Crl.Appeal No. 857-DB of 2006 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No. 857-DB of 2006 Date of Decision:20.01.2009 Ganesh son of Kapil Dev, resident of Haraj, Police Station Sheela Ganj, District Moti Hari ( Bihar ). .... Appellant Versus The State of Haryana .... Respondent ---- CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Karan Singh, Advocate for the appellant. Mr. Naveen Malik,Additional Advocate General,Haryana for the respondent-State. **** SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence dated 11.02.2005, rendered by the Judge, Special Court, Panipat, vide which he convicted the accused (now appellant), for the offence, punishable under Section 20 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 12 years and to pay a fine of Rs. 2 lacs, and in default of Crl.Appeal No. 857-DB of 2006 --2-- payment of the same, to undergo further rigorous imprisonment for a period of two years, for having been found in possession of 3 Kgs charas, without any permit or licence. 2. The facts, in brief, are that on 30.08.2001 Narender Singh, Assistant Sub Inspector alongwith other Police officials was present at N.F.L. Chowk, while on patrol duty and checking of crime. In the meanwhile, a person was seen coming from the side of N.F.L. Colony on foot, while carrying a bag on his left shoulder, who on seeing the Police party, at once, retreated and started walking briskly. On suspicion, he was stopped. On enquiry, he disclosed his name as Ganesh son of Kapil Dev, resident of village Haraj. Narender Singh, Assistant Sub Inspector, suspected that the accused was carrying some contraband in the bag, aforesaid. Notice under Section 50 of the Act was served upon him, as to whether, he wanted the search of the bag, to be conducted in the presence of a Gazetted Officer or a Magistrate. He opted that the search of the bag be conducted, in the presence of a Gazetted Officer or a Magistrate. Thereafter, Vijay Parkash Sharma, District Development and Panchayat Officer, was requested to reach the spot, as a result whereof, he reached there. The accused alongwith the bag was produced before him. Mr. Vijay Parkash Sharma, District Development and Panchayat Officer Crl.Appeal No. 857-DB of 2006 --3-- directed the Investigating Officer to conduct the search of the bag. On search of the bag, 3 Kgs charas, was recovered, therefrom. A sample of 100 grams, was taken out, and the remaining charas was put into a separate container. The sample and the container, containing the remaining charas, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. 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. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 20 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 Ramesh Kumar, Constable, (PW-1), who tendered into evidence his affidavit Ex.PA, Ghan Shyam Dass, Head Constable, ( PW-2 ), who tendered into evidence his affidavit Ex.PB, Shivadan Singh, Inspector, ( PW-3 ), who was the Station House Officer, Police Station, Chandni Bag, Panipat, at the relevant time, before whom, the case property, the Crl.Appeal No. 857-DB of 2006 --4-- witnesses and the accused were produced, and who verified the investigation, and affixed his seal 'SS' on the sample parcel and the case property, Hukam Singh, Assistant Sub Inspector, ( PW-4 ), who on receipt ruqa Ex.PC, recorded the FIR Ex.PC/1, Ranbir Singh, Head Constable, ( PW-5 ), who was with Narender Singh, Assistant Sub Inspector, the Investigating Officer, at the time of the apprehension of the accused, search of the bag, being carried by him and recovery of 3 Kgs charas therefrom, Narender Singh, Assistant Sub Inspector, ( PW-6 ), the Investigating Officer, who conducted the search of bag being carried by the accused, and effected recovery of charas, as also conducted the investigation, Rajinder Singh, E.H.C. ( PW- 7 ), who tendered into evidence his affidavit Ex.PI and V.P. Sharma, District Development & Panchayat Officer, ( PW-8 ), a witness to the search and seizure. Thereafter, the Public Prosecutor 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, did not lead any evidence, in his defence. Crl.Appeal No. 857-DB of 2006 --5-- 6. After hearing the 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 appellant. 8. We 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, contended that Narender Singh, Assistant Sub Inspector , sent ruqa, in this case, and became the complainant. He further submitted that he also investigated the case. He further submitted that the procedure adopted by Narender Singh, Assistant Sub Inspector, was contrary to the provisions of law. He further submitted that, on account of adoption of such a course, a great prejudice was caused to the accused, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is no provision in the Code of Criminal Procedure, governing the conduct of investigation, that the Police official, who sent the ruqa, could not himself Crl.Appeal No. 857-DB of 2006 --6-- investigate the case. Had there been any provision, in the Code of Criminal Procedure, prohibiting the Police official sending the ruqa, from conducting the investigation, the matter would have been different. In the absence of any provision, in the Code of Criminal Procedure, in this regard, in our considered opinion, Narender Singh, Assistant Sub Inspector, did not adopt a procedure, which was contrary to the provisions of law. On the other hand, he adopted the procedure, in this case, which was in consonance with the provisions of law. In S.Jeevanantham Vs. State through Inspector of Police, T.N. (2004) 5 Supreme Court Cases, 230, a case decided by the Apex Court, it was held that if the Police Officer, who is the complainant, also conducts the investigation of the case, and it is not proved that any prejudice was caused to the accused, on account of the adoption of such a course, the accused cannot be acquitted. In this case, no evidence was led by the accused, nor was it proved, from the prosecution evidence, that a prejudice was caused to him, on account of the adoption of the aforesaid course, by the Investigating Officer. In S.Jeevanantham's case (supra) the recovery was effected, from the accused, by a Police Officer, who sent the ruqa, and, thus, became the complainant. The same very Police Officer, conducted the investigation. Under these circumstances, it was held that since Crl.Appeal No. 857-DB of 2006 --7-- no prejudice or bias was shown to have been caused, to the accused, on account of the adoption of such a practice, by the Police Officer, the investigation, and the subsequent proceedings, did not become invalid. The facts S.Jeevanantham's case (supra) are identical to the facts of the instant case, and, as such, the principle of law, laid down, therein, is applicable to this 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. 