Criminal Appeal No. 1177-SB of 1999. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1177-SB of 1999 Date of Decision: September 29, 2008 Shamsher Singh, s/o Ajaib Singh, r/o Arya Mohalla, Zira, District Ferozepor (Punjab). ... Appellant Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.K. Gupta, Advocate for the appellant. Mr. S.S. Bhullar, D.A.G., Punjab for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence, dated 20.10.1999, rendered by the Court of Additional Sessions Judge, Muktsar, vide which it convicted the accused, for the offence punishable under Section 18 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the Act only) and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of RS. 1,00,000/-, in default to undergo rigorous imprisonment for a period of one year, for having been found in possession of 7 kgs opium, without any permit or license. 2. The facts, in brief, are that on 20.10.1996, Kirpal Singh, ASI, SHO Police Station Lambi, accompanied by ASI Baldev Singh, and other Criminal Appeal No. 1177-SB of 1999. 2 police officials, after patrolling villages Khiauwali, Bannawala and Kakhanwali, was present, in the area of village Kakhanwali, where Gurdip Singh, s/o Surjan Singh, r/o village Kakhanwali, met them. He was also joined with the police party. On the directions of Harbhaj Ram, DSP, Halqa Malout, ASI Kirpal Singh was holding a picket, on the middle bank of canals, in the area of village Kakhanwali. At about 4.00 P.M., a blue colored Gypsy was seen coming on the middle bank of the canals, towards the bridge, from the side of village Middukhera. On noticing the police party, the driver of the Gypsy, suddenly stopped it. The accused, who was driving the Gypsy, was apprehended by ASI Kirpal Singh, when he was trying to run away, with the gunny bag lying by his side. The person sitting by the side of the accused with a bag, was apprehended by ASI Baldev Singh, with the help of other police officials. ASI Kirpal Singh then searched the bag, being carried by Shamsher Singh, accused, in accordance with law, in the presence of Harbhaj Ram, DSP, Malout, to whom message was sent, as a result whereof, he reached the spot. On search of the bag, 7 kgs opium was recovered. A sample of 20 gms was taken out, and the remaining opium, was put into a separate container. The sample and the container, containing the remaining opium, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. From the other accused Jagsir Singh, ASI Baldev Singh recovered 3 kgs opium, and a separate case was registered against him. Gypsy bearing registration No. JKR-8991 alongwith driving license exhibit P1 of Shamsher Singh, accused, was also taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the FIR was recorded. The accused was arrested. The site plan was prepared. After the completion of investigation, the accused was challaned. Criminal Appeal No. 1177-SB of 1999. 3 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. 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 Mr. R.S. Rai, SDJM, Giddarbaha (PW-1), HC Nirbhai Singh (PW-2), Major Singh, Clerk, DTO Office, Ferozepore (PW-3), DSP Harbhaj Ram (PW-4), ASI Kirpal Singh (PW-5), ASI Des Raj (PW-6) and C. Bhajan Singh (PW-7). Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he was brought from the house of Dara Singh of village Middu Khera, as an altercation had taken place, between him, and the police officials, and this case was planted against him. He also examined Dara Singh, s/o Dayal Singh, DW-1, in defence. Thereafter, he closed his defence evidence. 6. After hearing the Additional 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 above. 7. Feeling aggrieved, the instant appeal, was filed by the appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, submitted that though a secret Criminal Appeal No. 1177-SB of 1999. 4 information was received, yet the same was neither reduced into writing, nor sent to the superior Officer immediately, and, thus, there was violation of the mandatory provisions of Section 42 of the Act, resulting into vitiation of trial, conviction and sentence. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is nothing, in the statement of Kirpal Singh, ASI, the Investigating Officer, who appeared as PW-5, that any secret information had been received, against the accused, that he was coming with a big haul of opium and, if a raid was conducted or a picket was held, he could be apprehended, with the same. Even, in the Ruqa, there is nothing to indicate, that any secret information had been received against the accused, specifically, that he was coming with a big haul of opium, and could be apprehended, if a raid was conducted, or a picket was held. Harbhaj Ram, retired DSP, PW-4, also did not state even a single word, in his statement, that any secret information had been received by him, or by Kirpal Singh, ASI, SHO, the Investigating Officer, that the accused was coming with a big haul of opium, and he could be apprehended, in case, a raid was conducted, or a picket was held. It, therefore, cannot be said that any secret information had been received by Kirpal Singh, ASI, the Investigating Officer. Since no secret information had been received, against the accused, the question of reducing the same into writing, or sending the same to the Officer superior immediately, did not at all arise. Under these circumstances, the provisions under Section 42 of Act, were not applicable to the facts of the instant case. On the other hand, the provisions of Section 43 of the Act, were applicable to the instant case, as the Gypsy, which the accused was driving, and where from, the opium was recovered, was intercepted, when it was in transit, at a public Criminal Appeal No. 1177-SB of 1999. 