Criminal Appeal No. 426-SB of 2003 - 1 - IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.426-SB of 2003 Date of Decision : November 28,2011 Avtar Singh ...... Appellant Versus State of Punjab ...... Respondent CORAM: HON'BLE MR. JUSTICE L.N. MITTAL Present: Mr. Rajiv Joshi, Advocate for the appellant. Mr. R.S. Rawat, Assistat Advocate General, Punjab. ***** L.N. MITTAL, J. (ORAL) Accused-Avtar Singh has filed the instant criminal appeal thereby impugning his conviction and sentence recorded by learned Special Judge, Jalandhar, vide judgment and order dated 03.02.2003, thereby convicting the accused-appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short “the Act”) and sentencing him to undergo rigorous imprisonment for 10 years and to pay a find or `one lac and in default thereof, to undergo further rigorous imprisonment for three months. Prosecution case in brief is as under: On 25.04.1996, police party comprising of ASI Som Nath, Head Constable Mohan Lal and other police officials, along with Rajender Kumar was present in village Haripur for patrolling and nakabandi. Secret information was received that accused-Avtar Criminal Appeal No. 426-SB of 2003 - 2 - Singh was sitting on kaccha passage of village Ganna near bus stop with gunny bags containing poppy husk and was waiting for customers. ASI-Som Nath got FIR registered by sending rukka to police station. The party proceeded for the aforesaid place after informing DSP (ASP) Phillaur-Sharad Satya Chauhan, who also reached the spot. Accused was found present there. He was apprehended and produced before ASP- Sharad Satya Chauhan, who interrogated the accused after introducing himself as Gazetted officer. Thereafter, ASI-Som Nath interrogated the accused, who made disclosure statement that he had kept concealed four bags containing poppy husk in abandoned brick kiln in the area of village of Ganna within his exclusive knowledge and he could got the same recovered. Pusuant thereto, the accused got recovered four bags containing 35 Kgs. poppy husk each i.e. 140 Kgs. poppy husk in all. Out of each bag, sample of poppy husk weighing 250gms was separated. The samples and the bags were separately sealed with seals of ASI-Som Nath and ASP-Sharad Satya Chauhan. Sample seal impressions were also retained. After use, ASI-Som Nath gave his seal to Head Constable Mohan Lal whereas ASP retained his own seal. The case property was seized. Rough site plan of the place of recovery was prepared. Statements of witnesses were recorded. The accused was arrested. On reaching the police station, the accused along with case property was produced before the S.H.O.-Angrej Singh who interrogated the accused and verified the investigation. As per report of chemical examiner, the samples were found to be of poppy head. On completion of investigation, police presented report under Section 173 of the Code of Criminal Criminal Appeal No. 426-SB of 2003 - 3 - Procedure (in short “Cr. P.C.”) for prosecution of the accused under Section 15 of the Act. Charge under Section 15 of the Act was framed against the accused. He pleaded not guilty and claimed trial. In support of its case, prosecution examined six witnesses. Head Constable Subhash Chander-PW1 and constable Jit Singh-PW3 tendered their affidavits being formal witnesses. Kulbir Singh-PW2 stated that he along with Pritam Singh and Sukhdev Singh had installed brick kiln in village Ganna in the year 1991 and the same was closed in the year 1993. The brick kiln was lying abondened since then. ASI-Som Nath-PW-4 and ASP- Sharad Satya Chauhan, IPS-PW5 broadly stated according to the prosecution version about recovery of four bags containing 35 Kg. poppy husk each at the instance of the accused pursuant to disclosure statement made by him. ASI-Som Nath also stated about investigation of case conducted by him. S.I.-Angrej Singh-PW6 stated that on 25.04.1996, while he was posted as S.H.O., the accused and the case property were produced before him and he interrogated the accused and verified the investigation and he deposited the case property duly sealed with MHC. He also prepared report under Section 173 Cr.P.C., on completion of investigation. PW-Rajinder Kumar and PW-Pritam Singh were given up as won over by the accused. Accused in his examination under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against him in Criminal Appeal No. 426-SB of 2003 - 4 - the prosecution evidence and claimed to be innocent. He alleged that he had enmity with Sarpanch Nirmal Singh. It was also alleged by the accused that he was arrested from his house on 23.04.1996 at the instance of said Nirmal Singh in the presence of Ashwani Kumar, Sarpanch and Inderjit Singh, member Panchayat and was falsely implicated due to party-faction and nothing was recovered from him. In defence, the accused examined four witnesses. Rajender Kumar-DW-1 stated that on 23.04.1996, he had gone to police station, Phillaur in connection with his vehicle and the accused was present there. The police obtained his signatures on some blank papers. No incriminating article