Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 204 (PNJ)

Ajmer Singh v. State of Punjab

2003-02-04

R.L.ANAND, VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Ajmer Singh son of Gurnam Singh has preferred this appeal against the judgment dated 17.8.2001 passed by Special Judge, Faridkot whereby he stands convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as the Act). The appellant has been sentenced to undergo RI for ten years and six months and to pay a fine of Rs. 1 lac and in default of payment of fine to further undergo RI for two years. 2. The recovery allegedly made from the appellant is of 14 kgs of opium which he was carrying on 28.9.97 without any licence or permit. 3. In short, the prosecution case is that on 28.9.97, SI Jasbir Singh PW4, alongwith ASI Gurcharan Singh, ASI Surjit Singh PW2, Head Constable Sarabjit Singh and other police officials went to Badhni for patrolling and for search of suspected persons. These officials were under the supervision of Inspector Gurmail Singh of CIA staff Moga. Harjoginder Singh son of Munsha Singh resident of Badhni Kalan an independent person was joined in the police party from Bus Stand Badhni Kalan and the police party after patrolling different villages was returning to Badhni along the bank of the canal and when they reached at a distance of about half kilometre short of bridge of canal on Barnala Moga road, at about 6 P.M. two persons were seen coming from the opposite direction. Both of them were carrying plastic Cans in their right hands. The police party directed them to stop but they tried to slip towards the pits. Both of them were encircled by the police party. The present appellant was apprehended by SI Jasbir Singh PW4 and the other person namely Sukhdev Singh was apprehended by Inspector Gurmail Singh. SI Jasbir Singh thereafter told the appellant that he had suspicion and that the appellant was carrying some intoxicant in the Can and his search was to be conducted. The appellant ws further told by SI Jasbir Singh that the search could be conducted in the presence of a gazetted officer or Magistrate. A consent memo Ex. PA in this respect was prepared at the spot which was allegedly signed by the appellant and attested by ASI Surjit Singh PW2 and Harjoginder Singh independent witness. The appellant ws further told by SI Jasbir Singh that the search could be conducted in the presence of a gazetted officer or Magistrate. A consent memo Ex. PA in this respect was prepared at the spot which was allegedly signed by the appellant and attested by ASI Surjit Singh PW2 and Harjoginder Singh independent witness. A wireless message was sent to Superintendent of Police (D) informing him that two persons in suspicious circumstances have been held by the police and the search was to be conducted in his presence. Bachan Singh Randhawa, S.P. (D) PW3 reached the spot immediately and he disclosed his identity to the appellant apprising him that he was a gazetted officer. On his directions, SI Jasbir Singh PW4 conducted search of the appellant and the opium wrapped in a glazed paper was recovered from his Can which the appellant was carrying in his hand. It was weighed and came to be 14 kgs. 20 grams of opium was taken out as sample and was put in a Dabbi plastic. A parcel was prepared in this respect. The remainder weighing 13 kgs 980 grams was put in the same Can which the appellant was carrying. In this respect a parcel was made and sealed with seal of SI Jasbir Singh bearing letters JS and of Superintendent of Police (D) bearing letters BSR. SI Jasbir Singh thereafter handed over the seal to Harjoginder Singh after use and Superintendent of Police (D) Bachan Singh Randhawa kept his seal with him. The Can is Ex. P2. Sample seal Ex. P1 was also prepared. The case property was consequently taken into possession and the recovery memo in this respect Ex. PB was attested by ASI Surjit Singh PW2, Harjoginder Singh and Bachan Singh Randhawa, S.P. (D) PWs. A sum of Rs. 255/- were also recovered in the search of the appellant. A ruqa Ex. PE was sent to the police station on the basis of which formal FIR Ex. PE/1 was recorded. Rough site plan was also prepared at the spot. Statements of the witnesses were also recorded at the spot. The appellant was disclosed the grounds of his arrest vide memo Ex. PD signed by him and attested by police officials and independent witness Harjoinder Singh. PE/1 was recorded. Rough site plan was also prepared at the spot. Statements of the witnesses were also recorded at the spot. The appellant was disclosed the grounds of his arrest vide memo Ex. PD signed by him and attested by police officials and independent witness Harjoinder Singh. SI/SHO Jagjit Singh PW5 verified the investigation when SI Jasbir Singh PW4 had produced the appellant in the police station Badhni Kalan alongwith the case property. SHO Jagjit Singh also affixed his seal on the sample and the Can bearing letters JS and retained the case property with him by taking the same into possession vide Ex. PG attested by Jasbir Singh SI and ASI Surjit Singh. Special report Ex. PA in this regard was sent to the concerned Superintendent of Police (D) on the next date i.e. 29.9.97. SI/SHO Jagjit Singh PW5 produced the appellant and the case property before the Judicial Magistrate Ist Class, Moga with an application Ex. PH regarding obtaining orders for the deposit of the case property and after the orders of the concerned Magistrate Ex. PH/1, the case property was deposited with Moharar Head Constable Kuldeep Kumar (Affidavit Ex. PK tendered in this respect) with all the seals intact. The sample and the seal impression were sent to Forensic Science Laboratory, Punjab Chandigarh for analysis and after the receipt of the report of the Chemical Examiner, Ex. PJ, the contents indicated the presence of Meconic acid and Morphine (percentage of morphine is 3.48%) which are substantive elements of opium. The appellant, thus, in this case was brooked. 