Criminal Appeal No. 1384-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 1384-SB of 2002 Date of decision : 29th February, 2008 Avinash @ Kaka @ Gobindi ... Appellant Versus State of Punjab ... Respondent ... Present: Mr. R. K. Trikha, Advocate for the appellant. Mr. Shilesh Gupta, Deputy Advocate General, Punjab for respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This appeal has been directed against the judgment/order of sentence dated 30.7.2002 rendered by the Court of learned Special Judge, Hoshiarpur, whereby he convicted and sentenced accused-appellant Avinash alias Kaka alias Gobindi to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default thereof, to further undergo rigorous imprisonment for six months under Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). Criminal Appeal No. 1384-SB of 2002 2 Shortly put, the facts of the prosecution case are that on 10.1.2001, Inspector Jaswant Singh accompanied by other police officials including ASI Hardial Singh was proceeding from Bhangi Choe towards vegetable market in connection with patrol duty. When the police party reached on the Bassi Khawaju road, the accused came from the side of Link road carrying a bag in his right hand. On suspicion, he was made to stop. He was apprehended and told that he was suspected to be in possession of contraband in the bag. He was made aware of his right to be searched before a Gazetted Officer or a Magistrate. He expressed his faith in the above mentioned Inspector. PWs Harbans Lal and ASI Ram Kumar were also associated with the police party. The consent memo.,Exh. PA of the accused was prepared. On search of the bag, Charas weighing 5 Kgs. duly wrapped in a glazed paper was recovered. 50 grams of Charas was separated to serve as sample and the same was converted into a parcel. The remainder was too made into a parcel. Both the parcels were sealed with seal bearing impression JS and seized vide memo. The seal, after use, was entrusted to Harbans Lal,PW. The sample forms were filled. The specimen seal impression was prepared. The above mentioned articles were taken into possession vide recovery memo., Exh. PB. The aforesaid Inspector sent Ruqa, Exh. PC to the Police station. On its basis, formal FIR,Exh.PC/1 was recorded. On receipt of wireless message, Baljinder Singh Grewal, SP (D) came at the spot. All the articles along with the accused were produced before him. He broke open the seal of the sample parcel as well as of the bag and affixed his seal bearing impression BSG on the same. The seal after use was retained by him. He also filled up the sample form and prepared the specimen seal impression of his own seal. The aforementioned articles were Criminal Appeal No. 1384-SB of 2002 3 handed over to the Inspector Jaswant Singh by the aforesaid DSP. The Investigator recorded the statements of the witnesses and arrested the accused, prepared the rough site plan, Exh.PF showing the place of recovery. On personal search of the accused, currency notes worth Rs.110/- yielded. The memo. regarding personal search was prepared. The above mentioned Inspector produced the case property before the learned Judicial Magistrate Ist Class, Hoshiarpur, who also put his initials on the bag, Exh.P1. On receipt of chemical examiner's report, Exh.PJ and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused was charged under Section 20 of the Act, to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1-Inspector Jaswant Singh, PW2-MHC Satwinder Singh, PW3-Constable Yash Pal, PW4-ASI Ram Kumar, PW5-DSP Baljinder Singh Grewal and closed its evidence. On close of the prosecution evidence, when examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He did not lead evidence in defence. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. I have heard Mr. R., K. Trikha, Advocate, counsel for the appellant as well as Mr. Shilesh Gupta, Deputy Advocate General, Punjab, Criminal Appeal No. 1384-SB of 2002 4 for the State of Punjab, besides going through the record with due care and circumspection. To begin with Mr. R.K.Trikha, Advocate appearing on behalf of the appellant, valiantly urged that the only independent witness, PW Harbans Lal although joined in the police party, was given up by the prosecution as having been won over by the accused with the result, the prosecution case rests on the testimony of official witnesses only, who are always interested in the success of the case. He further added to it that as per prosecution story, the seal after use, was handed over to Harbans Lal, PW and that being so, it was incumbent upon the prosecution to examine him. To tide over these submissions, Mr. Shilesh Gupta, Deputy Advocate General, Punjab, pressed into service that the said independent witness has been given up on the specific pretext of his having been won over by