Punjab-Haryana High Court
Harpinder Singh Son Of Baldev Singh vs The State Of Punjab on 3 October, 2008
Crl. Appeal No.1796-SB of 2008
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.1796-SB of 2008
Date of Decision:October 03, 2008
Harpinder Singh son of Baldev Singh, resident of H. No. 83,
Ranjit Pura, Gali Comrade Wali, Ekta Bhawan,
Chhehartta, Amritsar.
.... Appellant
Versus
The State of Punjab
.... Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Harchand Singh Baath, Advocate
for the appellant.
Mr. S.S. Bhullar, DAG, Punjab
for the respondent.
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Sham Sunder, J.
This appeal is directed against the judgment of conviction and the order of sentence dated 22.09.2008, rendered by the Judge, Special Court, Amritsar, vide which she convicted the accused (now appellant), for the offence, punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period Crl. Appeal No.1796-SB of 2008
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of 2-1/2 months and to pay a fine of Rs.1000/-, in default of payment of fine to undergo further rigorous imprisonment, for a period of 15 days, for having been found in possession of 25 grams smack, which falls within the ambit of non-commercial quantity.
2. The facts, in brief, are that on 30.05.2006, Sub Inspector Gurnam Singh along with other police officials was going towards byepass from village Ghanupur, in connection with patrol and checking of vagabonds and when they reached at a small distance from the byepass, a person was seen coming on foot, who on seeing the police party, became perplexed and tried to turn back. He was apprehended. On enquiry, he disclosed his name as Harpinder Singh son of Baldev Singh. On search, in accordance with the provisions of law, 25 grams smack was recovered from the right side pocket of the pant, worn by him. Two samples of 5 grams of smack, were taken out, from the recovered contraband. Thereafter, the samples were put into small plastic boxes, and the remaining smack, was kept in the small plastic container. The plastic box, and the samples, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the FIR was recorded. The site plan was prepared. The accused was arrested. The statements of the Crl. Appeal No.1796-SB of 2008
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witnesses were recorded. After the completion of investigation, the accused was challaned.
3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 21 of the Act, was framed against the accused, to which he pleaded not guilty and claimed judicial trial.
4. The prosecution, in support of its case, examined Sakattar Singh, Inspector , (PW-1), Gurnam Singh, C., ( PW-2 ), Gurnam Singh, ASI, ( PW-3 ), and Avtar Singh, HC ( retired ), ( PW-4). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence, and pleaded false implication. He, however, did not adduce any evidence, in his defence.
6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.
7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant.
Crl. Appeal No.1796-SB of 2008
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8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellant, at the very outset, submitted that no valid offer, in terms of Section 50 of the Act, was given to the appellant, though the alleged recovery was effected from the search of the body of the accused, and, as such, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Gurnam Singh, ASI, PW-3, in clear cut terms stated that he was having a suspicion that he( accused ) was in possession of some contraband and the search of his person was to be conducted. It is further evident from his statement that an offer in writing Ex.PC, was given to the accused as to whether, he wanted the search of his person, to be conducted, in the presence of a Gazetted Officer or a Magistrate. The option was to be exercised by the accused. The accused exercised the option that he wanted his search, to be conducted, by Gurnam Singh, ASI. Under these circumstances, it could not be said that no valid offer was given to the accused, as to whether, he wanted his search to be conducted, in the presence of a Gazetted Officer or a Magistrate. The Investigating Officer, fully complied with the mandatory provisions of Section 50 of the Crl. Appeal No.1796-SB of 2008
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Act. In these circumstances, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
10. It was next submitted by the Counsel for the appellant, that no independent witness, was joined at the time of effecting the alleged recovery, despite availability. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There was no secret information, against the accused that he was coming with a contraband in his possession. The police party was on patrol duty, and all of a sudden the accused came and was apprehended. On search, he was found to be in possession of 25 grams smack. There is no evidence, on record, to establish that any independent witness was present, at the time of effecting the search and seizure. Even then, it is evident from the statement of Gurnam Singh, ASI (PW-3 ) that he tried to join an independent witness, but none was ready to join the police party. It means that a genuine effort was made by the Investigating Officer, to join an independent witness, but he failed. It is a matter of common experience, that independent witnesses, hardly come forward, to join a search and seizure, with a view to avoid wrath of the accused, and complications, which may arise, on account of their appearance, in the Court, for evidence, from time to time. If Crl. Appeal No.1796-SB of 2008
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despite efforts, having been made by the Investigating Officer, he was not successful, in joining an independent witness, then his conduct could not be said to be blame- worthy. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled that the evidence of search or seizure, made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:-
"It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature."
10-A. In Appa Bai and another Vs. State of Gujrat, AIR 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 the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is Crl. Appeal No.1796-SB of 2008
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committed, even in their presence, and they withdraw from the victims' 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 aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part to falsely implicate the accused, no doubt, is cast on the prosecution story. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
11. Last of all, the Counsel for the appellant, submitted that very minor recovery of smack was effected from the accused. He further submitted that the sentence awarded to the accused, was excessive. He further submitted that the accused has already undergone about two months of sentence. He further submitted that the substantive sentence awarded to the appellant be reduced. There is some merit, in the submission of the Counsel for the appellant, in this regard. The appellant has been facing the criminal proceedings, since 30.05.2006 i.e. for more than two years. The recovery effected Crl. Appeal No.1796-SB of 2008
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from the accused, falls within the purview of non-commercial quantity. It is, therefore, a fit case, in which some concession in regard to the reduction of substantive sentence, should be granted to the accused. The substantive sentence awarded to the appellant, deserves to be reduced to 2 months from 2-1/2 months.
12. No other point, was urged, by the Counsel for the appellant.
13. For the reasons recorded, hereinbefore, the appeal is partly accepted. The judgment of conviction is maintained. The order of sentence, dated 22.09.2008, is modified, in the manner, that the substantive sentence awarded to the appellant, is reduced from RI 2-1/2 months, to RI for 2 months. However, the sentence of fine, imposed upon the accused/appellant and, in default of payment of fine, shall remain intact. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, forthwith, from the date of receipt of a certified copy of the same, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit report, regarding due compliance, immediately, thereafter.
03.10.2008. (SHAM SUNDER) dinesh JUDGE