Punjab-Haryana High Court
Piara Ram Son Of Som Nath vs The State Of Punjab on 10 November, 2008
Crl. Appeal No. 8--SB of 2001
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IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 8--SB of 2001
Date of decision. 10.11.2008
Piara Ram son of Som Nath, son of Banta Ram, resident of village
Jabbowal, Tehsil and District Nawanshahar.
....... Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: None for the appellant.
Mr.Shilesh Gupta, DAG, Punjab
for the respondent.
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Sham Sunder, J.
This appeal is directed against the judgment of conviction, and the order of sentence dated 22.11.2000, rendered by the Special Judge, Nawanshahar, vide which he convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period Crl. Appeal No. 8--SB of 2001
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of 10 years and to pay a fine of Rs. 1 lac, and in default of payment of fine, he was directed to undergo further rigorous imprisonment, for a period of one year, for having been found in possession of 11 bags, each containing 40 Kgs 250 grams poppy husk, without any permit or licence.
2. The facts, in brief, are that on 03.09.1993 Harinderjit Singh, SHO, Police Station, City Nawanshahar, accompanied by other Police officials, received a secret information, to the effect, that Piara Ram, accused, was dealing in poppy husk and if a raid was conducted, it could lead to the recovery of a huge quantity thereof. This information was reduced into writing Ex.PA, which was sent to the Police station, on the basis of which, FIR Ex.PA/1, was recorded. Dilbag Singh, DSP, was informed on wireless, to reach village Jabbowal, where the house of the accused, is situated. When the Police party reached the turning of village Palli Uchi, Dilbag Singh, DSP, met it. He was apprised of the secret information and associated with the Police party. When the Police party was proceeding towards the house of the accused, he(accused) met it, in the street. On inquiry, he disclosed his name as Piara Ram alias Piara son of Som Nath. He was apprehended and interrogated. He made a disclosure statement that he had concealed eleven bags of poppy husk, beneath a Crl. Appeal No. 8--SB of 2001
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taat in his house, of which he only knew, and could get the same recovered by pointing out. The disclosure statement Ex.PD, was reduced into writing, which was thumb marked by the accused, and attested by the witnesses. Thereafter, the accused, led the Police Party to the pre-disclosed place, and got recovered 11 bags, each containing 40 Kgs 250 grams poppy husk, from underneath the Taat. A sample of 250 grams of poppy husk, from each of the bags, was drawn, and the remaining poppy husk was kept in the same bags. The samples and the bags, containing the remaining poppy husk were made into separate parcels, sealed with the seal and taken into possession, vide a separate recovery memo. Ruqa Ex. PA was sent to the Police Station, on the basis of which, FIR Ex.PA/1 was recorded. Rough site plan Ex.PF was prepared. The statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the challan was presented.
3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial.
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4. The prosecution, in support of its case, examined Mohinder Singh, S.I., (PW-1), Harinderjit Singh, DSP, the then SHO, at the relevant time, the Investigating Officer, (PW-2), Manvir Singh, SI, (PW-3), and Dilbag Singh, SP ( Detective ), Jalandhar, ( PW-4 ). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication.
5-A. In his defence, the accused examined Raj Kumar Clerk, DW-1, Kulwinder Kaur, DW-2 and Biru Ram, DW-3. Thereafter, the accused closed the evidence in defence.
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, as stated hereinbefore.
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 appellant.
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8. When the appeal was fixed for arguments and due notice had been given to the Counsel for the appellant, none appeared, on behalf of the appellant. Under these circumstances, no alternative was left with this Court, than to go through the evidence,record of the case, trial Court judgment, hear the arguments of the Counsel for the respondent, and decide the appeal, on merits, as that amounted to due compliance of the provisions of Sections 385 and 386 of the Code of Criminal Procedure, in view of the ratio of law, laid down, in Dharampal v. State of UP, 2008(1) Law Herald (SC) 225.