5 place. Since the provisions of Section 43 of the Act were applicable, to the instant case, neither the trial nor the conviction nor the sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 10. It was next contended by the Counsel for the appellant, that though Gurdip Singh, independent witness, was joined, yet he was not examined by the prosecution, as a result whereof, it could be said that the prosecution withheld the best evidence, in its possession. He further submitted that an adverse inference, could also be drawn, against the prosecution, that had he been examined, he would not have supported the case of the prosecution. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, Gurdip Singh, an independent witness, was joined, by the Investigating Officer, at the time of search and seizure, yet he sided with the accused, during the trial of the case and, as such, he was given up, as won over by the Additional Public Prosecutor of the State, vide statement, dated 01.10.1997, on the basis of application of Paramjit Singh, HC, No. 269 of PP Killianwali, Police Station Lambi, in that regard. The Public Prosecutor for the State, being the master of the case, it was for him, to decide, as to which witness, he wanted to examine, and which witness he did not want to examine. No doubt, he was required to exercise the discretion, vested in him, in giving up a witness, in a bonfide manner. In the instant case, the discretion was exercised by the Additional Public Prosecutor, for the State, in a bonfide manner. The discretion exercised by him, couldn't be said to be arbitrary or capricious. Since, the Additional Public Prosecutor for the State, knew that Gurdip Singh was not going to support the case of the prosecution, and, on the other Criminal Appeal No. 1177-SB of 1999. 6 hand, would damage its case, in case,he was examined, he took a wise decision, in giving him up, as won over. In Masalti and others V/s State of Uttar Pradesh , AIR, 1965 (S.C.) 202 , a judgment rendered by a four Judge Bench of the Apex Court, it was held that it is, undoubtedly, the duty of the prosecution, to lay before the Court, all material evidence available, which is necessary for unfolding its case; but it would be unsound to lay down, as a general rule, that every witness must be examined even though his evidence may not be very material, or even if, it is known, that he has been won over or terrorized. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. In the instant case, the Additional Public Prosecutor for the State, on the basis of application, moved by the Police, came to the conclusion, that Gurdip Singh had been won over, and, in the event of his examination, he would damage the case of the prosecution. He was, thus, within his right, to give him up, as won over. The other evidence, produced by the prosecution, on re-appraisal, has been found to be cogent, convincing, reliable and trustworthy. In this view of the matter, non-examination of Gurdip Singh, independent witness, did not at all affect the merits of the case. The submission of the Counsel for the appellant, being without merit, must fail, and same stands rejected. 11. It was next contended by the Counsel for the appellant, that the presence of Harbhaj Ram, DSP, at the time of alleged search and seizure, was most improbable. He further submitted that there were variations, in the statement under Section 161 Cr.P.C. of Harbhaj Ram, DSP, and the statement made by him, in the Court. The trial Court, took into consideration the variations, which resulted in the statement of Harbhaj Ram, DSP, made in the Court vis-a-vis his statement under Section 161 Criminal Appeal No. 1177-SB of 1999. 7 Cr.P.C. The trial Court, in para No. 22 of its judgment, came to the conclusion that Harbhaj Ram made such variations, with some ulterior motive. The trial Court also came to the conclusion, that in the remaining cross-examination, Harbhaj Ram, DSP, stood the test of touchstone of all probabilities. I have also gone through the variations, in the statement of Harbhaj Ram made by him in the Court vis-a-vis his statement, under Section 161 Cr.P.C. In view of the other cogent and convincing evidence produced by the prosecution, such variations creeping up, in the statement of a single witness, may be due to his malafide intention, or inadvertently, could not affect the fabric of the prosecution case. Some discrepancies were also pointed out, by the Counsel for the appellant, in the statements of other prosecution witnesses, which are mentioned by the trial Court in para No. 20 of its judgment. Those are not being repeated. However, these discrepancies were duly taken into consideration by the trial Court. In my opinion, the trial Court was right in coming to the conclusion, that such like minor discrepancies, were bound to occur, in the statements of the prosecution witnesses, on account of lapse of time, between the recovery and their deposition, in the Court. The recovery, in this case was effected on 20.10.1996, whereas, the statements of the prosecution witnesses were recorded on 23.8.1999 i.e. after the expiry of about three years. In Narotam SinghV/s State of Punjab and another, AIR 1978, Supreme Court, 1542, it was observed that discrepancies do not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction, when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence, and probabilities to reach the conclusion it did. As stated above, the variations, in the statement of Harbhaj Ram, in the court vis-a-vis his Criminal Appeal No. 1177-SB of 1999. 