Punjab-Haryana High Court
Avtar Singh And Anr vs State Of Punjab on 16 September, 2014
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: September 29, 2014
CRA-S No.509-SB of 2008
Avtar Singh & another ...Appellants
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Ms. G.K.Mann, Advocate, for appellant No.1.
Mr. P.S.Poonia, Advocate, as Amicus Curaie for appellant No.2.
Mr. P.S.Bajwa, Addl. AG, Punjab, for the respondent-State.
HEMANT GUPTA, J.
The present appeal is preferred by Avtar Singh son of Dalip Singh and Nirbhai Singh son of Surjit Singh, against the judgment of conviction dated 10.01.2008 and order of sentence dated 11.01.2008 passed by the Special Court, Ferozepur, whereby both the appellants were convicted for the offences punishable under Sections 15(c) and 18(b) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'the Act'). The appellants were sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lac each on both counts. In the event of default of payment of fine, the defaulter shall further undergo rigorous imprisonment for a period of one year.
VIMAL KUMAR 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh 2 CRA-S No.509-SB of 2008 The prosecution case is that on 09.11.1998, Inspector Nagaur Singh, P.S. Sadar Abohar, alongwith SI Balwant Singh, ASI Ajab Singh and other police officials was present in Kular Chowk on Defence Road-Sito Guno in the area of village Kulwar in connection with routine checking. A truck bearing registration No.DL-1GB-0335, coming from the side of petrol pump of Dodewala, was stopped by ASI Ajab Singh by giving a signal. In the cabin of the said truck, driver and one more person were sitting. On inquiry by Inspector Nagaur Singh, the driver of the truck disclosed his name as Avtar Singh son of Dalip Singh, resident of Jaito, whereas the other person disclosed his name as Nirbhai Singh son of Surjit Singh, resident of Maur Nau Abad, P.S. Bhagapurana. As Inspector Nagaur Singh suspected some intoxicant material in the truck, he gave option to both Avtar Singh and Nirbhai Singh that whether they wanted the search of the truck by him or in the presence of a Gazetted Officer or a Magistrate. Upon which, both the appellants opted the search of the truck in the presence of some Gazetted Officer vide consent memo Exs.P2 & P3. On message, DSP Gurmit Singh Randhawa reached at the spot and after introducing himself to both the appellants, he also gave option to both the appellants that whether they wanted to opt for search in his presence or in the presence of a Magistrate. The appellants consented for search in his presence vide consent memo Exs.P4 & P5. Thereafter, in the presence of DSP Gurmit Singh Randhawa, Inspector Nagaur Singh conducted the search of the truck, which led to the recovery of 52 bags of poppy husk from underneath of 30 bags of cattle feed. Two samples of 250 grams each were taken out from all the bags and the remaining poppy-husk was kept in the same bags. The samples and the bags containing the remaining poppy-husk were converted into parcels and sealed VIMAL KUMAR with the seal 'NS' and 'GS' belonging to Inspector Nagaur Singh and DSP 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh 3 CRA-S No.509-SB of 2008 Gurmit Singh Randhawa respectively. On further search of the truck, opium wrapped in the glazed paper was recovered from a bag, which was lying on the back seat of the driver seat. Two samples of 10 grams each were separated from the recovered opium. On weighment, the remaining opium came out to 3 kgs. & 980 grams. Similarly, both the samples as well as the remaining opium were converted into separate sealed parcels. The entire case property alongwith the cattle feed bags and the truck was take into possession vide recovery memo Ex.P6. Ruqa Ex.P7 was sent to the Police Station on the basis of which formal FIR Ex.P8 was registered by SI Veer Chand. Nothing incriminating was recovered from the personal search of both the appellants except currency notes of Rs.500/- from Avtar Singh. After disclosing the grounds of arrest, both the appellants were arrested. On the same day, Suba Singh and Tarsem Singh were also arrested. After the completion of investigation, all the four were made to stand trial.
