Punjab-Haryana High Court
Babu Lal Son Of Mool Chand Resident Of ... vs State Of Haryana on 28 August, 2008
Criminal Appeal No.415-SB of 2000 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Appeal No.415-SB of 2000
Date of decision, August 28, 2008
Babu Lal son of Mool Chand resident of Ward No.9, Rawatsar,
Police Station, Rawatsar,District Ganganagar( Rajasthan)
....... Appellant/accused
Versus
State of Haryana
........ Respondent
2. Criminal Appeal No.551-SB of 2000
Hardeep Singh son of Mukand Singh, Village Kalanwali,Distt.Sirsa
..............Appellant/accused
V.
State of Haryana
.........Respondent
3. Criminal appeal No.506-SB of 2000
Jagdish son of Kundeymal resident of Mohalla Ramdass
Rajgarh,Police Station Rajgarh,Distt. Churu.
appellant/accused
V.
State of Haryana
............. Respondent.
4. Criminal Appeal No.370-SB of 2000
1. Deva Singh son of Hamir Singh, resident of Giana,Police
Station Rama,Distt.Bathinda.
2. Bhola Singh so of Mukand Singh,resident of Jhorar
Rohi,Police Station Baragudha,Distt.Sirsa.
Criminal Appeal No.415-SB of 2000 2
3. Mithu Singh son of Mahinder Singh,resident of Kewal,
Police Station Kalanwali,Distt.Sirsa.
.............. Appellants/accused.
V.
State of Haryana
.................. Respondent.
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Sanjeev Gupta,Advocate
for the appellant in Crl.A. No.415-SB of 2000
Mr. Jagjit Gill, Advocate for the appellant in
Crl.A.No. 551-SB of 2000.
Mr. Aman Chaudhary, Advocate, for the appellant in
Crl.A. No.506-SB of 2000.
Mr.D.N.Ganeriwala, Advocate, for the appellants
in Criminal Appeal No.370-SB of 2000.
Mr. A.K.Jindal,AAG,Haryana,
for the respondent.
Sham Sunder, J.
This judgment shall dispose of Criminal Appeals Nos. 415-SB of 2000 filed by Babu Lal, 506-SB of 2000 filed by Jagdish son of Kundeymal, 551-SB of 2000 filed by Hardeep Singh and 370-SB of 2000 filed by Deva Singh, Bhola Singh and Mithu Singh, accused (now appellants) arising out of the judgment of conviction and the order of sentence dated 17.4.2000, rendered by the Court of Additional Sessions Judge, Sirsa, vide which it convicted them 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 ech, and in default of payment of the same, to undergo rigorous imprisonment for another period of two Criminal Appeal No.415-SB of 2000 3 years each , for having been found in possession of 61 bags each containing 40 kgs poppy husk , without any permit or licence. Suba Singh accused, was, however, acquitted by the trial Court.
2. The facts, in brief, are that on 20.7.1991,Inspector Bhagwan Dass, of Police Station Kalanwali, started from the Police Station for patrol duty along with other police officais and reached Takhatmal barrier at 4.00 A.M. Chindder and Gurmail, independent witnesses met Bhagwan Dass, Inspector 3.00 A.M. in Mandi Kalan- Wali, who were joined with the police party. At about 4.30 am, Jeep bearing No.DAJ-9238, came from the side of Kalanwali which was stopped by giving a signal. Deva Singh, Bhola Singh and Mithu Singh accused were travelling in that Jeep. In the meanwhile, a half body truck bearing registration No.BRF-6841 covered with tarpaulin (Tarpal) was seen coming. The occupants of the jeep raised an exhortation, while addressing Babu Lal,driver of the truck, to away with the truck. However, the truck was intercepted by the police. Jagdish and Hardeep Singh were found sitting with him, in that truck. The occupants of the Jeep, as also all the occupants of half body truck,were apprehended. The search of the half body truck, was conducted, in accordance with law, as a result whereof 61 bags, each containing 40 kgs poppy husk were recovered. 