Punjab-Haryana High Court
Virsa Singh vs State Of Punjab on 29 November, 2011
Author: L. N. Mittal
Bench: L. N. Mittal
Criminal Appeal No.45-SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.45-SB of 2003
Date of Decision : 29th November, 2011
Virsa Singh
.... Appellant
Versus
State of Punjab
.... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL.
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Present: Mr. S. S. Rana, Advocate for the appellant.
Mr. Amit Chaudhary, Deputy Advocate General, Punjab.
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L. N. MITTAL, J. (Oral)
Accused Virsa Singh is the appellant, who has challenged his conviction and sentence recorded by learned Special Judge, Jalandhar vide judgment and order dated 17.10.2002 thereby convicting the appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and sentencing him to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- and in default thereof, to undergo further rigorous imprisonment for six months.
Prosecution case in brief may be stated as under:
On 15.02.2000, police party comprising of SI/SHO Wazir Singh, SI Inderjit Singh and other police officials received secret information that accused Virsa Singh was selling poppy husk near Jhandi Peer in Mand River Sutlej and was having large number of bags of poppy Criminal Appeal No.45-SB of 2003 -2- husk. Accordingly ruqa was sent to Police Station and thereupon FIR was registered. Swarna Ram, Ex-Sarpanch was joined as witness. On information, DSP Sajjan Singh also reached the spot. The accused was apprehended from the stated place. He made disclosure statement that he had concealed six bags of poppy husk in sarkandas (elephant grass) at Mand river Sutlej, which is in his exclusive knowledge and he could get it recovered. DSP Sajjan Singh enquired if the accused desired the aforesaid place to be searched in the presence of gazetted officer or Magistrate. The accused reposed faith in the DSP-a gazetted officer. The accused then led the police party to the stated place and got recovered six bags containing 35 kilograms poppy husk each. Out of each bag, two samples of poppy husk weighing 250 grams each were separated. The samples and the gunny bags of remaining poppy husk were separately sealed with seals of SI Wazir Singh and DSP Sajjan Singh Cheema. Specimen seal impressions were taken. After use, SI Wazir Singh gave his seal to Swarna Ram whereas DSP Sajjan Singh retained his seal with himself. The case property was seized by the police. Rough site plan of the place of occurrence was prepared. Statements of witnessed were recorded. Accused was arrested in the case. According to report of Chemical Examiner, the samples were found to be of poppy head. Accordingly on completion of investigation, police presented report under Section 173 of the Code of Criminal Procedure (in short, 'Cr. P. C.') for prosecution of the accused under Section 15 of the Act.
Charge under Section 15 of the Act was framed against the Criminal Appeal No.45-SB of 2003 -3- accused. He pleaded not guilty and claimed trial.
To prove its case, prosecution examined five witnesses. SI Wazir Singh PW-1, DSP Sajjan Singh Cheema PW-4 and SI Inderjit Singh, PW-5 broadly stated according to prosecution version that the accused after making disclosure statement got recovered six bags containing 35 kilograms poppy husk each i.e. 210 kilograms poppy husk in all. SI Wazir Singh also stated about investigation of the case conducted by him.
Constable Prithi PW-2 and Head Constable Kailash Chander PW-3 tendered their affidavits in evidence being formal witnesses.
PW Swarna Ram was given up as having been won over by the accused.
The accused in his examination under Section 313 Cr. P. C. denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that his son Balwinder Singh had filed complaint before Punjab Human Rights Commission, Chandigarh (in short, the Commission). It was fixed for 15.02.2000. The accused had appeared (had to appear?) before the Commission, but he was taken away by the police from his house and was falsely implicated in this case. The accused also stated that on 08.05.2002, after conclusion of statement of DSP Sajjan Singh in the court, the accused offered in open Court that he could be convicted and sentenced if DSP Sajjan Singh Cheema took oath in the name of Almighty that poppy husk had in fact been recovered from the accused. But the DSP remained silent. Criminal Appeal No.45-SB of 2003 -4- It was alleged that if recovery of poppy husk was really effected from him (the accused), then there would have been no objection by the DSP to take oath as requested by the accused.
