Criminal Appeal No.477-DB of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision : 08.05.2008 Ram Dayal .....Appellant versus State of Haryana .....Respondent CORAM : HON'BLE MR.JUSTICE UMA NATH SINGH. HON'BLE MR.JUSTICE A.N.JINDAL. Present : Mr.S.S.Behl, Advocate, for the appellant. Mr.S.S.Randhawa, Additional Advocate General, Haryana. -.- UMA NATH SINGH, J. This criminal appeal arises out of a judgment dated 02.04.2005 passed by Learned Special Judge, Panipat, in case No.215 of 2002, holding accused-appellant Ram Dayal guilty of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (for short, the NDPS Act) and sentencing him to undergo rigorous imprisonment for 13 years with a fine of Rs.3.00 lacs; in default of payment of fine, to further undergo rigorous imprisonment for 2 years. As per prosecution case, on 23.3.2001, Inspector Dhian Singh, accompanied by other police personnel, was present on patrolling duty at outer gate of bus stand, Panipat. A young man was sighted coming out of the bus stand with a plastic bag in his right hand, and having seen the presence of police, he immediately returned and started walking briskly towards the bus stand. It aroused suspicion in the mind of police personnel that he was carrying some narcotic substance in the bag, therefore, he was stopped by the Inspector and a notice under Section 50 of the Act was served upon him asking for option as to whether he wanted to be Criminal Appeal No.477-DB of 2005 2 searched in the presence of a Gazetted Officer or a Magistrate. The accused gave a written reply opting to be searched in the presence of a Gazetted Officer, whereupon the Investigating Officer telephonically briefed Mr.Kuldeep Singh, Deputy Superintendent of Police, about the matter and requested him to reach there. On arrival of DSP Kuldeep Singh, the accused, with his bag, was produced before him. DSP Kuldeep Singh ordered to search the bag being carried by the accused, whereupon it was searched and found to contain the contraband opium. On weighing, it was found to be 3 kgs. A sample of 50 grams was taken out for chemical analysis. Sample and the bulk quantity were made into two separate parcels and sealed with the seal impression 'DS'. That seal, after use, was handed over to Head Constable Dharambir Singh and the case property was taken into possession vide a recovery memo duly attested by witnesses. A ruqa was sent to police station and pursuant thereto, the FIR was registered. Site plan of scene of recovery was prepared on the spot and on return to police station,the case property was deposited intact with Moharir Head Constable. Sample of contraband was sent to Forensic Science Laboratory and after completion of investigation, a challan was presented. Accused Ram Dayal was charge-sheeted, to which he pleaded not guilty and claimed trial. In order to prove the charge, the prosecution examined six witnesses. They all were police personnel, namely MHC Brij Pal (PW-1), SI Balu Ram (PW-2), DSP Kuldeep Singh (PW-3), DSP Badan Singh Rana(PW-4), Inspector, Dhian Singh (PW5) and Head Constable Dharambir (PW-6). Some other police personnel, who were also cited as witnesses, were given up as unnecessary. The report of Forensic Science Laboratory was tendered in Criminal Appeal No.477-DB of 2005 3 evidence and taken on record. Moharir Head Constable Brijpal Singh (PW1) tendered his evidence on affidavit (Ex.PA). He stated in his cross- examination, that the case property was deposited with him at 4.30 PM. SI Balu Ram (PW2) was posted in Police Station City, Panipat, on 23.3.2001. He received a ruqa (Ex.PB) from Inspector Dhian Singh of CIA Staff, Panipat, and recorded a formal FIR (Ex.PB/1). DSP Kuldeep Singh (PW3) was posted at Samalkha on 23.3.2001. He received a telephonic message from Inspector Dhian Singh on that day about the apprehension of accused appellant on suspicion. The Inspector also informed him that the accused was to be searched before a Magistrate or a Gazetted Officer. This witness reached the spot with his staff and Inspector Dhian Singh produced the accused with case property and witnesses before him. After necessary enquiry, DSP Kuldeep Singh gave a written direction vide Ex.PC to Inspector Dhian Singh to search the bag being carried by the accused. On search, it was found to contain the contraband Opium and on weighment, it was found to be 3 kgs. One sample of 50 grams was taken in his presence and converted into a separate parcel. Bulk opium was put in a separate parcel. Finally, both the parcels were sealed with seal `DS' and taken into possession vide recovery memo (Ex.PD). Recovery memo was singed by the witnesses and attested by the DSP. Seal after use was handed over to HC Dharambir. DSP Kuldeep Singh also affixed his seal `KS' and retained his seal after use. His statement was recorded by the IO and in Court, he identified the parcels (Ex.P1 and Ex.P2). In his cross-examination, he stated that he received a telephonic message at about 10.30 AM and reached the spot at 11.00 AM. He remained at the spot for about one hour. Criminal Appeal No.477-DB of 2005 4 According to him, other police officials, namely, HC Dharambir, HC Vijender, HC Dhyan and other police personnel were present at the spot. He has denied all the defence suggestions contrary to the prosecution case. Badan Singh (PW4) was posted as Inspector/SHO in PS City, Panipat, on 23.3.2001. He had verified the facts regarding arrest of the accused and recovery of contraband on being produced before him by Inspector Dhian Singh. He also identified parcels (Ex.P1 and Ex.P2) in the Court. On completion of investigation, he prepared a report under Section 173 Cr.P.C. and presented in the Court. He had directed Inspector Dhian Singh to deposit the case property with the MHC. He had also affixed his seal on the case property. This witness also denied all the defence suggestions being contrary to the prosecution case. Inspector Dhian Singh (PW5) was posted as Inspector, CIA Staff, Panipat, on 23.3.2001. He was on patrol duty with other police personnel near Bus Stand, Panipat. He has fully supported the prosecution case and also proved the exhibits prepared during investigation, and search and seizure. He had informed DSP Kuldeep Singh and also sent ruqa (Ex.PB) through HC Jai Narayan to the police station. On the basis of ruqa, a formal FIR (Ex.PB/1) was registered. He also recorded the statements of DSP Kuldeep Singh, HC Vijender and HC Dharambir on the spot. He handed over his seal after use to HC Dharambir. He arrested the accused and in the meantime, SHO Badan Singh (PW4), who was on patrol duty, came to the spot. Inspector Dhian Singh produced the accused with case property and the witnesses before him, who after verification, appended his seal `BS' over sample and residue quantity. SHO Badan Singh handed over the case property to Inspector Dhian Singh and asked Criminal Appeal No.477-DB of 2005 5 him to deposit it with the MHC and to lock up the accused. This witness also prepared site plan (Ex.PF) and the case property was exhibited as Ex.P1. In his cross-examination, he has made it clear that he had started at 9.00 AM from the CIA Staff and entered his departure in the roznamcha. He had reached Bus Stand, Panipat, at about 9.30 AM, and the accused was sighted at about 10.00 AM. He has fully supported the prosecution case in cross-examination and also stated that he tried to join independent witnesses in the investigation, but the persons present there expressed their inability to join the investigation. He has also stated that it was not a case of secret information. He has stated that he briefed the DSP at Samalkha on telephone at about 10.30 AM, who reached there at about 11.00 AM. According to him, the DSP remained at the spot till about 11.45 AM. He has clarified that as DSP Rathi at Panipat was not available, therefore, he had summoned the DSP from Samalkha. According to him, sample parcel had four seals of `DS' (Inspector Dhian Singh), one of `BS' (Inspector Badan Singh), and one of `KS' (DSP Kuldeep Singh). He has also stated that recovery memo was signed by HC Dharambir and HC Vijender and attested by DSP Kuldeep Singh. Moreover, he has stated in his cross- examination that he had taken two samples of 50 grams each. Samples were packed in two tin boxes, and the residue quantity was packed in a 5 kg. plastic bag. He also stated that he had sent the ruqa after the departure of DSP Kuldeep Singh, and SHO Badan Singh had also come after the departure of the DSP at about 1.30 PM. His statement was taken by SHO Badan Singh. He has denied all the defence suggestions contrary to the prosecution case. HC Dharambir (PW6) was posted in CIA Staff, Panipat, Criminal Appeal No.477-DB of 2005 6 on the date of search and seizure. He was a member of patrolling party. He has supported the testimonies of Inspector Dhian Singh and other police officials. His statement was recorded as Ex.DB. He has corroborated the time given by Inspector Dhian Singh that they had left from CIA Staff at about 9.00 AM. The accused was apprehended at about 10.00 AM. A phone call was made to the DSP at about 10.30 AM, who reached the spot at about 11.00 AM. Like other prosecution