200 grams of poppy husk, from each of the bags, was separate as a sample, and the remaining poppy husk, was kept in the same bags. . The samples and the bags, containing remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. The Jeep and the half body truck were also taken into possession vide separate recovery memos. The Registration Certificate and the driving licence of the driver of the jeep were also taken into possession. During the course of investigation, it was found that the jeep, to Subha Singh , accused, and Criminal Appeal No.415-SB of 2000 4 was being used as a pilot of the truck. Ruqa Ex.PA was sent to the Police Station, on the basis whereof, FIR Ex,PA/1 was registered. Rough site plan was prepared. The accused were arrested. After the completion of investigation,they 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, was framed all the accused, except Suba Singh,accused. Charge under Section 25 of the Act was framed against Suba Singh,accused. The accused pleaded not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined SI Shiv Raj Singh, PW1, who proved the ruqa Ex.PA, as well as the formal FIR Ex.PA/1, HC Budhi Parkash, PW2, a formal witness, who tendered his affidavit Ex.PB, PW3 Chhinder Singh, an eye-witness, who did not support the case of the prosecution, Inspector Bhagwan Dass ,PW4, the Investigating Officer-cum-SHO Police Station Kalanwali, who made a consistent statement with regard to the date, time and place of search and seizure and also proved various documents, DSP Sukhdev Singh PW5,a witness to the recovery, Gurmel Singh, another independent witness,PW6, who too did not support the case of the prosecution, Constable Pokhar Ram,PW7, who tendered his affidavit Ex.PH/1. Thereafter, the Public Prosecutor for the State, 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 innocence.
6. Deva Singh, accused in his statement under Section 313 stated that nothing was recovered from him. He also denied that he was Criminal Appeal No.415-SB of 2000 5 driving the Jeep.
7. Bhola Singh and Mithu Singh accused, also took up the same plea, as was taken up by Deva Singh, accused.
8. Babu Lal, Jagdish, and Hardeep Singh also stated that nothing was recovered from them.
9. Suba Singh, accused, in his statement under Section 313 Cr.P.C. stated that , in fact, his Jeep was taken away by the police, from his house, and he was falsely implicated, in this case, at the instance of Om Parkash Chautala, as he was a witness, in the cases against him.
10. The accused examined Sajjan Kumar, Constable, DW1, Dilbagh Singh, Mechanic, DW2, HC Ram Mehar Singh, DW3, and MHC Raj Kumar,DW4, in support of their defence. Thereafter they closed their defence evidence.
11. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced Deva Singh,Bhola Singh, Mithu Singh, Babu Lal, Jagdish, and Hardeep Singh, whereas, it acquitted Suba Singh,accused, as stated above.
12. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the appellants.
13. During the pendency of the appeal, Babu Lal, appellant died. A report with regard to the death of Babu Lal, was received, from SHO Police Station Kalanwali, along with his death certificate, and other documents. From the death certificate, it was established that he died on 16.4.2002. Since the appeal had also been filed by Babu Lal, against the imposition of sentence of fine upon him, the same (appeal) could not abate, as a whole, as envisaged by the provision of section 394(2) Criminal Appeal No.415-SB of 2000 6 of the Cr.P.C. The Counsel for Babu Lal,accused ( now appellant) , thus, submitted that he will, address arguments,in the appeal on his behalf.
14. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully
15. It was submitted by the Counsel for the appellants, in Criminal Appeal No.370-SB of 2000, that Deva Singh, Bhola Singh and Mithu Singh accused were neither found in conscious possession of the poppy husk, nor any evidence was led by the prosecution to connect them, with the instant case. He further submitted that the trial Court convicted them, on the ground, that they were found travelling in a jeep, and on seeing the police party raised an exhortation, saying Babu Lal, driver of the half body truck to flee. He further submitted that no evidence worth the name, was produced by the prosecution, that the poppy husk contained in 61 bag, lying in the half body truck, belonged to them. He further submitted that even no evidence was produced by the prosecution, that these accused were owners of the half body truck or even of the jeep. He further submitted that they could not be convicted, merely on the basis, that they were allegedly found present in the jeep which incidentally came, on the road, at the same time, when the half body truck containing poppy husk, was going on the said road. The submission of the Counsel for the appellants, appears to be correct. Deva Singh, Bhola Singh and Mithu Singh, accused, were not sitting in the half body truck in which 61 bags each containing 40 kgs poppy husk were lying. There could be a variety of reasons, for these accused, to travel in the jeep, at about 4.30 am on the road. The mere fact that they were allegedly found travelling in a jeep, which was being driven on the road at about the same time, when the aforesaid truck, was going on the same, did not at all connect them with the recovery of Criminal Appeal No.415-SB of 2000 7 poppy husk in the instant case. There is nothing in the statement of DSP Sukhdev Singh,PW5, that when he reached the spot he was told by Bhagwan Dass,Inspector,PW4, that the occupants of the jeep raised an exhortation, saying Babu Lal driver of the half body truck to flee. Had the occupants of the jeep raised such an exhortation, saying Babu Lal to flee, Bhagwan Dass, PW4, would have certainly informed the DSP, about this factum. No doubt, Bhagwan Dass, PW4, stated that the occupants of the jeep raised an exhortation, saying Babu Lal to flee. His sole statement, in this respect, without any corroboration, through the statement of DSP Sukhdev Singh, PW5, or through any other source, in this regard, could not be taken into consideration that the jeep in which these accused were sitting was acting as a pilot. Under these circumstances, the prosecution failed to prove through cogent and convincing evidence that Deva Singh, Bhola Singh and Mithu Singh alleged occupants of the Jeep were connected with the poppy husk lying in the half body truck. No evidence was produced on record that these accused either abetted the commission of crime, or conspired with the occupants of the half body truck, containing poppy husk or financed the purchase of poppy husk aforesaid, or had control over the contraband of that the same was being carried by the occupants at the instance or they were convinced with the occupants of the truck, in transporting the contraband. They were also not proved to be owners of the jeep or truck. There was, thus, no necessity, on the part of the alleged occupants of the Jeep, to furnish any explanation, as to how they were travelling in the same at about 4.30 am, on a road. A person may be belonging to a far off place, but in a vehicle he can go to any other place, for various purposes. The circumstance that the occupants of the jeep belonged to far off places and that they could not furnish any explanation, as to how they were travelling in the Jeep at Criminal Appeal No.415-SB of 2000 8 about 4.30 am, on a public road, was taken into consideration by the trial Court, to convict the accused. In my opinion, this circumstance could not be said to be sufficient, to bring home the guilt to these accused. The trial Court was,thus, wrong in recording conviction and awarding sentence to these accused. Criminal Appeal No.370-SB of 2000, thus, deserves to be accused and Deva Singh, Bhola Singh and Mithu Singh accused are entitled to acquittal. The submission of the Counsel for the aforesaid appellants, in this regard, being correct , is accepted.
16. The Counsel for the other appellants,however, submitted that the prosecution miserably failed to prove that they were found in conscious possession of poppy husk lying in the half body truck. The submission of the Counsel for Babu Lal,Jagdish and Hardeep, the remaining appellants, in this regard, does not appear to be correct. Babu Lal was driver of the half body truck and two others, namely, Jagdish and Hardeep Singh were sitting by his side. A big haul of poppy husk, was lying in that truck. It could not be imagined that they were not aware of the contents of the same. It was not a small quantity of contraband which was being transported in the truck, and thus, could escape their notice. It was for them to explain as to where from bags containing poppy husk came in that truck, and to which destination, the same were being transported. Babu Lal, Jagdish and Hardeep, accused, thus were in possession of and control over the bags, containing poppy husk, lying in the truck. Once the possession of the accused, in respect of the contraband is proved, then statutory presumption under Sections 54 and 35 of the Act, starts operating against them. Thereafter, it is for the accused, to rebut that statutory presumption. In the instant case, the accused, miserably failed to rebut the said presumption, either during the course of cross-examination of Criminal Appeal No.415-SB of 2000 9 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 :-
"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 controller 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."
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 Criminal Appeal No.415-SB of 2000 10 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."
17. 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 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 Criminal Appeal No.415-SB of 2000 11 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."
