Punjab-Haryana High Court
Been Maya vs State Of Haryana on 10 March, 2010
Criminal Appeal No. 1352 SB of 2005(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 1352 SB of 2005(O&M)
Date of decision: 10.03.2010
Been Maya ..............Appellant
Versus
State of Haryana ................Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present: Mr. S.S.Siao, Advocate, for the appellant
Mr. Raja Sharma, Assistant Advocate General, Haryana
HARBANS LAL,J.
This appeal is directed against the judgment dated 21.5.2005/order of sentence dated 23.5.2005 passed by the court of learned Special Judge, Faridabad whereby he convicted and sentenced the accused Been Maya to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1.00 lac under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the Act) and in default of payment of fine to further undergo rigorous imprisonment for two years.
Succinctly put, the facts of the prosecution case are that on 18.12.2003 at about 12.40 P.M. Maya Ram Sub Inspector, Station House Officer, Police Station G.R.P. Faridabad amongst other police officials happened to be present at Platform No.1, Railway Station Faridabad in connection with patrol duty and crime detection. He was chattering with Criminal Appeal No. 1352 SB of 2005(O&M) -2- Balram Singh son of Kanwar Singh resident of Aurangabad. Meanwhile, the police officials who were on duty with the Sub Inspector apprehended eight persons including the accused. The accused Been Maya tried to escape during the checking of train between Palwal and Hodal. She was intercepted and was produced before the above mentioned Sub Inspector at Faridabad. Suspecting that she was in possession of some contraband, the notice under Section 50 of the Act was served upon her. She opted to have the search in the presence of a Gazetted Officer. Satya Vati D.S.P. was called at the spot. On search, 1.620 kgs charas duly wrapped in a cloth and tied around the body of the accused was recovered. Two samples of 20 grams each were drawn and converted into parcels. The remainder was also turned into parcel. These parcels were sealed and seized vide recovery memo. The accused was put under arrest. Ruqa was sent to the Police Station, where on its basis formal F.I.R. was recorded. After completion of investigation, the charge-sheet was laid in the court for trial of the accused.
The accused was charged under Section 20 of the Act to which she did not plead guilty and claimed trial. In order to bring home guilt against the accused, the prosecution examined Constable Raj Kumar PW-1, Constable Narbir Singh PW-2, ASI Bijender Singh PW-3, ASI Shri Chand PW-4, Head Constable Ved Pal PW-5, Sub Inspector Maya Ram PW-6, Satya Dy.S.P PW-7 and closed its evidence by tendering the report of the Forensic Science Laboratory.
When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against her and pleaded innocence as well as false implication. Criminal Appeal No. 1352 SB of 2005(O&M) -3- She did not adduce any evidence in her defence.
After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, she has preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
To begin with Mr. S.S.Siao, learned counsel for the appellant urged with a good deal of force that it is the specific case of the prosecution that the seal after use was handed over to Balram Singh public witness who has been given up on the pretense that he has been won over by the accused with the result the accused has been deprived of her valuable and indefeasible right to cross-examine him. If he had been examined, it would have been wrenched out from him as to whether the seal was returned by him before or after the dispatch of sample parcels for chemical analysis.
To tide over these submissions, the learned State counsel pressed into service that this witness having been gained over by the accused, the prosecution could not be expected to examine him.
On giving a deep and thoughtful consideration to the rival contentions the view I am disposed to take is that the contention raised by Mr. Siao on behalf of the appellant is unsustainable for the reasons to be recorded hereinafter.
PW Balram Singh has been given up on the specific pretext of his having been won over by the accused. The possibility cannot at all be ruled out that the witness of the prosecution can later on join hands with the Criminal Appeal No. 1352 SB of 2005(O&M) -4- accused and in that eventuality, the prosecution cannot be expected to produce the person as its own witness who too its own knowledge is not going to support its case. In Masalti Vs. State of U.P. AIR 1965 SC 202 the Supreme Court has held that "It is undoubtedly the duty of the prosecution to lay before the court all material evidence available to it, which is necessary for unfolding its case. It would be unsound to lay down it as 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." An identical view has been taken in Bawa Haji Vs. State of Kerala AIR 1974 Supreme Court 902. In Piara Singh Vs. The State of Punjab 1982 Chandigarh Law Reporter (2) 447 the Full Bench of this court has held as under:-
"In the ultima ratio criminal trials ordinarily turn and must continue to do so on the credibility and acceptability of the evidence on record. It is not possible to hold that a criminal trial would succeed or fail merely on the technicality of the delivery of an investigating seal to a third person or the latter's refusal or inability to appear as a witness about the same. It is more so in the admitted position that there is no statutory requirement what-so-ever to this effect.