witnesses, he has also supported the prosecution case. Accused Ram Dayal in his statement under Section 313 Cr.P.C. denied all the allegations put to him and pleaded innocence. Besides, he also sought time to lead defence evidence, but finally he closed it without that. Learned trial Judge, on appreciation of evidence on record, vide the impugned judgment held that the prosecution has succeeded to bring home the guilt. Learned counsel for the appellant submitted that there is infirmity in the proceedings of search and seizure of the contraband item inasmuch as only one sample weighing 50 grams, instead of two samples, was taken to be sent for chemical examination. This is also a submission of learned counsel for the appellant that during the investigation, no independent witness was joined and the prosecution in order to prove the charges only examined police officers. His third submission is that the quantity of Morphine as noticed in the test of sample is about 6.440%. Learned counsel also questioned as to why a Gazetted Officer was summoned from Sub Division, Samalkha, and not from Panipat, when the recovery was effected at Panipat. On the other hand, learned Additional Advocate General, Criminal Appeal No.477-DB of 2005 7 Haryana, submitted that, undoubtedly, only one sample of 50 grams was taken for examination, but drawing two samples is only a procedural matter and its violation would certainly not prove fatal to the prosecution case. The practice of taking out two samples is being followed as per administrative instructions for internal circulations issued by Central Narcotic Bureau. Further, non-examination of independent witnesses would not be a ground to discard the prosecution evidence, as it has not caused any prejudice to the rights of accused. On a careful consideration of rival submissions, we are of the view that ordinarily this has been a practice to draw two samples of contraband item at the time of search and seizure as a safeguard that if one sample is damaged, the second would be available for testing or if the accused wants to challenge the test report, the other sample would be available for testing by different laboratory. However, we also notice that in the statement of Inspector Dhian Singh (PW5), he has mentioned in his cross-examinations that he had drawn two samples of 50 grams each. Similarly, Inspector Dhian Singh has also clarified that he wanted to join independent witnesses, but no one was willing to be associated. Moreover, there is no such allegation against the police that it was inimically disposed towards the accused and, thus, there was no reason for the police to have planted a large quantity of 3 kgs opium on him for false implication. As regards the submission that the commercial quantity of opium would depend only upon proportionate quantity of Morphine, in the NDPS Act as also the Rules, there is no such provision to show that the commercial quantity of opium would be determined only on the presence of some specified Criminal Appeal No.477-DB of 2005 8 quantities of its constituents. In the judgment of Hon'ble the Apex Court reported in 2008(2) RCR (Crl.) 597 (E.Micheal Raj versus Intelligence Officer, Narcotic Control Bureau), it is held that the rate of purity is irrelevant for the purpose of determining the quantity of contraband. Besides, all the witnesses are very consistent in their testimonies in regard to search and seizure. They have supported the prosecution case in toto and DSP Kuldeep Singh, Inspector Dhian Singh, Inspector Badan Singh and HC Dharambir have reiterated the prosecution case in lengthy cross- examinations. We do not notice any serious procedural violation so as to discard the prosecution case. Hence, the conviction recorded under Section 18 of the Act against the accused appellant for being found in possession of 3 kgs. of contraband is hereby affirmed. Now coming to the quantum of sentence, since the quantity of contraband is only ½ kg. above the cut off point prescribed for commercial quantity, we are of considered view that the sentence is a little on higher side. Besides, this is an offence of the year 2001 and the accused has remained lodged throughout in jail. Thus, in the interest of justice, the jail sentence is reduced from 13 years' RI to 10 years' RI, and the fine amount from Rs.3.00 lacs to Rs.1.00 lac, with direction that in default of payment of fine, the accused shall undergo a further RI of 1 year. With the aforesaid modification of the quantum of sentence, this Criminal Appeal is dismissed. (UMA NATH SINGH) JUDGE 08-05-2008 (A.N.JINDAL) *mohinder/pk JUDGE