Criminal Appeal No. 166-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 166-SB of 2004 Date of Decision: 06.05.2010 Bhajan Singh son of Gurbax Singh, Agriculturist, r/o village Motlewala, District Muktsar, Punjab. ... Appellant Versus The State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Satish Batra, Advocate, for Mr. J.S. Brar, Advocate, for the appellant. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgment of conviction and the order of sentence, dated 21.11.03, rendered by the Court of Sessions Judge, Faridkot, vide which, it convicted the accused (now appellant), 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 lac, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 01 year, for having been found Criminal Appeal No. 166-SB of 2004 2 in possession of 5 kgs opium, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 25.04.02, Balbir Singh, Assistant Sub Inspector, alongwith Bhupinder Singh, Head Constable, Basant Singh, Assistant Sub Inspector, and some other Police officials, was on patrol duty, and going, in a government gypsy, from village Motlewala towards village Wattu, and, when the Police party, reached in the area of village Marrarh Kalan, one Didar Singh, met it, who was joined as an independent witness. Thereafter, when the Police party, further proceeded towards village Wattu, and reached near the bridge of two canals, Bhajan Singh, accused, was seeing coming, carrying a bag, in his right hand, who on seeing it, retreated, but was overpowered on suspicion. Balbir Singh, Assistant Sub Inspector, apprised the accused, that he suspected some contraband, in the bag, being carried by him and wanted to search the same. Consequently, on search of the bag, in the presence of Manjit Inder Singh, Deputy Superintendent of Police (Headquarter), Muktsar, who was called to the spot, 5 kgs opium, wrapped in a glazed paper, was recovered. A sample of 20 gms, was separated therefrom, and the remaining opium, was kept in a plastic 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. Personal search of the accused, led to the recovery of currency notes worth Rs. 200/-, which were also taken into possession, vide a separate recovery memo. Site Criminal Appeal No. 166-SB of 2004 3 plan of the place of recovery was prepared. Ruqa was sent to the Police Station, on the basis whereof, the first information report was registered. The accused was arrested. After the completion of investigation, he was challaned. 3. On his appearance, in the Court, the accused, was supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 18 of the Act, was framed, against the accused, which was read-over and explained to him, to which, he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Didar Singh (PW1), Basant Singh, Assistant Sub Inspector (PW2), Nagor Singh, Deputy Superintendent of Police (Retired) (PW3), Balbir Singh, Assistant Sub Inspector (PW4), Investigating Officer, Pritam Singh, Head Constable (PW5), Gurtej Singh, Constable (PW6), and, Manjit Inder Singh, Deputy Superintendent of Police, Muktsar (PW7), a witness to the recovery. Thereafter, the prosecution evidence was closed. 6. 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. It was stated by him that, he was brought, from his house, on 24.04.02, at 9.00 PM, by Balbir Singh, Assistant Sub Inspector, and, at that time, respectables of the village, including Sarpanch and Nachhattar Singh, Ex-Sarpanch, Kikkar Singh, Criminal Appeal No. 166-SB of 2004 4 Chowkidar and others, reached the spot. It was further stated by him that, nothing incriminating, was recovered, from his house. It was further stated by him that, he being a folk singer, Balbir Singh, Assistant Sub Inspector, wanted him, to perform a stage show free of costs, to which, he refused, as a result whereof, he got infuriated and threatened to teach him a lesson. It was further stated by him that, a few days, prior to the alleged occurrence, in the presence of the Panchayat, Balbir Singh, Assistant Sub Inspector, stated that, he would teach him a lesson. It was further stated by him that, no recovery, was effected from him. It was further stated by him that, no such alleged seizure ever took place. It was further stated by him that, his signatures, were obtained, on some blank papers, under coercion, in the Police Station. It was further stated by him that, the alleged recovery, had been foisted upon him. He, however, examined Ajmer Singh (DW1), Darshan Singh (DW2), Kikkar Singh (DW3), Nachhattar Singh (DW4), Pritam Singh (DW5), Avtar Singh (DW6), Dalip Singh Sachdeva, Draftsman (Civil), Muktsar (DW7), Mukhtiar Singh (DW8), and, Baldev Singh (DW9), in his defence. Thereafter, he closed his defence evidence. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above . 8. Feeling aggrieved, the instant appeal, has been filed by the appellant. Criminal Appeal No. 166-SB of 2004 5 9. The appellant, died, during the pendency of appeal. Death certificate (Annexure A) of Bhajan Singh @ Harbhajan Singh son of Gurbaksh Singh, appellant, was submitted, by the Counsel for the respondent, which was taken on record. According to the death certificate, the appellant, died, on 18.09.09, and, his death, was registered, on 25.09.09. 10. Since the appeal, had also been filed, by the appellant, against the order of imposition of sentence of fine, it could not abate, as a whole, in view of the provisions of Section 394(2) of the Code of Criminal Procedure. Under these circumstances, the Counsel for the appellant, submitted that, he would address arguments, on merits. 11. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 12. The Counsel for the appellant, at the very outset, submitted that, there was complete non-compliance with the mandatory provisions of Section 50 of the Act, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In the instant case, the recovery, was not effected, from the person of the accused, but, from the bag, which, he was carrying, at that time. Under these circumstances, the provisions of Section 50 of the Act, were not applicable, to the instant case. 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 Criminal Appeal No. 166-SB of 2004 6 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. The submission of the Counsel for the appellant, thus, being without substance stands rejected. 13. It was next submitted by the Counsel for the appellant, that Didar Singh, independent witness, though joined, at the time of effecting the alleged recovery, from the accused, yet, he did not support the case of the prosecution. He further submitted that, Didar Singh, independent witness, was put such questions, as are put, during the course of cross-examination, by the Additional Public Prosecutor, for the State, with the permission of the Court, but, even during such cross- examination, he did not support the case of the prosecution. He further submitted that, under these circumstances, the case of the prosecution, became highly doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, Didar Singh was examined, as PW1, but, he did not support the case of the prosecution, for the reasons best known to him. However, during the course of his cross-examination, it was stated by him, that he had studied upto 7th standard and knew Punjabi language. He further stated that, he could read and write Punjabi. He, however, stated that, he did not go through the contents of the documents P1 to P4, prepared at the spot, and, signed the same. In case, these documents, were blank, and Didar Singh, was forced, to sign the same, he had many occasions, to Criminal Appeal No. 166-SB of 2004 7 make a complaint, to the higher Police officers, or the higher administrative authorities, against the high-handedness of the Police officials, who allegedly arrested the accused. He, however, did not make any such complaint. It could not be expected of him, to sign the blank papers, especially when, he had studied upto 7th standard. Since he sided with the accused, during the course of the trial, he chose to speak him. The question arises, as to whether, the sole statement of an independent witness, who opts, to resile and supports the case of the accused, could be sufficient, to throw away the case of the prosecution over-board. The answer, to this question, is in the negative. The Court, is required, to carefully scrutinize the evidence of the prosecution witnesses. The evidence of Basant Singh, Assistant Sub Inspector (PW2), Nagor Singh, Deputy Superintendent of Police (Retired) (PW3), Balbir Singh, Assistant Sub Inspector (PW4), Investigating Officer, Pritam Singh, Head Constable (PW5), Gurtej Singh, Constable (PW6), and, Manjit Inder Singh, Deputy Superintendent of Police, Muktsar (PW7), on perusal, clearly goes, to show, that the accused, was arrested and 5 kgs opium, was recovered, from him. The recovery of opium, was effected, in the presence of Manjit Inder Singh, Deputy Superintendent of Police, a Gazetted Officer. Under these circumstances, the statement of Didar Singh, independent witness, who did not support the case of the prosecution, cannot be given any significance. In State of Rajasthan Vs. Udai Lal 2008(2) RCR (Crl.) (S.C.) 956, four independent witnesses were joined and examined. Criminal Appeal No. 166-SB of 2004 8 They resiled from their statements. However, the Police officials, supported the case of the prosecution. In these circumstances, it was held by the Apex Court, that conviction on the evidence of the official witnesses, notwithstanding the fact that the independent witnesses resiled could be recorded, as the evidence is required to be weighed and not counted. Ultimately, the Apex Court, set aside the judgement of acquittal, rendered by the High Court, and restored the judgement of conviction recorded by the trial Court. 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 CFSL Form, was not prepared, at the spot, and, as such, the possibility of tampering with the sample, until the same reached the office of the Chemical Examiner, could not be ruled out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is no provision of law, that CFSL Form, should be prepared, at the spot. The CFSL Form, is required, to be sent alongwith the sample parcel. It was prepared, at that time, as is evident, from the report of the Chemical Examiner. The other evidence, produced by the prosecution, clearly proved that, none tampered with the sample parcel, until the same remained, in the custody of the Investigating Officer and the Moharrir Head Constable. Non-preparation of CFSL Form, at the spot, which is not the requirement of law, did not at all cause any dent, in the prosecution story, which was otherwise proved, beyond a reasonable Criminal Appeal No. 166-SB of 2004 9 doubt, from the cogent, convincing, reliable and trustworthy evidence. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. No other point, was urged, by the Counsel for the parties. 16. For the reasons recorded above, the appeal, is partly accepted. The judgement of conviction is maintained. The appeal, qua the order of substantive sentence, and sentence awarded, in default of payment of fine, shall abate, as the appellant, has since demised. 17. The order imposing the sentence of fine, shall remain intact. The amount of fine, shall be recovered, from the estate of the accused (deceased), if any, inherited by his legal heirs, on his death. 18. The Chief Judicial Magistrate, is directed, to comply with the judegment, in accordance with the provisions of law, and submit the compliance report within 02 months. 06.05.2010 (SHAM SUNDER) AMODH JUDGE