IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Crl. Appeal No.1256-SB of 2005 Date of decision : 22-04-2008 Smt. Sapna, wife of Sher Singh,r/o Kakri, Police Station Muskat, District Rukum, Nepal. .............Appellant State of Haryana ..............Respondent CORAM : HON'BLE MR. JUSTICE SHAM SUNDER Present : Mr. S.S. Siao, Advocate and Ms. Anju Arora, Advocate for the appellant. Mr. A.K. Jindal, A.A.G., Haryana for the respondent. Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 30.05.2005, rendered by Special Judge, Faridabad, vide which it convicted the accused/appellant Sapna and sentenced her to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.one lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as `the Act’ only) for having been found in possession of 2.500 kilograms of Charas without any permit or licence, falling within the ambit of commercial quantity. Crl. Appeal No.1256-SB of 2005 -2- 2. The facts, in brief, are that on 13.12.2003, Maya Ram, Sub Inspector, Station House Officer, Police Station, GRP, Faridabad, along with other police officials, was present near CTI Office at Platform No.1, Railway Station, Faridabad, in connection with patrol duty and crime detection. One Gopal son of Ganga Ram resident of Asaoti Police Station Sadar Balabhgarh, met him, who was joined with the police party. Constable Krishan Kumar, Constable Ravinder and Constable Rajesh of Police Post GRP Delhi, on duty, on passenger train, Mangla Express No.2618 UP, apprehended six persons, two men and four women, including accused Sapna, on suspicion, during checking between Faridabad and Ballabgarh. Sapna-accused was brought to Police Station GRP, Faridabad. Maya Ram, Sub Inspector, suspected the accused of possessing contraband. Her search was conducted, in accordance with law, by Satyavati, Deputy Superintendent of Police, who was called to the spot, as a result whereof, 2.500 kgs. Charas was recovered from a piece of cloth tied by the accused. Two samples of 20 grams each, were separated, out of the charas, so recovered, and the remaining charas, was put into a separate container. Both the samples and the container were duly sealed and taken into possession. Ruqa was sent to the Police Station, on the basis whereof, FIR was recorded. The accused was arrested. 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 her appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 20 of the Act, was framed against her, to which she pleaded not guilty, and claimed judicial trial. Crl. Appeal No.1256-SB of 2005 -3- 4. The prosecution, in support of its case, examined Bijender Singh, ASI, PW-1, who recorded the formal F.I.R. exhibit PA/1, on receipt of ruqa exhibit PA, Constable Raj Kumar, PW-2, who prepared the scaled map, as per the orders of A.S.I./S.H.O. Siri Chand, Maya Ram, S.I./S.H.O., PW-3, before whom, the accused was produced, and in whose presence, the search of the accused was conducted by the Deputy Superintendent of Police and recovery of 2.500 kgs. charas was effected, Babu Lal, ASI, PW-4, in whose presence, the search of the accused was conducted and recovery of charas was effected, Smt. Satyavati, Deputy Superintendent of Police, City Ballabgarh, PW-5, who was posted, as such, at Faridabad, at the relevant time, and who conducted search of the accused, resulting into the recovery of 2.500 kgs. of charas, Constable Narbir Singh, PW-6, who was handed over the sealed parcel by ASI Bijender Singh for depositing the same, in the office of the Forensic Science Laboratory, Madhuban, and after depositing the same along with the sample impression of the seal, he handed over the deposit receipt. 5. The Public Prosecutor for the State gave up Gopal, the independent witness, as won over, by the accused, on the basis of the application PD, moved by the Investigating Officer. Thereafter, the Public Prosecutor for the State, tendered into evidence exhibit PC, report of the Forensic Science Laboratory and closed the same. 6. The statement of the accused under Section 313 Cr.P.C., was recorded, and she was put all the incriminating circumstances, appearing against her, in the prosecution evidence. She pleaded false implication. She, however, did not lead any evidence, in her defence. 7. After hearing the Public Prosecutor for the State, the Counsel Crl. Appeal No.1256-SB of 2005 -4- for the accused, and, on going through the evidence, on record, the trial court, convicted and sentenced the accused/appellant, as stated hereinbefore. 8. 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. 9. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that though Gopal, independent witness, was joined, at the time of effecting the alleged recovery from the accused, yet, he was not examined by the Investigating Officer, as a result whereof, a doubt was cast, on the prosecution story. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Since, Gopal was not going to support the case of the prosecution, the Public Prosecutor for the State, took a wise decision to give him up as won over, on the basis of application PD, moved by the Investigating Officer. It was, not that Gopal, independent witness, was given up, as won over, by the Public Prosecutor, without any rhyme or reason. The discretion exercised by the Public Prosecutor, for the State, in giving up Gopal, independent witness, as won over, was neither arbitrary nor capricious. The Public Prosecutor for the State, is the master of the case. It was for him to see, which witness he wanted to examine and which witness he did not want to examine. Since Gopal sided with the accused, during the trial of the case, and, if examined, he would have certainly damaged the case of the prosecution, the Public Prosecutor took a right decision to give him up as won over. In Roop Singh Vs.State of Punjab 1996(1) RCR 146, a Division Bench of this Court, held that no Crl. Appeal No.1256-SB of 2005 -5- 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 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, A.I.R 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 of 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 can not start with the presumption that the Police records are Crl. Appeal No.1256-SB of 2005 -6- 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.” 11. In view of the principle of law, laid down, in the aforesaid authorities, the mere fact that Gopal, PW, who was joined, but was not examined by the prosecution, and given up as won over, did not, in any way, affect its case. The evidence of the official witnesses has been subjected to an in-depth scrutiny and nothing has come in their cross-examination, which may go to discredit the same. Since the evidence of the official witnesses, has been found to be cogent, convincing, reliable and trustworthy, even in the absence of corroboration, through an independent source, the same (evidence of the official witnesses, could be relied upon. Non-examination of Gopal, independent witness) who was given up as having been won over, did not, in any way affect the case of the prosecution. The Counsel for the appellant placed reliance on State of Punjab v. Surjit Singh 2008(1) RCR (Criminal) 266, to contend that Gopal, being a material witness, even if he had been won over, he was required to be examined. In view of the principle of law, laid down, in Roop Singh's, Karnail Singh's, Appa Bai's and NCT's cases (supra), two of which were decided by the Division Benches of this Court, and two were decided by the Apex Court, no help can be drawn, by the Counsel for the appellant, from the State of Punjab's case (Supra). The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next submitted by Counsel for the appellant, that the Crl. Appeal No.1256-SB of 2005 -7- other persons, who were produced before Maya Ram, Sub Inspector, Station House Officer, Police Station, GRP, Faridabad, were not examined, as witnesses, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, does not appear to be correct. The other persons who were produced along with the accused, before Maya Ram, were also found to be in possession of contraband. They were the accused. Under these circumstances, there was no reason to examine them. They being the co-fellows of the present accused, could not be expected to depose, in favour of the prosecution. In these circumstances, non-examination of those accused, who were apprehended along with the accused, and against whom, separate cases were registered, did not affect the case of the prosecution, in any manner. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellant that only one sample was taken out of the bulk of Charas, allegedly recovered from the accused. He further contended that, as per the provisions of law, two samples were required to be taken out of the bulk. He further contended that by not taking two samples, out of the bulk of charas, allegedly recovered from the accused, the Investigating Officer violated the relevant provisions of law. It is, no doubt, true that only one sample was taken out of charas, so recovered, from the accused. No prejudice, whatsoever, was shown to have been caused to the accused, on account of non-taking of two samples of charas, recovered from her. The sample of charas, which was taken out, at the time of recovery, was sent to the Forensic Science Laboratory and it was found to be sufficient for the purpose of analysis.The Crl. Appeal No.1256-SB of 2005 -8- Forensic Science Laboratory, after doing the analysis of the sample, came to the conclusion, that it was charas. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellant that the sample was sent to the Forensic Science Laboratory, after three days of the alleged recovery, as a result whereof, the possibility of tampering with the same, could not be ruled out. It may be stated here, that as per the relevant provisions of law, the sample was required to be sent within 72 hours of the recovery. In the instant case, by sending the sample within three days i.e. within 72 hours, the Investigating Officer acted in a diligent manner. The evidence of the official witnesses, produced in this case, has been carefully scrutinized by this Court. The same has been found to be cogent, reliable and trustworthy. From their evidence, it is proved beyond doubt, that none tampered with the sample, till it reached the office of Forensic Science Laboratory. The mere fact that there was delay of three days, in sending the sample, in itself, could not be said to be sufficient to come to the conclusion that the possibility of tampering with the same could not be ruled out. Had the other evidence produced by the prosecution, to prove the completion of link evidence, been not found to be reliable and trustworthy, the matter would have been different. In the face of reliable and trustworthy evidence of the prosecution witness, the Court cannot entertain an imaginary doubt, in its mind, that the possibility of tampering with the sample, could not be ruled out, as it was sent after delay of three days to the Office of the Forensic Science Laboratory. Even the report of the Forensic Science Laboratory clearly reveals that the seals Crl. Appeal No.1256-SB of 2005 -9- on the sample were intact and tallied with the sample seal sent. In these circumstances, the possibility of tampering with the sample till it reached the office of the Forensic Science Laboratory, was ruled out. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. It was next submitted by Counsel for the appellant that no lady constable was summoned with a view to search the person of the accused, as a result whereof, the provisions of Section 50(4) of the Act which are mandatory, in nature, were violated, resulting into vitiation of the trial. Smt. Satyavati, D.S.P, was called to the spot. It was she, who searched the person of the accused, as a result whereof, two kilograms and 500 grams of charas was recovered from her. When Satyavati, being a lady, was present and actually searched the person of the accused, the question of summoning a lady constable, for her search, did not all arise. Had Satyavati, a lady D.S.P, been not present and had she not effected the search of the person of the accused, it would have been said, that there was some substance, in the contention of the Counsel for the accused. In view of the above, the submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 16. It was next contended by Counsel for the appellant, that the accused was not apprised of her legal right, as to whether, she wanted her search to be conducted, in the presence of a Gazetted officer or a Magistrate, and, as such, there was clear cut violation of the provisions of Section 50 of the Act. He also placed reliance on Ahmed Adeyinka Adebayo vs. Narcotics Control Bureau and another, 2006(3) R.C.R. (Criminal) 663, in support of his contention. The submission of the Crl. Appeal No.1256-SB of 2005 -10- Counsel for the appellant, in this regard, also does not appear to be correct. Exhibit PE is the notice, which was served upon the accused, vide which, she was informed of her legal right, as to whether, she wanted her search to be conducted in the presence of a Magistrate or a higher Officer. This notice was read over and explained to the accused. She made a statement exhibit PE/1, to the effect, that she had heard the notice and wanted her search to be conducted in the presence of a higher Officer. The higher Officer mentioned in the notice exhibit PE, by Maya Ram, Sub Inspector, Station House Officer, Police Station, GRP, Faridabad, meant a Gazetted Officer. Under these circumstances, it could not be said that she was not informed of her legal right, as to whether, she wanted her search to be conducted, in the presence of a Gazetted Officer, or a Magistrate. There was, therefore complete compliance with the provisions of Section 50 of the Act. No help, therefore, can be drawn by the Counsel for the appellant, from Ahmed Adeyinka Adebayo's case (supra). The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 17. It was next