Crl. Appeal No. 1918-SB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 1918-SB of 2002 Date of decision. 23.07.2008 Hira Lal son of Jamba Ram, r/o Matia, P.S. Banjar, District Kulu ( HP ). ....... Appellant Versus The State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. H.S. Jaswal, Advocate for the appellant. Mr. A.K. Jindal, Assistant Advocate General, Haryana for the respondent. **** Sham Sunder, J. This appeal is directed against the judgment of conviction dated 05.10.2002 and the order of sentence dated 10.10.2002, rendered by the Court of Special Judge, Panipat, vide which it 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 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 2 Kgs 600 Grams Charas, which falls within the ambit of commercial quantity, without any permit or licence. Crl. Appeal No. 1918-SB of 2002 2 2. The facts, in brief, are that on 2.10.2000, ASI Ramesh Kumar, along with other police officials was present in front of the outer gate of Bus Stand, Panipat, on GT Road, in connection with patrol duty. In the meantime, the accused was seen coming out of Bus Stand, Panipat, having a grey coloured bag, on his right shoulder. On seeing the police party, the accused turned back and started walking briskly, inside the Bus Stand. On suspicion, he was apprehended. The search of the bag, being carried by the accused, was conducted, in accordance with the provisions of law, in the presence of Naib Tehsildar Balraj Singh Jakhar, who was called to the spot, by sending a telephonic message, as a result whereof 2 Kgs 600 grams charas was recovered. A sample of 50 grams charas was taken out. The sample and the remaining charas were converted into separate parcels duly sealed, and taken into possession vide recovery memo Ex.PB. Ruqa was sent to the Police Station, on the basis of which the FIR was registered. The accused was arrested. The site plan was prepared. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 20 of the Act was framed against the accused, to which he pleaded not guilty and claimed trial. Crl. Appeal No. 1918-SB of 2002 3 4. The prosecution, in support of its case, examined Jagdish Ram, Inspector/SHO, ( PW-1 ), before whom the accused, the witnesses and the case property were produced by the ASI , Balraj Singh Jakhar, Naib Tehsildar, ( PW-2),a witness to the recovery, Ramesh Kumar, ASI, ( PW-3 ), the Investigating Officer, Jasmer Singh, Constable, ( PW-4 ), a formal witness, Brij Pal Singh, Head Constable, ( PW- 5 ), who tendered his affidavit and Rakesh Kumar, Constable, ( PW-6 ), who delivered the special report to the Illaqa Magistrate and other Police Officers, 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 defence. 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. Crl. Appeal No. 1918-SB of 2002 4 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, submitted that no independent witness, was joined by the Investigating Officer, despite availability. He further submitted that the evidence of the official witnesses, being of interested nature, could not be relied upon, but the trial Court was wrong in recording conviction and awarding sentence on the basis thereof. He further submitted that, on account of non-joining of an independent witness, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In this case, as soon as,the accused came out-side the bus stand with a bag hanging on his shoulder, a suspicion arose in the mind of the Investigating Officer, that the said bag was having some contraband. Notice was given to him, as to whether, he wanted the search of the bag being conducted, in the presence of a Gazetted Officer or a Magistrate. The accused ( appellant ) replied that the search be conducted, in the presence of a Magistrate. It was, under these circumstances, that Balraj Singh Jakhar, Naib Tehsildar- cum-Executive Magistrate, was called and, in his presence, the search of the bag, being carried by the accused Crl. Appeal No. 1918-SB of 2002 5 ( appellant ), was conducted. Balraj Singh Jakhar, Naib Tehsildar, Panipat could be said to be an independent witness. He did not belong to the police department, was holding a very responsible position, at the relevant time, and, thus, there was no reason, on his part, to depose falsely. ASI Ramesh Kumar, during the course of cross-examination, stated that he requested some persons from the public to join the investigation, but they expressed their helplessness. It is, therefore, evident from the statement of Ramesh Kumar, ASI, that besides the presence of Balraj Singh Jakhar, Naib Tehsildar-cum-Executive Magistrate, at the time of search and seizure, he also made an effort, to join an independent witness, from the public, but none was ready to join. It is a matter of common experience, that the persons from the public, are always reluctant to join search and seizure with a view to avoid incurring wrath of the accused, as also the complications