Crl. Appeal No. 113-DB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 113-DB of 2000 Date of Decision : March 03, 2009 Harnam Singh @ Nimma .... Appellant Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. G. S. Gill, Advocate and Mr. S. S. Siao, Advocate for the appellant(s). Mr. Kulvir Narwal, Advocate as Amicus Curiae for the appellant(s). Mr. S. S. Gill, Addl. A. G., Punjab. * * * L. N. MITTAL, J. : By this common judgment, we are disposing of three criminal appeals i.e. Crl. Appeal No. 113-DB of 2000, instituted by Harnam Singh @ Nimma, Crl. Appeal No. 123-DB of 2000, instituted by Jagga Singh @ Jaggu and Crl. Appeal No. 237-DB of 2000, instituted by Sukhdev Singh @ Sukha and Nirbhay Singh, as all these appeals have been preferred against same judgment and order dated 20.01.2000 of learned Additional Sessions Judge/Judge, Special Court, Mansa, whereby all the four Crl. Appeal No. 113-DB of 2000 2 appellants stand convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short – the Act) and sentenced to undergo rigorous imprisonment for 12 years each and to pay fine of Rs.1,00,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for two years each. Prosecution case, in brief, is as under :- On 26.05.1995, SI Hardevinder Singh, ASI Balwant Singh and other police officials of Police Station Jaurkian were going for patrolling in a private jeep. Gurbachan Singh Sarpanch of Village Kusla met them on the way and was joined in the party. While they were proceeding from Village Jagatgarh Bander to Village Kusla, they found the four appellants-accused sitting on gunny bags on right hand side of thoroughfare of canal, in the ditches under the trees. The accused were overpowered and their names and addresses were inquired. Suspecting some narcotic substance in the gunny bags, separate notices Exs.P-B, P-C, P-D and P-E were give to the four accused asking them if they wanted their search to be conducted before a Magistrate or a Gazetted Officer. They desired their search before Gazetted Officer. Accordingly, Joginder Singh, Deputy Superintendent of Police was called to the spot by giving intimation through wireless. In his presence, search was conducted. There were five gunny bags, out of which four bags were full and one was open one. All the five bags contained poppy husk. Sample of poppy husk weighing 100 grams was taken out from each bag. The remaining poppy husk weighed 40 kilograms in each of the full four bags and 14 kilograms in the open bag. Thus, in all, there was 174 kilograms 500 grams poppy husk. The samples and the bags with remaining poppy husk were sealed with seal bearing inscription `HS'. Seal after use was handed over to ASI Balwant Singh. The recovered poppy husk including samples was seized vide memo Ex.P-F. Ruqa Ex.P-G was sent from the spot at 05:00 P.M. to Police Station, where on its basis, FIR Ex.P- Crl. Appeal No. 113-DB of 2000 3 G/1 was registered by Inspector/SHO Amrik Singh. Rough site plan Ex.P-H of the place of recovery was prepared at the spot by SI Hardevinder Singh. Arrest memos Exs.P-K, P-L, P-M and P-N of the accused disclosing ground of arrest were prepared and conveyed to the accused. Statements of witnesses were recorded. Inventory report Ex.P-Q was prepared and special report Ex.P-R was sent to higher authorities. Superintendent of Police (Detective) made his endorsement Ex.P-R/1 on the special report. On return to Police Station, the case property and the accused were produced before Inspector/SHO Amrik Singh, who verified the investigation and affixed his own seal bearing impression `AS' on the sample parcels and kept the case property in his safe custody. On next day, the case property was produced before Illaqa Magistrate along with application Ex.P-S, on which the learned Magistrate passed order Ex.P-S/1 that the case property was seen and it be deposited with Malkhana under rules. The samples on analysis by Chemical Examiner vide report Ex.P-T were found to be of chura poppy heads. On completion of investigation, all the four accused were sent for trial. Charge under Section 15 of the Act was framed against all the four accused. They pleaded not guilty and claimed trial. In support of its case, the prosecution examined four witnesses, besides tendering report Ex.P-T of the Chemical Examiner in evidence. Constable Satnam Singh (PW-1) being a formal witness, tendered his affidavit Ex.P-A in evidence. Inspector Amrik Singh (PW-2) stated that the case property and the accused were produced before him and he verified the investigation and affixed his own seal bearing impression `AS' on the samples as well as bags of poppy husk. The case property remained in his custody and