was recovered in his presence from the accused. Pritam Singh-DW2 made statement similar to Kulbir Singh-PW2 that they had installed brick kiln in the year 1991 and it was closed in 1993. He stated that no incriminating article was recovered from their said brick kiln. Ashwani Kumar-DW3 and Amarjit Singh @ Inderjit Singh- DW4 broadly stated according to defence version. Learned Special Judge, Jalandhar vide impugned judgment and order dated 03.02.2003 convicted and sentenced the accused as already noticed herein before. Feeling dissatisfied, the accused has preferred this appeal. I have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellant vehemently contended that there has been violation of mandatory provisions of Sections 42, 50, 55 and 57 of the Act. It was pointed out that recovery was Criminal Appeal No. 426-SB of 2003 - 5 - effected during night i.e. between sunset and sunrise and, therefore, in view of proviso to Section 42(1) of the Act, search could be effected without obtaining search warrant, only after recording reasons to believe that search warrant could not be obtained without affording opportunity for concealment of evidence or escape of the offender, but ASI-Som Nath admitted that no such reason was recorded by him. It was pointed out that no report of the secret information was sent to superior officers as required by Section 42(2) of the Act. It was also argued that Angrej Singh-S.H.O. did not affix his own seal impressions on the case property including sample parcels. It was also canvassed that before conducting personal search of the accused, he was not informed of his right to be searched in the presence of Gazetted officer or Magistrate and, therefore, there has been violation of Section 50 of the Act. In support of these contentions, reliance has been placed on judgment of Hon'ble Supreme Court in 2007(1) R.C.R. (Criminal) 586 titled Dilip & Anr. Versus State of M.P. Counsel for the appellant also contended that there has been delay of 20 days in sending the sample parcels to chemical examiner and, therefore, the prosecution case is doubtful. It was also pointed out that CFSL form was not prepared at the spot and, therefore, accused deserves acqittal. Reliance in support of this contention has been placed on judgment of this Court in 2010(1) R.C.R. (Criminal) 666 titled Lachhman Dass Versus State of Punjab. It was also argued that ASI-Som Nath gave his seal after use to Head Constable-Mohan Lal and not to independent witness and even Mohan Lal-Head Constable has not been examined as witness. It was also pointed out that no Criminal Appeal No. 426-SB of 2003 - 6 - independent witness except Rajender Kumar was associated and even Rajender Kumar was not examined by the prosecution but he has appeared in defence and deposed against the prosecution version. It was also argued that informer, who gave secret information to ASI-Som Nath, has also not been examined as witness. It was also pointed out that percentage of morphine in the sample parcels has not been reported by the chemical examiner and, therefore, it cannot be said that the samples were of poppy husk. It was also lastly contended that same weight has to be attached to the testimony of defence witnesses as to that of prosecution witnesses. On the other hand, learned State counsel argued that one independent witness Rajender Kumar was also there with the police party. It was also submitted that it was odd hour of the night and therefore, no other independent witness could be joined. It was also pointed out that the secret information was to the effect that the accused was sitting with bags of poppy husk and, therefore, no search was required to be conducted and consequently there was no necessity of obtaining search warrant or of recording reasons for not obtaining the search warrant. It was also pointed out that police officials, who have appeared as prosecution witnesses, had no enmity with the accused so as to implicate him in false case. Even one Gazetted officer of IPS rank has supported the prosecution case against the accused. It was also pointed out that the accused belongs to a village of police station Noor Mahal whereas the instant case is of police station Phillaur and therefore, there was no reason for police of police station Phillaur to implicate the accused in false case. Criminal Appeal No. 426-SB of 2003 - 7 - I have carefully considered the rival contentions. In so far as the legal assertions raised by counsel for the appellant are concerned, the same would be dealt with at a later stage. First of all, it has to be examined whether the prosecution evidence is reliable or not. The answer to this question is in affirmative. As rightly argued by the State counsel, there is no reason why police officials of Phillaur would falsely implicate the accused when the accused does not even belong to the area of police station Phillaur. The accused belongs to area of police station Noor Mahal, whereas the instant case is of police station Phillaur. The accused alleged that he has been falsely implicated at the instance