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2003 DIGILAW 1491 (PNJ)

Hakikat Rai v. State of Haryana

2003-10-29

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Hakikat Rai Son of Karan Chand the appellant herein stands convicted under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred to as the Act) and has been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac, in default of payment of fine to further undergo RI for one and a half years. 2. In short the case of the prosecution is that on the basis of secret information received on 6.8.1990 by PW8 Inspector Kuldeep Singh of CIA Staff Kaithal to the effect that the present appellant who indulges in large scale in the sale of opium was keeping substantive quantity of opium in his house and the same can be recovered on raid. Ruqa Ex. PB was sent for registration of formal FIR Ex. PB/2 under Section 18 of the Act against the appellant through Constable Chand Singh. Constable Dharambir was also sent to Deputy Superintendent of Police, Headquarters requesting him to reach at the spot. It is then the case of the prosecution that thereafter Inspector Kuldeep Singh alongwith Sub Inspector Ronki Ram, ASI Rajinder Singh, ASI Zile Singh alongwith other police officials left the CIA staff in his official Jeep for raiding the house of the appellant. The appellant was found present there. By that time PW7 DSP Kartar Singh had also reached there. DSP Kartar Singh had summoned few public men at the spot. PW6 A.K. Sangwan, Excise and Taxation Officer was also summoned by the police. It is then the case of the prosecution that DSP Kartar Singh interrogated the appellant and on interrogation he disclosed that he had kept concealed 10 kgs of opium in the store of his house in Almirah and the same is wrapped in a glazed paper and except him nobody else had the knowledge of it. The appellant further stated that he could get the same recovered. His disclosure statement Ex.PE was recorded which was signed by him and attested by the police officials including A.K. Sangwan ETO. Thereafter the appellant led the police party to the disclosed places and got the opium recovered after opening the Almirah with the key which he was having his pocket. A sample of 250 grams was separated and the remaining bulk was weighted which found to be 9.750 kgs. Thereafter the appellant led the police party to the disclosed places and got the opium recovered after opening the Almirah with the key which he was having his pocket. A sample of 250 grams was separated and the remaining bulk was weighted which found to be 9.750 kgs. Sample and the remaining bulk were separately sealed in the tin box. DSP Kartar Singh put his seal bearing letters KS on the sample and the remaining bulk. The sample seal was prepared and the seal after use was handed over to A.K. Sangwan ETO. The case property was taken into possession vide recovery memo Ex. PE. Other formalities were also done at the spot. The appellant was arrested at the spot. Grounds of arrest were also disclosed to him vide Ex. PG. Special report Ex. PJ was also sent to the Headquarters. Thereafter the case property alongwith sample seals were deposited in the police station with Moharir Head Constable. Chemical report Ex. PA indicates that the sample sent was of opium. 3. After completion of the investigation, the appellant was challaned. 4. The learned trial court charged the appellant under section 17 of the Act. The prosecution in support of its case has examined as many as eight witnesses. There are certain formal witnesses. The main witnesses of the recovery are PW6 A.K. Sangwan ETO, PW7 DSP Kartar Singh and PW8 Inspector Kuldeep Singh. All the witnesses have categorically stated on oath regarding the recovery allegedly made from the appellants house in pursuance of his disclosure statement. 5. The stand taken by the appellant as emerges from his statement recorded under section 313 Criminal Procedure Code is of false implication. He asserts that he was summoned to the police station and his signatures were obtained on 2/3 blank papers forcibly. However, the appellant has not adduced any evidence in defence. 6. After examining the entire evidence, the learned trial court has convicted and sentenced the appellant as indicated above. Aggrieved by the judgment of conviction, he has preferred the present appeal. 7. I have heard Mr. H.S. Gill, learned Senior Advocate for the appellant and Ms. Geeta Mathuria, learned Assistant Advocate General, representing the State of Haryana. With their assistance, I have also gone through the entire record of the case. 8. Aggrieved by the judgment of conviction, he has preferred the present appeal. 7. I have heard Mr. H.S. Gill, learned Senior Advocate for the appellant and Ms. Geeta Mathuria, learned Assistant Advocate General, representing the State of Haryana. With their assistance, I have also gone through the entire record of the case. 8. The first argument advanced by the learned counsel for the appellant is that the case of the prosecution is suffering from basic infirmity as it is not believable on the face of it. He contends that once Inspector Kuldeep Singh had the secret information about the fact that the appellant was allegedly keeping opium in his house, there was no necessity of recording disclosure statement Ex.PE of the appellant in order to effect the recovery. This rather strengthen the defence that the appellant was called at the police station and the opium was planted upon him. 9. The second argument advanced by the learned counsel for the appellant is that there is no compliance of mandatory provisions of section 100(4) of Code of Criminal Procedure. The prosecution agency should have joined some independent witnesses from the nearby places in order to give sanctity to the search and in the present case, a complete go-bye has been given to the said provision. This dents the prosecution case from its core and speaks volumes of false implication of the appellant. In support of his contention, the learned counsel for the appellant has relied upon State of Punjab v. Balwant Singh, 1992(3) All India Criminal Law Reporter 116, Shri Shiv Kumar Ashok Mishra v. Special Judge of N.D.P.S. Court, Mapusa, Goa, 1996 Criminal Law Journal 1454 and Sarabjit Singh alias Sarba v. State of Punjab, 1998(1) RCR(Criminal) 348. 