Punjab-Haryana High Court
Gurnam Singh And Another vs State Of Haryana on 31 May, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
CRA No. S- 317-SB of 2001 -1-
In the High Court of Punjab and Haryana at Chandigarh
CRA No. S- 317-SB of 2001
Date of Decision: May 31st, 2013
Gurnam Singh and another
---Appellants
versus
State of Haryana
---Respondent
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Mr. D.N.Ganeriwala, Advocate
for the appellants
Mr. Dhruv Dayal, Deputy Advocate General, Haryana
for respondent-State
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
***
REKHA MITTAL, J.
The present appeal lays challenge to the judgment of conviction and order of sentence dated 13.2.2001 passed by the Additional Sessions Judge, Sirsa in NDPS Act Case No. 25-SC of 1997/2000 in respect of FIR No. 338 dated 2.10.1996, whereby the appellants have been convicted and sentenced for commission of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "the NDPS Act") as extracted hereinbelow:-
CRA No. S- 317-SB of 2001 -2-
Gurnam u/s 18 of the To undergo rigorous imprisonment for a period of ten years and to pay a fine Singh NDPS of Rs. 1,00,000/-. In default of payment of fine to undergo further imprisonment for a period of one year.
Surjit u/s 18 of the To undergo rigorous imprisonment for a period of ten years and to pay a fine Singh NDPS of Rs. 1,00,000/-. In default of payment of fine to undergo further imprisonment for a period of one year.
The period already spent by the accused in jail shall be set off against the substantive sentence.
On 2.10.1996, ASI Babu Ram, HC Subhash Chander and a police party were present on National High Way No.10 in the vicinity of village Chormar. Lachhman Singh, Sarpanch of village Raghuana met the police party. In the meantime, a scooter bearing Registration No. PB-04 C-4977 came from the side of village Jandwala Jatan which was driven by Surjit Singh with pillion rider Gurnam Singh, who was holding a plastic bag in his hands. The police suspected some intoxicants in the bag and served a notice under Section 50 of the NDPS Act upon them. The accused made a statement that they should be searched in the presence of a gazette officer. A wireless message was flashed to the Deputy Superintendent of Police, Dabwali. Sh. Darshan Kumar Bali, DSP, came to the spot, verified the facts and supervised the search operations. The plastic bag, on its search was found containing opium. 100 grams of opium was separated as a sample and the remaining opium (residue) was found to be 15 kg and 900 grams CRA No. S- 317-SB of 2001 -3- on weighment. The sample opium and the residue were sealed separately with seals bearing impressions "BR" of ASI Babu Ram and "DKB" of DSP Darshan Kumar Bali. The seal was handed over to HC Subhash Chander by the Investigating Officer. Ruqa was sent to the police station for registration of the case which led to registration of formal FIR by Sub Inspector Ram Avtar, the then Station House Officer of Police Station Kalanwali, District Sirsa.
On return to the police station, the accused, the case property and the witnesses were presented before Ram Avtar, SHO, who verified and deposited the case property with the MHC. The sealed sample was sent to the Forensic Science Laboratory for analysis. As per report of the Public Analyst, the contents of the sample were found to contain opium. On completion of necessary investigation formalities, challan was presented in the Court for trial of the accused.
The trial Court on consideration of report under Section 173 Cr.P.C. and the documents relied upon by the prosecution found a prima facie case against the accused and accordingly, both the accused were charge sheeted for commission of offence punishable under Section 18 of the NDPS Act, to which they pleaded not guilty and claimed trial.
To prove its case, the prosecution examined as many as 07 witnesses namely,ASI Mahinder Singh PW-1, Darshan Kumar CRA No. S- 317-SB of 2001 -4- Bali, Deputy Superintendent of Police PW-2, ASI Babu Ram PW- 3, HC Raj Pal PW-4, HC Subhash Chander PW-5, Constable Rajinder Singh PW-6 and SI Ram Avtar PW-7.
On the evidence of the prosecution being closed, the accused were examined in terms of Section 313 Cr.P.C. They denied all the incriminating circumstances put to them and pleaded their innocence and false implication. They raised the plea that there is party faction in the village as there are two groups, one led by Sita Singh Lambardar and Manjit Singh Sarpanch and the other by Shiv Raj Singh, Sarpanch. They belong to the group of Shiv Raj Singh, Sarpanch and they have been involved in a false case at the instance of Sita Singh, who is on visiting terms with the police. They examined HC Kanwar Singh DW-1 and Constable Hawa Singh DW-2 in defence.
