Criminal Appeal No. 1293-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1293-SB of 2002 Date of Decision: 15.03.2010 Naib Singh son of Ranjit Singh aged about 27 years, Cultivator, r/o village Ram Nagar Bhattal. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bikramjit Arora, Advocate, Amicus-Curiae, for the appellant. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgment of conviction and the order of sentence, dated 18.07.02, rendered by the Judge, Special Court, Mansa, vide which, he convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced him to undergo Rigorous Imprisonment, for a period of 03 years, and to pay a fine of Rs. 30,000/-, and, in default of payment thereof, to further undergo Criminal Appeal No. 1293-SB of 2002 2 rigorous imprisonment, for a period of six months, for having been found in possession of 25 kgs 100 gms poppy husk, without any permit or licence, now falling within the ambit of non-commercial quantity. 2. The facts, in brief, are that, on 24.01.98, Gurtej Singh, Assistant Sub Inspector, alongwith Gurcharan Singh, Head Constable, and other Police officials, was on patrol duty, going in a private jeep, towards villages Bachhoana, Chak Bhai Ke, Dodra etc. On the way, one Raj Kumar son of Ram Chand, met the Police party, who was joined with it. When the Police party reached near the turning of village Chak Bhai Ke, situated in the revenue estate of village Bachhoana, the accused, was seen coming from the side of village Chak Bhai Ke, carrying a gunny bag, on his head. On seeing the Police party, the accused, immediately took a turn towards wheat crop fields, situated on the left hand side, with a view to slip away, but was overpowered on suspicion. The Investigating Officer, apprised the accused, that he suspected some contraband, in the gunny bag, and, as such, the same was to be searched. On search of the bag, in the presence of Kashmir Singh Bhinder, Deputy Superintendent of Police, who was called to the spot, 25 kgs 100 gms poppy husk, was recovered. A sample of 100 gms, was separated therefrom, and the remaining poppy husk, was kept in the same bag. The sample and the bag, containing the remaining poppy husk, 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 first information report, was registered. Rough site plan of the place of recovery was prepared. The Criminal Appeal No. 1293-SB of 2002 3 accused was arrested. After the completion of investigation, he was challaned. 3. On his appearance, in the Court, the accused, was supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 15 of the Act, was framed, against the accused, which was read-over and explained to him, to which, he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Kashmir Singh Bhinder, Deputy Superintendent of Police (PW1), a witness to the recovery, Gurlal Singh, Constable (PW2), Amarjit Singh, Sub Inspector (PW3), and Gurcharan Singh, Head Constable (PW4). The Additional Public Prosecutor, for the State, gave up Raj Kumar, prosecution witness, as having been won over by the accused. Thereafter, the prosecution evidence was closed. 6. 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. It was stated by him that the Police, picked him, from his house, on 23.01.98, at the instance of Ex- Sarpanch Gurtej Singh, resident of village Ramnagar Bhathal, in the presence of Makhan Singh, Lamberdar, Nat Sigh and Binder Singh, residents of Ramnagar Bhathal. It was further stated by him that, on the next day, the Police lodged the instant case against him. He, however, did not lead any evidence in defence, and closed the same. 7. After hearing the Counsel for the parties, and, on going Criminal Appeal No. 1293-SB of 2002 4 through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, the instant appeal, has been filed by the appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that, there was delay of 04 days, in sending the sample parcel, to the office of the Chemical Examiner, which remained unexplained, and, as such, the possibility of tampering with the same, 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 delay, in sending the sample, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcel was tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence, produced by the prosecution, has been subjected to indepth scrutiny, and, it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcel, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex. PH, which clearly proves that the seals on the sample, were intact, on its arrival, in the Laboratory, and tallied with the sample seals sent. The report of the Chemical Examiner is Criminal Appeal No. 1293-SB of 2002 5 per-se admissible into evidence, in its entirety, as per the provisions of Section 293. The delay in sending the sample, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcel, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In State of Orissa Vs. Kanduri Sahoo, 2004(1), RCR (Criminal), 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. It was held, in the aforesaid cases, that in the face of the other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 04 days, in sending the sample to the office of the Chemical Examiner, did not at all matter much. 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 Criminal Appeal No. 1293-SB of 2002 6 the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In the instant case, the recovery, was not effected, from the personal search of the accused, but, from the gunny bag, which he was carrying, and, as such, the provisions of Section 50 of the Act, were not applicable, to the instant case. 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. The submission of the Counsel for the appellant, thus, being without substance, stands rejected. 12. It was next submitted by the Counsel for the appellant, that though, Raj Kumar, independent witness, was joined, yet, he was not examined, but, on other hand, was given up, as won over by the accused. He further submitted that, as such, an adverse inference, could be drawn, that had Raj Kumar, independent witness, been examined, he would not have supported the case of the prosecution. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is, no dispute, about the factum, that Raj Kumar, independent witness, was joined, but, he was given up, as won over by the accused, on the request of the Police, by the Additional Public Prosecutor, for the State, vide statement dated 07.09.98. It Criminal Appeal No. 1293-SB of 2002 7 means that, this witness, was given up, by the Additional Public Prosecutor, for the State, after being satisfied, that he had actually been won over. The Additional Public Prosecutor, for the State, is the master of the case. It is for him, to decide, as to which witness, he wants to examine, and which witness, he does not want to examine. Since Raj Kumar, independent witness, had been won over by the accused, there was no necessity of examining him, as the Additional Public Prosecutor, for the State, very well knew that, if he examined Raj Kumar, independent witness, he would cause damage, to the case of the prosecution. The discretion, exercised by the Additional Public Prosecutor, for the State, in giving up Raj Kumar, could not be said to be arbitrary or capricious. On the other hand, the decision, taken by the Additional Public Prosecutor, for the State, could be said to be bonafide. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material, or even if, it is known that he/she has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference could be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of Criminal Appeal No. 1293-SB of 2002 8 yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over by the accused, and only the officials were examined, as witnesses for the prosecution, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly in Appa Bai and another Vs. State of Gujrat 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. The principle of law, laid down, in the said cases, is fully applicable to the facts of the present case. Even otherwise, the other evidence produced by the prosecution, is reliable. 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, however, submitted by the Counsel for the appellant, that since the appellant, has been facing the mental agony and physical pain w.e.f. 20.04.98, when the first information report, was registered, against him, his sentence be reduced suitably. The Criminal Appeal No. 1293-SB of 2002 9 submission of the Counsel for the appellant, in this regard, appears to be correct. Since the appellant, has been undergoing the protracted criminal proceedings, for the last about 11 years, his sentence deserves to be reduced suitably. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 14. For the reasons recorded above, the appeal, is partly accepted. The judgement of conviction, is maintained. The order of sentence, is modified, in the manner, that the appellant, shall undergo rigorous imprisonment, for a period of 01 year 06 months, instead of 03 years, awarded by the trial Court. The fine is reduced to Rs. 10,000/-, from Rs. 30,000/-, and the sentence, awarded in default of payment thereof, is reduced to 03 months from 06 months. 15. The Registry shall comply immediately. 15.03.2010 (SHAM SUNDER) Amodh JUDGE