Punjab-Haryana High Court
Pappu Ram Alias Pali Ram vs The State Of Punjab on 24 October, 2008
Crl. Appeal No. 182-SB of 2001
1
IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 182-SB of 2001
Date of decision. 24.10.2008
Pappu Ram alias Pali Ram, son of Sehru Ram son of Nikku Ram,
resident of village Pasol Rajputan, Tehsil Guhla, District Kaithal.
....... Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Atul Lakhanpal, Senior Advocate with
Mr. Ravi Dhariwal, Advocate
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 31.01.2001, rendered by the Judge, Special Court, Patiala, vide which he convicted the accused (now appellant), for the offence, punishable under Section 18 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 of 10 years and to pay a fine of Rs. 1lac, in default of payment of fine to undergo further rigorous for two years, for having Crl. Appeal No. 182-SB of 2001 2 been found in possession of 4 Kgs opium, without any permit or licence.
2. The facts, in brief, are that on 13.05.1994, SI Harbhajan Singh, along with other police officials, was going from village Gulhar to village Jogipur in a Government Gypsy, for checking of bad elements and when they reached near Adika Sahib Gurdwara, Surjit Singh, independent witness met them, and was joined in the Police party. When they reached on the out-skirts of village Jogewal, Puppu Ram, accused, was seen coming from the opposite side, having a cloth bag, in his right hand. On seeing the Police party , he went inside the nearby uninhabited structure, and sat there on the pretext of urinating. He was apprehended by Harbhajan Singh, SI, with the help of other Police officials. On inquiry, he disclosed his name. Harbhajan Singh, Sub Inspector, suspected that he was carrying some contraband, in the bag. He gave an option, whether he wanted the search of the bag, to be conducted in the presence of a Gazetted Officer, or a Magistrate, but he reposed confidence in him. Consent memo was prepared. Thereafter, Harbhajan Singh, Sub Inspector, conducted the search of the bag, being carried by the accused. It was found containing 4 Kgs, opium, wrapped in a glazed paper. Two samples of 10 grams each opium, were taken Crl. Appeal No. 182-SB of 2001 3 out, from the recovered contraband, and the remaining opium, was put into a separate container. The samples, and the container containing the remaining opium, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the FIR was recorded. The site plan was prepared. The personal search of the accused, was also conducted, as a result whereof, a sum of Rs.130/- was recovered. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned.
3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 18 of the Act, was framed against the accused, to which he pleaded not guilty, and claimed trial.
4. The prosecution, in support of its case, examined Prem Kumar, C, ( PW-1 ), Gurmail Singh, HC, ( PW-2),Mela Singh, S.I., ( PW-3 ), and Harbhajan Singh, Sub Inspector, ( PW-4 ). Thereafter, the Public Prosecutor for the State, tendered into evidence report Ex.PK of the Chemical Examiner, and closed the prosecution evidence.
Crl. Appeal No. 182-SB of 2001 4
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.
6. He examined Darshan Singh, DW-1, Panjab Singh, C., DW-2, and Ravinder Singh, C., DW-3, in his defence. Thereafter, he closed the defence evidence.
7. 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 the accused, as stated hereinbefore.
8. 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.