submitted by the Counsel for the appellant, that there were material discrepancies, in the statements of the prosecution witnesses, which remained un-explained, but the trial Court failed to take into consideration the same, as a result whereof, the case of the prosecution became doubtful. Maya Ram, Investigating Officer, stated that there were about 12 persons, in the police party, whereas, ASI, Babu Lal stated that there were 9 persons, in the police party, whereas Satyavati D.S.P. stated that there were eight officials, in the police party. Maya Ram, PW-3, stated that the Railway ticket of the accused was joint with one Crl. Appeal No.1256-SB of 2005 -11- Rajender, whereas, Babu Lal, ASI, PW-4 stated that it was joint with one Mooli. Maya Ram, Investigating Officer, stated that the D.S.P. reached at about 12.30 noon, whereas, Satyavati D.S.P. Stated that she reached at about 1.30 p.m. Such like discrepancies were bound to occur, in the statement of the truthful witnesses. No witness, after the lapse of sufficient time, can be expected to depose with mathematical precision. Even the witnesses could not be expected to have a tape recorded memory. The recovery, in this case, was effected on 13-12-2003, whereas, Maya Ram, PW-3, was examined on 08-11-2004. Similarly, Satyavati, D.S.P., was examined on 08-11-2004 i.e. after about a year. It was, therefore, not possible for these witnesses, to remember the minute details of the case, after a period of about one year of the recovery. Had such like minor discrepancies, not occurred, in the statement of the prosecution witnesses, it would have been said that they were tutored and not truthful. Such like minor discrepancies, did not at all affect the merits of the case, in any manner, in the face of the other cogent, convincing, reliable and trustworthy evidence of the prosecution witnesses. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 18. It was next submitted by the Counsel for the appellant, that Maya Ram, being the complainant, as he sent ruqa, could not be the Investigating Officer. He further submitted that this act of Maya Ram caused a great prejudice, to the accused, as a result whereof,the case of the prosecution was bound to fail. He placed reliance on Harchand v. State of Rajasthan 2007(1) RCR (Criminal) 356, a case decided by a Single Bench of Rajasthan High Court, in support of his contention. In the Crl. Appeal No.1256-SB of 2005 -12- aforesaid case, no doubt, it was held that since the A.S.I., being himself the complainant and the Investigation Officer, the conviction was liable to be set aside. In S. Jeevanantham Vs. State through Inspector of Police, T.N. (2004) 5 Supreme Court Cases, 230, the investigation of the case, was conducted by the complainant Police Officer himself. Nothing was pointed out, in that case, to show that the said investigation had caused prejudice, or was biased against the accused. In these circumstances, the Apex Court, held that the investigation by the complainant himself, could not be said to be invalid. In view of the principle of law, laid down in S. Jeevanantham's case (supra), decided by the Apex Court, any principle of law to the contrary, on the same point, laid down in Harchand's case (supra), decided by a Single Bench of Rajasthan High Court, would not hold the field. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 19. It was next submitted by Counsel for the appellant, that certain documents, were prepared, at the spot, which bear the FIR number. He further submitted that the ruqa was sent, from the spot, and when the FIR no. had not been received by the Investigating Officer, from the Police Station, how the same could be incorporated, in those documents, was not known. He further submitted that, on account of this reason, the case of the prosecution became doubtful. It may be stated here, that in the documents prepared at the spot, the F.I.R number was incorporated when the constable brought the same. On account of this reason, no doubt was caused on the prosecution story. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. Crl. Appeal No.1256-SB of 2005 -13- 20. No other point, was urged, by the Counsel for the parties. 21. 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 appreciation of evidence, and law, on the point. The same do not warrant any interference. The same are liable to be upheld. 22. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence dated 30-05-2005, are upheld. If the appellant/accused is on bail, then her bail bonds shall stand cancelled. The Chief Judicial Magistrate, Faridabad, shall comply with the judgment, with due promptitude. (SHAM SUNDER) JUDGE April 22, 2008 gurpreet