Crl.Appeal No.112-SB of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.112-SB of 1999 Date of decision:19.2.2010 Banta Singh ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Ms. Malkiat Mann, Advocate, for the appellant. Ms.Simsi Dhir Malhotra, AAG, Punjab. ... JORA SINGH, J. Banta Singh son of Bhura Singh filed this appeal to challenge the judgment dated 11.12.1998 rendered by Special Judge (Additional Sessions Judge), Mansa, in Sessions Case No.77 dated 23.9.1997, FIR No.42 dated 7.6.1997 under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short `the Act'), Police Station Jaurkian. By the said judgment, the appellant-accused was convicted under Section 15 of the Act and was sentenced to undergo RI for ten years and to pay fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for two years. Prosecution story, in brief, is that on 7.6.1997, police party headed by ASI Rajinder Pal Singh, Police Station Jaurkian, while on patrol duty, was going towards village Jagatgarh Bander. Police party was near the turning of village Ullak, then sighted appellant-accused while coming on a bicycle from the opposite side. On seeking the police party, after alighting from the bicycle, the appellant-accused sat down on the pretext to urinate. Crl.Appeal No.112-SB of 1999 2 On suspicion, the appellant was apprehended by the party and on enquiry, the appellant-accused disclosed his name as Banta Singh son of Bhura Singh. Investigated Officer suspected that there is some intoxicant in the gunny bag carried by the appellant-accused, then an offer was given to him as to whether he wanted to be searched before a Magistrate or any Gazetted Officer. The appellant-accused replied that he wanted to be searched before any Gazetted Officer. In the meantime, one person came from the side of village Jagatgarh Bander and on enquiry, he disclosed his name as Bhura Singh son of Kartar Singh. He was joined in the investigation of this case. On wireless, DSP Baljinder Singh was requested to visit the spot. DSP Baljinder Singh came to the spot and in his presence, on search of gunny bag carried by the appellant-accused, same was found to be containing poppy husk. On weighment, poppy husk was found to be 35 kgs 100 grams. 100 grams of poppy husk was separated to serve as sample. Sample and the remaining poppy husk in the same bag were sealed by the Investigating Officer with his seal bearing impression `RPS'. Seal impression was prepared separately. Seal after its use was handed over to Bhura Singh. Case property was taken into police possession vide separate memo attested by the witnesses. On personal search of the appellant-accused, Rs.15/- was recovered. Bicycle was also taken into police possession vide separate memo attested by the witnesses. Ruqa was sent to the police station, on the basis of which, formal FIR was registered. On return to the police station, appellant-accused along with case property was produced before SHO, PS Jaurkian. After checking the case property, seals on the sealed parcels were found to be intact. The SHO had interrogated the accused and had affixed his own seal bearing impression `RS' on both the sealed parcels. Crl.Appeal No.112-SB of 1999 3 On 8.6.1997, the SHO had produced the accused along with case property before the Ilaqa Magistrate. The sample parcel remained with the SHO, whereas the remaining case property was deposited by the SHO with the Incharge of Malkhana. On 11.6.1997, the SHO had handed over sample parcel to Constable Karam Singh for depositing in the office of Chemical Examiner. After completion of investigation, challan was presented in the Court. Accused was charged under Section 15 of the Act. Accused did not plead guilty and claimed trial. Prosecution examined PW1 SI/SHO Rattan Singh. He stated that on 7.6.1997, he was serving as SHO, PS Jaurkian. On that date, ASI Rajinder Pal Singh had produced the accused along with case property before him. After checking, the seals were found to be intact. He had affixed his own seal bearing impression `RS' on both the sealed parcels. On the next day, the accused along with case property was produced before the Ilaqa Magistrate. He had kept the sample parcel in his custody, whereas the second parcel of remaining poppy husk was deposited with the Incharge of Malkhana. Sample parcel was handed over to Constable Karam Singh on 11.6.1997 for depositing in the office of Chemical Examiner. PW2 ASI Rajinder Pal Singh is the Investigating Officer and deposed how the recovery was effected from the appellant-accused. PW3 HC Harpal Singh stated that on 7.6.1997, he was with the police party headed by ASI Rajinder Pal Singh. In his presence, poppy husk was recovered from the appellant-accused. PW4 Constable Karam Singh tendered his affidavit (Ex.PJ). Crl.Appeal