9. I have heard the Counsel for the respondent, and perused the records, evidence, and the impugned judgment, carefully.
10. The first ground, taken up, in the memorandum of appeal, was to the effect, that the charge framed in this case, was defective and illegal, in as-much-as, the Additional Sessions Judge, Jalandhar, who framed the same, was not competent to do so, under the Act, as a result whereof, a grave prejudice was caused to the appellant. There is nothing, on the record, that the Additional Sessions Judge, Jalandhar, who framed the charge on 23.02.1994, at Crl. Appeal No. 8--SB of 2001
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Jalandhar, was not competent to do so. Earlier, all the cases, relating to Sub Division,Nawanshahar, triable by the Court of Sessions, used to be instituted at Jalandhar, as the post of Additional Sessions Judge, at Nawanshahar, had not been created by that time. After the creation of a post of Additional Sessions Judge, at Nawanshahar, all the cases, relating to Sub Division Nawanshahar, used to be instituted, in the Court of such Additional Sessions Judge. The Sessions Cases, relating to Sub Division, Nawanshahr, pending in the Court, at Jalandhar, were also transferred to the Court of Additional Sessions Judge, Nawanshahar. It, therefore, could not be said that the Additional Sessions Judge, Jalandhar, who framed the charge on 23.02.1994, against the accused, lacked jurisdiction. Therefore, there was no illegality, in framing the charge, by the Court of Additional Sessions Judge, Jalandhar. The ground, taken up, in this regard, does not hold good, and the same stands rejected.
11. Now, coming to the factum, as to whether, there was any defect, in the charge, framed against the accused, by the Court concerned, it may be stated here, that the correct quantity of poppy husk, which was recovered from the accused, was not stated therein. In the charge, it was stated that 11 bags, each containing 40 Kgs. poppy-husk were Crl. Appeal No. 8--SB of 2001
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recovered from the accused, though, each bag, contained 40 Kgs and 250 grams poppy husk. It is to be determined, as to whether, such a defect, could be said to be sufficient to set aside the conviction. It was merely an error, in framing the charge, which was committed by the Court concerned. According to Section 464 Cr. P.C., any error or omission in the charge, could not be said to be sufficient, to set-aside the conviction, until the Appellate Court, comes to the conclusion, that there was really a failure of justice, on account of this reason. In the instant case, the accused was duly assisted by an Advocate, during the course of trial. The evidence was recorded, against the accused, in the presence of his advocate. The prosecution witnesses were thoroughly cross-examined, by his Counsel. All the prosecution witnesses stated that each bag contained 40 Kgs 250 grams poppy husk. The accused, thus, very well knew, as to what was the case against him. He was also examined under Section 313 Cr.P.C. and afforded an opportunity to lead evidence, in his defence. There was, therefore, no failure of justice, on account of the defect, aforesaid, which cropped up in the charge. The ground, to this extent, being without merit, must fail, and the same stands rejected.
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12. The next ground, taken up in the memorandum of appeal, was to the effect, that the provisions of Section 50 of the Act, which are mandatory, in nature, were not complied with, as a result whereof, the conviction and sentence stood vitiated. It may be stated here, that the provisions of Section 50 of the Act, are not applicable, to this case, as the recovery was not effected, from the person of the accused, but on the basis of disclosure statement, made by him, from underneath a Taat, referred to hereinbefore. 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 Crl. Appeal No. 8--SB of 2001
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not applicable, to search, in the instant case, the question of vitiation of conviction and sentence, did not at all arise. This ground,also does not hold good and stands rejected..
