IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 191-SB of 1997 Date of Decision : October 27, 2010 Rajender Singh ....Appellant Versus State of Haryana .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Sudhir Sharma, Advocate Mr. Raja Sharma, Assistant Advocate General, Haryana T.P.S. MANN, J. Vide judgment and order dated 27/31.1.1997, learned Additional Sessions Judge (1st), Bhiwani convicted the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to suffer further rigorous imprisonment for 2½ years. According to the prosecution, on 22.1.1996, SI Rameshwar Kumar alongwith ASI Hoshiar Singh and other police officials, was present in the area of Mitathal in official jeep in connection with patrol duty. One Krishan Kumar met them on the canal bank and when they Satish Kumar 2013.09.12 10:10 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. 191-SB of 1997 -2- were having conversation, the appellant was seen coming from the side of Gujrani. On noticing the police party, the appellant abruptly stopped and then started moving alongside the left canal bank. The appellant was apprehended on suspicion. SI Rameshwar Kumar asked him whether he wanted the presence of any Gazetted Officer or a Magistrate to witness the search. Notice was given to him and reply in this regard was obtained from him. As the appellant opted for the search otherwise than in the presence of a senior officer, the contents of thaila (bag) being carried by him were checked. The bag was found to contain 1½ kgs. of charas. A sample of 50 gms. was separated. Sample and the remainder were sealed with the seal of 'RK'. The seal, after use was handed over to Krishan Kumar. The recovery memo. was prepared which was attested by the witnesses. Ruqa was sent to the Police Station on the basis of which, formal FIR was registered. The rough site plan was prepared. DSP Jai Narain also came to the spot and verified the correctness of the facts of the case and put seal of 'NK' on the sample as well as on the remainder. Upon completion of the investigation and presentation of the challan, followed by its commitment to the Court of Sessions, the appellant was charged under Section 20 of the Act, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 ASI Hoshiar Singh, PW2 SI Rameshwar Kumar, PW3 HC Ved Singh, PW4 Satish Kumar 2013.09.12 10:10 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. 191-SB of 1997 -3- DSP Jai Narain and PW5 Constable Jagbir Singh. When examined under Section 313 Cr.P.C., the appellant denied almost all the allegations of the prosecution and stated that the case against him was false. He stated that during the election to the post of Sarpanch, there was exchange of hot words between him and Ram Kumar, who being in league with the police, got him falsely implicated in the case. After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court convicted and sentenced the appellant, as mentioned above. I have heard learned counsel for the parties and perused the evidence with their able assistance. Learned counsel for the appellant has submitted that the provisions of Section 50 of the Act, which are mandatory, have not been complied with by the prosecution while effecting the recovery of the contraband. The appellant was not made aware of his right to have the presence of either a gazetted officer or a Magistrate at the time of his search. He was simply told that whether he wanted the presence of any gazetted officer or a Magistrate. Therefore, the conviction of the appellant is vitiated. It is true that the appellant was not apprised about his right Satish Kumar 2013.09.12 10:10 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. 191-SB of 1997 -4- to have the presence of a gazetted officer or a Magistrate at the time of his search but in the present case, it was not the personal search of the appellant which was effected. Rather, it was the search of the bag, carried by him, which was conducted and the bag was found to contain charas. Position would have been different if the search of the person of the appellant was conducted without the appellant being made aware of his right to have the presence of a gazetted officer or a Magistrate. As in the present case, it was the search of the bag which led to the recovery of the contraband, no benefit can be extended to the appellant on account of non-observance of the provisions of Section 50 of the Act. Leaned counsel for the appellant has further submitted that though Krishan Kumar was joined as a witness from the public yet he was not examined at the trial of the case. Therefore, there is no independent corroboration to the prosecution case. It is the case of the prosecution that before the appellant was detained, the police party headed by SI Rameshwar Kumar came across Krishan Kumar, whom it met on the canal bank and while they were having conversation, the appellant was seen coming from the side of Gujrani. The conduct of the appellant in abruptly stopping on seeing the police party and then moving on the left bank of the canal aroused suspicion in the mind of SI Rameshwar Kumar that he might be carrying some contraband. The bag carried by the appellant was searched in the presence of Krishan Kumar and it was found to contain Satish Kumar 2013.09.12 10:10 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. 