Criminal Appeal No.2112-SB of 2003(O&M) [1] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... CRA No.2112-SB of 2003(O&M) Amrik Singh ... Appellant VERSUS State of Haryana ... Respondent and CRA No.2044-SB of 2003(O&M) Mansa Ram ... Appellant VERSUS State of Haryana ... Respondent Decided on : May 03, 2010 CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Baldev Singh, Senior Advocate assisted by Mr.Satnam Singh Gill, Advocate for the appellant. (in CRA No.2112-SB of 2003) Mr.K.S.Dhaliwal, Advocate for the appellant. (In CRA No.2044-SB of 2003) Mr.Rajiv Malhotra, Additional Advocate General Haryana. A.N.JINDAL, J.- This judgment shall dispose of two connected appeals i.e. CRA Nos.2112-SB and 2044-SB of 2003, as both have arisen out of the judgment dated 10/11.10.2003 passed by the Special Court, Kurukshetra, convicting the accused - appellants Amrik Singh and Mansha Ram (herein referred as the accused) under Section 15 of the Narcotic Drugs & Criminal Appeal No.2112-SB of 2003(O&M) [2] Psychotropic Substances Act, 1985 (herein referred to as `the Act') and sentencing them to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-, each, failing which, to undergo further rigorous imprisonment for one year. The facts as culled out from the records are that on 30.6.2000, Sub-Inspector Kaptan Singh along with other police officials was present near village Bhagal in Government Jeep bearing Reg.No.HR08B-2019 on crime detection duty, where he received a secret information that Mansha Ram Bajigar and Amrik Singh (accused) residents of Plot Theb Banera were in possession of huge quantity of poppy husk and were indulging in selling the same in the cattle-shed of Amrik Singh and, if raid is conducted, they could be apprehended red-handed. Believing the information to be reliable, the police party reached the `dera' (farm house) of Amrik Singh and saw both the accused taking out the bag from bunker in the cattle-shed. On seeing the police party, one person fled away, who later on found to be Mansha Ram. However, Amrik Singh was over-powered. On notice under Section 50 of the Act served upon him, giving him option of search from a gazetted officer or a Magistrate, he opted to get himself searched in the presence of a Magistrate, as such, the Investigating Officer conveyed message to Deputy Superintendent of Police, Guhla to bring the gazetted officer and photographer at the spot. On this, Om Parkash DSP Guhla and Ashok Kumar Tehsildar Guhla along with other staff and photographer reached the spot. On the directions of the Tehsildar, the bags were taken out from the bunker, built by accused Amrik Singh in his cattle shed, which on counting were found to be thirty-four in number. 200 grams of poppy Criminal Appeal No.2112-SB of 2003(O&M) [3] husk was separated as sample from each bag and converted into separate parcels. The gunny bags were found containing crushed poppy husk, each bag weighing 40 kilogram. The bags as well as the sample parcels were sealed with the seals bearing impression `KS' and `AKG'. After use, the Investigating Officer handed over his seal to ASI Brij Mohan, the Tehsildar retained his seal with him. The accused Amrik Singh was apprehended at the spot, whereas, accused Mansha Ram was arrested later. The Investigating Officer recorded the statements of the witnesses, prepared the rough site plan and on receipt of the report of the Chemical Examiner, the report under Section 173 of the Code of Criminal Procedure was presented against the accused. Finding a prima facie case against the accused, they were charged under Section 15 of the Act, to which they pleaded not guilty and opted to contest. The prosecution in order to substantiate its charges, examined ASI Mahi Pal Singh (PW1), Head Constable Bhaiya Ram (PW2), Head Constable Baljit Singh (PW3), ASI Brij Mohan (PW4), Sub-Inspector Kaptan Singh (PW5), Surinder Kumar photographer (PW6), Ashok Kumar Tehsildar (PW7) and Dr.S.K.Nagpal (PW8). DSP Om Parkash and HC Jasbir Singh were given up, being unnecessary. When examined under Section 313 of the Code of Criminal Procedure, both the accused denied all the incriminating circumstances appearing against them. Accused Amrik Singh further explained that he had no connection with the alleged place of recovery. He and his brother Dhanjit Singh were brought from the fields in order to inquire about the Criminal Appeal No.2112-SB of 2003(O&M) [4] whereabouts of their brother Chanan Singh. When they expressed their helplessness to produce Chanan Singh, he was implicated in the instant case. Similarly, Mansha Ram stated that he was falsely implicated in the case due to party faction in the village. In defence, the accused examined Rajinder Singh (DW1), who has stated that the land of Amrik Singh is adjacent to his land and that Amrik Singh was taken from the fields by the police along with Dhanjit Singh when they were working in the fields. No recovery