Crl. Appeal No.1407--SB of 2001 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No.1407--SB of 2001 Date of decision. 05.12.2008 1. Darshan Singh son of Tulla Singh son of Sardara Singh, resident of Dhani Santa Singh, village Rania, Tehsil Rania, District Sirsa. 2. Hoshiar Singh s/o Lakhbir Singh son of Milawa Singh, resident of Peeranwali. ....... Appellants Versus The State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: None for the appellants. Mr. T.S. Salana, DAG, Punjab, for the respondent. **** Sham Sunder, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 07.11.2001, rendered by the Judge, Special Court, Muktsar, vide which he convicted the accused (now appellants), for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be Crl. Appeal No.1407--SB of 2001 --2-- as the 'Act' only) and sentenced them to undergo RI for a period of 10 years each and to pay a fine of Rs. 1 lac each, and in default of payment of fine, to undergo further rigorous imprisonment, for a period of six months each, for having been found in possession of 03 bags, containing 105 Kgs and 250 grams poppy husk, falling within the ambit of commercial quantity, without any permit or licence. 2. The facts, in brief, are that on 21.04.1998 Ranjodh Singh, Sub Inspector, along-with other Police officials, was present at canal bridge Abohar Branch, in the area of village Alamwala, where a picket had been held. In the meanwhile, a maruti car bearing No. DNB- 7134, came from the side of village Virk Khera. It was signalled to stop. It was stopped. The car was being driven by Darshan Singh, accused while Hoshiar Singh, accused was sitting by his side. Two bags, full of some substance, were found lying, on the rear seat of the car, whereas, the third bag was found lying, in the dickey of the same. Ranjodh Singh, SI, suspected that these bags contained some contraband. He told the accused that the search of the bags, lying in the car, was required to be taken, and if they desired, the same could be conducted, in the presence of a Gazetted Officer, or a Magistrate. The accused, opted that the Crl. Appeal No.1407--SB of 2001 --3-- search should be conducted, in the presence of a Gazetted Officer. Thereafter, a message was flashed to Ashok Bath, DSP, Gidderbaha, to reach the spot, who reached there, and disclosed his identity to the accused. Thereafter, the search of the car was conducted. He found two bags, lying on the rear seat of the car, whereas, the third bag, lying in the dickey. The bags contained poppy husk. The poppy husk from all the bags was spread on a gunny mat and a sample of 250 grams of poppy husk from the same, was drawn. The remaining poppy husk, which came to be 105 Kgs., was again filled in the same bags. The sample and the bags, containing the remaining poppy husk, were made into separate parcels, sealed with the seal, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police station, on the basis of which, the FIR was recorded. The car was also taken into possession, vide a separate recovery memo. The site plan was prepared. The statements of the witnesses were recorded. The accused were arrested. After the completion of investigation, the challan was presented. 3. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was Crl. Appeal No.1407--SB of 2001 --4-- framed against the accused, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Ranjodh Singh, SI, (PW-1), the Investigating Officer, who deposed with regard to the date, time, place of recovery and arrest of the accused, Gursewak Singh, ASI, (PW-2), a member of the Police party, in whose presence, search and seizure, were effected, Kasturi Lal, Head Constable, (PW-3), who recorded the statement of Ajay Verma, Clerk, office of the Transport Authority, Janakpuri, New Delhi , Chanan Ram,Constable, Security Guard,(PW-4), who tendered his affidavit Ex.PN, Ashok Bath, DSP, ( PW- 5 ), who reached the spot, on receipt of a message, and, in whose presence, the search and seizure were conducted, Suresh Kumar, LDC, ( PW- 6 ), who brought the registration record of the car, in question, and stated that the same was registered, in the name of Anil Kumar son of Raghunath, r/o 152 Rashid Market, New Delhi, Harinder Singh, ASI,(PW-7), who tendered his affidavit Ex.PP and Malkiat Singh, HC, ( PW-8 ), who was also a member of the Police party. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. Crl. Appeal No.1407--SB of 2001 --5-- 5. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. Darshan Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he was innocent. It was further stated by him, that, in fact, his car collided with the canter of the Police party. It was further stated by him that the driver of the canter was responsible for the accident. He further stated that when he demanded damages from the Police party, he was falsely implicated in the present case. 5A. Hoshiar Singh, accused, in his statement, under Section 313 Cr.P.C., took up the same plea, as was taken up by Darshan Singh, accused. They, however, led no evidence in their defence. 6. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellants. Crl. Appeal No.1407--SB of 2001 --6-- 8. None appeared, on behalf of the appellants, despite due notice, to their Counsel, that the appeal was fixed for regular hearing. Under these circumstances, no alternative was left with this Court, than to go through the evidence,record of the case, trial Court judgment, hear the arguments of the Counsel for the respondent, and decide the appeal, on merits, as that amounted to due compliance of the provisions of Sections 385 and 386 of the Code of Criminal Procedure, in view of the ratio of law, laid down, in Dharampal v. State of UP, 2008(1) Law Herald (SC) 225. 9. I have heard the Counsel for the respondent, and perused the records, evidence, and the impugned judgment, carefully. 10. The first ground, taken up, in the memorandum of appeal, was to the effect, that the mandatory provisions of Section 50 of the Act, were not complied with, and, as such, the conviction and sentence stood vitiated. It may be stated here, that the provisions of Section 50 of the Act, were not applicable to the instant case, as the recovery was not effected, from the person of the accused, but from the car. However, out of abundant caution, Ranjodh Singh, Sub Inspector, the Investigating officer, complied with the Crl. Appeal No.1407--SB of 2001 --7-- provisions of Section 50 of the Act. 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. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone the provisions of Section 50 of the Act would be attracted. Since, in view of the principle of law, laid down, in the aforesaid authorities, the provisions of Section 50 of the Act were not applicable, to search, in the instant case, the question of violation thereof, did not at all arise. Under these circumstances, this ground, does not carry any weight, and the same stands rejected. 11. The next ground, taken up, in the memorandum of appeal, was to the effect, that no independent witness was joined, at the time of effecting the alleged recovery, despite availability, and as such, the case of Crl. Appeal No.1407--SB of 2001 --8-- the prosecution became highly doubtful. It may be stated here that there was no secret information, against the accused, that they were coming in a car, with a big haul of poppy husk. It was, only in routine, when the Police party was present, in the area of Alam wala, on the bridge of Abohar Branch canal, per chance, when the car, aforesaid, being driven by one of the accused, came and was stopped. Ranjodh Singh, Sub Inspector, ( PW-1 ), the Investigating Officer, in his cross- examination, stated that he had tried to join an independent witness, but none was available, though the place of recovery was GT Road. As stated above, the recovery in this case, was effected per chance. It means that an effort was made, to join an independent witness, but the Investigating Officer did not succeed. There is nothing, on the record, that at the time of recovery, any independent witness was available, but he was not intentionally and deliberately joined. If despite efforts, having been made by the Investigating Officer, he was not successful, in joining an independent witness, then his conduct could not be said to be blame-worthy. 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 Crl. Appeal No.1407--SB of 2001 --9-- 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.” 11-A. 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 authority, that the civilized people, are generally insensitive, when a crime is committed, even in 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 Crl. Appeal No.1407--SB of 2001 --10-- two individuals, and do not involve themselves, in it. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, 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. This ground, therefore, does not hold good, and the same stands rejected. 12. The next ground, taken up, in the memorandum of appeal, was to the effect, that only one sample was taken out of the poppy husk, allegedly recovered, whereas, the requirement of law, was to take two samples and as such, on account of this reason, a prejudice was caused to the accused. It may be stated here, that there is no provision in the Act, or the Rules, framed thereunder, that two samples from the contraband, should be taken. The purpose of taking the sample, is only to send the same to the Laboratory, for the purpose of analysis. In the instant case, the Chemical Examiner analyzed the same, and came to the conclusion, that the same constituted poppy husk. Had the quantity of the sample, been found to be insufficient, by the Laboratory, it Crl. Appeal No.1407--SB of 2001 --11-- would not have analyzed the same, and sent back the same. On account of drawing of one sample only, from the recovered poppy husk, no prejudice, whatsoever, was shown to have been caused, to the accused. This ground, therefore, does not hold good, and the same stands rejected. 