191-SB of 1997 -5- charas. However, on 18.9.1996, learned Public Prosecutor made statement before the trial Court giving up Krishan Kumar PW as having been won over by the appellant. He tendered application Mark 'A' written by HC Chhatarmal and, accordingly, gave up Krishan Kumar. A perusal of the application Mark 'A' reveals that Krishan Kumar had colluded with the appellant and, therefore, it was requested that his testimony be not recorded. Under these circumstances, there was valid justification with the prosecution in giving up Krishan Kumar, independent witness. Even otherwise, the appellant on the one hand and Krishan Kumar, independent witness, on the other belonged to the same village, i.e. Mitathal and, therefore, the appellant would have faced no difficulty in winning him over. Learned counsel for the appellant further submitted that once SI Rameshwar Kumar had effected recovery of the contraband, he assumed the character of a complainant and, therefore, could not have investigated the case himself. However, in the present case, SI Rameshwar Kumar was posted as Station House Officer of Police Station Sadar, Bhiwani and being the senior-most police officer, he was competent to conduct the investigation. Even otherwise, the recovery was witnessed by PW1 ASI Hoshiar Singh. Later on, the factum of recovery was verified by PW4 DSP Jai Narain, who reached the spot soon thereafter. There is no material on the file to show that any of the police officers had any motive to falsely implicate the appellant. Even Satish Kumar 2013.09.12 10:10 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. 191-SB of 1997 -6- SI Rameshwar Kumar had conducted the investigation in an impartial manner. Therefore, no fault can be found with the testimony of SI Rameshwar Kumar, who deposed about the recovery of the contraband from the appellant and, thereafter, conducting the investigation. Objection has been raised regarding missing link evidence. Attention of the Court in this regard has been drawn to affidavit Ex.PH of PW5 Constable Jagbir Singh, wherein it was mentioned that the sample of the contraband had seals of 'NK' and 'RK' but no mention was made that the sample impressions of the seals were also handed over to him. To that an extent, the defence is justified in raising an objection. However, PW3 HC Ved Singh, who at the relevant time was posted as MHC, stated in his affidavit Ex.PG that the sample of the contraband with seals of 'NK' and 'RK', alongwith sample impressions of the seals, was deposited with him and, thereafter, handed over to Constable Jagbir Singh vide Road Certificate No.68 dated 31.1.1996. In the report Ex.PF issued by Senior Scientific Officer of Forensic Science Laboratory, Madhuban it stood mentioned that the seals on the sample parcel were found intact and tallied with the specimen seals as forwarded. Therefore, the objection of the defence pales into insignificance. According to the appellant, he was falsely implicated at the instance of Ram Kumar with whom he had an exchange of hot words during the election to the post of Sarpanch. Neither PW2 SI Rameshwar Kumar nor PW1 ASI Hoshiar Singh, in whose presence contraband was Satish Kumar 2013.09.12 10:10 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No. 191-SB of 1997 -7- recovered from the appellant, was asked any question about the false implication of the appellant at the instance of aforementioned Ram Kumar. After his statement under Section 313 Cr.P.C. was recorded, the appellant made a statement that he would produce defence evidence but, later on, closed his evidence without examining any witness. Therefore, it cannot be said that the appellant had been falsely implicated in the case. After going through the evidence available on the record, this Court finds that the trial Court after appreciating the same threadbare, rightly came to the conclusion that the appellant was found in possession of 1½ kgs. of charas. Even, on re-appreciation of evidence, this Court finds no ground to disbelieve the prosecution case. The appeal is without any merit and, therefore, dismissed. ( T.P.S. MANN ) October 27, 2010 JUDGE satish Satish Kumar 2013.09.12 10:10 I attest to the accuracy and integrity of this document Chandigarh