To conclude, it must be held that there is neither a statutory requirement nor a precedential mandate for handing over the seal by the police officer in the course of an investigation to a third person forthwith. It necessary follows therefrom that even where it has been so done, the non-production of such a witness Criminal Appeal No. 1352 SB of 2005(O&M) -5- cannot by itself affect the merits of the trial."
Harking back to the instant one, if the matter is looked in the back drop of the above ratio decidendi the non-production of Balram Singh at the trial hardly affects merits of the trial. The mere non-production of a witness on the ground that he was won over cannot be a ground for attacking the correctness of the prosecution case. The Division Bench of this Court in Roop Singh Vs. State of Punjab 1996(1) Recent Criminal Reports(Criminal)146 held as under:-
"A Panch-witness may turn hostile and not support the case of the prosecution or may be hesitant in appearing in the Court and depose against an accused for various reasons from fear to bribe. He is an average and ordinary human being and quite exposed and vulnerable to the human feelings of yielding, brow-beating, threats, inducements, etc. To figure as a Panch- witness at the stage of police investigation, is one thing, and thereafter to give evidence before the Court is entirely a different thing. In fact, a Panch-witness generally think twice before entering into a witness-box and if at all he enters the same, one would not be surprised if he does not support the prosecution because of variety of the reasons mentioned above. Therefore, the fact that the prosecution has given up the independent public person Nirbhai Singh having been won over by the accused persons, is fully justified in the present-day situation prevailing in the Society and no adverse inference against the prosecution can be drawn in this case. Criminal Appeal No. 1352 SB of 2005(O&M) -6- As regards the second limb of the argument that the conviction has been sustained merely on the testimony of two police officers without any independent corroboration, is also without any merit. It is certainly not the law that in each and every case irrespective of the case and attending circumstances, the evidence of the police officer needs corroboration before it is accepted or to be acted upon. The presumption that a person acts honestly, applies so much in favour of a police officer as of other persons, and it is not the judicial approach to distrust and suspect him without good grounds therefor. Even if the testimony of a police officer requires some corroboration to be acted upon, the corroboration does not necessarily mean that the witness should be corroborated by other witness only. The testimony of a police officer can be corroborated by way of some intrinsic circumstantial evidence available on the record. In fact, in a given case, there may not be any other direct evidence of the witness to corroborate the evidence of the police officer, but at the same time there is nothing to reach at the conclusion that the police officer was malicious and interested in falsely framing up the accused and there was certain in-built and unimpeachable circumstantial evidence on the record to support the evidence of the police officer, then in such a case implicit reliance can be placed upon the testimony of such a police officer."
In view of the afore-quoted law, the contention raised by Mr. Criminal Appeal No. 1352 SB of 2005(O&M) -7- Siao pales into insignificance.
Mr. Siao further attacked the prosecution edifice by contending that as surfaces in the cross-examination of Maya Ram Sub Inspector, Investigator (sic) "Balram Singh was joined as public witness in the investigation of eight cases." This evidence proprio-vigore brands Balram Singh as a stock witness of the police. That being so, the recovery allegedly effected within his view ought to be looked upon with grave suspicion. This contention merits rejection. It is the prosecution case that when Maya Ram Sub Inspector was present at Platform No.1 of Railway Station old Faridbad four ladies and four gents alongwith their baggage were produced before him by the other police officials. Balram Singh being in attendance incidentally, the search of these males and females was carried out in his presence. The accused has not produced any evidence in the nature of F.I.Rs in which Balram Singh PW has been shown to be the recovery witness by Maya Ram Sub Inspector. Had it been established on the record that this Sub Inspector more often than not joins Balram Singh in the recovery cases only in that eventuality, he could have been dubbed as a stooge or stock witness of the police. In State of U.P. Vs. Za Kaullah 1998 Supreme Appeals Reporter(Criminal) 790 it has been laid down by the Supreme Court that "acquaintance with police by itself would not destroy a main independent look. As long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that they are not independent. Every citizen of India is presumed to be independent until it is proved that he is dependent of police or other officials for any purpose whatsoever." Adverting to the case in hand, the record is quite barren to Criminal Appeal No. 1352 SB of 2005(O&M) -8- show if Balram Singh was in any manner dependent upon Maya Ram Sub Inspector or any other police official. Thus, he can be well described to be an independent witness. For his non-examination by the prosecution no adverse inference under illustration (e) of Section 114 of the Indian Evidence Act can be drawn against the conduct of the prosecution. If the things had not taken place in the manner as suggested by the prosecution, to prove so, the accused could have summoned and examined Balram Singh in her defence. Thus this contention being devoid of any merit is turned down.