9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
10. The Counsel for the appellant, at the very outset, submitted that the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the conviction and sentence stood vitiated. He also placed reliance on Dalip & Another v. State of M.P. 2007(1) RCR Crl. Appeal No. 182-SB of 2001 5 ( Criminal ), 586 (SC) decided by a two Judge Bench of the Apex Court. He further submitted that Ex.PC, the consent memo, which was allegedly prepared, in this case, is a fabricated document. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In the instant case, the recovery was not effected from the person of the accused, but from the bag, being carried by him. Under these circumstances, the provisions of Section 50 of the Act were not applicable to the instant case. Since the provisions of Section 50 of the Act, were not applicable to the instant case, the question of their compliance or non-compliance therewith, did not at all arise. The Investigating Officer, however, out of abundant caution, complied with the said provision. Coming to the case cited by the Counsel for the appellant, it may be stated here, that the facts thereof are clearly distinguishable, from the facts of the instant case. In that case, in the first instance, personal search of the accused, was conducted, and when no contraband was recovered therefrom, the scooter being ridden by him, was searched and from the dickey thereof, the contraband was recovered. It was, under these circumstances, that the Apex Court held that the provisions of Section 50 of the Act were applicable to the same and non-compliance therewith, vitiated the conviction and sentence. In the instant Crl. Appeal No. 182-SB of 2001 6 case, in the first instance, it was the bag, being carried by the accused, which was searched, resulting into the recovery of 4 Kgs opium. It was not that, in the first instance, the personal search of the accused was conducted and when no contraband was recovered therefrom, the bag, being carried by the accused, was searched. Not only this, there were so many other lacunae and infirmities in Dalip and Anr.'s case ( supra ).Taking into consideration, the violation of the provisions of Section 50 of the Act, as also the other lacunae and infirmities, prevailing therein, the Apex Court came to the conclusion that the case of the prosecution was doubtful. Ultimately, the accused was acquitted. Even otherwise, in view of the principle of law, laid down in State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, decided by a Constitution Bench of the Apex Court on the same point, any principle of law, to the contrary laid down, in Dalip & Anr.'s cases ( supra ), shall not hold the field. No help, therefore, can be drawn by the Counsel for the appellant, from the ratio of law, laid down, in the authority, cited by him, and referred to above. 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. Now adverting to the argument of the Counsel for the appellant, that the consent memo Ex.PC Crl. Appeal No. 182-SB of 2001 7 prepared in this case, was a fabricated document, it may be stated here, that the same also does not hold good. This consent memo, no doubt, is not signed by any witnesses. It also does not find mention in the ruqa. This fact alone, cannot be said to be sufficient to come to the conclusion, that it was fabricated lateron. Mela Singh, Sub Inspector, a witness to the recovery, in clear-cut terms, stated that option Ex.PC was given to the accused, as to whether, he wanted the search of the bag, to be conducted in the presence of a Gazetted Officer or a Magistrate and he reposed full confidence, in Harbhajan Singh, SHO. Harbhajan Singh, Sub Inspector, ( PW-4 ), the Investigating Officer, also made a similar statement. Had the consent memo been not prepared, at the spot, and introduced later on, then Mela Singh, Sub Inspector ( PW-3 ) would not have deposed so. On account of some irregularity, on the part of the Investigating Officer, in not obtaining the signatures of the witnesses, on this document, or not mentioning the same, in the ruqa, the same did not become a false document. As stated above, in view of the principle of law, laid down, in State of Punjab Vs. Baldev Singh's case ( supra ) , decided by a Constitution Bench of the Apex Court, the provisions of Section 50 of the Act were not applicable to this case, and due to this reason, this document has no relevance. In this view of Crl. Appeal No. 182-SB of 2001 8 the matter, 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 Surjit Singh, independent witness, who was joined by the Investigating Officer, at the time of the alleged recovery, was a stock witness of the prosecution, and no effort was made by him ( Investigating Officer ) to join any other independent witness, despite availability. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Harbhajan Singh, Sub Inspector, ( PW-4 ), during the course of cross-examination, denied that Surjit Singh, Sarpanch, was a stock witness of the Police. He admitted that a case was registered against Jaspal Singh, Inspector, regarding custodial death in Police post Shutrane. He further stated that he did not know, if Surjit Singh, PW was challaned alongwith Jaspal Singh, Inspector and others. He further stated that he did not know, if in that case, a case of Arms Act was registered against the deceased and Surjit Singh, PW, was cited as a witness of recovery. From the statement of this witness, it is not proved that Surjit Singh, independent witness, was a stock witness. Even if, it is assumed, that he was cited as a witness, by the Police, in one or two cases, it does not mean that he was a stock witness. There is no Crl. Appeal No. 182-SB of 2001 9 evidence, on record, that he has been, in routine, appearing, as a witness, of the prosecution. Under these circumstances, Surjit Singh, independent witness, could not be branded, by any stretch of imagination, as a stock witness. 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. Coming to the next submission of the Counsel for the appellant, it may be stated here, that it was a chance recovery. During the course of cross-examination , Harbhajan Singh, Inspector, ( PW-4 ), stated that the place of recovery was at a distance of 12 Kms, on the southern side of the Police Station. He further stated that they remained at the spot for about five hours, and no person was joined from the nearby houses, as he had already joined Surjit Singh, PW. Since Surjit Singh, independent witness, was already with the Police party, there was no necessity, on its part, to join any other independent witness. There is no evidence, on record, that at the time of recovery, from the accused, any other independent witness, was present, but he was not intentionally and deliberately joined. The mere fact that the Police party remained at the spot for five hours, did not mean that non- joining of any other independent witness, caused any dent in the prosecution case. It may be stated here that after the Crl. Appeal No. 182-SB of 2001 10 recovery, if any independent witness, had been joined, his evidence would have had no significance, as he would not have been said to be a witness to the recovery. The evidence of the prosecution witnesses, has been subjected to in-depth scrutiny, and the same has been found to be cogent, reliable and trust-worthy. The trial Court was, thus, correct in relying upon the same, and coming to the conclusion, that the accused had committed an offence punishable under Section 18 of the Act. It could not be imagined, that such a heavy quantity of opium could be planted against the accused. The Police had no ill-will, grudge or enmity against the accused, to falsely implicate him, in the instant case. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
14. It was next submitted by the Counsel for the appellant, that the grounds of arrest, were not served upon the accused and, as such, there was violation of the provisions of Section 52 of the Act, resulting into prejudice to the accused. Harbhajan Singh, Inspector, ( PW-4 ), during the course of cross-examination, stated that no written grounds of arrest were served upon the accused, but he was orally told that he had been arrested, in this case, as he had been found in possession of 4 Kgs opium, constituting the offence, under Section 18 of Crl. Appeal No. 182-SB of 2001 11 the Act. In my opinion, there was sufficient compliance of the provisions of Section 52 since the accused was made known of the grounds of his arrest, though orally. No prejudice was shown to have been caused to the accused, on account of non- service of the grounds of arrest, in writing. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
15. It was next submitted by the Counsel for the appellant, 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. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. 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, ruqa containing the details of search and seizure and arrest of the accused, was sent from the spot itself i.e. much before the expiry of 48 hours, to the Police Station, on the basis whereof FIR was recorded. Copies of the FIR were sent to the superior Officers, as also the Illaqa Magistrate. There was, thus, due compliance of the provisions of Section 57 of the Act. Even otherwise, the provisions of Crl. Appeal No. 182-SB of 2001 12 Section 57 of the Act are directory, in nature, and non- compliance therewith, ipso facto, does not vitiate the trial, conviction and sentence. Since there was due compliance of the provisions of Section 57 of the Act, in the instant case, the submission of the Counsel for the appellant, being devoid of merit, stands rejected.
16. No other point, was urged, by the Counsel for the parties.
17. 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.
18. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence, dated 31.01.2001, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. 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 Crl. Appeal No. 182-SB of 2001 13 Procedure and submit the compliance report immediately thereafter.
19. The District & Sessions Judge, Patiala is also directed to ensure that the directions, referred to above, are complied with, within the time frame, and compliance report is sent immediately thereafter, to this Court.
20. The Registry shall keep track of the compliance of the directions, and put up the file, immediately after the expiry of the stipulated period, whether the report is received or not.
(SHAM SUNDER) JUDGE October 24 , 2008 dinesh