Punjab-Haryana High Court
Hardayal Singh vs State Of Haryana on 19 August, 2009
Criminal Appeal No.2044-SB of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.2044-SB of 2004
Date of Decision:19.08.2009
Hardayal Singh
.....Appellant
Vs.
State of Haryana
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. K.S. Dhaliwal, Advocate for the appellant.
Mr. Amit Kaushik, Assistant Advocate General, Haryana.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment dated 28.7.2004/ order of sentence dated 29.7.2004 passed by the Court of learned Judge, Special Court, Panipat whereby he convicted and sentenced the accused Hardayal Singh to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lac under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, `the Act') and in default of payment of fine, to further undergo rigorous imprisonment for one year.
As set up by the prosecution on 23.4.2003, Inspector Bhullan Singh CIA II, Samalkha amongst other police officials happened to be present at old Bus Stand Samalkha in connection with patrolling and checking of crime. He was chattering with Subhash son of Ram Chand, Jat, resident of Machhrauli, Police Station Samalkha. Meanwhile, the accused Criminal Appeal No.2044-SB of 2004 -2- alighted from the bus carrying a bag in his right hand and came towards Railway Road, Samalkha. On catching sight of the police party, he abruptly made an attempt to beat a retreat by walking briskly. On suspicion, he was intercepted. Suspecting the contents of the bag to be some contraband, the accused was offered to be searched before a Gazetted Officer. He opted to have search before some Gazetted Officer. On receipt of telephonic message, Badan Singh Rana DSP came at the spot. On his direction, the search of the bag was carried out. On search of the same, the opium duly wrapped in a polythene paper was recovered. 100 grams opium was drawn to serve as sample and converted into a parcel. The remainder when weighed came to 2 kg. 900 grams which was also turned into a parcel. These parcels were sealed with seals `CS' and `BS'. The seal after use was handed over to PW Subhash. These parcels were seized vide recovery memo. Ruqa was sent to the Police Station where on its basis, formal FIR was registered. The accused was put under arrest. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused.
The accused was charged under Section 18 of the Act, to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1 Constable Janender Singh, PW2 Subhash, PW3 Constable Ved Parkash, PW4 DSP Badan Singh, PW5 ASI Bhagat Singh, PW6 Sub Inspector Ram Kishan, PW7 HC Rajinder Singh, PW8 Inspector Bhullan Singh and closed its evidence by giving up PW Suresh as having been won over by the accused. When examined under Section 313 of Cr.P.C, the accused denied all the incriminating circumstances appearing in the prosecution evidence and pleaded Criminal Appeal No.2044-SB of 2004 -3- innocence. He put forth that on 23.4.2004, the police officials consisting of Inspector Bhullan Singh CIA Staff Samalkaha, on the instructions of DSP Badan Singh took him from his village in the presence of Baldev Singh Sarpanch as well as Gurmukh Singh Member Panchayat and was falsely implicated in this case due to party faction in the village. In his defence, he examined DW1 Baldev Singh and DW2 Suresh. Besides this, Mark A, report of the Handwriting and Finger Print Expert was also tendered.
After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction and sentence, he has come up in this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
On behalf of the appellant, it has been argued with great vehemence that as alleged two independent witnesses, namely, Subhash Chand and Suresh were joined. The latter was given up by the prosecution, when appeared in defence, he stated in categoric terms that no recovery proceedings etc., were conducted against the appellant in his presence and that Inspector Bhullan Singh had obtained the signatures of the appellant on some blank papers. This evidence strikes a death knell to the prosecution case. As against this, the learned State Counsel maintained that Suresh was given up on a specific pretext of his having been won over by the accused and by appearing in defence, he has affirmed the apprehension of the prosecution. This contention merits acceptance. Under the stress of cross- Criminal Appeal No.2044-SB of 2004 -4- examination, Suresh (sic.) has admitted his signatures on the memos Ex.PC, Ex.PC/1 and Ex.PD and the statement Ex.PX. He has testified that "since Subhash was already known to the Inspector Bhullan Singh, so in haste, we signed the papers without querying to the Inspector. We never enquired subsequently as to in what context, their signatures were taken." This witness has not apportioned the reasons for having blind faith in Bhullan Singh Inspector. He could have pre-conceived that such signed blank papers can be misused at any moment. If the recovery had not been effected within his view in the normal course of events, he would have not signed the blank papers merely at the asking of the aforesaid Inspector. Besides this, he did not take the pains to enquire subsequently from the Sub Inspector as to for what purpose, these signed blank papers were used. Right from the day of his apprehension till the examination of Suresh Kumar as a defence witness, the appellant, his relations and friends had ample opportunities to woo this witness to resile from his statement recorded under Section 161 of Cr.P.C. In re: Roop Singh v. State of Punjab, 1996(1) Recent Criminal Reports 146, a Division Bench of this Court has held as under:-
"A Panch witness may turn hostile and not support the case of the prosecution or may be hesitant in appearing in the Court and depose against an accused for various reasons from fear to bribe. He is an average and ordinary human being and quite exposed and vulnerable to the human feelings of yielding, brow-beating, threats, inducements, etc. To figure as a Panch- witness at the stage of police investigation, is one thing, and Criminal Appeal No.2044-SB of 2004 -5- thereafter to give evidence before the Court is entirely a different thing. In fact, a Panch witness generally think twice before entering into a witness-box and if at all he enters the same, one would not be surprised if he does not support the prosecution because of variety of the reasons mentioned above. Therefore, the fact that the prosecution has given up the independent public person Nirbhai Singh having been won over by the accused persons, is fully justified in the present day situation prevailing in the Society and no adverse inference against the prosecution can be drawn in this case."
