Crl. Appeal No.1603-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.1603-SB of 2002 Date of Decision : April 30, 2008 Hakam Singh S/o Nand Singh, ....Appellant R/o Village Shekhpura. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.S.Hundal, 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, dated 27.9.2002, and the order of sentence of the even date, rendered by the Judge, Special Court, Bathinda, vide which it convicted the accused/appellant Hakam Singh, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him, to undergo rigorous imprisonment for a period of ten years, and, to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years, for having been found in possession of 2 bags, each containing 35 Kgs. poppy husk, without any permit or licence. 2. The facts, in brief, are that on 2.10.1996, Harpal Singh, SI, alongwith Nahar Singh, HC, and other police officials, was going for patrolling, alongwith Satpal Singh, independent witness, from village Jagga Ram Tirath, towards Village Behman Kaur-Singh-wala, and when the police party reached 2 kms. away from village Jagga Ram Tirath, the accused was seen coming from Crl. Appeal No.1603-SB of 2002 2 the opposite side on motorcycle bearing registration No.PBI-9498. On seeing the police party, he tried to slip away. He was apprehended, on the basis of suspicion. The search of the motorcycle, being carried by the accused, was conducted, in accordance with the provisions of law, in the presence of Bal Krishan, DSP, who was called to the spot, by sending a message, which resulted into the recovery of 2 bags, each containing 35 kgs., poppy-husk. A sample of 200 grams of poppy-husk was drawn, from each of the bags, and the remaining poppy-husk was kept in the same bags. The samples and the remaining poppy husk, were converted into parcels, duly sealed with the seal, bearing impression 'HS', and, thereafter, taken into possession, vide a separate recovery memo. Personal search of the accused was also conducted, as a result whereof, a sum of Rs.150/- was recovered, alongwith driving licence. The amount and the driving licence, were taken into possession, vide a separate memo, attested by the witnesses. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Gurmit Singh, Constable (PW-1), Harpal Singh, SI (PW-2), and Bal Krishan, DSP (PW-3). Parvinder Singh, SHO, was reported to have died, during the trial of the case. Thereafter, the Addl. P.P. for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by Crl. Appeal No.1603-SB of 2002 3 him, that he was apprehended from his house on 1.10.1996, in the presence of Sarmpuran Singh, Teja Singh, and Jaswant Singh, and falsely implicated in this case. It was further stated by him, that he had no connection with the motorcycle. It was further stated by him, that he had an altercation with Parvinder Singh, SHO, ten days prior to the alleged recovery, when he had gone to release Dalla Singh, in the presence of Sampuran Singh and Teja Singh. It was further stated by him, that then SHO threatened him, and later on, falsely implicated him, in this case. He, however, examined Satpal Singh (DW-1), and Jaswant Singh (DW-2). Thereafter, he closed the defence evidence, after tendering into the same Ex.D-1, copy of the judgment dated 4.5.2001. 6. After hearing the Addl. 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/appellant, 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 learned 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, contended that though Satpal Singh, independent witness, was joined, by the Investigating Officer, at the time of effecting the alleged recovery, yet he was not examined, and, as such, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, Satpal Singh, independent witness, was joined, at the time of the alleged search and recovery. Since, he joined hands, with the accused, during the trial, he was, accordingly, given up, as won over by the Addl. Public Prosecutor for the State, vide his statement dated 22.1.2002. The factum, that he was actually won over by the accused, was further strengthened, when he was examined by Crl. Appeal No.1603-SB of 2002 4 him (accused), as DW-1. Since, the Addl. Public Prosecutor came to the conclusion, that Satpal Singh, independent witness, had sided with the accused, during the course of the 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 is 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 officials were examined, as witnesses 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 Crl. Appeal No.1603-SB of 2002 5 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 the link evidence, in this case, was incomplete, in as much as, the case property was deposited with the MHC, but he was not examined by the prosecution. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Harpal Singh, SI (PW-2), is the Investigating Officer. It was stated by him, that, on reaching the Police Station, on the same day, he produced the case property, the samples, and the accused, before Parvinder Singh, SHO, who after verifying the facts, affixed his own seal, on all the parcels, and sample seal, bearing impression 'HS'. Parvinder Singh, Inspector, as stated by the witness, expired during the trial of the case, and, therefore, could not be examined. On the other hand, Ex.PA, is the affidavit of Gurmit Singh, Constable-II. He was examined as PW-1. It was, this Constable, who took the samples to the office of the Chemical Examiner, for deposit, and deposited the same there, with seals intact. It is evident from Ex.PA, that the samples, with seals intact, alongwith the specimen impression of the seal, were handed over to him, by Parvinder Singh, SHO, and not by the MHC. It means, that Parvinder Singh, SHO, kept the case property and the samples, with him. It was he, who entrusted the samples to Gurmit Singh, Constable-II. In these circumstances, non-examination of the MHC, did not at all cast a doubt, on the prosecution story. Had the samples been deposited with the MHC, by the SHO, and he had entrusted the same to Gurmit Singh, Constable, his non-examination, would have certainly cast a doubt, on the prosecution story. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. Crl. Appeal No.1603-SB of 2002 6 11. It was next submitted by the Counsel for the appellant, that the alleged recovery was effected, in this case, on 2.10.1996, whereas, the samples were sent to the office of the Chemical Examiner on 10.10.1996, i.e. after a delay of 8 days, which remained unexplained, and, as such, the possibility of tampering with the same (samples), could not be ruled out. The mere fact that the samples were sent late, to the office of the Chemical Examiner, in itself, was not sufficient to throw away the case of the prosecution. The other evidence produced by the prosecution, to prove the completion of link evidence, is required to be scrutinized. In this case, the other evidence produced by the prosecution, on reappraisal, has been found to be cogent, convincing, reliable, and trustworthy. From the evidence of the prosecution witnesses, it is proved beyond a reasonable doubt, that none tampered with the samples, until the same were deposited, in the office of the Chemical Examiner. Above all, there is a report of the Chemical Examiner, Ex.PL, wherefrom, it is evident that the seals on the samples, were intact, and agreed with the sample seal sent. It means, that the samples were received, with seals intact, in the office of the Chemical Examiner. In these circumstances, mere delay in sending the sampleS, to the office of the Chemical Examiner, in itself, was not sufficient to come to the conclusion, in the face of other cogent and convincing evidence, on the record, that the samples were tampered with. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a case relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In these circumstances, it was held that, in the face of other cogent, convincing, reliable, and trustworthy, evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant Crl. Appeal No.1603-SB of 2002 7 case. The trial Court was, thus, right in coming to the conclusion, that the evidence produced by the prosecution, was cogent, convincing, reliable, and trustworthy, to prove the completion of link evidence. The trial Court was, thus, right in holding that none tampered with the samples, till the same reached the office of the Chemical Examiner. The finding of the trial Court, in this regard, being based on reliable evidence, is endorsed. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. No other point, was urged, on the behalf of the appellant. 13. 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, and are liable to be upheld. 14. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 27.9.2002, are upheld. The bail bonds of the appellant are cancelled. The Chief Judicial Magistrate, Bathinda, shall take necessary steps, to comply with the judgment, with due promptitude. April 30, 2008 (SHAM SUNDER) Vimal JUDGE