Crl.A.No.537-DB of 2006 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. Crl.A.No.537-DB of 2006 Date of decision: May 7, 2008 Anup Gupta ...Appellant vs. State of Punjab ..Respondent CORAM: HON'BLE MR.JUSTI CE J.S.KHEHAR. HON'BLE MR.JUSTICE SHAM SUNDER. --- Present: Mr.H.S.Bhullar, Advocate, for the appellant. Mr.V.K.Jindal, Addl.Advocate General, Punjab, for the State. -- J.S.KHEHAR,J. 1. The instant appeal has been filed by the accused/appellant Anup Gupta against the judgment rendered by the Special Judge, Gurdaspur, in Sessions Case No.16 of 2004 decided on 23.12.2005. By the impugned judgment the Special Judge,Gurdaspur, convicted both the accused Ruldu Ram and Anup Gupta under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act). By a separate order passed on the following date i.e. 24.12.2005, both the convicts Ruldu Ram and Anup Gupta, were sentenced to undergo rigorous imprisonment for 12 years and with a fine of Rs.1,00,000/- each under Section 21 of the NDPS Act. In default of payment of fine, the defaulting convict was directed to further undergo rigorous imprisonment for one year. Crl.A.No.537-DB of 2006 2 2. The prosecution version of the incident is based on the statement of SI Paramjit Singh PW2 recorded in the area of village Umarpur near bye pass,Jalandhar Road, adjoining the town of Batala on 24.8.2003. In his aforesaid statement SI Paramjit Singh PW2 asserted that he along with other police officials from Police Station Civil Lines, Batala were holding a “nakabandi” at the Amrtisar bye pass in connection with general checking, when he received secret information that one Ruldu Ram resident of Ujagar Nagar Batala who was a known dealer of smack was to receive a consignment of smack, from Rajasthan, through one Anup Gupta. According to the secret information, if checking of buses and trucks is made, there was a possibility of apprehending the aforesaid persons along with their consignment. On receipt of the information, SI Paramjit Singh PW2 went to Jalandhar bye pass for the purpose of holding a special “naka”. While on their way, the police party spotted two persons coming out of a deserted brick kiln. On seeing the police party the said two persons immediately turned back , thereby, raising a suspicion in the minds of the police party. SI Paramjit Singh PW2 then stopped the two persons, and apprehended them. The aforesaid two persons on inquiry disclosed their identity as Ruldu Ram and Anup Gupta. SI Paramjit Singh PW2 confronted Ruldu Ram and Anup Gupta by asking them whether they were carrying some drugs. On their denial, he asked them (Ruldu Ram and Anup Gupta), whether they desired to get themselves searched by a gazetted officer, or by a magistrate. Both Ruldu Ram and Anup Gupta expressed their desire to get themselves searched by a gazetted officer. Accordingly ,SI Paramjit Singh PW2 sent a wireless message to DSP Narinder Kumar Bedi PW2, with a request, that he should reach the spot where Ruldu Ram and Anup Gupta had been Crl.A.No.537-DB of 2006 3 apprehended. In the meantime Fakir Singh, Sarpanch, who was passing by, was associated with the police party. After some time, DSP Narinder Kumar Bedi PW1 also reached the spot. Yet again DSP Narinder Kumar Bedi PW1, asked the apprehended persons Ruldu Ram and Anup Gupta, whether they would like to get themselves searched by him or by a magistrate, after informing them that he (DSP Narinder Kumar Bedi PW1) was a gazetted officer, and further that, they had the legal right to get themselves searched before a magistrate. According to the statement of SI Paramjit Singh PW2, both Ruldu Ram and Anup Gupta had consented to be searched by DSP Narinder Kumar Bedi PW1. In this behalf, they also affixed their signatures on the consent memo. On being asked by DSP Narinder Kumar Bedi PW1,SI Paramjit Singh PW2 first of all conducted the personal search of Ruldu Ram and recovered one kilogram of brown sugar concealed in a glazed paper from a yellow colour “parna” which he had tied around his waist. Out of the recovered brown sugar 10 grams was separated as sample. The recovered sample, was then put into a small plastic box (“dhabbi”) and the remaining 990 grams was put in another plastic box (“dubba”) along with the glazed paper. Both the aforesaid parcels were sealed with the seal of SI Paramjit Singh PW2 bearing the initials `PS', as well as, with the seal of DSP Narinder Kumar Bedi PW1, with the initials `NSB'. SI Paramjit Singh PW2 