8 statement under Section 161 Cr.P.C., as also the discrepancies, in the statements of the other prosecution witnesses, did not cause a dent in the prosecution story. The submission of the Counsel for the appellant, thus, being without, merit, must fail, and the same stands rejected. 12. It was next submitted by Counsel for the appellant, that the link evidence, in this case, was incomplete. He further submitted that Bhajan Singh, PW-7, through whom the sample parcel was sent to the Chemical Examiner gave his number as 202, Muktsar, whereas, Nirbhai Singh, MHC, PW-2, stated that he handed over the sample to Bhajan Singh, Constable, No. 847. When Bhajan Singh, Constable, appeared as, PW-7, he gave his number as 202. When Bhajan Singh appeared as a witness as, PW-7, if there was any ambiguity with regard to his number, the same could be got clarified by the Counsel for the accused, in the trial Court. However, in his cross-examination, Bhajan Singh, PW-7, clarified that at the time of filing of affidavit exhibit DC (earlier affidavit), No. 202 had not been allotted to him. Exhibit PM, affidavit, sworn by Bhajan Singh, and relied upon by the prosecution, is quite clear to the effect that his number was 202. It may be stated here, that sometimes, with the change of the range of a Constable, his number also changes. It was the Constable concerned, through whom the sample parcel was sent, to the office of the Chemical Examiner. The number he bore hardly mattered. Once, it was proved that it was same Bhajan Singh, whether he had No. 202 or No. 847, through whom the sample parcel was sent to the office of the Chemical Examiner, ambiguity of numbers, paled into insignificance. The evidence produced by the prosecution, thus, was sufficient to prove that none-tampered with the sample parcel, until the same reached the office of the Chemical Examiner. The link evidence was, Criminal Appeal No. 1177-SB of 1999. 9 thus, complete. 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 Chemical Examiner, did not conduct the proper tests, to come to the conclusion, that the sample sent to him, was of opium. He further submitted that the Chemical Examiner did not state, in the report, that the contents of the sample parcel sent to him, constituted a coagulated juice, from papaver plant. He further submitted that, under these circumstances, it could not be said, that the entire bulk was opium. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Section 2 (xv) defines opium. According to Section 2 (xv) of the Act, opium means (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy. The Chemical Examiner, when analysed the contents of the sample parcel, it found mechonic acid therein. It also found morphine to the extent of 4.7 per cent, in the sample parcel. On the basis thereof, the Chemical Examiner came to the conclusion, that it was opium. According to Section 2 (xvi) (e) of the Act, all preparations, containing more than 0.2 per cent of morphine or containing any diacetylmorphine fall within the definition of opium derivative. It was not necessary for the Chemical Examiner, to mention, in the report that the coagulated juice was of papaver plant. In case, the appellant had any doubt, with the regard to the correctness of the report of the Chemical Examiner, which is exhibit PL, he could submit an application, to summon him, for the purpose of cross-examination. He, however, did not do so. The report exhibit PL of the Chemical Examiner, is per-se admissible under Section 293 of the Cr.P.C., in toto. No doubt, can Criminal Appeal No. 1177-SB of 1999. 10 be raised, with regard to the authenticity and correctness of the report exhibit PL of the Chemical Examiner. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellant, that Jagsir Singh, another accused, was also arrested alongwith Shamsher Singh, appellant, in the instant appeal. He further submitted that both the appellants were found in joint possession of opium, and it is not understandable, as to why, separate FIR was registered against him (Jagsir Singh) for having been found in possession of 3 kgs of opium. It was further submitted by him, that Jagsir Singh was acquitted by the trial Court, whereas, Shamsher Singh was convicted by the trial Court. He further submitted that since the recovery was effected, from Shamsher Singh, the present appellant, and Jagsir Singh, accused, who was acquitted by the trial Court, during the course of same transaction, acquittal of one, must lead to the acquittal of the other, otherwise, there will be inconsistent decisions. It may be stated here, that, in his statement under Section 313 Cr.P.C., such a case was not set up by the accused. Even, he did not, during the course of cross-examination of the prosecution witnesses, bring out, as to whether, the recovery was effected from both the accused, during the course of the same transaction, and both the cases, were based on the evidence of the same set of witnesses. Even, during the course of defence evidence, the accused did not set up such a plea, nor did he tender into evidence, the relevant documents of the case of Jagsir Singh. The Counsel for the respondent, however, submitted that the case of both the accused, was not based on the evidence of same set of witnesses. He further submitted that the set of witnesses, in the instant case, Criminal Appeal No. 1177-SB of 1999. 