Punjab-Haryana High Court
Gurdev Singh vs Assistant Commissioner Of Customs on 7 October, 2013
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: October 07, 2013
CRA No.954-DB of 2009
Gurdev Singh ...Appellant
Versus
Assistant Commissioner of Customs ...Respondent
CRA No.1001-DB of 2009
Paramjit Singh @ Pamma ...Appellant
Versus
Assistant Commissioner of Customs ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers 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. Sidakmeet Singh Sidhu, Advocate,
for the appellant(s).
Mr. D.D.Sharma, Advocate,
for the respondent.
HEMANT GUPTA, J.
This order shall dispose of aforementioned two appeals i.e. CRA No.954-DB of 2009 preferred by Gurdev Singh s/o Sardara Singh and CRA No.1001-DB of 2009 preferred by Paramjit Singh @ Pamma s/o Tarlok Singh, against the judgment of conviction and order of sentence dated 05.11.2009 passed by the Special Court, Amritsar, whereby both the appellants were convicted for the offences punishable under Sections 21(c) and 23(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 2 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 (hereinafter referred to as 'the Act') and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs.1 lac each on both counts. In the event of default of payment of fine, the defaulter shall further undergo rigorous imprisonment for a period of one year.
The Assistant Commissioner of Customs, Customs (Preventive Commissionerate), Amritsar (hereinafter referred to as 'Customs') filed a complaint in the Court of Special Judge, Amritsar against Paramjit Singh @ Pamma and Gurdev Singh - the present appellants as well as Satnam Singh @ Satta s/o Arjan Singh (since declared proclaimed offender) on 06.07.2005 for the offences punishable under Sections 8, 21, 23, 25 & 60 of the Act read with Section 135 of the Customs Act, 1962 and Section 25 of the Arms Act, 1959. In the complaint (Ex.P-37), it is pleaded that on 19.03.2005, in pursuance of a specific intelligence input provided by intelligence agencies to the effect that a huge quantity of narcotic material was being smuggled from across the Indo-Pak border from Pakistan through Fazilka sector, the staff of Anti-smuggling Branch of Customs Preventive Commissionerate, Amritsar in close coordination with the police of P.S.Majitha, District Amritsar, kept surveillance and held nakas at different places on the Ferozepur-Amritsar road. The said specific intelligence input (Ex P-1) was also reduced into writing and sent to higher authorities. At about 9.30 AM, naka organized near Harike Bridge headed by R.K.Malhotra, Superintendent (Anti- Smuggling), noticed a Maruti 800 (white colour) car bearing Registration No.PB 46 1848 occupied by three persons coming from Ferozepur side. On reaching at the naka, the said car was signaled to stop, but the driver did not stop the car and fled away. The car was followed and intercepted at a Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 3 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 distance of about one kilometer from the bridge towards Amritsar side. The occupants of the car were asked to come out and on being questioned, the driver of the car disclosed his identity as Paramjit Singh @ Pamma s/o Tarlok Singh, resident of village Havelian, P.S.Sarai, Amanat Khan, District Amritsar, whereas the other two persons sitting on the front seat adjoining the driver's seat and back seat disclosed their identities as Gurdev Singh s/o Sardara Singh, resident of village Kot Dharamchand Kalan, P.S.Jhabal, District Amritsar (both the present appellants) and Satnam Singh s/o Arjun Singh, resident of village Havelian, P.S.Sarai Amanat Khan, District Amritsar respectively. R.K.Malhotra, Superintendent disclosed his identity to the occupants and told them that their vehicle is to be searched and their personal search is also to be conducted in the presence of two independent witnesses. After intimating about the legal rights, all the occupants were given option of being searched before a gazetted officer or a nearby Magistrate. On this, all the occupants opted for their search before a gazetted officer vide consent memos. On personal search, nothing incriminating was recovered from them. Thereafter, the customs officers searched the said car as a result of which three packets were recovered from the front left side door panel and four packets and a pistol were recovered from the rear left side door panel.
On removal of the brown tape wrapped on all the recovered seven packets, four packets were found having polythene packing with inside cloth packing out of which two were found having triangular and circular making with the inscription 'Nazo Limited' and the remaining two were found having triangular and rectangular marking with the inscription '2003' and '7777', whereas the remaining three packets had polythene transparent Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 4 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 packing, through which whitish granular substance was visible. After opening, a quantity equivalent to matchstick head size out of each of the seven packets was tested with the help of drug testing kit and the same was found positive for Diacetylmorphine (heroin). On weighment, each packet came to weigh 1 Kg. Three representative samples of 5 grams each were drawn from each of the seven packets, which were put into small transparent polythene pouches. All the seven bulk packets and sample packets (21 in number) were put in white cloth and sealed with the seal No.144 of the Customs Division, Amritsar.