then searched Anup Gupta and recovered half a kilogram of brown sugar wrapped in a glazed paper from an attaichi- case which he was holding in his right hand. 10 grams of brown sugar was separated therefrom, as sample, and its parcel was prepared. A separate parcel was also prepared of the remaining 490 grams of brown sugar. Both the parcels were then sealed with the seal of SI Paramjit Singh PW2 bearing Crl.A.No.537-DB of 2006 4 the initials `PS', as well as, with the seal of DSP Narinder Kumar Bedi PW1 with the initials of `NSB'. SI Paramjit Singh PW2 then handed over his seal, to DSP Narinder Kumari Bedi PW1. DSP Narinder Kumari Bedi PW1 retained his own seal with himself. Keeping in view the fact that Ruldu Ram was in possession of one kilogram of brown sugar, and Anup Gupta was in possession of half kilogram of brown sugar, a ruqqa was sent through Constable Gurpreet Singh to Police Station Civil Lines, Batala, for registration of a case. On the basis of the information submitted by SI Paramjit Singh PW1, First Information Report bearing No.106 was registered at Police Station Civil Lines, Batala on 24.8.2003 at 7:00 PM. 3. During the course of investigation SI Paramjit Singh PW2 took into possession the attaichi case belonging to Anup Gupta, out of which half kilogram of brown sugar was recovered (vide recovery memo Exhibit PE), currency notes of Rs.2490/- recovered from Anup Gupta during the course of his “jama talasi” (personal search) (vide recovery memo Exhibit PG), currency notes of Rs.3040/- recovered from Ruldu Ram during the course of his “jama talsi” (personal search) (vide recovery memo Exhibit PF). The Investigating officer also took into possession the yellow “parna” with which Ruldu Ram had tied brown sugar around his waist. SI Paramjit Singh PW2 prepared the rough site plan of the place from where the recovery of the yellow “parna” Exhibit PH, was made. During the interrogation of the accused Ruldu Ram and Anup Gupta, they told the investigating officer SI Paramjit Singh PW2 that the recovered smack had been supplied to them by Tarsem Singh. On the basis of the information furnished by the accused/appellants, SI Paramjit Singh PW2 arrested Tarsem Singh on 1.9.2003 but nothing was recovered from Tarsem Singh, and a memo was Crl.A.No.537-DB of 2006 5 accordingly prepared, to the aforesaid effect. The two samples prepared out of the recovered brown sugar, from Ruldu Ram and Anup Gupta, were then sent to the Chemical Examiner for analysis, who reported that the samples contained 4.9 to 5% diacotyle morphine. After completion of the investigation, the challan against the accused was presented before the Special Judge ,Gurdaspur. 4. The Special Judge, Gurdaspur arrived at the conclusion that a prima facie case punishable under section 21 of the NDPS Act, was made out against the accused Ruldu Ram and Anup Gupta. He however, found no evidence against the accused Tarsem Singh for framing any charges against him, and therefore, Tarsem Singh was discharged from the case at the very inception. The accused Ruldu Ram and Anup Gupta, were however,charged under Section 21 of the NDPS Act. 5. The accused when confronted with the charge framed against them, pleaded not guilty, and claimed trial. 6. During the course of trial, the prosecution examined a number of witnesses.The brief description of the statements of the witnesses produced by the prosecution is being summarized hereunder. The prosecution first of all examined DSP Narinder Kumar Bedi as PW1. Suffice it to state, that DSP Narinder Kumar Bedi PW1 reiterated thefactual position narrated by SI Paramjit Singh PW2 on 24.8.2003, on the basis whereof FIR bearing No.106 was registered on 24.8.2003 at Police Statism Civil Lines, Batala. The prosecution then produced SI Paramjit Singh PW2. SI Paramjit Singh PW2 also reiterated the factual position stated by him, while conveying the written information to Police Station Civil Lines, Batala on 24.8.2003. The statement of ASI Daljit Singh was recorded as PW3.ASI Crl.A.No.537-DB of 2006 6 Daljit Singh PW3 testified that he was accompanying SI Paramjit Singh PW2 on 24,8.2004 when the accused Ruldu Ram and Anup Gupta were stopped and detained, and were searched, and recoveries were made from them. While deposing before the trial Court ASI Daljit Singh PW3 corroborated the factual position asserted by SI Paramjit Singh PW2. The statement of Constable Amarjit Singh was recorded as PW4. He tendered into evidence