To prove its case, the prosecution examined PW-1 Bhola Singh, who deposed with regard to the depositing of 52 sample parcels of poppy husk and one sample of opium duly sealed with seals 'NS' and 'GS' with Chemical Examineer, Jalandhar on 17.11.1998; PW-2 HC Nishan Singh, who deposed with regard to the deposit of case property by Inspector Nagaur Singh in malkana on 10.11.1998 as well as handing over of 52 sample parcels of poppy husk and one sample of opium to Bhola Singh for depositing the same with Chemical Examiner, Jalandhar on 16.11.1998; PW-3 DSP Nagaur Singh (Retd.), the Investigating Officer; PW-4 Ajab Singh, one of the witnesses of recovery and PW-5 DSP Gurmit Singh Randhawa.
The incriminating circumstances appearing against all the accused were put to them while recording their statements under Sections 313 VIMAL KUMAR 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh 4 CRA-S No.509-SB of 2008 of the Code of Criminal Procedure, 1973 (for short 'the Code'). However, they pleaded false implication. In their defence, they examined DW-1 Constable Jagdish Lal.
After considering the entire oral and documentary evidence, the learned Special Judge found that the accused Suba Singh and Tarsem Singh are not connected with the truck or the documents recovered from the truck in any manner, as they came at the spot in a Tata Mobile later on, when the recovery proceeding was complete. The Special Judge found that the prosecution has failed to prove the charge against Suba Singh and Tarsem Singh that they were in control of the truck in question having purchased the same in the name of Gurkanwal Singh, as registration certificate has not been produced on record to prove that Gurkanwal Singh is the owner of the truck nor said Gurkanwal Singh has been examined by the prosecution. It was found that Suba Singh and Tarsem Singh are not the owners of the truck in question. Consequently, they were acquitted of the charges framed against them.
However, in respect of the present appellants, it was found that since the search was not of the person of the accused, therefore, the provisions of Section 50 of the Act would not apply and that the appellants were in conscious possession of the recovered contraband. The argument that no independent witness was joined though the recovery was from thorough public place was negated for the reason that the statements of the prosecution witnesses cannot be discarded only for the reason that the same were of Police Officials. The Special Judge also did not find any merit in the arguments that CFSL form was not filled at the spot and that samples were sent to the Chemical Examiner, Jalandhar on 16.11.1998 after unexplained delay, VIMAL KUMAR 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh 5 CRA-S No.509-SB of 2008 therefore, the prosecution has failed to prove the charges against the appellants. It was found that the samples were handed over to the Chemical Examiner, Jalandhar in sealed intact condition, so is the evidence of PW-1 Bhola Singh and PW-2 HC Nishan Singh, therefore, the samples have not been tinkered with. In respect of non-filling of CFSL form at the spot, it was held that it does not create any dent on the prosecution case, as in the present case though specimen of seals is not affixed on the CFSL form, but the specimen of seals was prepared on a separate chits as deposed by PW-3 Inspector Nagaur Singh, the Investigating Officer, and such sample of seals chits are pasted on CFSL form. Therefore, there was no likelihood of tampering with the sample of seal, as the same remained intact till it was pasted on CFSL form. Consequently, the learned Special Judge held both the appellants guilty for having found in conscious possession of 52 bags each containing 35 kgs. and 500 grams of poppy husk and four kilograms of opium and, therefore, convicted and sentenced them, in the manner mentioned above.
Before this Court, apart from raising the similar arguments as has been raised before the learned trial Court, learned counsel for the appellants has vehemently argued that CFSL report was not put to the accused- appellants, when their statements under Section 313 of the code was being recorded. Since the CFSL report was not put to the accused, the prosecution has failed to prove that the recovery was of a prohibited substance and consequently, the appellants would be entitled to be acquitted of the charges leveled against them.
