Punjab-Haryana High Court
Joga Singh vs State Of Punjab on 7 May, 2012
Author: A.N. Jindal
Bench: Hemant Gupta, A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Appeal No. 1136 -DB of 2009
Date of decision: May 07, 2012
Joga Singh
.. Appellant
Vs.
State of Punjab
.. Respondent
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Naresh Kaushik, Advocate for the appellant.
Mr. Pavit Singh Mattewal, Addl. A.G. Punjab.
A.N. Jindal, J
Accused-appellant Joga Singh (herein referred as, 'the accused')
was prosecuted for keeping in his possession 3 kgs of opium.
Consequently, he was tried, convicted and sentenced to undergo rigorous
imprisonment for 11 years and to pay fine of Rs.1.00 lac under Section 18 of
the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein referred
as, 'the Act').
On 13.4.2008, ASI Gurcharan Singh along with HC Sohan
Singh and other police officials were present in an official vehicle bearing
registration No. PH-11-Y-8108, on the bridge of Tangri river in the revenue
area of village Ojhan in connection with patrolling and search of suspected
persons. They also came across Mehal Singh son of Nishan Singh, an
independent witness with whom they were conversing. In the meantime, at
about 10/10.30 AM, the accused, while riding the motor cycle bearing
registration No. PB-11-AH-5730, came via the river pavement from the
side of village Ratta Khera. On seeing the police party, he tried to take a
turn but his motor cycle slipped, as such, he was apprehended. The
Investigating Officer while suspecting him of carrying some incriminating
article, offered him to be searched in the presence of a Gazetted Officer or a
Magistrate, but the accused reposed confidence in him. After recording
consent memo Ex.PA in that regard, searched him, whereupon opium was
recovered from a cloth bag placed in another black bag fitted with the motor
Crl. Appeal No. 1136 -DB of 2009 -2-
***
cycle. The opium, on weighment, came to be 3 kgs, out of which two samples of 10 grams each were taken out. The sample parcels and the bulk opium were sealed with the seal of Investigating Officer bearing impression "GS". The specimen seal impression Ex.P1 was also prepared. The seal after use was handed over to Mehal Singh. The Investigating Officer took the case property into possession vide memo Ex.PB. On personal search, a sum of Rs.250/- were recovered which were also taken into possession vide memo Ex.PD. The accused was arrested vide ground of arrest memo Ex.PE. The motor cycle bearing registration No. PB11-AH-5730 along with its registration certificate was taken into possession vide memo Ex.PC, ruqa Ex.PG was sent to the police station, on the basis of which FIR Ex.PG/1 was registered. The rough site plan Ex.PH was also prepared.
On return to the police station, the Investigating Officer produced the accused along with the case property before the SHO/Inspector Harbhajan Singh, who after verifying the investigation got deposited the case property in the 'malkhana' through the Investigating Officer with seals intact. As directed by the Inspector Harbhajan Singh, the Investigating Officer produced the accused along with the case property before the Illaqa Magistrate, who also got drawn a sample of 10 grams from the bulk parcel. The said sample was converted into a parcel and sealed with seal bearing impression "AK". Amarjit Singh photographer also took the photographs of the case property as well as the sample and thereafter the Illaqa Magistrate directed the Investigating Officer to deposit the case property in the judicial malkhana. The report of the Chemical Examiner Ex.PK was followed by the submission of the report under Section 173 Cr.P.C.
The accused was charged under Section 18 of the Act, to which he pleaded not guilty and claimed trial.
During trial, the prosecution examined HC Sohan Singh (PW1), ASI Gurcharan Singh (PW2), MHC Lakhbir Singh (PW3), Inspector Harbhajan Singh (PW4), HC Jaswinder (PW5) and MHC Sahib Singh (PW6).
Crl. Appeal No. 1136 -DB of 2009 -3-*** When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further disclosed that he had a dispute with Kundan Singh of his village. Investigating Officer Gurcharan Singh in connivance with Harbhajan Singh Inspector arrested him at the instance of Kundan Singh on 12.4.2008 and implicated him in the case.
In defence, he examined Karnail Singh (DW1) and HC Budh Gir (DW2).
The trial resulted into conviction.
Arguments heard. Record perused.
Mr. Kaushik has raised multi fold contentions in order to assail the prosecution version. He has argued that Mehal Singh witness so joined by the prosecution is a stock witness as he is also a witness in case FIR Nos. 49 and 50 dated 6.4.2008 copies of which are Ex.DW2/B and Ex.DW2/C. He has also urged that the provisions of Section 50 of the Act were not complied with and sample of 25 grams each were not taken out as required by law. The link evidence is also missing and the accused was falsely implicated by the Investigating Officer in connivance with Inspector Harbhajan Singh at the instance of Kundan Singh etc. who were inimical to him.
