Punjab-Haryana High Court
State Of Haryana vs Sandeep Kumar on 22 January, 2009
Author: K.S.Garewal
Bench: K.S.Garewal
Crl. Appeal No.495-DBA of 2008 1
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.495-DBA of 2008
Date of Decision : 22.01.2009
State of Haryana ...Appellant
Versus
Sandeep Kumar ....Respondent
Crl. Appeal No.2409-SB of 2007
Kulbir Singh ...Appellant
Versus
State of Haryana ....Respondent
Crl. Appeal No.2469-SB of 2007
Babli @ Tarsem Singh ...Appellant
Versus
State of Haryana ....Respondent
CORAM:HON'BLE MR. JUSTICE K.S.GAREWAL
HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. S.S.Pattar, Senior Deputy Advocate General, Haryana,
for the appellant, in Criminal Appeal No.495-DBA of 2008.
Mr. Pankaj Midha, Advocate,
for Sandeep Kumar-respondent, in
Criminal appeal No.495-DB of 2008.
Mr. Satnam Singh Gill, Advocate,
for Kulbir Singh, appellant,
in Criminal Appeal No.2409-SB of 2007.
Mr. S.S.Siao, Advocate,
with Ms. Shweta Bawa, Advocate,
for Babli @ Tarsem Singh-appellant, in
Criminal Appeal No.2469-SB of 2007.
Crl. Appeal No.495-DBA of 2008 2
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
Mr. S.S.Pattar, Senior Deputy Advocate General, Haryana,
for the respondent, in Criminal Appeal Nos.2409-SB of 2007 &
2469-SB of 2007.
SHAM SUNDER, J.
This judgment shall dispose of Criminal Appeal No.495-DBA of 2008, filed by the State of Haryana, against the judgment of acquittal dated 25.8.2007, of Sandeep Kumar, Criminal Appeal No.2409-SB of 2007, filed by Kulbir Singh, appellant, and Criminal Appeal No.2469-SB of 2007, filed by Babli @ Tarsem Singh, appellant, against the judgment of conviction dated 25.8.2007, and the order of sentence dated 27.8.2007, rendered by the Special Judge, Jind, vide which he convicted Kulbir Singh and Babli @ Tarsem Singh, accused/appellants, for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced them, to undergo rigorous imprisonment, for a period of ten years each, and to pay a fine of Rs.1 lac each, and in default of payment of the same, to undergo rigorous imprisonment for another period of six months each, for having been found in possession of 280 kgs. poppy-husk, (falling within the ambit of commercial quantity), without any permit or licence. As stated above, Sandeep Kumar, accused, was acquitted vide the aforesaid judgment, by the trial Court.
2. The facts of the prosecution case, as summarized, proceeded in the manner, that on 3.5.2006, a V.T.message was received in Police Station Garhi, from the Deputy Superintendent of Police, Narwana. The message was to the effect, that one Scorpio vehicle having 2/3 occupants, was found moving under suspicious circumstances, and a picket be held, Crl. Appeal No.495-DBA of 2008 3 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 with a view to check the same. On receipt of this message, Dalbir Singh, ASI, Police Station Garhi, alongwith other police officials reached Data Singhwala, in Govt. Jeep, bearing No.HR-21 B-8395, driven by Suresh Kumar, Constable. At that place, the other police officials met the police party. Thereafter, Dalbir Singh, ASI, held a picket. One Scorpio vehicle (silver coloured), bearing No.HR-37 B-4278, came from Narwana side. On seeing the police party, the vehicle all of a sudden stopped. As soon as it stopped, two persons alighted from the back side of the said vehicle. The driver of the said vehicle got down from the driver's seat. All of them fled towards the fields. Dalbir Singh, ASI, and the other police officials got suspicious, about the conduct of the occupants of the said vehicle, who after getting down therefrom, started running. They were asked to stop, but they did not do so. They were chased. While running two of them put off their shoes. However, at a distance of about half kilometer, all of them were apprehended. One of them, disclosed his name as Sandeep Kumar, who was driving the vehicle, whereas, the remaining two persons, disclosed their names as Babli @ Tarsem Singh S/o Gurmel Singh and Kulbir Singh S/o Nikka Singh. Babli @ Tarsem Singh and Kulbir Singh, who put off their shoes, while running, sustained injuries, in the fields, where the wheat crop was lying. Thereafter, they were brought near the aforesaid vehicle. The vehicle was checked. It was found containing 06 gunny bags and 02 plastic bags. Dalbir Singh, ASI, suspected that the bags aforesaid, contained contraband. Notice under Section 50 of the Act, was served upon them, as to whether, they wanted the search of the bags, to be conducted, in the presence of a Crl. Appeal No.495-DBA of 2008 4 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 Gazetted Officer, or a Magistrate. They, however, opted that they wanted the search to be conducted, in the presence of a Gazetted Officer. Thereafter, Dalbir Singh, ASI, called the DSP, Narwana, to the spot, who reached there. He directed Dalbir Singh, ASI, to conduct the search of the gunny and plastic bags. The gunny and the plastic bags, were taken out of the vehicle aforesaid. On search, each gunny bag, was found containing 40 kgs. poppy-husk, whereas each plastic bag, was found containing 20 kgs. poppy-husk. Two samples of 100 grams, from each of the gunny and the plastic bags, were taken out, and the remaining poppy- husk, was kept in the same gunny and plastic bags. The samples, gunny and the plastic bags, containing the remaining poppy-husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo, alongwith the Scorpio vehicle. Ruqa, Ex.PG, was sent to the Police Station, on the basis whereof, formal FIR, Ex.PE, was registered. Rough site plan, Ex.PA, of the place of recovery, was prepared. The statements of the witnesses were recorded. The accused were arrested. After the completion of investigation, the accused were challaned.
3. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, against all the accused, as also under Sections 467 and 471 of the Indian Penal Code, against Sandeep Kumar, accused, was framed, to which they pleaded not guilty, and claimed trial.
4. The prosecution, in support of its case, examined Raghbir Singh, SI (PW-1), before whom the case property, samples, witnesses, Crl. Appeal No.495-DBA of 2008 5 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 and the accused, were produced, by Dalbir Singh, ASI, and who after verification of the same, affixed his own seal, Kuldeep Gupta, Draftsman (PW-2), who prepared the scaled site plan, Ex.PB, Ram Kumar, Constable (PW-3), a formal witness, who tendered his affidavit, Ex.PC, Raj Kumar, HC (PW-4), another formal witness, who tendered his affidavit, Ex.PD, Krishan Kumar, EHC (PW-5), who delivered special report, Ex.PE, to the Illaqa Magistrate, Krishan Kumar, Photographer (PW-6), who took the photographs, Exs.P1 and P2, of Scorpio vehicle, as also of the gunny bags, and of the plastic bags, and the negatives whereof, are Exs.P3 and P4, Surender Singh Malik, DSP (PW-7), a witness to the search and seizure, Dalbir Singh, SI (at the relevant time ASI) (PW-8), the Investigating Officer, who deposed, with regard to the search of the accused, and seizure of the contraband, Jagat Singh, SI (PW-9), who submitted the report, under Section 173 Cr.P.C., after the completion of investigation, and Rajinder Singh, ASI (PW-10), a witness to the search and seizure. Thereafter, the Public Prosecutor for the State, tendered report of the Forensic Science Laboratory, Ex.PM, and after giving up Mahabir Singh, HC, he closed the prosecution evidence.
5. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication.
6. Kulbir Singh, accused, in his statement, under Section 313 Cr.P.C. stated that the prosecution witnesses deposed falsely, against him. Crl. Appeal No.495-DBA of 2008 6 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007
7. Babli @ Tarsem Singh and Sandeep Kumar, accused, also took up the same plea, in their statements, under Section 313 Cr.P.C., as was taken up by Kulbir Singh, accused.
