Criminal Appeal No. 1835-SB of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 1835-SB of 2004 Date of decision: _4 th April, 2008 Vijay alias Vaini Ram ... Appellant Versus State of Haryana … Respondent Present: Mr. Atul Lakhanpal, Sr. Advocate with Mr. R.S.Chahal, Advocate for the appellant. Mr.Tarunveer Vashisht, Additional Advocate General, Haryana, for the respondent-State. … CORM: HON’BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J JUDGEMENT: This appeal is directed against the judgment dated 7.9.2004/order of sentence dated 8.9.2004 passed by the Court of learned Additional Sessions Judge, Fatehabad, whereby he convicted and sentenced Vijay alias Vaini Ram, accused-appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year under Section 18 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short, 'the Act'). Shortly put, the facts of the prosecution case are that on 17.9.2001, ASI Ramesh Kumar, among other police officials, happened to be present on the turning point of Village Khara Kheri for Nakabandi and Criminal Appeal No. 1835-SB of 2004 -2- patrolling. The accused was spotted approaching on a motor-cycle. On catching sight of the police party, he abruptly applied brakes and made an attempt to beat a retreat. On suspicion, he was intercepted. He was served with notice under Section 50 of the Act. On search of the motor-cycle, 10 polythene bags containing 10 Kg. 250 grams opium were recovered. Ruqa was sent to the Police Station. On its basis, formal FIR was registered. The investigator prepared the rough site plan showing the place of recovery. After completing usual formalities at the spot, the accused was produced before the S.H.O. On receipt of F.S.L's report, and completion of investigation, the challan was laid in the Court of learned Sub Divisional Judicial Magistrate. He committed the case to Sessions for trial of the accused. On commitment, the accused was charged under Section 18 of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW-1 HC Om Parkash, PW-2 ASI Banwari Lal, PW-3 ASI Ramesh Kumar, PW-4 DSP Ashok Kumar, PW-5 Constable Chanan Ram, PW-6 Inspector Vijay Kumar and closed its evidence. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He did not lead evidence in defence. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. Criminal Appeal No. 1835-SB of 2004 -3- I have heard Mr.Atul Lakhanpal, Senior Advocate appearing on behalf of the appellant, as well as Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, besides going through the record with due care and circumspection. To begin with Mr. Atul Lakhanpal, Senior Advocate appearing on behalf of the appellant, urged with a good deal of force that as alleged by the prosecution, two samples of 25 grams each were drawn from each polythene bag, whereas according to the Exh.P-24, the FSL's report, the weight of 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th bags was 59.00 grams, 57.100 grams, 45.450 grams, 50.300 grams, 56.300 grams, 39.500 grams, 37.900 grams, 53.00 grams, 45.100 grams and 39.400 grams respectively, which tends to show that either the recovery has not been effected in the alleged manner or the samples which were statedly drawn at the spot, were not sent for chemical analysis, instead the sample parcels of some other case were forwarded to the Laboratory. This variance strikes a death knell to the prosecution story. Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, on behalf of the State, countered this argument by urging with great eloquence that as is borne out from the prosecution evidence,the samples were converted into parcels by putting the same into plastic containers due to which, this variation might have come to occur. I have given a deep and thoughtful consideration to the rival contentions. As emanates from the evidence of ASI Ramesh Kumar, PW-3, the investigator, the parcels were sealed with seal RKM, AK and VK. The seals RKM, AK and VK belong to ASI Ramesh Kumar, PW-3, Ashok Criminal Appeal No. 1835-SB of 2004 -4- Kumar DSP and Vijay Kumar SHO respectively. As would be apparent from Exh.P-24, when the sample parcels were received in the Laboratory, the same were found duly sealed with the above seals. Thus, the position which emerges out is that the sample parcels sent for chemical analysis were the same as were prepared at the spot soon after the recovery. The possibility of there being some technical defect in the weighing scale or in the manner of weighing, cannot be ruled out. The recovery being heavier, the weighment of 20 samples may have been done in a hurried manner. The recovery was effected on 17.9.2001. The sample parcels were received in the Laboratory on 20.9.2001. It indicates that the sample parcels were received within three days from the date of recovery. As per Standing Instruction No.1/88 dated 15.3.1988 of the Narcotic Control Bureau, New Delhi, the sample parcel should be sent within 72 hours. Thus obviously in adherence to this Standing Instruction, the samples were despatched without any further delay which rules out the possibility of tampering with their contents. An officer of the rank of Assistant Sub Inspector could not afford to plant such a heavy recovery. It is pertinent to point out here that the accused belongs to village Kalukhere Police Station Baghana Tehsil and District Neemuch (Madya Pradesh). Needless to say he hails from the other State. This circumstance rules out the possibility of roping in the accused