Punjab-Haryana High Court
Sanjay Kumar @ Sanju vs The State Of Haryana on 9 September, 2009
Criminal Appeal No.1560-SB of 2004 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.1560-SB of 2004 (O&M)
Date of Decision:09.09.2009
Sanjay Kumar @ Sanju
.....Appellant
Vs.
The State of Haryana
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Atul Lakhanpal, Senior Advocate with
Mr. R.S. Chahal, Advocate for the appellant.
Mr. Tarunveer Vashist, Additional Advocate
General, Haryana.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment dated 16.7.2004/ order of sentence dated 17.7.2004 passed by the Court of learned Additional Sessions Judge, Fatehabad whereby he convicted and sentenced the accused Sanjay Kumar alias Sanju to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lac under Section 18 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 one year.
The facts in brief are that on 22.2.2002 Jagdish Kumar SI happened to be present at Ratia Octroi Post, Fatehabad being on patrol duty. In the meanwhile, the accused was spotted approaching from the side of Balmiki Chowk, Fatehabad with a plastic bag slinging from his shoulder. Criminal Appeal No.1560-SB of 2004 (O&M) -2- On catching sight of the police party, he turned back and started walking briskly. On suspicion, he was intercepted and served with a notice under Section 50 of the Act. He offered to have a search in the presence of a Gazetted Officer or a Magistrate. Jiwan Singh Naib Tehsildar was called at the spot. On search of the plastic bag, 10 kg. opium yielded. The usual formalities were observed. The accused was put under arrest. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused.
The accused was charged under Section 18 of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1 HC Om Parkash, PW2 HC Bhaga Ram, PW3 MHC Jagdish Chanhder , PW4 Balwan Singh, PW5 Inspector Surat Singh SHO, PW6 C. Dilbag Singh, PW7 S.I. Jagdish Kumar, PW8 Jiwan Singh, Naib Tehsildar, PW9 S.I. Khayali Ram and closed its evidence. When examined under Section 313 of Cr.P.C, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He has put forth that "On 22.2.02, two other persons namely Om Parkash son of Kesra Ram and Bhagwan Dass son of Inder Singh, residents of Dhanger were detained in the police station and then I.O. told them that if you have arranged a person in place of you, then you will be released. I was declared Proclaimed Offender in a case. I was arrested/ detained and at the instance of abovesaid persons, a false case was registered against me. An application was made by my wife Monika to DIG, Hisar. On that application, no action was taken by the officers."
In his defence, he examined his wife Monika DW1, Constable Criminal Appeal No.1560-SB of 2004 (O&M) -3- Puran Chand DW2, HC Om Parkash DW3 and closed his evidence.
After hearing the learned 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 with his conviction/ sentence, he has preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
Mr. Atul Lakhanpal, Senior Advocate strenuously urged that the appellant had opted to have the search of his bag in the presence of a Gazetted Officer or a Magistrate, whereas the Investigator had joined Naib Tehsildar Jiwan Singh PW8 who is neither a Gazetted Officer nor a Magistrate. Thus, palpably the search was not taken in the presence of a Gazetted Officer or a Magistrate. Sequelly, the whole trial stands vitiated because of non-observance of the mandatory provisions of Section 50 ibid. To buttress this stance, he has sought to place abundant reliance upon the observations rendered in Dalbir Singh v. The State of Punjab, 2008(3) Recent Criminal Reports (Criminal) 581.
The learned State Counsel has controverted this submission by urging that the recovery being from a bag, the provisions of Section 50 were not to be adhered to. This contention merits acceptance. As would be apparent from Ex.P9, the notice purportedly served under Section 50 ibid upon the appellant, the appellant was offered to have search of his bag in the presence of a Gazetted Officer or a Magistrate. In re: Kalema Tumba v. State of Maharashtra, 1999(4) Recent Criminal Reports (Criminal) 575 (Supreme Court) 2 kgs of heroin was recovered from the bag of the Criminal Appeal No.1560-SB of 2004 (O&M) -4- accused and not from his person. It was ruled by the Apex Court that "If a person is carrying a bag or some other article with him and narcotic drug or the psychotropic substance is found from it, it cannot be said that it was found from his `person'. The heroin was found from a bag belonging to the appellant and not from his person and, therefore, it was not necessary for making an offer for search in the presence of a Gazetted Officer or a Magistrate." Further in re: Megh Singh v. State of Punjab, 2004(1) Apex Criminal 482 (S.C.), it has been held that "a bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or container or a bag or premises." On viewing the matter in hand, in the light of rule laid down by the Supreme Court in these authorities, it stands crystalised that the provisions of Section 50 ibid were not attracted to the instant case. It is worth mentioning here that by and large, the naib-tehsildars are vested with the powers of Executive Magistrate. To crown it all, the appellant was not offered to have his personal search before a Gazetted Officer or a Magistrate. He was asked to have the search of his bag before such officers. So, by no stretch of imagination, the provisions of this Section were required to be observed.