10. The last limb of argument advanced by the learned counsel for the appellant is that case property was not produced before the SHO of the concerned police station for further legal formalities provided under section 55 of the Act and this lacuna coupled with other infirmities can be taken as a ground for rejection of the prosecution case in its entirety. The learned counsel, thus, prays for acquittal. 11. Refuting the arguments advanced by Mr. Gill, the learned State counsel has vehemently argued that there is no reason to disbelieve the prosecution story as it does not suffer from any infirmity. The learned counsel, thus, prays for acquittal. 11. Refuting the arguments advanced by Mr. Gill, the learned State counsel has vehemently argued that there is no reason to disbelieve the prosecution story as it does not suffer from any infirmity. It is then contended that in the present case the recovery has been effected in pursuance of the disclosure statement and that too from the Almirah of the appellant which was locked by him only and thus the conscious possession of the alleged contraband qua the appellant cannot be doubted at all. According to the State counsel, the appellant has no escape and as such his conviction already recorded is liable to be maintained. 12. After hearing the rival contentions of both the sides, I am of the considered view that the conviction as recorded by the trial court for the charge framed against the appellant deserves to be reaffirmed. My reasons for the same are being set out as under :- 13. For the purposes of discussion I have taken all the contentions of learned counsel separately. 14. The secret information is the basis of the registration of the FIR. The case set up by the prosecution is that immediately after the receipt of the secret information, Constable was sent to Deputy Superintendent of Police Headquarters by Inspector Kuldeep Singh to call the senior police official (DSP) at the spot. DSP Kartar Singh PW7 immediately reached the spot. He also summoned PW6 A.K. Sangwan ETO at the spot. Thereafter Kartar Singh DSP interrogated the appellant and during interrogation, the appellant suffered disclosure statement Ex.PE. In my view the secret information was only to the effect that some contraband is kept in the house of the appellant in order to bring the police in action. Thereafter the secret information loses its effect. The moment the police party reached the house of the appellant, he was to be interrogated with regard to the concealment of the contraband (opium) and during interrogation only, he suffered disclosure statement. The argument advanced by the learned counsel for the appellant that the recording of the disclosure statement in this eventuality doubts the recovery, in my view, has to be rejected outrightly as I do not find any flaw in it. 15. The submission regarding non-compliance of provisions of section 100(4) Criminal Procedure Code also has no weight. The argument advanced by the learned counsel for the appellant that the recording of the disclosure statement in this eventuality doubts the recovery, in my view, has to be rejected outrightly as I do not find any flaw in it. 15. The submission regarding non-compliance of provisions of section 100(4) Criminal Procedure Code also has no weight. In the instant case, the recovery is effect in the presence of senior police official (DSP Kartar Singh) and another official of Excise and Taxation Department (Sh. A.K. Sangwan). There is no reason to see their evidence with an eye of suspicion. I have very carefully rescanned the statement of above said two witnesses minutely and do not find any material discrepancy which would adversely affect the case of the prosecution. No doubt A.K. Sangwan ETO has been declared hostile by the State counsel at one juncture when he has stated that before taking into possession the polythene bag, no work was done by the police but in his cross-examination has supported the entire prosecution version. He has stated in his cross- examination that he could not follow the question of Public Prosecutor and for that no writing was done before taking into possession the polythene bag containing contraband. This, to my mind, cannot be said to be any flaw in any respect as to disbelieve the statement of A.K. Sangwan PW6. His evidence is worthy of reliance which gets support from the evidence of PW7 Kartar Singh DSP and PW8 Inspector Kuldeep Singh. 16. No doubt the cross-examination of Kuldeep Singh Investigating Officer of this case shows that he had summoned the public witnesses namely Ram Sarup Sarpanch and Madan Lal and had not initiated any proceedings against the independent witnesses for their non-joining the investigation but in my view this would not be a ground to discard the prosecution case in toto. 10 kgs of opium is a very heavy recovery in itself and it cannot be accepted that the police would falsely implicate anyone for such a heavy recovery especially when no animosity has been shown against any police official. For the sake of repetition I may mention here that the recovery is effected in the presence of DSP who is a senior police official and that too after calling another official of other department (Excise and Taxation Department). For the sake of repetition I may mention here that the recovery is effected in the presence of DSP who is a senior police official and that too after calling another official of other department (Excise and Taxation Department). To my mind, A.K. Sangwan (PW6) can be said to be an independent witness for all the purposes and in this eventuality non-joining of any witness from the village or from nearby placed would not dent prosecution case at all. The argument on this count advanced by the learned counsel for the appellant is also negatived. 