Mr. Siao argued that Maya Ram Sub Inspector PW-6 has played the role of the complainant as well as the Investigator and thus, the trial stands vitiated. In State represented by Inspector of Police Vigilance and Anti-Corruption Vs. V.Jayapaul 2004(2) Recent Criminal Reports (Criminal) 317 S.C. it has been held as under:-
"4.We have no hesitation in holding that the approach of the High Court is erroneous and its conclusion legally unsustainable. There is nothing in the provisions of the Criminal Procedure Code which precluded the appellant (Inspector of Police, Vigilance) from taking up the investigation. The fact that the said police officer prepared the FIR on the basis of the information received by him and registered the suspected crime does not, in our view, disqualify him from taking up the investigation of the cognizable offence.
A suo motu move on the part of the police officer to investigate a cognizable offence impelled by the information Criminal Appeal No. 1352 SB of 2005(O&M) -9- received from some sources is not outside the purview of the provisions contained in Sections 154 to 157 of the Code or any other provisions of the Code. The scheme of Sections 154, 156 and 157 was clarified thus by Subba Rao, J. speaking for the Court in State of U.P. v Bhagwant Kishore, AIR 1964 SC
221. 'Section 154 of the Code prescribes the mode of recording the information received orally or in writing by an officer in charge of a police station in respect of the commission of a cognizable office. Section 156 thereof authorizes such an officer to investigate any cognizable offence prescribed therein. Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation. Section 157 prescribes the procedure in the matter of such an investigation which can be initiated either on information or otherwise. It is clear from the said provision that an officer in charge of a police station can start investigation either on information or otherwise'."
Arguendo, Mr. Siao could not draw attention of the court towards any evidence on the record revealing that investigation having been conducted by this Sub Inspector in any manner has caused prejudice to the accused or that the investigation was biased against the accused. As is borne out from the record the Sub Inspector was not inimically disposed off towards the accused. Besides this he being an officer of the rank of Sub Inspector could not have arranged such a huge quantity of charas which Criminal Appeal No. 1352 SB of 2005(O&M) -10- falls within the definition of commercial quantity for planting it on the accused. In V.Jayapaul's case(supra) the police officer who had registered the F.I.R., himself had taken up the investigation. It was held that it could only be assailed on the ground of bias or real likelihood of bias on the part of the Investigating Officer, which is missing in this case. Further in S.Jeevanantham Vs. State through Inspector of Police, Tamil Nadu 2004(3) Recent Criminal Reports(Criminal) 333 the police officer who had effected the recovery and lodged the F.I.R. himself had investigated the case. There being no evidence of bias in the process of investigation, the conviction was upheld by the Supreme Court.
Mr. Siao further argued that the mandatory provisions of Section 42 of the Act have been given a go bye and as its consequence, the accused has been adequately prejudiced. This contention has no legs to stand upon. The recovery has been effected at a public place i.e. platform of the Railway Station. In Pipal Singh Vs. Union of India, 2003(1) Recent Criminal Reports 815, the recovery was effected from near Polytechnic College, Ferozepur City. It was held that admittedly the present seizure relates to a public place and therefore, it was not obligatory on the part of the Investigating Officer or other police officials who received the information to reduce the said information into writing. In Narayanaswamy Ravishankar Vs. Assistant Director 2002(4) Recent Criminal Reports (Criminal) 470 it has been held that the seizure of the contraband allegedly made from the accused at Airport which is a public place, provisions of Section 43 of the Act are applicable and not Section 42 of the Act. In Sajan Abraham Vs. State of Kerala, 2001(3) Recent Criminal Appeal No. 1352 SB of 2005(O&M) -11- Criminal Reports (Criminal) 808 it has been held that the prosecution case cannot be thrown out due to non-compliance of the mandatory provisions of Section 42 in a situation that if the mandate is followed strictly, it would result in delay in trapping the accused and would lead the accused to escape.
The above discussion crystalizes the conclusion that the present one being a case of recovery at the public place, the provisions of Section 42 of the Act were inapplicable though the provisions of Section 43 were to come into play.