of Nirmal Singh-Ex-Sarpanch due to party faction. However, Nirmal Singh who also belongs to the village of accused could not have influence over police officials of different police station, Phillaur. There is also no reason why police party headed by ASI-Som Nath would have acted at the instance of Nirmal Singh-Ex- Sarpanch to implicate the accused in false case. Moreover, Sharad Satya Chauhan-IPS would not have become party to such false implication. Police officials had no motive to implicate the accused in false case. They had no malice or ill will against him. Consequently, sworn statements of police officials cannot be discarded merely because of their official status. They have stood the test of cross examination. Their veracity could not be impeached in cross examination. Consequently, prosecution evidence inspires confidence and is sufficient to prove the prosecution case. As regards joining of independent witness, one independent witness Rajender Kuamr was already with the police Criminal Appeal No. 426-SB of 2003 - 8 - party. Consequently, there was no necessity of joining any other independent witness. Moreover, it was odd hour of the night when the secret information was received and rukka was sent at 1.30 a.m. For this reason also, no other independent witness could be joined. Moreover, it is matter of common knowledge that independent witnesses do not like to be associated in such cases because they have no interest in such cases. Even if any independent witness is joined, more often than not, such witness does not depose against the accused so as to avoid enmity with him. It is amply demonstrated by the present case. Rajender Kumar independent witness was present with the police party but he was won over by the accused and had to be given up by the prosecution. On the other hand, he has appeared in defence. He has admitted his signatures on the relevant documents including disclosure statement, recovery memo of the contraband substance and recovery memo of `150/- on personal search of the accused. His testimony that his signatures had been obtained on blank papers by the police cannot be taken as face value. He would not have signed on the blank papers without any rhyme or reason. As regards compliance with Section 42 of the Act , secret information was recorded in writing in the form of rukka by ASI-Som Nath and immediately sent to his immediate superior i.e. Angrej Singh-Station Head Officer in the police station for lodging of FIR. Moreover, the secret information was also conveyed to ASP-Sharad Satya Chauhan, who also reached the spot. Section 42(2) of the Act was thus duly complied with. As regards compliance with proviso to Section 42(1) of Criminal Appeal No. 426-SB of 2003 - 9 - the Act, the same is not applicable because the police did not conduct search of any place or premises to recover the contraband substance. On the other hand, the secret information was that the accused was sitting on kaccha path with gunny bags containing poppy husk. Consequently, search of any building, place or conveyance was not to be effected and, therefore, search warrant was not required to be obtained. In addition to it, factually also, the police party did not conduct search of any place, building or conveyance. On the contrary, the accused himself made disclosure statement and led the police party to the place from where recovery of contraband poppy husk was effected. Thus, no search was conducted by the police. On the contrary, the accused himself pointed out the bags of poppy husk. It is, thus, manifest that proviso to Section 42(1) of the Act is not applicable to the instant case and, therefore, there is no violation of the said provision. As regards compliance with Section 50 of the Act, the same is also not applicable to the instant case. Section 50 of the Act applies to personal search of an accused, but in the instant case, contraband substance was not recovered on personal search of the accused. On the contrary, in the instant case, after recovery of contraband substance, at the time of arrest of the accused, his personal search was conducted to find out if he had any non- incriminating article like cash amount which was actually recovered. No contraband substance was recovered on personal search of the accused. Thus, Section 50 of the Act is also not applicable to the instant case and, therefore, there is no question of infringement of Section 50 of the Act. Criminal Appeal No. 426-SB of 2003 - 10 - As regards compliance with Section 55 of the Act, as required by this provision, the accused along with case property was produced before S.H.O.