Crl. Appeal No. 587-SB of 2000 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 587-SB of 2000 Date of decision. 31.10.2008 Paul Singh son of Mehar Singh alias Mihan Singh, resident of Nawan Shahr, near Gurudwara Manji Sahib, District Nawanshahr. ....... Appellant Versus The State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Raman B. Garg, Advocate ( Amicus-Curiae ), for the appellant. Mr.Shilesh Gupta, DAG, Punjab for the respondent. **** Sham Sunder, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 03.03.2000, rendered by the Special Judge, Ferozepur, vide which he convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Crl. Appeal No. 587-SB of 2000 2 Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac, in default of payment of fine, to undergo further rigorous imprisonment, for a period of one year, for having been found in possession of 83 Kgs poppy husk, without any permit or licence. 2. The facts, in brief, are that on 27.12.1998 ASI Rajinder Pal along with other police officials, under the supervision of D.S. P. Hans Raj Walia, was present at platform No.1 of Railway Station, in Ferozepur Cantt, in connection with checking of passengers. At about 8.50 AM, train No. 2137 Punjab Mail, came from the side of Bathinda and stopped at platform No.1. Rajinder Pal, ASI, noticed accused Paul Singh taking out two iron boxes of black colour from the wagon. He suspected that the iron boxes , which the accused was taking out of the railway wagon, might be containing some intoxicant. He asked the accused, as to whether, he wanted the search to be conducted, in the presence of a Gazetted Officer or a Magistrate. Consent memo was prepared. Search of the iron boxes, was conducted, in the presence of Hans Raj Walia, DSP, as a result whereof two gunny bags, were recovered. Out of which, one contained 42 Kgs 500 grams poppy husk and the other contained 40 Kgs 500 grams poppy husk. A sample of 250 grams poppy husk, from each of the iron boxes, was taken Crl. Appeal No. 587-SB of 2000 3 out. The samples and the remaining poppy husk were converted into separate parcels, duly sealed, and taken into possession, vide a separate recovery memo. Site plan was prepared. The statements of the witnesses were recorded. The accused was arrested. On receipt of the report of the Chemical Examiner and after the completion of other formalities of investigation, challan against the accused was prepared. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Hans Raj Walia, DSP, (PW-1), a witness to the recovery, Nishan Singh, Sub Inspector,(PW-2), before whom the case property, and the accused were produced, and who after verifying the same, affixed his own seal, Rajinderpal, ASI, (PW-3), the Investigating Officer, Jagtar Singh, HC, ( PW-4 ), a witness to the recovery, and Balwant Singh, Constable, (PW-5 ), who took the samples to the office of the Chemical Examiner and deposited the same. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. Crl. Appeal No. 587-SB of 2000 4 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. 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 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, at the very outset, vehemently contended that no independent witness, was joined despite availability, as a result whereof the case of the prosecution became doubtful. 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, that he was coming with a big haul of poppy husk, and if a Crl. Appeal No. 587-SB of 2000 5 raid was conducted, he could be apprehended. Hans Raj Walia, DSP, (PW-1) during the course of cross-examination, stated that he asked several persons to join the party, but they told that they had no time. He further stated that Rajinderpal, ASI, also asked many persons to join the Police party, but they gave the same reply to him. Rajinderpal, ASI ( PW-3 ), during the course of cross-examination, stated that before the search of iron boxes, being carried by the accused, they made an attempt to join an independent witness, but none was ready to join. It was further stated by him, during the course of cross-examination that Mohinder Singh and Harbans Lal, refused to join the Police party, but no notice was given to them. From the evidence of both these witnesses, one thing becomes very clear, that an attempt was made to join an independent witness, but none was ready to join. There is no evidence, on record, that an independent witness was not intentionally and deliberately joined, by the Investigating Officer. Had no effort been made by the Investigating Officer, to join an independent witness, some merit might have been found, in the contention of the Counsel for the appellant. If despite efforts, having been made by the Investigating Officer, he was not successful, in joining an independent witness, then his conduct could not be said to be blame-worthy. The evidence produced by the prosecution is Crl. Appeal No. 587-SB of 2000 6 trustworthy. 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 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 Crl. Appeal No. 587-SB of 2000 7 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. 9-B. The Counsel for the appellant, however, placed reliance on Sahab Singh alias Sabu v. State of Punjab 1999(1) RCR ( Criminal ), decided by a Single Bench of this Court, to contend that non-joining of an independent witness, must prove fatal to the case of the prosecution. In the aforesaid case, besides non-joining of an independent witness, there were so many other lacunae and infirmities. Taking into consideration all the lacunae and infirmities, the Court came to the conclusion, that the case of the prosecution was doubtful and, ultimately, acquitted the accused. In the instant case, it has been held that an attempt was made to join an independent witness, but none was ready. Therefore, there was no fault, on the part of the Investigating Crl. Appeal No. 587-SB of 2000 8 Officer, in non-joining an independent witness. Even otherwise, it has been held above that the evidence of the prosecution in this case, being cogent, convincing, reliable and trust-worthy, was sufficient to prove its case. No help, therefore, can be drawn, by the Counsel for the appellant, from the authority, cited by him, and referred to above. 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 no question was put to the accused, in his statement under Section 313 Cr.P.C., that he was in conscious possession of the contraband, and, as such, he could not be held guilty for the offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. It may be stated here, that in statement under Section 313 Cr.P.C., only the incriminating circumstances, appearing against the accused, in the prosecution evidence, are required to be put to him. The provisions of law, or the presumption operating under the provisions of law, are not required to be put to him, in the statement under Section 313 Cr.P.C. In the instant case,all the incriminating circumstances, appearing against the accused, in the prosecution evidence, were put to Crl. Appeal No. 587-SB of 2000 9 him. Once he was made aware that he was found in possession of two gunny bags, containing 83 Kgs. Poppy husk, the statutory presumption under Sections 54 and 35 of the Act, started operating against him that he was in conscious possession thereof. In these circumstances, it could not be said that the statement under Section 313 Cr.P.C., of the accused, was not properly recorded. The submission of the Counsel for the appellant, thus, being devoid of merit, is rejected. 11. It was next submitted by the Counsel for the appellant, that the accused being an old man, the sentence awarded to him, be reduced. The submission of the Counsel for the appellant, in this regard, cannot be accepted, for the reason that the recovery, in this case, effected from the accused, falls within the ambit of commercial quantity. The minimum sentence, for having been found in possession of commercial quantity of poppy husk, is provided under Section 15 of the Act. The Court cannot act contrary to the provisions of law by reducing the sentence. Under these circumstances, the sentence awarded to him, cannot be reduced. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. Crl. Appeal No. 587-SB of 2000 10 12. No other point, was urged, by the Counsel for 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. The same 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 03.03.2000, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, within two months, from the date of receipt of a certified copy of the same, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure and send the compliance report immediately thereafter. 15. The District & Sessions Judge, Ferozepur, is also directed to ensure that the directions, referred to above, are complied with, within the time frame, and compliance report is sent immediately thereafter, to this Court. Crl. Appeal No. 587-SB of 2000 11 16. The Registry shall keep track of the compliance of directions, and put up the file, immediately after the expiry of the stipulated period, whether the report is received or not. 31.10.2008 (SHAM SUNDER) dinesh JUDGE