It has been further argued by Mr. Siao that the recovery was effected on 19.12.2003 whereas the sample was received in the office of Forensic Science Laboratory on 24.12.2003. Thus, obviously there is an inexplicable delay of 4 days in sending the sample for chemical analysis. The possibility of tampering with the contents of the sample during this interregnum cannot be ruled out. I am unable to persuade myself to agree with this contention.
In re: Jaili v. The State of Haryana, 2008(2) Recent Criminal Reports (Criminal) 264, there was a delay of one month in sending sample to the Forensic Science Laboratory. There was no evidence that samples of the case property were tampered with. The seals on the samples, tallied with the specimen seal as per the forwarding authority letter. Under these circumstances, it was held by this Court that mere delay in sending the samples did not, in any way cause prejudice to the accused, nor did it go to prove that the samples were tampered with, until the same were deposited in the Office of Forensic Science Laboratory. Further in re: Mohan Singh v. Criminal Appeal No. 1352 SB of 2005(O&M) -12- State of Punjab, 2007(4) Recent Criminal Reports (Criminal) 705, there was a delay of 10 days in sending the samples to the Forensic Science Laboratory. It was held by the Division Bench of this Court that mere delay in sending the same to the laboratory is not fatal, when there is evidence that the seized articles were kept in proper and safe custody. Further in re:
Ganesh son of Kapil Dev, resident of Haraj, Police Station Sheela Ganj, District Moti Hari (Bihar) v. The State of Haryana, 2009(2) Recent Criminal Reports (Criminal) 39, there was a delay of 7 days in sending the sample to the Forensic Science Laboratory. The delay was not explained. It was held that the prosecution has led cogent and convincing evidence that the sample was not tampered with during the period and thus, the delay was not fatal to the prosecution. Again in Motia Bai v. State of Haryana, 2005(3) Recent Criminal Reports (Criminal) 56, there was a delay of 20 days in sending the sample to the Forensic Science Laboratory. There was no evidence that the sample was tampered with. The report of the Forensic Science Laboratory indicated that the seals of the sample were intact, when it reached the laboratory. The conviction was upheld. In re:
State of Orissa v. Kanduri Sahoo, 2004(1) Supreme Court Cases 337, the sample of cannabis (ganja) was sent for chemical examination after four days of recovery. It was observed by the Apex Court that "The evidence of PW-1 was categorical to the effect that the articles were kept in the Excise Malkhana from where they were brought and sent for chemical examination. This relevant aspect appears to have been missed by the High Court. In Valasla's case (supra), it was not laid down that whenever there is delay in sending the samples, the prosecution version would become vulnerable. Criminal Appeal No. 1352 SB of 2005(O&M) -13- What was emphasised related to proper and safe custody of the seized articles. In the background to that particular case, when delay of 3 months was there and there was no clear evidence as to with whom the articles were lying, the decision was rendered. No evidence was led to show that the contraband articles were in proper custody and in proper form. But the factual situation is different here. That being so, the High Court's judgment does not stand scrutiny and is set aside. The conviction as done by the trial Court was proper." It was also held that merely because the articles were kept in the excise malkhana for four days would not make the prosecution version suspect.
Herein, the sum and substance of the evidence tendered by PW- 3 Bijender Singh ASI is that on 19.12.2003 he was posted as M/ASI at P.S.GRP, Faridabad. On that day Maya Ram SI/SHO deposited with him case property and samples of this case with seal MR and SV. On 24.12.2003 he handed over the sample of this case vide RC No. 414 dated 24.12.2003 to Constable Narbir Singh to deposit the same at FSL, Madhuban and that so long as, the samples remained in his custody, these were not tampered by him nor anyone was allowed to tamper the same. Evidence of Constable Narbir Singh PW-2 who carried the sample parcels to FSL is in consonance with Bijender Singh ASI's. statement. In Ex.PG the Forensic Science Laboratory's report, it has been mentioned with specificity that the seals of the samples were intact and tallied with the specimen seal as per forwarding authority letter. On reading this report in conjunction with the above discussed evidence, it follows that the contents of the sample parcels remained in proper and safe custody and were not tampered with at any Criminal Appeal No. 1352 SB of 2005(O&M) -14- stage. The same remained in proper custody. Thus the link in the chain of evidence is complete.
No other material point has been urged or agitated by either counsel.
On scrutinizing and analysing the entire evidence with due care and caution, it emerges out that the prosecution has been able to bring home guilt against the accused. Sequelly, this appeal being bereft of any merit is dismissed.
Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of.
(HARBANS LAL) JUDGE March 10, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes