Punjab-Haryana High Court
Umed Singh S/O Sube Singh vs The State Of Haryana on 23 July, 2008
Crl. Appeal No.370-SB of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.370-SB of 2008
Date of Decision : July 23, 2008
Umed Singh S/o Sube Singh, ...Appellant
R/o Village Chiri, District Rohtak.
Versus
The State of Haryana ....Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Satish Saini, Advocate, for
Mr. Anshumaan Dalal, Advocate,
for the appellant.
Mr. A.K.Jindal, AAG, Haryana,
for the respondent.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction dated 22.10.2005, and the order of sentence dated 25.10.2005, rendered by Judge, Special Court, Rohtak, vide which it convicted the accused/appellant, and sentenced him, to undergo rigorous imprisonment for a period of three years, and to pay a fine of Rs.25,000/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of six months, for the offence, punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only), for having been found in possession of 750 grams charas, and also sentenced him, to undergo rigorous imprisonment for a period of two years, and to pay a fine of Rs.10,000/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of three months, for the offence, punishable under Section 17 of the Act, for having been found in possession of 15.750 grams smack, without any permit or licence. The accused was, however, acquitted of the charge for the offence, punishable under Section 18 of the Act. Crl. Appeal No.370-SB of 2008 2
2. The facts, in brief, are that on 28.1.2002, Dhayan Singh, Inspector, alongwith other police officials, was going from Village Lakhan Majra to Village Chiri, in connection with patrol duty and crime checking, when the accused was seen near Nandal turn. He had wrapped a sheet/shawl (chadar) around his body. On seeing the police party, he tried to escape, but was apprehended, on suspicion. Search of the plastic/polythene bag, being carried by the accused, underneath the sheet/shawl (chadar), was conducted, in the presence of Rajender Singh, DSP, who was called to the spot, by sending a wireless message. The said plastic/polythene bag, was found containing three different packets (one packet was having 850 grams opium, the second packet was having 750 grams charas, and the third packet was having 15.750 grams smack). A sample of 50 grams each, from the packets containing opium and charas, and a sample of 0.1 gram, from the packet, containing smack, were separated. The remaining opium, charas, and smack, were put into separate containers. The samples, and the containers, containing the remaining opium, charas, and smack, were converted into parcels, duly sealed, and taken into possession, vide separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The accused was arrested. After the completion of investigation, the accused was challaned.
3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Sections 17, 18, and 20 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Surat Singh, HC (PW-1), Mahender Singh, ASI (PW-2), Phool Kumar, HC (PW-3), Harbhaj Singh, Constable (PW-4), Rajinder Singh, DSP (PW-5), Inder Singh, Inspector/SHO (PW-6), Dhayan Singh, Inspector (PW-7), the Investigating Crl. Appeal No.370-SB of 2008 3 Officer, and Samunder Singh, ASI (PW-8). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that two days before this occurrence, while he was standing at Bus Stand, Inder Singh, SHO, of P.S.Meham, came there in Jeep. It was further stated by him, that the jeep was at a speed, its tyre went into a pit, and the mud spoiled his clothes. It was further stated by him, that he abused the occupants of the jeep. It was further stated by him, that Inder Singh, SHO, came down, and then an altercation took place, between him, and Inder Singh. It was further stated by him, that later on, he was implicated, in this false case. He, however, examined Om Parkash (DW-1), in his defence. Thereafter, he closed his defence evidence.
6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused/appellant, for the offences, punishable under Sections 17 and 20 of the Act, but acquitted him, of the offence, punishable under Section 18 of the Act.
7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant.
8. I have heard the learned counsel for the parties, and have gone through the evidence and record, of the case, carefully.
