Crl.Appeal No.1140-SB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.1140-SB of 2002 Date of decision: 23.10.2009 Ram Singh ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.S.S.Siao, Advocate, for the petitioner. Mr.K.S.Godara, DAG, Haryana. ... JORA SINGH, J. Ram Singh through instant appeal has challenged the judgment dated 14.6.2002 and order dated 15.6.2002 rendered by Additional Sessions Judge (Special Judge), Panipat, in FIR No.103 dated 2.3.2000 under Section 20 of the NDPS Act (for short `the Act’), Police Station City, Panipat. Vide judgment dated 14.6.2002 and order dated 15.6.2002, the appellant was convicted under Section 20 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 one year. On 2.3.2000 at about 3.45 PM, police party headed by ASI Ram Niwas was present near the outer gate of Bus Stand, Panipat, then noticed a person alighting from the bus, while carrying a bag in his right hand. Police party suspected that there seems to be some incriminating article in the bag, then Ram Singh was apprehended by the police party. An offer was given to the accused under Section 50 of the Act as to whether he wanted to be searched before a Gazetted Officer or a Magistrate. Reply of the accused was that he wanted to be searched before a Magistrate. Then Ram Singh along with the bag was produced before Shri K.K.Amrohi, Crl.Appeal No.1140-SB of 2002 2 Executive Magistrate. As per direction of the Executive Magistrate, bag was searched and the same was found to be containing charas wrapped in a cream colour plastic paper and on weighment, the charas was found to be 4.00 kgs. 100 grams was separated to serve as a sample. Sample and the remaining charas was separately sealed with seal bearing impression `KKA’. Seal impression was also prepared separately. Case property was taken into police possession vide memo attested by the witnesses. Ruqa was sent to the Police Station, on the basis of which, a formal FIR was registered. Seal after its use was retained by the Executive Magistrate. On return to the Police Station, the accused along with case property was produced before Kashmiri Lal, SHO. After verifying the investigation and checking the case property, the SHO had affixed his own seal bearing seal impression `KL’ on both the sealed parcels and the Investigating Officer was directed to deposit the same with the incharge of malkhana. The sample parcel and the seal impression were deposited in the office of Chemical Examiner and as per the report of Chemical Examiner, the sample was found to be of charas. After completion of investigation, challan was presented. The accused was charged under Section 20 of the Act. The accused did not plead guilty and claimed trial. Prosecution examined 7 witnesses. Statement of PW1 Raghbir Singh is of formal nature. He has simply prepared a report under Section 173 Cr.P.C. PW2 Kashmiri Lal was acting as SHO, before whom the case property was produced by the Investigating Officer. Kashmiri Lal after verifying the investigation and checking the case property, sealed both the Crl.Appeal No.1140-SB of 2002 3 sealed parcels with his own seal bearing impression `KL’, and directed the Investigating Officer to deposit the case property in the malkhana. PW3 K.K.Amrohi is the Executive Magistrate, before whom the accused along with bag was produced and at his instance, the bag was searched. 4.00 kgs. of charas was recovered from the bag. He has supported the version of the prosecution. PW4 ASI Ram Niwas is the Investigating Officer. He has deposed how the recovery was effected. PW5 HC Sumer Chand had deposited the sample in the office of Chemical Examiner along with seal impression on 10.3.2000 after receiving the same from the MHC. PW6 Naresh Kumar was serving as MHC. On 2.3.2000, the Investigating Officer had deposited the case property with him and he had handed over the sample parcel with seal impression to HC Sumer Chand for depositing the same in the office of Chemical Examiner. PW7 Constable Rajiv Kumar had handed over special report to the Illaqa Magistrate. After closing of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. The accused denied all the prosecution allegations and pleaded to be innocent. Opportunity was given to lead evidence, but no defence evidence was led. Ultimately, the appellant was convicted under Section 20 of the Act and was sentenced as stated above. Learned counsel for the appellant argued that according to the story, recovery was effected on 2.3.2000, whereas the sample parcel was deposited in the office of Chemical Examiner on 10.3.2000. There is a delay Crl.Appeal No.1140-SB of 2002 4 in sending the sample to the office of Chemical Examiner. Delay is fatal. Possibility of tampering