In re: Masalti v. State of UP, AIR 1965 SC 202, the Apex Court has held that it is undoubtedly, the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case, but it would be unsound to lay down as general rule that every witness must be examined, even though his evidence may not be very material or even, if it is known that he has been won over or terrorised.
It follows from the above observations rendered in re: Masalti (supra) that if it comes to knowledge of the prosecution that a private witness has been gained over by the accused, the prosecution cannot be expected to produce him/ her as its own witness. By appearing in defence, this witness Suresh Kumar has confirmed the apprehension of the prosecution.
Learned counsel for the appellant further pressed into service that another independent witness Subhash when examined as PW2 did not lend support to the prosecution version and his evidence clearly goes to Criminal Appeal No.2044-SB of 2004 -6- show that indeed the recovery was not effected in the alleged manner. To tide over this submission, the learned State Counsel argued that the appellant had sufficient time to win over this witness too and that being so, the other prosecution evidence should not be discarded merely because of the fact that this witness has been declared hostile. I have well considered the rival contentions. In view of the observations extracted from Roop Singh's case (supra), this contention is overruled.
It is further argued that the recovery in this case was effected on 23.4.2003 whereas the sample parcel was despatched on 29.4.2003 and during this interregnum, the possibility of the contents of the sample parcel being changed or tampered with cannot be ruled out. This contention is unsustainable. The seal after use was entrusted to Subhash Chand PW. In re: State of Orissa v. Kanduri Sahoo, 2004(1) Supreme Court Cases 337, the sample of cannabis (ganja) was sent for chemical examination after four days of recovery. It was observed by the Apex Court that "The evidence of PW-1 was categorical to the effect that the articles were kept in the Excise Malkhana from where they were brought and sent for chemical examination. This relevant aspect appears to have been missed by the High Court. In Valasla's case (supra), it was not laid down that whenever there is delay in sending the samples, the prosecution version would become vulnerable. What was emphasised related to proper and safe custody of the seized articles. In the background to that particular case, when delay of 3 months was there and there was no clear evidence as to with whom the articles were lying, the decision was rendered. No evidence was led to show that the contraband articles were in proper custody and in proper form. Criminal Appeal No.2044-SB of 2004 -7- But the factual situation is different here. That being so, the High Court's judgment does not stand scrutiny and is set aside. The conviction as done by the trial Court was proper." It was also held that merely because the articles were kept in the excise malkhana for four days would not make the prosecution version suspect.