To the contrary, Mr. Mattewal has urged that mere fact that Mehal Singh was cited as a witness in two cases registered against an accused in the same time, do not turn him into a stock witness. The recovery of the contraband is duly proved and such heavy recovery could not be foisted against him without any reason. The dispute with Kundan Singh stood already compromised, therefore, the story regarding the enmity with Kundan Singh etc. is false. No close association among Kundan Singh, Inspector Harbhajan Singh and ASI Gurcharan Singh has been established. There is no delay in sending the sample for chemical examination. No prejudice is caused to the accused for depositing the case property either on 14.4.2008 or 15.4.2008.
Crl. Appeal No. 1136 -DB of 2009 -4-*** Having considered the rival contentions, we do not find any merit in the arguments advanced by the learned counsel for the appellant. We have the consistent and categorical statements of two witnesses, namely, Investigating Officer Gurcharan Singh and Inspector Harbhajan Singh. Their testimonies also stand corroborated by HC Sohan Singh (PW1) who had also attested the recovery memos. All the three witnesses are quite consistent about the date, time, manner and the place of recovery of 3 kgs of opium from the bag which was placed in another bag affixed with the motor cycle. On seeing the police party, the accused had tried to escape, but he was apprehended as his motor cycle had slipped. He is proved to be the owner of the motor cycle.
As regards non compliance of Section 50 of the Act, the accused never asked for calling the Gazetted Officer or the Magistrate despite the option given to him. His consent memo Ex.PA was also prepared at the spot which indicates that the accused reposed confidence in the Investigating Officer. In any case, it is not a case of personal search, but the search of motor cycle, therefore, the provisions of Section 50 of the Act are not attracted. Similar view was taken by the Apex Court in case State of Haryana vs. Mai Ram 2008 (4) RCR (Criminal) 130, wherein it was observed that if the recovery is effected from a container, a bag, a dwelling unit or vehicle then the provisions of Section 50 of the Act are not attracted as this Section is applicable to the cases of personal search and not from any of the aforesaid places or vehicle.
The learned counsel for the appellant has tried to impress upon us by urging that as per standing instructions issued by the Central Government, two samples of 25 grams each were required to be drawn, but to the contrary, only two samples of 10 grams each were drawn for sending the same to the Chemical Examiner. In this regard, learned counsel for the appellant has relied upon the judgment delivered in case Gurchran Singh vs. State of Punjab, 2005 (4) R.C.R. (Criminal) 681.
Having considered the contentions, it is observed that there is no such mandate of law requiring particular quantity of contraband as Crl. Appeal No. 1136 -DB of 2009 -5- *** sample. As regards the judgment delivered by the Apex Court in Gurchran Singh's case (supra), it is observed that the accused were not acquitted solely on the basis of the weight of the samples, but it was one of the grounds as recorded in the said judgment.
The requirement of law with regard to drawing of two samples was discussed in case Jaipal @ Kala vs. State of Haryana, 2010 (2) R.C.R. (Criminal) 52, wherein while discarding the requirement of drawing two samples, the court observed as under :-
"...... There is no requirement of law, that two samples from the contraband, allegedly recovered from the accused, should be drawn, by the Investigating Officer, at the time of recovery. The object of drawing a sample, is that the same should be sent to the Forensic Science Laboratory, for the purpose of analysis. The sample was sent to the Forensic Science Laboratory, and it found the contents thereof to be sufficient, for the purpose of analysis. There was, therefore, no violation of any provision of the Act, or the Rules framed thereunder. No dent, therefore, was caused, in the case of the prosecution, on account of drawing of one sample, from the charas, allegedly recovered....."
Similarly, this Court in case Ajay Malik & Ors. vs. State of U.T. Chandigarh, 2009 (3) R.C.R. (Criminal) 649, while discussing the Government instruments, as also the judgment delivered in Gurchran Singh's case (supra), and in the light of the provisions of Section 55 of the Act, took the view that the standing instructions have no binding force and the sample which is not found to be deficient for the purpose of examination by the laboratory, if drawn, neither vitiates the recovery nor make any challenge to the opinion made by the Chemical Examiner qua the nature of the incriminating article so recovered from the accused. Section 55 of the Act reads as under :-
"55. Police to take charge of articles seized and delivered- An officer-in- charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act Crl. Appeal No. 1136 -DB of 2009 -6- *** within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
Thus, neither Section 55 nor the rules made under the Act prescribe for taking any specified quantity of the samples. We have been informed about the standing instructions No.1/88 issued by the Central Government, which read as under :
(i) If the drugs seized are found in packages/containers, the same should be serially numbered for purpose of identification etc. (ii) Samples must be drawn on the spot of recovery in duplicate, in the presence of search (panch) witnesses and the person from whose possession the drug is recovered.
(iii) The quantity to be drawn in each sample should be 5 gms in respect of all narcotic drugs and psychotropic substances except in the cases of opium, ganja and charas, hashish where a quantity of 24 gms in each case is required. The same quantity should be taken for the duplicate samples also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn.
