CRIMINAL APPEAL 596 on 25 February 1997

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Cr. A. No. 596-DB of 2001 Date of decision : 28-01-2011

Mohan Singh and another

… Appellants

Versus.

State of Punjab

… Respondent

CORAM:- HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE ARVIND KUMAR

Present: Mr. K.S.Sidhu, Sr. Advocate, with Mr. Gurtej Singh Benipal, Advocate, for the appellants in Criminal Appeal No. 464-DB of 2001

Mr. A.K.Walia, Advocate, for the appellants in Criminal Appeals No. 1071-SB of 2001 and 596-DB of 2001

Mr. D.S.Brar, DAG Punjab …

ARVIND KUMAR, J:

This shall dispose of three criminal appeals, i.e. Crl. A. Nos.596-DB of 2001 preferred by accused-appellants, namely, Mohan Singh andBhupinder Singh, Criminal Appeal No. 464-DB of 2001 preferred byaccused-appellants, namely, Pargat Singh and Joginder Singh whileCriminal Appeal No. 1071-SB of 2001 has been filed by accused JoginderSingh for setting aside the order confiscating his truck bearing registrationNo. DIG-8389.

The two appeals, namely, Criminal Appeals No. 596-DB of2001 and 464-DB of 2001 are directed against judgment and order dated9.8.2001 passed by the Judge, Special Court, Patiala, whereby in case FIRNo. 22 dated 25.2.1997 registered under Section 15 of the Narcotic Drugs

and Psychotropic Substances Act,1985 (in short the Act) at Police StationPatran, the appellants-accused have been convicted under Section 15 of theAct ibid and sentenced to undergo rigorous imprisonment for 11 years eachand to pay a fine of Rs. 1 lac each and in default of payment of fine, tofurther undergo RI for six months each. As regards the third appeal,namely, Criminal Appeal No. 1071-SB of 2001, has been filed by accusedJoginder Singh for setting aside that part of the judgment dated 9.8.2001whereby his truck bearing registration No. DIG-8389 has been ordered to beconfiscated.

In brief, the case of the prosecution is that on the nightintervening 24/25.2.1997, a police party consisting of Sub InspectorMohinder Singh and other police officials, under the supervision of DSPGajjan Singh, was present on the Patran-Shatrana bridge of Bhakra canal inthe area of village Shatrana, in connection with night domination. At about1 A.M, a truck was noticed by them coming from the Patran side. It wassignalled to stop but its driver instead of stopping it, drove the same at a fastspeed towards village Shatrana after crossing the bridge. At last, the policeparty succeeded in stopping the truck. After the driver of the truck got downfrom the truck, the police searched the truck and on its back side, some bagswere found loaded on which three persons were sitting; out of whom, twopersons taking the advantage of darkness, succeeded in making good theirescape and only the third person could be apprehended while sitting on thetruck. On asking, he disclosed his name as Bhupinder Singh while the driverdisclosed his name as Mohan Singh. On investigation, Bhupinder Singhdisclosed the names of two persons who ran away, as Pargat Singh andJoginder Singh. In the meantime, DSP Gajjan Singh also arrived at the spot.After disclosing his identity to the accused, he asked the accused whetherthey wanted their search to be conducted in the presence of other gazettedofficer or a Magistrate but the accused reposed faith in him and therefore,under his supervision, the truck was searched by SI Mohinder Singh uponwhich, 23 bags of poppy husk were recovered. From each bag, two samplesof 250 grams of poppy husk was taken out while the remaining poppy huskin each bag, on weighment, was found to be containing 34 kgs 500 grams.Thereafter, all the 46 samples and the 23 bags were sealed by the DSP withhis seal ‘GS’. Thereafter, the present case came to be registered against the

accused. Later, accused Pargat Singh was arrested on 30.3.1997 whileaccused Joginder Singh was arrested on 6.10.1997. On completion ofinvestigation and certain formalities, the accused were challaned underSection 15 of the Act whereafter charge under the said section was framedby the trial Court to which they pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined PW-1 ASITarsem Lal, PW-2 MHC Swaranjit Singh, PW-3 Constable Ram Dia, PW-4Constable Jaspal Singh, PW-5 DSP Gajjan Singh and PW-6 SI MohinderSingh and after tendering into evidence the report, Exhibit PM, of theForensic Science Laboratory, closed its evidence.

Thereafter, the statement of the accused under Section 313Cr.P.C. was recorded by putting them incriminating evidence qua them towhich they pleaded innocence and false implication. Accused Mohan Singhtook up the plea that he was arrested by the police 4/5 days prior to thealleged recovery and that the truck did not belong to him and while he wasin custody of the police, the present case has been registered against himfalsely. Accused Bhupinder Singh took up a plea almost similar to the onetaken by accused Mohan Singh. Accused Joginder Singh and Pargat Singhtook up the plea that they had been falsely implicated in the case due toparty faction in the village and on suspicion basis. However, they did notlead evidence in defence and closed the same.