In defence, the accused examined two witnesses.
Devinder Singh, Senior Assistant, DW-1 brought record of complaint No.302 of 1999 Exhibit D-3 made by appellant's wife Gurmeet Kaur to the Commission on 30.03.1999 against SI Jasbir Singh of Police Station City Moga and others. After enquiry, the complainant was given date of appearance as 15.02.2000 before the Commission, but none from the complainant's side appeared before the Commission on that date. The witness produced copies of orders dated 15.02.2000 and 22.03.2000 passed by the Commission.
Swarna Ram DW-2 stated that he had not joined the police party on 15.02.200 and no recovery was witnessed by him. He admitted his signatures on disclosure statement Exhibit PB, Statement Exhibit PC of accused consenting to search by DSP and recovery memo Exhibit PD, but stated that his signatures were obtained by police on blank papers in Police Station. He deposed that he remained Sarpanch of his village for last 35 years and also remained member of Zila Parishad.
Learned Special Judge, Jalandhar vide impugned judgment and order dated 17.10.2002 convicted and sentenced the accused as already mentioned hereinbefore. Feeling dissatisfied, the convict has preferred the instant criminal appeal.
I have heard learned counsel for the parties and perused the Criminal Appeal No.45-SB of 2003 -5- case file with their assistance.
Learned counsel for the appellant vehemently contended that independent witness Swarna Ram was given up by the prosecution and has been examined in defence and he has denied the prosecution version and therefore, prosecution case is doubtful. Reliance in support of this contention has been placed on two judgments of this Court i.e. in the cases of Mangal Singh versus Punjab State, 1999(3) RCR (Criminal) 373 and Kaka Singh versus State of Punjab,2009(5) RCR (Criminal) 741. It was also contended that appellant's wife had made complaint to the Commission against SI Jasbir Singh and others and for this reason, the accused has been falsely implicated in this case. It was also submitted that it has not come in evidence as to when the seal was returned by Swarna Ram to SI Wazir Singh. It was also contended that other persons from the village were not joined. It was also argued that there is no evidence led by the prosecution as to who identified the accused. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Ritesh Chakarvarti Versus State of Madhya Pradesh, 2006(4) RCR (Criminal
480. Learned counsel for the appellant also argued that link evidence is not complete. It was pointed out that according to Wazir Singh PW-1, form M-29 i.e. docket sent to Chemical Examiner was prepared by MHC. It was thus argued that said form was not prepared at the spot. Head Constable Kailash Chander could not tell as to through whom he got typed the aforesaid docket. It was argued that sample seal impressions were also not sent to CFSL. It was also pointed out that in recovery memo Exhibit PD, Criminal Appeal No.45-SB of 2003 -6- there is no reference of retaining specimen seal impressions. Wazir Singh admitted that paper containing specimen seal impressions was not on judicial file. It was thus argued that link evidence is not complete rendering the prosecution case doubtful. In support of this contention, learned counsel for the appellant cited judgment of Hon'ble Supreme Court in the case of State of Rajasthan versus Gurmail Singh, 2005 Criminal Law Journal 1746. It was also canvassed that no weight or scale was recovered from the possession of the accused and therefore, it cannot be said that he was present at the spot for sale of poppy husk. It was also pointed out that beside the thumb impression of the accused on disclosure Statement Exhibit PB, it has not been mentioned as to whether it is left thumb impression or right thumb impression of the accused. Contradictions in the statements of SI Wazir Singh PW-1 and SI Inderjit Singh PW-5 were also pointed out. It was submitted that according to Wazir Singh, secret information was received at 8.45am whereas according to Inderjit Singh, secret information received at 8.05am. Wazir Singh stated that the DSP remained at the spot up to 2 pm whereas according to Inderjit Singh, the DSP remained at the spot till 11.30am. Wazir Singh stated that FIR number was received by them at the spot at 2pm whereas Inderjit Singh stated that FIR number was received at 10.30am. Wazir Singh deposed that the police party remained at the spot till 2.50pm whereas Inderjit Singh stated that they remained at the spot up to 2.00pm. It was also contended that alleged place of recovery is not owned by the appellant nor Section 57 of the Act was complied with and therefore, the accused deserves acquittal. Reliance in support of this Criminal Appeal No.45-SB of 2003 -7- contention has been placed on judgment of this Court in the case of Bachittar Singh versus State of Punjab, 2006(4) RCR (Criminal) 213. It was lastly contended that the prosecution has not led any evidence to depict as to from where the accused had brought the poppy husk in question and to whom it was to be sold. Accordingly acquittal of the appellant was prayed for.
