Dayal, who was serving as SHO, Police Station City, Fatehabad, stated that on receipt of ruqa (Ex.P1), formal FIR (Ex.P2) was recorded. On the same day, ASI Jai Narain had produced accused Neki Ram along with witnesses and case property before him. After verifying the facts of the case from the accused and the witnesses, he had affixed his own seal bearing impression `KD' on the sample parcel and parcel of remaining opium. ASI Jai Narain was directed to deposit the case property with the Incharge of Malkhana. PW3 SI Vir Singh had simply recorded the statements of witnesses under Section 161 Cr.P.C. PW4 HC Mahender Singh stated that he was Reader to DSP, City, Fatehabad. Report under Section 57 Cr.P.C. (Ex.P3) along with endorsement (Ex.P4) was received. Ram Kumar, DSP, City, Fatehabad, had made endorsement at Point `A' on the report. PW5 Rajinder Singh Gahlot stated that he was serving as Tehsildar on 22.12.2000. As per request of one Constable, he had gone to the spot and in his presence, 5 kgs. of opium was recovered from the plastic container carried by the accused in the bag. PW6 HC Jagdish Chander was serving as MHC and tendered his affidavit (Ex.P6). PW7 Constable Dalbir Singh tendered his affidavit (Ex.P7). PW8 ASI Jai Narain was the Investigating Officer. Crl.Appeal No.335-DB of 2003 4 PW9 SI Ishwar Singh was with the party headed by ASI Jai Narain and stated that in his presence, 5 kgs. of opium was recovered from the accused. Report of FSL (Ex.P11) was tendered by learned Public Prosecutor. After close of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that Baljit Singh resident of Village Lehri was owning land situated in Gujrat State. An agreement to sell was executed by Baljit Singh in his favour. On 22.12.2000 at about 10/11.00 AM, he along with Satya Narain had gone to the house of Baljit Singh. A sum of Rs.40,000/- was paid by him to Baljit Singh to purchase the land. Baljit Singh directed him to purchase stamp paper. At 2.00 PM, they had gone to Fatehabad. ASI Jai Narain brought them to Police Station Sadar, Fatehabad, in connivance with Baljit Singh. He and Satya Narain were falsely implicated in two separate cases at the instance of Baljit Singh. In defence, DW1 HC Satbir Singh appeared and stated that as per record, FIR No.610/2000 under Sections 406/498-A/148/149 IPC was registered and in that FIR, Harpej Singh and Charan Singh were sent in the police lock up at 5.30 PM on 22.12.2000. DW2 Balbir Singh stated that on 22.12.2000, he remained present in his house throughout the day. No recovery was effected from the accused in his presence. He was summoned to the police station, where his signatures were obtained on some blank papers. DW3 Harpej Singh stated that on 22.12.2000, he along with his Crl.Appeal No.335-DB of 2003 5 father Charan Singh was in the police lock up under Section 498-A IPC. Neki Ram and one Sat Narain were already in the police lock up. After hearing learned Public Prosecutor and defence counsel for the accused and from the perusal of evidence on the file, accused was convicted and sentenced as stated aforesaid. We have heard learned counsel for the appellant and the State and gone through the evidence on the file. Learned counsel for the appellant argued that as per prosecution story, appellant was seen while carrying bag in his right hand and attachi case in left hand. Investigating Officer suspected that the appellant was carrying narcotic in the bag, but no reason by the Investigating Officer as to why attachi case was not searched. No explanation why the Investigating Officer failed to seal the case property with his own seal. Baljit Singh was joined as independent witness but he was not examined. Baljit Singh appeared in defence and stated that no recovery was effected from the appellant in his presence. Learned State counsel argued that Investigating Officer suspected that appellant was carrying narcotic in the bag and the bag was searched. There was no incriminating article in the attachi case. Attachi case along with clothes was also deposited with the Incharge of Malkhana. Case property was sealed with the seal of the Executive Magistrate. Seal after its use was retained by the Executive Officer. There is no provision under the Act that case property is also to be sealed by the Investigating Officer with his own seal or with the seal of any other police official. On return to the police station, case property was produced before the SHO. The SHO after verifying the facts of the case had also affixed his own seal Crl.Appeal No.335-DB of 2003 6 on the sealed parcels. Report of the laboratory is to the effect that sample parcel was received in the office with seals intact. Balbir Singh was joined as independent witness but he was not examined because he was not going to support the prosecution story. He was given up as won over. Apprehension of the Public Prosecutor was found to be genuine one when Balbir Singh appeared in defence. No document on the file that Baljit Singh had executed an agreement to sell in favour of the appellant. On 22.12.2000, police party headed by ASI Jai Narain was present on the back side of Bus Stand, Fatehabad. Constable Rajpal and one Balbir Singh had met the party. ASI Jai Narain was talking with them. In the meantime, appellant was noticed while coming from the side of western wall of the bus stand. Investigating Officer suspected that appellant was carrying some narcotic in the bag. Appellant was apprehended and notice under Section 50 of the Act was issued to him as to whether he wanted to be searched before any Gazetted Officer or Magistrate. Recovery was from the bag, so Section 50 of the Act was not applicable, but to remove doubt regarding false implication, offer was given to the applicant as to whether he wanted to be searched before any Gazetted Officer or Magistrate. In the presence of Executive Magistrate, recovery was effected. Two samples were separated and remaining opium was found to be 4.460 kgs. Samples and remaining opium in the same container were separately sealed with the seal of the Executive Magistrate bearing impression `RS'. Seal after