Punjab-Haryana High Court
Hari Krishan @ Tony S/O Lakhi Ram vs The State Of Punjab on 4 November, 2008
Crl. Appeal No.732-SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.732-SB of 2001
Date of Decision : 04.11.2008
Hari Krishan @ Tony S/o Lakhi Ram, ...Appellant
R/o H. No.1835/11, Khooh Bombay Wala,
Bohar Wali Gali, Amritsar.
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. Vikram Chaudhary, Advocate,
for the appellant.
Mr. C.S.Brar, DAG, Punjab,
for the respondent-State.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction, and the order of sentence dated 18.5.2001, rendered by the Court of Addl. Sessions Judge-cum-Special Judge, Amritsar, vide which it convicted the accused/appellant, for the offence, punishable under Section 20 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 Crl. Appeal No.732-SB of 2001 2 period of one year, for having been found in possession of 2 kgs. charas, (falling within the ambit of commercial quantity), without any permit or licence.
2. The facts, in brief, are that on 7.2.1999, Gian Singh, Inspector, the then SHO, Police Station 'A' Division, Amritsar, alongwith other police officials, was going towards Burj Baba Phulla Singh, in connection with patrol duty, and on the turning of Burj Baba Phulla Singh, Rajinder Kumar, independent witness, was joined in the police party. Near the turning of city centre, the accused was seen coming, who, on seeing the police party tried to retreat, but was apprehended, on suspicion. Gian Singh, Inspector, then searched the bag, being carried by the accused, on his right shoulder, in the presence of Snehdeep Sharma, DSP, who reached the spot, after the receipt of wireless message, as a result whereof, 2 kgs. charas, was recovered therefrom. A sample of 10 grams, was taken out, and the remaining charas was put into a separate container. The sample, and the container, containing the remaining charas, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. 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 20 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial.
Crl. Appeal No.732-SB of 2001 3
4. The prosecution, in support of its case, examined Mukhtar Singh, Constable (PW-1), Snehdeep Sharma, DSP, (PW-2), and Gian Singh, Inspector (PW-3), the Investigating Officer. The Addl. Public Prosecutor for the State, gave up Rajinder Kumar, independent witness, as won over by the accused. Thereafter, he 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. He, however, examined Lakhbir Singh, LC (DW-1), in his defence, who proved Ex.D-1, copy of register No.19.
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, 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 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 an independent witness, in the name of Rajinder Kumar, though joined by the Investigating Officer, at the time of the alleged search and seizure, yet he was not examined. He further submitted that the prosecution, thus, withheld the best evidence, in its possession. He further submitted that, under these circumstances, an adverse inference could be drawn, that had Crl. Appeal No.732-SB of 2001 4 he been examined, he would not have supported the case of the prosecution. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, Rajinder Kumar, independent witness, was joined by the Investigating Officer, at the time of search and seizure, yet he sided with the accused, during the course of trial. Accordingly, the Addl. Public Prosecutor for the State, vide his statement dated 2.6.2000, gave him up, as won over by the accused. The Public prosecutor for the State, is the master of the case. It is for him to decide, as to whether, he wanted to examine a particular witness, or not. However, he is required to exercise the discretion, in a bona-fide manner. In the instant case, the discretion was exercised by the Addl. Public Prosecutor for the State, in a bona-fide manner. There is nothing, on the record, to reveal, that he exercised such a discretion, in an arbitrary, and capricious manner. The other evidence, produced by the prosecution, on scrutiny, has been found to be cogent, convincing, reliable, and trustworthy. Under these circumstances, the mere fact that Rajinder Kumar, independent witness, was given up as won over, did not affect the merits of the case. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, 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 terrorized. 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, was given up Crl. Appeal No.732-SB of 2001 5 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 for 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 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 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. 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 according to the prosecution story 2 kgs. charas, was recovered from the accused, but, on the other hand, Snehdeep Sharma, DSP, while appearing as PW-2, stated that 10 grams sample was separated, and the remaining Crl. Appeal No.732-SB of 2001 6 charas came out to be 990 grams. He further submitted that had he been present, at the time of the alleged search and seizure, he would not have made such a statement. He further submitted that, 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, Snehdeep Sharma, DSP, in his examination-in-chief, stated that 10 grams charas was separated, as a sample, and the remaining came out to be 990 grams. It appears that, on account of typographical mistake, instead of 1.990 grams, the quantity of the remaining charas, was only typed as 990 grams. In these circumstances, the Court is required to take into consideration, the entire evidence, produced by the prosecution, for coming to the conclusion, as to whether, such a discrepancy, occurred in the statement of one witness, on account of typographical mistake or not. When the entire evidence of the prosecution is carefully perused, only one and one conclusion that can be arrived at, is that 2 kgs. Charas, was recovered from the accused. Gian Singh, Inspector, the Investigating Officer, when appeared as (PW-3), in clear-cut terms, stated that 10 grams charas was taken as a sample, and the remaining came to be 1.990 grams. He correctly stated the quantity of charas, recovered from the accused. Even in all the documents, prepared at the spot, the correct quantity of the charas, recovered from the accused, as 2 kgs. was mentioned. The mere discrepancy, referred to above, appearing in the statement of Snehdeep Sharma, DSP (PW-2), did not cast any dent, in the prosecution story. The trial Court was right, in ignoring the discrepancy, being typographical mistake. In these circumstances, the submission of the Counsel for the appellant, being without merit, must fail, and the Crl. Appeal No.732-SB of 2001 7 same stands rejected.