After having heard counsel for the parties and on perusal of evidence led by the prosecution and in defence, the trial Court found the appellants guilty of offence charged against them and consequently, recorded their conviction and sentence, as reproduced hereinabove.
Counsel for the appellants has submitted that the prosecution case is not free from embellishments, shortcomings and lacunae of which the benefit is liable to be extended to the accused. To bring home his contention, he has assailed the CRA No. S- 317-SB of 2001 -5- prosecution case primarily on four counts.
The first submission made by counsel is that the seals after use were not handed over to independent witness Lachhman Singh, who allegedly attested the recovery on the spot. The seal after use was handed over to HC Subhash Chander, a member of the police party and posted in Police Station Kalanwali at the relevant time. ASI Babu Ram (Investigating Officer) and HC Subhash Chander have admitted during cross examination that the seal was returned by HC Subhash Chander to ASI Babu Ram 5/7 days after the alleged recovery on 2.10.1996. It is argued that the sample was sent to the Forensic Science Laboratory subsequent to the Investigating Officer having got the possession of the seal, the possibility of sample being tampered cannot be ruled out. Further dilating, it is submitted that the prosecution case becomes doubtful as there is delay of 19 days in sending the samples for analysis. In support of his contention, he has relied upon Hakam Singh vs. State of Punjab 2008(4) RCR (Criminal) 489, Balwinder Kaur vs. State of Punjab 2011 (2)RCR(Criminal) 465, Paramjit Singh vs. State of Punjab 2008(2) RCR (Criminal) 66 and Balbir Singh vs. State of Punjab 2008(1) Law Herald (P&H)
703. The next submission made by counsel is that there is difference in hand writing in the documents allegedly prepared on CRA No. S- 317-SB of 2001 -6- the spot that also contain the FIR number but it has not been explained as to how the FIR number was available to the Investigating Officer at the time when the memo of recovery etc. were prepared. Another submission made by counsel is that as the documents prepared on the spot contained the FIR number, it shows that the FIR was already registered before the alleged recovery, which creates a breach in the integrity of prosecution case. In support of his contention, counsel has invited attention of this Court to memo of recovery Ex. PA and seizure memo Ex. PC, which are written in different hand writing. It is further argued that ASI Babu Ram and HC Subhash Chander have deposed that writing work was done by the Investigating Officer himself. In this regard, counsel has relied upon Didar Singh @ Dara vs. The State of Punjab 2010 (3) RCR (Criminal) 337, Ajay Malik and others vs. State of U.T.Chandigarh 2009(3)RCR (Criminal) 649, Ashok Kumar vs. State of Punjab (Crl. Appeal No. 1228- SB of 2005 decided on 11.5.2010) and Rakesh Chakarvarti vs. State of Madhya Pradesh JT 2006 (12) SC 416.
Another argument advanced by counsel is that there is non-compliance of provisions of Section 55 of the NDPS Act. It is argued that even if the procedure laid down under Section 55 of the NDPS Act may not be mandatory but intentional non-compliance of the same cannot be excused especially in the circumstances CRA No. S- 317-SB of 2001 -7- when the sealed parcels remained in the custody of the police official, the case property was not produced before the Illaqa Magistrate and there is a delay of 19 days in sending the samples for analysis. It is further argued that evidence with regard to verification of the case property by the SHO is falsified from the fact that there was no seal of SHO on the case property. For this purpose, counsel has referred to Thandi Ram vs. State of Haryana JT 1999 (3)SC 231, Gurbax Singh vs. State of Haryana JT 2001 (2) SC 330, Ashok @ Dangra Jaiswal vs. State of M.P. AIR 2011 SC 1335, Ganga Dhar vs. State of Haryana 2011 (1) RCR(Criminal) 624, Suresh Kumar vs.The State of Haryana 2010(3) RCR (Criminal)786 and Satpal Singh vs. State of Haryana (2008)3 PLR 272.
The last submission made by counsel is that the prosecution has failed to lead cogent and convincing evidence to establish link evidence to take advantage of the analysis report prepared by the Forensic Science Laboratory. It is argued that as per the statement of HC Raj Pal, he did not make an entry in Register No. 19 with regard to deposit of sample seal which fact has been so stated by HC Kanwar Singh DW-1 examined in defence. Counsel has strenuously argued that as there is no entry of deposit of sample seal in the malkhana, on the date of alleged recovery, it is sufficient to prove that the sample seal was prepared CRA No. S- 317-SB of 2001 -8- later, therefore, comparison of sample seal with the seals on sample sent to the Forensic Science Laboratory does not prove the case of the prosecution beyond doubt. In this regard, counsel has referred to State of Rajasthan vs. Gurmail Singh JT 2005 (2)SC 574 and Ravinder Singh vs. State of Punjab 1997 Crl. L.J.2748.
