Criminal Appeal No.889-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No.889-SB of 2001 Date of decision: May 19, 2008 Chet Singh alias Cheta ... Appellant Versus State of Punjab ... Respondent ... Present: Ms Geeta Singhwal,Advocate(amicus curiae) for the appellant. Ms Manjari Nehru, Deputy Advocate General, Punjab, for the respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL ... JUDGMENT: HARBANS LAL, J This appeal is directed against the judgment /order of sentence dated 16.7.2001 rendered by the Court of learned Judge, Special Court, Ferozepur, whereby he convicted and sentenced Chet Singh alias Cheta accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). Criminal Appeal No.889-SB of 2001 -2- The minimal facts are that on 26.11.1994, SI Manjit Singh, Incharge CIA Staff, Zira, among other police officials was proceeding from village Mehal to Daulewala. When they covered a distance of 2 furlong ahead of village Mehal, the accused was spotted approaching on cycle from the opposite direction carrying two gunny bags on the carrier of his cycle. On catching sight of the Police party, he turned towards his left hand side, which aroused suspicion in the mind of the Sub Inspector, who intercepted the accused. He suspected that the gunny bags did contain some contraband. On receipt of wireless message, Hoshiar Singh DSP,Zira came at the spot. On his directions, the Sub Inspector carried out search of the bags which yielded poppy husk. 250 grams poppy husk was drawn from each bag to serve as sample and converted into a parcel. The remainder of each bag when weighed came to 36 Kg. which was also turned into parcels. All the parcels were sealed with the seal MS. The same along with the cycle, rope and the sample seal were taken into possession vide recovery memo. The seal after use was handed over to HC Lakhwinder Singh. The Sub Inspector sent Ruqa to the Police Station. On its basis, formal FIR was recorded. He prepared the rough site plan showing the place of recovery and supplied grounds of arrest to the accused. On return to the Police Station, the Sub Inspector produced the accused and all the parcels before Additional SHO Bachan Singh, who after verification, also affixed his own seal on all the parcels and took the same into his custody vide separate memo. On receipt of chemical examiner's report and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused was charged under Section 15 of the Act to which he did not plead guilty and claimed trial. Criminal Appeal No.889-SB of 2001 -3- To bring home guilt against the accused, the prosecution has examined PW-1 SI Manjit Singh, PW-2 Head Constable Lakhwinder Singh-Recovery witness, PW-3 Constable Avtar Singh, who took the sample parcels to the office of the Chemical Examiner, PW-4 SI Bachan Singh SHO, PW-5 Hoshiarpur Singh, the then DSP and closed its evidence. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He examined DW-1 HC Ashok Kumar and DW-2 Constable Sukhdev Singh in his defence. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction/sentence, he has preferred this appeal. I have heard Ms Geeta Singhwal, Advocate,appearing as amicus curiae on behalf of the appellant, as well as Ms Manjari Nehru, Deputy Advocate General, Punjab for the State, besides going through the record with due care and circumspection. Ms Geeta Singhwal, amicus curiae on behalf of the appellant, strenuously urged that the provisions of Section 50 of the Act were not observed by the Investigator. To tide over this submission, Ms Manjari Nehru, Deputy Advocate General, Punjab, for the State of Punjab, contended that the recovery having been effected not from the person of the accused, it was not obligatory upon the Investigator to comply with the provisions of Criminal Appeal No.889-SB of 2001 -4- Section 50 ibid. This contention merits acceptance. I have given a deep and thoughtful consideration to the rival contentions. In view of the ratio decidendi laid down in re: Kalema Tumba v. State of Maharashtra, 1999 (4) Recent Criminal Reports (Criminal ) 575, the Investigating Officer was not obligated to observe the provisions of Section 50 ibid as the recovery was effected from the bags fastened to the carrier of the cycle and not from the person of the accused. It has been further sought to be argued that as is borne out from the prosecution evidence, no independent witness was joined in the investigation. Thus, the prosecution case hinges upon the evidence of official witnesses only and they being highly interested in the success of the case, no implicit reliance ought to be placed on their statements. To controvert this contention, Ms Manjari Nehru pressed into service that it is well settled by now that the evidence of police officials