Punjab-Haryana High Court
Jaipal @ Kala S/O Om Parkash vs The State Of Haryana on 25 November, 2008
Crl. Appeal No.849-SB of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.849-SB of 2008
Date of Decision : 25.11.2008
Jaipal @ Kala S/o Om Parkash ...Appellant
R/o Malyan Pana, Dighal.
Versus
The State of Haryana ....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. Sudhir Hooda, Advocate,
for the appellant.
Mr. A.K.Jindal, AAG, Haryana,
for the respondent-State.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction dated 13.12.2005, and the order of sentence dated 14.12.2005, rendered by the Judge, Special Court, Jhajjar, vide which he convicted the accused/appellant (Jaipal @ Kala), 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 period of 2½ years, for having been found in Crl. Appeal No.849-SB of 2008 2 possession of 3 kgs. 500 grams charas (falling within the ambit of commercial quantity), without any permit or licence.
2. The facts, in brief, are that on 5.12.2003, Ashok Kumar, SI, alongwith other police officials, in Govt. Jeep No.HR-14-A-2557, was present at Dighal Chowk, in connection with patrolling and investigation of case FIR No.232/2003, under Sections 148, 353, 186, 307 and 149 IPC, P.S. Beri. In the meanwhile, Bharat Singh,SI, alongwith other police officials, met him. When he was talking to them, a bus came from the side of Jhajjar, going towards Rohtak, from which, a person alighted. He was carrying a white plastic bag, in his right hand. On seeing the police party, he turned back, and started walking fastly, but was apprehended, on suspicion. On enquiry, he disclosed his name as Jaipal @ Kala S/o Om Parkash, R/o Malyan Pana, Dighal. On search of the bag, in accordance with the provisions of law, 3 kgs. 500 grams charas, was recovered. A sample of 200 grams charas, was taken out, and the remaining charas, was kept 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 were 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 Crl. Appeal No.849-SB of 2008 3 guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Ram Phal, ASI, (PW-1), Wazir Singh, Constable (PW-2), Satbir Singh, HC (PW-3), Surender Singh (PW-4), Umed Singh, ASI (PW-5), Bharat Singh, ASI (PW-6), Ashok Kumar, ASI (PW-7), and Y.Puran Kumar, IPS, (PW-8). Thereafter, the Public Prosecutor 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. He, however, did not lead any evidence, in his defence.
6. After hearing the 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 though the recovery, in this case, was effected from a busy place, no independent witness was joined, by the Investigating Officer, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Ashok Kumar, SI (PW-7), during the course of his cross-examination, stated that about 15/20 persons, were asked to join the police party, but Crl. Appeal No.849-SB of 2008 4 they expressed their inability. It means, that the Investigating Officer, made an effort to join an independent witness, but he could succeed. Therefore, his conduct could not be said to be blameworthy. In the absence of joining of an independent witness, the evidence of the official witnesses, cannot be distrusted and disbelieved. In the face of the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the official witnesses, in the instant case, has been subjected to indepth scrutiny, and nothing came to the fore, which may go to discredit the same. The evidence of the official witnesses, was rightly found to be cogent, convincing, reliable and trustworthy, by the trial Court. The trial Court, was right, in placing reliance on the same, in coming to the conclusion, that the accused committed the offence, punishable, under Section 20 of the Act. This Court, after reappraisal of the evidence of the prosecution witnesses, also comes to the same conclusion. 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 Crl. Appeal No.849-SB of 2008 5 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. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere 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. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected.