Counsel for the State, on the contrary, submits that any minor discrepancies in the case of the prosecution cannot outweigh convincing and reliable evidence led on record. It is argued that Darshan Kumar Bali, DSP PW-2, ASI Babu Ram Investigating Officer PW-3 and HC Subhash Chander PW-5, witnesses of recovery, were subjected to searching and lengthy cross examination. Nothing useful and tangible could be elicited to create any dent in the prosecution case. During cross examination of the prosecution witnesses, no such plea of party faction in the village has been raised which was set up for the first time at the fag end of the trial during examination of accused under Section 313 Cr.P.C. The plea raised by the accused under Section 313 Cr.P.C. is not a substantive piece of evidence. The accused have not produced any witness to prove their defence plea that they have been falsely implicated in the case at the behest of Sita Singh. It is further argued that any lapse on the part of the Investigating Officer or the Station House Officer to comply with the provisions of Section 55 of the NDPS Act is not at all sufficient to extend any CRA No. S- 317-SB of 2001 -9- benefit to the accused. The last submission made by counsel is that as the seals on the sample were found intact and sample seal was prepared on the spot containing the impression of the Investigating Officer and Darshan Kumar Bali DSP, as deposed by them, the mere fact that seal of the Investigating Officer came in his possession before the sample was sent to the Forensic Science Laboratory, does not create any doubt regarding the prosecution case. He has supported the reasoning and finding recorded by the learned trial Court with the submission that the same is based upon a detailed and correct appreciation of entire matter in right perspective.
I have heard counsel for the parties, perused the evidence on record and the judgment of the learned trial Court.
As per case of the prosecution, the accused were apprehended while travelling on a scooter bearing Registration No. PB -04C 4977. The pillion rider of the scooter namely Gurnam Singh was carrying a plastic bag which created suspicion in regard to the contents of the bag. The search of the bag was conducted in the presence of Darshan Kumar Bali, DSP Dabwali and it led to recovery of incriminating narcotic i.e. 16 Kg. of opium.
Before addressing the submissions and counter submissions made by counsel for the parties, it is appropriate to state that every criminal case is to be decided in the light of its CRA No. S- 317-SB of 2001 -10- peculiar facts and circumstances. It is difficult to draw complete identity in the two cases to apply the decision in a referred authority to the facts of the case for adjudication before the Court. Counsel for the appellants has cited large number of judgments which have been rendered by the courts keeping in view the facts, circumstances and evidence put forth in these cases.
Counsel for the appellants has submitted that as the seals after use were not handed over to independent witness Lachhman Singh or the seal came in possession of the Investigating Officer before the sample was sent to the laboratory for analysis, the possibility of tampering with the sample cannot be ruled out. In the case in hand, the case property including sample and bulk were sealed separately bearing the seals of ASI Babu Ram and Darshan Kumar Bali, Deputy Superintendent of Police. Darshan Kumar Bali, DSP, ASI Babu Ram and HC Subhash Chander are quite categoric and consistent in their testimony that a sample seal was prepared on a piece of cloth containing the seal impression "BR" of ASI Babu Ram and "DKB" of Darshan Kumar Bali, DSP. No such fact has come on record that after departure from the spot at about 8.30 p.m. on 2.10.1996, Darshan Kumar Bali, DSP ever came to Police Station Kalanwali, before 21.10.1996, the date on which the sample was handed over to constable Rajinder Singh for deposit in the Forensic Science CRA No. S- 317-SB of 2001 -11- Laboratory for analysis. If the Investigating Officer never had an occasion to be in custody of seal "DKB" till 21.10.1996, the fact that the seal was not handed over to independent witness, or the Investigating Officer received his seal from HC Subhash Chander prior to sending the sample, loses its significance. In this view of the matter, the appellants cannot derive any advantage to their contention from the judgments relied upon in this regard.