The learned Judge, Special Court, Patiala, upon appreciation ofevidence adduced on record, vide the impugned judgment and order held theaccused-appellants guilty and convicted and sentenced them in the mannerindicated above. Hence, the present appeals.

We have heard learned counsel for the parties.

Counsel for the appellants has alleged contravention of Section50 of the Act ibid. The provisions of Section 50 of the Act are to beinvoked when recovery is to be effected from the personal search of theaccused. Further, in the instant case, recovery has been made from thevehicle and not from personal search of the accused and as such, theprovisions of Section 50 are not attracted. However, the argument of thelearned counsel for the appellants is that the accused-appellants were alsopersonally searched and in that situation, it was obligatory upon theinvestigating Agency to observe the provisions of Section 50 ibid.

Reference has been made to a judgment of the Hon'ble Supreme Court inDilip and another v. State of M.P. 2007(1) RCR(Criminal) 586(SC).There is no dispute to the proposition of law that before search of thecontraband from the vehicle, if the personal search of the appellants hadbeen carried out, in that situation Section 50 gets attracted. However, thesaid position does not exist in the present case. In the instant case, it isevident from the statement of PW-6 that first search and seizure waseffected and subsequently after effecting recovery and preparation ofdocuments, i.e. rough site plan etc., the personal search of the accused-appellants was conducted. This personal search was in the way ofJamatalashi. In the present case, it is not the case that before search andseizure, personal search was conducted to attract Section 50 of the Act andas such, the judgment in Dilip's case(supra) has no application to thecircumstances of the present case. Thus, since the personal search wasconducted after search and seizure, Section 50 does not get attracted.

Counsel for the appellants has argued that no independentwitness had been joined at the time of search and seizure despite the factthat it has been admitted by PW-5 DSP Gajjan Singh that some pedestrianswere passing from there at that time. The contention is meritless. There is nodispute that the recovery was not made in the presence of an independentwitness and thus, no such witness could be examined but to our mind, non-examination of an independent witness cannot be taken as a ground todiscard the case of the prosecution in its entirety if it is otherwise proved. Inthese circumstances, it could not be said that the conduct of theInvestigating Officer was blame-worthy. In Appa Bai and another v. Stateof Gujarat AIR 1988 SC 696, it was held by the Hon’ble Supreme Courtthat the civilized people are generally insensitive when a crime iscommitted, even in their presence, and they withdraw from the victim’sside, and from the side of the vigilant. They keep themselves away from theCourts, unless it is inevitable. Moreover, they think the crime like a disputebetween two individuals, and do not involve themselves in it. In AkmalAhmed v. State of Delhi 1999(2) RCR(Criminal) 265 (SC), it was heldthat it is now well settled that the evidence of search and seizure made bythe police will not become vitiated solely for the reason that the same wasnot supported by an independent witness. In State Govt. of NCT Delhi v.

Sunil 2001(1) RCR(Criminal) 56, it was held by the Hon’ble SupremeCourt as under:- “ It is an archaic notion that actions of the Police officer,should be approached with initial distrust. It is time now tostart placing at least initial trust on the actions and thedocuments made by the Police. At any rate, the Court cannotstart with the presumption that the police records areuntrustworthy. As a proposition of law, the presumptionshould be the other way round. The official acts of the Policehave been regularly performed is a wise principle ofpresumption and recognized even by the Legislature.”

It has been held by the Hon’ble Supreme Court in Balbir Kaur v. State ofPunjab, 2009(3) RCR(Criminal) 580(SC) that in absence of anindependent witness, it cannot be said that the search and recovery are inany manner vitiated. In State of Punjab v. Surjit Kaur and another, 2009(3) RCR(Criminal) 117(SC), the Hon’ble Supreme Court has held that theHigh Court had fallen in error in holding that the prosecution versionbecome vulnerable due to non-examination of any person who is not anofficial witness. Therefore, there is no principle of law that withoutcorroboration by an independent witness, testimony of official witness(es)cannot be relied upon. The testimony of the official witnesses should betreated in the same manner as the testimony of any other witness. Thepresumption that a person acts honestly applies as much in favour of apolice personnel as of other persons and it is not a proper judicial approachto distrust and suspect them without good grounds. The Court at the most isrequired to scan the official witness with more care and caution. The presentcase mainly rests upon the statements of PW-5 DSP Gajjan Singh and PW-6SI Mohinder Singh. Said DSP Gajjan Singh was present throughout theentire proceedings in relation to search and seizure. The statements of boththe witnesses are consistent on material particulars. Thus, the statements ofthe official witnesses which includes a gazetted officer, being not sufferingfrom any infirmity cannot be discarded simply on the ground that theindependent witness was not associated.

