Punjab-Haryana High Court
Bashir Ahmad vs State Of Punjab on 10 December, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
CRA-S-1814-SB-2002 1
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
CRA-S-1814-SB-2002
Date of decision : 10.12.2014
Bashir Ahmad
... Appellant
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Ms. Puja Chopra, Advocate
for the appellant.
Mr.Ankur Jain, AAG, Punjab.
REKHA MITTAL, J.
The present appeal has been directed against the judgment of conviction and order of sentence dated 18.09.2002 whereby the appellant has been convicted and sentenced for commission of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the Act') pertaining to FIR No.317 dated 28.06.2001 registered in Police Station Dera Bassi, extracted hereinbelow:-
Name of Under Section Sentence Fine(in In
Convict (R.I.) Rs.) Default
(R.I.)
Bashir Ahmad 18 of the Narcotic 10 years 1 lac 6 months
Drugs and
Psychotropic
Substances Act,
1985
The facts, in brief, are that on 28.06.2011, ASI Jaswinder Singh along with ASI Puneet Singh and other police officials was present on Bus DAVINDER KUMAR 2015.01.05 13:46 I attest to the accuracy and integrity of this document CRA-S-1814-SB-2002 2 Stand village Jawaharpur in connection with search of bad elements. PW Mitterpal Singh @ Mitter Singh Sarpanch of village Behra came there and joined in the police party. After sometime, Bashir Ahmad was seen coming from the side of village Lalru carrying bag on his right shoulder. On suspicion, he was apprehended. ASI Jaswinder Singh told the accused that he wanted to take search of his bag and if he wanted to be searched before any Gazetted Officer or Magistrate, he can be called. The accused opted to be searched in presence of a Gazetted Officer and his statement to this effect was recorded. DSP Varinder Singh reached the spot on the basis of wireless message sent to the police station. The DSP asked the accused that if he wanted his search to be conducted before any Gazetted Officer or Magistrate, he can be summoned but the accused reposed confidence in him. Consent memo was prepared which was signed by the accused and attested by the witnesses. On search of bag, opium wrapped in a glazed paper was found. It was found to be 3 kg. on weighment. Two samples of 10 grams each were separated and put in dibba tin and the residue was put in another dibba. Both the sample parcels and the bulk were sealed with seal of ASI Jaswinder Singh bearing impression 'JS' and that of DSP Varinder Singh bearing impression 'VS'. Separate seals impression was prepared. Both seals after use were handed over to PW Mitterpal Singh. The entire case property was taken into possession vide recovery memo Ex.PE. ASI Jaswinder Singh sent ruqa to the Police Station on the basis whereof, formal FIR was registered by ASI Attar Singh. Site plan of the place of occurrence was prepared. Statement of the witnesses were recorded and accused was arrested after supplying him grounds of arrest vide memo attested by the DAVINDER KUMAR 2015.01.05 13:46 I attest to the accuracy and integrity of this document CRA-S-1814-SB-2002 3 witnesses.
On return to the police station, case property along with accused and witnesses were produced before SHO Harbhajan Singh who verified investigation and affixed his seal bearing impression 'HS' on the case property and thereafter case property was deposited with MHC Balwinder Singh. On the next day, ASI Jaswinder Singh took out the case property and the accused and case property were produced before the Illaqa Magistrate and on return, he redeposited the case property with MHC Balwinder Singh with seals intact. On receipt of report of the Chemical Examiner and completion of formal investigation, report under Section 173 of the Code of Criminal Procedure (in short 'Cr.P.C.') was submitted in the Court of Judge, Special Court, Patiala.
The accused was charged for committing offence punishable under Section 18 of the Act to which he pleaded not guilty and claimed trial.
To prove culpability of the accused, the prosecution examined HC Balwinder Singh PW1, Constable Gurdip Singh PW2, ASI Jaswinder Singh (I.O.) PW3, ASI Punit Singh PW4, Inspector Harbhajan Singh PW5, DSP Varinder Singh PW6 and ASI Attar Singh PW7.
