Punjab-Haryana High Court
Naresh Kumar vs State Of Haryana on 7 November, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
Criminal Appeal No.745-DB of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.745-DB of 2006
Date of Decision:7.11.2012
Naresh Kumar ...Appellant
Versus
State of Haryana ...Respondent
CORAM:- HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
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Present: Mr. J.S. Mehendiratta, Advocate
for the appellant (Amicus Curiae).
Mr. Kshitij Sharma, A.A.G. Haryana.
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1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RAJIV NARAIN RAINA, J.
This appeal has been filed by Naresh Kumar son of Karan Singh resident of Village Rohata, P.S. Sarurpur, District Meerut (UP) against the judgment and order dated 2.09.2006 of the learned Special Judge, Panipat, convicting the accused-appellant for committing offence under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for brevity "NDPS Act") as also against the order of sentence of even date whereby he has been sentenced to undergo imprisonment for a period of fifteen years, besides, imposing fine of Rs 2 lacs and in default of payment of fine to further undergo rigorous imprisonment for four years. The accused-appellant (for short the "appellant") was 38 years old on the Criminal Appeal No.745-DB of 2006 2 date of recovery of contraband on 3.5.2005.
The prosecution story unfolded in FIR No.104 dated 3.5.2005 under Section 18 of the NDPS Act registered at Police Station Samalkha is that on 3.5.2005 at about 12:30 p.m., when complainant-Inspector Prem Singh was present at Gate No.1, New Grain Market, Samalkha on patrolling duty and for detection of crime he saw a man walking out from the inside of the New Bus Stand, Samalkha, heading towards grain market gate No.1. He was holding a tin container ('pipa') (for short "container") in his right hand encased in a cardboard box as described in the FIR. On seeing the police party, he stopped short leading to suspicion in the minds of police party on which the Complainant/Inspector-Prem Singh apprehended the appellant while he was trying to escape. On being caught, he disclosed his name and address. He was served a notice under Section 50 of the NDPS Act that he was suspected of carrying some intoxicants in the container. He was reminded of his legal rights and apprised that if he wanted the impending search to be conducted before a Magistrate or Gazetted Officer or by the complainant he had a choice to which he requested presence of Gazetted Officer in case search was to be done. The notice under Section 50 of the NDPS Act and his reply thereto counter-signed by police witnesses present and the appellant were taken on record.
Sh. Pardeep Kumar Deputy Superintendent of Police (DSP hereafter) was contacted on his mobile phone to reach the spot. The facts were narrated to the DSP on phone. On arrival, the appellant was produced before the DSP together with the container. DSP gave written order to the complainant to conduct the search in his presence. The container was pried open. Opium wrapped in wax polythene was recovered. It was weighed in at Criminal Appeal No.745-DB of 2006 3 5 kg. 240 grams. Two samples of 20/20 grams of opium were drawn and rest of the opium was put into plastic jars alongwith wax polythene and converted into separate parcels. Three parcels alongwith samples were sealed with the seal of the complainant and one seal of the DSP. One lot was kept by the DSP. Two sample parcels meant for forensic examination, the remainder parcels of opium, sample seal, pipa, 'Dulhan' brand cardboard container which housed the tin container were taken into police possession by recovery memos. These were attested by the DSP. Signatures of the witnesses were obtained on the memo. Photographs of the appellant as well as case property were taken on the spot. As the possession of opium in the hands of the appellant was found without permit or licence an offence punishable under Section 18 of the NDPS Act was made out, therefore a ruqqa was sent through Constable Hari Parkash for registration of FIR. The legal formalities were completed with respect to the recoveries and information of the event to the officials concerned. The sealed samples of substance recovered were sent to the Forensic Science Laboratory, Madhuban, Karnal for chemical examination at the FSL Laboratory, Madhuban, Karnal. The examination of the material was conducted between 16.6.2005 to 24.6.2005. The analytical techniques applied to determine opium were Colour tests (Marquis & Ferric chloride). The observation made was that the test was positive confirming presence of Morphine, Codeine, Thebaine, Narcotine, Papaverine and Meconic Acid in the sample. The Morphine level was tested as 4.6% (W/W). The weight of sample received was 33.9 grams with container, against extract of 20 grams for sample and what was left after analysis was returned by the laboratory weighing 30.6 grams with container. The FSL report was produced in evidence as Ex.PX. Criminal Appeal No.745-DB of 2006 4 The brown black substance was confirmed as opium in the report dated 24.6.2005.
On completion of investigation, the final report under Section 173 Cr.P.C. was presented before the trial Court. The charge was framed by the Special Court, Panipat on 16.8.2005 that the appellant was found in conscious possession of 5 kg 240 grams of opium without any permit or licence and thereby had committed an offence punishable under Section 18 of the NDPS Act. The appellant pleaded not guilty and claimed trial by making a statement to that effect.