11 was different, whereas, the set of witnesses, in the case of Jagsir Singh, was different. He further submitted that, under these circumstances, even if, the submission of the Counsel for the appellant, is assumed as correct, for the sake of arguments, the acquittal of Jagsir Singh for having been found in possession of 3 kgs of opium, by the trial Court, could not lead to the acquittal of Shamsher Singh, appellant, in this appeal. The submission of the Counsel for the appellant, in this regard, in the absence of any legally admissible evidence, having been brought, on record, to prove such a plea, by the accused cannot be accepted. The Court cannot act on mere conjectures or far-fetched probabilities. The Court is required to act, on the basis of evidence, produced on record. However, since no evidence was produced, on record, by the accused to prove the plea taken up by his Counsel, based on factual matrix, at the time of arguments, cannot be considered to arrive at a particular conclusion. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. The Counsel for the appellant, however, placed reliance on Hari Singh V/s State of Haryana, (1993) 3 Supreme Court Cases, 114, in support of his contention, that since Jagsir Singh was acquitted, for having been found in possession of 3 kgs opium, the present appellant is also entitled to acquittal. The facts of the aforesaid authority, are clearly distinguishable, from the facts of the present case. In that case, one appeal was filed on behalf of Hari Singh and the other appeal was filed on behalf of Satbir Singh and Gulbir. They were put on joint trial alongwith Suresh, Vijender and Virinder, for having committed the murder of Mange Ram on October 7, 1982. Virinder being a minor his trial was separated so that the Criminal Appeal No. 1177-SB of 1999. 12 same may be conducted by the Children Court. The remaining five accused were convicted, for the offences, under Section 302 read with 149, Section 148 and Section 323 read with 149. Sentence of imprisonment for life was imposed upon all the five accused persons, under Section 302 read with 149, whereas, under Section 148 each one of them, was sentenced to undergo rigorous imprisonment for one year, and rigorous imprisonment for three months under Section 323 read with 149. Special Leave Petition (Criminal) No. 2160 of 1985 was filed, on behalf of accused Hari Singh, Suresh and Vijender. In September, 1985, the Apex Court granted special leave to appeal to appellant Hari Singh, but dismissed the said Special Leave Petition so far as Suresh and Vijender were concerned. Leave was granted to appellants Satbir and Gulbir, on a separate Special Leave Petition, filed on their behalf. It was held, under these circumstances, by the Apex Court, that even, in a case, where Special Leave application is rejected, the order of the High Court does not merge in the order of the Apex Court, as is the case, while exercising the appellate power. On behalf of the State, an argument was raised, in the Apex Court, that since the Special Leave Petition of two accused Suresh and Vijender, against whom similar allegations had been made, was rejected, now it was not open to the Court to entertain any plea, on behalf of the three appellants, because it would be deemed that, while dismissing the Special Leave Petition filed, on behalf of Suresh and Vijinder, this Court had affirmed the findings, recorded, in respect of the manner of occurrence and participation of the accused persons, including the three appellants therein. It was further contended, on behalf of the State that, if any-one of the appellants, was acquitted or the conviction and sentence imposed upon them are altered, in Criminal Appeal No. 1177-SB of 1999. 13 any manner, it would lead to inconsistency, in the different orders passed by this Court. Such contention of the State Counsel was rejected by the Apex Court, holding that the appellants to whom the leave had been granted, could urge all questions, within the framework of Article 136 of the Constitution, for consideration, as the relief to which such appellants, may be entitled, could not be denied to them, merely on the ground, that Special Leave Petition, in respect of co-accused, with more or less similar charges, and evidence had already been rejected. It was further held that the Apex Court was not powerless, to correct its error, if it is satisfied, that if such power is not exercised it will lead to manifest injustice, because no man can suffer for the mistake of the Court. It was further held that even under Article 32 of the Constitution, the Apex Court, could exercise power so that there should not be miscarriage of justice, and to avoid a direct conflict and confrontation between two orders of the Court. In the instant case, the factual matrix, is clearly different. As stated above, if any, recovery of opium, was effected, as per the submission made by the Counsel for the appellant, from Jagsir Singh, and on the basis of the evidence of different set of witnesses, he was