was not tampered with. Samples were sent to Chemical Examiner on 07.06.1995 through Constable Satnam Singh (PW-1). SI Hardevinder Singh (PW-3) and SI Balwant Singh (PW-4) Crl. Appeal No. 113-DB of 2000 4 broadly stated about recovery of poppy husk from the four accused as per prosecution version. SI Hardevinder Singh also stated about other investigation proceedings. DSP Joginder Singh could not be examined as he has since died, whereas PW Gurbachan Singh was given up as won over by the accused. The accused in their statements under Section 313 of the Code of Criminal Procedure (in short – the Cr.P.C.) denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. They did not lead any evidence in their defence. We have heard learned counsel for the appellants and also perused the case file with their assistance. SI Hardevinder Singh (PW-3) and SI Balwant Singh (PW-4) have categorically deposed about recovery of five bags of contraband poppy husk weighing 174.5 kilograms from the possession of the four appellants. Their statements could not be impeached in any manner in their lengthy cross-examination. They had no reason to implicate the appellants in a false case or to depose falsely against them. Even in their cross-examination, no suggestion was put to them as to why they were deposing against the appellants. Even the appellants in their statements under Section 313 Cr.P.C. have not stated any such reason. They have simply denied the prosecution version. No evidence has either been led by the appellants in their defence. Appellant Harnam Singh @ Nimma belongs to District Alwar (Rajasthan), appellant Jagga Singh @ Jaggu belongs to District Hissar (Haryana) and the remaining two appellants Sukhdev Singh @ Sukha and Nirbhay Singh belong to District Bathinda (Punjab), whereas the recovery was effected in the area of District Mansa (Punjab). The police of District Mansa had no reason to falsely implicate the four appellants belonging to different Districts and States in any such case. The quantity of contraband poppy husk also being substantially in excess of the commercial Crl. Appeal No. 113-DB of 2000 5 quantity cannot be said to have been planted on the appellants and that too, without any rhyme or reason. One independent witness Gurbachan Singh was also with the police party at the time of recovery. It is different matter that Gurbachan Singh has not been examined as prosecution witness and was given up as having been won over by the accused. Moreover, one Gazetted Officer DSP Joginder Singh was also called to the spot and the recovery of poppy husk was effected in his presence. DSP Joginder Singh could not be examined as prosecution witness as he has since died, as deposed by SI Hardevinder Singh (PW-3) and SI Balwant Singh (PW-4). However, his signatures on recovery memo Ex.P-F as well as on arrest memos Exs.P-K, P-L, P-M and P-N have been identified by SI Hardevinder Singh as well as by SI Balwant Singh (PW-4). The prosecution has thus led cogent and sufficient evidence to prove the guilt of the appellants beyond reasonable doubt. Learned counsel for the appellants vehemently contended that appellants are not proved to be in conscious possession of the gunny bags containing poppy husk. The contention cannot be accepted. The appellants were sitting on the gunny bags, which were kept in ditches under trees on the side of thoroughfare. As noticed herein above, the appellants belong to different Districts and States and they have not stated anything as to how they happened to be together at the spot in District Mansa sitting on the gunny bags at the aforestated place. There was nobody else present there, who could be said to be in possession of the said poppy husk. Learned counsel for the appellants cited judgment of Hon'ble Supreme Court in the case of State of Punjab vs. Balkar Singh and another reported as (2004) 3 Supreme Court Cases 582. However, this judgment is distinguishable on facts. In that case, there was recovery of 100 bags of poppy husk kept in a field. In the instant case, the bags of poppy husk had been kept in ditches under trees and not in any field. Moreover, in that case, there were 100 bags Crl. Appeal No. 113-DB of 2000 6 of poppy husk, but the police did not make investigation about transportation of said large number of bags of poppy husk to the spot. In the instant case, however, there were only five bags of poppy husk. Moreover, that was an appeal against acquittal and the Hon'ble Apex Court is always slow to interfere with the judgment of acquittal. Learned State counsel referred to Section 35 of the Act, which stipulates that the Court shall presume the existence of mental state of the