On the contrary, learned State counsel contended that report of Chemical Examiner reveals that the samples were of poppy head. It was submitted that there is complete link evidence produced by the prosecution to prove that there was no tampering with the sample parcels. It was argued that Wazir Singh PW-1, DSP Sajjan Singh PW-4 and Inderjit Singh PW-5 have stated about recovery of poppy husk in question at the instance of the accused-appellant. It was contended that huge quantity of poppy husk was recovered from the accused. It was canvassed that alleged contradictions pointed out by learned counsel for the appellant in statements of prosecution witnesses are minor ones.
I have carefully considered the rival contentions. All three material witnesses of the prosecution i.e. SI Wazir Singh PW-1, DSP Sajjan Singh Cheema PW-4 and SI Inderjit Singh PW-5 have stated according to the prosecution version about recovery of 210 kilograms poppy husk from the accused pursuant to his disclosure statement. They stood the test of cross-examination. They had no enmity whatsoever with the accused. They had no motive to implicate the accused in a false case. Wife of the accused had made complaint to the Commission against SI Criminal Appeal No.45-SB of 2003 -8- Jasbir Singh and others but not against any of the aforesaid material witnesses of the prosecution. SI Jasbir was stated to be SHO of police station Moga City in the said complaint Exhibit D-3. However, the instant case is of Police Station Phillaur and all these three witnesses were posted at Phillaur at the relevant time. Consequently, it cannot be said that they have implicated the accused in this false case at the instance of Jasbir Singh SI, merely because appellant's wife had made complaint against him. DSP Sajjan Singh Cheema is a gazetted officer and it cannot be said that he acted at the instance of SI Jasbir Singh who was posted at Moga City whereas DSP Sajjan Singh Cheema was posted at Phillaur at the relevant time. It may be added that complaint Exhibit D-3 was made on 30.03.1999 whereas the instant case is dated 15.02.2000 i.e. lodged after more than ten months. The accused has stated that he had to appear before the Commission on 15.02.2000 but he was taken away by the police from his house. However, the accused was apprehended some time after 9 am after sending the ruqa at 9 am and if the accused had to appear at Chandigarh before the Commission at 10 am, the accused would have left his village much before 9 am. It may also be added that the accused belongs to Police Station Rahon whereas the instant case is of Police Station Phillaur. There is no reason why police officials of Phillaur would implicate the accused in false case. Statements of prosecution witnesses thus inspire confidence and are sufficient to prove the guilt of the accused beyond reasonable doubt.