On examination, the pistol having markings 'M 20 No 08889' and 'No 08889 066 706' with an emblem of star on the body, was found having a magazine loaded with six live cartridges, but the name of the country of manufacture was not mentioned. The accused could not produce any valid license in respect of the said pistol and told that the same was also smuggled from across the border along with the seven packets. After taking out the live cartridges from the magazine, the empty magazine was again put into the pistol. The pistol along with magazine and the six live cartridges were separately converted into sealed parcels. Thereafter, vide separate seizure memo duly signed by the independent witnesses, the accused and the customs officers, all the seven bulk packets, 21 representative sample packets, Maruti car, registration book, driving license, pistol and six live cartridges were taken into possession.
On the same day itself, Paramjit Singh @ Pamma suffered a confessional statement under Section 67 of the Act and confessed the mode and factum of recovery of contraband along with one pistol from the car. He Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 5 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 stated that earlier also, he was involved in the smuggling of gold and narcotics from the Indo-Pak border and that he is also facing trial in the case pertaining to the recovery of RDX and fake currency. He further disclosed that he along with two co-accused went to village Shatiranwali in the said Maruti car. Gurdev Singh remained sitting in the car, whereas he accompanied by Satnam Singh went on foot to the border. On signal, the persons from across the border (Pakistan) threw the seven packets and the pistol from above the fence and he picked up three packets and pistol, whereas Satnam Singh picked up four packets and they returned to the place, where Gurdev Singh was present with the car. Thereafter, they left in the car towards Ferozepur and in the way, they stopped on road leading to Muktsar and concealed three packets by removing the board of the front left side door of the car and similarly they also concealed four packets and the pistol in the rear left side door of the car. He further stated that in the morning they started for Amritsar, but was nabbed by the customs officers. He further stated that the heroin contained in these packets was to be delivered to one 'Bau' at Bhuri Wala Dera, but he did not know the whereabouts of the Bau and was to wait for his telephone and that he did this illegal work for money. In their separate confessional statements, both Satnam Singh and Gurdev Singh have suffered similar statements as that by Paramjit Singh @ Pamma in respect of bringing the packets containing heroin and the loaded pistol from across the border and also admitted the mode and factum of recovery.
Consequent to recoveries and the confessional statements, all the accused were placed under arrest on the same day i.e. 19.03.2005. On 20.03.2005, all the three accused along with case property were produced in Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 6 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 the Court of Judicial Magistrate Ist Class, who remanded the accused to customs custody till 21.03.2005. Thereafter, the case property with seals intact was deposited with Sarabjit Singh, Inspector (Malkhana), Customs House Malakhana, Amritsar by J.K.Saini, Inspector. After withdrawing seven representative samples on 21.03.2005, J.K.Saini, Inspector sent the same to the Chief Chemical Analyst, Central Revenue Control Laboratory, New Delhi (CRCL) for analysis by insured parcel through Head Post Office, Amritsar. On the same day, accused Gurdev Singh suffered another statement that he had purchased Maruti 800 car bearing No.PB 46 1848 from Charanjit Singh s/o Hardip Singh of his village for Rs.30,000/- and that the ownership of the car is yet to be transferred in his name and said Charanjit Singh has nothing to do with the car.
After receipt of report of the CRCL, New Delhi dated 16.05.2005 to the effect that each of the seven samples under reference contains Diacetylmorphine percentage varying from 74.2 to 89.7, the present complaint was moved.