Learned counsel for the appellants have rightly not disputed that the provisions of Section 50 of the Act are not attracted in the present case, as VIMAL KUMAR 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh 6 CRA-S No.509-SB of 2008 the recovery was not from the person of the accused. However, it was argued that non-joining of independent witness is a factor, which has not been taken into consideration in proper perspective by the learned trial Court. I do not find any merit in the argument raised. The process of recovery was completed by the police officials, when they were on routine checking duty. The fact that the police officials were on routine checking duty have not been disputed nor the presence of the police officials at the place of occurrence. It was a chance recovery, as no secret information had been received against the accused that they were coming in a truck loaded with the poppy-husk and opium. The police officials were on routine checking duty and all of sudden a truck came, which was stopped on suspicion and on search the huge quantity of contraband was recovered. The mere fact that the witnesses are police officials is not sufficient to discard their testimonies. Being police officials, the Court may scrutinize their statements with little more care and caution. After careful and cautious scrutiny, if the Court comes to the conclusion that the same does not suffer from any serious infirmity, then the same cannot be disbelieved. There is nothing on record that the official witnesses were inimical towards the accused. They had no ill-will or enmity against the accused to falsely implicate them in the present case.
The main stress of the learned counsel for the appellants is on the argument that CFSL report was not put to the accused while recording their statements under Section 313 of the Code. In support of such argument, Ms. Mann, learned counsel for appellant No.1, has referred to Damodar Vs. State of Rajasthan (2004) 12 SCC 336; State of Punjab Vs. Hari Singh & others 2009 (4) SCC 200; Ranvir Yadav Vs. State of Bihar 2009 (6) SCC 595; Ajay Singh Vs. State of Maharashtra 2007 (12) SCC 341; Lattu Mahto & another VIMAL KUMAR 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh 7 CRA-S No.509-SB of 2008 Vs. The State of Bihar (now Jharkhand) 2008 (8) SCC 395 and some other judgments taking the same view, to contend that if the material questions are not put to the accused at the time of recording of the statement under Section 313 of the Code, the trial was vitiated. On the other hand, Mr. Poonia representing appellant No.2, has referred to Sharad Biridhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116 and also a Single Bench judgment of this Court in Mahan Singh Vs. The State of Punjab 1973 PLR 242.
A perusal of the statements recorded under Section 313 of the Code shows that process of recovery and sending of samples for chemical examination was put to the accused. They have denied the process of recovery as well as the sending of samples. The CFSL report is per se admissible in evidence in terms of Section 293 of the Code. Once the report is per se admissible, the fact that the same was not put to the accused is wholly inconsequential, when the appellants have denied even the factum of taking of the samples and sending the same for chemical examination.
I find that the judgments relied upon by the counsel for the appellants are to the effect that the examination of the accused under Section 313 of the Code is not an empty formality. The purpose is to bring to the notice of the accused the materials brought on record by the prosecution to substantiate its accusations. An opportunity is granted to the accused to explain incrimination circumstances against him and have his say in the background of the evidence brought on record by the prosecution.
However, I do not find that the said judgments are of any help to the argument raised. A three Judges' Bench in a judgment reported as Jai Dev Vs. State of Punjab AIR 1963 SC 612 has held that though it is VIMAL KUMAR 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh 8 CRA-S No.509-SB of 2008 important to put to the accused each material fact which is intended to be used against him and to afford him a chance of explaining it if he can. But it would be incorrect to suggest that such observations are intended to lay down a general and inexorable rule that wherever it is found that one of the points used against the accused person has not been put to him, either the trial is vitiated or his conviction is rendered bad. The Bench held to the following effect:
"21. ....The examination of the accused person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the court should put to the accused person detailed questions which may amount to his cross-examination. The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which the accused person should be examined under Section 342. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross-examination of the accused person. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material."
In another three Judges' Bench judgment reported as Shivaji Sahabrao Bobade & another Vs. State of Maharashtra (1973) 2 SCC 793, VIMAL KUMAR it has been held that where such an omission has occurred to put every 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh 9 CRA-S No.509-SB of 2008 inculpatory materials so as to enable the accused to explain it, it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him. The Bench observed as under:
"16. ....It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, CrPC, the omission has not been shown to have caused prejudice to the accused....."