On behalf of the appellant, it has been further agitated at the bar that no independent and disinterested public witness was joined in the police party to witness the alleged search and seizure of the contraband despite the fact that the appellant has allegedly been apprehended at about 6:00 P.M., on Octroi Post, where there could be no dearth as to the availability of independent witnesses. Thus, it would not be free from risk to maintain conviction of the appellant. I am unable to persuade myself to agree with this submission. In re: Appabhai and another v. State of Criminal Appeal No.1560-SB of 2004 (O&M) -5- Gujarat, 1988 (Supplementary) Supreme Court Cases 241, it has been held as under:-
"Merely because of the failure on the part of the prosecution to produce any independent witness to the incident that occurred at a public place like a bus stand, where there must have been several of such witnesses, the prosecution case cannot be thrown out or doubted. Generally people are insensitive when a crime is committed even in their presence. The court instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
Further in re: State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 736, it has been ruled by the Hon'ble Supreme Court that "there is no bar in recording the conviction by relying upon the statements of police officers." It has been observed in paragraph No.8 of the judgment that "It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official, but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
Adverting to the present one, Jagdish Kumar SI PW7 Investigator has testified that "I tried to join independent witnesses, but Criminal Appeal No.1560-SB of 2004 (O&M) -6- nobody was prepared." It clearly indicates that efforts to join such witnesses were made, but none was willing to join in the investigation. In re: Appabhai and another's case (supra), it has been observed in candid terms that merely because of the failure on the part of the prosecution to produce an independent witness to the incident that occurred at a public place like a bus stand where there must have been several of such witnesses, the prosecution cannot be thrown out or doubted. In the instant case, PW8 Jiwan Singh Naib Tehsildar has been joined. By no process of reasoning, he would have been interested in the success of the case by siding with the Investigating Officer. A meticulous perusal of his statement would reveal that he could not be shattered or shaken in any manner and stood like a rock. If this huge recovery would have not been effected within his view, he would have not come forward to depose against the appellant. The common place experience lends credence to the fact that now-a-days, the public men are too apathetic to offer themselves to join in the investigation of even heinous offences much less the recovery cases. It lurks in their mind that if they come forward to join investigation they will have to waste their time by coming to the Courts to give evidence besides earning wrath of the accused. In re: Roop Singh v. State of Punjab, 1996(1) Recent Criminal Reports 146, a Division Bench of this Court has 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- Criminal Appeal No.1560-SB of 2004 (O&M) -7- 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."
In view of the above discussion, this contention being untenable is overruled.
The next argument having been raised on behalf of the appellant is that Om Parkash HC PW1 was allegedly on leave on 22.2.2002, i.e., the date of alleged recovery. The learned trial Court has noticed the fact that Sub Inspector Balwan Singh PW4 has admitted that he had recorded the statement of MHC Om Parkash under Section 161 of Cr.P.C and that he had added some lines at the bottom of his statement. If this is the state of affairs, then how the reliance could be placed upon the testimony of the official witnesses examined by the prosecution. The affidavits of Om Parkash HC PW1, Jagdish Chander PW3 and of Dilbag Singh Constable were defective as the same have not been verified according to law and that being so, these are required to be excluded from consideration. Once this is done, there is dent in the prosecution case. SI Jagdish Kumar PW7 has admitted that he remained with the SHO of Police Criminal Appeal No.1560-SB of 2004 (O&M) -8- Station City Fatehabad till 9:20 P.M. From the defence evidence, it stood however proved that there is entry in the roznamcha showing his presence in CIA Staff Fatehabad at 9:20 P.M. on the same day. There is nothing on the record to show that the sample seal was prepared at the spot. Thus, it is unknown as to how the sample seal had been sent to the laboratory. All this goes to show that the entire case has been fabricated in the police station.
I have well considered these submissions. The thrust of this argument is that the link evidence is incomplete in this case. This contention indeed runs counter to the documentary evidence on record. It is in the evidence of Jiwan Singh Naib Tehsildar PW8 that "SI Jagdish Kumar handed over his seal to HC Khayali Ram after obtaining sample seal and I kept my seal with myself after obtaining sample seal." This evidence leaves no scope for doubt that the case property including sample parcels were also sealed with seal JS belonging to this witness. Besides this, the sample seal was also prepared. This witness had retained his own seal with himself. So, the possibility of tampering with the contents of sample parcel stands ruled out, when the matter is viewed in the background of the Forensic Science Laboratory's report Ex.P17 which says that the seals were intact and tallied with the specimen seal as per forwarding authority letter. Inspector Surat Singh PW5 who was posted as SHO Police Station City Fatehabad on 22.2.2002 has solemnly affirmed that "on that day, SI Jagdish Kumar produced before me accused present in the Court along-with witnesses and case property. I verified the facts from accused as well as witnesses and affixed my seal `SS' on the sample as well as residue." This further tends to show that the provisions of Section 55 of the Act were duly complied with. Criminal Appeal No.1560-SB of 2004 (O&M) -9- PW1 HC Om Parkash has deposed that on 22.2.2002, I was posted in City Fatehabad as MHC. He has tendered his affidavit Ex.P1. It is in his cross- examination that "the case property was deposited with me at about 9:30 P.M." True that he has deposed in his cross-examination that "I proceeded on leave on the night of 22.2.2002 after handing over the case property to HC Jagdish Chander." The latter as PW3 has also deposed that HC Om Parkash had deposited the case property while proceeding on leave. He has also tendered his affidavit Ex.P3. It is in the cross-examination of HC Jagdish Chander PW3 that "at the time of deposit of case property, Om Parkash HC was working as MHC, thereafter, he proceeded on leave after handing over the charge." Constable Dilbag Singh PW6 has deposed that on 25.2.2002, I was posted in Police Station City Fatehabad. He has tendered his affidavit Ex.P8. In fact, he carried the sample parcel to the FSL for chemical analysis. Of course, SI Balwan Singh PW4 in his cross- examination has stated that I have seen Ex.D1, and it is correct that in Ex.D1, two lines were written by me with pen later on, however, remaining lines were not written in original statement under Section 161 of Cr.P.C in judicial file and it is correct that I have made correction in the statement of HC Jagdish and Constable Dilbag at the place where date is mentioned and it is correct that there is no initial after correcting the date on the statements," but it is apt to be borne in mind that Om Parkash is a person with whom only the case property was deposited and the same had remained with him for few hours only and when he proceeded on leave on that very day, he handed over the case property to HC Jagdish Chander. Thus, if SI Balwan Singh who is not the Investigator had added a few lines in Ex.D1, the same hardly affects merits of the case. Section 161(1) of Cr.P.C reads as Criminal Appeal No.1560-SB of 2004 (O&M) -10- under:-
"161. Examination of witnesses by police. -- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances the case."
It has been manifested in plain words in this language that a witness under this Section can be examined even orally.
A conjoint reading of Ex.P1, the affidavit of HC Om Parkash, affidavit Ex.P3 of HC Jagdish Chander, affidavit Ex.P8 of Constable Dilbag Singh PW6 and the FSL report would go a long way in proving that the chain of link evidence is complete.
It has been further argued by Mr. Lakhanpal that it is in the cross-examination of Jagdish Kumar SI PW7 that "it is correct that there is no seal of `SS' on the case property. It is correct that there is no Madh (item) number on the case property of police station. However, the case property and madh number of treasury is mentioned dated 6.3.2002." That the case of the prosecution is that the case property was sealed with seals JK, JS and SS whereas the case property when produced in the Court did not bear the seal SS. Furthermore, the case property did not bear the item number of the police station. These two deficiencies bring out that the case property produced at the trial has not been connected with the appellant. I regret my inability to be one with Mr. Lakhanpal. It emanates from the evidence referred to hereinbefore, that the case property was deposited in Criminal Appeal No.1560-SB of 2004 (O&M) -11- the treasury. As per rules, the opium has to be deposited in the treasury. The case of the prosecution should not be thrown overboard merely because the MHC did not scribe the item number assigned in Register No.19 on the case property. This lapse on his part pales into insignificance in view of the item number allotted to the case property by the treasury. The recovery was effected on 22.2.2002. Jagdish Kumar PW7 was examined on 11.7.2003. During this interregnum, the seal `SS' affixed on the case property by becoming brittle due to humidity as well as due to contrition sustained by coming into contact with the property of other cases would have fallen off.