Prosecution case cannot be thrown away merely because independent witness Swarna Ram had to be given up as won over by the Criminal Appeal No.45-SB of 2003 -9- accused. Assertion of the prosecution that Swarna Ram had been won over by the accused came true when Swarna Ram appeared in defence. However, statement of Swarna Ram that police had obtained his signatures on blank papers, cannot be accepted at face value. Swarna Ram has stated that he had been Sarpanch for 35 years and had also been member of Zila Parishad. In view thereof, Swarna Ram would or should not have affixed signatures on blank papers merely at the asking of the police. He did not even state that he had been pressurized by the police to affix his signatures on blank papers. On the other hand, he admitted his signatures on relevant documents including disclosure statement of the accused and recovery memo of the contraband substance. Statements of police officials are as much reliable as those of independent witnesses and cannot be discarded merely because of their official status because they were not hostile to the accused in any manner and had no malice, motive or ill will against him so as to implicate him in a false case. Judgments in the cases of Mangal Singh (supra) and Kaka Singh (supra) are distinguishable on facts. In both those cases, independent witness was village Chowkidar, who was vulnerable to the influence of the police. In the case of Kaka Singh (supra), the independent witness was given up without any rhyme or reason whereas in the instant case, the independent witness was given up as won over by the accused. There were also other reasons in the cases of Mangal Singh (supra) and Kaka Singh (supra) for acquitting the accused. Said judgments are not applicable to the facts of the case in hand.
As regards return of seal by independent witness to SI Wazir Criminal Appeal No.45-SB of 2003 -10- Singh, the accused was at liberty to put this question to SI Wazir Singh in cross-examination. It was not necessary for Wazir Singh to state in examination-in-chief as to when the seal was returned to him. Omission of Wazir Singh to state so would not give rise to any adverse impact on the prosecution case. Non-joining of other persons from the village would also not effect the prosecution case because one independent witness was already with the police party. Moreover, recovery was effected from a place away from village abadi.
As regards identification of the accused, the police party went to the place stated by the informer and found the accused there. When nobody else was there and the accused disclosed his name etc., no other evidence of his identity was required. Judgment in the case of Ritesh Chakarvarti (supra) is completely distinguishable because in that case, the information was that a person with bag containing opium would come to bus stand and full description of the accused was not given in the secret information. There were many persons at the bus stand. In these circumstances, it was observed that the prosecution had not explained as to how the accused was identified and singled out. In the instant case, however, there was no such situation. On the contrary, complete name and address of the accused have been stated in the ruqa as told by the informer. So judgment in the case of Ritesh Chakarvarti (supra) also has no applicability to the facts of the instant case.
Prosecution has led complete chain of link evidence to prove beyond doubt that case property including sample parcels was not tampered Criminal Appeal No.45-SB of 2003 -11- with. In this regard, we have statements of SI Wazir Singh PW-1, Constable Pirthi PW-2 and Head Constable Kailash Chander PW-3. In addition to it, there is report of Chemical Examiner certifying that seals on the sample parcels were found intact and tallied with specimen seal impressions. Form M-29 i.e. docket with which the sample parcels were sent to the Chemical Examiner was not prepared at the spot. On the other hand, the procedure is that specimen seal impressions are retained at the spot on a separate paper and later on while preparing the docket in form M- 29, the specimen seal impressions are cut from the said separate paper and affixed on the docket. It has been so done in the instant case also. Consequently the separate paper containing specimen seal impressions could not be on the judicial file. Moreover, if some specimen seal impressions were left on the said paper, the same could be on the police file and not on the judicial file. The fact as to who got the docket typed is hardly of any significance. Report of the Chemical Examiner reveals that the docket sent to the Chemical Examiner contained the specimen seal impressions pasted on it. It cannot, therefore, be said that specimen seal impressions were not sent to the Chemical Examiner. It is thus manifest that in the instant case, prosecution has led complete link evidence to demonstrate that there was no tampering with case property including sample parcels. Consequently judgment in the case of Gurmail Singh (supra) has no applicability to the instant case.
Merely because the accused was not having any weight or scales with him at the spot would not cause any dent in the prosecution Criminal Appeal No.45-SB of 2003 -12- case. The accused might have kept the weight and scales at some convenient place or he could get the poppy husk weighed at any place on getting a customer. Omission to mention on the disclosure statement, whether it was left thumb impression (LTI) or right thumb impression (RTI) of the accused, is irrelevant and insignificant when the thumb impression has been affixed below his name. Moreover in memos Exhibit PC and PJ, it was specifically mentioned that it was LTI of the accused.
