Crl. Appeal No.1205-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.1205-SB of 2001 Date of Decision : 8.9.2008 Suresh Kumar S/o Piare Lal, ....Appellant resident of Village Nidani. Versus The State of Haryana ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. K.S.Dhaliwal, Advocate, with Mr. Balwinder Singh, Advocate, for the appellant. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 4.7.2001, rendered by the Court of Addl. Sessions Judge, Jind, vide which it convicted the accused/appellant, for the offence, punishable under Sections 18 and 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him 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, under Section 18 of the Act, for having been found in possession of 225 grams opium, and further sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a Crl. Appeal No.1205-SB of 2001 2 fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years, under Section 20 of the Act, for having been found in possession of 1 Kg. 750 grams charas, without any permit or licence. The substantive sentences were, however, ordered to run concurrently. 2. The facts, in brief, are that, on 26.11.1997, Daya Nand, District Inspector of Police, Jind, alongwith other police officials, was present at bus- stand Sindhvi Khera, in connection with patrol duty, and crime detection. When the police party reached at bus-stand Nidani, one person was seen standing there, while having a box of shoes, in his right hand, who on seeing the police party, tried to hide himself, behind a room (kotha), situated at the bus-stand. On suspicion, he was apprehended. On interrogation, he disclosed his identity as Suresh Kumar S/o Piare Lal. Daya Nand, Inspector, suspected that there was some contraband, in the shoe box, being carried by the accused. The search of the said box, was conducted, in the presence of Rajinder Singh, DSP, as a result whereof, 1 kg. 750 grams charas, and 225 grams opium, were recovered therfrom. 50 grams of charas, was taken out as a sample. Similarly, 25 grams of opium, was taken out as a sample, and put into the separate containers. The remaining charas and opium, were put into the separate containers. The samples, and the containers, containing the remaining charas and opium, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Sections 18 and 20 of the Act, was framed against him, to which he pleaded not guilty, Crl. Appeal No.1205-SB of 2001 3 and claimed judicial trial. 4. The prosecution, in support of its case, examined Jai Parkash, HC (PW-1), Rajinder Singh, DSP (PW-2), Daya Nand, Inspector (PW-3), the Investigating Officer, Dharamvir, HC (PW-4), Ravinder Kumar, ASI, (PW-5), Mahavir Singh, Constable (PW-6), and Chander Bhan, Inspector (PW-7). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence, in his defence. 6. After hearing the 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. I have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully. 9. The Counsel for the appellant, at the very outset, submitted that no independent witness was joined, despite availability, and, as such, the case of the prosecution became doubtful. He further submitted that even no effort was made, to join an independent witness. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated here, that it was a chance recovery. No secret information had been received against the accused. When the police party was on patrol duty, all of a sudden, the accused, with a shoe box, appeared, and tried to slip away, but he was apprehended, on suspicion. It was, under these circumstances, that the shoe box was searched, resulting into the recovery of opium and charas, aforesaid. There Crl. Appeal No.1205-SB of 2001 4 is nothing, on record, that at the time of search and seizure, any independent witness was available, at the spot, but he was not joined, intentionally, and deliberately. Joining of an independent witness, after the search and seizure, would have been of no significance, as he would not have been said to be a witness to the search and seizure. Under these circumstances, it is to be seen, as to whether, non-joining of an independent witness, in itself, was sufficient to throw away the case of the prosecution over-board. In the absence of joining of an independent witness, the evidence of the official witnesses, cannot be distrusted and disbelieved. In the face of the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the official witnesses, in the instant case, has been subjected to indepth scrutiny, and nothing came to the fore, which may go to discredit the same. The evidence of the official witnesses, was rightly found to be cogent, convincing, reliable and trustworthy, by the trial Court. The trial Court was right in placing reliance on the same, in coming to the conclusion, that the accused committed the offence, punishable, under Sections 18 and 20 of the Act. This Court after reappraisal of the evidence of the prosecution witnesses, also comes to the same conclusion. 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 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 Crl. Appeal No.1205-SB of 2001 5 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.” 9-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 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. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellant, that the seal after use, in this case, was handed over to Jai Parkash, HC, Reader of the Investigating Officer. He further submitted that, under these circumstances, the possibility of tampering with the sample parcels, until the same reached the office of the Forensic Science Laboratory, could not be ruled out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Daya Nand, Inspector, (PW-3), in his statement, stated that on reaching the Police Station, he produced the accused, alongwith the case-property, before Crl. Appeal No.1205-SB of 2001 6 Chander Bhan, SHO, P.S. Sadar, Jind. He further stated that he verified the factum of recovery, and put his seal 'CB', on the samples, as well as on the box Ex.P-3. He further stated that thereafter, he deposited the case property, with the MHC. It means that the case-property, and the sample parcels, were deposited with the MHC, on the same day, by the Investigating Officer. The case-property, and the sample parcels, therefore, did not remain with the Investigating Officer, after the date of recovery. It, therefore, could not be said that the Investigating Officer, was in possession of the sample parcels, and his subordinate Jai Parkash, HC (PW-1), was in possession of the seal, and there could be tampering with the sample parcels. 