17. The provisions of section 100(4) Criminal Procedure Code were also considered by Division Bench of this Court in Karnail Singh v. State of Punjab, 1983 Criminal Law Journal 1281 and it was held that breach of sub- section (4) of Section 100 of Criminal Procedure Code which requires the officer to call two or more independent witnesses and respectable person of the locality to witness the search, would not render the search defective. It was further held that contravention may effect the credibility of the evidence led in, but it does not effect the admissibility of the evidence and the conviction based on such evidence is not liable to be disturbed merely because of non- compliance of the provisions of section 100(4) of Criminal Procedure Code Similarly in Sunder Singh v. State of Uttar Pradesh, AIR 1956 Supreme Court 411, it was held that in case the terms of section 103 of Criminal Procedure Code (now section 100 Criminal Procedure Code) have not been complied with, that would not be an irregularity and would not affect the legality of the proceedings. In the present case as I have already observed that there is no reason to disbelieve the official witnesses and as such even if there is non-compliance of the above said provisions, it would not be a ground to throw the prosecution case. Even otherwise it has been observed by Honble Apex Court in Akmal Ahmad v. State of Delhi, 1999(2) RCC (SC) that it is well settled that the evidence of search or seizure made by the police will not become vitiated solely for the reason that the evidence is not supported by independent witness. 18. The judgments relied upon by the learned counsel for the appellant on the other hand are absolutely distinguishable on facts. 19. 18. The judgments relied upon by the learned counsel for the appellant on the other hand are absolutely distinguishable on facts. 19. The last contention regarding non-compliance of section 55 of the Act also merits rejection. In this context I have once again gone through the statement of PW8 Kuldeep Singh the investigating officer and the affidavit Ex. PC tendered by Head Constable Sham Sunder working as Moharrir Head Constable on 16.8.1990. This witness had stepped into witness box. He was not cross- examined regarding his affidavit. The affidavit indicates that Inspector Kuldeep Singh had deposited with him the case property as well as sample of the seal used in a sealed condition. The requirement of law is that article seized should be forwarded without unnecessary delay to the officer incharge of the nearest police station and the same shall be kept in safe custody. The cross-examination of PW1 Udey Shankar Station House Officer of Police Station City Kaithal shows that he was not present in the police station on 6.8.1990 as he had left the police station at 7 AM in connection with the patrolling duty and had come back on the same days at 11.30 PM. He also made it clear that he had not deputed any police official as Station House Officer in his absence. In these circumstances, I feel that even if the compliance of section 55 of the Act is not done strictly as per the requirement of the Act, it would not damage the case of the prosecution. Even otherwise the provisions contained in section 55 of the Act are directory in nature and the non-compliance thereof cannot uproot the case of the prosecution unless any prejudice is caused. The learned counsel for the appellant has not been able to show as to whether on account of so called non-compliance, any prejudice has been caused to the appellant especially when no question was put to Head Constable Sham Sunder PW4 when his affidavit Ex. PC was tendered. In my view it is a hyper-technical objection and has no adverse effect on the present case. 20. The recovery is effected from the Almirah of the appellant which was in the exclusive possession of the appellant. PC was tendered. In my view it is a hyper-technical objection and has no adverse effect on the present case. 20. The recovery is effected from the Almirah of the appellant which was in the exclusive possession of the appellant. There is overwhelming evidence to the effect that after suffering the disclosure statement the appellant led the police party to the Almirah and opened the same with the keys which he was having in his pocket. There cannot be any better evidence than this indicating that the contraband allegedly recovered from the appellant was in fact in his exclusive possession unknown to any one. In my view, the appellant has no escape from his liability. The prosecution has been able to bring home the guilt to the appellant beyond any reasonable doubt. He has been rightly convicted by the learned trial court for the charge of keeping 10 kgs of opium without any permit or licence punishable under Section 17 of the Act. 21. No other point has been urged before my be either side. 22. Resultantly, the present appeal is dismissed being devoid of any merit. 23. Let intimation of judgment be sent to the trial court and other concerned authorities for taking necessary steps to take the appellant in custody to serve out his remaining part of substantive sentence. Appeal dismissed.