Crl. Appeal No. 1572-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 1572-SB of 2003 Date of Decision : July 15, 2009 Satbir Singh .... Appellant Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Jitender Dhanda, Advocate for the appellant. Mr. Sidharth Sarup, AAG, Haryana. * * * L. N. MITTAL, J. (Oral) : Satbir Singh has filed this appeal assailing judgment and order dated 28.07.2003 passed by learned Additional Sessions Judge, Fatehabad thereby convicting the appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity - `the Act') and sentencing him to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- and in default thereof, to undergo further rigorous imprisonment for two years. Prosecution case is as under :- On 18.02.1997, SI Karan Singh, SHO of Police Station Bhattu Kalan, along with Constable Ram Chander went in Government vehicle Crl. Appeal No. 1572-SB of 2003 2 with driver Constable Maya Ram to Bus Stand Chuli Kalan, where Head Constable Jagdish, UGC Deva Singh, Constable Jai Singh and Constable Rohtash also met. All of them then reached bridge of Minor Chuli Kalan on Chuli Kalan-Biran road and held nakabandi. Jeep No. DL-5C/6790 came from the side of Biran. Police party signalled it to stop. The jeep driver stopped it at a distance of one acre and all three occupants of the jeep alighted and started running away. Police party chased them and apprehended one of them i.e. Satbir Singh (appellant herein). The remaining two succeeded in escaping. Satbir Singh disclosed their names as Krishan @ Pahadi – driver of the jeep and Mangal Singh. The appellant declined offer for search of the jeep in the presence of Gazetted Officer or Magistrate. SI Karan Singh then searched the jeep and found five jute bags of poppy husk and a sixth bag half full of poppy husk. Samples weighing 100 grams each were separated from the bags. Remaining poppy husk in five bags weighed 39.900 kilograms each and in the half bag weighed 19.900 kilograms. In all, thus, 220 kilograms of poppy husk was recovered. The samples and the bags of remaining poppy husk were sealed with seal bearing impression `KS' and were seized vide recovery memo Ex.P-F. Jeep was separately seized by preparing separate memo. Seal after use was given to Head Constable Jagdish. Ruqa was sent to police station and thereupon FIR was registered. Statements of witnesses were recorded. Other necessary investigation formalities were completed. Krishan @ Pahadi and Mangal were also arrested during investigation. The samples, on analysis by Forensic Science Laboratory (for brevity – FSL), Madhuban vide report Ex.P-L, were found to be of poppy straw (choora-post). After necessary investigation, police presented challan for prosecution of Satbir Singh appellant as well as Krishan @ Pahadi and Mangal Singh. Charge under Section 15 of the Act was framed against all the three accused. They pleaded not guilty and claimed trial. Crl. Appeal No. 1572-SB of 2003 3 To support its case, the prosecution examined seven witnesses. Head Constable Abhey Singh (PW-1) stated that he recorded formal FIR (Ex.P-A/1) on receipt of Ruqa (Ex.P-A). Constable Virender Singh (PW-2) and Constable Dalip Singh (PW-3) tendered their respective affidavits Ex.P-B and Ex.P-C to depict that the case property was not tampered with. Mustaq (PW-4) is owner of the jeep, from which the contraband poppy husk was recovered. He has stated that he had not employed Krishan @ Pahadi as driver for the jeep. This witness was declared hostile. Head Constable Jagdish (PW-5) and Inspector Karan Singh (previously Sub Inspector) (PW-6) broadly stated according to the prosecution version regarding recovery of contraband poppy husk. Mahabir (PW-7), who had allegedly produced Krishan @ Pahadi accused before the police, has turned hostile. The accused in their examination under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. The appellant stated that nothing was recovered from him. He was brought by the police from the house of his uncle in Village Jandwala and kept in illegal custody for two days and then falsely shown to have been arrested in the instant case. He was arrested by the police on the way while he was returning to his home. No evidence was led by the accused in their defence. Learned Additional Sessions Judge, Fatehabad, vide impugned judgment dated 28.07.2003 acquitted Krishan @ Pahadi and Mangal