Crl. Appeal No. 583-SB of 1998 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 583-SB of 1998 Date of decision. 31.07.2008 Nachhattar Singh son of Chanan Singh son of Sucha Singh, r/o vill. Mandeera, District Faridkot. ....... Appellant Versus The State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Narender Singh Advocate 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 23.05.1998, rendered by the Court of Additional Sessions Judge, Faridkot, vide which it convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and 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 two years, for having been found in possession of 10 bags, each containing 32 Kgs poppy husk, without any permit or licence. Crl. Appeal No. 583-SB of 1998 2 2. The facts, in brief, are that on 04.11.1993 ASI Gurjant Singh along with H.C. Baldev Singh and other police officials, was present in the area of village Gill in connection with patrol duty. A secret information was received that Nachhattar Singh alias Duggar resident of village Mandeeran Nawan, was having poppy husk, which could be recovered in case a raid was conducted. ASI Gurjant Singh sent ruqa Ex.PC to the Police Station, on the basis whereof, FIR Ex.PC/1 was recorded by Gurmeet Singh, ASI. Gurdev Singh son of Jawala Singh, r/o Baghapurana was joined as an independent witness. The house of the accused was raided. He was told about the secret information. The accused was apprised of his legal right to be searched before a Gazetted Officer or a Magistrate. The accused was interrogated. He made a disclosure statement that he had concealed ten bags of poppy husk of which he only knew and could get the same recovered by pointing out. The disclosure statement under Section 27 of the Evidence Act, was recorded, which was duly thumb marked by the accused, and attested by the prosecution witnesses. In pursuance of the disclosure statement, 10 bags each containing 32 Kgs of poppy husk were recovered. A sample of 250 grams of poppy husk, was taken out, from each of the bags. Thereafter, the contents of the samples, were put Crl. Appeal No. 583-SB of 1998 3 into separate packets, and the remaining poppy husk was kept in the same bags. The bags, and the samples, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. The site plan was prepared. The accused was arrested. The Statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 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 Darshan Singh, Sub Inspector/Station House Officer, (PW-1), Gurjant Singh, Assistant Sub Inspector, (PW-2), and Gurdev Singh,LC, (PW-3). The Additional Public Prosecutor for the State tendered into evidence affidavit of Som Parkash, Constable, Ex.PD. Thereafter, the Addl. P.P for the State, closed the prosecution evidence. 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 stated that nothing was recovered from him. He further stated that he was Crl. Appeal No. 583-SB of 1998 4 falsely implicated in the instant case. He further stated that he was brought from his house on 2.11.1993, in the presence of village Panchayat and the instant case was foisted upon him. 5-A In his defence, the accused examined Gurdev Singh son of Jowala Singh DW1 and Gurpreet Singh, MHC, Police Station Baghapurana DW2. Copy of entry in Register No. 19 was also tendered into evidence. Thereafter, the defence evidence was closed. 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 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. 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 Gurdev Singh, independent witness, was joined, but he was not examined. It is, no doubt, true that Gurdev Singh, independent witness, was joined by the Investigating Officer, but he was given up, as won over by the accused, by the Public Prosecutor for the State, vide his Crl. Appeal No. 583-SB of 1998 5 statement dated 5.7.1997. The Public prosecutor for the State, is the master of the case. It is for him to decide, as to whether, he wanted to examine a particular witness, or not. Since, the Public Prosecutor came to the conclusion, that Gurdev Singh, public witness, had sided with the accused, during the course of trial, and, in case, he was examined, he would damage the case of the prosecution, he took a wise decision, to give him up as won over. In my opinion, he rightly gave him up as won over. The evidence of the Investigating Officer, and other prosecution witnesses, has been reappraised, and nothing could be found, during the course of their cross-examination, which may go to discredit the same. The evidence of the prosecution witnesses, is creditworthy, and inspires confidence, in the mind of the Court. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, 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 a public witness, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Crl. Appeal No. 583-SB of 1998 6 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over by the accused, and only the officials were examined, as witnesses for the prosecution, 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 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 appellant, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellant that though a secret information was received by the Investigating Officer, yet he neither reduced the same into writing, nor sent the same to the Officer Superior immediately. He further contended that, as such, there was Crl. Appeal No. 583-SB of 1998 7 breach of the mandatory provisions of Section 42 of the Act, which must result into vitiation of the investigation, as also the subsequent proceedings, and, as such, the accused was entitled to acquittal. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is, proved from the evidence of ASI Gurjant Singh ( PW-2 ), that on receipt of the secret information against the accused ( now appellant ) that he was in possession of poppy husk, ruqa Ex.PC, containing the same ( information ), was sent to the Police Station, on the basis whereof, formal FIR Ex. PC/1 was recorded by Gurmeet Singh, ASI. Copies of the FIR, were sent to the superior Officers. The ruqa contained the details of the information, received by the Investigating Officer. Under these circumstances, there was complete compliance with the provisions of Section 42 of the Act. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellant that though the alleged recovery was effected, in this case, on 04.11.1993, yet the samples were sent to the office of Chemical Examiner on 09.11.1993 i.e. after the delay of five days. He further submitted that there was no explanation, with regard to delay, in sending the samples, to the office of the Chemical Examiner. He further submitted Crl. Appeal No. 583-SB of 1998 8 that, under these circumstances, the possibility of tampering with the samples, until the same reached the office of the Chemical Examiner, could not be ruled out, especially when the seals after use, remained with the police officials. It is, no doubt, true that there is no explanation, with regard to delay. However, mere delay, in itself, is not sufficient to come to the conclusion that the sample parcels were tampered with, until the same reached the office of the Chemical Examiner. The other evidence, produced by the prosecution, is cogent, convincing, reliable and trustworthy. From the other evidence, it was proved that none tampered with the samples, until the same reached the office of the Chemical Examiner. Even, there is report of the Chemical Examiner Ex.PA/A, which clearly proves that the seals on the exhibits were intact on arrival, till the time of their analysis, and agreed with the specimen impression of the seals. The report Ex.PA/A of the Chemical Examiner is per-se admissible, in toto, under Section 293 of the Code of Criminal Procedure. There is no challenge to the report of the Chemical Examiner, in this case. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody. Since, it was proved that none tampered with the samples, Crl. Appeal No. 583-SB of 1998 9 until the same were received, in the office of the Chemical Examiner, the submission of the Counsel for the appellant, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. Since it was proved that none tampered with the sample, until the same reached the office of the Chemical Examiner, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that though the recovery, in this case, was effected from the house of the accused, yet the provisions of Section 100(4) of the Code of Criminal Procedure were not complied with. In the first instance, it may be stated here, that the recovery was not effected from the search of the house of the accused. On the other hand, the recovery of contraband was got effected, by the accused,in pursuance of the disclosure statement, made by him under Section 27 of the Indian Evidence Act. Under these circumstances, the provisions of Section 100(4) of the Code of Criminal Procedure Act were not attracted to the present case. Even if, it is assumed, that the provisions of Section 100 (4) of the Code of Criminal Procedure, were attracted to the instant case, it may be stated here,that it is a matter of common Crl. Appeal No. 583-SB of 1998 10 experience, that the witnesses from the locality, do not come forward, to join the search and seizure with a view to avoid the wrath of the accused and implications at a later stage, while appearing as witnesses in the Court, from time to time. The provisions of Section 100(4) of the Code of Criminal Procedure are not mandatory, in nature. It was for the accused, to show that prejudice was caused to him, on account of non compliance of the provisions of section 100(4) of the Code of Criminal Procedure. No such prejudice was shown to have been caused to the accused on account of for non joining of two witnesses from the locality. In Sunder Singh Vs. State of UP, AIR 1956, Supreme Court, 411, two persons not belonging to the locality, had been joined, at the time of search. It was contended by the Counsel for the appellant, that since the provisions of (Section 103 Cr.P.C. of 1898), now (Section 100(4) Cr.P.C. 1973), were not complied with, at the time of search, the search and the consequent recovery became illegal, and could not be taken into consideration. Repelling the contention, it was held that assuming that the persons, who actually witnessed the search, were not respectable inhabitants of the locality, that circumstance would not invalidate the search. It would only affect the weight of the evidence, in support of the search and recovery. Hence, at the highest, the irregularity in search and Crl. Appeal No. 583-SB of 1998 11 the recovery, in so far as the terms of (Section 103 Cr.P.C. Of 1898) had not been fully complied with, would not affect the legality of the proceedings. In Puran Mal Vs. Director of Inspection (1974) 1 SCC 345, a Constitution Bench of the Apex Court, held that the material obtained by an illegal search, is not inadmissible into evidence, and can be acted upon, to record a conviction. In State Vs. Jasbir Singh (1996) 1 SCC 288, it was held that the evidence collected, in breach of the mandatory requirements, does not become inadmissible. The principle of law, in nut shell, laid down, in the aforesaid authorities, was to the effect, that the provisions of Section 100(4) are not mandatory, in nature, and non- compliance therewith, will not vitiate the investigation and trial. 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 contents of the affidavits, were not put to the accused, in his statement under Section 313 of the Code of Criminal Procedure and, as such, the same could not be read into evidence to prove the link evidence. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. A specific question, was put, to the accused, that on 08.11.1993 the Station House Officer, Crl. Appeal No. 583-SB of 1998 12 sent the samples, through Constable Om Parkash, to the Chemical Examiner, for analysis, who deposited the same, therein, with seals intact. Though the contents of the affidavits were not specifically put to the accused, in his statement under Section 313 of the Code of Criminal Procedure, yet he was made aware of the factum that the samples were sent through Om Parkash, Constable, who deposited the same in the office of the Chemical Examiner with seals intact. Even otherwise, it was held in State of Punjab v. Naib Singh 2001 Crl. L.J. 4659 (SC) that if the contents of the affidavits were not specifically put to the accused in his statement under Section 313 of the Code of Criminal Procedure, it did not mean that he was prejudiced in his defence. It was further held, in the aforesaid authority, that the accused, could not be acquitted, on the ground, that the contents of the affidavits were not specifically put to him, in his statement under Section 313 of the Code of Criminal Procedure. 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. No other point, was urged, by the Counsel for 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 Crl. Appeal No. 583-SB of 1998 13 appreciation of evidence, and law, on the point. The same do not warrant any interference. The same 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 23.05.1998, 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 judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure. July 31, 2008 dinesh (SHAM SUNDER) JUDGE