-Angrej Singh, who verified the case and also examined the case property. Since samples were not taken in his presence, he was not required to affix his own seal. In addition to it, the sample parcels and the bags containing poppy husk were sealed with seal of ASP- Sharad Satya Chauhan, in addition to seal of ASI- Som Nath. According to Section 36 Cr.P.C., police officers superior in rank to an officer-in-charge of police station may exercise the same power as exercised by officer-in-charge of police station within the limits of such police station. In the instant case, ASP-Sharad Satya Chauhan, IPS being superior police officer to an officer-in- charge of police station, could exercise the powers of officer-in- charge of police station. Accordingly affixation of seal impression by ASP-Sharad Satya Chauhan on case property including sample parcels would also be sufficient compliance with Section 55 of the Act. Section 57 of the Act has also been duly compled with because arrest and seizure was made by ASI-Som Nath and it was immediately reported to ASP-Sharad Satya Chauhan in whose presence arrest and seizure was made. It was also immediately reported to Angrej Singh-S.H.O. on reaching the police station. It is, thus, manifest there has been no infringement of the provisions of Sections 42, 50, 55 and 57 of the Act. As regards delay in sending the sample parcels to the chemical examiner, the said delay cannot be said to be fatal to the prosecution case because the prosecution has led complete chain of Criminal Appeal No. 426-SB of 2003 - 11 - link evidence to depict that there was no tampering with the contents of the sample parcels. In this regard, there are statements of Head Constable-Subhash Chander-PW1 and constable Jit Singh -PW3, besides statements of ASI-Som Nath and S.H.O.-Angrej Singh to the effect that there was no tampering with the case property including sample parcels. Report of chemical examiner also reveals that seals on the sample parcels were intact when received in the office of chemical examiner, again depicting that there was no tampering with the contents of the sample parcels. In these circumstances, the delay of 20 days in sending the samples for chemical examination pales into insignificance and does not create any doubt about the prosecution case. In this view, I am supported by judgment of the Hon'ble Supreme Court in Hardip Singh V. State of Punjab (2008) 8 Supreme Court Cases 557. In that case, there was delay of 40 days in sending the sample parcels to the chemical examiner. Still conviction of accused was upheld since, there was evidence to demonstrate that there was no tampering with the sample parcels. Same being the position in the instant case, mere dealy of 20 days in sending the sample parcels to the chemical examiner would not be fatal to the prosecution case. As regards non-preparation of CFSL form at the spot, both ASI-Som Nath and ASP-Sharad Satya Chauhan,IPS have categorically deposed that sample seal impressions were retained at the spot and the same were affixed on the docket when the sample parcels were sent to the chemical examiner. From the report of chemical examiner also, it is clear that seals on sample parcels were intact and tallied with specimen seal impressions. Consequently Criminal Appeal No. 426-SB of 2003 - 12 - contention of counsel for the appellant that CFSL form was not prepared at the spot also carries no weight. Non-handing over of the seal to the independent witness would also not make the prosecution case suspicious. Seal by ASI- Som Nath was handed over to H.C. Mohan Lal whereas seal of ASP- Sharad Satya Chauhan was retained by him. In view of their statements as well as other evidence on record, referred to herein above, it is proved that there was no tampering with the contents of the case property including sample parcels. Consequently, non- examination of H.C. Mohan Lal is completely immaterial. Informer cannot be examined as witness because identity of the informer is not required to be disclosed. Reference in this regard may be made to Section 125 of the Evidence Act. Percentage of morphine in contents of sample parcels was not required to be determined to report as to whether the samples were of poppy husk. On the other hand, the chemical examiner has reported that morphine and meconic acid were both present in all the four samples. Presence of morphine and meconic acid in the samples is sufficient to hold that the samples were of poppy head. Keeping in view of the aforesaid discussion, judgments in the case of Dilip (supra) and Lachhman Dass (supra) cited by counsel for the appellant are not applicable to the facts of the instant case. Necessary consequence of the discussion aforesaid is that the prosecution evidence is cogent and credible and is sufficient to prove the guilt of the accused about beyond reasonable doubt. His Criminal Appeal No. 426-SB of 2003 - 13 - conviction is well founded and well reasoned. Accordingly, impugned judgment of conviction is upheld. As regards quantum of sentence, minimum sentence of imprisonment for 10 years and fine of `1 lac as required by Section 15(c) of the Act has been imposed upon the convict by the trial Court and, therefore, the sentence also does not warrant any reduction or modification. Resultantly, the instant appeal is found to be meritless and is, therefore, dismissed. Accused-appellant, who is on bail, shall surrender his bail bonds or shall be arrested to undergo the remaining sentence. November 28,2011 (L.N.MITTAL) sarita JUDGE