Singh giving them benefit of doubt, but convicted Satbir Singh under Section 15 of the Act and after hearing the parties on sentence, vide order of even date, sentenced the appellant as already noticed. Feeling aggrieved, convict Satbir Singh has filed this appeal. I have heard learned counsel for the parties and perused the case file. Crl. Appeal No. 1572-SB of 2003 4 Head Constable Jagdish (PW-5) and Inspector Karan Singh (PW-6) are the material witnesses. They have broadly supported the prosecution case and stated about recovery of poppy husk from the jeep, from which the appellant along with two other alighted and started fleeing away. Statements of these two witnesses could not be shaken in their cross- examination. They had no reason to implicate the accused falsely in the instant case or to depose falsely against him. Even the appellant has not stated any reason for his false implication. On the other hand, the appellant belongs to Rajasthan and he was apprehended in the area of Police Station Bhattu Kalan in District Hisar. False implication of the appellant is reasonably ruled out. The appellant was apprehended at the spot. The very fact that the appellant along with others alighted from the jeep and started fleeing away shows guilty conscience of the appellant and it would show that the appellant was in conscious possession of the contraband poppy husk. Learned counsel for the appellant contended that there is contradiction in the statements of Head Constable Jagdish (PW-5) and Inspector Karan Singh (PW-6) with regard to the villages to which they had gone before reaching Bus Stand, Chuli Kalan. However, this cannot be said to be contradiction because Inspector Karan Singh (PW-6) along Constable Ram Chander had gone in Government vehicle to Bus Stand, Chuli Kalan, where Head Constable Jagdish (PW-5) along with three other police officials met him. So, the two parties had reached Bus Stand, Chuli Kalan at different times and not simultaneously, from the Police Station. Learned counsel for the appellant vehemently contended that Constable Virender Singh (PW-2) stated in cross-examination that on 25.02.1997, when he took the samples to FSL, objection was raised and the samples were returned as the seal was not properly visible. After removal of objection, the samples were again deposited by this witness in FSL on Crl. Appeal No. 1572-SB of 2003 5 27.02.1997. Similarly, Constable Dalip Singh (PW-3) stated that he had made entry in roznamcha regarding objection raised by FSL and had given copy of the said entry to Investigating Officer. It is contended that Inspector Karan Singh – Investigating Officer has not stated anything about it, nor the said entry has been placed on record. It is also contended that there has been delay in sending the samples to FSL. It is further argued that Head Constable Jagdish (PW-5) and Inspector Karan Singh (PW-6) have not stated that specimen seal impressions had been retained or CFSL form has been prepared. It is also contended that Inspector Karan Singh admitted in cross-examination that the bags produced in the Court did not have the seals intact thereon. Learned counsel for the appellant accordingly contended that the appellant deserves to be acquitted. In support of his contentions, learned counsel for the appellant has relied upon various judgments. In a judgment of Delhi High Court in the case of Ravinder Kapoor @ Ravi vs. State reported as 1991 (3) R.C.R. (Criminal) 357, the prosecution had not led positive evidence as to in whose custody CFSL form remained and that it was not tampered with. In a judgment of this Court in the case of Basir Mohammad vs. State of Haryana reported as 2008 (3) R.C.R. (Criminal) 244, there was delay of 15 days in sending the samples for chemical examination. Also, CFSL form was neither prepared at the spot nor deposited in the Malkhana. In another judgment of this Court in the case of Hakam Singh vs. State of Punjab reported as 2008 (4) R.C.R. (Criminal) 489, seal on some of the bags of contraband poppy husk produced in the Court was in broken condition and some of the bags were in torn condition. In another judgment of Delhi High Court in the case of Radha Kishan vs. State reported as 2001 (1) RCC 157, prosecution failed to prove that sample, contraband article and CFSL form were kept intact till deposit with CFSL. In a judgment by this