No.112-SB of 1999 4 He stated that he had deposited sample parcel in the office of Chemical Examiner. After close of the prosecution evidence, statement of appellant was recorded under Section 313 Cr.P.C.. The appellant denied all the prosecution allegations and claimed to be innocent. Defence version of the appellant was that his two sons are married in village Kotdharmu. On 7.6.1997 at about 5.00 PM he was going to village Kotdharmu to purchase a bottle of liquor from liquor shop. When he was near the Bus Stand of village Kotdharmu, then sighted one person on a bicycle while carrying a bag and that person was ahead of him. ASI Rajinder Pal Singh along with HC Harpal Singh were present at the Bus Stand of village Kotdharmu. HC Harpal Singh wanted to arrest the man who was carrying a bag on the bicycle, but that man had shown a naked sword to HC Harpal Singh. After throwing the bicycle with gunny bag on the road, that man had fled away from the spot. HC Harpal Singh failed to arrest him. Some other persons also came to the spot. He was arrested by the police. He has no concern with the bicycle. Opportunity was given to lead defence evidence but no evidence was led by the appellant-accused. After hearing learned Public prosecutor for the State, learned defence counsel for the appellant-accused and from the perusal of evidence on the file, the appellant-accused was convicted under Section 15 of the Act and was sentenced as stated aforesaid. Learned counsel for the appellant argued that Bhura Singh was joined as independent witness but he was not examined by the prosecution. Seal of the Investigating Officer after its use was handed over to Bhura Crl.Appeal No.112-SB of 1999 5 Singh. According to PW2 ASI Rajinder Pal Singh, Investigating Officer, seal was returned after 3 days by Bhura Singh, whereas sample parcel was sent to the laboratory on 11.6.1007. Specimens of the seals used were not sent to the laboratory. In the absence of specimens of the seals used, laboratory cannot opine that seals on the sealed parcel were tallying with the seal impressions. Ex.PJ is the affidavit of Constable Karam Singh. Affidavit simply shows that on 11.6.1997, sample parcel was handed over to him and on the next date, he had deposited the same in the laboratory. Delay in sending the sample parcel to the laboratory shows that possibility of tampering with the case property cannot be ruled out. Learned State counsel argued that Bhura Singh was joined as independent witness, but he was given up as won over by the appellant. When there were number of recovery witnesses, then all are not required to be examined. Quality of evidence is to be seen. Case property was sealed by the Investigating Officer with his own seal bearing impression `RPS'. On return to the police station, case property was produced before the SHO. After checking the case property, he had also affixed his own seal on the sealed parcels. Case property along with appellant was produced in the Court on 8.6.1997. Affidavit of MHC is to the effect that seal impressions were also handed over to Constable Karam Singh. Report of the laboratory is that seals on the sealed parcels were found tallying with the seal impressions. So one line in the affidavit of Constable Karam Singh that seal impressions were not handed over to him is not sufficient to ignore the story. I have heard learned defence counsel for the appellant and State counsel and gone through the evidence on file. Crl.Appeal No.112-SB of 1999 6 First submission of learned counsel for the appellant is that Bhura Singh was joined as independent witness but he was not examined. So, non-examination of Bhura Singh is fatal. But submission of learned counsel for the appellant seems to be not correct one. Police party was going towards Village Jagatgarh Bandar. Party was near the turning of village Ullak, then sighted appellant while coming on a bicycle. On seeing the police party, the appellant after alighting from the bicycle sat down on the pretext to urinate. On suspicion, appellant was apprehended. There was a gunny bag on the bicycle and the Investigating Officer suspected that there seems to be some contraband in the gunny bag. Offer was given to the appellant as to whether he wanted to be searched before a Magistrate or any Gazetted Officer. The appellant-accused replied that he wanted to be searched before any Gazetted Officer. In the meantime, Bhura Singh came to the spot. After disclosing about the facts, he was joined in the investigation of this case. But Bhura Singh was not examined by the prosecution because he was won over by the appellant. If story was not genuine one, then Bhura singh could easily be produced in defence. When there are number of recovery witnesses, then all are not required to be examined by the