Punjab-Haryana High Court
Karamjit Kaur Wife Of Kamaljit Singh Son ... vs State Of Punjab on 19 April, 2010
Criminal Appeal No. 796-SB of 2008 1
Criminal Appeal No. 1130-SB of 2008
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 796-SB of 2008
Date of Decision: 19.04.2010
Karamjit Kaur wife of Kamaljit Singh son of Garib Dass
aged 49 years, house wife, r/o Bela, PS Chamkaur Sahib,
District Ropar.
... Appellant
Versus
State of Punjab.
...Respondent
Criminal Appeal No. 1130-SB of 2008
Date of Decision: 19.04.2010
Naresh Kumar son of Balvir Singh son of Sess Ram, r/o
Rajaak Nagar, Muzzafar Nagar (UP).
... Appellant
Versus
State of Punjab.
...Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Sanjay Gupta, Advocate,
for the appellant,
in Criminal Appeal No. 796-SB of 2008.
Mr. K.S. Dhaliwal, Advocate,
for the appellant,
in Criminal Appeal No. 1130-SB of 2008.
Mr. Jaspreet Singh, AAG, Punjab,
for the respondent - State.
Criminal Appeal No. 796-SB of 2008 2
Criminal Appeal No. 1130-SB of 2008
SHAM SUNDER, J.
**** This judgement shall dispose of Criminal Appeal No. 796-SB of 2008, filed by Karamjit Kaur, appellant, and, Criminal Appeal No. 1130-SB of 2008, filed by Naresh Kumar, appellant, against the judgment of conviction and the order of sentence, dated 22.01.08, rendered by the Judge, Special Court, Nawanshahr, vide which, he convicted the accused (now appellants), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced them to undergo Rigorous Imprisonment, for a period of ten years each, and to pay a fine of Rs. 1 lac each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of one year each, for having been found in possession of 5 bags, each containing 35 kgs of poppy husk, without any permit or licence, falling within the ambit of commercial quantity.
2. The facts, in brief, are that, on 07.09.02, Madan Lal, Sub Inspector, alongwith some other Police officials, was on patrol duty, in a government gypsy, being driven by Bagicha Singh, Police Home Guard. On the passage (firni) of village Jabbowal, one Sohan Lal son of Hazara Ram, resident of village Mahalon, met the Police party, who was also joined with it. When the Police party reached about 1 km ahead of village Jabbowal, one TATA-407, was seen coming, and, was signalled to stop, wherefrom, one lady alighted and succeeded in Criminal Appeal No. 796-SB of 2008 3 Criminal Appeal No. 1130-SB of 2008 running away towards sugarcane fields, on account of darkness. She was, however, identified, by Bhupinder Singh, Assistant Sub Inspector and Jaswinder Singh, Constable, as Karamjit Kaur, wife of Karamjit Singh, resident of Bela, P.S. Chamkaur Sahib, Ropar. The driver of the vehicle was, however, overpowered by the Police party, who disclosed his name, as Naresh Kumar son of Balbir Singh, resident of Kaya Nagar (Razak Nagar), P.S. Jinjiana, District Muzzafar Nagar (UP). The persons, sitting in the rear body of the truck, were also overpowered, who disclosed their names, as Puran son of Mohinder Singh, resident of Kaya Nagar (Razak Nagar) and Kuljinder alias Happy son of Bhola Singh alias Mani Singh, resident of Mundi Kharar, District Ropar. Thereafter, Madan Lal, Sub-Inspector, apprised the accused, that he suspected some contraband, in TATA 407, and wanted to search the same. Consequently, on search of TATA 407, in the presence of Jagtar Singh, Deputy Superintendent of Police (D), Nawanshahr, who was called to the spot, five bags, each containing 35 kgs poppy husk, were recovered, from a rack, made therein, after removing planks (fattas) by unscrewing their nuts. A sample of 250 gms, from each bag, was separated, and the remaining poppy husk, was kept therein. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession alongwith TATA 407 and its registration certificate, vide a separate recovery memo. Naresh Kumar, Puran and Kuljinder alias Happy, accused, were arrested. Site plan of the place of recovery was prepared. Criminal Appeal No. 796-SB of 2008 4 Criminal Appeal No. 1130-SB of 2008 Ruqa was sent to the Police Station, on the basis whereof, the first information report was registered. Karamjit Kaur, accused, was also arrested later on. After the completion of investigation, the accused were challaned.
