Crl. Appeal No.216-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.216-SB of 2002 Date of Decision : February 28, 2008 1. Jagraj Singh @ Rana S/o Avtar Singh, ....Appellants R/o Village Shankar, Tehsil & Distt. Jalandhar. 2. Balbir @ Bira S/o Chanan Ram, R/o Village Shankar, Tehsil & Distt. Jalandhar. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.K.Dhir, Advocate with Mr. Shivai Dhir, Advocate for the appellant. Mr. O.P.Dabla, AAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence dated 8.1.2002, rendered by the Court of Special Judge, Jalandhar, vide which it convicted the accused/appellants, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced them to undergo rigorous imprisonment for a period of ten years each, and to pay a fine of Rs.1 lac each, and in default of payment of the same, to undergo rigorous imprisonment for another period of three months each. 2. The facts, in brief are that on 28.6.2000, the police party headed by Sucha Singh, SI, and consisting of Pardeep Singh, ASI and other police officials, was present at the Bus Stand Shankar, in connection with patrolling. The Sub Inspector received a secret information, that Balbir Singh and Jagraj Singh were having huge quantity of poppy husk, concealed at the tubewell of Jagraj Singh @ Rana, and if the raid was conducted, the same could be Crl. Appeal No.216-SB of 2002 2 recovered. On the basis of the secret information, ruqa Ex.PD, was sent to the Police Station, on the basis whereof, FIR Ex.PD/1 was registered. Thereafter, the police party went to the pre-disclosed place. On the way Jasdev Singh, Member Panchayat of village Shankar, was also joined. Both the accused were found present, in the room of the tubewell of Jagraj Singh. Gunny bags were also lying there. The accused were apprehended. Search of four gunny bags, was conducted, in accordance with the provisions of law, in the presence of Mandar Singh Sandhu, DSP, Nakodar, who was called to the spot. On search of the gunny bags, the same were found containing 30 kgs. Poppy-husk each. A sample of 250 grams was separated from each of the gunny bags. The remaining poppy-husk was put into the same gunny bags. The samples and the gunny bags were converted into parcels, duly sealed with the seal bearing impressions 'SS' and 'MS'. Rough site plan of the place of recovery was prepared. The accused were arrested. After the completion of investigation, the accused were chaulaned. 3. On their 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 them, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Mandar Singh, DSP (PW-1), Sohan Lal, Constable (PW-2), Sucha Singh, SI, (PW-3), Pardip Singh, ASI (PW-4), and Arjan Singh, HC, (PW-5). Thereafter, the Addl. PP for the State, closed the prosecution evidence. 5. The statements of the accused under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, did not lead any defence evidence. Crl. Appeal No.216-SB of 2002 3 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/appellants. 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 appellants, at the very outset, submitted that the mandatory provisions of Section 50 of the Act, were not complied with, and as such, the investigation, as also the subsequent proceedings, stood vitiated. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In this case, the recovery was not effected from the person of the accused, but from the gunny bags, which they had kept in the tubewell room. Had the recovery been effected from the search of the person of the accused, it would have been said that there was some force in the argument advanced by the Counsel for the accused. 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 submission of the Counsel Crl. Appeal No.216-SB of 2002 4 for the appellants, being without merit, must fail, and the same stands rejected. 10. It was next contended by the Counsel for the appellants, that the mandatory provisions of Section 42 of the Act, were not complied with, as a result whereof, the investigation as also the subsequent proceedings, stood vitiated. The submission of the Counsel for the appellants, in this regard, also does not appear to be correct. No doubt, the Sub Inspector, received a secret information against the accused, that they were in possession of a big haul of poppy husk, and if the raid was conducted, at their tubewell, recovery of huge quantity of contraband, could be effected from them. In this case, on receipt of the secret information, against the accused, that they were in possession of a big haul of poppy-husk, Sucha Singh, SI/S.H.O. Recorded ruqa Ex.PD, embodying the secret information therein. The said ruqa was sent to the Police Station, which formed the basis of the FIR. At the same time, he sent a wireless message to Mandar Singh Sandhu, DSP, Nakodar, disclosing him the facts and circumstances of the case, and secret information, received by him, against the accused, for keeping in their possession a big haul of contraband. Mandar Singh Sandhu, DSP, also reached the spot. It was in his presence that the recovery was effected from the tubewell room, where the accused were found sitting. It means that the secret information was reduced into writing and due intimation thereof, was also given to the Officer superior i.e. DSP. As such, it could not be said that there was non-compliance with the provisions of Section 42 of the Act. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellants, that Jasdev Singh, public witness, was joined by the Investigating Officer, at the time of raid and recovery, but he was given up, as won over by the Addl. PP for the State, as a result whereof, prejudice was caused to the accused. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court Crl. Appeal No.216-SB of 2002 5 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 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 submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellants, that ownership of the tubewell was not verified by the Investigating Officer. Even if, it is taken that the ownership of the tubewell was not verified by the Investigating Officer, that did not mean that the accused were not found in conscious possession of the bags, containing poppy-husk. The accused were found present, in that room, in which the bags containing poppy-husk, were lying. They were, therefore, in constructive possession and control over these Crl. Appeal No.216-SB of 2002 6 bags. Once, the possession of the accused, in respect of the bags, containing poppy-husk was proved, then the presumption under Section 35 and 54 of the Act, operated against them, that they were in conscious possession thereof. It was for them to rebut that presumption, by leading cogent and convincing evidence, but they failed to do so. By taking the only plea that they were falsely implicated in the present case, the presumption, referred to hereinbefore, was not rebutted. The mere fact that the Investigating Officer committed some irregularity or illegality, during the course of investigation, by not verifying the ownership of the tubewell, did not mean that the benefit of the same, should go to the accused. If, such like irregularity or illegality of the Investigating Officer, is taken into consideration, then in every case, a dishonest Investigating Officer would commit such irregularity or illegality, with a view to help the accused to defeat the ends of justice. No doubt was cast, on the prosecution story, on account of this irregularity, having been committed by the Investigating Officer. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 13. It was next contended by the Counsel for the appellants, that no sample seal was prepared at the spot. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Sucha Singh, SI, in his statement stated that after taking out the samples from the bags, the remaining poppy-husk was put in the same bags. The samples and the bags, were converted into parcels. He further stated that the samples and the gunny bags were sealed with the seal bearing impression 'SS' belonging to him and 'MS' belonging to the DSP. He further, in clear cut terms, stated that the sample seal impression was prepared. He further stated that the sample parcels, gunny bags, and the sample seal, were taken into possession, vide memo Ex.PC, attested by the PWs. He further stated that, on reaching the Police Station, he deposited the case property, samples and the sample seal, with the MHC. Under these Crl. Appeal No.216-SB of 2002 7 circumstances, it could be very well said that the sample seal was prepared and deposited with the MHC, and even the same was sent to the Chemical Examiner, who found the seals on the samples tallying with the sample seal. The submission of the counsel for the appellants is, thus, rejected. 14. No other point, was urged, on the behalf of 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 8.1.2002, are upheld. The bail bonds of the appellants are cancelled. The Chief Judicial Magistrate, Jalandhar, shall take necessary steps to comply with the judgment, with due promptitude. February 28, 2008 (SHAM SUNDER) Vimal JUDGE