(iv) In the case of seizure of a single package/container one sample in duplicate is to be drawn. In case of seizure of more than one packages/container one sample in duplicate from each package/container should be drawn.
(v) All samples must be drawn and sealed in the presence of the accused, panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose possession the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and duplicate of each sample.
(vi) The sample in duplicate should be kept in heat sealed plastic bags.
The plastic bags should be kept in a paper envelope and properly sealed. Such sealed envelope should be marked as original and duplicate.
Crl. Appeal No. 1136 -DB of 2009 -7-***
(vii) The samples should be dispatched to the respective laboratories under the cover of a Test Memo which shall be prepared in triplicate in proforma NCB.
But, instructions, which are just guidelines cannot override the Act or the rules made thereunder, therefore, the same cannot be said to have any binding force, may be implemented as precaution. In any case, failure to comply with such instructions will not by itself vitiate the conviction. The golden thread running through the rules or the procedure is the prejudice if caused to the accused by not doing a particular act in the manner as provided under the law. Two samples are drawn, one for sending the same to the Chemical Examiner and the other for safe custody to be used in case of any loss, damage or theft or declared unfit/unsafe for examination or for the use of the defence for seeking second opinion (if permissible under the law). The act does not permit the accused to send the second sample for a second opinion. The mere fact that less quantity of sample prejudices the case of the accused is no more argument available to the accused unless he proves that the report of the Chemical Examiner has been defective on account of the quantity of the contraband received by it for examination. If the Chemical Examiner makes any such opinion that the sample is not sufficient or he could not form the opinion on account of less quantity of the contraband or that the other opinion could be formed if sample of more quantity is sent, then certainly, the accused could be said to have been prejudiced. Here even out of 10 grams of samples, the Chemical Examiner used very meager quantity of sample for its examination, therefore, the accused cannot be said to be prejudiced in any manner. It has also been observed in Ajay Malik's case (supra) that mere drawing of less quantity of sample does not effect the conviction recorded against the accused.
As regards the argument that the accused was arrested and the recovery was effected on 13.4.2008, whereas, the case property was sent to the Chemical Examiner on 16.4.2008, therefore, this delay in sending the sample to the Chemical Examiner is fatal to the prosecution case. On Crl. Appeal No. 1136 -DB of 2009 -8- *** examination of the all the circumstances, we are of the opinion that the samples were sent to the Chemical Examiner within two days. Such time is ordinarily consumed in completing the formalities i.e. receipt of sample from the police station, for getting prepared the docket from the office of the Senior Superintendent of Police and to reach to the Chemical Examiner. As such, this minor delay in sending the sample does not cause any prejudice to the accused particularly when the samples when checked by the Forensic Science Laboratory were found to be intact and un-tampered. HC Jaswinder Singh (PW5), who had taken the sample to the Forensic Science Laboratory has stated that the samples when handed over for delivering the same to the Chemical Examiner were intact and tallied with the sample seal impressions separately.
As regards the defence plea that the accused was implicated in this case at the instance of Kundan Singh etc. with whom he had a dispute. We were taken through the copy of the DDR No.8 dated 7.7.2007 Ex.DW2/A. On close examination of the said DDR, it transpires that though a dispute had arisen between Kundan Singh etc. and the accused, but a compromise had taken place between them which indicates that no dispute survived before the case was registered, therefore, there was no occasion for Kundan Singh to get him implicated in such a serious case. Though the accused has examined HC Budh Gir (DW2) to prove that Mehal Singh was cited as a witness in two cases, therefore, he is a stock witness, yet to our opinion, this argument is futile. The citing of a person as a witness in two cases registered against one person in the same transaction does not dub such witness as stock witness. The stock witness is one who is ordinarily cited as a witness in every case and always remains at the back and call of the police. Though he was cited as a witness, but there is no evidence if he was examined or appeared as witness in those two cases. But in the instant case, Mehal Singh though was an independent witness, was given up as won over. The accused has failed to examine him to falsify the prosecution version. As such, Mehal Singh cannot in any manner be termed as a stock witness.
Crl. Appeal No. 1136 -DB of 2009 -9-*** Similarly, the accused has tried to take shelter of Karnail Singh (DW1) who has stated that the accused was taken from his village on 12.4.2008 by the police and nothing was recovered from his possession. He appears to be a made up witness. He never complained against the police at any point of time on the date of occurrence or thereafter. His appearance as a witness for the first time in court after one year and four months of the recovery clearly proves that his testimony is an after thought. Thus, the defence evidence as set up by the accused being an after thought cannot be believed.
Now coming to the quantum of sentence, we, in the facts and circumstances of the present case, deem it appropriate to reduce the sentence by one year.
Resultantly, the appeal is dismissed with the modification in the sentence which is reduced to 10 years without any alteration in the sentence of fine.
(Hemant Gupta) (A.N. Jindal)
Judge Judge
May 07, 2012
deepak