falsely. As per Exhibit P-1, affidavit of Om Parkash MHC, PW-1 on 17.9.2001, 20 parcels bearing seals RKM, AK, VK with seals intact were deposited with him by the Investigating Officer, Ramesh Kumar. It is in his cross-examination that there were as many as 80 seals affixed on 20 parcels. It is also in his affidavit, Exh.P-1 that during the period these parcels remained in his custody, the same were not allowed to be tampered with by Criminal Appeal No. 1835-SB of 2004 -5- any one. Further, Constable Chanan Ram,PW-5 has solemnly affirmed that on 20.9.2001, MHC handed over to him 10 sample parcels of opium sealed with RKM, AK and VK along with sample seal for depositing the same with FSL, Madhuban along with road certificate no. 864 dated 20.9.2001 and he deposited the same on the next day and that he had not tampered with the same till these remained in his custody nor he allowed any one to tamper with their seals. This evidence further concatenates the link in the evidence and rules out the possibility of tampering with the contents of the sample parcels. The sum and substance of the testimony of Vijay Kumar, PW-6 is that on 17.9.2001, ASI Ramesh Kumar produced the accused, witnesses and case property before him along with report, Exh.P-15 and after verification of the facts, he affixed his own seal VK on the samples as well as the residue and made his endorsement, Exh. P-23 on the report, Exh. P-15 and gave a direction to ASI Ramesh Kumar to deposit the case property with the MHC. This further goes to show that the case property including the sample parcels was produced before him along with the accused and after verification, he found the same to be correct. Then, it is in the evidence of ASI Ramesh Kumar (sic), that he produced the witnesses, case property and the accused before Vijay Kumar SHO, who verified the fact from the witnesses and the accused and affixed his own seal on all the parcels and directed him to deposit the case property with the MHC. It is also in his evidence that Exhs. P-5 to P-14 are the same parcels in which remainder opium was packed and sealed and that motor-cycle is Exh.P-16. It is worth pointing out here that this motor-cycle was un-numbered. Ashok Kumar DSP, PW-4 has also affirmed the factum of recovery of opium from the accused in his presence. It is also in his evidence that the report under Criminal Appeal No. 1835-SB of 2004 -6- Section 57 was received in his office and he had put his initials on it at point 'A'. In these premises, the contention raised by Mr. Atul Lakhanpal does not hold water. Mr. Lakhanpal further argued that notice, Exh. P-2 as well as reply, Exh. P-3 bear FIR number which goes to show that these documents were prepared at the police station and it is because of this reason that the FIR number was inserted therein. To overcome this submission, Mr. Tarunveer Vashisht, contended that there was nothing unusual in making mention of FIR number on the top of these documents for the reason that the moment the FIR number is informed to the investigator, he puts the same on such documents. This contention merits acceptance. It is a matter of knowledge that the constable sent with the Ruqa returns to the place of recovery with FIR number. The moment he gives the FIR number to the Investigating Officer, the same is filled in the relevant documents by the latter. So, this contention being bereft of any merit, is turned down. Mr. Lakhanpal agitated at the bar that the evidence tendered by the prosecution witnesses does not find corroboration from any independent source and that being so, it would be putting too much premium on their statements to believe them. Mr. Vashisht maintained that by now it is well settled that the evidence of police officials has to be weighed in the same scales as of others. There is substance in this submission. As ruled by the Apex Court in re: Aher Raja Khima v. State of Saurashtra, AIR 1956 Supreme Court 217, “a person acts honestly applies as much to police officer as to any other person and it is not a judicial approach to distrust and suspect him without any good ground. Such an attitude could do good neither to the Magistracy nor to the public. It can only run down the Criminal Appeal No. 1835-SB of 2004 -7- prestige of the police administration.” It is beyond cavil that the evidence of a police official cannot be discredited merely because of his official status. However, his evidence has to be scrutinized with due care and caution. The observations made in re: Balbir Singh v. State of Punjab, Judgement Today 1994 (2) SC 109 may be noted with due advantage. In re: Hoffman Andreas v. Surinder Singh Chadha, 1998 (2) Recent Criminal Reports (Criminal) 70, the conviction was upheld on the basis of official testimony alone. Arguendo, Mr. Lakhanpal could not point out any material discrepancy worth the name from the statements of the prosecution witnesses. A close examination of their statements would reveal that they could not be shattered or shaken in any manner. Rather, they withstood the test of cross-examination successfully. That being so, their evidence being consistent and credible can be relied upon without any demur. Sequelly, this contention is also overruled. No other material point has been urged or agitated by either counsel. As a sequel of the above discussion, this appeal being devoid of any merit, is dismissed. ( HARBANS LAL ) JUDGE 4th April, 2008 RS Whether to be referred to the Reporter ? Yes/No