Crl. Appeal No.120-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.120-SB of 1999 Date of Decision : April 29, 2008 Gurmej Kaur @ Gejo, ....Appellant R/o village Sarhala Kalan Colony, Police Station Mahilpur, District Hoshiarpur. Versus The State of Punjab ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER Present: None for the appellant. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence dated 30.1.1999, rendered by the Court of Special Judge, Hoshiarpur, vide which it convicted the accused/appellant, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced her to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years, for having been found in possession of 5 bags, each containing 40 Kgs. poppy-husk, without any permit or licence. 2. The facts, in brief, are that on 26.7.1996, Balbir Singh, ASI, alongwith Gurnam Singh, HC, and some other police officials, was on patrol duty, near village Sarhala Kalan. Gurnam Singh, HC, alongwith Som Nath, PHG, on motorcycle, informed Balbir Singh, ASI, that one lady namely Gurmej Kaur @ Gejjo, was keeping poppy-husk powder, in large quantity, on the unmetalled way of village Kukran, near the right side of Kutia, in the Forests of Crl. Appeal No.120-SB of 1999 2 Sheesham. They further informed that, she was finding customers, and if a raid was conducted, she could be apprehended, with a large quantity of poppy-husk. Thereafter, Balbir Singh, ASI, alongwith other police officials, went to the place, referred to above. Chaman Lal son of Chanan Singh, independent witness was also joined. Raid was conducted, and the police party found that on the right side of unmetalled way, opposite Kutia, one lady was siting on the Jute bags, and she was apprehended. On eqnuriy, she disclosed her name as Gurmej Kaur @ Gejjo, wife of late Shri Mohan Lal, resident of Village Sarhala Kalan. The Jute bags, five in number, were searched in the presence of Gurpreet Deo, SP, who was called to the spot, through a wireless message, in accordance with the provisions of law. Each bag was found containing 40 Kgs. poppy-husk. A sample of 250 grams, from each of the bags, was drawn, and the remaining poppy-husk was put into the same bags. The samples and the remaining poppy-husk, were converted into parcels, duly sealed, with the seal, bearing impression 'BS', and taken into possession, vide a separate recovery memo. The accused was arrested. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against her, to which she pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Gurnam Singh, HC (PW-1), Gurpreet Deo, S.P. (Headquarter) (PW-2), Ashwani Kumar, MHC (PW-3), Balbir Singh, ASI (PW-4), and Balbir Chand, Constable, (PW-5). Chaman Lal, independent witness, was given up, as won over by the accused. Thereafter, the Addl. P.P. for the State, closed the prosecution evidence. Crl. Appeal No.120-SB of 1999 3 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and she was put all the incriminating circumstances, appearing against her, in the prosecution evidence. She pleaded false implication. It was stated by her, that her signatures were obtained, in the Police Station, on some other day, later on, and she was falsely implicated, in this case, at the instance of Ajay Singh, SI/SHO. It was further stated by her, that Chaman Lal, PW, was a stock witness of the Police. She, however, examined Balbir Singh (DW-1) and Chaman Lal (DW-2), in defence. Thereafter, she closed the defence evidence. 6. After hearing the Addl. 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 accused/appellant. 8. None appeared, despite due notice, that the appeal was fixed for regular hearing, on the board of this Court. Accordingly, no alternative was left with the Court, than to peruse the record, the evidence, hear the Counsel for the respondent, and decide the appeal. 9. I have heard the learned Counsel for the respondent, and have carefully perused the evidence, and record of the case. 10. No doubt, Chaman Lal, independent witness, was joined by the Investigating Officer, at the time of the search of the accused, and seizure of the contraband, referred to above. He, however, joined hands with the accused, during the course of trial, of the case. Accordingly, he was given up as won over by the Addl. Public Prosecutor for the State, vide his statement dated 4.2.1998. The factum that, he was actually won over by the accused, and sided with her, was duly proved, when he was examined by her (accused), as DW-2. Crl. Appeal No.120-SB of 1999 4 Under these circumstances, in my considered opinion, the Addl. Public Prosecutor for the State, took a wise decision in giving up, such a witness, as he very well knew that, in case, he was examined, he would damage the case of the prosecution. Chaman Lal, independent witness, when examined by the accused as DW-2, during the course of examination-in-chief, no doubt, stated that no recovery was effected, in his presence, from the accused, but at the same time stated that his signatures were obtained on various documents, in the Police Station, but he was not made to understand the same. Such a statement made by this witness, cannot be given any credence. Since, this witness signed the documents, it could not be expected of him, not to go through the same, before actually appending his signatures. No complaint was made by him, to the higher Police authorities, that no recovery was effected from the accused, and his signatures were obtained by the Police, on blank documents. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference can be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements and giving up of the public witnesses, as won over, is fully justified, in the present day situation prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness was won over by the accused, and only the officials witnesses were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly 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 it. It was further held that civilized people, are generally insensitive, when a crime is Crl. Appeal No.120-SB of 1999 5 committed, even in their presence, and they withdraw from the victim's 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 two individuals, and do not involve themselves in it. The principle of law, laid down, in the said authorities, is fully applicable to the facts of the present case. In this view of the matter, the trial Court was, thus, right in recording conviction and awarding sentence, to the accused. 11. The provisions of Section 50 of the Act, were not applicable to the facts of the instant case. In the instant case, the recovery was not effected from the person of the accused, but from the bags, referred to above. Had the recovery been effected from the person of the accused, then the provisions of Section 50 of the Act, would have been attracted to the instant case. 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 would be attracted. Since, in view of the principle of law, laid down, in the aforesaid authorities, the provisions of Section 50 were not applicable, to the search, in the instant case, the trial Court was, thus, right in recording conviction and awarding sentence, to the accused. 12. It is, no doubt, true that only one sample was drawn, from each bag of the contraband, recovered from the accused. It was not obligatory, upon the Investigating Officer, to draw two samples, from the contraband, recovered from the accused. The samples of contraband, which were drawn by the Crl. Appeal No.120-SB of 1999 6 Investigating Officer, were sufficient for analysis. When the sample parcels were sent to the office of the Chemical Examiner, he found the quantity to be sufficient, and analysed the same. Ultimately, the Chemical Examiner, came to the conclusion, that the samples were of poppy-husk. No prejudice, whatsoever, was caused to the accused, on account of drawing of only one sample, from each of the bags of the contraband, instead of two samples. In this view of the matter, in my considered opinion, the trial Court was right in coming to the conlcusion, that on account of drawing of one sample, from each of the bags, instead of two samples, no prejudice was caused to the accused. After reppraisal of the prosecution evidence, this Court also comes to the same conclusion. The finding of the trial Court, in this regard, is endorsed. 13. The seal after use, in this case, was handed over to Gurnam Singh, HC, by Balbir Singh, ASI. The mere fact that the seal was handed over to Gurnam Singh, HC, could not be said to be sufficient, to entertain a doubt that the sample parcel was tampered with, at any stage. The evidence produced by the prosecution, in this case, is cogent, convincing, reliable, and trustworthy. From the evidence, it was proved, that none tampered with the sample parcels, till the same, reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, to the effect, that the seals, on the exhibits, were intact, on arrival, and agreed with the specimen seals sent. The link evidence, was, therefore, complete. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal, on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal by the Investigating Officer, later on, was not produced as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the trial, and the prosecution case, could not be thrown out, on that score alone. It was further held, in this case, that it was not Crl. Appeal No.120-SB of 1999 7 incumbent upon the Police Officer, to hand over the seal to a third person forthwith, and even, in cases, where he had done so, it was not obligatory for him, to produce such person, as a witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. Non- entrustment of the seal to an independent witness, by Balbir Singh, ASI, and his non-examination, in view of the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, regarding the completion of link evidence, did not at all affect the merits of the case. In this view of the matter, the finding of the trial Court, is endorsed. 