8. Sandeep Kumar, accused, however, produced Harpal Kaur (DW-1), Raj Kumar, (DW-2), and Hem Raj, (DW-3), in their defence. Thereafter, the accused closed the defence evidence.
9. 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 Kulbir Singh and Babli @ Tarsem Singh, accused, whereas, acquitted Sandeep Kumar, accused, as stated hereinbefore.
10. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, Criminal Appeal Nos.2409- SB of 2007 and 2469-SB of 2007, were filed by Kulbir Singh and Babli @ Tarsem Singh, appellants, respectively, and the State of Haryana, filed Criminal Appeal No.495-DBA of 2008, against the acquittal of Sandeep Kumar.
11. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
12. The Counsel for appellants, Kulbir Singh and Babli @ Tarsem Singh, at the very outset, submitted that the prosecution miserably failed to prove the conscious possession of the accused, in relation to the poppy-husk, allegedly recovered from the Scorpio vehicle, and, as such, they did not commit any offence, punishable under Section 15 of the Act. Crl. Appeal No.495-DBA of 2008 7 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Kulbir Singh and Babli @ Tarsem Singh, were sitting on 06 gunny bags, and 02 plastic bags, containing poppy-husk, which were lying in the said vehicle. It was not a small quantity of poppy-husk, which was recovered from the said vehicle. It was a big haul of poppy-husk, which was being transported, in the said vehicle. It could not escape the notice of both these accused. It was within the special means of knowledge of the accused, as to wherefrom these bags, containing poppy-husk, were loaded, in the said vehicle, and to which destination the same were being transported, for the purpose of sale, on commercial basis, for minting money. They were required to explain the circumstances, regarding the existence of the bags, containing poppy- husk, in the said vehicle. They, however, failed to furnish any explanation, in this regard. Under these circumstances, the possession of the accused, and their control over the bags, containing poppy-husk, stood proved. Once the possession of the accused, and their control over the contraband was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against them, that they were in conscious possession thereof. Thereafter, it was for them, to rebut the presumption, by leading cogent and convincing evidence. However, the appellants failed to rebut that presumption, either during the course of cross- examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that they were in conscious possession of the contraband. Section 54 of the Act ibid reads as under :-
Crl. Appeal No.495-DBA of 2008 8
Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 "Presumption from possession of illicit articles:- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act, in respect of:-
a) any narcotic drug or psychotropic
substance or controlled substance;
b) any opium poppy, cannabis plant or coca
plant growing on any land which he has cultivated;
c) any apparatus specially designed or any
group of utensils specially adopted for the
manufacture of any narcotic drug or psychotropic
substance or controlled substance; or
d) any materials which have undergone any
process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily."
13. Section 35 which relates to the presumption of culpable mental state, is extracted as under :-
"Presumption of culpable mental state:- (1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the Crl. Appeal No.495-DBA of 2008 9 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation:- In this section "culpable mental state"
includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
14. From the conjoint reading of the provisions of Sections 54 and 35, referred to hereinbefore, it becomes abundantly clear, that once an accused, is found to be in possession of a contraband, he is presumed to have committed the offence, under the relevant provisions of the Act, until the contrary is proved. According to Section 35 of the Act ibid, the Court shall presume the existence of mental state, for the commission of an offence, and it is for the accused to prove otherwise. In Madan Lal and another Vs. State of H. P. 2003 SCC (Crl.) 1664 it was held as under:-
The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
Once possession is established, the person Crl. Appeal No.495-DBA of 2008 10 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 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 the 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."