Statement of the accused under Section 313 Cr.P.C. was recorded and he denied all the incriminating circumstances appearing in evidence against him and pleaded his innocence and false implication. However, he raised the plea that no recovery was effected from his possession nor he deals in such activity. He is rickshaw puller and has shifted from Rajasthan to Punjab.
The learned trial Court after bestowing its thoughtful DAVINDER KUMAR 2015.01.05 13:46 I attest to the accuracy and integrity of this document CRA-S-1814-SB-2002 4 consideration to the rival submissions made by counsel for the parties and evidence adduced by the prosecution came to conclude that the prosecution has successfully proved guilt of the accused for the offence charged against him and accordingly he was convicted and sentenced, noticed hereinbefore.
Feeling dissatisfied with the judgment of the learned trial Court, the present appeal has been preferred by Bashir Ahmad (Convict).
Counsel for the appellant has assailed verdict of the trial Court with the submissions that the prosecution case is not free from lacunae, embellishments, discrepancies and benefit thereof is liable to be extended to the accused particularly in the circumstances that Mitterpal Singh, the only witness from the public has not been examined during trial on a false plea that he has been won over by the accused.
Counsel for the appellant would submit that in absence of examination of Mitterpal Singh, the case of prosecution hinges upon testimony of official witnesses and therefore, any discrepancy in the case of the prosecution is to be taken seriously with a pinch of salt. Further dilating, it is submitted that in regard to alleged recovery effected on 28.06.2001, the sample was sent for analysis on 19.07.2001 which was actually deposited in the laboratory on 20.07.2001.ASI Jaswinder Singh has admitted during his cross-examination that he came in possession of his seal, next day of the occurrence, therefore, possibility of case property being tempered with cannot be ruled out.
As per allegations of the prosecution, the alleged recovery was effected on 4.20 PM but the FIR was registered at 8.20 PM and the special report was received by the Magistrate at 11.47 PM and delay in registration DAVINDER KUMAR 2015.01.05 13:46 I attest to the accuracy and integrity of this document CRA-S-1814-SB-2002 5 of FIR and thereafter sending special report is not explained satisfactorily in the circumstances that the alleged place of recovery is stated to be 6 km. away from the police station.
Counsel would argue that the prosecution has neither produced on record log book of Police zipsy nor relevant entries in the DDR register with regard to departure of the police party from the police station and its arrival after completion of proceedings.
The last submission made by counsel is that entire police proceedings were prepared in Punjabi but the same are purportedly signed by the accused in Hindi but there is no evidence that contents of the documents were read over to the accused before his signatures were obtained.
Counsel for the State has supported the judgment passed by the trial Court with the submissions that testimony of official witnesses is not to be entertained with doubt merely because they are members of the police force particularly in the circumstances that accused has not alleged any animosity against him by members of the police party. It is argued that any minor discrepancies in the case of the prosecution cannot be taken seriously as some natural discrepancies are bound to occur with passage of time and in the circumstances that police have to perform multifarious duties.
I have heard counsel for the parties and perused the records. The prosecution case, no doubt, hinges upon testimony of police officials as Mitterpal Singh, a public man and Sarpanch of village Behra was given up having been won over by the accused. It is unfortunate that people from the public do not agree for associating during DAVINDER KUMAR 2015.01.05 13:46 I attest to the accuracy and integrity of this document CRA-S-1814-SB-2002 6 investigation, may be due to harassment during trial or fear of animosity against the accused. Equally true is that if a public witness offers to join investigation proceedings due to fear of action by the police, he invariably does not turn up to depose or is won over by the accused. In the light of this practical difficulty and ground reality, the appellant cannot gain any advantage to his contention from failure of the prosecution to examine PW Mitterpal Singh.