10. It was next submitted by the Counsel for the appellant, that only one sample, instead of two samples, which is the requirement of law, was taken from the charas, allegedly recovered from the accused, and, as such, a prejudice was caused to the accused. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is no requirement of law, that two samples from the contraband, allegedly recovered from the accused, should be drawn, by the Investigating Officer, at the time of recovery. The object of drawing a sample, is that the same should be sent to the Forensic Science Laboratory, for the purpose of analysis. The sample was sent to the Forensic Science Laboratory, and it found the contents thereof to be sufficient, for the purpose of analysis. There was, therefore, no violation of any provision of the Act, or the Rules framed thereunder. No dent, Crl. Appeal No.849-SB of 2008 6 therefore, was caused, in the case of the prosecution, on account of drawing of one sample, from the charas, allegedly recovered. 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 the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction, and sentence, stood vitiated. It may be stated here, that, in the instant case, the recovery was not effected from the person of the accused, but from the white plastic bag, which was being carried by him, in his right hand. As such, the mandatory provisions of Section 50 of the Act, were not applicable to the search and seizure, in this case. Had the recovery been effected from the person of the accused, then the provisions of Section 50 of the Act, would have been attracted to the instant case. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be, in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone the provisions of Section 50 would be attracted. Since, in view of the principle of law, laid down, in the aforesaid authorities, the provisions of Section 50 were not applicable, to search, in the instant case, the trial Court was right in recording conviction and Crl. Appeal No.849-SB of 2008 7 awarding sentence, to the accused. 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 a number of unexplained contradictions, occurred in the statements of the prosecution witnesses, which were not taken into consideration, by the trial Court, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence. Umed Singh, ASI, (PW-5), stated that 2/3 persons alighted from the back door of the bus, whereas, Bharat Singh, ASI (PW-6), stated that 10/15 persons alighted from the bus, some from the front door, and some from the back door. Umed Singh, ASI, (PW-5) stated that 2/3 persons, were asked to become independent witnesses, by the Investigating Officer, whereas, Ashok Kumar, SI (PW-7), stated that 15/20 persons, were asked to become witnesses, but they showed their inability. On the other hand, Y.Puran Kumar, IPS, (PW-8), stated that some people were there, but they were not associated. Umed Singh, ASI (PW-5), stated that the writing work was done by sitting on a Bench, which was brought from a flour mill, belonging to one Maman, whereas, in the site plan, no flour mill of Maman was shown. Bharat Singh, ASI (PW-6) stated that the writing work was done, while sitting on a chair, brought from the nearby shop. Ashok Kumar, SI (PW-7), stated that the writing work was done, by sitting on the slab stone/bench at the Bus-stand. Y.Puran Kumar, IPS (PW-8) stated that the writing work was done, on the bonnet of the Jeep. Umed Singh, ASI (PW-5), stated that the ASP reached the spot at 1.30 PM, and returned at 2.00 PM, whereas, Bharat Singh, ASI (PW-6), stated that ASP came at Crl. Appeal No.849-SB of 2008 8 2.00 PM, and remained upto 3.15 PM. Ashok Kumar, SI (PW-7), stated that the ASP came at the spot at 2.00 PM, and remained till 3.15 PM, whereas, Y.Puran Kumar, IPS (PW-8) stated that, he reached the spot at 2.30 PM, and remained there for about 45 minutes. These contradictions are taken individually, as well as collectively do not affect the merits of the case, in any manner. These contradictions apparently occurred, in the statements of the prosecution witnesses, on account of the lapse of time, and fading of memory. The prosecution witnesses, could not be expected to make parrot-like statements. These contradictions, on the other hand, clearly go to show that the prosecution witnesses are truthful, and not tutored. These contradictions, are not at all, in any way, significant. These only relate to the insignificant and minor details, relating to the recovery. The evidence of these witnesses, however, is not at all contradictory or discrepant, with regard to the search and seizure of the accused. The trial Court was, thus, right in discarding the same. 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 no opportunity was granted to the accused, to lead his defence evidence, and, as such, he was deprived of his valuable legal right, resulting into causing a great prejudice to him. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The statement of the accused, under Section 313 Cr.P.C., was recorded on 8.12.2005, in which he was asked, as to whether, he wanted to lead defence evidence. He stated that he wanted to lead defence evidence. Thereafter, the case was adjourned to 12.12.2005, for defence evidence. The accused closed Crl. Appeal No.849-SB of 2008 9 his defence evidence, vide statement dated 12.12.2005, on his own. The record does not indicate that the accused made a request to the Court, that he be afforded further opportunity, for leading defence evidence, but it declined the same. Since, the accused himself, closed his defence evidence, it does not lie in his mouth, to say, that his defence evidence was closed, by the Court by order, and he was deprived of his valuable legal right, in proving his innocence. The submission of the Counsel for the appellant, in this regard, 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 dated 13.12.2005, and the order of sentence dated 14.12.2005, are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Jhajjar, 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 and Sessions Judge, Jhajjar, shall ensure that the directions are complied with, within the time frame, and the compliance report is submitted immediately thereafter.
18. The Registry shall keep track of the submission of compliance Crl. Appeal No.849-SB of 2008 10 reports, and put up the papers whether the reports are received or not, within the time frame, immediately after the expiry thereof.
25.11.2008 (SHAM SUNDER) Vimal JUDGE