13. The next ground, taken up, in the memorandum of appeal, was to the effect, that CFSL form, was not prepared, at the spot, by the investigating officer, and, as such, the link in the chain of prosecution evidence, became incomplete. It may be stated here, that there is no provision in the Act, as also the Rules, framed thereunder, that the aforesaid form, should be prepared, at the spot, and if it is not so prepared, then the trial, conviction and sentence shall stand vitiated. The form is required to be prepared, so as to send the same, along with the sample parcel. Under these circumstances, if the same was not prepared, at the spot, that did not transgress any provision of the Act, or the Rules framed thereunder. Under these circumstances, the Investigating Officer, did not commit any irregularity or illegality, in not preparing the form, aforesaid, at the spot, and rather preparing the same later on, at the time of sending the sample parcel, to the Chemical Examiner. No prejudice has Crl. Appeal No.1407--SB of 2001 --12-- been caused to the appellants, on account of non-preparation of the said form, at the spot. The other evidence, as stated above, is reliable and trust-worthy that none tampered with the sample parcel, until the same reached the office of the Chemical Examiner. This ground, therefore, does not hold good, and the same stands rejected. 14. The next ground, taken up, in the memorandum of appeal, was to the effect, that the link evidence was incomplete. Ranjodh Singh, Sub Inspector, ( PW-1 ), the Investigating Officer, was himself the Station House Officer. It was stated by him, during the course of examination-in-chief, that on reaching the Police station, he retained the case property with him and lodged the accused, in the lock up. He further stated that, on the next day, he handed over the case property to Malkiat Singh, HC, alongwith his request Ex.PK, for producing the same before the Court. Malkiat Singh, H.C. , ( PW- 8 ), during the course of examination-in-chief, stated that on 22.4.1998, three bags, containing poppy husk, and the sample, duly sealed with seals RS and AKB were handed over to him, by Ranjodh Singh, Sub Inspector , with request Ex.PK, for producing the same, before the Illaqa Magistrate. He produced the case Crl. Appeal No.1407--SB of 2001 --13-- property before the Illaqa Magistrate, who passed the order, vide Ex.PK/1. He further stated that he also produced both the accused, before the Illaqa Magistrate, vide request Ex.PQ, who vide order dated Ex.PQ/1, remanded both of them to police custody till 24.04.1998. He further stated that, on return to the Police Station, he deposited the case property with seals intact, with MHC Harinder Singh. Harinder Singh,ASI,(PW-7), who tendered his affidavit Ex.PP, stated that the case property, and the sample parcel, duly sealed , were deposited with him and he handed over the sample parcel to Chanan Ram, C. on 27.04.1998, for depositing the same, in the office of the Chemical Examiner, who after depositing the same, handed over a receipt, in this regard, to him, on 28.04.1998. He further stated that none tampered with the case property and the samples, till remained in his custody. Chanan Ram, Constable, ( PW-4 ), vide affidavit Ex.PN, stated that he handed over the sample parcel along with the specimen impression of the seal , duly sealed for deposit, in the office of the Chemical Examiner and he deposited the same there. He further stated that neither he tampered with the sample, nor he allowed anybody to tamper with the same. Above all, there is report of the Chemical Crl. Appeal No.1407--SB of 2001 --14-- Examiner Ex.PM, to the effect, that the seals on the exhibit were intact, on arrival, till the time of its analysis and agreed with the specimen impression of the seals. The report Ex.PM of the Chemical Examiner is per-se admissible, in toto, under Section 293 of the Code of criminal Procedure. There is no challenge, to the report of the Chemical Examiner, in this case. Under these circumstances, from the evidence, referred to above, it was proved that the link evidence was complete. It was also proved that none tampered with the sample parcel, until the same reached the office of the Chemical Examiner. This ground, therefore, does not hold good, and the same stands rejected. 15. No other ground, to assail the judgment of conviction and the order of sentence of the trial Court, was taken up, in the memorandum of appeal. 16. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference. The same are liable to be upheld. Crl. Appeal No.1407--SB of 2001 --15-- 17. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence, dated 07.11.2001, are upheld. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, within two months, from the date of receipt of a certified copy of the same, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and send the compliance report immediately thereafter. 18. The District & Sessions Judge, Faridkot is also directed to ensure that the directions, referred to above, are complied with,within the time-frame, and the compliance report is sent immediately, thereafter, to this Court. 19. The Registry shall keep track of the matter, and put up the action taken report, if received, within the time frame. Even if, the same is not received, within the time frame, the matter shall be put up, within 10 days, after the expiry of the stipulated time. 05.12.2008 (SHAM SUNDER) dinesh JUDGE