Crl. Appeal No.1290-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.1290-SB of 2003 Date of Decision : July 23, 2008 Hardeep Singh S/o Gurnaib Singh, ...Appellant R/o Ratia, Tibba Colony, near Model Town. Versus The State of Punjab ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Rajinder Goyal, 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, and the order of sentence dated 11.7.2003, rendered by the Court of Addl. Sessions Judge-cum-Judge, Special Court, Barnala, vide which it convicted the accused/appellant, 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 six months, for having been found in possession of five bags, each containing 39 Kgs. 500 grams poppy-husk, without any permit or licence. 2. The facts, in brief, are that, on 18.5.1998, Darshan Singh, ASI, Crl. Appeal No.1290-SB of 2003 2 alongwith other police officials, was present on the bridge of drain, in the area of village Fatehgarh Chhana, in connection with search of suspects. In the meanwhile, an Ambassador Car, bearing Registration No.CHM-7045, was seen coming from the side of village Fatehgarh Chhana. The same was signalled to stop, as a result whereof, it stopped. The driver of the Car, was apprehended, who disclosed his name as Hardeep Singh @ Kala S/o Gurnaib Singh. Thereafter, the search of the car, in accordance with the provisions of law, in the presence of Baj Singh, DSP, Sherpur, who was called to the spot, by sending a wireless message, was conducted, as a result whereof, five bags, containing poppy-husk were recovered therefrom. From each of the bags, 2 samples of poppy-husk, were separated. The remaining poppy-husk, in each bag, was found to be 39 Kgs. which was kept in the same bags. The samples, and the bags, containing remaining poppy-husk, were converted into parcels, duly sealed with the seal, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The accused was arrested. The statements of the witnesses, were recorded. 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 Sukhdev Singh, Constable (PW-1), Avtar Singh, HC, (PW-2), Harbhajan Singh, SI (PW-3), Baj Singh, DSP (PW-4), Darshan Singh, ASI (PW-5), the Investigating Officer, and Gurnam Singh, ASI (PW-6). The Addl. Public Prosecutor for the State, tendered into evidence, report of the Chemical Examiner, Ex.PH, and, thereafter, closed the prosecution evidence. 5. The statement of the accused, under Section 313 Cr.P.C., was Crl. Appeal No.1290-SB of 2003 3 recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he was picked up, from his house, in the presence of Sarmukh Singh, at the instance of his in-laws, with whom he had strained relations, and was falsely implicated, in this case. He, however, examined Joginder Singh, HC (DW-1), and Sarmukh Singh (DW-2), in his defence. Thereafter, he closed his defence evidence. 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, submitted that no independent witness was joined, despite availability, 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. There was no secret information, against the accused, that he was coming in a Car, with a big haul of poppy-husk, and if a raid was conducted, he could be apprehended. It was a chance recovery, when the police party was on patrol duty. There is nothing, on the record, that at the time of search and seizure, any independent witness was available, but despite that, he was not joined. No question was also put to Darshan Singh, ASI (PW-5), the Investigating Officer, during the course of his cross-examination, that the independent witnesses, were present, at the time of search and seizure, but he did not join any of them, at that time. The evidence of the official witnesses, cannot be distrusted and disbelieved, merely on Crl. Appeal No.1290-SB of 2003 4 account of their official status. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled that the evidence of search or seizure, made by the police, will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:- “It is an archaic notion that actions of the Police officer, 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 cannot 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.” 9-A. In Appa Bai and another Vs. State of Gujrat, AIR 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 the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims' 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. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, on account of non- joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate the accused, no doubt, is cast on the prosecution story. In this view of the matter, the Crl. Appeal No.1290-SB of 2003 5 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 alleged recovery was effected on 18.5.1998, but the samples were sent to the office of the Chemical Examiner, on 25.5.1998, and, thus, there was a delay of 7 days, in sending the same, to the office of the Chemical Examiner, which remained unexplained, and, as such, the possibility of tampering with the samples, could not be ruled out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence produced by the prosecution, has been subjected to indepth scrutiny, and, it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex.PH, which clearly proves that the seals on the samples, were intact, and agreed with the specimen seals sent. The report of the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions of Section 293. The delay in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not Crl. Appeal No.1290-SB of 2003 6 fatal, where there is evidence that the seized articles remained in safe custody. 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 the 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 authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 7 days, in sending the samples, to the office of the Chemical Examiner, did not at all matter much. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellant, that there was cutting in the log-book, regarding the jeep, used by the police party for patrolling, in this case, at the relevant time. He further submitted that the said cuttings proved that the case of the prosecution was doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The copies of the log-book are Exs.D-1 and D-1/A. There is no cutting in the said log-book. When there is direct evidence, to the effect that, on the relevant day, Darshan Singh, ASI, alongwith other police officials, was present in the area of village Fatehgarh Chhana, in connection with patrol duty, when the accused came in a Car, and was apprehended, resulting into recovery of five bags, containing poppy-husk, from the same, the entries in the log-book, if any, paled into insignificance. The driver of the jeep, if was, in any way, negligent in not properly making the entries, that did not mean that the case of the prosecution became doubtful, in any manner. In view of the cogent, convincing, reliable, and trustworthy evidence of the prosecution witnesses, Crl. Appeal No.1290-SB of 2003 7 regarding the search and seizure, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. No other point, was urged, by the Counsel for the parties. 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 11.7.2003, are upheld. If the accused/appellant is on bail, then his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Barnala, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Cr.P.C. 15. The trial Court shall initiate the proceedings, regarding the confiscation of the Car, in question, if already not initiated, in accordance with law, and complete the same, within a period of 3 months, from the date of receipt of a copy of the judgment. July 23, 2008 (SHAM SUNDER) Vimal JUDGE