Punjab-Haryana High Court
Raja Ram Parshad vs State Of Haryana on 25 July, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.S-1263-SB of 2009
Date of Decision: July 25, 2013
Raja Ram Parshad
...Appellant
VERSUS
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mrs.Kiran Bala Jain, Advocate and
Mr.Namit Sharma, Advocate
Legal Aid counsel,
for the appellant.
Mr.Subhash Godara, Addl. Advocate General, Haryana
for the respondent-State.
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INDERJIT SINGH, J.
The present appeal has been filed by the appellant against the judgment of conviction dated 03.02.2009 and order of sentence dated 06.02.2009, passed by the learned Judge, Special Court, Yamuna Nagar at Jagadhri, whereby, he was held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year under Section 20 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The brief facts of the prosecution case are that on 26.01.2008, ASI Ram Phal along with other police officials was present at railway crossing, Pansara, where he received secret information against Raja Ram Parshad that he used to bring intoxicant Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -2- 'ganja' from the State of Uttar Pradesh and used to sell the same in the city Jagadhri and Yamuna Nagar. On that day, he had also gone to Uttar Pradesh for bringing 'ganja' and at present he was standing on the turning of village Dusani along with two kattas (gunny bags) of narcotic substance in wait for some vehicle and if a raid is conducted, he can be apprehended. Report under Section 42 of the NDPS Act was prepared and sent to DSP (Headquarters) Yamuna Nagar. Raid was conducted. The accused was found sitting on the two plastic kattas. On seeing the police party, accused Raja Ram Parshad abruptly stand up and he was apprehended by the Investigating Officer. The Investigating Officer gave him offer as to whether he want to get the search conducted from a Gazetted Officer or a Magistrate and the accused opted for search before a Gazetted Officer. A message was given and DSP (HQ) Ram Chander reached the spot. The Investigating Officer disclosed the facts of the case to him. On instructions from DSP (HQ) Ram Chander, search of the bags possessed by the accused was conducted. Those were found having 'ganja'. On weighment, both the gunny bags were found containing 56kgs.900gms. in total (i.e. 28kgs.200gms in one katta and 28kgs.700gms. in another katta). Two samples of 100 gms. each from each katta were separated and sample parcels and bulk parcels were sealed with the seal of Investigating Officer bearing impression "RP". DSP also affixed his seal bearing impression "RC". The case property was taken into police possession vide recovery memo Ex.P10. Ruqa Ex.P16 was sent to the police station, on the basis of Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -3- which FIR was registered. Accused was arrested. Rough site plan was prepared. Statements of witnesses were recorded. On return to the police station, accused, witnesses and case property was produced before SI Harvinder Singh, SHO, who verified the investigation and also put his seal bearing impression "HS" on all the parcels. Report under Section 57 of the NDPS Act was prepared by the SHO. Case property was deposited with MHC. On the next day, i.e. 27.01.2008, the Investigating Office produced the accused as well as the case property along with sample parcels and seal before the Duty Magistrate, Jagadhri. An application Ex.P5 was filed by the Investigating Officer before the Duty Magistrate for seeking permission to destroy the narcotic substance. Learned Magistrate certified the inventories and thereafter, he deposited the case property, two sample parcels with MHC, Judicial Malkhana and two samples were thereafter sent to the FSL. After necessary investigation challan was presented against the accused-appellant.
On presentation of challan against accused-appellant, copies of challan and other documents were supplied to him under Section 207 Cr.P.C. Finding prima facie case, the accused-appellant was charge-sheeted under Section 20 of the NDPS Act, 1985, to which he pleaded not guilty and claimed trial.