his affidavit Exhibit PO. A perusal of Exhibit PO reveals that he was required to deposit two samples of ten grams each, taken from the accused Ruldu Ram and Anup Gupta, in the office of the Chemical Examiner, Forensic Science Laboratory,Chandigarh. The cross examination of constable Amarjit Singh PW4 is relevant. In the cross examination Constable Amarjit Singh PW4 stated that he in the first instance on 27.8.2003, had taken two samples and deposited the same in the office of the Chemical Examiner, Forensic Science,Laboratory, Chandigarh, on 28.8.2003, but the office of the Forensic Science Laboratory, Chandigarh returned the said samples with some objections on 29.8.2003 to SI Paramjit Singh PW2. MHC Sardul Singh appeared as PW5 and reiterated the factual position asserted by Constable Amarjit Singh PW4. Constable Kabul Singh appeared before the trial Court as PW6 and tendered into evidence his affidavit Exhibit PP. A perusal thereof would reveal that he had taken the special report and deposited the same with the concerned Magistrate at Batala. After recording the statement of constable Kabul Singh PW6, on the asking of the prosecution, the evidence of the prosecution was closed by order. 7. The statements of the accused/appellants Ruldu Ram and Anup Gupta were then recorded under section 313 of the Code of Criminal Crl.A.No.537-DB of 2006 7 Procedure. Suffice it to state, that when confronted with the incriminating evidence appearing on the record of the case, both the accused denied the correctness thereof. The stance adopted by the accused/appellants Ruldu Ram and Anup Gupta in their defence was, that they were innocent, and that, nothing was recovered from them, and that, a false case was planted on them. 8. The accused Ruldu Ram and Anup Gupta were then afforded an opportunity to lead evidence in their defence. Neither of the accused produced any evidence in their defence. On the statement made by the accused , their defence was closed by order. 9. The Special Judge, Gurdaspur, delivered the judgment in Sessions Case No.16 of 2004 on 23.12.2005. Both the accused Ruldu Ram and Anup Gupta were held guilty of the offence under Section 21 of the NDPS Act. On 24.12.2005, both the accused Ruldu Ram and Anup Gupta were heard on the question of sentence, whereupon, the Special Judge, Gurdaspur, by his order dated 24.12.2005, sentenced both the accused Ruldu Ram and Anup Gupta to undergo rigorous imprisonment for 12 years, and to pay a fine of Rs.1,00,000/- each, under section 21 of the NDPS Act. In default of payment of fine, the defaulting convict(s) were directed to undergo further rigorous imprisonment for a period of one year. 10. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgment rendered by the Special Judge, Gurdaspur, reveal that while convicting the accused Ruldu Ram and Anup Gupta, the trial Court placed reliance on ocular, as well as, expert evidence. In this behalf, it would be pertinent to mention that primarily reliance was placed on the statement of SI Paramjit Singh PW2 and the corroborating Crl.A.No.537-DB of 2006 8 testimony thereof, emerging from the statements of DSP Narinder Kumar Bedi PW1 and ASI Daljit Singh PW3. In so far as the expert evidence is concenred, reliance was placed on the report of the Forensic Science Laboratory, Chandigarh (Exhibit PM), which revealed that on examination of two samples (each containing 10 grams) of a brown substance, it was found that parcel No.1 contained 4.9 % diacetyl morphine, whereas, parcel No.2 contained 5.0% of diacetyl morphine. It would be pertinent to mention, that the report of the Forensic Science Laboratory, Chandigarh, Exhibit PM, also reveals both the samples had two seals each ( a total of four seals) with impression `PS' and `NP'. The noting at Serial No.6 of the report also reveals that the seals on the parcels were intact. 11. In order to assail the finding recorded by the trial Court and in order to establish that the ocular evidence produced by the prosecution was not worthy of credit, learned counsel for the accused/appellant Anup Gupta has raised a number of pleas. Learned counsel for the accused/appellant Anup Gupta has vehemently contended that there is no credible evidence on the record of this case to establish the guilt of the accused/appellant Anup Gupta in respect of the charges levelled against him. In the aforesaid context, three pleas have been raised on behalf of the learned counsel for the accused/appellant Anup Gupta. Each of the pleas is being dealt with in the succeeding paragraphs. 