To prove its case, the prosecution examined PW-1 Jatinder Kumar Saini, Inspector Customs, who deposed with regard to the receiving of secret information on 18.03.2005 and the fact that the same was reduced into writing and put up before Joint Commissioner, who marked it to R.K.Malhotra, Superintendent. He proved the secret report as Ex.P1. He also deposed with regard to the holding of naka at Harike Bridge towards Amritsar side under the supervision of R.K.Malhotra, Superintendent. He deposed about the manner of interception of Maruti 800 car and consequent recoveries of contraband after the accused submitted written consent memos Ex P2, P3 Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 7 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 and P4. He also proved the confessional statements recorded at the Custom House Amritsar. The statement Ex.P6 of Paramjit Singh was written by V.K.Dhawan, Superintendent on his questioning; Statement of Gurdev Singh written by Bhagwan Singh, Inspector before Shri R.K.Malhotra as Ex. P7 and that Satnam Singh has written in his own handwriting as Ex P8. The accused were arrested thereafter vide memos Ex.P-9 to P-11 respectively. He also deposed with regard to his participation in the investigation carried out and proved numerous other documents. In his cross-examination conducted on various dates, he stated that Mukhtiar Singh and Jaswant Singh, public witnesses were called at the spot. He stated that Gurdev Singh took possession of the car vide Ex. P-25 and that the accused and the case property was produced before the learned magistrate on 20.3.2005. He stated that Ex.P1 does not find mention any time of receipt of information and that such information was taken by Shri K.K.Sharma and he was not with him. He further stated that there was no direction to hold naka on a particular place, but the direction was to intercept on the way to Amritsar. He admitted that the names of the public witnesses are not mentioned in the statements and their signatures also do not figure on the statement. He denied the suggestion that the independent witnesses, whose signatures had been obtained in the recovery memo and panchnama were never a party of the said recovery. He denied the suggestion that Paramjit Singh did not make any statement. He stated that he had received monetary reward in this case. He denied the suggestion that for this greed, he falsely involve people, who have some blemish to their credit and that he has deposed falsely. Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 8 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 PW-2 is R.K.Malhotra, under whose supervision the naka was held at Harike Bridge towards Amritsar side. He supported the prosecution case as set up in the complaint. He deposed that the personal search of all the accused was conducted, but nothing incriminating was recovered and that the search of the car was conducted under his supervision by PW-1 J.K.Saini, Inspector. He further deposed that the statements of Paramjit Singh, Gurdev Singh and Satnam Singh under Section 67 of the Act were recorded in his presence on the examination by J.K.Saini, Inspector and that caution was given to the accused that the statements can be used in the Court. He deposed that no threat or pressure was exercised while recording the statements. He also proved the statements as Exs.P6/A, P7 and P8. He further deposed that on 21.03.2005, the supplementary statements of Paramjit Singh Ex.P23 and Gurdev Singh Ex.P24 were also recorded in his presence. In his cross- examination, he stated that they kept moving on the road, as they had specific information about a specific vehicle. He denied the suggestion that Paramjit Singh accused was never apprehended from the spot and he was picked up from his village and lateron, he was falsely implicated in this case due to suspicion.
PW-3 is Satnam Singh, Inspector, who deposed in respect of deposit of two packets one containing pistol along with empty magazine wrapped in cloth and sealed with seal No.144 and one packet containing six live cartridges by J.K.Saini. He also deposed with regard to the deposit of one Maruti Car 800 bearing No.PB 46 1848 along with keys and registration certificate. He deposed that till the case property remained with him, neither he nor he allowed anybody to tamper with the same. In his cross- Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 9 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 examination, he stated that as per entries in the record, seal No.144 was never deposited with him in the malkhana nor the seal impressions were deposited in the malkhana.
PW-4 Sarabjit Singh, Inspector also deposed with regard to deposit of one tin packet containing seven packets of heroin along with 21 envelope with representative sample, one packet of packing material by J.K.Saini. He also deposed that on 21.03.2005, seven representative samples were handed over to J.K.Saini for depositing in CRCL, New Delhi. In his cross-examination, he stated that neither seal No.144 nor seal impressions were deposited in the malkhana as per entry in the register.
PW-5 is Santokh Singh, Armourer (Retd.), who deposed that on 20.03.2005, J.K.Saini Inspector produced before him two packets duly sealed. On opening in the presence of independent witnesses, one packet contains pistol of .30 bore alongwith magazine in it and such pistol, having marking of star '*', was in working condition and that the six live cartridges were found in other packet. He deposed that after checking, pistol alongwith magazine and cartridges were again packed in earlier two packings and resealed. He also proved his report Ex.P19.
The incriminating circumstances appearing against both the accused-appellants were put to them while recording their statements under Sections 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). Both the appellants pleaded innocence and stated that they have been falsely implicated and nothing was recovered from them. However, they did not adduce any defence evidence.
Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 10 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 After considering the testimonies of all the witnesses, the learned Special Judge found the appellants guilty and, therefore, convicted and sentenced them, in the manner mentioned above.