The second issue raised is with regard to difference in hand writing in the documents prepared at the spot and these documents contain the FIR number. Counsel has submitted that as per ASI Babu Ram, entire writing was done by him. The contention of counsel is not borne out from the record in view of cross examination of ASI Babu Ram PW-3 and HC Subhash Chander PW-5. A relevant extract from the cross examination of ASI Babu Ram reads as follows:-
"We did the writing work with the help of torch and also in the light of the gipsy. I did not reduce into writing the grounds as to why I was completing the proceedings of the case during night time. I did the writing work by sitting on the ground. I prepared the recovery memo, ruqa, site plan in the presence of DSP and I also recorded his statement under Section 161 Cr.P.C." CRA No. S- 317-SB of 2001 -12-
A perusal of aforesaid extract shows that the witness never deposed that the entire writing was done by him. Even no such fact has been so stated by HC Subhash Chander. In this view of the matter, the accused cannot take advantage of the fact that documents Ex. PA and PC are written in different hand writing. Admittedly, the documents prepared at the spot contains FIR number. Counsel for the accused during cross examination of ASI Babu Ram PW-3 did not seek his explanation as to how the documents prepared on the spot contain the FIR number. The witnesses examined by the prosecution have consistently stated that the police official sent with ruqa for registration of the case came back to the spot with FIR number. As the FIR number became available to the Investigating Officer on the spot before he left the place after completion of the entire proceedings, no fault can be found in the investigation that the FIR number was incorporated even in the documents which had already been prepared before the official came back to the spot. It appears that the Investigating Officer left a blank space for the FIR number and entered the same, after receipt of requisite information. In this view of the matter, the contention of the appellants is untenable and merits rejection.
Much stress has been laid on non-compliance of provisions of Section 55 of the NDPS Act. At the outset, it needs CRA No. S- 317-SB of 2001 -13- to be noticed that compliance of the provisions of Section 55 of the NDPS Act is not mandatory. In this regard, reference can be made to a judgment of the Hon'ble Supreme Court in Gurbax Singh vs. State of Haryana 2001(1)RCR (Crl.) 702.
Section 55 of the NDPS Act deals with police to take charge of articles seized and delivered" The provision being relevant can be gainfully reproduced hereinbelow:-
"55. Police to take charge of articles seized and delivered.- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the order of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
In the instant case, information regarding recovery was sent by the Investigating Officer to the Station House Officer, who recorded the FIR on the basis of information and also sent the special report to Illaqa Magistrate and other senior officers. The sealed parcels along with sample seal were deposited with the CRA No. S- 317-SB of 2001 -14- MHC of the police station on the same night, a few hours after recovery. The MHC handed over the sample parcel and sample seal to constable Rajinder Singh for depositing the same with Forensic Science Laboratory, Madhuban. A perusal of report of Forensic Science Laboratory Ex. PN shows that sample parcel was received in the laboratory duly sealed with seals of "BR" and "DKB" and the same also tallied with the specimen seal. ASI Babu Ram and HC Subhash Chander have corroborated each other that the accused, the case property and the witnesses were produced before the Station House Officer on arrival to the police station at about 11-00 p.m. This fact also finds corroboration from the statement of SI Ram Avtar PW-7. This apart, report under Section 57 of the NDPS Act was prepared by the Investigating Officer which was attested by the Station House Officer and was sent to the Deputy Superintendent of Police of the area on the very next day. The mere fact that the Station House Officer did not affix his seal on the sample and residue is not at all sufficient to entertain the prosecution case with a pinch of salt particularly in the circumstances that the case property had already been sealed with the seal of Deputy Superintendent of Police, an officer superior in rank to the Station House Officer. I get fortified in my view from the judgment of the Hon'ble Supreme Court of India in State of Punjab vs. Leela 2010 (7) RCR 1179 and judgment of CRA No. S- 317-SB of 2001 -15- this Court in Roop Chand vs. State of Punjab 1999 (4)RCR (Criminal) 127. The Hon'ble Supreme Court of India in State of Punjab vs. Leela's case (supra) has held as quoted hereinbelow:-
"It is not in dispute that provisions of Section 55 are directory in nature. In the instant case, the DSP who was examined as PW.1 is an officer and was higher in rank or of the same rank as the SHO in the instant case. There is no reason indicated as to how the accused has been prejudiced by PW.1 putting his seal instead of the SHO. The provisions are directory and as there is no doubt about the authenticity of the official Act, the High Court ought not to have held that there was non- compliance of requirement of Section 55."
This Court in Roop Chand vs. State of Punjab's case (supra) has held as follows:-
"A reading of this section would show that a duty has been casted upon the in-charge of the police station to take charge of the case property and to place it in safe custody. If ASI Krishan Chand was already satisfied that after putting double seal by DSP Darshan Singh the sanctity of the case property had already been preserved by ASI Kishan Singh, it was not necessary for him to further re-seal the case property. He handed over the CRA No. S- 317-SB of 2001 -16- case property to the MHC for safe custody, who again delivered the case property to the Constable with seals intact and in this manner the sample of the opium went to the office of the Chemical Examiner. The Chemical Examiner had certified that the seals on the sample tallied with the specimen seal, which was sent along with the case property. Thus the chain is totally complete and, therefore, the second submission raised by the learned counsel for the appellant is not acceptable to this Court."