12. The first contention of the learned counsel for the accused/appellant Anup Gupta was that the seals with which the two samples were eventually sent to the Forensic Science Laboratory for chemical analysis, were retained by the DSP Narinder Kumar Bedi PW1, and that, he could have easily tampered with the samples because both the Crl.A.No.537-DB of 2006 9 seals affixed on the two samples were in his possession and custody. In this behalf, it is the contention of the learned counsel for the appellant Anup Gupta that the seals affixed on the samples should have been entrusted to an independent party as for instance Fakir Singh Sarpanch who was associated by the police in the present case. Another contention has been advanced at the behest of the accused/appellant Anup Gupta suggesting an infirmity with the samples deposited with the Forensic Science Laboratory for chemical analysis. In this behalf, reliance has been placed on the statement of Constable Amarjit Singh PW4 wherein during the course of his cross examination, he asserted that he had originally deposited the samples with the Forensic Science Laboratory on 28.8.2003 but the same were returned back with objections on 29.8.2003. 13. We have closely examined the two submissions projected in the first contention advanced by the learned counsel for the accused /appellant Anup Gupta. In so far as the retention of the seals with DSP Narinder Kumar Bedi PW1 is concerned, we are of the view that the plea of tempering with the samples in question can be raised only if it is further shown that DSP Narinder Kumar Bedi PW1 at any stage after the preparation of the samples under reference and the sealing thereof on 24.8.2003, came into possession of the said samples. It is in evidence through the testimony of MHC Sardul Singh PW5 that he had retained the case property in the malkhana with effect from 24.8.2003 till the same was handed over to Constable Amarjit Singh PW4 for onward transmission to the Forensic Science Laboratory, Chandigarh on 27.8.2003. It is, therefore, apparent that there was no occasion for DSP Narinder Kumar Bedi PW1 to have misused the seals in his possession by consigning the contents of the Crl.A.No.537-DB of 2006 10 sealed samples taken from the accused Ruldu Ram and Anup Gupta on 24.8.2003. Accordingly, we find no merit in the instant submission advanced by the learned counsel for the appellants. 14. In so far as the second submission in the first contention of the learned counsel for the accused/appellant is concerned, there was some defect, in the samples, and therefore, the Forensic Science Laboratory, returned the same on 29.8.2003. We are of the view that if there was any doubt about the aforesaid aspect of the matter, it was open to the accused to summon the original record, so that the exact nature of the objections could be brought out. In the absence thereof, we would have to rely on the report Exhibit PM received from the Forensic Science Laboratory,Chandigarh, revealing that the two parcels received for chemical analysis by the Forensic Science Laboratory, were having two seals each, and further that, the seals on the parcels were intact.Thus viewed it is apparent that the objection with which the parcels were returned did not relate to tampering with the samples, as already noticed above, which could have been of any advantage to the accused. Thus viewed, we find no merit in this contention of the learned counsel for the appellant Anup Gupta. 15. The second contention advanced at the hands of the learned counsel for the appellant is that the police party headed by SI Paramjit Singh PW2 had associated Fakir Singh, Sarpanch, who was passing by at the spot from where the accused Ruldu Ram and Anup Gupta were stopped and apprehended. All the formalities of search etc. after the accused were detained, were witnessed by the said Fakir Singh, Sarpanch. Fakir Singh,Sarpanch, was an independent witness having no links either with the accused or the police, and as such, the truth of the matter would have Crl.A.No.537-DB of 2006 11 emerged from the mouth of Fakir Singh, Sarpanch. It is, however, pointed out that the said Fakir Singh was not produced as a witness during the course of recording the prosecution evidence. It is the contention of the learned counsel for the accused/appellant Anup Gupta that non examination of the said independent witness associated by the police at the time of the apprehension of the two accused reveals the infirmity in the prosecution case itself. It is also the contention of the learned counsel for the accused/appellant that an inference should bedrawn in the facts of this case, that if Fakir Singh, Sarpanch, had appeared as a witness, he would have testified against the prosecution version of the incident. 