In order to establish the commission of crime, the prosecution examined 8 witnesses. All of whom were of the police department and/or had witnessed or participated in the search of the container leading to the arrest of the appellant on the spot.
Pardeep Kumar DSP, the Gazetted Officer, appeared as PW-8 and testified as to his presence on being called at the place of occurrence for the purpose of carrying out the search of the container suspected to be containing intoxicants/drugs. He fully supported the prosecution case.
PW-1 ASI Chand Singh recorded the formal FIR and exhibited the ruqqa as Ex.PA, FIR as Ex.PB and the endorsement as Ex.PB/1.
PW-2 ASI Vijender Singh who was an eye witness tendered in evidence the notice under Section 50 of the NDPS Act as Ex.PC, reply thereto as Ex.PC/1, the order of DSP for search as Ex.PD and the possession memo as Ex.PE.
PW-3 Ramesh Kumar SI/SHO Police Station Samalkha prepared the challan/final report under Section 173 Cr.P.C and deposed in support of the case of the prosecution.
Criminal Appeal No.745-DB of 2006 5
PW-4 HC Randhir Singh was the MHC who deposed that he handed over the parcel to Constable Balwan Singh for depositing the same at FSL, Madhuban on 6.5.2005. He placed on record an affidavit as Ex.PE.
PW-5 Constable Balwan Singh appeared and deposed that he deposited the parcel with FSL, Madhuban.
PW-6 HC Sushil Kumar was the official photographer who took the photographs of the appellant and the contraband at the scene of chance recovery.
PW-7 Inspector Prem Singh was the complainant who headed the patrolling party that arrested the appellant. He produced rough site plan as Ex.PG, samples of opium as Exs.P-3 and P-4, Ex.PH being order of destroying contraband, Ex.P1 order of Executive Magistrate re: destruction and the inventory Ex.PJ.
On the conclusion of the prosecution evidence the entire incriminating material found against the appellant on the record of the case was put to the appellant in question and answer form under Section 313 Cr.P.C. He denied the allegations as false. He said that he has been falsely implicated in the case. In his defence, he stated as follows:
"I am innocent. I have been falsely implicated in this case. In fact, I was arrested on 2.5.2005 at about 2.30 p.m. from Bus Stand Samalkha from a bus belonging to Roadways by two constables and who were in civil dress. I was also having medical records and a sum of Rs.10,588/- with him and I was going to Post Graduate Institute of Medical Science, Chandigarh, Chandigarh for medical check up."
On the question whether the appellant desired to lead evidence in his defence, he replied in the affirmative. He, however, did not avail the opportunity by leading defence evidence.
Criminal Appeal No.745-DB of 2006 6
We have heard Mr. J.S. Mehendiratta, amicus curiae for the appellant and Mr. Kshitij Sharma, Assistant Advocate General, Haryana for the prosecution and have examined the record with their able assistance.
Mr. Mehendiratta has delineated four areas from the record and the depositions of the prosecution witnesses which according to him cast doubt on the correctness of prosecution story for which reasons the appellant deserves to be acquitted or given the benefit of doubt. He submits that firstly, no independent witness was associated despite the fact the place from where the appellant was allegedly apprehended was in the vicinity of bus stand and grain market which must be a crowded place and there would have been no dearth of independent witnesses from the public who could have been joined in; secondly, the police chose to call DSP as gazetted officer for complying with provisions of Section 50 of the NDPS Act even though office of the Sub Divisional Magistrate was nearby; thirdly, the number of the F.I.R. was mentioned on top of the recovery memo Ex.PE drawn on the spot even before the FIR was registered in Police Station and numbered; and fourthly, the SHO stated that he left the police station at 1 P.M. for patrolling duty while the appellant was allegedly apprehended at 11:30 A.M. Ruqqa was also sent to the police station immediately. This shows that the police officials have falsely implicated the appellant, altered the timings and manipulated the record.
Other than the above four submissions, Mr. Mehendiratta has also researched and pointed out to a litany of contradictions in the depositions of PW-2, PW-7 and between the testimonies of PW-2 & PW-3, PW-7 & PW-8 and PW-2 & PW-7 which go in favour of the appellant. We list them in the manner presented to us as under:
Criminal Appeal No.745-DB of 2006 7
"List of contradictions
1. PW-2 ASI Vijender Singh stated that they stopped at village Kiwana for half an hour. (Page 85) PW-7 Inspector Prem Singh stated that they did not stop at village Kiwana. (page 123-3rd line)
2. PW-2 ASI Vijender Singh stated that a secret information the police party at village Kiwana.(page 85) PW-7 Inspector Prem Singh stated that they did not meet any secret informer.
3. There are contradictions regarding the time when the police party reached the spot from where the appellant was allegedly apprehended.
PW2 says that the police party reached the spot at 11:15 A.M. (page 87-3rd line) PW-7 says that police party arrived at the spot at 10:15 A.M. (page 123-4th line).