9. The Counsel for the appellant, at the very outset, submitted that Dhayan Singh, Inspector, being the complainant, as he had sent the ruqa, in this case, could not be the Investigating Officer. He further submitted that by adopting such a course, Dhayan Singh, Inspector, acted against the mandatory Crl. Appeal No.370-SB of 2008 4 provisions of law. The submission of the Counsel for the appellant, does not appear to be correct. There is no provision, in the Code of Criminal Procedure, that the same Police Officer, who sent the ruqa, and, as such, became the complainant, could not be the Investigating Officer. Had it been the intention of the Parliament, that the same Police Officer, who sends the ruqa, and becomes the complainant, should not investigate the case, a specific provision in that regard, would have been incorporated, in the Criminal Procedure Code. There is nothing to indicate, on the record, that any prejudice was caused to the accused, on account of adoption of such a course by Dhayan Singh, Inspector, the Investigating Officer, in this case. In S.Jeevanantham Vs. State through Inspector of Police, T.N.(2004) 5 Supreme Court Cases, 230, a case decided by the Apex Court, it was held that, if the Police Officer, who is the complainant, also conducts the investigation of the case, and it is not proved that any prejudice was caused, to the accused, on account of the adoption of such a course, the accused cannot be acquitted. In this case, no evidence was led by the accused, that a prejudice was caused to him, on account of adoption of the aforesaid course, by the Investigating Officer. In S.Jeevanantham's case (supra), the recovery of contraband was effected from the accused, by a Police Officer, who sent the ruqa, and, thus, became the complainant. The same very Police Officer conducted the investigation. Under these circumstances, it was held that since no prejudice or bias, was shown to have been caused, to the accused, on account of the adoption of such a practice, by the Police Officer, the investigation, and the subsequent proceedings, did not become invalid. In view of the principle of law, laid down, in S.Jeevanantham's case (supra), which is aptly applicable, to the facts of the instant case, the principle of law, laid down, in Gurcharan Vs. State of Punjab 2005(4) RCR (Criminal) 681, Mohmad Salim Vs. State of Haryana, 2008(2) RCR (Criminal) 128, and Megha Singh Vs. State of Haryana, 1997(7) RCR (Criminal) 3, relied upon by the Counsel Crl. Appeal No.370-SB of 2008 5 for the appellant, shall not hold the filed. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
10. It was next submitted by the Counsel for the appellant, that no independent witness, was joined, despite availability, and, as such, the case of the prosecution became highly doubtful. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. It was a chance recovery. There was no secret information, against the accused, with the police party. The police party, headed by Dhayan Singh, Inspector, who was the Incharge, CIA Staff, Rohtak, at the relevant time, was present at Lakhan Majra- Nandal turn, in a Govt. vehicle, in connection with patrol duty, and crime checking, when the accused was seen coming, having wrapped himself with a sheet/shawl (chadar), and he was apprehended. There is nothing, on record, that any independent witness, was present, at the time of search and seizure. No doubt, it has come in the evidence of Dhayan Singh, Inspector, that some persons, were found passing at that place, when the writing work was being done, and they were asked to become witnesses, but they were not ready. This goes to show that an effort was made to join an independent witness, though after recovery, yet none was ready. Under these circumstances, the conduct of the Investigating Officer, could not be said to be blameworthy. Even otherwise, if any independent witness, had been joined, after the search and recovery, then his evidence would have been of no avail. The evidence of the official witnesses, cannot be distrusted and disbelieved, merely on account of their official status. 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:-
Crl. Appeal No.370-SB of 2008 6
"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."
10-A. 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 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. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
11. The Counsel for the appellant, however, placed reliance on Saffi Ullah Vs. State of Punjab 2008(1) RCR (Criminal) 706, State of Punjab Vs. Bhola Singh 1998(3) RCR (Criminal) 717, Dilbagh Singh Vs. State of Punjab, 2008(2) RCR (Criminal) 725, Chabil Dass Vs. State of Haryana 1998 Crl. Appeal No.370-SB of 2008 7 (1) RCR (Criminal) 133, Pritam Pal Singh @ Munna Vs. State 2001(1) RCR (Criminal) 482, and Sewa Singh Vs. State of Haryana 2008(2) RCR (Criminal) 520, to emphasize his point, that non-joining of an independent witness, despite availability, must prove fatal to the case of the prosecution. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the instant case. It was not that only, on the ground of non-joining of an independent witness, that the accused were acquitted, in the aforesaid cases. Even otherwise, the principle of law, laid down, in the aforesaid authorities, being contrary to the principle of law, laid down, in Akmal Ahmed's, State of NCT of Delhi's, and Appa Bai's cases (supra), decided by the Apex Court, shall not hold field. No help, therefore, can be drawn, by the Counsel for the appellants, from the aforesaid authorities. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