accused required for an offence under the Act, but the accused shall be entitled to prove that he had no such mental state. Under this provision, it may be presumed that the appellants were in conscious possession of the contraband poppy husk. Their mental state regarding conscious possession can be presumed to exist, since the contrary has not been proved because the appellants have not led any evidence in their defence. Learned counsel for the appellants also relied on Noor Aga vs. State of Punjab and another reported as 2008 (3) R.C.R. (Criminal) 633, Bikkar Singh vs. State of Punjab reported as 2006 (3) R.C.C. 197 and Sukhdev Singh alias Sukha vs. State of Punjab reported as 2006 (1) R.C.R. (Criminal) 4. However, these judgments are not applicable to the instant case and were given on the basis of evidence and facts and circumstances of those cases. Learned counsel for the appellants next contended that no question was put to the appellants in their statements under Section 313 Cr.P.C. that the bags of poppy husk belonged to them. The contention has no merit because it has been put that the appellants were sitting on the gunny bags and it was suspected that some incriminating material was in their possession. Therefore, it cannot be said that no such question was put to the appellants under Section 313 Cr.P.C. that the incriminating material belonged to them. Even option to be searched before Magistrate or Gazetted Officer was given under Section 50 of the Act and this fact was also put to the appellants under Section 313 Cr.P.C. and it would also show Crl. Appeal No. 113-DB of 2000 7 that the appellants were given opportunity to explain the prosecution version that they were in possession of the contraband poppy husk. Learned counsel for the appellants placed reliance on Kashmir Singh vs. State of Punjab reported as 2006 (2) R.C.R. (Criminal) 477 (Full Bench). However, this judgment does not come to the rescue of the appellants because in the instant case, the appellants were granted opportunity to rebut and explain the presumption arising under Section 35 of the Act and necessary questions were put to the appellants under Section 313 Cr.P.C. regarding their possession of the contraband substance. Learned counsel for the appellants next contended that although independent witness Gurbachan Singh was with the police party, but inspite thereof, seal after use was not given to the said independent witness, but was given to ASI Balwant Singh. However, merely because the seal after use was not given to Gurbachan Singh independent witness, it cannot be said that the prosecution case is demolished. This circumstance cannot be said to be fatal to the prosecution case. On the other hand, the case property was produced before the Magistrate on the next day of its recovery, with seals intact. In support of aforesaid contention, learned counsel for the appellants cited State of Punjab vs. Nachhattar Singh @ Bania reported as 2007 (3) R.C.R. (Criminal) 1040. However, in that case, this was not the sole ground for acquittal. Moreover, that was an appeal against acquittal and the Appellate Court is always slow to interfere with the acquittal. Learned counsel for the appellants also submitted that Section 50 of the Act has not been complied with. The submission has no force because Section 50 of the Act has been complied with as the appellants were informed of their right to be searched before Magistrate or Gazetted Officer and they opted to be searched before Gazetted Officer and accordingly, Gazetted Officer DSP Joginder Singh was called and search Crl. Appeal No. 113-DB of 2000 8 was conducted in his presence. In addition to it, Section 50 of the Act is applicable to only search of person of an accused and not to search of gunny bags or conveyance etc. Section 50 of the Act was, therefore, not applicable to the instant case. Learned counsel for the appellants placed reliance on Man Bahadur vs. State of H.P. reported as 2008 (4) R.C.R. (Criminal) 563. In that case, the accused was not informed of his right of search before Gazetted Officer or Magistrate in compliance with Section 50 of the Act. In the instant case, however, the accused were informed of their said right. Additionally, Section 50 of the Act is not applicable to the instant case. Learned counsel for the appellants also contended that there has been delay of 12 days in sending the samples to the Chemical Examiner as the recovery was effected on 26.05.1995 and the samples were sent to Chemical Examiner on 07.06.1995 and deposited there on 08.06.1995. However, merely on this ground, the prosecution evidence cannot be discarded. No question was put to Inspector Amrik