16. We have considered the second submission advanced by the learned counsel for the appellant. The instant aspect of the matter has been considered by this Bench while disposing of Crl.A.No. 720-DB of 2004 (Ajit Singh v. State of Punjab) on 13.2.2008, wherein, so far as the non examination of an independent witness is concerned, it has been inter alia held as under:- “ It was next contended by the learned Counsel for the appellants that Amarjit Singh, PW was joined, but he was not examined and, as such, the case of the prosecution became doubtful. The submission of the learned Counsel for the appellants, in this regard, also does not appear to be correct. No doubt, Amarjit Singh, was joined by the police party by Sikander Singh, Sub Inspector, the Investigating Officer, at the time of recovery. Since, Amarjit Singh joined hands with the accused, during the trial of the case, on the basis of the application, moved by the Investigating Officer, he was given up, as won over, by the Additional Public Prosecutor for the State vide statement dated 10.4.2003. The Public Prosecutor is the master of the case. It is for him to decide as to how many Crl.A.No.537-DB of 2006 12 witnesses he wanted to examine to prove his case. Since, Amarjit Singh was going to damage the case of the prosecution, the Additional Public Prosecutor for the State, thought it better, not to examine him. It was, in these circumstances, that he was given up as won over. 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 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 the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over, by the accused, and only the official witnesses were examined, by 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. In State of NCT o f Delhi versus Sunil (2000) ISCC 748, it was held as under:- “It is an archaic notion that actions of the Police Officers 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 Crl.A.No.537-DB of 2006 13 can not 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”. In view of the above, we are of the view that the non examination of Fakir Singh, Sarpanch, at the hands of the prosecution is not fatal to the prosecution case. We, therefore, find no merit in the second contention advanced by the learned counsel for the appellant. 17. The third and the last submission advanced at the hands of the accused/appellant is that recovery of 500 grams of the narcotic drug/psychotropic substance was allegedly made by the police party from an attaichi-case in possession of the accused/appellant Anup Gupta. On chemical analysis it came to be revealed that the material recovered from him contained 4.9% to 5% diacetyl morphine. On calculation, it is submitted that, the total quantity of the said drug in his possession was 25 grams. 5% of 500 grams comes to 25 grams. It is, accordingly, the contention of the learned counsel for the accused/appellant Anup Gupta, based on the notification issued under clauses (vii-a) and (xxiii-a) of section 2 of the NDPS Act(specifying “small quantity” and “commercial quantity”), that the recovery from the accused/appellant Anup Gupta should be treated as less than “commercial quantity”. In this behalf, reliance has been placed on Serial No.56 in the said notification pertaining to heroin (chemical name whereof is diacetyl morphine), for which column No.5 postulates 5 grams as “small quantity”, and column No.6 postulates 250 grams as “commercial quantity”. It is, therefore, submitted by the learned counsel for the Crl.A.No.537-DB of 2006 14 accused/appellant Anup Gupta, that the trial Court erroneously took into consideration the quantity of heroin found in possession of the accused/appellant Anup Gupta as 500 grams, and held that the drug in his possession was of “commercial quantity”. It is the contention of the learned counsel for the appellant that the quantity of heroin in possession of the accused/appellant Anup Gupta should have been taken as less than “commercial quantity” as only 25 grams of diacetyl morphine was recovered from him. As such, it is submitted that the