To be fair to counsel for the appellants, the plea that entry in Register No. 19 with regard to deposit of case property does not make reference to deposit of sample seal, in my opinion, is a point worth consideration. The witnesses of prosecution namely, Darshan Kumar Bali, Deputy Superintendent of Police, ASI Babu Ram and HC Subhash Chander have corroborated each other with regard to preparation of a sample seal on the spot bearing impressions "BR" and "DKB", on a piece of cloth. HC Raj Pal PW-4 the then MHC of the police station during cross examination has deposed that the sample seal was deposited with him which was taken on a piece of cloth and it was bearing seal "DKB" and "BR". He has further deposed that he did not mention this fact in Register No. 19. However, he has deposed that he had CRA No. S- 317-SB of 2001 -17- entered in Register No. 19 regarding sending the sample seal along with the sample to the Director, Forensic Science Laboratory, Madhuban. Counsel for the accused was unable to challenge the correctness of statement of Darshan Kumar Bali, Babu Ram (Investigating Officer) and HC Subhash Chander with regard to preparation of sample seal on a piece of cloth. As per the statement of Rajpal HC, the sample seal which was deposited with him was on a piece of cloth. He made an entry with regard to sending of sample seal along with sample to Forensic Science Laboratory, Madhuban. There is nothing on record suggestive of the fact that the Investigating Officer ever had an opportunity or occasion to lay his hand on the seal 'DKB' for preparing a sample seal later during the intervening period. In these circumstances, the mere fact that Raj Pal HC, either ignorantly or otherwise committed a lapse in non-mentioning of deposit of sample seal along with the case property is not at all sufficient to extend any benefit to the accused. In this view of the matter, the accused cannot take advantage from the cited judgments.
Indisputably, the sample was sent for analysis after 19 days of recovery and was deposited in the laboratory on 22.10.1996. Mere delay in sending the sample is not sufficient to cast any doubt on the case of the prosecution, particularly in the circumstances if the seals on the sample are found intact and the CRA No. S- 317-SB of 2001 -18- same tallied with the sample seal(s) sent along with the sample. In the instant case, as per the report of the Forensic Science Laboratory, the seals on the sample were found intact and the same on its comparison with sample seals were not found discrepant. The Hon'ble Supreme Court of India in State of Punjab vs. Rupinder Singh 2010 (4) SCC 404 has held that delay of about 07 days in sending the sample for chemical examination was not sufficient to acquit the accused, when the seal was found intact by the chemical examiner, as recorded in his report and there was no evidence to show that the sample parcel was tampered with. Similarly in the case of Hardeep Singh Vs. State of Punjab (8) SCC 557, there was delay of about 40 days in sending the samples to the laboratory, the Supreme Court has held that delay of 40 days cannot be said to be fatal to the prosecution case when there was sufficient link evidence led by the prosecution to prove that the seal on the sample parcel remained intact and contents thereof were not tampered with. In view of these authoritative pronouncements of Hon'ble the Supreme Court of India, it is apparent that mere delay in sending the sample contraband to chemical examiner itself would not be fatal to the prosecution case and the accused cannot be acquitted on this ground provided that there is sufficient link evidence to demonstrate that the contents of the sample parcel were not tampered with. In the case in hand, the Investigating CRA No. S- 317-SB of 2001 -19- Officer had no occasion to be in possession of the seal of the Deputy Superintendent of Police nor there is any material on record to prove that the seals on sample were tampered with or the sample seal was prepared later, the accused, in these circumstances, cannot claim any benefit of delay of 19 days in sending the sample to the Forensic Science Laboratory.
The accused have failed to lead any evidence to probablise their plea of false implication at the instance of a co- villager due to party faction in the village. The Accused were challaned for keeping 16 Kgs of opium in their possession. It is difficult to believe that such a huge recovery has been falsely planted upon them, more particularly in the circumstances that neither DSP Darshan Kumar Bali nor ASI Babu Ram (Investigating Officer) had any ill will or animosity against the accused.
For the reasons recorded hereinabove, the appeal is dismissed. The judgment of conviction and order of sentence are affirmed. The appellants, if on bail, be taken into custody to suffer the remaining sentence. Record of the trial Court be sent back forthwith.
(REKHA MITTAL) JUDGE May 31st,2013 PARAMJIT