10. The Counsel for the appellant, however, placed reliance on Risala v. State of Haryana, 1996(2) RCR ( Criminal ), 707 , a case decided by a Single Bench of this Court, in support of his contention, to contend that the Police official, who sent the ruqa, could not investigate the case himself. It may be stated here that in view of the principle of law, laid down in S.Jeevanantham's case (supra) decided by the Apex Court, any contrary principle of law, laid down, on the same point, in Risala's case ( supra ), decided by this Court , shall not hold the field. No help, therefore, can be drawn, by the Counsel for the appellant, therefrom. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. Crl.Appeal No. 857-DB of 2006 --8-- 11. It was next submitted by the Counsel for the appellant, that no independent witness, despite availability, was joined, as a result whereof, the case of the prosecution became highly doubtful. He further submitted that even no effort was made, to join an independent witness. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Narender Singh, Assistant Sub Inspector, during the course of cross-examination, in clear-cut terms, stated that people were coming and going at the spot. He further stated that he had called the public persons to join the investigation, in the presence of V.P. Sharma, District Development & Panchayat Officer, but none came forward to join the same. It means that an effort was made by Narender Singh, Assistant Sub Inspector, to join an independent witness. If he failed to succeed in his effort, then his conduct could not be said to be, in any way, blemished. It is a matter of common experience, that independent witnesses, hardly come forward, to join a search and seizure, with a view to avoid wrath of the accused, and complications, which may arise, later on, on account of their appearance, in the Court, for evidence, from time to time. It has become the general tendency of the people, to criticize the Police, and the Courts, Crl.Appeal No. 857-DB of 2006 --9-- for their failures, but, as and when an occasion arises, to seek their assistance, in apprehending the accused and at the time of search and seizure, they generally shun joining the Police party. It was, under these circumstances, that none came forward to join the Police party. 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 but nothing came to the fore, 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. Not only this, even V.P. Sharma, District Development & Panchayat Officer could be characterized as an independent witness. The trial Court was Crl.Appeal No. 857-DB of 2006 --10-- right in coming to the conclusion that the evidence of the official witnesses, was cogent, convincing, reliable and trust- worthy. 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:- “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.” 11-A. 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 Crl.Appeal No. 857-DB of 2006 --11-- 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, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, is cogent, convincing, creditworthy, and reliable, and there was no 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. 12. It was next submitted by the Counsel for the appellant, that the sample was sent to the office of the Forensic Science Laboratory, after a delay of seven days and no explanation was furnished, as a result whereof, the chances of tampering with the same, until the same reached the Laboratory, could not be ruled out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that there was a delay, in sending the Crl.Appeal No. 857-DB of 2006 --12-- sample, to the office of the Forensic Science Laboratory, in itself, could not be said to be sufficient, to come to the conclusion, that the same was tampered with, until it reached the Laboratory. In the absence of un-explained delay, the Court is required to take into consideration, the other evidence, produced by the prosecution, to come to the conclusion, as to whether, there was any possibility of tampering with the sample, until the same reached the office of the Forensic Science Laboratory or not. The other evidence, produced by the prosecution, as stated above, has been held to be cogent, convincing, reliable and trustworthy. From the other evidence, it was proved, that none tampered with the sample, until the same reached the office of the Forensic Science Laboratory. Even, there is report of the Forensic Science Laboratory Ex.PX, which clearly proves that the seals on the exhibit were intact, on arrival, till the time of its analysis, and agreed with the specimen impression of the seals. The report, referred to above, is per-se admissible, in toto, under Section 293 of the Code of criminal Procedure. There is no challenge to the report of the Forensic Science Laboratory, 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 Crl.Appeal No. 857-DB of 2006 --13-- fatal, where there is evidence that the seized articles, remained in safe custody. Since, it was proved, that none tampered with the sample, until the same was received, in the office of the Forensic Science Laboratory, 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. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. The Counsel for the appellant, however, placed reliance on Sewa Singh v. State of Haryana, 2008(2) RCR ( Criminal ) 520, in support of his contention that delay in sending the sample, must prove fatal to the case of the prosecution. The Court, can not act on mere conjectures or surmises that the sample parcel might have been tampered with, until it reached the office of the Forensic Science Laboratory. In Sewa Singh's case ( supra ), there was no other evidence, produced by the prosecution, to prove that none tampered with the sample, until the same reached the office of the Forensic Science Laboratory. In the instant case, sufficient evidence, referred to above, was produced by the prosecution, to prove that the possibility of tampering with the sample, until it reached the office of the Laboratory, stood Crl.Appeal No. 857-DB of 2006 --14-- completely ruled out. Even otherwise, in view of the principle of law, laid down, in State of Orissa's case ( supra ), decided by the Apex Court, any principle of law, laid down, to the contrary, on the same point, in Sewa Singh's case ( supra ), decided by a Single Bench of this Court, shall not hold the field. Even, the facts of the aforesaid authority, relied upon by the Counsel for the appellant, are distinguishable, from the facts of the instant case. No help, therefore, can be drawn, by the Counsel for the appellant, from the ratio of law, laid down, in the authority cited by him, and referred to above. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellant, that the seal, after use, remained with the Police officials and, as such, the possibility of tampering with the sample parcel, until it reached the office of the Laboratory, could not be ruled out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. As stated above, no independent witness could be joined, for the reasons, referred to above, at the time of search and seizure. It was, under these circumstances, that the seal after use was handed over to another Police official, a member of Crl.Appeal No. 857-DB of 2006 --15-- the party. It has been held above that none tampered with the sample parcel, until it reached the Laboratory. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal, on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal, by the Investigating Officer, later on, was not produced, as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the trial, and the prosecution case, could not be thrown out, on that score alone. It was further held, in this case, that it was not incumbent upon the Police Officer, to hand over the seal, to a third person forthwith, and even, in cases, where he had done so, it was not obligatory upon him, to produce such person, as a witness, during trial, as there is no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. From the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, the completion of link evidence was proved. In this view of the matter, the submission of the Counsel for the appellant, being without substance, is rejected. Crl.Appeal No. 857-DB of 2006 --16-- 15. The Counsel for the appellant, however, placed reliance on Sukhdev Singh alias Sukha v. State of Punjab, 2006 (1 ) R.C.R. ( Criminal ) 4, in support of his contention that the possibility of seal being tampered with, and substance being changed, as the seal remained with the Police officials, could not be ruled out. It may be stated here that, in the instant case, through the cogent and convincing evidence, produced by the prosecution, it was proved beyond doubt, that the possibility of tampering with the sample parcel, until it reached the office of the Forensic Science Laboratory, stood completely ruled out. Since no independent witness could be joined, with the Police party, at the time of recovery, for the reasons recorded above, the question of handing over the seal, after use , to him, did not at all arise. Even otherwise, in view of the principle of law, laid down in Piara Singh's case ( supra ), decided by a Full Bench of this Court, any principle of law to the contrary, on the same point, laid down in Sukhdev Singh's case ( supra ) decided by a Division Bench of this Court, shall not hold the field. No help, therefore, can be drawn by the Counsel for the appellant, from the ratio of law, laid down, in the authority cited by him, and Crl.Appeal No. 857-DB of 2006 --17-- referred to above. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 16. It was next submitted by the Counsel for the appellant, that the sample impression of the seals, was not deposited, in the office of the Forensic Science Laboratory, as a result whereof, it was deprived of comparing the seals on the sample, with the specimen seals, which were actually affixed on the sample parcel at the time of recovery. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Ex. PB is the affidavit of Ghan Shyam Dass, Head Constable, who was posted as Moharrir Head Constable in Police Station Chandni Bag, Panipat. He stated that on 30.08.2001 Narender Kumar, Assistant Sub Inspector handed over to him the case property alongwith sample parcel, duly sealed with the seals 'NS', 'VP' and 'SS', which he kept in the Malkhana. He further stated that on 05.09.2001 he handed over to Ramesh Kumar, Constable sample parcel of charas alongwith sample seals, for deposit in the office of Forensic Science Laboratory, Madhuban and he after depositing the same, handed over the deposit receipt to Crl.Appeal No. 857-DB of 2006 --18-- him. He further stated that none tampered with the sample parcel, till it remained in his custody. Ex.PA is the affidavit of Ramesh Kumar, Constable, who testified that on 05.09.2001 Ghan Shyam Dass, Moharrir Head Constable, handed over to him, a sealed parcel bearing seals 'VP','SS' and 'NS' alongwith sample seals, after depositing the same, in the office of Forensic Science Laboratory and, thereafter, he handed over the receipt of deposit, to the Moharrir Head Constable. From both these affidavits, it was, thus, proved beyond doubt, that sample impression of the seals, was also handed over to the Constable, concerned for deposit alongwith the sample parcel, in the office of the Forensic Science Laboratory. Not only this, even from the report of the Forensic Science Laboratory, it was proved that the seals on the sample parcel were intact and tallied with the sample impression of the seals of the forwarding authority. It is further evident from the report Ex.PX, of the Forensic Science Laboratory that one seal bearing