15. The facts of Madan Lal's case (supra) in brief, were that accused Manjit Singh was driving the Car and the remaining four accused, were sitting therein. One steel container (dolu) in a black coloured bag, was recovered from the said Car, which contained 820 gms. charas. All the accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas, despite the fact, that one of the accused, admitted his conscious possession, of the contraband. The Apex Court held that the trial Court was right in coming to the conclusion, that the accused were found in conscious possession of charas, as they had failed to explain, as to how, they were travelling in a Car together, which was not a public vehicle. The Apex Court upheld the conviction and sentence awarded to the accused. In the instant case, the accused failed to explain, as to how, 06 gunny bags and 02 plastic bags, containing poppy-husk were found in the Scorpio vehicle, in which they were travelling. The facts of Madan Lal's case (supra) are similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lal's case (supra) is fully applicable to the facts of the present case. In the instant case, in their statements, under Section 313 Cr.P.C., the accused/appellants took up the plea, only of false Crl. Appeal No.495-DBA of 2008 11 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 implication. They also failed to prove, as to how, they were found travelling together in Scorpio, which was not a public vehicle. No plea was taken up by Kulbir Singh and Babli @ Tarsem Singh, that they only took a lift in the said vehicle, as no public transport, was available. They also did not take up the plea that they were merely engaged as labourers, for loading and unloading the bags, and, therefore, they did not know, what was contained therein. No plea was also taken up, by them, that they were friendly to the driver of the said vehicle, and with a view to provide him company, they sat therein. As stated above, the accused miserably failed to rebut the statutory presumption, referred to above. Thus, their conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
16. It was next submitted by the Counsel for Kulbir Singh and Babli @ Tarsem Singh, appellants, that no independent witness was joined, despite availability, and, as such, the case of the prosecution became doubtful. In the instant case, no specific information had been received against the accused, that they were bringing contraband, in a particular vehicle, and, in case, a picket was held, they could be apprehanded and huge quantity of narcotics could be recovered from them. Only a general information was received, by the DSP, who conveyed the same through V.T.message to the Police Station. It was only thereafter, keeping in view the urgency of the matter, that Dalbir Singh, ASI of Police Station Garhi, accompanied by other police officials, went in the area of village Data Singhwala, and held a picket. It Crl. Appeal No.495-DBA of 2008 12 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 was, per chance, that the aforesaid vehicle, the occupants whereof, were the accused came. The place where the picket had been held, is at a distance of about half kilometer from Village Data Singhwala, as is evident from the statement of Dalbir Singh, ASI (PW-8), the Investigating Officer. Dalbir Singh, ASI, during the course of his cross- examination, stated that some persons had reached the spot of their own. He further stated that an attempt was made to join those persons, in the investigation, but they showed their inability. It means that an effort was made by Dalbir Singh, ASI, the Investigating Officer, to join the independent witnesses, but none was ready to join. Under these circumstances, the conduct of the Investigating Officer, could not be said to be blemished, in any manner. It is a matter of common experience that independent witnesses, shun joining, a search or seizure with a view to avoid wrath and displeasure of the accused, as also the complications, which may arise later on, on account of their appearance in the Court, from time to time, for their evidence. It has also become the general tendency of the people to criticize the Police and the Courts, for their failures, but when an occasion arises, to seek their assistance, at the time of search or seizure of a contraband, or detection of crime, they show their disinterest. The mere fact that no independent witness could be joined, on account of the aforesaid reasons, in itself, could not be said to be sufficient to disbelieve and distrust the evidence of the prosecution witnesses. 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 Crl. Appeal No.495-DBA of 2008 13 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 the evidence of the official witnesses, inspires confidence, and does not suffer from any serious infirmity, then no formidible reason can be coined, to disbelieve the same. 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 prosecution witnesses, on such scrutiny, has been found to be cogent, convincing, reliable and trustworthy. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled, that the evidence of search or seizure, made by the police, will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:-
"It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature."
17. In Appa Bai and another Vs. State of Gujrat, AIR 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined, by the prosecution. It was further held, in the said authority, that the civilized Crl. Appeal No.495-DBA of 2008 14 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims' side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves, in it. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, 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 appellants, in this regard, being without merit, must fail, and the same stands rejected.
