Crl. Appeal No.312-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.312-SB of 1997 Date of Decision : April 29, 2008 Inder Singh S/o Pyare Lal, ....Appellant R/o Assand. Versus The State of Haryana ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Baljinder 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 3.4.1997, rendered by the court of Addl. Sessions Judge, Jind, vide which it convicted the accused/appellant, for the offence punishable under Section 18 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, for having been found in possession of 2 Kgs. 500 grams opium, without any permit or licence. 2. The facts, in brief, are that on 3.6.1992, Dharam Singh, SI, alongwith Sat Narain and Jagbir, Head Constables, and other police officials, was on patrol duty, in a private vehicle, from village Lalit Khera, and when the police party reached at the T-point of village Brah Khurd, Inder Singh, accused, was seen standing there, holding a bag, in his left hand. On seeing the police party, he tried to retrace, but was apprehended, on suspicion. The search of the Crl. Appeal No.312-SB of 1997 2 bag, being carried by the accused, was conducted, in accordance with the provisions of law, as a result whereof, 2 Kgs. 500 grams opium, was recovered. A sample of 100 grams of opium, was separated therefrom, and the remaining opium was put into the same bag. The sample, and the bag containing remaining opium, were converted into parcels, duly sealed with the seal, bearing impression 'DSS', and taken into possession. 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 appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 18 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Om Parkash, HC, (PW-1), who recorded the formal FIR, Ex.PA/1, on receipt of ruqa, Ex.PA, Ved Pal, HC (PW-2), with whom the case property and the sample, duly sealed were deposited, alongwith sample seal, and who sent the same for deposit in the office of the Forensic Science Laboratory, Rajpal, Constable (PW-3), who was handed over the sample, duly sealed, alongwith sample seal, and who deposited the same, in the office of the Forensic Science laboratory, Sat Narain, HC (PW- 4), a witness to the recovery, Jagbir Singh, HC (PW-5), another recovery witness, and Dharam Singh, SI (PW-6), the Investigating Officer. Thereafter, the Addl. PP 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. It was stated by him, that no recovery was effected from him. It was further stated by him, that, Dharam Singh, SI, had a dispute with him, at his hotel, regarding the payment Crl. Appeal No.312-SB of 1997 3 of meat, and due to this reason, he was falsely involved in the instant case. The accused tendered into evidence, copy of the order dated 18.12.1996, Ex.DA, and thereafter, 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. 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. He further contended that even no effort was made by the Investigating Officer, to join an independent witness, and, as such, the case of the prosecution, became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Dharam Singh, SI (PW-6), during the course of his cross- examination, stated that no public person had come, during the time the accused, was served with notice under Section 50 of the Act, till the entire proceedings were conducted. He further stated that after 3.00 PM, 3/4 persons had come, and they were asked to join the investigation, of the case, but they showed their inability. It was, under these circumstances, that no independent witness could be joined. It means that genuine efforts were made by the Investigating Officer, at the time of search and seizure, to join an independent witness, but none was ready to join. In these circumstances, it could not be said that, the Investigating Officer, did not deliberately and intentionally join an independent witness. The mere fact that the case of prosecution is based, on the evidence of official witnesses, does not mean that the same should be Crl. Appeal No.312-SB of 1997 4 disbelieved. The evidence of the official witnesses, cannot be distrusted and disbelieved, merely, on account of their official status. 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.” 9-A. In Appa Bai and another Vs. State of Gujrat,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 contended by the Counsel for the appellant, that there Crl. Appeal No.312-SB of 1997 5 was unexplained delay of 7 days, in sending the sample, to the office of the Forensic Science Laboratory, and, as such, it could not be said whether the sample remained untampered with, till it reached the office of the Laboratory. It is, no doubt, true that the recovery, in this case, was effected on 3.6.1992, whereas, the sample was sent to the office of the Forensic Science Laboratory on 10.6.1992 i.e. after a delay of 7 days. Mere delay in sending the sample, in itself, cannot be said to be sufficient to entertain an apprehension, that it must have been tampered with, in between. In such circumstances, the Court is required to fall back upon the evidence, produced by the prosecution. If after indepth scrutiny of the evidence, produced by the prosecution, the Court comes to the conclusion, that the delay in sending the sample, had not at all affected the merits of the case, then such delay pales into insignificance. In the instant case, the cogent, convincing, reliable and trustworthy evidence of the prosecution witnesses, has been subjected to indepth scrutiny. On such an indepth scrutiny of the evidence of the prosecution witnesses, including the report of the Forensic Science Laboratory, the trial Court, came to the conclusion, that delay in sending the sample to the office of the Forensic Science Laboratory, did not affect the merits of the case, nor did it go to prove, in the instant case, that, at any stage, the sample parcel and the case property, were tampered with. This Court, after careful perusal of the evidence, referred to above, also comes to the same conclusion. Therefore, in the instant case, unexplained delay of about 7 days, in sending the sample, 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. 11. It was next submitted by the Counsel for the appellant, that C.F.S.L. form was not filled at the spot. There was no necessity, to fill up the C.F.S.L. form, at the spot. On the other hand, it is evident from Ex.PZ, report of the Crl. Appeal No.312-SB of 1997 6 Forensic Science Laboratory, that the sample parcel, duly sealed, with the seals, which were intact, was received therein. It is further evident from Ex.PZ, the aforesaid report, that the seals on the parcel, tallied with the specimen seals, as per the forwarding authority. This clearly showed that the specimen impression of the seal, was prepared, and the same was sent to the Forensic Science Laboratory, on the basis whereof, it compared the seals on the sample, and came to the conclusion, that the same tallied with the specimen seal. In this view of the matter, no possibility of tampering with the sample, in any manner, could be entertained. Non-preparation of C.F.S.L. form at the spot, therefore, did not in any way, affect the merits of the case. 12. No other point, was urged, on the behalf of the parties. 13. 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. 14. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence dated 3.4.1997, are upheld. The bail bonds of the appellant are cancelled. The Chief Judicial Magistrate, Jind, shall take necessary steps to comply with the judgment, with due promptitude. April 29, 2008 (SHAM SUNDER) Vimal JUDGE