Before this Court, learned counsel for the appellants has vehemently argued that appellant Gurdev Singh was passenger in the car. He was not aware that the prohibited drugs was being carried in the car and, therefore, he is not proved to be in conscious possession of the narcotic drugs. It is also argued that the entire case against the appellants is based upon confession recorded by the officials of the Customs under Section 67 of the Act, but such statements cannot be made sole basis of conviction of the appellant without any corroboration by the Department. It is also argued that the prosecution has not examined any of the independent witness, thus, the prosecution case is wholly unreliable.
Having heard learned counsel for the parties, we do not find any merit in the present appeals.
Ex.P6, the confessional statement of Paramjit Singh @ Pamma running into six pages, was written by V.K.Dhawan, Superintendent in Punjabi language in the presence of J.K.Saini PW1. All the six pages were signed by Paramjit Singh @ Pamma. Similarly, Ex.P7 is the confession statement of Gurdev Singh running into 5 pages. Such statement was recorded by Bhagwan Singh, Inspector in Punjabi language in the presence of R.K.Malhotra, Superintendent. All the pages were thumb marked and signed by Gurdev Singh. Such statements were recorded soon after the contraband was recovered. Such lengthy confessional statements could not be a figment Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 11 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 of imagination on the part of the Customs officials. The manner of recovery of the contraband in the absence of any explanation raises a legal presumption of conscious possession against the appellants. The said possession itself discloses a commission of offences under Sections 21(c) and 23(c) of the Act. Such individual statements of the appellants stand corroborated by the statement of other co-accused.
The confessional statement recorded by an empowered officer is not a statement recorded by a police officer, therefore, the bar under Section 25 of the Evidence Act is not available. The test which are applied to base conviction on the basis of statement by a police official for an offence under the Indian Penal Code are materially different than the offences under the Act, wherein the statements are recorded not by a police officials. The fact that the empowered officer of the customs though is an officer-in-charge of the police station, but is not a police officer, as has been held by the Constitutional Bench in Ramesh Chandra Mehta Vs. The State of W.B. AIR 1970 SC 940. A Division Bench of this Court in CRA No.11-DB of 2010 titled 'Fatima Bibi Vs. Inspector of Customs' decided on 26.03.2013 has examined number of judgments to hold that the statements recorded by the empowered officials is admissible in evidence.
In view of the above, we find that the statement recorded by an empowered officer in terms of Section 53 is not a statement recorded by a police officer and, thus, same is admissible in evidence. We also find that the confessional statement suffered by both the appellants is corroborated by the statements of PW-1 J.K.Saini, Inspector and PW-2 R.K.Malhotra, who intercepted the appellants while travelling in a Maruti 800 car. The Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 12 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 testimonies of PW-1 J.K.Saini, Inspector and PW-2 R.K.Malhotra could not be shattered in the cross-examination in any material particulars. Even the confessional statement without any corroboration can form basis of conviction as held in Kanhaiya Lal Vs. Union of India (2008) 4 SCC 668. In the said case, the learned trial Court acquitted the accused of the charges under the Act on account of lack of corroboration of the confessional statement, but the High Court set aside the acquittal and convicted them solely relying upon confessional statement. The said conviction was upheld by the Supreme Court in Kanhaiya Lal's case (supra). Thus, we do not find any error in the findings recorded by the learned trial Court that the appellants were in possession of heroin.
The argument that the prosecution miserably failed to prove the conscious possession of the contraband in respect of appellant Gurdev Singh is wholly untenable. Section 54 of the Act contemplates that in trials under the Act, it shall be presumed that the accused has committed an offence for possession of narcotic drug or psychotropic substance for which he fails to account satisfactorily. In Madan Lal & another Vs. State of H.P. (2003) 7 SCC 465, the charas was found to be transported in a car. The appellant was one of the persons, who were sitting in the car. The Supreme Court observed that the question, whether there was conscious possession or not, has to be determined with reference to the factual backdrop. The Court noticed that all the accused were travelling in a vehicle and were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle, which was not a public vehicle. The Court held as under:
Kumar Vimal2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 13
CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 "22. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes.
23. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.
24. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control.
25. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD).
26. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
Recently, in Dehal Singh Vs. State of Himachal Pradesh (2010) 9 SCC 85, the plea raised that the accused has taken lift in the car was not accepted only on the basis of the statement of the accused recorded under Section 313 Cr.P.C. The Supreme Court noticed that the accused was not travelling in a public vehicle but in a private vehicle, which involves different yardsticks. It was held as under:
Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 14
CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 "24. Both the appellants have been found travelling in the car from which Charas was recovered and, therefore, they were in possession thereof. They were knowing each other. They were not travelling in a public transport vehicle. Distinction has to be made between accused travelling by public transport vehicle and private vehicle. It needs no emphasis that to bring the offence within the mischief of Section 20 of the Act possession has to be conscious possession. Section 35 of the Act recognizes that once possession is established the Court can presume that the accused had a culpable mental state, meaning thereby conscious possession. Further the person who claims that he was not in conscious possession has to establish it. Presumption of conscious possession is further available under Section 54 of the Act, which provides that accused may be presumed to have committed the offence unless he accounts for satisfactorily the possession of contraband."
Similar view was reiterated in Dharampal Singh Vs. State of Punjab (2010) 9 SCC 608, which also pertains to possession of opium in the dicky of a car. The Supreme Court held as under:
"15. From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to account for satisfactorily the possession of opium."
Coming to the facts of the present case, Gurdev Singh is proved to be owner of the vehicle having purchased from Charanjit Singh s/o Hardip Singh for a sum of Rs.30,000/- though the registration certificate was not transferred. He was a co-passenger in the car in which seven packets of heroin as well as pistol were concealed in the cavity of two doors of left side. The driver namely Paramjit Singh had not stopped the said car, when signaled to do so by the police. There is nothing on record that the appellant Gurdev Singh as a co-passenger asked Paramjit Singh to stop the vehicle, when asked Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 15 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 by the lawful authority to do so. In their statements recorded under Section 313 Cr.P.C., the stand of both the appellants is that of false implication. Thus, in the absence of any explanation or the circumstances to rebut the presumption under Sections 54 and 35 of the Act, the appellants are proved to be in conscious possession of the contraband and have been rightly convicted by the learned trial Court.
The next argument that no independent witness has been examined by the prosecution is again devoid of merit. The joining of an independent witness is a rule of prudence. Once the prosecution is able to prove the process of recovery of contraband from the appellants from the testimonies of the official witnesses, it cannot be said that non-examination of the independent witnesses is fatal to the prosecution case. The evidence of the official witnesses is required to be examined with more care and caution. On the careful analysis of the statements of PW-1 J.K.Saini and PW-2 R.K.Malhotra, we do not find that there is any contradiction or any other infirmity in proving the case of the prosecution.
In Appabhai & another Vs. State of Gujarat 1988 (Supp.) SCC 241, the Supreme Court observed that the prosecution case cannot be thrown out or doubted on the ground that independent witnesses have not been joined. It was observed that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 16 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 apathy of the general public is indeed unfortunate, but it is there everywhere. The Court observed as under:
"11. .....The court, therefore, instead of a doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused....."
In Mai Ram's case (supra), the Supreme Court also held that no material was brought on record by the defence to discredit the evidence of the official witnesses. The question is; whether the evidence of the official witnesses suffers from any infirmity. The Court observed as under:
"11. The High Court was clearly in error in holding that the reason for the suspicion was not recorded. So far as the examination of only official witness is concerned, it is to be noted that the only independent witness who was examined to speak about the seizure did not support the prosecution version. No material was brought on record by the defence to discredit the evidence of the official witnesses. The ultimate question is whether the evidence of the official witness suffers from any infirmity. In the instant case nothing of the nature could be pointed out. Further, PWs 1 and 2 categorically stated that no other person was willing to depose as witness. Therefore, the High Court was clearly in error in holding that the prosecution version became vulnerable for non-examination of persons who were not official witnesses."
In the present case, the prosecution witnesses have categorically deposed the manner of search, recovery and the procedure. There is no motive for any of them to implicate the appellants. The statements of such witnesses are proved to be of reliable and trust worthy. The evidence of the prosecution witnesses is creditworthy and inspires confidence in the mind of the Court.
In view of the above discussion, we find that the judgment of conviction and order of sentence rendered by the Special Court is based on Kumar Vimal 2013.10.25 16:45 I attest to the accuracy and integrity of this document Chandigarh 17 CRA No.954-DB of 2009 & CRA No.1001-DB of 2009 the correct appreciation of evidence, as the prosecution has completed the chain of events, which point out to the guilt of the accused. Therefore, the appellants have been rightly convicted and sentenced by the learned trial Court. Consequently, both the appeals are dismissed.
(HEMANT GUPTA)
JUDGE
October 07, 2013 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2013.10.25 16:45
I attest to the accuracy and
integrity of this document
Chandigarh