The testimony of police officials cannot be thrown overboard merely on the ground that they belong to the police force. There is no rule of law or evidence that conviction cannot be recorded on the evidence of police officials, if found reliable, unless corroborated by some independent witness. Rule of prudence only requires a careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. I am further of the opinion that where evidence of a police official, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can be relied upon by the Court without seeking corroboration thereto by an independent witness. This apart, as the accused has not alleged any animosity against him by officials of the police party, non-examination of Mitterpal Singh loses its significance and relevance.
Counsel for the appellant has raised one argument worth consideration i.e. that the investigating officer came in possession of his seal on the next day of recovery when the samples were still in custody of the police station, therefore, possibility of tempering with the sample is not ruled out. Another submission in this regard has been made that there is a delay of 21 days in sending the sample for analysis.
DAVINDER KUMAR2015.01.05 13:46 I attest to the accuracy and integrity of this document CRA-S-1814-SB-2002 7
The case property was sealed by the investigating officer with his seal bearing impression 'JS' and that of the DSP bearing impression 'VS'. On return to the police station, the case property was produced before the Station House Officer (SHO) and he affixed his seal on the samples and bulk. It has been proved on record that on the next date, the entire case property along with the accused was produced before the Judicial Magistrate and the case property was verified by the Magistrate and seals were found intact. There is nothing on record to suggest that the investigating officer ever had an opportunity to get hold of seal of the DSP and the SHO in order to give him an opportunity to temper with the case property merely because he received back his seal from Mitterpal Singh on the next day of recovery. The sample seal was prepared at the spot and was sent to the Forensic Science Laboratory along with the sample. The seals were found intact and tallied with the sample seal. In this view of the matter, there is no merit in the contention of the appellant that possibility of tempering with the sample is not ruled out.
The delay in sending the sample cannot enure to benefit of the accused in the circumstances that the seals on the case property were found intact in view of the report of analyst. Moreover, Hon'ble the Supreme Court of India in Hardeep Singh Vs. State of Punjab(8) SCC 557 held that delay of 40 days cannot be said to be fatal to the prosecution case when there was sufficient link evidence led by the prosecution to prove that seal on the sample parcel remained intact and contents thereof were not tempered with. In view of authoritative pronouncement of Hon'ble the Supreme Court of India, there is no gainsaying that mere delay in sending the sample to DAVINDER KUMAR 2015.01.05 13:46 I attest to the accuracy and integrity of this document CRA-S-1814-SB-2002 8 Chemical Examiner would not be fatal to the prosecution and the accused cannot be acquitted on this ground provided that there is sufficient link evidence to demonstrate that contents of the sample parcel were not tempered with. In the case at hand, the investigating officer had no occasion to be in possession of the seal of DSP nor there is any material on record to prove that seals on sample were tempered with or the sample seal was prepared later. The accused, in these circumstances, cannot claim any benefit of delay of 21 days in sending the sample to the laboratory.
To be fair to the accused, counsel has made a vain attempt to assail the judgment of the trial Court on certain insignificant issues. No doubt, the prosecution has an obligation to establish culpability of the accused beyond shadow of reasonable doubt but it does not imply that any minor contradiction or inconsistency can give benefit to the accused to secure acquittal. If the Courts adopt such a hard approach, it may not be possible to convict any person despite sincere efforts by the prosecution to bring home guilt to the accused. I have appreciated the submissions made by counsel in the light of testimony of the witnesses and documents exhibited on record and find no merit in those submissions to find fault in the well reasoned judgment recorded by the trial Court. As a matter of fact, there is no serious discrepancy in the prosecution case which requires attention of this Court except few submissions which have already been adverted to in the earlier part of the judgment.
In view of what has been discussed hereinabove, the appeal is dismissed. The judgment of conviction and order of sentence are affirmed. The appellant, if on bail, be taken into custody to suffer the remaining DAVINDER KUMAR 2015.01.05 13:46 I attest to the accuracy and integrity of this document CRA-S-1814-SB-2002 9 sentence. Records of the trial Court be sent back forthwith.
(REKHA MITTAL) JUDGE December 10, 2014.
Davinder Kumar DAVINDER KUMAR 2015.01.05 13:46 I attest to the accuracy and integrity of this document