Singh (PW-2) in his cross-examination as to why there was delay of 12 days in sending the samples to the Chemical Examiner. He being Station House Officer and custodian of the case property, would have explained the same. In the absence of his cross-examination on this aspect, the appellants cannot derive any benefit from this circumstance. Learned counsel for the appellants cited a judgment of Hon'ble Supreme Court in the case of Baldev Singh vs. State of Punjab reported as (1990) 4 Supreme Court Cases 692. However, that was a case under Section 302 of the Indian Penal Code. This judgment has no applicability to the facts of the case in hand. Reliance on behalf of the appellants has also been placed on a judgment of Hon'ble Supreme Court in the case of State of Rajasthan vs. Gurmail Singh reported as 2005 (3) S.C.C. 59. In that case, Malkhana register was not produced in the Court and sample of seal was not sent to the Laboratory for the purpose of comparing it with the seal appearing on sample bottles. In Crl. Appeal No. 113-DB of 2000 9 the instant case, however, samples of seal were sent to the Chemical Examiner and the same were compared with the seals on the samples as is clear from the report of Chemical Examiner Ex.P-T. It also bears the slip of sample seals. At the risk of repetition, it may also be highlighted that Inspector Amrik Singh (PW-2) was not even cross-examined regarding the alleged delay in sending the sample parcels to Chemical Examiner. He has also specifically stated that sample parcels were sent along with sample seals. This fact is also specifically mentioned in affidavit Ex.P-A of Constable Satnam Singh that he had deposited the sample parcels along with sample seal with the office of Chemical Examiner and Constable Satnam Singh (PW-1) was not even cross-examined inspite of opportunity. So, this judgment has no applicability to the instant case. The contention of learned counsel for the appellants that CFSL form was not prepared in the instant case, has also to be negatived because as discussed herein before, slip of sample seals was prepared and was also sent to the Chemical Examiner with sample parcels. SI Hardevinder Singh (PW-3) and SI Balwant Singh (PW-4) have also specifically stated that slip of sample seal Ex.P-6 was prepared at the spot. Therefore, it cannot be said that form of sample seals was not prepared in the instant case. Consequently, judgment passed by this Court in the case of Gurcharan Singh vs. State of Punjab reported as 2005 (4) R.C.R. (Criminal) 681 cited by learned counsel for the appellants is not applicable to the instant case because there is ample evidence in the instant case that slip of sample seals was prepared at the spot. Learned counsel for the appellants also submitted that there is contradiction in the statements of SI Hardevinder Singh (PW-3) and SI Balwant Singh (PW-4) inasmuch as the former stated that there was no dibba or other article at the spot for measurement of the poppy husk, whereas SI Balwant Singh stated that a plastic dibba was lying there. This Crl. Appeal No. 113-DB of 2000 10 cannot be said to be contradiction, much less material one. Balwant Singh might have noticed the dibba lying somewhere at the spot, whereas SI Hardevinder Singh might not have noticed the same. The said dibba was also not taken into possession by the police. Consequently, it cannot be said to be a contradiction, much less material one. It may also be added that these two witnesses were examined more than four years after the recovery and due to lapse of such a long period as well, such minor contradiction can appear even in the statements of most truthful witnesses. Judgment of this Court in the case of State of Haryana vs. Kewal Ram reported as 2007 (3) R.C.R. (Criminal) 393 relied on by learned counsel for the appellants is distinguishable on facts because in that case, the witnesses stated contradictory version with regard to manner of recovery and weight used. In that case, link evidence was also missing. There was also contradiction about seals put on the samples. That was also an appeal against acquittal and the Appellate Court is slow to interfere with the judgment of acquittal. This judgment has no applicability to the instant case at all. Learned counsel for the appellants also pointed out that case property was not produced in the Court during examination of Inspector Amrik Singh (PW-2) and therefore, the prosecution case is doubtful. Reliance in support of this contention has been placed on two judgments of this Court i.e. Dayal Singh and another vs. State of Punjab reported as 2007 (2) R.C.R. (Criminal) 596 and State of Haryana vs. Virsa Singh reported