In support of its case, prosecution examined PW-1 ASI Nathi Ram, who mainly deposed regarding recording of FIR on receiving ruqa. PW-2 SI Harvinder Sigh, who was posted at that time as SHO, mainly deposed regarding verifying the investigation and also Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -4- regarding sealing the case property with his seal bearing impression "HS". He also deposed regarding preparing of report under Section 173 Cr.P.C. PW-3 Head Constable Charanjit Singh, is a formal witness, who tendered into evidence his affidavit Ex.P3. PW-4 EHC Subhash Chander, is also a formal witness, who tendered into evidence his affidavit Ex.P4. PW-5 Mrs.Sonika Goel, JMIC, Hisar mainly deposed that case property was produced before her and she passed order under Section 52-A of the NDPS Act. PW-6 DSP (HQ) Ram Chander, who was called on the spot and search was made in his presence, mainly deposed regarding recovery from the accused as per prosecution version. PW-7 EHC Naresh Kumar mainly deposed regarding delivering of Special Report to the Illaqa Magistrate. PW-8 Head Constable Angrej Singh, is the recovery witness, who was with the police party. He also deposed regarding recovery from the accused and deposed as per prosecution version. PW-9 ASI Ram Phal, is the Investigating Officer. He mainly deposed regarding investigation conducted by him in the present case and also regarding recovery from the accused. Learned Public Prosecutor after tendering report of FSL, closed the prosecution evidence.
At the close of prosecution evidence, the accused- appellant was examined under Section 313 Cr.P.C. and he denied the correctness of the evidence and pleaded himself as innocent. He further pleaded that he along with his wife Veena was called in the police station where the previous husband of his wife namely Rajinder Kumar was already sitting. The police pressurized him and his wife to Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -5- compromise with said Rajinder Kumar and asked his wife to accompany Rajinder Kumar and on her refusal to do so, the police falsely implicated him in this case at the instance of Rajinder Kumar.
No witness was examined in defence.
On the basis of the evidence produced by the prosecution, accused-appellant was convicted and sentenced as stated above by the learned Judge, Special Court, Yamuna Nagar at Jagadhri.
At the time of arguments, learned counsel for the appellant argued that no attempt was made to join independent witness in the present case and the statements of police officials regarding recovery cannot be believed. Learned counsel for the appellant further argued that conscious possession of the appellant regarding the narcotic substance also not proved by the prosecution by leading cogent evidence. She next argued that seal was handed over to Head Constable Angrej Singh. There is every chance of tampering with the case property. There is delay of six days in sending the samples, which creates doubt in the prosecution version. Learned counsel for the appellant further argued that Investigating Officer gave application Ex.P5 to the learned Magistrate for destroying the case property and learned Magistrate passed order regarding the same, which learned counsel argued that is not as per law. Learned counsel for the appellant next argued that PWs are discrepant regarding weighing scales. She also pointed out some minor discrepancies in the statements of the witnesses. Learned counsel for the appellant, therefore, argued that there being merit in the appeal, it should be Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -6- allowed and appellant should be acquitted.
On the other hand, learned Addl. Advocate General, Haryana argued that case of the prosecution has been duly proved. Conscious possession has also been duly proved. He further argued that non-joining of independent witness cannot be held fatal to the prosecution case. There is no illegality by handing over seal to other police official. Learned State counsel next argued samples has been sent at the earliest and delay of six days also does not create any doubt nor it shows that any tampering was done. The order passed by the learned Magistrate is as per law and does not create any doubt. He further argued that no material contradictions or material improvement have been pointed out. Learned State counsel, therefore, argued that there being no merit, the appeal should be dismissed.
I have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellant and learned Addl. Advocate General, Haryana for the respondent-State.
From the evidence on record, I do not find any merit in the arguments of learned counsel for the appellants. It is settled law that testimony of police official is as good as of any other witness unless some enmity or motive against the police official is alleged and proved. The police officials are as good as other witnesses. There is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. The Hon'ble Supreme Court in Kashmiri Lal Vs. State of Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -7- Haryana 2013(3) RCR (Crl.) 259 has held as under:-
"9. As far as first submission is concerned, it is evincible from the evidence on record that the police officials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh, 1990(3) R.C.R. (Criminal) 585 : 1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil and another, 2001(1) R.C.R. (Criminal) 56 : 2001 (1) SCC 652 and Ramjee Rai and others v. State of Bihar, 2006(4) R.C.R. (Criminal) 289 : 2006(13) SCC 229. Appreciating the evidence on record on the unveil of the aforesaid principles, we do not perceive any acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and absolutely trustworthy."