prosecution. Quality of evidence is to be seen and not the quantity. Before recovery, police officials had no enmity with the appellant, then question is why the appellant was chosen to implicate falsely. In Balbir Kaur vs. State of Punjab, 2009(4) Recent Apex Judgments 330, Hon'ble the Supreme Court observed that independent witness was joined by the prosecution, but not examined as won over by the prosecution-Independent witness appeared in defence, then with the appearance of independent witness in defence, story is not to be ignored. Crl.Appeal No.112-SB of 1999 7 In the present case, independent witness joined by the prosecution was not examined in defence. When police officials had no enmity with the appellant before the present recovery, then nothing to disbelieve the police officials. Next submission of learned counsel for the appellant is that link evidence is missing. When there is a delay in sending the sample parcel to the laboratory, then possibility of tampering with the case property cannot be ruled out. On 7.6.1997, police party headed by ASI Rajinder Pal Singh while going towards village Jagatgarh Bandar had apprehended the appellant while carrying a gunny bag on a bicycle. Investigating Officer suspected that there seems to be some contraband in the gunny bag, when the appellant after alighting from the bicycle, sat down on the pretext to urinate. Recovery was from the bag, but despite that, an offer under Section 50 of the Act was given to the appellant as to whether he wanted to be searched before a Magistrate or any Gazetted Officer. The appellant replied that he wanted to be searched before any Gazetted Officer. DSP Baljinder Singh came to the spot and in his presence, poppy husk was recovered from the bag. 100 grams was separated to serve as sample. Sample and the remaining poppy husk, i.e., 35.00 kgs., were sealed separately by the Investigating Officer with his own seal bearing impression `RPS' . Seal after its use was handed over to Bhura Singh. Investigating Officer stated that seal impression was prepared separately. On return to the police station, Investigating Officer had produced the appellant along with case property before the SHO. After verifying the investigation, SHO had affixed his own seal on the sealed parcels with his own seal bearing impression `RS'. Crl.Appeal No.112-SB of 1999 8 SI/SHO Rattan Singh appeared as PW1 and stated that after affixing his own seal on the sealed parcels, he had prepared seal impression. On 8.6.1997, he had produced the appellant along with case property before the Ilaqa Magistrate. Application (Ex.PA) was moved. Order (Ex.PA/1) was passed by the Ilaqa Magistrate. Sealed sample parcel remained in his custody, whereas second parcel of the remaining poppy husk was deposited with the Incharge of malkhana. On 11.6.1997, he had handed over sealed sample parcel with seal impressions to Constable Karam Singh for depositing in the office of Chemical Examiner. No doubt, ASI Rajinder Pal Singh admitted that seal handed over to Bhura Singh was returned to him after 3 days, but no question of tampering with the case property because case property was also sealed by the SHO with his own seal and on the next day, when case property was produced before the Ilaqa Magistrate, then seals were found to be intact. Sealed sample parcel remained with the SHO and was handed over to Constable Karam Singh along with seal impressions of seals used. In the affidavit (Ex.PJ) of Constable Karam Singh only one line is missing that seal impressions were also handed over to him for depositing in the office of Chemical Examiner along with sealed sample parcel. Report of the laboratory (Ex.PK) is on the file. Report shows that seal impressions were also deposited in the laboratory and seals on the sealed sample parcel were found to be intact. Secondly, seals on the sealed parcel were found to be tallying with the seal impressions. Recovery was on 7.6.1997, and sealed sample parcel was deposited in the laboratory on 11.6.1997. That means, delay is of 4 days, but delay not fatal because on the next date, case property along with appellant was produced in the Court and there was an order of the Court that Crl.Appeal No.112-SB of 1999 9 seals on the sealed parcels were intact. In Gurjant Singh vs. State of Punjab, 2007(4) RCR (Crl.) 226, recovery was on 15.5.1991. Case property was sealed by the seal of ASI Baljinder Singh bearing inscription `BS', but Form No.29 was not prepared at the spot, nor deposited with the Incharge of mlakhana, whereas in the present case, firstly, case property was sealed by the Investigating Officer with his own seal bearing impression `RPS'. Seal impression was prepared. Case property was then produced before the SHO. SHO had also affixed his own seal on the sealed parcels. Seal