Now a word about defence needs to be recorded. Monika DW1 none else but wife of the appellant has stated in a nutshell that the police took up her husband on 21.2.2002 from the house, because he was wanted in a case under Section 294 of IPC of PS City Fatehabad. On that day, two other persons namely Om Parkash son of Kesra Ram and Bhagwan Dass son of Inder Singh resident of Dhangar were also sitting in the Police Station. Her husband told her that the police wanted to involve him in a false case under Sections of NDPS Act instead of above two persons who were present in the Police Station. That at the instance of above said two persons, her husband was falsely implicated in this case. And that the police did not take any action on her application Ex.DW1/A. I have considered this evidence. A glance through Ex.DW1/A would reveal that it was purportedly got typed on 3.7.2002 though the recovery was effected on 22.2.2002. It tends to show that this was moved after more than four months of the recovery. During this interregnum, she had got ample time to cook up a story to save her husband from the clutches of the prosecution. Had her husband- appellant been whisked away from her house in the alleged manner, in the Criminal Appeal No.1560-SB of 2004 (O&M) -12- normal course of her conduct, she would have raised hue and cry in the locality where her house is situated and moved telegrams to the high-ups besides approaching the higher authorities of the police hierarchy personally. Thus, the version set forth in Ex.DW1/A can be hardly believed.
DW2 Constable Puran Chand No.321 has deposed that the Roznamcha at Rapat No.39 dated 22.2.2002 entry relating to deposit of case property is mentioned and time of returning of Jagdish Kumar Inspector is 9:10 P.M. It is correct that there is no rapat mentioned about leave of MHC in the rapat rojnamcha and there is no entry regarding change of MHC from Serial No.39 to 49 till 23.2.2002. It is correct that there are signatures of HC Om Parkash. By dwelling over this evidence, Mr. Lakhanpal argued that as per this record, MHC Om Parkash had not proceeded on leave, nor there is entry regarding change of the Moharrar Head Constable. This contention is also unacceptable. Towards the end of his cross-examination, this witness Puran Chand Constable has testified that "It is correct that record regarding the leave is separate." If the appellant did entertain any doubt that on 22.2.2002 Om Parkash MHC had not proceeded on leave, then the record pertaining to his leave could have been got summoned and produced in the Court. It is also in the cross-examination of this witness that "It is correct that as per Entry No.39 SI Jagdish Kumar produced the accused present in the Court, the case property and witnesses before SHO and SHO after verifying the facts affixed his seal and directed I.O to deposit the case property with MHC. This evidence ostensibly shows that the provisions of Section 55 of the Act were complied with. HC Om Parkash DW3 has deposed that as per Entry No.9, SI Jagdish Chander left the CIA Criminal Appeal No.1560-SB of 2004 (O&M) -13- Staff at 12:15 P.M along with HC Khayali Ram and others. Earlier, the learned counsel for the appellant had argued that as per Puran Chand Constable's evidence, the time of returning of Jagdish Kumar Sub Inspector is 9:10 P.M whereas according to HC Om Parkash DW3 as per Entry No.9 SI Jagdish Chander had left the CIA staff on 12:15 P.M, if it is so, the entire prosecution version is rendered highly doubtful. This contention fails to inspire confidence. Towards the end of his cross-examination Om Parkash HC DW3 has stated in clear and unambiguous terms that "It is correct that the distance between the Police Station and CIA Staff was covered in a vehicle within 4-5 minutes. The CIA Staff Office is situated in the jurisdiction of police station City Fatehabad." It follows from this evidence that the distance between the Police Station as well as CIA Staff is hardly 4- 5 minutes run by a vehicle. This evidence nullifies the limb of Mr. Lakhanpal's arguments.
Needless to say, the officer of the rank of Sub Inspector could not afford to plant such a heavy recovery of opium worth lacs upon the appellant. He could not arrange it from any source. The record is also quite barren to show that the investigator was inimically disposed of towards the appellant.
No other material point has been urged or agitated by either counsel. On scrutinising and analysing the entire evidence, it emerges out that no infirmity surge to the surface. Sequelly, the appeal is dismissed being devoid of any merit.
September 09, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No