Criminal Appeal No. 1016-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1016-SB of 2002 Date of Decision: 27.04.2010 Jit Singh son of Maan Singh son of Sham Lal son of Shera Ram son of Jamu Ram, aged 38 years, resident of Maur Mandi, Distt. Bathinda. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Deepak Arora, Advocate, 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 19.01.2000, rendered by the Judge, Special Court, Sangrur, vide which, he convicted the accused (now appellant), for the offence, punishable under Section 22 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 10 years, and, to pay a fine of Rs. 1 lac, and, in default of payment thereof, to further undergo Criminal Appeal No. 1016-SB of 2002 2 rigorous imprisonment, for a period of 01 year, for having been found in possession of 40 strips, each containing 50 carisoma tablets, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 25.06.96, Wassan Singh, Sub Inspector, Police Station Khanauri, alongwith some other Police officials, was on patrol duty, and going, from village Mandvi to village Bhullan. When the Police party reached near the bridge of the canal minor, the accused, was seen coming, from the side of village Bhullan, carrying a bag, in his right hand, who on seeing the Police party got perplexed. He was overpowered on suspicion. On search of the bag, in accordance with the provisions of law, 40 strips, each containing 50 carisoma tablets, were recovered. Two samples, each containing 40 tablets, were separated therefrom, and the remaining tablets, were kept, in the same strips. The samples and the strips, containing the remaining tablets, 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. Site plan of the place of recovery was prepared. The 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 22 of the Act, was framed, against the accused, which was read-over and explained to him, to which, he Criminal Appeal No. 1016-SB of 2002 3 pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Jagmel Singh, Head Constable (PW1), Khem Chand, Constable (PW2), Sukhdev Singh, Sub Inspector/Station House Officer (PW3), Paramjit Singh, Head Constable (PW4), and, Wassan Singh, Sub Inspector (PW5), Investigating Officer. 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 he had been falsely implicated, after being taken away, from his house. He, however, did not lead any evidence, in defence, and closed the same. 7. After hearing the Counsel for the parties, and, on going 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, submitted that, the offer, given in this case, was partial, and, as such, there was violation of the mandatory provisions of Section 50 of the Act, resulting into vitiation Criminal Appeal No. 1016-SB of 2002 4 of trial, conviction and sentence. It may be stated here, that the provisions of Section 50 of the Act, were not applicable, to the instant case. The contraband, was recovered, from the bag, which was being carried, by the accused, in his right hand, and not from his person. In these circumstances, whether the offer, was partial or complete hardly mattered. 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. 11. It was next submitted by the Counsel for the appellant, that no independent witness, was joined, nor any effort, was made, to join an independent witness, at the time of the alleged recovery. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Wassan Singh, Sub Inspector, when appeared, as PW5, in his cross-examination, stated that, he tried to join an independent witness, but, none was prepared, to associate, in the investigation. Paramjit Singh, Head Constable, PW4, in his cross- examination, stated that, there were some tube-well motors, at some distance, but, none was available nearby. The recovery, in this case, was effected per-chance. There was no prior secret information, against Criminal Appeal No. 1016-SB of 2002 5 the accused, that he was coming with a big haul of the contraband. The trial Court, was right, in holding, that there was no reason, to disbelieve the explanation, furnished by the Investigating Officer, that none was ready to join the investigation. It means that, an effort, was made, by the Investigating Officer, to join an independent witness, but, he failed. In these circumstances, the conduct of the Investigating Officer, could not be said to be blameworthy. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled, that the evidence of search or seizure, made by the police, will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:- “It is an archaic notion that actions of the Police officer, 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 cannot 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.” 12. 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 the prosecution. It was further held, in the said case, that the civilized people, are generally insensitive, when a crime is committed, even in Criminal Appeal No. 1016-SB of 2002 6 their presence, and they withdraw from the victims' 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 aforesaid cases, is fully applicable to the facts of the present case. In these circumstances, on account of mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate the accused, no doubt, is cast on the prosecution story. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 13. No other point, was urged, by the Counsel for the parties. 14. In view of the above discussion, it is held that the judgement of conviction and the order of the sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld. 15. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled. 16. The Chief Judicial Magistrate, shall take necessary steps to Criminal Appeal No. 1016-SB of 2002 7 comply with the judgment with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 17. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 18. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 27.04.2010 (SHAM SUNDER) AMODH JUDGE