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 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. Entrustment of the seal to Jai Parkash, HC, by the Investigating Officer, 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. 11. It was next submitted by the Counsel for the appellant, that there was Crl. Appeal No.1205-SB of 2001 7 a delay of 33 days, in sending the sample parcels, to the office of the Forensic Science Laboratory. He further submitted that the delay of 33 days, in sending the samples, remained unexplained, as a result whereof, it could not be said that the samples were not tampered with, until the same reached the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Forensic Science Laboratory, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence produced by the prosecution, has been subjected to indepth scrutiny, and, as stated above, it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Forensic Science Laboratory. Above all, there is report of the Forensic Science Laboratory, Ex.PJ, which clearly proves that the seals on the samples, were found intact, and tallied with the specimen seal as per forwarding authority. The report of the Forensic Science Laboratory is per-se admissible into evidence, in its entirety, as per the provisions of Section 293 Cr.P.C. The delay in sending the samples, to the office of the Forensic Science Laboratory, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Forensic Science Laboratory, the matter would have been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR Crl. Appeal No.1205-SB of 2001 8 (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In these circumstances, it was held that, in the face of the other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 33 days, in sending the samples to the office of the Forensic Science Laboratory, did not at all matter much. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. The Counsel for the appellant further submitted that the link evidence, in this case, was incomplete. He further submitted that according to Daya Nand, Inspector, the Investigating Officer (PW-3), the case property, and the sample parcels, were sealed with the seal bearing impressions 'SC', 'RS', and 'CB'. He further submitted that according to Mahavir Singh, Constable, (PW-6), the sample parcels, which he took to the office of the Forensic Science Laboratory, bore the seal of 'RC' also. The Counsel for the appellant further submitted that when the seal bearing impression 'RC', was not affixed, on the sample parcels, how the same was found in existence, on the same, as per the statement of Mahavir Singh, Constable (PW-6). He further submitted that this clearly proved that there was tampering with the sample parcels, until the same reached the office of the Forensic Science Laboratory. It appears that, on account of typographical mistake, in-stead of 'RS', the word 'RC', was written, during the course of cross-examination of PW-6. It is evident from Ex.PJ, the report of the Forensic Science Laboratory, that two sealed cloth parcels were received there, which bore three seals, bearing impressions 'SC', two seals, Crl. Appeal No.1205-SB of 2001 9 bearing impression 'CB' and three seals, bearing impression 'RS'. It were the seals, bearing impressions 'RS', 'SC' and 'CB', which were affixed, on the sample parcels. These parcels were deposited in the office of the Forensic Science Laboratory. There can be a clerical, or typographical mistake, at any point of time. The typographical mistake, which occurred during the course of the cross-examination of PW-6, to the effect that the sample parcels, also bore the seal, bearing impression 'RC', could not be given any weight, in the face of other cogent and convincing evidence, produced by the prosecution, as also Ex.PJ, report of the Forensic Science Laboratory. No challenge to the report of the Forensic Science Laboratory, was made by the appellant. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellant, that the accused, as per the prosecution story, was coming in a normal routine, and there was no reason, whatsoever, to suspect that he was carrying some contraband, in the shoe box, which was held by him. He further submitted that, as such, the case of the prosecution, was totally improbable, and unnatural. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It has come in the evidence of Daya Nand, Inspector, the Investigating Officer, and other prosecution witnesses, that, on seeing the police party, the accused tried to hide himself, behind a room (kotha), on the back side of the bus-stand. At that time, he was carrying a shoe box, of red colour, in his right hand. Since, the accused, on seeing the police party, having a guilty conscience, tried to hide himself, behind the room aforesaid suddenly, a suspicion arose, in the mind of an alert Police Inspector, in the name of Daya nand, that there must be some contraband, in the shoe box aforesaid. Under these circumstances, it could not be said that the case of the prosecution, was improbable, or unnatural, in any manner. The case of the prosecution, could be said to be completely probable, Crl. Appeal No.1205-SB of 2001 10 and natural. The prosecution story, inspires confidence, in the mind of the Court. In these circumstances, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. No other point, was urged, by the Counsel for the parties. 15. 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. 16. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 4.7.2001, are upheld. If the accused/appellant is on bail, then his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Jind, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Cr.P.C. and submit compliance report, to this Court, within a period of three months. 8.9.2008 (SHAM SUNDER) Vimal JUDGE