Court in the case of Ayodhya Parshad vs. State of Haryana reported as 1999 (2) RCC 586, Crl. Appeal No. 1572-SB of 2003 6 there was no evidence regarding fate of sample in custody of a Constable from 30.07.1992 till 02.08.1992 and thus, link evidence was not complete. On the other hand, learned State counsel contends that there was no delay in sending the samples to FSL because the recovery was effected on 18.02.1997 and samples were given to Constable Virender Singh (PW-2) on 24.02.1997 for deposit in FSL. However, FSL raised objection on 25.02.1997 and after removal of objection, the samples were again deposited in FSL on 27.02.1997. It is also contended that complete link evidence has been produced in the case. It is further argued that seals on the bags of poppy husk, when produced in the Court, were not intact because statement of Inspector Karan Singh was recorded on 22.08.2000 i.e. 3½ years after the recovery and during this long intervening period while handling the case property and carrying it to Court on different dates, the seal on the bags got broken. I have carefully considered the rival contentions and perused the case file very carefully. As regards retention of specimen seal impressions or preparation of CFSL form, Constable Dalip Singh (PW-3) in his affidavit Ex.P-C of examination-in-chief has specifically stated that on 18.02.1997, SI Karan Singh had deposited the case property with him along with specimen seal impressions and he had given the sample parcels and specimen seal impressions to Constable Virender Singh for deposit in FSL. Similarly, Constable Virender Singh in his affidavit Ex.P-B of examination- in-chief has stated that the sample parcels along with specimen seal impressions had been handed over to him and he deposited the same in FSL. Both these witnesses were not even cross-examined on this aspect of their examination-in-chief. In addition to it, FSL report Ex.P-L also reveals that the seals on sample parcels were found intact and tallied with the specimen seal impressions, as per forwarding authority. It would also show that Crl. Appeal No. 1572-SB of 2003 7 specimen seal impressions had been deposited with FSL along with samples. Thus, prosecution has led ample evidence to prove that specimen seal impressions had been retained and the same were deposited in Malkhana on 18.02.1997 itself. As regards delay in sending the samples to FSL, there has been no considerable delay because the recovery was effected on 18.02.1997 and the samples were given to Constable Virender Singh on 24.02.1997. There has thus not been any inordinate or abnormal delay in sending the samples to FSL so as to create any doubt about the prosecution case. As regards statement of Constable Virender Singh (PW-2) in cross-examination that FSL raised objection that seal was not properly visible, the same does not create any doubt about the prosecution case because FSL report reveals that the seals were intact and tallied with the specimen seal impressions. As regards the contention that seals on the bags were not intact when produced in the Court, this circumstance also does not cast any suspicion on the prosecution case because recovery was effected on 18.02.1997, whereas Inspector Karan Singh appeared in the witness-box on 22.08.2000 and during this long period of 3½ years, the seals could not have remained intact on the bags of poppy husk because the same were transported from the spot to Malkhana and were again transported from Malkhana to Court on different dates of hearing. The judgments cited by learned counsel for the appellant in support of different contentions are not attracted to the facts and circumstances of the instant case, in view of reasons recorded herein above. For the reasons recorded herein above, I come to the conclusion that the prosecution has been successful in proving its case against the appellant beyond reasonable doubt. Conviction of the appellant is accordingly upheld. As regards sentence, minimum sentence for the offence, as provided under the Act, has been imposed by the trial court and Crl. Appeal No. 1572-SB of 2003 8 therefore, sentence does not warrant any reduction. The appeal is, therefore, dismissed. The appellant, who is on bail, shall surrender to his bail bonds, or shall be arrested to undergo the remaining period of sentence. July 15, 2009 ( L. N. MITTAL ) monika JUDGE