Counsel for the appellants has further contended that there is a

delay of 10 days in sending the sample to the Laboratory and no explanationby the prosecution for such delay caused in this respect is forthcoming. Thiscontention is also meritless. This would not dent the case of the prosecutionat all. The delay is very common and the accused has to show prejudicecause to him in this regard, whichn is missing. The Hon’ble Supreme Courtin State of Orissa v. Kanduri Sahoo, (2004) 1 Supreme Court Cases 337,has held that mere delay in sending the sample to the Laboratory is not fatalwhere there is evidence that the seized articles were kept in proper and safecustody. The report of the Asstt. Chemical Examiner, Exhibit PM, asdiscussed above, does not suggest that the samples were not intact. Theappellants never challenged the report of the Chemical Examiner nor anyapplication was moved for examination of the Chemical Examiner as awitness. In similar situation, in Ashok Kumar v. State of Haryana, (2000)2 Supreme Court Cases 592, wherein faint seals on the packets wereproduced in Court and in absence of any challenge to the report of theChemical Analyst and not summoning him as a witness, it was held that thedoubts raised by the accused as to whether samples were the same asexamined by the Chemical Examiner, were found not sustainable. InHardip Singh v. State of Punjab, 2008(4) RCR(Criminal) 97, samples ofopium were sent to the Chemical Examiner after 40 days and the seals wereintact and it was held that the delay of 40 days in sending the sample to theLaboratory did not and could not have caused any prejudice to the appellant.In this regard, reference can also be made to judgment rendered by theHon’ble Supreme Court in Balbir Kaur v. State of Punjab 2009(3) RCR(Criminal) 580(SC).

Counsel for the appellants has also argued that the documentswhich are prepared at the spot contain the FIR number, which shows thatthe search and seizure had not been effected as projected by the prosecution.This contention is also meritless. The trial Court has dealt with thiscontention in para 18 of its judgment while observing that the FIR numberwas written after the receipt of the FIR on all the documents and there isnothing on record to prove that the FIR number was mentioned at the timeof preparation of the documents. A close look to the memos prepared , i.e.recovery memo, arrest memo, recovery memo of truck, rough site plan etc.indicates that these memos were prepared prior to the registration of the FIR

as the place where FIR number is to be mentioned, was kept blank andsubsequently, FIR No. 22 has been duly added, i.e. after the registration ofthe case.

In the back-drop of these facts, the participation of accused,Mohan Singh and Bhupinder Singh, appellants in Criminal Appeal No.596-DB of 2001, stands proved and as such, they have rightly beenconvicted and sentenced by the trial Court.

However, as regards, accused Pargat Singh and JoginderSingh, appellants in Criminal Appeal No. 464-DB of 2001, theirparticipation in the offence looks to be suspicious, for variety of reasons.Firstly, their identity has not been proved since admittedly no testidentification parade was held. There had been no disclosure statement ofBhupinder Singh with regard to identity of Pargat Singh and Joginder Singhand even if it had been, it would have been inadmissible. PW-6 SIMohinder Singh has also admitted that he could not lay his hands at anydocument from which the particulars of the accused Pargat Singh andJoginder Singh could be known. PW-3 Constable Ram Dia has identifiedboth Pargat Singh and Joginder Singh. There are no special reasons for himto have known both these appellants. He admits in his cross-examinationthat he is neither related to these two accused nor studied nor has anycommon business with them nor had he appeared as a witness against themin any other case. Secondly, had Constable Ram Dia known both PargatSingh and Joginder Singh, then when PW-5 DSP Gajjan Singh had arrivedat the spot, he would have also come to know about the two arrested personson the basis of information of constable Ram Dia but he (DSP Gajjan Singh)has stated that at that time it did not come to his knowledge that who werethe accused and the whereabout of the accused who had escaped and evenlater on, he also did not come to know the names of the accused who hadescaped. This indicates that PW-3 constable Ram Dia never proclaimed tohave known accused Pargat Singh and Joginder Singh, otherwise asdiscussed above, it would have certainly come to the knowledge of PW-5DSP Gajjan Singh. In view of this, the identity of both Pargat Singh andJoginder Singh is not established and therefore, they deserve acquittal.

Consequently, Criminal appeal No. 596-DB of 2001 quaappellants Mohan Singh and Bhupinder Singh is dismissed.

As regards Criminal Appeal No. 464-DB of 2001 quaappellants Pargat Singh and Joginder Singh respectively, the same is herebyallowed and they stand acquitted of the charges. They be set at libertyforthwith if not required in any other case. Their bail bonds shall also standdischarged.

As regards Criminal Appeal No. 1071-SB of 2001 preferred byaccused-appellant Joginder Singh, the same stands disposed of with theobservation that the appellant, if so advised, may seek his remedy aspermissible under the law.

( HEMANT GUPTA

JUDGE

( ARVIND KUMAR ) JUDGE

January 28, 2011JS