In Ramnaresh & others Vs. State of Chhattisgarh (2012) 4 SCC 257, the Supreme Court held as under:
"52. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must VIMAL KUMAR follow. Where the accused takes benefit of this opportunity, then his 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh 10 CRA-S No.509-SB of 2008 statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.
53. In the present case, the accused have denied their presence on the spot, at the time of occurrence. Thus, it was for them to prove that they were not present at the place of occurrence and were entitled to the plea of alibi. In our considered opinion, they have miserably failed to establish this fact. On the contrary, the behaviour explained by the defence witnesses appears to be somewhat unnatural in the social set up in which the accused, the deceased and even some of the prosecution witnesses were living. They knew each other very well and the normal course of life in a village is that they are quite concerned with and actively participate in each other's affairs, particularly sad occasions."
More recently, in a judgment reported as Sushil Ansal Vs. State through Central Bureau of Investigation (2014) 6 SCC 173, it has been held that any error, omission or irregularity in the charge including any misjoinder of charges does not vitiate trial. the reference was made to Section 164 of the Code of Criminal Procedure in respect of defects in framing the charges. The court also considered the argument that if all incriminating circumstances used against the accused were not put to the accused, it was found that so long as there is no prejudice demonstrated by the appellants on account of any deficiency in the statements, there is no question of this Court interfering with the concurrent judgments and orders of the courts below relying upon Jai Dev's case (supra) and Shivaji Sahabrao Bobade's case (supra), referred to above. The Supreme Court concluded as under:
"163. It was also contended by Mr. Jethmalani that all such incriminating circumstances as have been used against the appellants were not put to the accused. The High Court has while dealing with a similar contention urged before it carefully examined the case of each appellant and found no merit in them. That apart we have been taken through the statements made by the accused under Section 313 CrPC and find that the same have comprehensively put the circumstances appearing against the appellants to VIMAL KUMAR them and thereby given them an opportunity to explain the same. Besides, 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh 11 CRA-S No.509-SB of 2008 so long as there is no prejudice demonstrated by the appellants on account of any deficiency in the statements, there is no question of this Court interfering with the concurrent judgments and orders of the courts below.
xx xx xx
166. Suffice it to say that the circumstances appearing against the accused persons have been elaborately put to them under Section 313 CrPC. The contention that the appellants suffered any prejudice on account of a given circumstance not having put to them has, in our opinion, no merit and is accordingly rejected."
Still further, in terms of Section 464 of the Code of Criminal Procedure, any error, omission or irregularity in the proceedings cannot vitiate the trial. Since the appellants have denied even taking up of the sample and sending the same to the CFSL, the omission to put the report of the CFSL to them, while recording their statements under Section 313 of the Code is nothing, but an irregularity not affecting the merits of the case. Still further, the counsel for the appellants was asked to offer an explanation in respect of the report of the CFSL, but the counsel submitted no explanation whatsoever. In fact, one of the appellants i.e. appellant No.2 having admitted to bail is absconding.
In view of the principle of law laid down in the above judgments, I find that failure to put the report of CFSL to the accused while recording their statements under Section 313 of the Code has not prejudiced the trial in any manner. Therefore, such fact cannot be taken into consideration for granting any benefit of the appellants.
Consequently, I find that the judgment of conviction and order of sentence rendered by the trial Court is based on the correct appreciation of evidence, as the prosecution has completed the chain of events, which point VIMAL KUMAR 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh 12 CRA-S No.509-SB of 2008 out to the guilt of the accused. Therefore, the appellants have been rightly convicted and sentenced by the learned trial Court.
Dismissed.
(HEMANT GUPTA) JUDGE 29.09.2014 Vimal VIMAL KUMAR 2014.09.29 16:31 I attest to the accuracy and integrity of this document Chandigarh