3. On their appearance, in the Court, the accused, were supplied the copies of documents, relied upon by the prosecution.
4. Charge under Section 15 of the Act, was framed, against the accused, which was read-over and explained to them, to which, they pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined Surinder Kumar, Moharrir Head Constable (PW1), Prem Lal, Constable-II (PW2), Surinder Mohan, Station House Officer (PW3), Jaswinder Singh, Constable (PW4), Bhupinder Singh, Assistant Sub Inspector (PW5), Jagtar Singh, Deputy Superintendent of Police (PW6), witness to the recovery, Paramjit Singh, Assistant Sub Inspector (PW7), and, Madan Lal, Sub Inspector (PW8), Investigation Officer. Sohan Lal, prosecution witness, was given up, as having been won over by the accused. Thereafter, the prosecution evidence was closed.
6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, examined Tirath Ram (DW1), in their defence. Thereafter, they closed their defence evidence.
Criminal Appeal No. 796-SB of 2008 5Criminal Appeal No. 1130-SB of 2008
7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above and acquitted Puran and Kuljinder @ Happy.
8. Feeling aggrieved, the instant appeals, have been filed by the appellants.
9. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
10. The Counsel for Karamjit Kaur, appellant, submitted that, according to the prosecution story, the appellant, at about 4.00 AM, succeeded in running away, and, was not arrested, at the spot. He further submitted that the prosecution failed, to prove her identity, as the perpetrator of crime, and, as such, she was not connected with the same. The submission of the Counsel for the appellant, in this regard, appears to be correct. It was highly improbable, that a lady, allegedly travelling in a vehicle, in which, the contraband, was found, could escape, in the presence of a number of Police officials, armed with various types of weapons. The alleged recovery, in this case, was effected, at about 4.00 AM, when there was sufficient darkness. In these circumstances, it was not at all possible to identify the escaping lady, from the vehicle, in question. No doubt, in the ruqa, it was written, that the lady, who escaped, was Karamjit Kaur. It is not known, as to on the basis of which source, the name of Karamjit Kaur, was recorded in the ruqa. There is nothing, on the record, that Karamjit Criminal Appeal No. 796-SB of 2008 6 Criminal Appeal No. 1130-SB of 2008 Kaur, was earlier apprehended, by Bhupinder Singh, Assistant Sub Inspector, in any other case, and, that was why, she was known to him. No evidence, was also produced, that Karamjit Kaur, appeared as a witness, in any other case, which was investigated, by Bhupinder Singh, Assistant Sub Inspector, and, on account of that reason, he knew her. Jaswinder Singh, Constable, another member of the Police party, who also allegedly identified Karamjit Kaur, accused, while escaping, stated that, he was earlier, in the CID, and the village of the accused, was adjoining his village, and, that was why, he knew her. A number of persons, must be residing, in the adjoining village of Jaswinder Singh, Constable. It, therefore, could not be said, that he knew each and every villager of the adjoining village. There was no source of light, at the spot, in which, Karamjit Kaur, accused, was allegedly identified, who escaped from the spot. No identification parade, was held, by the Investigating Officer, during the course of investigation, to pin-point the identity of Karamjit Kaur, accused. The prosecution, thus, miserably failed, to prove the identity of Karamjit Kaur, accused, as the perpetrator of crime. It was held in Budhsen and Another Vs. State of U.P., AIR 1970 SC, 1321, that facts which establish the identity of an accused person, are relevant under Section 9. As a general rule, the substantive evidence of a witness is a statement made in the Court. The evidence of mere identification of the accused person, at the trial, for the first time, is from its very nature, inherently of a weak character. The evidence, in order to carry conviction, should ordinarily clarify, as Criminal Appeal No. 796-SB of 2008 7 Criminal Appeal No. 1130-SB of 2008 to how, and, under what circumstances, the witness came to pick out the particular accused person, and the details of the part, which the accused played, in the crime, in question, with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses, in the Court, as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held, during the course of investigation, with the primary object of enabling the witnesses, to identify persons, concerned, in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses, and also to furnish evidence, to corroborate their testimony, in the Court. Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail, or some other place, and they make statements, either express or implied, that certain individuals whom they point out are persons, whom they recognize, as having been concerned in the crime. The same do not constitute substantive evidence. These parades are essentially governed by Section 162 Cr.P.C. The principle of law, laid down, with regard to Criminal Appeal No. 796-SB of 2008 8 Criminal Appeal No. 1130-SB of 2008 test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under :-
"Identification parades have been in common use for a very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident but they claim that although they did not know him earlier, they could recall his features in sufficient details and would be able to identify him if and when they happened to see him. The holding of a test identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit, it saves the suspect or the accused form the sudden risk of being identified in the dock by the self same witnesses during the course of the trial. The line up of the suspect in a test identification parade is therefore a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice."