18. 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, 61 bags, containing poppy-husk were found in the truck, which was being driven by one of them. 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 implication. As stated above, the accused, thus, 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. Criminal Appeal No.415-SB of 2000 12
19. It was next contended by the Counsel for these appellants, that the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the investigation and the subsequent proceedings stood vitiated. The submission of the counsel for the appellants, in this regard, does not appear to be correct. In the instant case, the contraband was not recovered from the personal search of the accused but from the search of the half body truck, in question. Under these circumstances, the mere fact that there was joint consent memo did not affect the merits of the case. The mandatory provisions of Section 50 were, thus, not applicable, to the facts of the instant case. Had the recovery been effected, from the search of the person of the accused, it would have been said that there was some force, in the argument, advanced by the Counsel for the accused. 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 the search, in the instant case, the submission of the Counsel for the appellants deserves rejection. Had the recovery been effected, from the personal search of the accused, the matter would have been different. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must Criminal Appeal No.415-SB of 2000 13 fail, and the same stands rejected.
20. It was next submitted by the Counsel for the appellants that two public witnesses Chhinder Singh, PW3, and Gurmel Singh,PW6, did not support the case of the prosecution, and, as such, it could be said that no recovery, whatsoever, was effected from the accused, but they were clearly implicated in the instant case. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It is, no doubt, true that two independent witnesses who were joined by the Investigating Officer, at the time of search and seizure, did not support the case of the prosecution. The mere fact that they resiled from their statements, made before the police, in itself, was not sufficient to doubt the veracity of the evidence of the other witnesses. No doubt, they denied their signatures, and thumb impressions on the documents, which were prepared at the spot. However, on the other hand, it was proved from the evidence of Bhagwan Dass ,PW4, and Sukhdev Singh,SP,PW5, that these documents bore their signatures and thumb impressions. In the face of such a situation, the Court is required to take into consideration the other evidence, produced, on record. If after scrutiny of the other evidence, the Court comes to the conclusion, that the same is believable, then reliance can be placed thereon, to come to the conclusion, as to whether, the guilt of the accused was proved or not. The fate of the case of the prosecution, cannot be allowed to rest on the statements of the independent witnesses, who, ultimately, resile from their previous statements for whatever the reasons may be. In State of Rajasthan V. Udai Lal 2008 (2) R.C.R. 956 (S.C.), there was a recovery of 119 bags containing poppy husk. Four witnesses were joined and examined by the prosecution. They resiled from their statements. Under these circumstances, it was held by the Apex Court that the other evidence Criminal Appeal No.415-SB of 2000 14 produced by the prosecution could be taken into consideration, for the purpose of coming to the conclusion, as to whether, the guilt of the accused was proved or not. It was further held that the mere fact that four Panch witnesses resiled from their statement did not at all cast any doubt on the prosecution case. In P.P.Fatima Vs. State of Kerala 2004 (1) RCR 81(S.C.), the panch witnesses did not support the case of the prosecution. It was held that such omission by itself, would not be fatal to the case of the prosecution. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. As stated above, the other evidence, produced by the prosecution, in the shape of the statements of the Bhagwan Dass,PW4 and Sukhdev Singh, DSP, PW5, is cogent convincing, reliable and trust-worthy. They had no ill will or grudge against the accused to falsely implicate them. Even otherwise, such a big haul of contraband could not be planted against these appellants. The trial Court was right in placing reliance on the other evidence for the purpose of convicting the accused and awarding sentence to them. The submission of the Counsel for these appellants, in this regard, being without merit, must fail and the same stands rejected.
21 It was next submitted by the Counsel for these appellants, that there was a delay of 17 days, in sending the samples, to the office of the Chemical Examiner, which remained unexplained, and, as such, the possibility of tampering with the samples, 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 delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the Criminal Appeal No.415-SB of 2000 15 prosecution, to complete the link evidence. The other evidence produced by the prosecution, has been subjected to in depth scrutiny, and, it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex.PJ, which clearly proves that the seals on the samples, were intact, and agreed with the specimen seals sent. The report of the Chemical Examiner, is per-se admissible into evidence, in its entirety, as per the provisions of Section 293 Cr.P.C. The delay in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, 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, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 17 days, in sending the samples, to the Criminal Appeal No.415-SB of 2000 16 office of the Chemical Examiner, 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.