is as good as of others and, as such, the case should not be thrown out of hand merely because the same rests upon the solemn affirmations of official witnesses. There is substance in this submission. There is no provision of law requiring the attendance of any witness at the time of search of the persons of suspect or the articles recovered from him. The recovery proceedings cannot, therefore, be held to be suspicious or unreliable simply because no independent person opted to join the investigation. At best, it would be a suspicious circumstance which would require the Court to scrutinize the prosecution evidence with due care and caution, but in no case, by itself it can warrant discredit case of the prosecution case. Criminal Appeal No.889-SB of 2001 -5- In re: Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, it has been observed that “the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.” Further in re: Sunil Kumar v. The State, 1990 (2) Recent Criminal Reports 40, public witnesses were not joined as they were reluctant to join. It was held that this circumstance is not fatal to search. Safest course for the Court is to carefully scrutinize the evidence of police witnesses to see that their evidence is trustworthy, inspires confidence and have no motive to falsely implicate the accused. Reference may also be made to the observations made in re: Chander Shekhar v. State (1986) 2 Crimes 419 as well as Appabhai v. State of Gujarat, AIR 1988 SC 696, wherein it was held that the Court, instead of doubting the prosecution case for want of independent witness, must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. Coming to the facts of the instant case, when the accused was apprehended, no independent witness was available. As surfaces in the testimony of SI Manjit Singh, Investigator, “ Narinder Pal Singh C-2 and Naib Singh were sent to call public witnesses and that Amritpal Singh also came present stating that no public witness could be contacted.” Thus, obviously an attempt was made to procure the independent witnesses. Criminal Appeal No.889-SB of 2001 -6- In re: Baldev Singh v. State of Punjab, 1998 (2) Recent Criminal Reports (Criminal) 730 also, it has been held “ that association of independent witnesses is a rule of prudence and not of rule of law. The police officials are as good witnesses as non-official. It depends upon the quality of evidence which comes on the record.” Of course, as is borne out from the authorities referred to earlier, where independent witnesses did not join in the recovery proceedings, the evidence of official witnesses has to be scrutinized with due care and caution. One cannot ignore this handicap with which the investigating agency has to discharge its duties. Here in this case, on resorting to this exercise, it emerges out that no infirmity discrediting the evidence of police officials came to the notice. Thus, their statements can be relied upon without any demur. It has been further canvassed at the bar on behalf of the appellant that on appraising the evidence of PW-1 SI Manjit Singh, PW-2 HC Lakhwinder Singh and PW-5 DSP Hoshiar Singh, it transpires that 250 grams of poppy husk was drawn from each bag to serve as sample and the residue of each bag when weighed came to 36 bags and, thus, as per their evidence the total weight of the poppy husk was 72 Kg.500 grams, whereas in the Ruqa,the quantity of the same has been mentioned as 70 Kg.500 grams and in this manner, there is a dent in the prosecution case. This contention carries no substance for the reason that the weight of each empty gunny bag being 1 Kg., the poppy husk comes to 35 Kg. And, thus, including such weight, the quantity works out to 72 Kg. 500 grams. As such, this contention is overruled. The next argument having been raised on behalf of the appellant is that as would be apparent from the prosecution evidence, the Criminal Appeal No.889-SB of 2001 -7- case property was deposited on 27.11.1994 with PW-.6 Angrez Singh who handed over the property including the sample parcels to regular SHO Jagdev Singh on 29.11.1994 when he resumed his duties as SHO after availing of leave but the sample of this case was sent to the office of the Chemical Examiner by Jagdev Singh, officiating SHO, who having not been examined by the prosecution, the link evidence is missing. This contention pales into insignificance in view of the fact that unfortunately Jagdev Singh expired before he could be examined in the Court. Thus, this contention too holds no water. No other material point has been urged or agitated by either counsel. In the result, this appeal fails and is dismissed being devoid of any merit. ( HARBANS LAL ) JUDGE May 19, 2008 RS Whether to be referred to the Reporter ? Yes/No