Crl. Appeal No.558-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.558-SB of 1995 Date of Decision : July 23, 2008 Bela Singh S/o Malaghar Singh, ...Appellant R/o Village Sabra. Versus The State of Punjab ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Shammi Khan, Advocate, Amicus Curiae, for the appellant. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 19.8.1995, rendered by the Court of Addl. Sessions Judge, Amritsar, vide which it convicted the accused/appellant, for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him, to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of 2 years, for having been found in possession of 245 Kgs. poppy-husk, without any permit or licence. 2. The facts, in brief, are that on 14.5.1991, Gurnam Singh, ASI, alongwith other police officials, was present at Police Station Sabra, when he received an information that Bela Singh, was dealing in poppy-husk, and that Crl. Appeal No.558-SB of 1995 2 the same could be recovered, from him. On the basis of this information, he sent the ruqa to the Police Station, on the basis whereof, FIR was recorded. Thereafter, he alongwith other police officials, raided the house of the accused, and the accused was found present there. He was taken into custody. On interrogation, he disclosed that he had concealed 7 bags, lying under the heap of chaff, in the cattle shed, of which he knew only, and could get recovered the same, by pointing out. His disclosure statement was reduced into writing, thumb marked by him, and attested by the witnesses. In pursuance of the disclsoure statement, the accused got recovered 7 bags, out of which, five bags contained 35 Kgs. 200 grams poppy-husk each, one was found containing 34 kgs. and 200 grams poppy-husk, and one bag was found containing 36 kgs. And 200 grams poppy-husk. A sample of 200 grams, from each of the bags, was taken out, and the remaining poppy-husk, was put into the same bags. The samples, and the bags, containing the remaining poppy-husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Rough site plan of the place of recovery, was prepared. The statements of the witnesses, were recorded. After the completion of investigation, the accused was challaned. 3. On 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 him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Balkar Singh, Constable, (PW-1), Gurnam Singh, ASI (PW-2), Ram Nath, Inspector, (PW-3), and Inderpal Singh, MHC, (PW-4). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against Crl. Appeal No.558-SB of 1995 3 him, in the prosecution evidence. He pleaded false implication. He, however, examined Gurdev Singh (DW-1), who deposed that the accused was residing in the house, alongwith his brother, and that Bela Singh, and his family also reside in the same house. He further deposed that in the year 1991, the police had conducted the house search of the accused, and had not recovered any incriminating article, but he was taken to Police Station Patti, and was falsely involved in this case. 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/appellant, 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/appellant. 8. The Superintendent, Central Jail, Amritsar, was directed to report, as to whether, the appellant was still in Jail, or had completed his sentence. In pursuance thereof, the Superintendent Central Jail, Amritsar, sent a copy of his duly sworn affidavit, to the effect, that he received a report, from the concerned Police Station, that the said convict, had expired on 9.8.1997, in Civil Hospital, Gharyala (Amritsar). It was further stated, in this affidavit, that before his death, the convict had not completed his sentence. 9. Since, the appeal was also filed, with regard to the sentence of fine imposed upon the appellant, it could not abate in toto, in view of the provisions of Section 394 (2) of the Cr.P.C. In this view of the matter, Mr. Shammi Khan, Advocate, Amicus Curaie, submitted that he would address arguments, in appeal, on merits. 10. I have heard the learned counsel for the parties, and have gone through the evidence and record, of the case, carefully. 11. The Counsel for the appellant, at the very outset, submitted that there Crl. Appeal No.558-SB of 1995 4 was delay of 49 days, in sending the samples, to the office of the Chemical Examiner, which remained unexplained, as a result whereof, it could not be safely held that none tampered with the samples, until the same reached the office of the Chemical Examiner. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence produced by the prosecution, has been subjected to indepth scrutiny, and, it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex.PE, which clearly proves that the seals on the samples, were intact, and agreed with the specimen seals sent. The report of the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions of Section 293. The delay in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples Crl. Appeal No.558-SB of 1995 5 were intact. In these circumstances, it was held that, in the face of the other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 49 days, in sending the samples to the office of the Chemical Examiner, did not at all matter much. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that the house wherefrom the alleged recovery was got effected by the accused, in pursuance of the disclosure statement, made by him, was occupied by a number of persons, and, as such, the exclusive possession of the appellant, in respect of the poppy- husk, was not established. He further submitted that even the appellant, was not found to be in conscious possession of the contraband. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The recovery, in this case, was not effected in an ordinary search. The accused got recovered 7 bags, containing poppy-husk, which he had concealed, under the heap of chaff, in pursuance of his disclosure statement, made under Section 27 of the Evidence Act. He knew the place of concealment of bags, containing poppy-husk. No other occupier of the house, knew about the concealment of the bags, containing poppy-husk. Had the recovery been effected, in an ordinary search, from an open and accessible place, and not from a concealed place, in pursuance of the disclosure statement of the accused, the matter would have been different. In those circumstances, the argument of the Counsel for the appellant, might have been found to be carrying some substance. The trial Court was right in holding, that the accused was in exclusive possession of the bags, containing poppy-husk. The trial Court was also right in holding that the Crl. Appeal No.558-SB of 1995 6 accused was, thus, found in conscious possession of the bags, containing poppy- husk. 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 ruqa, Ex.PC, was sent to the Police Station, at 4.00 PM, through Balkar Singh, Constable, and the FIR was recorded at 4.50 PM. He further submitted that the Illaqa Magistrate, however, recorded the time of receipt of the FIR, on 14.5.1991, the date of alleged recovery, as 4.30 PM. He further submitted that how the copy of FIR, could be received, by the Illaqa Magistrate, before recording the same. He further submitted that this circumstance, clearly showed that the case of the prosecution was completely false. It appears, that the Illaqa Magistrate, inadvertantly, recorded the time, as 4.30 PM, regarding the receipt of a copy of the FIR. When from the other cogent, convincing, and reliable evidence, it was proved that the accused got recovered 7 bags, containing poppy-husk, mere recording of time, as 4.30 PM regarding the receipt of a copy of the FIR, by the Illaqa Magistrate, which could, in all probability, be due to inadvertance, did not cast any doubt, on the prosecution story. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. No other point, was urged, by the Counsel for the parties. 15. From the above discussion, it could be safely held that the trial Court was right, in coming to the conclusion, that the accused, was found in possession of 7 bags, containing poppy-husk, without any permit or licence. The trial Court was also right in coming to the conclusion, that the accused comitted the offence, punishable under Section 15 of the Act. 16. For the reasons recorded, hereinbefore, the appeal of the appellant, qua substantive sentence, and sentence awarded in default of payment of fine, stand abated, on account of his death, on 9.8.1997, as per the information Crl. Appeal No.558-SB of 1995 7 supplied, by the Superintendent, Central Jail, Amritsar. 17. The appeal of the appellant, qua the imposition of sentence of fine, is dismissed. The recovery of fine shall be effected, from the estate of the appellant, if any, inherited by his legal representatives. The Chief Judicial Magistrate, Amritsar, shall take necessary steps, to comply with the judgment, with due promptitude. July 23, 2008 (SHAM SUNDER) Vimal JUDGE