18. It was next submitted by the Counsel for Kulbir Singh and Babli @ Tarsem Singh appellants, that the samples were deposited in the office of the Forensic Science Laboratory, after a delay of 14 days, without any explanation, and, as such, the possibility of tampering with the same, until the same reached the Laboratory, could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that no explanation was furnished for depositing the samples, in the Laboratory, after delay, in itself, is not sufficient, to come to the conclusion, that the same were tampered with, at any stage of the case. 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 Crl. Appeal No.495-DBA of 2008 15 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 prosecution, has been subjected to indepth scrutiny. It has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Forensic Science Laboratory. Above all, there is report of the Forensic Science Laboratory, Ex.PM, which clearly proves that the seals on the parcels, were found intact, and tallied with the specimen seals sent. The report of the Forensic Science Laboratory, is per-se admissible into evidence, in its entirety, as per the provisions of Section 293 Cr.P.C. The delay, in sending the samples, to the office of the Forensic Science Laboratory, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Forensic Science Laboratory, the matter would have been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not 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, Crl. Appeal No.495-DBA of 2008 16 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 14 days, in sending the samples to the office of the Forensic Science Laboratory, did not at all matter much. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
19. It was next submitted by the Counsel for Kulbir Singh and Babli @ Tarsem Singh, appellants, that no written notice, under Section 50 of the Act, was served, upon the accused, as to whether, they wanted the search of the vehicle, and the bags, in the presence of a Gazetted Officer or a Magistrate. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In the instant case, joint notice, Ex.PF, in terms of Section 50 of the Act, was served upon the accused, and their reply, Ex.PF/1, was obtained. However, it may be stated here, that in the instant case, the provisions of Section 50 of the Act, were not applicable, as the recovery was not effected, from the person of the accused, but from the aforesaid Scorpio vehicle, of which they were the occupants. Had the recovery been effected from the person of the accused, the provisions of Section 50 of the Act, would have been attracted to this 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 Crl. Appeal No.495-DBA of 2008 17 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 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 the search, in the instant case, the trial Court was right in recording conviction and awarding sentence, to the accused. The submission of the Counsel for the appellants, in this regard, being devoid of merit, is rejected.
20. It was next submitted by the Counsel for Kulbir Singh and Babli @ Tarsem Singh appellants, that the Scorpio vehicle, did not belong to the accused. It was further submitted that no investigation was conducted, by the Investigating Officer, as to whom the said vehicle belonged, and as to what was the origin of the poppy-husk. They further submitted that, on account of this reason, the case of the prosecution became highly doubtful. It was further submitted that even the owner of the vehicle, was not challaned. It is, no doubt, true that the Investigating Officer, committed some irregularity by not ascertaining the name of the owner of the vehicle. Even the owner of the vehicle was not joined, during the course of investigation. However, the mere fact that the Investigating Officer, committed some irregularity or illegality, during the course of investigation, did not mean that the benefit thereof, must go to the accused. If such irregularity or illegality of the Investigating Officer is taken into consideration, and benefit thereof, is given to the Crl. Appeal No.495-DBA of 2008 18 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 accused, then every dishonest or negligent Investigating Officer, shall leave a lacuna, in the prosecution case, so as to create an escape route for the accused. On account of non-ascertaining the ownership of the vehicle, and non-joining the owner thereof, during the course of investigation, the liability of the accused was not at all affected. Kulbir Singh and Babli @ Tarsem Singh, were found transporting the contraband, in the aforesaid vehicle. Mere possession of the contraband, is an offence, punishable under Section 15 of the Act. Both the accused, namely Kulbir Singh and Babli @ Tarsem Singh, thus, committed, the offence punishable under Section 15 of the Act. The trial Court was right in coming to such a conclusion. In this view of the matter, The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
21. It was next submitted by the Counsel for Kulbir Singh and Babli @ Tarsem Singh, appellants, that, as soon as an information, was received by the DSP, that a Scorpio vehicle was moving about, under suspicious circumstances, he did not send the same to the superior Officer. The submission of the Counsel for the appellants, in this regard, is without merit. The DSP himself being a Gazetted Officer, as soon as, he received the information, he sent the same to the Police Station, with a view to alert the police officials, to hold a picket, to detect that vehicle, and check the same, as to whether, the same was carrying some contraband or not. Even otherwise, there was no specific information against the accused, that they were coming in a particular vehicle, loaded with the contraband, and could be apprehended, if a raid was conducted, Crl. Appeal No.495-DBA of 2008 19 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 or a picket was held, with huge quantity thereof. The DSP was not required to send the said general information, received by him, to any superior Officer. By not sending the same, to a superior Officer, he did not commit violation of any of the provisions of law. In this view of the matter, the submission of the Counsel for the appellants, in this regard, being devoid of merit, is rejected.