the accused and such a heavy recovery could not be foisted upon the appellant and that being so, no adverse inference should be drawn against the prosecution for non-production of Harbans Lal, PW at the trial. I have seriously cogitated over these submissions. The possibility cannot at all be ruled out that the witness of the prosecution can later on join hands with the accused and in that eventuality, the prosecution cannot be expected to produce that person as its witness, who to his own knowledge, is not going to support its case. The Hon'ble Supreme Court in Masalti v. State of Uttar Pradesh, AIR 1965 SC 202 held as under :- “ It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it, which is necessary for unfolding its case, but it Criminal Appeal No. 1384-SB of 2002 5 would be unsound to lay down as a general rule that every witness must be examined, even though his evidence may not be very material or even if it is known that he has been won over or terrorised. ” The same view was reiterated in case Bawa Hazi v.State of Kerala, AIR 1974 SC 902. Further, in re: Piara Singh v. The State of Punjab, 1982 (2) C.L.R 447, a Full Bench of this Court ruled as under :- “ Held, that in the ultima ratio criminal trials ordinarily turn and must continue to do so on the credibility and acceptability of the evidence on record. It is not possible to hold that a criminal trial would succeed or fail merely on the technicality of the delivery of an investigating seal to a third person or the latter's refusal or inability to appear as a witness about the same. It is more so in the admitted position that there is no statutory requirement whatsoever to this effect. To conclude, it must be held that there is neither a statutory requirement nor a precedential mandate for handing over the seal used by the police officer in the course of an investigation to a third person forthwith. It necessarily follows therefrom that even where it has been so done, the non-production of such a witness cannot by itself affect the merits of the trial. ” Criminal Appeal No. 1384-SB of 2002 6 In view of the afore-quoted observations, non-production of Harbans Lal, PW at the trial cannot by itself affect the merits of the trial. In the face of the afore-quoted law, the contention raised by learned counsel for the appellant, Mr. R. K. Trikha pales into insignificance. Mr. Trikha further canvassed at the bar that it is in the testimony of Inspector Jaswant Singh, PW-1 ( Investigator) that the case property and the accused were produced before Shri R.K.Gupta, Judicial Magistrate, Hoshiarpur, who put his initials on the bag, Exh. P1, but to the utter dismay of the prosecution, the learned Judicial Magistrate has not been examined and, as such, an adverse inference ought to be drawn to the effect that the case property was not produced before him. To overcome this submission, Mr. Shilesh Gupta, Deputy Advocate General, Punjab, urged with great eloquence that the bag, Exh.P1 was produced in the Court and if the initials of the learned Magistrate had been missing on it, Jaswant Singh Inspector, PW-1 might have been cross- examined on these lines. I subscribe myself to this submission. In the opening sentence of his cross-examination, Inspector Jaswant Singh (sic) has testified that “ I have seen the bag,Exh. P1 and at point 'A' the learned Magistrate had put his initials.” In view of this evidence, the examination of the learned Magistrate as a witness in the Court was not required. More to the point, the Act no where provides that the Magistrate ought to be examined as a witness. Thus, this contention merits rejection. No other material point has been urged or agitated by either counsel. On scrutinising the evidence of Jaswant Singh (sic) (Investigator), ASI Ram Kumar, PW-4, and Baljinder Singh Grewal, DSP, Criminal Appeal No. 1384-SB of 2002 7 PW-5 with due care and caution, it transpires that their credibility could not be impeached in any manner though they were subjected to gruelling and searching cross-examination. The Chemical Examiner vide his report, Exh. PJ gave the opinion that the contents of the sample parcel were Charas. A careful delving into the consent memo.,Exh. PA would reveal that the same is in adherence to the mandatory provisions of Section 50 of the Act. Sequelly, the evidence adduced by the prosecution can be relied upon without any demur. In view of the preceding discussion, no fault can be found with the findings returned by the learned trial Court in arriving at the conclusion that the accused-appellant has committed the offence punishable under Section 20 of the Act by keeping 5 Kgs. of Charas in his unlawful and unauthorised possession. Sequelly, this appeal fails and is dismissed. ( HARBANS LAL ) JUDGE 29th February, 2008 RS Whether to be referred to the Reporter ? Yes/No