13. The next ground, taken up, in the memorandum of appeal, was to the effect that the mandatory provisions of Section 100(4) of the Code of Criminal Procedure, were not complied with, as a result whereof, the conviction and sentence stood vitiated. It is, no doubt, true that according to Section 100(4) of the Cr.P.C. before conducting the search, the Investigating Officer was required to make an endeavour to call two or more independent respectables of the locality. It may be stated here, that Harinderjit Singh, PW2, during the course of cross- examination, stated that he sent Krishan Murari, HC, to call some witnesses, from the village, who, on return, told him, that no male member was present in the houses in the entire village. He further stated that he recorded this factum in the case diary. The recovery, in this case, was effected in the afternoon. It is a matter of common experience, that the male members, being predominantly agriculturists, remain busy in their agricultural activities, in the fields, in the afternoon. It was, under these circumstances, that no male members, could be found, in the houses and, therefore, could not be joined. It Crl. Appeal No. 8--SB of 2001
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is evident that an effort was made by the Investigating Officer to join two independent witnesses, from the locality, but he could not succeed, on account of the reason, referred to above. Under these circumstances, the conduct of the Investigating Officer, could not be said to be blame-worthy. Even otherwise, the provisions of Section 100(4) of the Code of Criminal Procedure are not mandatory, in nature. It was for the accused, to show that prejudice, was caused to him, on account of non compliance of the provisions of section 100(4) of the Code of Criminal Procedure. No such prejudice was shown to have been caused, to the accused, on account of non-joining of two witnesses, from the locality. In Sunder Singh Vs. State of UP, AIR 1956, Supreme Court, 411, two persons not belonging to the locality, had been joined, at the time of search. It was contended by the Counsel for the appellant, that since the provisions of (Section 103 Cr.P.C. of 1898), now (Section 100(4) Cr.P.C. 1973), were not complied with, at the time of search, the search and the consequent recovery became illegal, and could not be taken into consideration. Repelling the contention, it was held that assuming that the persons, who actually witnessed the search, were not respectable inhabitants of the locality, that circumstance would not invalidate the search. It would only Crl. Appeal No. 8--SB of 2001
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affect the weight of the evidence, in support of search, and recovery. Hence, at the highest, the irregularity in the search, and recovery, in so far as the terms of (Section 103 Cr.P.C. Of 1898) had not been fully complied with, would not affect the legality of the proceedings. In Puran Mal Vs. Director of Inspection (1974) 1 SCC 345, a Constitution Bench of the Apex Court, held that the material obtained by an illegal search, is not inadmissible into evidence, and can be acted upon, to record a conviction. In State Vs. Jasbir Singh (1996) 1 SCC 288, it was held that the evidence collected, in breach of the mandatory requirements, does not become inadmissible. The principle of law, in nut shell, laid down, in the aforesaid authorities, was to the effect, that the provisions of Section 100(4) are not mandatory, in nature, and non- compliance therewith, will not vitiate the investigation and trial. This ground, therefore, does not hold good, and the same stands rejected.
14. The next ground, taken up, in the memorandum of appeal, was to the effect, that a secret information was received, by the Investigating Officer, but he neither reduced the same into writing, nor sent the same to the Officer superior immediately, as a result whereof, the case of the prosecution became doubtful. It may be stated here, that as Crl. Appeal No. 8--SB of 2001
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soon as, the secret information was received by the Investigating Officer, he reduced the same into writing, in the form of ruqa Ex.PA, and sent the same to the Police station, on the basis of which, FIR Ex.PA/1 was registered. The copies thereof, by way of special reports, were sent to the Illaqa Magistrate, as also to the other Officers superior. Under these circumstances, the Investigating Officer, complied with the provisions of Section 42 of the Act. This ground, therefore, does not hold good, and the same stands rejected.
15. The next ground, taken up, in the memorandum of appeal, was to the effect that in the instant case, the provisions of Section 57 of the Act were not complied with, as a result whereof, a prejudice was caused to the accused. According to Section 57 of the Act, the Investigating Officer, is required to send report within 48 hours, from the time of search and seizure, to the Officer superior, so as to apprise him of the facts and circumstances of the case, as also other details. In the instant case, on receipt of secret information, the same was reduced into writing, and sent to the Police station, on the basis whereof, the FIR was recorded. Not only this, Dilbag Singh, DSP, on the message sent, by the Investigating Officer, came and met Crl. Appeal No. 8--SB of 2001
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the Police party. He was apprised of the secret information, received by the Investigating Officer. He was present, at the time of search and seizure. There was, therefore, complete compliance with the provisions of Section 57 of the Act, in the instant case. There is nothing, on the record, that any prejudice, whatsoever, was caused to the appellant, on account of non-strict compliance with the provisions of Section 57 of the Act. This ground, therefore, does not hold good, and the same stands rejected.