In re: Jaili v. The State of Haryana, 2008(2) Recent Criminal Reports (Criminal) 264, there was a delay of one month in sending sample to the Forensic Science Laboratory. There was no evidence that samples of the case property were tampered with. The seals on the samples, tallied with the specimen seal as per the forwarding authority letter. Under these circumstances, it was held by this Court that mere delay in sending the samples did not, in any way cause prejudice to the accused, nor did it go to prove that the samples were tampered with, until the same were deposited in the Office of Forensic Science Laboratory. Further in re:
Mohan Singh v. State of Punjab, 2007(4) Recent Criminal Reports (Criminal) 705, there was a delay of 10 days in sending the samples to the Forensic Science Laboratory. It was held by the Division Bench of this Court that mere delay in sending the same to the laboratory is not fatal, where there is evidence that the seized articles were kept in proper and safe custody. Further in re: Ganesh son of Kapil Dev, resident of Haraj, Police Station Sheela Ganj, District Moti Hari (Bihar) v. The State of Haryana, 2009(2) Recent Criminal Reports (Criminal) 39, there was a delay of 7 days in sending the sample to the Forensic Science Laboratory. The delay was not explained. It was held that the prosecution has led cogent and convincing evidence that the sample was not tampered with Criminal Appeal No.2044-SB of 2004 -8- during the period and thus, the delay was not fatal to the prosecution. Again in Motia Bai v. State of Haryana, 2005(3) Recent Criminal Reports (Criminal) 56, there was a delay of 20 days in sending the sample to the Forensic Science Laboratory. There was no evidence that the sample was tampered with. The report of the Forensic Science Laboratory indicated that the seals of the sample were intact, when it reached the laboratory. The conviction was upheld. Adverting to the instant case, the affidavit Ex.PA/1 of Ved Parkash Constable PW3, affidavit Ex.PG of HC Rajinder Singh PW7 coupled with FSL's report Ex.PL go a long way in proving that the sample parcel remained in proper and safe custody. Hence, the alleged delay is inconsequential.
The next argument having been raised on behalf of the appellant is that as per the prosecution case, notice under Section 50 of the Act was given to appellant in Hindi language which he does not know and there is no evidence to the effect that the same was read over to him. Moreover, on the notice, one line "above facts read over" was inserted later on as opined by Mr. M.Jain, Examiner of questioned documents & Forensic expert vide his report Mark A. Thus, the mandatory provisions of the said Section have not been complied with. This contention carries no substance. In re: Kalema Tumba v. State of Maharashtra, 1999(4) Recent Criminal Reports (Criminal) 575 (Supreme Court) 2 kgs of heroin was recovered from the baggage of accused and not from his person. It was ruled by the Apex Court that "If a person is carrying a bag or some other article with him and narcotic drug or the psychotropic substance is found from it, it cannot be said that it was found from his `person'. In that case, heroin was found Criminal Appeal No.2044-SB of 2004 -9- from a bag belonging to the appellant and not from his person. Further in re:
Megh Singh v. State of Punjab, 2004(1) Apex Criminal 482, it has been held that "a bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or container or a bag or premises. Reverting back to the present one, the recovery having been effected from a bag, the provisions of Section 50 were not attracted. As such, this contention being bereft of any merit is overruled.
Last of all, learned counsel for the appellant canvassed at the bar that a glance through Ex.PA/1, the affidavit of Constable Ved Parkash No.846 who allegedly carried the sample parcel to the Forensic Science Laboratory would reveal that in paragraph No.2, it is mentioned that on 29.4.2003, MHC handed over sample parcels sealed with seals `CS', `BS' and `RK' to him after taking out the same from the malkhana for being carried to the Forensic Science Laboratory but a meticulous perusal of the words `seals' would reveal that in the initials of the seal `BS', there is material alteration in the letter `s' as the same has been converted from `c' to `s' and this infirmity causes a dent in the prosecution case. He further puts that this contention is also fortified by the opinion of Mr. M. Jain (sic.).
This contention is unsustainable for the reason that the said expert has not been produced as a witness for being cross-examined by the prosecution. Further for a little while, if it is assumed that the said letter `c' has been converted into `s' despite that this fact proprio vigore does not cause dent in the prosecution case for the reason that Rajinder Singh MHC in his affidavit Ex.PG has also mentioned that the sample parcel was duly sealed with seal Criminal Appeal No.2044-SB of 2004 -10- `BS', `CS' and `RK'. It is probable that by way of inadvertence, the word `c' instead of `s' was written. Furthermore, it has all along been the case of the prosecution that the parcels were sealed with the above-mentioned seals. The sample seal was also sent to the Forensic Science Laboratory. In the FSL report Ex.PL, while giving the description of parcels, it has been mentioned that the parcel was duly sealed with two seals of `CS', two seals of `BS' and two seals of `RK'. Thus, there is voluminous evidence on the fact that the sample parcel did bear the impressions of said seals. Hence, this contention is also turned down.
No other material point has been urged or agitated.
As a sequel of the above discussion, this appeal fails and is dismissed being devoid of any merit.
August 19, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No