which may arise on account of their appearance in the Court, for their evidence, from time to time. It was, under these circumstances, that none came forward to join the police party. Since an effort was made by ASI Ramesh Kumar to join an independent witness, but he was not successful, it could not be said that the case of the prosecution became doubtful, in any manner. In the absence of corroboration to the evidence of the official witnesses, through an independent source, the same cannot be Crl. Appeal No. 1918-SB of 2002 6 disbelieved and distrusted. In the face of the evidence of the official witnesses only, the Court is put on guard, to scrutinize the same carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the evidence of the official witnesses is cogent, convincing, reliable and credit-worthy, then no formidable reason, can be coined, to disbelieve the same. The evidence of the official witnesses, in the instant case, has been subjected to in-depth scrutiny. The same was sufficient to unfold the prosecution story. The same has also been found to be credit worthy. The trial Court was, thus, right in coming to the conclusion, that the evidence of the official witnesses being reliable, was sufficient to record conviction and award sentence to the accused. 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 it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim’s 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. In State of NCT o f Delhi versus Sunil (2000) ISCC 748, it was held as under:- Crl. Appeal No. 1918-SB of 2002 7 “It is an archaic notion that actions of the Police Officers 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 can not 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”. 9-A. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. On account of non-joining of an independent witness, the case of the prosecution, did not become doubtful. 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 the story of the prosecution is most un- natural, improbable and suffers from serious infirmities, but the trial Court was completely wrong, in relying upon the same. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The story of the prosecution, is not at all unnatural or improbable. When the police party was present near the bus stand, the accused came outside the same, along with a bag, on his shoulder. He got perplexed, on seeing the police party, which aroused Crl. Appeal No. 1918-SB of 2002 8 suspicion in the mind of Ramesh Kumar, ASI. He was, thus, apprehended. When search of the bag was conducted, , 2 KGs 600 grams of charas was recovered, from the same. The story set up by the prosecution, was duly proved through the evidence of the official witnesses, referred to above. The evidence of the prosecution witnesses has been carefully perused. No serious infirmity came to the fore, during the course of cross-examination of the witnesses, which may go to discredit their evidence. The Court is not required to act on mere surmises and conjectures, to pick holes, in the evidence of the prosecution witnesses. The Counsel for the appellant, could not convince this Court, during the course of arguments, and on the basis of evidence, produced by the prosecution as to how the evidence of the prosecution witnesses is unnatural and improbable. The trial Court was right in holding that the story of the prosecution was most natural and probable and stood duly proved through cogent, convincing, reliable and creditworthy evidence of the witnesses. This Court, after due scrutiny of the evidence of the prosecution 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. Crl. Appeal No. 1918-SB of 2002 9 12. It was next contended by the Counsel for the appellant, that the provisions of Section 50 of the Act, were not complied with, and, as such, the investigation, trial and conviction, stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The provisions of Section 50 of the Act, were not applicable to the instant case, as the recovery was not effected, from the person of the accused but from the bag, being carried by him, on his shoulder. In. State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be, in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view, was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone the provisions of Section 50 would be attracted. 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. 