16. The next ground, taken up, in the memorandum of appeal, was to the effect, that the accused was not found in conscious possession of poppy husk. It may be stated here, that the accused was interrogated, upon which, he made a disclosure statement that he had concealed the bags, containing poppy husk, in his house. His disclosure statement was reduced into writing. In pursuance of the disclosure statement, the accused led the Police party to the pre-disclosed place and got recovered the bags, containing poppy husk, referred to above. The concealment of the bags, containing poppy husk, was only in the exclusive knowledge of the accused. No other person, knew about the concealment of the bags, containing poppy husk. It means that he was found in possession of, and in control over the bags, Crl. Appeal No. 8--SB of 2001
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containing poppy-husk, referred to above. Once the possession of the accused, and their control over the contraband, was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against him, that he was in conscious possession thereof. Thereafter, it was for him, to rebut the statutory presumption, by leading cogent and convincing evidence. However, the appellant, failed to rebut the said presumption, either during the course of cross- examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that he was in conscious possession of the contraband. This ground does not hold good and the same stands rejected.
17. The next ground, taken up in the memorandum of appeal, was to the effect, that Harinderjit Singh, the Investigating Officer, PW-2, stated that on casual search, the gunny bags, containing poppy husk, could be recovered. It was, thus, stated that the recovery in this case was turned into discovery. PW-2 Harinderjit Singh, during the course of cross-examination, stated that had the accused been not available, in his house, they would raided the same and conducted search. This does not mean that, on casual search of the house, of the accused, the poppy husk could be Crl. Appeal No. 8--SB of 2001
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recovered. In his examination-in-chief, it was specifically stated by this witness, that the recovery was effected , in pursuance of the disclosure statement, made by the accused. It, therefore, could not be said that the recovery was converted into discovery, so as to connect the accused, with the instant case. This ground also does not hold good and the same stands rejected.
18. The next ground taken up, in the memorandum of appeal, was to the effect, that Harinderjit Singh, SHO, sent ruqa in this case, and himself became the Investigating Officer. It was stated that the course adopted by Harinderjit Singh, SHO, was contrary to the provisions of law and, as such, the conviction and sentence stood vitiated. 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, nor was it proved, from the prosecution evidence, that a prejudice was caused to him, on account of adoption of the aforesaid course, by the Investigating Officer.
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In S.Jeevanantham's case (supra) the recovery 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. The facts S.Jeevanantham's case (supra) are identical to the facts of the instant case, and, as such, the principle of law, laid down, therein, is applicable to the same. This ground also does not hold good and the same stands rejected.
19. The next ground taken up, in the memorandum of appeal, was to the effect, that though the alleged recovery was effected in this case on 03.09.1993, yet the samples were sent to the office of Chemical Examiner on 07.09.1993 i.e. after the delay of 04 days. It was also stated that there was no explanation, with regard to delay, in sending the samples to the office of the Laboratory and under these circumstances, the possibility of tampering with the samples, until the same reached the office of the Laboratory, could not be ruled out. It is, no doubt, true that there is no explanation, with regard to delay. However, mere delay, in Crl. Appeal No. 8--SB of 2001
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itself, is not sufficient to come to the conclusion, that the sample parcels were tampered with, until the same reached the office of the Chemical Examiner. The other evidence, produced by the prosecution, is cogent, convincing, reliable and trustworthy. From the other evidence, it was proved that none tampered with the samples, until the same reached the office of the Chemical Examiner. Even, there is report of the Laboratory Ex.P-H, which clearly proves that the seals on the exhibits, were intact, on arrival, till the time of their analysis and agreed with the specimen impression of the seals. The report Ex.P-H of the Chemical Examiner is per-se admissible, in toto, under Section 293 of the Code of criminal Procedure. There is no challenge to the report of the Chemical Examiner, in this case. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody. Since, it was proved that none tampered with the samples, until the same were received, in the Laboratory, the ground taken up in the memorandum of appeal, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. This ground, being without merit, Crl. Appeal No. 8--SB of 2001
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stands rejected.