4. There is contradiction regarding the time at which the SHO arrived at the spot.
PW-2 ASI Vijender Singh stated that the SHO reached the spot at 5:30 P.M. PW-3 SHO Ramesh Kumar says that he reached the spot at 3:00-3:05 P.M.
5. There is contradiction regarding weights:
PW-7 Inspector Prem Kumar stated at page 125 that the weights were of 5 Kg., 2Kg. 50Gms, 20 gms and 10 gms. PW-8 DSP Pardeep Singh stated that weights were of 5 Kg, 2Kg, 200 gms., 100 gms, 50 gms, 20 gms and 10 gms.
6. PW-2 Vijender Singh says that I.O. Tried to join public witnesses but no one came forward. (page 91) PW-7 Inspector Prem Kumar says that no one from grain market was asked to join the investigation. (page 123-last line)".
On the strength of the above submissions the learned counsel would persuade us to believe that the appellant was foisted with a false Criminal Appeal No.745-DB of 2006 8 case.
Per contra Mr. Kshitij Sharma appearing for the State submits that non joining of independent witnesses or associating them at the time of recovery is not fatal to the prosecution case. The spot may have been a busy public place but it is very often difficult to procure independent witnesses, who normally shy away from being joined to avoid trouble they may be put to when called as witnesses to depose in support of the prosecution case. This is a case of chance recovery on suspicion and appellant was caught red handed with such a large quantity of opium. It cannot be easily believed that 5 kg 240 gms of opium could be planted by the police on an innocent person. The police had no enmity with the appellant nor has the appellant led any evidence to this effect or made any such suggestion in any of the cross examinations of the prosecution witnesses. It was for him as well to have led defence evidence after he requested so in his statement under Section 313 Cr.P.C and to rebut the presumption of possession of illicit article in terms of Section 54 of the Act. It can be said that onus to some degree shifted upon him to also disprove the case of the prosecution to support his story spun in the Section 313 statement. On the second argument of Mr. Mehendiratta, learned counsel for the State submits that the office of the SDM may have been nearby and that he was not called is a matter which depends on availability in short span of time but the same is not fatal to the prosecution case so long as a gazetted officer was called who may be a DSP but was neutral and had no personal axe to grind. The number of the FIR mentioned on the top of recovery memo Ex.PE does not alarm us as in the very nature of things such memos are made in such manner as each page connects with the FIR otherwise every defence would Criminal Appeal No.745-DB of 2006 9 succeed on this short ground. When the ruqqa is sent for registration of a criminal case through the police messenger to the area police station and FIR is registered, the number of the FIR is sent back to the spot of recovery where the accused has been apprehended and the investigation and paper work is underway. In any case no prejudice has been caused or shown by adopting such course. On the issue of alteration of timings and manipulation of record, learned State counsel submits that although the appellant was apprehended at 11:30 a.m., it would have taken time for preparing ground work by the police party and of securing presence of a Gazetted Officer before the search could be conducted. At 11:30 a.m., there was no proof with the police that in the container there was opium etc. In any case, these are not material discrepancies which ought to result in acquittal of the appellant.
We have given our thoughtful consideration to the arguments of the respective learned counsel to secure the ends of justice. The present is a case of chance recovery. Minor discrepancies which may have surfaced in depositions of the witnesses as pointed out above, in a case of the kind under consideration, are not material contradictions. So long as the contradictions and inconsistencies are not wide off the mark or break the chain of circumstances or disclose diabolical investigation only to persecute an innocent person would not sway the pendulum of innocence towards the appellant. The list of contradictions as delineated by the learned counsel would not in our considered view tilt the scales in favour of the defence. We are not persuaded by the submissions of Mr. Mehendiratta although he has argued with vigour to save the appellant and bring the case in the penumbra of the benefit of doubt. In the absence of any procedural illegality or Criminal Appeal No.745-DB of 2006 10 impropriety affecting the liberty of the citizen, we are not prepared to hold that the appellant has been made a victim of a false case. We do not think that timings were altered or records manipulated.
There is an additional matter which has been brought to our notice during the course of hearing that the appellant was on parole from 29.6.2010 to 22.7.2010 after conviction in the present case on 2.9.2006. While on parole, he was involved in FIR No.132 of 2010 registered in U.P. and he has suffered some conviction by a Court in U.P. on 3.5.2011. Further details have not been furnished. Nor are we inclined to introduce them in the present case and would confine ourselves to what was called upon us to do.
We have considered the matter in the totality of facts presented before us borne from the record. This Court has no doubt that the conviction of the appellant is in order and his quilt proved beyond any reasonable doubt.
For the foregoing reasons, the judgment of conviction and order of sentence awarded by the learned Special Judge, Panipat, is upheld and the appeal is accordingly dismissed.
( HEMANT GUPTA ) ( RAJIV NARAIN RAINA )
JUDGE JUDGE
7.11.2012
rajeev