In the present case, the accused-appellant has not produced any defence evidence which show any motive or enmity of police officials to falsely implication him. The defence version that he along with his wife Veena was called in the police station and police officials asked Veena to go with her first husband Rajinder Kumar and on her refusal, the accused-appellant has been falsely implicated, cannot be believed. There is nothing on the record as to how the police officials were under the influence of Rajinder Kumar and why they will falsely implicate the accused-appellant. Gulati Vineet
Otherwise also, 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -8- recovery from the accused-appellant is 56 kgs.900gms. of 'ganja'. Such a huge recovery cannot be falsely planted upon the accused- appellant. Otherwise also, in the present case, DSP Ram Chander Gazetted Officer has appeared as a witness and search has been made in his presence. Why he will depose falsely against the accused-appellant. Similar is the case of other police officials as to why they will depose falsely against the accused-appellant.
As regarding delay in sending the samples, no reasonable doubt exists in the prosecution version. There is nothing on the record to show that the samples were tampered with. Formal witnesses have also been examined and have tendered into evidence their affidavits. The Investigating Officer and the other police officials have stated that till the case property remained in their possession, neither they tampered with it nor they allowed anybody to tamper with the same. The FSL report also shows that seals were compared and tallied and were found intact. There is nothing on record to show that the case property was tampered with. Hon'ble Supreme Court in State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Crl.) 196 has held that samples were sent for chemical examination after 4 days; Evidence showed that contraband articles were kept properly and in safe custody; No ground to quash to prosecution on account of delay. Hon'ble Supreme Court in Jarnail Singh Vs. State of Punjab 2011(3) SCC 521 also held that delay in sending the sample of the narcotic to the office of the Chemical Examiner would not be sufficient to conclude that the sample has been tampered with. Therefore, in view Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -9- of the above cited law, no reasonable doubt exists on this ground.
As regarding the argument that seal was handed over to Head Constable Angrej Singh, I find that on this ground also no reasonable doubt exists in the prosecution case. As already discussed, the testimony of police official cannot be disbelieved only due to their official status. There cannot be presumption of distrust on the ground that they are police officials. There is cogent evidence produced on the record to show that case property and samples were kept properly and in safe custody and neither the persons with whom the property remained, tampered with it nor they allowed anybody to tamper with the same. Seals were found intact by the FSL. Therefore, on this ground, no reasonable doubt exists in the prosecution version.
As regarding conscious possession, as per law laid down by the Hon'ble Supreme Court in Megh Singh Vs. State of Punjab 2003(4) R.C.R. (Criminal) 319, wherein it is held that word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Expression 'possession' is a polymorphous term which assumes different colours in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes. In that case, accused was found sitting on gunny bags containing contraband and it was held that accused was in conscious possession. The Hon'ble Supreme Court in Madan lal and another Vs. State of Himachal Pradesh 2003(4) RCR (Crl.) 100, has held as Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -10- under:-
"20. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that all the accused persons were travelling in a vehicle and as noted by the Trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
21. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in chapter IV of the Act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.
22. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
23. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes.
24. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.
25. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power.
26. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Gulati Vineet Caithness (1976 (1) All ER 844 (QBD).2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -11-
27. 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 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."
In view of these above two citations, conscious possession of the appellant is duly proved. There is no explanation from the accused side to explain his possession over the gunny bags. Therefore, this argument of learned counsel for the appellant has also no merit.
As regarding the argument that learned Judicial Magistrate passed the order on the application Ex.P5 to destroy the case property, I find that the order has been passed under Section 52-A of the NDPS Act. On this ground also, no reasonable doubt exists in the prosecution version. Otherwise also, case property is a corroborative piece of evidence and even if it is not produced in the Court, it cannot be held fatal to the prosecution version. The learned Judicial Magistrate has also appeared in this case and has stated that the case property was produced before her. Similarly, as per statement of Investigating Officer, he deposited the case property along with two samples with MHC, Judicial Malkhana and two samples were thereafter sent to the FSL. So, no reasonable doubt exists on this point.
Learned counsel for the appellant cited State of Punjab Vs. Balkar Singh and another, 2004 SCC (Cri) 838. I have gone Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -12- through this citation and I find that this citation having distinguished facts will not apply in the present case as in that case about 100 bags of poppy husk were recovered and accused were found sitting on said bags. The accused-respondents were belonging to different villages and police has not conducted investigation regarding the transportation of poppy husk bags to the place of incident, ownership of the poppy husk etc. which are not the facts in the present case. Learned counsel for the appellant further cited Salyad Mohd. Salyad Umar Salyet Vs. State of Gujarat 1995(2) R.C.R. (Criminal) 388. I have gone through this citation which is regarding Section 50 of the NDPS Act. In the present case, recovery of 'ganja' is from two bags. Section 50 of the NDPS Act applies only in the case of personal search. In this citation cited by learned counsel for the appellant, 'charas' has been recovered from the personal search of the appellant. Therefore, this citation will not apply in the present case.