The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since the identity of the accused, as perpetrator of crime, was not proved, she is not connected with the instant case. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction and awarding sentence to Karamjit Kaur, accused. Criminal Appeal No. 796-SB of 2008 9 Criminal Appeal No. 1130-SB of 2008
11. Since Karamjit Kaur, accused, was not arrested, at the spot, it could not be said that, she was in conscious possession of the contraband, recovered from the vehicle, of which, Naresh Kumar, accused, was the driver. As stated above, the identity of Karamjit Kaur, accused, as the perpetrator of crime was not proved. She could not be attributed any knowledge, with regard to five bags, each containing 35 kgs poppy husk, lying in the vehicle, being driven by Naresh Kumar. Since the possession of Karamjit Kaur, accused, in respect of the contraband, was not proved, statutory presumption, under Sections 35 and 54 of the Act, did not at all operate against her, that she was in conscious possession thereof. When Karamjit Kaur, accused, was not in conscious possession of the poppy husk, she did not commit any offence, punishable under Section 15 of the Act.
12. The Counsel for Naresh Kumar, appellant, submitted that the mere fact, that according to the prosecution story, Naresh Kumar was the driver of the truck, he could not be said to be in conscious possession of the poppy husk, lying therein. He further submitted that the poppy husk, was under the planks (fattas), and, therefore, the conscious possession thereof, could not be attributed, to him. He further submitted that, thus, Naresh Kumar, appellant, did not commit any offence. The submission of the Counsel for Naresh Kumar, appellant, in this regard, does not appear to be correct. Since Naresh Kumar, appellant, was the driver of the vehicle and arrested, at the spot, it could not be said, that he was unaware of five bags, each containing Criminal Appeal No. 796-SB of 2008 10 Criminal Appeal No. 1130-SB of 2008 35 kgs poppy husk, lying in the vehicle. He being the driver of the truck, very well knew, as to from which place, the bags, containing poppy husk, were loaded, in the truck; at whose instance, the same, were loaded, in the truck; and to which destination, the same, were being taken and for what purpose. The driver of the truck, therefore, could not be said to be ignorant or unaware of the contraband, lying in the body of his truck. No explanation, was furnished, by Naresh Kumar, accused, with regard to the aforesaid aspects of the matter. From the evidence, on record, it was proved, that Naresh Kumar, accused, was in possession of and in control over the bags, containing poppy husk, lying in the body of the truck. Once his possession, was proved, statutory presumption under Sections 35 and 54 of the Act, operated against him, that he was in conscious possession thereof. It was for him, to rebut the statutory presumption, by leading cogent and convincing evidence. He, however, failed to lead any evidence, to rebut the statutory presumption. As such, he was in conscious possession of the contraband. Section 54 of the Act ibid reads as under :-
"Presumption from possession of illicit articles:- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act, in respect of:-
a) any narcotic drug or psychotropic substance or controlled substance;
b) any opium poppy, cannabis plant or coca plant growing on any land Criminal Appeal No. 796-SB of 2008 11 Criminal Appeal No. 1130-SB of 2008 which he has cultivated;
c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controller substance; or
d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily."