its use was handed over to the Executive Magistrate. On the same day on return to the police station, case property was produced before the SHO. SHO after verifying the facts of the case had affixed his own seal bearing impression `KD' on the sealed parcels. After that, case property was deposited with the Crl.Appeal No.335-DB of 2003 7 Incharge of Malkhana. On the spot after sealing the case property, seal was returned to the Executive Magistrate. Office of the Executive Magistrate is separate from the police station. No provision under the NDPS Act that when there is recovery of narcotic, then case property is to be sealed by the Investigating Officer with his own seal or with the seal of any other police official. Sample parcel was deposited in the office of Chemical Examiner. Seals on the sample parcel were found to be intact. In case, case property is not sealed by the Investigating Officer with his own seal or with the seal of any other police official, then on this short ground, prosecution story is not to be ignored. Something could be said if Rajinder Singh Gahlot, with whose seal case property was sealed, was posted in the same police station. In that case, there was a possibility to tamper with the case property after getting the seal from the Executive Magistrate by re-sealing the same before deposit with the Incharge of Malkhana. At the time of apprehension of appellant, he was found carrying bag in his right hand and attachi case in left hand. From the bag, 5 kgs. of opium was recovered. Undisputedly, attachi case was not searched, but attachi case was also taken into police possession and was deposited with the Incharge of Malkhana. In the attachi case, there were some clothes of the appellant and not any incriminating article. No suggestion to any witness that after recovery of opium from the bag, attachi case was searched or not. If due to some mistake on the part of Investigating Officer attachi case was not searched, then prosecution story is not to be ignored. Suppose recovery is from gunny bag being carried in the truck and only gunny bag is searched, then it does not mean that if no effort to search each and every part of the truck, then recovery is to be held doubtful. Crl.Appeal No.335-DB of 2003 8 While present on the back side of Bus Stand, Fatehabad, Balbir Singh, independent witness, was joined by the Investigating Officer. Babir Singh was not examined by the prosecution and was given up as won over by the appellant. When there are number of recovery witnesses, then all are not required to be examined. Quality of evidence is to be seen and not quantity of evidence. Common experience shows that when there is an effort by the police to join any independent witness from the public, then no body agrees to join party and if any one agrees to join party, then avoids to appear in the Court and if appears in Court, then rarely supported the prosecution story. Balbir Singh when appeared as DW2 then stated that no recovery was effected in his presence from the appellant. In fact, he was summoned to the police station and in the police station, his signatures were obtained on certain blank papers, but Balbir Singh is a Matriculate. In cross-examination, he stated that his signatures were obtained by saying that a compromise is to be got effected in one case. Then stated that no FIR was registered in which compromise was required. Then question is why Balbir Singh had gone to police station and if his signatures were obtained on certain blank papers, then why he remained silent. He should have sent complaints to different authorities with the allegation that without his consent, his signatures were obtained on blank papers. Appearance of Balbir Singh in defence shows that he was rightly given up by the prosecution as won over by the appellant. In Balbir Kaur vs. State of Punjab, 2009(4) Recent Apex Judgments 330, independent witness was present but given up as won over. He was examined in defence, then Hon'ble Supreme Court observed that it cannot be said that search and recovery are in any manner vitiated. Crl.Appeal No.335-DB of 2003 9 Defence version of the appellant is that he had a dispute with Baljit Singh of Village Lehri. Baljit Singh was owning land in Gujrat State. An agreement to sell was executed by Baljit Singh in favour of the appellant. Rs.40,000/- was paid to Baljit Singh. At the instance of Baljit Singh, the appellant has been falsely implicated in the present case. But if Baljit Singh of Village Lehri had executed an agreement to sell to alienate land to the appellant, then original agreement to sell or copy thereof could easily be produced in defence. On the basis of agreement to sell, no case for specific performance of contract by the appellant till today. Regarding payment of Rs.40,000/-, no receipt. As per defence, Satya Narain was also with the appellant, but he was not produced in defence to state that he along with the appellant had gone to the house of Baljit Singh and there was payment of Rs.40,000/-. When they came to purchase stamp papers, then he (Satya Narain) and the appellant were falsely implicated in different cases. Before the presence occurrence, appellant had no enmity with the police. Nothing on the file that Baljit Singh, resident of Village Lehri, had friendship with the police. When Baljit Singh of Village Lehri had no friendship with the police and police had no enmity with the appellant, then police has no reason to implicate the appellant at the instance of Baljit Singh, resident of Village Lehri. At the time of apprehension, appellant was about 30 years' old. He is the first offender and is in custody w.e.f. 22.12.2000. Evidence on the file was rightly scrutinized by the trial Court. No reason to differ with the finding of the trial Court. So, impugned judgment is upheld, but keeping in view the antecedents of the appellant, he is directed to undergo RI for ten years instead of eleven years. Fine is maintained. Crl.Appeal No.335-DB of 2003 10 With the aforesaid modification on the point of sentence, appeal is dismissed. ( JORA SINGH ) JUDGE 5.3.2010 ( SATISH KUMAR MITTAL ) pk JUDGE