20. The next ground taken up, in the memorandum of appeal, was to the effect, that the statement of the Station House Officer, concerned, was not recorded, by the Investigating Officer, under Section 161 Cr.P.C, as a result whereof, a prejudice was caused to the accused. It may be stated here, that Harinderjit Singh, Sub Inspector, the Investigating Officer, was also the Station House Officer, of the Police Station, at the relevant time. The recovery, in this case, was effected in the presence of Dilbag Singh, DSP. On return to the Police Station, Harinderjit Singh, Sub Inspector, deposited the case property with seals intact with MHC Baljinder Singh. Since Harinderjit Singh, S.I., was himself the Station House Officer of the Police Station, he was not required to produce the case property, before any other superior Officer or the Additional Station House Officer. The statement of the Station House Officer, Investigating Officer was not required to be recorded. Whatever the investigation was made by him, the details thereof, were mentioned in report under Section 173 Cr.P.C. In this view of the matter, the question of causing prejudice to the accused, on account of the aforesaid reason, did not at all arise. This ground also does not hold good and the same stands rejected.
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21. The next ground, taken up, in the memorandum of appeal, was to the effect, that the link evidence, in this case, was incomplete. Harinderjit Singh, the Investigating Officer, PW2, stated that on reaching the Police Station, the case property, the sample parcels, and the sample impression of the seal, were deposited with MHC Baljinder Singh. Baljinder Singh, HC also stated that the case property, the sample impression of the seal and the sample parcels, duly sealed, were deposited with him, by Harjinderjit Singh, Sub Inspector, who was the Station House Officer, of the Police Station. If, in report under Section 173 Cr.P.C., it was recorded that Manvir Singh, Sub Inspector, deposited the seal, that did not cause any dent in the prosecution story. Harinderjit Singh, the Investigating Officer, PW2, when appeared in the witness box as a witness, was not put the contents of report under Section 173 Cr.P.C., so as to confront him with the same. Had he been put the contents of report under Section 173 Cr.P.C., confronted therewith, and given an opportunity to explain the discrepancy, he would have certainly, furnished his explanation. Under these circumstances, no help could be drawn from the contents of report under Section 173 Cr.P.C., by the appellant. The evidence, produced by the prosecution, in this case, clearly Crl. Appeal No. 8--SB of 2001
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reveals that the link evidence was complete. Above all, there is a report of the Chemical Examiner Ex.PH, to the effect that the seals on the exhibits were intact, on arrival, till the time of their analysis and agreed with the specimen impression of the seals. The report Ex.P-H of the Chemical Examiner is per- se admissible, in toto, under Section 293 of the Code of criminal Procedure. There is no challenge, to the report of the Chemical Examiner, in this case. Under these circumstances, the trial Court was right, in holding that the link evidence was complete. This ground also does not hold good and the same stands rejected.
22. The next ground, taken up, in the memorandum of appeal, was to the effect, that the trial Court discarded the defence version, and the defence evidence, produced by the accused, without any valid reason. The defence version and the defence evidence, produced by the accused, were discussed by the trial Court, in para Nos. 15 to 18 of its judgment. The trial Court, after due discussion of the evidence, produced by the accused, in support of his defence version, came to the conclusion, that the defence version, set up by the accused, did not inspire confidence. The trial Court, was also right, in discarding the defence evidence, for valid reasons. No ground is made out, to interfere with the Crl. Appeal No. 8--SB of 2001
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conclusion, arrived at, by the trial Court, in this regard. This ground, therefore, does not hold good, and the same stands rejected.
23. No other ground, to assail the judgment of conviction and the order of sentence of the trial Court, was taken up, in the memorandum of appeal.
24. 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. The same are liable to be upheld.
25. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence, dated 22.11.2000, are upheld. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, within two months, from the date of receipt of a certified copy of the same, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and send the compliance report immediately thereafter.
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26. The District & Sessions Judge, Jalandhar, is also directed to ensure that directions, referred to above, are complied with,within the time-frame, and the compliance report is sent immediately, thereafter, to this Court.
27. The Registry shall keep track of the matter, and put up the action taken report, if received, within the time frame. Even if, the same is not received, within the time frame, the matter shall be put up, within 10 days, after the expiry of the stipulated time.
10.11.2008 (SHAM SUNDER) dinesh JUDGE