12-A. Section 35 which relates to the presumption of culpable mental state, is extracted as under :-
"Presumption of culpable mental state:- (1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation:- In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
12-B. From the conjoint reading of the provisions of Sections 54 Criminal Appeal No. 796-SB of 2008 12 Criminal Appeal No. 1130-SB of 2008 and 35, referred to hereinbefore, it becomes abundantly clear, that once an accused, is found to be in possession of a contraband, he is presumed to have committed the offence, under the relevant provisions of the Act, until the contrary is proved. According to Section 35 of the Act ibid, the Court shall presume the existence of mental state, for the commission of an offence, and it is for the accused to prove otherwise.
In Madan Lal and another Vs. State of H. P. 2003 SCC (Crl.) 1664 it was held as under:-
The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
13. The facts of Madan Lal's case (supra) in brief, were that accused Manjit Singh was driving the Car and the remaining four accused, were sitting therein. One steel container (dolu) in a black coloured bag, was recovered from the said Car, which contained 820 gms. charas. All the accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas, despite the fact, that one of the accused admitted his conscious possession, of the contraband. The Apex Court held that the trial Court Criminal Appeal No. 796-SB of 2008 13 Criminal Appeal No. 1130-SB of 2008 was right in coming to the conclusion, that the accused were found in conscious possession of charas, as they had failed to explain as to how they were travelling in a Car together, which was not a public vehicle. The Apex Court upheld the conviction and sentence awarded to the accused. In Megh Singh Vs. State of Punjab, 2003 (4) RCR (Criminal) 319, on 22.2.1993, three persons were found sitting, on the gunny bags, containing poppy husk. The appellant was arrested, while the other two fled. 25 bags containing poppy husk, were found, at the spot, which were seized. The appellant was convicted and sentenced by the trial Court, and the appeal filed by him, was also dismissed by the High Court. The Apex Court, upheld the conviction and sentence of the appellant, observing that he was in conscious possession. The word 'conscious' means awareness about a particular fact. It is the state of mind, which is deliberate or intended. It was further held that possession, in a given case, need not be physical possession, but can be constructive, having power and control over the article, while the person whom physical possession is given holds it subject to that power or control. The facts of Madan Lal's case (supra) are almost similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lal's and Megh Singh's cases (supra) is fully applicable to the facts of the present case. In the instant case, in his statement, under Section 313 Cr.P.C., Naresh Kumar, accused/ appellant, took up the plea of false implication. As stated above, the accused miserably failed to rebut the statutory presumption, referred to Criminal Appeal No. 796-SB of 2008 14 Criminal Appeal No. 1130-SB of 2008 above. Thus, his conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
14. It was next submitted by the Counsel for Naresh Kumar, appellant, that Sohan Lal, independent witness, a material witness though joined, yet, he was not examined, by the prosecution, and was given up, as won over by the Additional Public Prosecutor, for the State, vide his statement dated 03.11.06 and, as such, the case of the prosecution became highly doubtful. There is, no dispute, about the factum, that Sohan Lal, independent witness, was joined, but, he was given up, as won over by the accused, on the request of the Police, by the Additional Public Prosecutor, for the State. It means that, this witness, was given up, by the Public Prosecutor, for the State, after being satisfied, that he had actually been won over. The Public Prosecutor, for the State, is the master of the case. It is for him, to decide, as to which witness, he wants to examine, and which witness, he does not want to examine. Since Sohan Lal, independent witness, had been won over by the accused, there was no necessity of examining him, as the Additional Public Prosecutor, for the State, very well knew that, if he examined Sohan Lal, independent witness, he would cause damage, to the case of the prosecution. The discretion, exercised by the Additional Public Prosecutor, for the State, in giving up Sohan Lal, could not be said to be arbitrary or capricious. On the other hand, the decision, taken by the Additional Public Prosecutor, for the State, could Criminal Appeal No. 796-SB of 2008 15 Criminal Appeal No. 1130-SB of 2008 be said to be bonafide. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a 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/she has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference could be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over by the accused, and only the officials were examined, as witnesses for the prosecution, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly in Appa Bai and another Vs. State of Gujrat 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined by it. It was further held that civilized people, are generally insensitive, when a crime is Criminal Appeal No. 796-SB of 2008 16 Criminal Appeal No. 1130-SB of 2008 committed, even in their presence, and they withdraw from the victim's side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves in it. The principle of law, laid down, in the said cases, is fully applicable to the facts of the present case. Even otherwise, the other evidence produced by the prosecution is reliable. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
15. It was next submitted by the Counsel for Naresh Kumar, appellant, that the alleged recovery, was effected, on 07.09.02, whereas, the samples, were sent, to the office of the Chemical Examiner, on 07.11.02. He further submitted that, no explanation, was furnished, regarding delay, in sending the samples, and, as such, the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for Naresh Kumar, appellant, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence, produced by the prosecution, has been subjected to indepth scrutiny, and, as stated above, it has been found to be cogent, convincing, Criminal Appeal No. 796-SB of 2008 17 Criminal Appeal No. 1130-SB of 2008 reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex. PY, which clearly proves that the seals on the samples, were intact, on their arrival, in the Laboratory, and tallied with the sample seals sent. The report of the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions of Section 293. The delay in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In State of Orissa Vs. Kanduri Sahoo, 2004(1), RCR (Criminal), 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. It was held, in the aforesaid cases, that in the face of the other cogent, convincing, reliable, and trustworthy evidence produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of Criminal Appeal No. 796-SB of 2008 18 Criminal Appeal No. 1130-SB of 2008 law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 02 months, in sending the samples to the office of the Chemical Examiner, did not at all matter much. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
16. It was next submitted by the Counsel for Naresh Kumar, appellant, that the report of the Chemical Examiner, was incomplete, and, on the basis thereof, it could not be said, that the samples contained poppy husk. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Exhibit PY is the report of the Chemical Examiner. It is evident, from the said report, that on analysis of the samples, it was found that the same, contained poppy husk. It is further evident that, in those samples, maconic acid, morphine and other alcolides of opium were also found. The report of the Chemical Examiner, therefore, could not be said to be incomplete, in any manner. In case, the accused, had any doubt, with regard to the authenticity of the report PY of the Chemical Examiner, he could summon him for cross-examination, through another expert. He did not do so. It is, therefore, held that, the report of the Chemical Examiner, being complete, was sufficient to come to the conclusion, that the samples contained poppy husk. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected.
Criminal Appeal No. 796-SB of 2008 19Criminal Appeal No. 1130-SB of 2008
17. No other point, was urged, by the Counsel for the parties.
18. For the reasons, recorded above, Criminal Appeal No. 796- SB of 2008, filed by Karamjit Kaur, is accepted. The judgement of conviction and the order of sentence, qua her, are set aside. The appellant shall stand acquitted of the charge, framed against her. If, she is on bail, she shall stand discharged of her bail bonds. If, she is in custody, she shall be set at liberty, at once, if not required, in any other case.
19. Criminal Appeal No. 1130-SB of 2008, filed by Naresh Kumar, appellant, being devoid of merit, must fail, and the same is dismissed. The judgement of conviction and the order of sentence, qua him, are upheld. If the appellant, is on bail, his bail bonds shall stand cancelled.
20. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, qua Naresh Kumar, accused (now appellant), keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and qua Karamjit Kaur, accused (now appellant), in accordance with law, and, submit the compliance report, within 02 months.
21. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court.
22. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within Criminal Appeal No. 796-SB of 2008 20 Criminal Appeal No. 1130-SB of 2008 10 days, of the expiry of the time frame, whether the report is received or not, for further action.
19.04.2010 (SHAM SUNDER) Amodh JUDGE