11. It was next submitted by the Counsel for the appellant, that there was a delay of 17 days, in sending the sample, to the office of the Chemical Examiner, which remained unexplained. He further submitted that, on account of this reason, the possibility of tampering with the same, until it reached the office of the Chemical Examiner, 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 sample, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcel was 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 parcel, 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 sample, 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 Cr.P.C. The delay, in sending the sample, 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 parcel, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been Crl. Appeal No.732-SB of 2001 8 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 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 17 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.
12. It was next submitted by the Counsel for the appellant, that according to Gian Singh, Inspector (PW-3), he on 8.2.1999, produced the accused, alongwith the case property, the sample, and the sample seal, before the Illaqa Magistrate. He further stated that, on return to the Police Station, he again kept the case property, and the sample, as also the sample seal, in his safe custody, in double lock. He further submitted that no evidence was produced, to the effect, that on 8.2.1999, he (Gian Singh, Inspector), took the case property, and the sample parcel, alongwith the sample seal, from the MHC, and then produced the same, Crl. Appeal No.732-SB of 2001 9 before the Illaqa Magistrate. He further submitted that Ex.D-1, entry of Register No.19, also did not speak about the same. He further submitted that, as such, a doubt was cast, as to whether, the sample parcels, the case property, and the sample seal, were produced before the Illaqa Magistrate. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is evident from the statement of Gian Singh, Inspector (PW-3), that on return to the Police Station on 7.2.1999, he kept the case property, in his safe custody, in his double lock. After taking out the case property, the sample parcels, and the sample seal, from his double lock, he produced the same before the Illaqa Magistrate, alongwith the accused. After producing the case property, the sample parcels, the sample seal, and the accused, before the Illaqa Magistrte, on 8.2.1999, he again kept the property with him, in his double lock. On 24.2.1999, he sent the samples and the sample seal, through Mukhtar Singh, Constable, to the office of the Chemical Examiner, who deposited the same there, and handed over the receipt, regarding deposit, to him. Since, he did not deposit the case property, the sample parcels, and the sample seal, with the MHC, on 7.2.1999, the question of making a mention thereof, in Ex.D-1, did not at all arise. Under these circumstances, Ex.D-1, copy of the entry of Register No.19, did not in any way, belie the evidence of Gian Singh, Inspector. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
13. It was next submitted by the Counsel for the appellant, that a number of improvements, were made, by Snehdeep Sharma, DSP, (PW-2), during the course of his cross-examination, which proved the Crl. Appeal No.732-SB of 2001 10 falsity of the prosecution case. Snehdeep Sharma, DSP (PW-2), deposed that he stated in his statement, under Section 161 Cr.P.C., that he told the accused, as to whether, he wanted the search of the bag, in the presence of a Magistrate, or a Gazetted Officer. When he was confronted with Ex.DA, his statement, under Section 161, the fact that whether the accused wanted to be searched before a Gazetted Officer, was not found recorded. He further deposed that he stated, in his statement, under Section 161 Cr.P.C., that he had attested the consent memo, which was already prepared by the Investigating Officer. When he was confronted with his previous statement, this fact was not found recorded therein. The recovery, in this case, was effected on 7.2.1999. This witness was examined on 12.1.2001, i.e. after a period of about 2 years. It was, therefore, not at all possible for him, to remember the minute details of the case. On account of sufficient lapse of time and memory, he made certain improvements, in his statement. These improvements did not at all cast any doubt, on the prosecution story, as the evidence of the prosecution, has been held to be cogent, convincing, trustworthy, and credible. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
14. No other point, was urged, by the Counsel for the parties.
15. 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.
16. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 18.5.2001, Crl. Appeal No.732-SB of 2001 11 are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Amritsar, 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., and submit compliance report, to this Court, within a period of two months, from the date of receipt of a copy thereof.
17. The District & Sessions Judge, Amritsar, is directed to ensure that the directions are complied with strictly, by the Court of Chief Judicial Magistrate, Amritsar, and the compliance report is sent within the time-frame.
18. The Registry shall keep track that the compliance report, is received within the time-frame. Whether the compliance report is received within the time-frame or not, the papers shall be put up, after 10 days of the expiry of the same, for further action.
04.11.2008 (SHAM SUNDER) Vimal JUDGE