Learned counsel for the appellant next cited Baldev Singh Vs. State of Punjab 2005(1) R.C.R. (Criminal) 823 on the point of conscious possession. In view of the law laid down by the Hon'ble Supreme Court as discussed above, this citation will also not apply in the present case. Learned counsel for the appellant further cited State of Punjab Vs. Nachhattar Singh @ Bania 2007(3) R.C.R. (Criminal) 1040. I have gone through this citation. This citation having distinguished facts will not apply in the present case, in view the law laid down by the Hon'ble Supreme Court as discussed above regarding handing over seal to the police official and also Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -13- regarding conscious possession.
Learned counsel for the appellant further cited Randhir Singh Vs. State of Haryana 2010(2) RCR (Criminal) 388, regarding non-joining of independent witness. This citation also does will not applying in view the law laid down by the Hon'ble Supreme Court and in view of the discussion above that testimony of police official is as good as of any other witness. Learned counsel for the appellant next cited Angrej Kaur Vs. State of Haryana 2013(1) RCR (Criminal). In view of the law laid down by the Hon'ble Supreme Court, this citation will also not apply. Learned counsel for the appellant further cited State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58. I have gone through this citation. This citation having distinguished facts will not apply in the present case as in that case sample seal was not sent to the laboratory for examination purpose and for comparing with the seal appearing on the samples, which are not the facts of the present case.
From the evidence on record, I find that PWs have consistently deposed regarding the prosecution version and the recovery from the accused-appellant. There are no material improvements or material contradictions in the statements of the PWs which may go to the root of the case. The discrepancy regarding weighing scale etc. is minor in nature and such type of discrepancy is to occur in the statement of truthful witnesses due to gap of time etc. The defence version as stated by the appellant in statement under Section 313 Cr.P.C., cannot be believed. Link evidence is complete. Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -14- There is nothing on the record to show that accused-appellant has been falsely implicated in this case. The prosecution has duly proved its case by leading cogent evidence beyond reasonable doubt.
Therefore, from the above, I find that appellant has been rightly convicted and sentenced and the judgment of conviction and order of sentence passed by learned Judge, Special Court, Yamuna Nagar at Jagadhri are upheld.
The appellant has also filed CRM No.57543 of 2012 under Section 427 Cr.P.C. for concurrent running of sentenced of the appellant convicted and sentenced in two cases. The appeal of the other case is also pending before this Court and arguments in that appeal were also heard along with this appeal. In that case, the occurrence was of 12.10.2005 and that case was decided on 18/19.09.2008 by the learned Presiding Officer, Special Court, Panipat and the appellant was held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 20,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of four months under Section 20 of the NDPS Act, 1985.
In the present case, the occurrence is of 26.01.2008 and this case was decided on 03/06.02.2009 by the learned Judge, Special Court, Yamuna Nagar at Jagadhri and the appellant was held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment Gulati Vineet 2013.07.30 16:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1263-SB of 2009 -15- for a period of one year under Section 20 (C) of the NDPS Act, 1985.
As per Section 427 Cr.P.C., it is the discretion of the Court to pass an order regarding the sentences to run concurrently. Learned counsel for the petitioner/appellant has cited Mohan Bhanudas Mohite Vs. State of Maharashtra 2004(4) R.C.R. (Criminal) 310, in which it is held that court can order concurrent running of sentences where accused is convicted in two different cases under NDPS Act.
In view of the provisions of Section 427 Cr.P.C., this application is allowed and it is ordered that sentences awarded in other appeal i.e. CRA No.S-2146-SB of 2008 and in the present appeal i.e. CRA No.S-1263-SB of 2009 shall run concurrently. It is clarified that default sentences of non-payment of fine will have to be undergone separately and independently, if the fine is not paid.
Resultantly, CRM No.57543 of 2012 stands allowed and CRA No.S-1263-SB of 2009 stands dismissed.
(INDERJIT SINGH)
July 25, 2013 JUDGE
Vgulati
Gulati Vineet
2013.07.30 16:20
I attest to the accuracy and
integrity of this document
Chandigarh