14. One of the pleas taken up, in the grounds of appeal, was to the effect that the provisions of Section 42 of the Act, were not complied with, though, Balbir Singh, ASI, received a secret information, against the accused. It may stated here, that the provisions of Section 42 of the Act, were not applicable to the instant case, as the recovery of bags, containing poppy-husk, was effected from an open place, and not from enclosed place, or a vehicle in the enclosed place. With a view to properly deal with this plea, taken up, in the grounds of appeal, it would be appropriate to notice the provisions of Sections 42 and 43 of the Act, which read as under :- “42. Power of entry, search, seizure and arrest without warrant or authorization – (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, olice or any other Crl. Appeal No.120-SB of 1999 8 department of a State Government, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, (a) enter into an search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any which any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of offence under Chapter IV relating to such drug or substance : and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe Crl. Appeal No.120-SB of 1999 9 that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an offence takes down any information in writing under sub-Section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.” “43. Power of seizure and arrest in public place. -- Any officer of any of the department mentioned in Section 42 may -- (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him Crl. Appeal No.120-SB of 1999 10 to be useful, arrest him and any other person in his company. 14-A. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 42, for search, seizure, arrest and detention in any public place, or in transit, in respect of any narcotic drug or psychotropic substance, in respect of which, he has reason to believe that an offence punishable under Chapter IV has been committed, whereas, Section 42 of the Act empowers the Officer for search, seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to concealment of some narcotic, in a vehicle, in transit, then the provisions of Section 43 of the Act are applicable. The word 'public place' has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 15. A Division Bench of this Court in Dharminder Kumar Vs. State of Punjab, 2002(4) RCR (Crl.)278 has held as under :- “Thus it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act.” Crl. Appeal No.120-SB of 1999 11 It is well settled principle of law, that the provisions of a Statute, are to be construed, in harmonious manner, so that none of the same is rendered nugatory. By harmonious construing the provisions of Sections 42 and 43 of the Act, it can be safely concluded, that if a conveyance is intercepted or apprehended at a public place, or in transit, then the provisions of Section 42 of the Act, would not be applicable. 16. It was held in State of Haryana Vs. Jarnail Singh and others 2004 (2) RCR (Crl.) 960 (SC) as under :- “7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public. 8. Sections 42 and 43, therefore, contemplate two difference situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his Crl. Appeal No.120-SB of 1999 12 satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.” 17. In the instant case, Balbir Singh, ASI, was on patrol duty, near village Sarhala Kana, when he received an information from Gurnam Singh, HC, and Som Nath, PHG, that one lady namely Gurmet kaur @ Gejjo, on the unmetalled passage of village Kukran, near the right side of Kutia, in the Forests of Sheesham, is keeping poppy-husk in a large quantity, and she was finding customers. It was also informed that, she could be apprehended, if a raid was conducted. He sent an information, through wireless to Gurpreet Deo, S.P. Headquarter, the then A.S.P. Garhshankar Sub Division, and thereafter, reached the said place. It was, at that time, that the appellant was found sitting on the bags, containing poppy-husk. The recovery was effected from the open place. Thus, the provisions of Section 43 were applicable, and not the provisions of Section 42. In this view of the matter, the trial Court was right in holding that the question of compliance of the provisions of Section 42, did not at all arise, as the same were inapplicable. The trial Court was, thus, right in recording conviction, and awarding sentence, to the accused. 18. The evidence of Chaman Lal, (DW-2), has already been held to be incredible. The evidence of Balbir Singh (DW-1), is also not credible. He stated that the accused was taken away by the Police 2/3 days, prior to 26.7.1996, and, ultimately, a false case was planted against her. During the course of cross-examination, it was stated by him, that he was Namberdar of village Sadiala Kalan. He further stated that, he did not move any written complaint, against the Investigating Officer, or the SHO, for the false implication of the accused, in the instant case. He further stated that he met the DSP alongwith other respectables, regarding the false implication of the accused. In case, actually the accused had been falsely implicated, in the instnt Crl. Appeal No.120-SB of 1999 13 case, Balbir Singh (DW-1), being the Namberdar of the village, would not have kept quiet. He would have certainly moved a written complaint to the SSP, and other higher authorities. Mere silence, on his part, for such a long period, in itself, was sufficient to disbelieve his statement. His statement was rightly disbelived by the trial Court. 19. 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, and are liable to be upheld. 20. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence dated 30.1.1999, are upheld. The bail bonds of the appellant are cancelled. The Chief Judicial Magistrate, Hoshiarpur, shall take necessary steps to comply with the judgment, with due promptitude. April 29, 2008 (SHAM SUNDER) Vimal JUDGE