Crl. Appeal No. 974-SB of 1997 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 974-SB of 1997 Date of decision. 23.07.2008 Ramzan Mohd. Son of Ibrahim son of Phazaldin age 30 years, gujjar, r/o village Takhar Khurd, P.S. Malerkotla. ....... Appellant Versus The State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vipin Ghai, Senior Advocate with Mr. Deepak Garg, Advocate for the appellant. Mr. S.S. Bhullar, DAG, Punjab for the respondent. **** Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 26.11.1997, rendered by the Court of Additional Sessions Judge, Sangrur, vide which it convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac, in default of payment of fine to undergo further rigorous imprisonment, for a period of one year, for having been found in possession of 15 bags, each containing 30 Kgs poppy husk, without any permit or licence. Crl. Appeal No. 974-SB of 1997 2 2. The facts, in brief, are that on 25.03.1991 SI Pargat Singh, accompanied by ASI Baldev Singh and some other police officials, was holding a picket at T point Sherwani Kot, where at about 1.30 AM ( at night ) Jasbir Singh Sandhu, S.P. (Operation) along with 4/5 gunmen also came and joined the police party. At about 2.15 AM, truck bearing No. PUG -4366 came, which was signalled to stop. It did not stop. Thereafter 2/3 shots were fired to stop the truck. Thereafter, the truck stopped. Accused Ramzan Mohd. was driving the truck. He was not having the documents of the truck. He was apprehended. Search of the truck was conducted. 15 bags, each containing 30 Kgs of poppy husk, were recovered from the truck. A sample of 250 grams of poppy husk, was taken out, from each of the bags. Thereafter, the contents of the samples were put into small cloth packets, and the remaining poppy husk was kept in the same bags. The bags, and the samples, were converted into parcels, duly sealed, and taken into possession, along with the truck, vide a separate recovery memo. The ruqa was sent to the Police Station, on the basis whereof the FIR was recorded. The site plan was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. Crl. Appeal No. 974-SB of 1997 3 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Malkiat Singh,Constable, (PW-1), Baldev Singh, ASI, (PW-2), Pargat Singh, Inspector, (PW-3), Des Raj, Sub Inspector, (PW-4), and Prit Pal Singh, MHC, (PW-5). Thereafter, the Addl. P.P for the State, closed the prosecution evidence. 5. 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. He, however, stated that he was arrested from his house, in the presence of Ranjhakhan Panch of village Takhar Khurd, and nothing was recovered from him. It was further stated by him, that Pargat Singh, Inspector, compelled him, to provide a truck to him, which belonged to his father. He further stated that Pargat Singh, Inspector wanted to use the truck for illegal purposes. On account of this reason, there was an altercation, between him, and Pargat Singh, Inspector. It was further stated by him, that due to that grudge, he Crl. Appeal No. 974-SB of 1997 4 ( Pargat Singh, Inspector ) falsely implicated him in the present case. 5-A In his defence, the accused examined Ranzha, DW1. Thereafter, the defence evidence was closed. 6. After hearing the Additional 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, vehemently, contended that no independent witness was joined by the Investigating Officer, at the time of alleged search and seizure. He further submitted that non-joining of an independent witness, by the Investigating Officer, at the time of alleged recovery, creates a doubt in the prosecution story. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The recovery, in this case, was effected from the truck, which was being driven by the accused, at the dead of night. Under these circumstances, it was not at all possible, to join any independent witness, at Crl. Appeal No. 974-SB of 1997 5 that odd hour, at the time of search and seizure. There is nothing, on record, that any independent witness was available at the time of search and seizure. It was under these circumstances, that no independent witness could be joined. The mere fact that no independent witness, could be joined, due to the aforesaid reasons, did not mean that the evidence of the prosecution witnesses, became, in any way, doubtful. The evidence of the official witnesses, cannot be disbelieved and distrusted, merely on account of their official status. In the face of the evidence of the official witnesses only, the Court is required to be put, on guard, to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from inherent infirmities, the same can be believed. The evidence of the prosecution witnesses, has been scrutinized carefully. Nothing came to the force, during the course of their cross-examination, which may go to discredit the same. They stood the test of touch-stone of all probabilities, during the course of their cross-examination. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled that the evidence of search or seizure, made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:- Crl. Appeal No. 974-SB of 1997 6 “It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.” 10. 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 the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims' 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 aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, merely on account of non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no Crl. Appeal No. 974-SB of 1997 7 reason, on their part to falsely implicate the accused, no doubt, is cast on the prosecution story. 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 submitted by the Counsel for the appellant, that though the alleged recovery was effected in this case on 26.03.1991, yet the samples were sent to the office of the Chemical Examiner on 01.04.1991 i.e. after the delay of five days. He further submitted that there was no explanation, with regard to delay in sending the samples to the office of the Chemical Examiner. He further submitted that, under these circumstances, the possibility of tampering with the samples, until the same reached the office of the Chemical Examiner, could not be ruled out, especially when the seals after use, remained with the police officials. It is, no doubt, true that there is no explanation, with regard to the delay. However, mere delay, in itself, is not sufficient to come to the conclusion, that the sample parcels were tampered with, until the same reached the office of the Chemical Examiner. Other evidence, produced by the prosecution, has been held to be cogent, convincing, reliable and trustworthy. From the other evidence, it was proved that none tampered with the samples until the same reached the office of the Chemical Examiner. Even, there is report of the Chemical Examiner Ex.PH, which clearly proves that the seals on the Crl. Appeal No. 974-SB of 1997 8 exhibits were intact on arrival till the time of their analysis and agreed with the specimen impression of the seals. The report Ex.PH of the Chemical Examiner is per-se admissible, in toto, under Section 293 of the Code of criminal Procedure. There is no challenge to the report of the Chemical Examiner, in this case. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody. Since, it was proved that none tampered with the samples, until the same were received in the office of the Chemical Examiner, the submission of the Counsel for the appellant, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. Since it was proved that none tampered with the samples, until the same reached the office of the Chemical Examiner, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that when the case property was produced, in the Court, the seals on some of the bags, were found broken. He further submitted that some bags were in torn condition. He further submitted that under these circumstances, it could not be said that the case property produced in the Court, at the Crl. Appeal No. 974-SB of 1997 9 time of evidence of the prosecution witnesses, was the same, as was allegedly recovered from the accused-appellant. He further submitted that, under these circumstances, it could be said that no recovery, whatsoever, was effected from the accused, but he was falsely implicated in the instant case. The bags containing poppy husk Ex.P2 to Ex.P16 were produced at the time of evidence of Inspector Pargat Singh ( PW3 ) on 21.04.1993, when his examination-in-chief was recorded. His cross-examination was conducted on 11.09.1996, when again the case property was produced. Some of the bags were found torn and the seals on some of the bags were found broken. It may be stated here, that the recovery, in this case was effected on 26.03.1991, whereas, the case property was in the first instance, produced in the Court at the time of the evidence of Pargat Singh, ( PW3 ) after more than two years and for the second time, during the course of cross examination, after more than five years. The case property remained lying in the malkhana, where the case properties of other cases, were also lying. On account of shortage of spaces, in the malkhanas, the case properties of the cases, cannot be stacked properly. If, on account of irresponsible handling, lapse of sufficient time, between the date of recovery, and production of the case property, in the Court, and during the course of transit, seals on some of the bags stood broken and some of the bags containing poppy Crl. Appeal No. 974-SB of 1997 10 husk underwent the process of decay that did not mean that the case property, produced in the Court, did not stand connected with the case. Pargat Singh, Inspector ( PW3 ) in clear-cut terms, stated that the bags, containing poppy husk, produced, in the Court, were the same, as were recovered from the truck, being driven by the accused. The only obligation, upon the prosecution is to produce the case property in the Court and get it identified, from the prosecution witnesses, so as to connect the same with the case. In the instant case, the prosecution produced the witnesses, who identified the case property, as the same, as was recovered from the accused. Under these circumstances, the case property produced in the Court, stood duly connected with the case. 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 submitted by the Counsel for the appellant, that according to the prosecution story, Jasbir Singh Sandhu, SP ( Operation ) along with 4/5 gunmen came to the spot, and he also joined the police party. He further submitted that no document bears the signatures of Jasbir Singh Sandhu. He further submitted that, Jasbir Singh Sandhu, referred to above, was not examined by the prosecution. He further submitted that under these circumstances, it could be said that Jasbir Singh Sandhu, SP, Crl. Appeal No. 974-SB of 1997 11 neither joined the police party nor was present at the time of the alleged search and seizure and, as such, the case of the prosecution became doubtful. It is, no doubt, true that none of the documents bears the signatures of Jasbir Singh Sandhu. He was also not examined, by the prosecution The mere fact that none of the documents was signed by Jasbir Singh Sandhu, in itself, did not go to prove that the case of the prosecution was doubtful. It is for the Public Prosecutor for the State, to decide, as to how many witnesses, he wanted to examine, to prove his case. Since the Additional Public Prosecutor for the State, thought that it was not necessary to examine Jasbir Singh Sandhu, SP, as the other evidence, produced by the prosecution, was sufficient to unfold the prosecution story, it could not be said that he exercised the discretion vested in him arbitrarily or capriciously. The other evidence, produced by the prosecution, being sufficient to prove the case, non-examination of Jasbir Singh Sandhu, did not at all cause any dent, in the prosecution case. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 14. No doubt, Ranza, who was Panch of Gram Panchayat, Takhar Khurd, at the relevant time, was examined as DW1, by the accused-appellant. He deposed that the police was asking the accused to provide the truck of his father , but Crl. Appeal No. 974-SB of 1997 12 he refused to do so, as a result whereof, an altercation took place. He further submitted that, on account of this reason, the accused was falsely implicated. If the accused had been taken away by the police, and falsely implicated in the instant case, then Ranzha, DW1, could not be expected to sit silent. In those circumstances, he was required to send an application to the Higher Officers, regarding the false implication of the accused. He could also get the resolution passed, in the panchayat, that the accused was taken by the police, in his presence, and no recovery of contraband was effected from him, but he was falsely implicated. However, he did not do so. The recovery was effected in the year 1991, whereas, this witness appeared in the Court on 26.11.1997. He slept over the matter, for more than six and a half years, and, ultimately, came to the Court, to depose that the accused was falsely implicated, in the instant case. Mere silence, on his part, for such a long time, in itself, was sufficient to disbelieve his statement. The trial Court, was right, in disbelieving his statement. This Court after re-appraisal of the evidence of the witnesses, also comes to the same conclusion. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. No other point, was urged, by the Counsel for the parties. Crl. Appeal No. 974-SB of 1997 13 16. 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. The same are liable to be upheld. 17. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence, dated 26.11.1997, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, within two months, from the date of receipt of a certified copy of the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure. 18. No specific order was passed by the trial Court, regarding the confiscation or otherwise of the truck. The truck, in question, as per the appellant, belongs to his father. The trial Court is directed to initiate proceedings, regarding confiscation and Crl. Appeal No. 974-SB of 1997 14 submit the compliance report within a period of three months from the date of receipt of a certified copy of the judgment. (SHAM SUNDER) JUDGE July 23, 2008 dinesh