Contradictions in the statements of Wazir Singh PW-1 and Inderjit Singh PW-5 pointed out by counsel for the appellant do not go to the root of the case. The said contradictions are about time of different stages of the proceedings at the spot. Some contradictions regarding the said time would not make the statements of prosecution witnesses suspicious or doubtful in any manner. The witnesses could not be expected to remember exact time of different stages of the proceedings. On the contrary, some contradictions are bound to occur even in the statements of truthful witnesses particularly with passage of time because of different powers of perception, observation and memory. It may be added that SI Inderjit Singh was examined on 31.05.2002 i.e. more than two years three months after the recovery and on account of lapse of such long period also, the contradictions pointed out by counsel for the appellant cannot be attached any significance.
As regards plea of the accused that DSP Sajjan Singh Cheema after the conclusion of his statement remained silent regarding offer of the accused requiring the DSP to take special oath about recovery of poppy Criminal Appeal No.45-SB of 2003 -13- husk from the accused, no benefit thereof can be given to the accused because there is no material on record to substantiate the said plea of the accused. There is no mention of any such offer by the accused in the zimni order of the trial Court. Moreover, DSP Sajjan Singh Cheema had already made his statement on oath regarding recovery of poppy husk from the accused. Besides it, DSP Sajjan Singh Cheema appearing as witness had no locus standi to accept or reject the alleged offer made by the accused and it was for the Presiding Judge to have passed appropriate order regarding the same. Moreover, the DSP did not even refuse to take the alleged oath even as per version of the accused himself. No adverse inference can be drawn against the prosecution on the aforesaid plea of the accused.
Merely because the accused is not owner of the place from where recovery was effected, it cannot be said that he was not in conscious exclusive possession of the contraband poppy husk. The accused made disclosure statement that he had concealed the poppy husk at the stated place. He also stated that only he knew about the said poppy husk. It was concealed at a deserted place. Prosecution evidence is thus sufficient to prove exclusive conscious possession of poppy husk with the accused. Presumption in this regard would also arise against the accused under Sections 35 and 54 of the Act. The accused has failed to rebut the said presumption. Judgment in the case of Bachittar Singh (supra) is completely distinguishable on facts. It may be added that even in the said case, Section 57 of the Act was held to be directory. Moreover, in the instant case, DSP Sajjan Singh Cheema was immediate official superior of Criminal Appeal No.45-SB of 2003 -14- SI Wazir Singh PW-1 and was present at the spot. Consequently Section 57 of the Act was substantially complied with in this case.
If the prosecution could not find out from the accused the source of the poppy husk from where he had brought it, the accused cannot be acquitted merely on this ground. Once it is proved that the accused was in conscious possession of the poppy husk, it is sufficient to convict him under Section 15 of the Act.
It may be mentioned that the police would not have planted huge quantity of 210 kilograms of poppy husk on the accused simply to implicate him in a false case without any rhyme or reason.
As a necessary consequence of the discussion made above, I conclude that prosecution has led sufficient cogent evidence to prove the guilt of the accused-appellant. His conviction is well founded and well reasoned. Accordingly impugned judgment of conviction is affirmed.
As regards quantum of sentence, minimum sentence of imprisonment for ten years and fine of Rs.1,00,000/- has been imposed on the appellant as quantity of poppy husk recovered from him is commercial one. Consequently, the sentence being minimum provided by the statute also does not warrant any reduction or modification.
Necessary upshot of the aforesaid discussion is that there is no merit in the instant criminal appeal, which is accordingly dismissed.
The appellant who is on bail shall surrender to his bail bonds or shall be arrested to undergo the remaining sentence.
( L. N. MITTAL ) JUDGE 29th November, 2011 'raj'