22. It was next submitted by the Counsel for Kulbir Singh and Babli @ Tarsem Singh, appellants, that the seal after use, remained with the police officials, and, as such, the possibility of tampering with the sample parcels, and changing the contents thereof, until the same reached the office of the Forensic Science Laboratory, could not be ruled out. It may be stated here, that no independent witness could be joined, in this case, on account of the aforesaid reasons. Under these circumstances, the seal after use was handed over to the police officials. The mere fact that the seal after use, was handed over to the police officials, did not, in any way, go to prove that the sample parcels, were tampered with, in any manner. It may be stated here, that as soon as, Dalbir Singh, ASI, reached the Police Station, he produced the case property before the SHO, who after checking the same, affixed his own seal. Thereafter, the case property, and the sample parcels, alongwith sample impression of the seals, were entrusted to Dalbir Singh, ASI, by the SHO, and he deposited the same, with the MHC. The seals remained with the other officials. As soon as the case property, and the sample parcels, were deposited with the MHC, it could not be said that the same remained with those officials, who were in possession of the seals. Even otherwise, Crl. Appeal No.495-DBA of 2008 20 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 sufficient cogent, convincing, reliable, and trustworthy, evidence was produced, by the prosecution, to prove that none tampered with the sample parcels, until the same reached the office of the Forensic Science Laboratory. There is no requirement of law, to hand over the seal, after use, to an independent witness. The Investigating Officer is to investigate a large number of cases. He cannot be expected to keep a number of seals. Only if, he has one seal for use, the sanctity thereof, can be maintained. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal, on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal, by the Investigating Officer, later on, was not produced as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the trial, and the prosecution case, could not be thrown out, on that score alone. It was further held, in this case, that it was not incumbent upon the Police Officer, to hand over the seal to a third person forthwith, and even, in cases, where he had done so, it was not obligatory upon him, to produce such person, as a witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. Non-entrustment of seal, to an independent witness, by the Investigating Officer, in view of the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, regarding the completion of link evidence, did not at all affect the merits of the case. In Crl. Appeal No.495-DBA of 2008 21 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
23. It was next submitted by the Counsel for Kulbir Singh and Babli @ Tarsem Singh, appellants, that though, according to the prosecution case, 06 gunny bags and 02 plastic bags, containing poppy- husk, were allegedly recovered from the accused, but only 5 seals were affixed. They further submitted that, as such, the case of the prosecution, became highly doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Dalbir Singh, ASI, in his statement, stated that the gunny bags and the plastic bags, were sealed with his seal 'DS'. He further stated that the samples were also sealed with his seal 'DS'. He further stated that he affixed 3 seals of 'DS' on each sample parcel, and 5 seals of 'DS' on each gunny and plastic bag. He also stated that the DSP also affixed one seal, bearing impression 'SS' on each sample parcel, and each gunny and plastic bag. From the careful perusal of the statement of Dalbir Singh, ASI, it is evident, that on each sample parcel, he affixed 3 seals, whereas, on each gunny bag and plastic bag, he affixed 5 seals. It does not mean that he only affixed 5 seals on 5 bags. In these circumstances, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. The trial Court was, thus, right in recording conviction and awarding sentence, for the offence, punishable under Section 15 of the Act, to Kulbir Singh and Babli @ Tarsem Singh, accused.