1918-SB of 2002 10 13. It was next contended by the Counsel for the appellant, that the provisions of Section 55 of the Act, were not complied with, as a result whereof, a prejudice was caused to the accused, and the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. ASI Ramesh Kumar, Investigating Officer, on reaching the Police Station on the same day, produced the case property, the accused and the witnesses, before Jagdish Ram, Inspector, who was posted as Station House Officer of Police Station, City Panipat at the relevant time. Jagdish Ram, Inspector ( PW1 ) stated that on production of the case property, the accused and the witnesses, he verified the investigation and affixed his own seal bearing inscription 'JS' on both the parcels. He further stated that on his direction, ASI Ramesh Kumar deposited the case property with the MHC and he did accordingly. It means that the provisions of Section 55 of the Act, were duly complied with by Ramesh Kumar, Assistant Sub Inspector. The submission of the Counsel for the appellant, to the effect, that the provisions of Section 55 of the Act, were violated by the Investigating Officer, therefore, being without merit, must fail and same stands rejected. Crl. Appeal No. 1918-SB of 2002 11 14. It was next contended by the Counsel for the appellant, that the provisions of Section 57 of the Act, were not complied with. It may be stated here, that according to Section 57 of the Act, the Investigating Officer, is required to send report within 48 hours, from the time of search and seizure, to the Officer Superior, so as to apprise him of the facts and circumstances of the case, as also other details. In the instant case, Balraj Singh Jakhar, Naib Tehsildar, was called to the spot, by sending a telephonic message, and he reached there. It was, in his presence, that search was effected. Not only this, from the spot, ruqa Ex.PD, was sent to the Police Station, by the Investigating Officer, on the basis whereof, the FIR Ex.PD/1 was recorded. In the ruqa, the detailed facts were mentioned, with regard to the apprehension of the accused, search of the bag, being carried by him in accordance with the provisions of law in the presence of Naib Tehsildar-cum- Executive Magistrate, referred to above and other police officials, resulting into the recovery of 2 KGs 600 grams charas. As soon as, the ruqa was sent to the Police Station, Rakesh Kumar, Constable delivered the Special reports to the Illaqa Magistrate, Superintendent of Police and the Deputy Superintendent of Police. It means that within the stipulated time, Special report was sent to the Officer Superior, by sending copy of the FIR, to him. Therefore, due compliance of the provisions of Section 57 of the Act, was made. In these Crl. Appeal No. 1918-SB of 2002 12 circumstances, the submission of the Counsel for the appellant, to the effect, that the provisions of Section 57 of the Act, were violated by the Investigating Officer, therefore, being without merit, must fail, and same stands rejected. 15. It was next contended by the Counsel for the appellant, that the link evidence, in this case, was incomplete, as a result whereof, the accused was entitled to acquittal, but the trial Court failed to take into consideration this aspect of the matter, as a result whereof, miscarriage of justice occasioned. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The evidence produced by the prosecution, on record clearly proved that the case property, the sample parcel and the sample impression of the seals were deposited by ASI Ramesh Kumar with MHC, Brij Lal, Head Constable ( PW5 ), who was posted as MHC in Police Station Panipat. He tendered his affidavit Ex.PG, stating therein, that the case property, the sample parcel and the sample impression of the seals were deposited with him with seals intact. He further stated that he handed over the same to Constable Jashmer Singh, who deposited the same in the office of the Forensic Science Laboratory, and handed over to him the deposit receipt. Jashmer Singh, Constable ( PW4 ) tendered his affidavit Ex.PF, stating therein, that he handed over the sample parcel duly sealed along with sample impression of the seals, for depositing the same, in the office of Forensic Science Crl. Appeal No. 1918-SB of 2002 13 Laboratory, Madhuban by MMHC Brij Lal and he deposited the same with seals intact and handed over the deposit receipt to the MMHC, referred to above. From the report of the Forensic Science Laboratory, it is proved that seals on the parcels were found intact and tallied with the specimen seals sent by the forwarding Authority. The Counsel for the appellant, could not point out, as to, under what circumstances, the link evidence was incomplete. On the other hand, it was proved from the evidence, on record, that the link evidence was totally complete. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and same stands rejected. 16 No other point, was urged, by the Counsel for the parties. 17. 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. 18. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 5.10.2002 and the order of sentence dated 10.10.2002, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, shall comply with the judgment, with due promptitude, keeping in view the Crl. Appeal No. 1918-SB of 2002 14 applicability of the provisions of Section 428 of the Code of Criminal Procedure. (SHAM SUNDER) JUDGE July 23, 2008 dinesh