22. It was next submitted by the Counsel for the appellants that when the case property was produced in the Court, 2/3 bags were found partly empty , and seals were legible on 10 bags, whereas the seals on the remaining bags were not legible. They further submitted that this clearly proved that the case property produced, in the Court, was not the same as was allegedly recovered from the accused. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The recovery was effected in this case on 20.7.1991, whereas, the evidence of Bhagwan Dass,PW4, the Investigating Officer, was recorded on 19.8.99 and 3.11.1999, and DSP Sukhdev Singh was examined on 3.11.1999.I t means that for eight years the case property remained lying in the Malkhana. It is a matter of common experience, that in the Malkhana, there is shortage of space. The case properties of a number of cases are kept in the Malkahana. As and when the case property of a particular case is taken out of the same, on account of irresponsible handling or during the course of transit of the same, the seals of wax affixed on the same are bound to break. Similarly the paper chits containing the particulars of the case, affixed on the same, are are bound to tear. Even the seals of wax and the paper chits affixed on such bags, were bound to undergo natural decay, during eight years. Even on account of presence of rats in the Malkhana, the jute bags containing contraband would get damaged and, as such, at the time of production of the same, most of the bags may be found empty. It was under these circumstances, that on some of the bags the seals were not legible and some of the bags were empty. In Ashok Kumar V. State of Haryana 2000(1) RCR (Criminal) Criminal Appeal No.415-SB of 2000 17 567 SC, the packets of the case property, with faint seals were produced, and in the absence of any challenge to the report of the Laboratory, and on account of non-summoning the Chemical Examiner for cross-examination, the Apex Court held that the doubt raised by the accused, as to whether the samples were the same, as were drawn, in the case, and examined by the Chemical Examiner, was not sustainable. In State of Rajasthan V. Udai Lal, 2008(2) RCR (Criminal (SC) 956 out of 199 bags containing poppy husk recovered from the accused, only five bags were produced at the time of trial. The accused were convicted by the trial Court, holding that the direct evidence on the record produced, by the prosecution, could be relied upon, to come to the conclusion, that the recovery of poppy husk was effected from them. The High Court acquitted the accused. Ultimately the Apex Court set aside the judgment of the High court and restored the judgment of the trial Court. Both these authorities are of great help to the facts of the instant case. In the instant case, from the evidence of the other witnesses, produced by the prosecution, it is proved that the case property produced was the one which was recovered from the accused. The case property thus was completely connected with the instant case. The submission of the Counsel for the appellants, in this regard, being without merit,must fail and the same stands rejected.
21. It was next submitted by the Counsel for the appellants, that it was the seal of Sukhdev Singh DSP PW5, bearing impression "SS" which was affixed by the Investigating Officer, on the sample parcels, and the bags containing poppy husk. They further submitted that the seal after use was returned to Sukhdev Singh,DSP and was not handed over to the independent witness. They further submitted that the sample parcels were sent to the Forensic Science Laboratory after about 17 days of the alleged recovery and, as such, the possibility Criminal Appeal No.415-SB of 2000 18 of tampering with the same (sample parcels) could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. There is no requirement of law, that the seal after use, should be handed over to an independent witness. 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 case, 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 for 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, 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 this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
22. It was next submitted by the Counsel for the appellants that no question was put to these accused, in their statements, under Section 313 Cr.P.C., that they were in conscious possession of the poppy husk. It may be stated here, that the accused were put specific questions, in their statements, under Section 313Cr.P.C., that they were the occupants of the truck and one of them was the driver of the same. Criminal Appeal No.415-SB of 2000 19 They were also made aware that 61 bags containing poppy husk were lying in the truck. In the statements under Section 313 Cr.PC., only incriminating circumstances against the accused, in the prosecution evidence, are required to be put to them. The accused are not required to be put either the provisions of law, or the presumption operating, under the provisions of law, in their statements under Section 313 Cr.P.C. Under these circumstances, the submission of the Counsel for the appellants,in this regard, being without merit, must fail and the same stands rejected.