was effected from him. The accused also examined Head Constable Chetan Singh (DW3), who disclosed that log-book has not been maintained for the last two years and it is to be destroyed after one year. He further stated that the log-book pertaining to the year 2000 (when the offence was committed) was destroyed in his presence on 1.1.2002. Arguments heard. Record perused. The present case is not based only on the testimonies of the police officials, but to authenticate the recovery, the prosecution has examined Ashok Kumar, Tehsildar (PW7), who was posted as such at Guhla on the relevant date. According to him, he went along with photographer and DSP Om Parkash at the place of recovery. He had seen the pit near the cattle-shed and out of the said pit, thirty-four bags containing poppy husk were got recovered from the accused by Kaptan Singh and a sample of 200 grams was separated from each bag and the remaining bags on weighment were found to be of 39.8 Kg, each. The snaps regarding the weighment and recovery of the bags were taken. The sample and the residue were converted into separate parcels and sealed with Criminal Appeal No.2112-SB of 2003(O&M) [5] the seals bearing impression `AK' and `AKG' of SI Kaptan Singh and him, respectively. He further stated that he retained his seal with him. He identified the case property as Ex.P1 to P34. His testimony stands corroborated by SI Kaptan Singh (PW5) and Surinder Kumar photographer (PW6). Surinder Kumar (PW6) has categorically stated that he had reached the spot and took three snaps Ex.P35 to P37, the negatives of which are Ex.P38 to P40. He remained at the spot for half an hour. His testimony to the extent that as soon as he reached at the place of recovery, he did not see the accused, is not sufficient to discard his testimony altogether, as the accused may be present with the Investigating Officer in connection with the interrogation at a little distance, but he was concerned with the photographs, which belie the defence set up by the accused that he was not present at the time of the recovery. These witnesses were cross-examined at length, but nothing fruitful could be elicited, which could defy the prosecution version. So far as the argument with regard to the tampering of the case property is concerned, the prosecution has produced Dr.S.K.Nagpal (PW8), who disclosed that on 3.7.2000, he received thirty-four parcels sealed with the seals `KS' and `AKG' through constable Baljit Singh. He further disclosed that the said parcels were found intact and the seals tallied with the specimen seal impressions. He chemically tested the 34 samples and detected the same containing morphine, codeine, thebaine, papaverine, narcotine along with meconic acid and on the basis of the said analysis, he opined that the samples sent were of poppy straw of “papaver somniferuml”. Criminal Appeal No.2112-SB of 2003(O&M) [6] The link evidence in this case is complete. Constable Baljit Singh (PW3), who had taken the samples to the Forensic Science Laboratory has stated that on 3.7.2000, he was handed over 34 samples by Head Constable Bhaiya Ram along with seal impressions bearing `KS' and `AKG' for depositing the same with Forensic Science Laboratory, Madhuban and that so long, the samples remained in his possession, there were neither tampered by anybody, nor he tampered the same. Head Constable Bhaiya Ram (PW2) has supported this plea given by Head Constable Baljit Singh (PW3). No force could be found in the argument advanced by the counsel for the accused that no independent witness was joined at the time of effecting the recovery from them. In this regard, it is noticed that the findings of the Trial Court qua the guilt of the accused are based not only on the testimonies of the police officials, but a gazetted officer of the status of Tehsildar also, who has supported the factum of recovery from the accused. The case is based on secret information. The efforts made by the Investigating Officer to join independent witness/es failed. It is well-settled by now that obligation to include the public witnesses is not absolute. It is a matter of common experience that no public witness is ready to join the police party as everybody wants to avoid unnecessary and uncalled harassment either at the hands of the accused against whom he was to depose or against the police party for the fear of implication in any case. The public does not want to waste its valuable time and to purchase annoyance of the criminals. As such, non-joining of the public witnesses, where they had refused to join, is not fatal to the prosecution case. Similar Criminal Appeal No.2112-SB of 2003(O&M) [7] observations were made by the Apex Court in Ajmer Singh vs. State of Haryana, 2010(2) RCR (Criminal) 132, wherein, it was observed as under:- “...It is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.” In the instant case, despite the efforts made by the raiding party, no independent person offered to join, that apart, Tehsildar has been examined by the prosecution, who is never under the thumb of the police, therefore, the recovery effected in his presence cannot be discarded for non- joining of any public witness. In any case, while evaluating the testimonies Criminal Appeal No.2112-SB of 2003(O&M) [8] of ASI Brij Mohan (PW4), Sub-Inspector Kaptan Singh (PW5) and Tehsildar Ashok Kumar Gaur (PW7), it transpires that they are quite consistent in their submissions with regard to the time, place and the manner in which the recovery was effected. Barring small discrepancies, no such defect has been brought forth, so as to create dent in the prosecution case. As such, I have no reason to discard the testimonies of the official witnesses, particularly in case of such heavy recovery of 34 bags of poppy husk and where the police officials had no animus or enmity with the accused to implicate them in such a case. As regards the argument that Section 50 of the Act is applicable, the same sans any merit. The question of compliance and non- compliance of the said Section is relevant only in case of personal search of a person and the scope of it is not extended to the search of any vehicle, container or bag. Similar observations were made in case Himachal Pradesh vs. Pawan Kumar, 2005(2) RCR(Crl.) 622, which again were reiterated by the Apex Court in case of Ajmer Singh (supra), as follows :- “A bag, briefcase or any such article or container, etc. can, under no circumstances be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body or a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some Criminal Appeal No.2112-SB of 2003(O&M) [9] extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the Act.” It has been next contended that as per Section 20 of the Act, two samples were required to be taken from the contraband, therefore, violation of the Section vitiates the trial. In this regard, it cannot be disputed that only one sample was taken from each bag and the same was sent to the Forensic Science Laboratory for analysis. A definite report has been received that the samples, so sent, were found to be contraband and there is no evidence that there was any tampering of the said samples. Object of drawing sample is for analysis. Mere fact that two samples were not taken, does not cause prejudice to the rights of the accused and is hardly a circumstance to condemn the prosecution case on this account. Similar observations were made by our own High Court in Jaipal @ Kala vs. The State of Haryana, 2010(2) RCR(Crl.) 52, wherein, it was observed as under:- “...There is no requirement of law that two samples from the contraband, allegedly recovered from the accused, should be drawn, by the Investigating Officer, at the time of recovery. The object of drawing a sample, is that the same should be sent to the Forensic Science Laboratory, for the purpose of Criminal Appeal No.2112-SB of 2003(O&M) [10] analysis. The sample was sent to the Forensic Science Laboratory and it found the contents thereof to be sufficient for the purpose of analysis. There was, therefore, no violation of any provision of the Act, or the Rules framed thereunder. No dent, therefore, was caused, in the case of the prosecution, on account of drawing of one sample, from the charas, allegedly recovered. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.” So far as the question of conscious possession of the contraband by the accused is concerned, it needs notice that the raiding party had seen both the accused coming out of the bunker with a gunny bag in their hands. However, on seeing the police party, accused Mansha Ram fled from the scene, but was apprehended later on. The records reveal that there was no-one except the duo at the place of recovery and further the fact that the houses of the brothers of accused Amrik Singh are adjacent to that place, give rise to the presumption that it was Amrik Singh's place. At last, the counsel for the accused has tried to distinguish the case of accused Mansha Ram, by arguing that he was not apprehended on the spot and, thus, his identity is not proved. In this regard, it is observed that the police party when raided the premises, both the accused were seen carrying and bringing the gunny bag from the bunker, however, on seeing the police party, accused Mansha Ram had fled away, but the fact remains that the police officials had seen accused Mansha Ram before he left the scene. Since, it was noon time, therefore, question of mistaken identity Criminal Appeal No.2112-SB of 2003(O&M) [11] does not arise. The discussion made above leaves no room for doubt about the involvement of both the accused in the commission of the crime, charged with. Thus, the appeals are dismissed. Copy of the judgment be sent to the Chief Judicial Magistrate, Kurukshetra for compliance. May 03, 2010 ( A.N.JINDAL ) `gian' JUDGE