24. Now coming to the appeal, filed by the State of Haryana, Crl. Appeal No.495-DBA of 2008 22 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 against the acquittal of Sandeep Kumar, it may be stated here, that the same is liable to be dismissed, for the reasons to be recorded hereinafter. It is, no doubt, true that the Appellate Court has got wide powers, to scrutinize the entire evidence produced by the prosecution, while hearing the appeal, against acquittal. However, if the view taken by the trial Court, was the one, which could be possible, on the basis of the evidence on record, then the Appellate Court, is required to be very slow in interfering with its finding. The entire evidence produced by the prosecution, qua Sandeep Kumar, has been carefully scanned. The trial Court was right, in holding that, in case, Sandeep Kumar, was present, at the spot, and allegedly tried to flee, why was he not got medico-legally examined, after he was arrested, alongwith other accused. The trial Court was also right, in holding, that when the other accused namely Kulbir Singh and Babli @ Tarsem Singh, after apprehension were got examined from the Doctor, injuries were found on their person, and had Sandeep Kumar been apprehended, in the manner, deposed to by the prosecution witnesses, and got medico-legally examined, the injuries on his person would have also been found, indicating that the case of the prosecution was truthful. The trial Court was, thus, right in holding that in the absence of such medical examination, the presence of Sandeep Kumar, at the time of the alleged recovery, and his apprehension was highly doubtful. The trial Court was also right in holding that since the very presence of Sandeep Kumar, at the time of alleged recovery, was doubtful, it could not be said that he was in conscious possession of the contraband, allegedly recovered, from the vehicle. The trial Court was Crl. Appeal No.495-DBA of 2008 23 Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007 also right in holding that Sandeep Kumar, belonged to Ludhiana, whereas, Kulbir Singh and Babli @ Tarsem Singh, accused, belonged to Dhuri, District Sangrur, the places which were far away from each other, and, as such, there was no nexus, between him and the other accused. The trial Court was also right, in placing reliance on the evidence of Harpal Kaur (DW-1), Raj Kumar, (DW-2), Social Workers, and Hem Raj, (DW-3), to come to the conclusion, that the possibility of false implication of Sandeep Kumar, could not be ruled out. The view taken by the trial Court, that accused Sandeep Kumar, was not found in conscious possession of the poppy-husk aforesaid, nor was he the driver of Scorpio vehicle, wherefrom, the alleged recovery was effected, could be said to be possible, on the basis of the evidence produced by the prosecution. The judgment of the trial Court, recording acquittal of Sandeep Kumar, accused, does not suffer from any factual infirmity, illegality, perversity, or mis-reading of evidence. Therefore, no ground, whatsoever, is made out to interfere with the finding of the trial Court, acquitting Sandeep Kumar. The said appeal, therefore, is liable to be dismissed.
25. No other point, was urged, by the Counsel for the parties.
26. In view of the above discussion, it is held that the judgment of conviction, and the order of sentence, qua Kulbir Singh and Babli @ Tarsem Singh, appellants, and the judgment of acquittal qua Sandeep Kumar, 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.
Crl. Appeal No.495-DBA of 2008 24Crl. Appeal No.2409-SB of 2007 & Crl. Appeal No.2469-SB of 2007
27. For the reasons recorded, hereinbefore, all the appeals, referred to hereinbefore, are dismissed. The judgment of acquittal dated 25.8.2007, qua Sandeep Kumar, and the judgment of conviction dated 25.8.2007, and the order of sentence dated 27.8.2007, qua Kulbir Singh and Babli @ Tarsem Singh, are upheld. If Kulbir Singh and Babli @ Tarsem Singh, appellants, are on bail, their bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Jind, shall take necessary steps, to comply with the judgment, in accordance with the provisions of law, with due promptitude, on receipt of a copy thereof.
(K.S.GAREWAL) (SHAM SUNDER)
JUDGE JUDGE
January 22, 2009
Vimal