12. It was next submitted by the Counsel for the appellant, that the conduct of the police officials was unnatural, on account of the reason, that near the place of recovery, there was an office of the BDPO, but the Investigating Officer, preferred to call the DSP, a Gazetted Officer, who had to come from a distance of 35 kms. The Counsel for the appellant, further submitted that this fact cast a doubt on the prosecution story. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. It was for the Investigating Officer, to decide as to which Gazetted Officer, he wanted to call. He, in his wisdom, thought that the DSP should be sent a message to come to the spot, where the accused had been apprehended, and, as such, he sent a message to the DSP, who reached the spot. Even, no evidence was produced, on the record, that in the office, the BDPO was present. This fact, therefore, did not, in any way make the case of the prosecution doubtful. If, the Court takes into consideration such insignificant factors in doubting the case of the prosecution, then that would amount, to casting an aspersion, on the functioning Crl. Appeal No.370-SB of 2008 8 of a particular Department. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
13. It was next submitted by the Counsel for the appellant, that according to the prosecution story, samples of 50 grams of opium, 50 grams of charas, and 0.1 gram of smack, from the recovered materials, were separated. He further submitted that in the report Ex.PB of the Forensic Science Laboratory, it was recorded that brownish-black substance weighing 43 grams with polythene bag, greenish-brown substance weighing 50 grams, and light-brownish powder weighing 1.00 gram with paper, were received. No doubt, there was difference of weight of the sample allegedly containing opium, but so far as the weight of the samples of charas, and smack were concerned, the same tallied with the weight of the samples drawn by the Investigating Officer, at the time of search and seizure. The trial Court acquitted the accused, for the offence, punishable under Section 18 of the Act, on the ground, that in brownish-black substance, weighing 43 grams, morphine, codeine, thebaine, papaverine, narcotine, alongwith meconic acid, could not be detected. The trial Court did not acquit the accused for the offence, punishable under Section 18 of the Act, only on the ground that there was difference of weight of the sample, which was sent to the Forensic Science Laboratory, and the weight of the sample, which was drawn at the time of search and seizure. It may be stated here, that the Investigating Officer, at the time of taking the samples, did not have any computerized scale, with which the exact quantity of the samples, taken out of the substance, could be measured. In Forensic Science Laboratory, the weighment is done with computerized machine. The trial Court was, thus, right in holding that since, there was no difference of weight of the samples of charas, and smack, sent to the Laboratory, and drawn, at the time of the alleged search and seizure, the case of the prosecution did not become doubtful. The trial Court was also right Crl. Appeal No.370-SB of 2008 9 in holding that, therefore, there was no tampering with the samples of charas and smack. The submission of the Counsel for the appellant, to the effect that the samples of charas and smack were also tampered with, being without merit, must fail, and the same stands rejected.
14. It was next submitted by the Counsel for the appellant, that there was delay in lodging the FIR, as a result whereof, the case of the prosecution became doubtful. There was actually no delay in lodging the FIR. The recovery, in this case, was effected at about 1.25 PM. The DSP reached the spot, at about 2 PM. The FIR was registered, at about 4.30 PM. It took time to prepare the memos and record the ruqa. The memos and the ruqa were to be written in hand. Since, this exercise took sufficient time, some delay in sending the ruqa, and resultant delay in lodging the FIR occurred. This delay did not cast any doubt, on the prosecution story, in any manner. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected.
15. It was next submitted by the Counsel for the appellant, that there was delay in sending the samples to the Forensic Science Laboratory, as a result whereof, the case of the prosecution became doubtful, as it could not be said that the samples remained untampered with, till the same reached the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that delay of 8 days, in sending the samples, to the office of the Forensic Science Laboratory, 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 prosecution, to complete the link evidence. The other evidence produced by the prosecution, has been subjected to indepth scrutiny, and, it has been found to be cogent, convincing, reliable, and trustworthy. From the other Crl. Appeal No.370-SB of 2008 10 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.PB, which clearly proves that the seals on the samples, were 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 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 8 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 appellant, being without merit, must fail, and the same stands rejected.