as 2008 (1) R.C.R. (Criminal) 487. The contention has been noticed simply to be rejected being without any merit because case property was produced in the Court at the time of examination of SI Hardevinder Singh (PW-3). The case property was also produced before Illaqa Magistrate on the very next day of the recovery. So, the aforesaid judgments are not applicable to the instant case and the contention raised by learned counsel for the appellants cannot be accepted. Crl. Appeal No. 113-DB of 2000 11 Learned counsel for the appellants also contended that independent witness Gurbachan Singh has been given up by the prosecution. However, he had to be given up because he had been won over by the accused. The Court cannot be oblivious of the fact that in such cases, independent witnesses normally do not support the prosecution case. The Investigating Officer had joined an independent witness and if he was won over by the accused, the prosecution case cannot be thrown away. The Court cannot be at the mercy of independent witness joined by the police. The Court cannot be helpless if the independent witness so joined does not want to support the prosecution case for his own whims and fancy. Statements of official witnesses SI Hardevinder Singh (PW-3) and SI Balwant Singh (PW-4) cannot be discarded merely because they happen to be police officials. They were not hostile to the appellants in any manner and therefore, their statements are as much credible as those of independent witnesses. These two official witnesses had no reason to depose falsely against the accused. Their statements are, therefore, sufficient to bring home the charge against the appellants beyond reasonable doubt. Learned counsel for the appellants next contended that even DSP Joginder Singh has not been examined by the prosecution. However, it has come in the statements of SI Hardevinder Singh (PW-3) and SI Balwant Singh (PW-4) that DSP Joginder Singh had since died. Consequently, prosecution cannot be blamed for non-examination of the said witness. On the other hand, SI Hardevinder Singh (PW-3) and SI Balwant Singh (PW-4) identified the signatures of DSP Joginder Singh on recovery memo Ex.P-F as well as on arrest memos Exs.P-K, P-L, P-M and P-N. Learned counsel for the appellants also submitted that the case property was not sealed with seal of DSP Joginder Singh. However, it was not the requirement of any provision of the Act. On the other hand, the case property was produced before Inspector Amrik Singh, Station House Officer, who affixed his own Crl. Appeal No. 113-DB of 2000 12 seal on the case property and kept the same in his own safe custody. This was sufficient compliance with Section 55 of the Act. Learned counsel for the appellants also pointed out that the police officials were travelling in a private jeep, but did not know its registration number or the name of its owner. However, merely on this ground, the prosecution case cannot be doubted in any manner. SI Hardevinder Singh (PW-3) and SI Balwant Singh (PW-4) were examined more than four years after the recovery and therefore, they might not be remembering this fact. Learned counsel for the appellants also submitted that DSP Joginder Singh was not DSP of the Sub Division, in which the recovery was effected. However, SI Hardevinder Singh (PW-3) was not even cross- examined as to why DSP Joginder Singh was called to witness the search. Learned counsel for the appellants also contended that affidavit Ex.P-A of Constable Satnam Singh was not put to the appellants in their statements under Section 313 Cr.P.C. The argument has no merit because it was put to the appellants under Section 313 Cr.P.C. that the sample parcels were sent to Chemical Examiner. This is what the affidavit Ex.P-A of Constable Satnam Singh has affirmed. Therefore, it cannot be said that the said affidavit was not put to the appellants under Section 313 Cr.P.C. Learned counsel for the appellants next argued that SI Hardevinder Singh (PW-3) admitted in his cross-examination that seal impressions on the bags of poppy husk were not visible when produced in the Court and therefore, it cannot be said that the said bags were of the present case. The argument, although apparently attractive, has no merit. SI Hardevinder Singh has stated that there were chits of case particulars of the instant case on the gunny bags of poppy husk produced in the Court. Therefore, it cannot be said that the said gunny bags did not pertain to the instant case. Moreover, inventory Ex.P-Q of the case property was prepared Crl. Appeal No. 113-DB of 2000 13 on 26.05.1995 itself and the case property was also produced before Illaqa Magistrate on 27.05.1995