impression was also prepared by the SHO. On the next day, case property was produced in the Court, then seals on the sealed parcels were found to be intact. SHO stated that along with sealed sample parcel, seal impressions were also handed over to Constable Karam Singh. In State of Punjab vs. Surjit Singh, 2008(1) RCR (Crl.) 266, recovery was on 20.8.1997. Resham Singh was joined with the party as independent witness. Seals after use were handed over to him. Specimen seal impressions were also prepared, but sample was not sent to the laboratory for two weeks. There was secret information, but there was non- compliance of Section 42(2) of the Act. In Baggar Singh @ Gaggi vs. State of Haryana, 2009(4) RCR (Crl.) 183, poppy husk was recovered from the accused on 7.2.2004. There was a delay of 18 days in sending the sample to FSL. Division Bench of this Hon'ble High Court opined that prosecution story is not doubtful if seals remained intact when sample reached the FSL. In the present case, seals were found to be intact when the case property was produced before the Magistrate and second time, by the Crl.Appeal No.112-SB of 1999 10 laboratory. Seal impressions were prepared and handed over to Constable Karam Singh, who had deposited the sample parcel in the office of Chemical Examiner but while submitting his affidavit (Ex.PJ) in the Court, Constable Karam Singh forgot to write one line that seal impressions were also deposited by him in the office of Chemical Examiner. In Balbir Kaur's case (supra), recovery was on 19.12.1988. Specimen seal impressions were not prepared and there was a delay of 4 days in sending the samples to the Chemical Examiner- Prosecution story was upheld. After recovery on 7.6.1997, case property was sealed. Seal impressions of the seals used were prepared. Seal of the Investigating Officer after its use was handed over to Bhura Singh, independent witness. On the next day, case property was produced in the Court. Sealed sample parcel remained in the custody of the SHO and on 11.6.1997, sealed sample parcel along with seal impressions was sent to the laboratory. Report of the laboratory shows that seals on the sealed parcel were found to be intact and tallying with the specimen of seal impressions. So, with the delay of 4 days in sending the sealed sample parcel to the office of Chemical Examiner, prosecution story is not to be ignored on the allegation that possibility of tampering with the case property cannot be ruled out. Defence version of the appellant is that his two sons are married in village Kotdharmu. On 7.6.1997 at about 5.00 PM, he was going to village Kotdharmu to purchase a liquor bottle from liquor shop. When he was present near the Bus Stand of village Kotdharmu, then sighted one person on a bicycle while carrying a bag. He was ahead of him. Police officials namely ASI Rajinder Pal Singh and HC Harpal Singh were present Crl.Appeal No.112-SB of 1999 11 at the Bus Stand of village Kotdharmu. They tried to arrest the man, who was carrying a bag on the bicycle, but that man had shown a naked sword to the police officials. By leaving the bicycle with gunny bag on the road, that man had fled away from the spot. He was falsely implicated in this case. Meaning thereby, presence of police officials at the time of recovery is an admitted fact. Unknown person by showing a naked sword to the police officials when police officials had tried to apprehend him, had fled away from the spot, but when present appellant had no enmity with the police officials and was not with the man, who had fled away from the spot by leaving the bicycle and gunny bag, then there was no idea to implicate the appellant. If story was not correct one, then appellant should have sent complaints to different authorities. There was no idea to remain silent. No defence was led that one person after leaving bicycle with gunny bag by showing naked sword to the police officials had fled away from the spot. Appellant present near the liquor shop to purchase liquor bottle was falsely implicated. That means, defence version is an after thought. Evidence on the file was rightly scrutinized. Impugned judgment is to be set aside if the same is perverse and against law. In the light of above discussion, I am of the opinion that there is no infirmity or illegality in the impugned judgment and the same is hereby upheld. Appeal, without merits, is rejected. As the appellant is on bail, so his bail bonds stand cancelled. The appellant is directed to surrender before the jail authorities to serve the remaining portion of his sentence. If he fails to surrender, then CJM, Crl.Appeal No.112-SB of 1999 12 Mansa, to issue re-arrest warrants directing the appellant to serve the remaining portion of the sentence. 19.2.2010 ( JORA SINGH ) pk JUDGE