16. The Counsel for the appellant, however, placed reliance on State of Crl. Appeal No.370-SB of 2008 11 Haryana Vs. Virsa Singh 2008(1) RCR (Criminal) 487, Rup Ram Vs. State of Haryana 2008(1) RCR (Criminal) 820, Makhan Singh Vs. State of Haryana 2008(2) RCR (Criminal) 449, Parminder Singh Vs. State of Haryana 2006(4) RCR (Criminal) 495, State of Punjab Vs. Surjit Singh 2008(1) RCR (Criminal) 267, and Ramesh Vs. State of Haryana 1998(1) RCR (Criminal) 146, to contend that delay in sending the samples must prove fatal to the case of the prosecution. The facts of the aforesaid authorities are clearly distinguishable, from the facts of the instant case. In those authorities, no doubt, there was delay in sending the samples to the office of the Forensic Science Laboratory/Chemical Examiner, yet no independent evidence was produced by the prosecution, that none tampered with the samples, until the same reached, the said Laboratory. It was, under these circumstances, that it was held, in the aforesaid cases, that unexplained delay in sending the samples to the Laboratory, for analysis must prove fatal to the case of the prosecution. Even otherwise, the principle of law, to the contrary, laid down in State of Haryana's, Rup Ram's, Makhan Singh's, Parminder Singh's, State of Punjab's, and Ramesh's cases (supra), decided by this Court, shall not hold the field, in view of the principle of law, laid down in State of Orissa's case (supra), decided by the Apex Court. The Counsel for the appellant, being without merit, must fail, and the same stands rejected.
17. It was next submitted by the Counsel for the appellant, that the trial Court was wrong in not directing that the substantive sentences, shall run concurrently. The submission of the Counsel for the appellant, in this regard, appears to be correct. No reason was recorded by the trial Court, for not directing the substantive sentences to run concurrently. Had any reason been recorded for allowing the substantive sentences to run consecutively, the matter would have been considered, in the light thereof. In my opinion, it was a fit case, in which the substantive sentences, awarded to the accused (now Crl. Appeal No.370-SB of 2008 12 appellant), should have been ordered to run concurrently. The Appellate Court, in view of the principle of law, laid down, in Jung Singh Vs. State of Punjab 2008(1) RCR 325, is competent to direct the substantive sentences to run concurrently. The submission of the Counsel for the appellant, to this extent, is accepted.
18. The defence version set up by the accused, in his statement, under Section 313 Cr.P.C.does not appear to be plausible. Om Parkash (DW-1), stated that about 3/4 years before 7.10.2005, some boys apprehended the jeep of a liquor contractor. He further stated that he used to deliver the liquor, in the houses in the village. He further stated that, on that day, the police had come and a dispute had arisen between them. He further stated that, thereafter, the police picked up the accused. He further stated that they went to the SP, Rohtak, for the release of the accused, but he told that the matter would be settled by the Court. The evidence of Om Parkash (DW-1), runs counter to the version, set up by the accused, in his statement, under Section 313 Cr.P.C. The version, set up by the accused, in his statement, under Section 313 Cr.P.C., is to the effect that the jeep in which Inder Singh, SHO, was travelling, was being driven at a speed, as a result whereof, its tyre went into a pit, and his (accused) clothes were spoiled. He further stated that he abused the occupants of the jeep. Thereafter, Inder Singh, SHO, came down from the jeep, and an altercation took place, as a result whereof, he was falsely implicated. Om Parkash (DW-1), did not state anything, in consonance with the version, set up by the accused, in his statement, under Section 313 Cr.P.C. In case, the accused was falsely implicated, Om Parkash (DW-1) could make a complaint against the high- handedness of the police to the higher Police Officers, and higher Administrative Officers, but he did not do so. He merely slept over the matter, and, ultimately, came to the Court on 7.10.2005, to depose that the accused was falsely implicated. The defence version, being an afterthought, was rightly Crl. Appeal No.370-SB of 2008 13 rejected by the trial Court. This Court, after reappraisal of the evidence, also comes to the same conclusion.
19. No other point, was urged, by the Counsel for the parties.
20. In view of the above discussion, it is held that the judgment of conviction, and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, except that the substantive sentences, awarded to the accused, should be ordered to run concurrently.
21. For the reasons recorded, hereinbefore, the appeal is dismissed, with the modification, referred to above. The judgment of conviction dated 22.10.2005, and the order of sentence dated 25.10.2005, are upheld, with the modification that the substantive sentences, awarded to the accused (now appellant), shall run concurrently, in stead of running conjecutively. If the appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, Rohtak, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure.
July 23, 2008 (SHAM SUNDER) Vimal JUDGE