23. It was next submitted by the Counsel for the appellants, that the provisions of Sections 52,55 and 57 of the Act, were not complied with, as a result whereof, the case of the prosecution became doubtful. It was further submitted that the grounds of arrest were not served upon the accused in writing and the SHO did not affix his seal on the case property and the sample parcels. Reliance was placed on Thandi Ram V. State of Haryana 1999(2) CCJ 361 (Supreme Court) in support of their contention by the Counsel for the appellants. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In Thandi Ram's case (supra), the provisions of Section 55 and 57 were admittedly not complied with and the accused was given the benefit of doubt and acquitted. A persual of the facts of Thandi Ram's case (supra) goes to reveal that the same are distinguishable, from the facts of the instant case. In Thandi Ram's case (supra) the accused was found in possession of 250 grams of opium, for which he had already undergone the sentence of nine years, before he was acquitted by the Hon'ble Supreme Court. In that case the provisions of Sections 55 and 57 of the Act were admittedly not complied with. In the instance case, it could not be said, that the provisions of these Sections were not complied with. Bhagwan Dass Criminal Appeal No.415-SB of 2000 20 PW4, was himself the SHO of the Police Station, when the recovery was effected. There was no necessity of producing the sample parcels and the bags containing poppy husk, before some other Police Officer. Even otherwise Sukhdev Singh,DSP was present at the time of search and seizure and was aware of the facts and circumstances of the case. At the time, the recovery was effected, Bhagwan Dass SHO may not be in possession of his seal, and on account of this reason, he could not affix the same, on the case property, and the sample parcels. DSP Sukhdev Singh was in possession of his seal and it was under these circumstances that his seal was affixed on the case property, and the sample parcels. DSP Sukhdev Singh also admitted that on the day of recovery itself i./e. 21.7.1991, he received a copy of the FIR containing complete information of the case. Under these circumstances, the provisions of Sections 55 and 57 of the Act were duly complied with in the instant case. Even the provisions of Section 52 of the Act, were complied with, in as much as, Inspector Bhagwan Dass, PW4, stated that he informed the accused, about the grounds of arrest, before actually arresting them. It is not the requirement of Section 52 of the Act, that the grounds of arrest, should only be served upon the accused in writing. The oral information to the accused, that they were being arrested, for the commission of a particular offence, could be said to be sufficient compliance of the provisions of 52 of th Act. Under these circumstances, no help can be drawn, by the Counsel for the appellants from Thandi Ram's case (supra).The submission of the Counsel for the appellants, in this regard, being without merit, must fail and he same stands rejected.
24. No other point was urged by the Counsel for the parties.
25. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, in Criminal Appeal No.415-SB of 2000 21 respect of Babu Lal, Jagdish and Hardeep 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 with the modification that the appeal filed by Babu Lal regarding the substantive sentence, and sentence awarded in default of payment of fine, shall stand abated on account of his death, during the pendency of appeal.
26. The judgment of conviction and the order of sentence, in respect of Deva Singh, Bhola Singh and Mithu Singh, are not based on the correct appreciation of evidence, and law ,on the point and are liable to be set aside.
27. For the reasons recorded, hereinbefore, Criminal appeal No. 551-SB of 2000 filed by Hardeep Singh and Criminal Appeal No.506-SB of 2000 filed by Jagdish are dismissed. The judgment of conviction and the order of sentence qua them are upheld. If these appellants are on bail, then their bail bonds, shall stand cancelled.
28. Criminal Appeal No.415-SB of 2000 filed by Babu Lal is partly accepted, in the manner that it shall abate qua the substantive sentence, and the sentence awarded in default of payment of fine, on account of his death, during the pendency of appeal. However, the sentence of fine, imposed upon him, shall remain intact. The fine shall be recoverable, from his estate, if any, inherited by his legal representatives.
29. Criminal Appeal No.370-SB of 2000 filed by Deva Singh, Bhola Singh and Mithu Singh is accepted. These appellants shall stand acquitted of the charge, framed against them. If, they are on bail, they shall stand discharged of their bail bonds. If, they are in custody, then they shall be set at liberty, at once, if not required in any other case. The Jeep in question if in the custody of the police, shall be Criminal Appeal No.415-SB of 2000 22 released immediately.
30. The Chief Judicial Magistrate, Sirsa shall comply with the judgment qua Hardip Singh and Jagdish, keeping in view the applicability of the provisions of Section 428 Cr.P.C. qua the estate of Babu Lal, if any, inherited by his legal representatives for the recovery of amount of fine, and qua Deva Singh, Bhola Singh and Mithu Singh in accordance with law and submit compliance report within three months, from the date of receipt of copy thereof.
August 28,2008 ( Sham Sunder ) sks Judge