with the case property cannot be ruled out. Independent witnesses were available but without any reason, no one was joined. Evidence of the Executive Magistrate is to the effect that 4 packets were recovered from the bag. Each packet was weighed separately, but sample was separated from one packet only. No report as to whether remaining 3 packets were containing charas or not. Learned State counsel argued that recovery was effected on 2.3.2000 in the presence of Executive Magistrate after compliance of mandatory provisions of the Act. Recovery was from the bag, so Section 50 of the Act is not applicable. However, an offer was given to the appellant as to whether he wanted to be searched before a Gazetted Officer or a Magistrate. As per reply of the appellant, the appellant along with bag was produced before a Magistrate. Evidence is to the effect that charas was recovered from the bag wrapped in a plastic paper and on weighment, same was found to be 4.00 kgs. 100 grams was separated to serve a sample and remaining charas was separately sealed. That means, only 2 sealed packets were deposited in the laboratory. Delay in sending the sample to the office of Chemical Examiner is not fatal. Before present occurrence, the appellant had no enmity with the police officials. So without enmity, there was no idea to implicate the appellant. Evidence was rightly scrutinized by the trial Court. I have heard learned counsel for the parties and gone through the file. Crl.Appeal No.1140-SB of 2002 5 First submission of learned counsel for the appellant is that there is a delay in depositing the sample in the office of Chemical Examiner. Delay is fatal. I have gone through the evidence on file, but I am not in a position to agree with the submission of learned counsel for the appellant. Police party headed by ASI Ram Niwas on 2.3.2000 was present near the outer gate of bus stand, then sighted the accused while alighting from the bus carrying bag in his right hand. On suspicion, the accused was apprehended. Recovery of charas was from the bag. Section 50 of the Act was not applicable but even then the Investigating Officer when suspected that there seems to be some incriminating article in the bag, then an offer was given to the appellant as to whether he wanted to be searched before any Gazetted Officer or a Magistrate. As per reply of the appellant, the appellant along with bag was produced before the Executive Magistrate. As per direction of the Executive Magistrate, in his presence, bag was searched by the Investigating Officer and on search of the bag, charas wrapped in plastic paper was recovered. On weighment, the charas was found to be 4.00 kg. 100 grams was separated to serve a sample. Sample and remaining charas were made into two separate parcels and sealed with the seal of the Executive Magistrate bearing seal impression `KKA’. In cross-examination, the Executive Magistrate stated that charas was in 4 packets. Each packet was weighed separately. On weighment of packets, the charas was found to be 4.00 kgs. After recovery, the appellant along with case property was produced before the SHO. After checking the case property and verifying the investigation by the Investigating Officer, the SHO had affixed his own seal bearing impression `KL’ on both the parcels and thereafter directed the Crl.Appeal No.1140-SB of 2002 6 Investigating Officer to deposit the same in the malkhana. On 10.3.2000, sample along with seal impression was handed over to HC Sumer Chand and on the same day, HC Sumer Chand had deposited the sample parcel along with seal impression in the office of Chemical Examiner. Report of the Chemical Examiner is to the effect that the seal impression was tallying with the seal on the sample parcel. Case property was sealed with the seal of Executive Magistrate and the seal after its use was retained by the Executive Magistrate. Executive Magistrate was having a separate office and residence from the office of the Investigating Officer. So no question to take back the seal from the Executive Officer and re-seal the case property. When the seals on the sample parcel were found tallying with the seal impression, then delay of 8 days in sending the sample to the office of Chemical Examiner is not fatal. In Balbir Kaur vs. State of Punjab, 2009(4) Recent Apex Judgments, it was held as under: “Recovery of contraband-Delay of 4 days in sending the samples to Chemical Examiner- Held- Delay has no consequence for the fact that the recovery of the said sample from the possession of the appellant stands proved and established by cogent and reliable evidence led in the trial.” Next submission of learned counsel for the appellant is that near the outer gate of bus stand, number of persons were there, but no one was joined. Non-joining of independent witness is fatal. Admittedly, police party was present near the outer gate of Bus Stand, Panipat, when sighted the appellant carrying a bag. Number of persons were expected to be present at the bus stand, but if no independent witness was joined, then statements of police officials are not to be ignored. Crl.Appeal No.1140-SB of 2002 7 Independent witnesses to avoid enmity with the accused refuse to join investigation. Common experience shows that firstly, independent witnesses refuse to join the investigation. In case, any one agrees to join investigation, then refuses to appear to support the prosecution story. In case, independent witness appears in the Court, then fails to support the prosecution story. Secondly, independent witness joined in the investigation of the case is produced in defence. Once prosecution witness appears in defence, then version of the State counsel to give up the independent witness as won over by the accused seems to be reasonable one. In the present case, if there was no recovery while present near the outer gate of bus stand, then the appellant could easily produce some witnesses in defence present at the bus stand at the relevant time. In case they have refused to join or have shown their inability to appear in defence, then the appellant was required to send complaints to different authorities. Till today, no complaint to any authority. If there was no recovery, then question is why complaints were not sent to different authorities and what was the reason to remain silent. Recovery is of 4.00 kgs’ charas. If intention of the prosecution is to implicate the appellant, then only 15 grams or 20 grams of charas could easily be planted on the appellant and there was no idea to plant 4.00 kgs of charas. Before recovery, appellant had no enmity with the police party. No allegation of the appellant that he was implicated in this case at the instance of such and such person and that person was close to the police party. When the appellant had no enmity with the police party, then question is why he has been implicated. So, version of learned counsel for the appellant that act of non-joining of independent witness is unnatural is not correct one. In the above cited authority, it was further held as under:- Crl.Appeal No.1140-SB of 2002 8 “Independent witness- Recovery of two bags of poppy husk- Only one independent witness was present- This witness won over and accused examined him in defence- Cannot be said that the search and recovery are in any manner vitiated.” Next submission of learned counsel for the appellant is that 4 packets were recovered from the bag. Each packet was weighed separately, but sample was drawn from one packet. According to the Executive Magistrate, seal after its use was retained by him, whereas ruqa shows that seal was handed over to Constable Shyam Lal but he was not produced by the prosecution. Undisputedly, there are minor discrepancies in the statements of PWs. Investigating Officer and Executive Magistrate categorically stated that charas was recovered from the bag and on weighment, same was found to be 4.00 kgs. 100 grams was separated to serve a sample. In cross- examination, Executive Magistrate stated that charas was in 4 packets and each packet was weighted separately. Weight of charas was 4.00 kgs. 100 grams was separated to serve a sample. That means, contents of 4 packets were mixed. Total weight of charas was found to be 4.00 kgs. 100 grams was separated to serve a sample. That is why, only two samples were deposited with the MHC. One sample parcel was deposited in the office of Chemical Examiner and second parcel, i.e., remaining charas, remained with the incharge of malkhana. Recovery was on 2.3.2000, whereas witnesses appeared in the Court after expiry of about two years. With the passage of time, minor discrepancies are bound to occur. If no discrepancy, then witnesses are criticized as tutored one. If there are some discrepancies, then again the witnesses are criticized, being police officials. If there was no Crl.Appeal No.1140-SB of 2002 9 recovery, then why the appellant remained silent. Appearance of minor discrepancies rather shows that the story is natural one. Evidence on file was rightly scrutinized by the trial Court. No reason to disagree. Impugned judgment is to be set aside if the same is against law and is perverse. As a sequel to the above discussion, appeal being without merit is rejected. A copy of this judgment be sent to CJM, Panipat, with a direction to issue arrest warrant against the appellant to undergo imprisonment as ordered by the trial Court. 23.10.2009 ( JORA SINGH ) pk JUDGE