4. The trial Court charged the appellant under section 18 of the Act. The prosecution in order to prove its case against the appellant has examined HC Dalwinder Singh as PW1. He received special report Ex. PA on 29.9.97 and produced the same before Bachan Singh Randhawa, Superintendent of Police (D) Moga. PW2 is ASI Surjit Singh. He is a witness to the recovery. Bachan Singh Randhawa, Superintendent of Police (D) has been produced as PW3 in whose presence the recovery was effected at the spot. SI Jasbir Singh has been examined as PW4. He is also one of the witnesses of the recovery. He had also investigated the case. PW2 is ASI Surjit Singh. He is a witness to the recovery. Bachan Singh Randhawa, Superintendent of Police (D) has been produced as PW3 in whose presence the recovery was effected at the spot. SI Jasbir Singh has been examined as PW4. He is also one of the witnesses of the recovery. He had also investigated the case. SI/SHO Jagjit Singh has been examined as PW5 before whom the appellant alongwith the case property was produced by SI Jasbir Singh PW4 and thereafter Jagjit Singh SI/SHO had affixed the seal on the sample and the remainder with his own seal. Kuldeep Kumar PW6 had tendered his affidavit Ex. PK in evidence. He is Moharar Head Constable with whom the case property was deposited. HC Jaspal Singh has been examined as PW7. He has also tendered his affidavit Ex. P1 to the effect that on 6.10.97, MHC Kuldeep Kumar had handed over to him a parcel containing 20 grams of sample opium duly sealed alongwith the specimen seal for depositing the same in the office of Director, FSL, Chandigarh. He has further asserted in the affidavit that the sample was delivered to the Director, FSL and no one had tampered with it. 5. The stand of the appellant as emerges from his statement under section 313 of Criminal Procedure Code is of total denial. He pleaded that nothing was recovered from him and he has been falsely implicated in this case because his father was involved in the murder of father of Bhola Singh of village Pheru Raj and said Bhola Singh was close friend of Superintendent of Police (D) and as such at the instance of S.P. (D) Moga he was brought from his village in the presence of respectables on 26.9.97 and was kept in illegal custody and on 29.9.97, falsely involved in this case. The appellant also produced two witnesses. Karnail Singh was produced as DW1 to the effect that the appellant was taken by the police officials and when he had gone to the CIA Staff Moga to inquire about him, the police had told him that the appellant would be let off after some interrogation. Harjoginder Singh son of Musha Singh who was initially the witness of the prosecution was produced as DW2. Harjoginder Singh son of Musha Singh who was initially the witness of the prosecution was produced as DW2. His evidence is that no recovery of opium was effected from the appellant in his presence and that he had signed certain blank papers because he was asked to do the same. It may be noticed that this witness was given up by the prosecution as having been won over. 6. On consideration of entire evidence, the trial court has convicted and sentenced the appellant as indicated above. Hence this appeal. 7. We have heard Mr. R.K. Gupta, learned counsel for the appellant and Mr. G.S. Gill, learned Senior Deputy Advocate General, Punjab. With their assistance we have also gone through the entire records. 8. To start with the submissions, learned counsel for the appellant has strenuously submitted before us that the report Ex. PJ of the Forensic Science Laboratory is incomplete and from it one cannot concludes to whether the material which was sent to the Chemical Examiner as sample for analysis was infact opium poppy or not. Advancing his arguments on this count, it is then submitted that may be the percentage of the morphine in the substance of the analysis is more than 2.0% or that it talks of meconic acid but until and unless, the report indicates that substance received in the Laboratory was infact the coagulated juice of the opium poppy or any mixture of the coagulated juice of the opium poppy it cannot be termed as opium. It is, thus contended that once the species of the plant is missing in the report, the substance which was sent to the analyst would not be taken as opium according to the Act. In this context the learned counsel has drawn our attention to section 2(xv) and (xvii) of the Act relating to the definition of opium. Mr. Gupta, learned counsel further contended that the morphine is also produced synthetically and it is used in so many medicines and simply that sample indicates the presence of morphine to some extent, this by itself would not be enough to arrive at the conclusion that the content sent was infact opium. He has also drawn our attention to Head 77 of the Table prepared under sub- clauses (viia) and (xxiiia) of section 2 of the Act covering the commercial small quantity and commercial quantity. He has also drawn our attention to Head 77 of the Table prepared under sub- clauses (viia) and (xxiiia) of section 2 of the Act covering the commercial small quantity and commercial quantity. In Head 77 the small quantity is described as 5 grams whereas the commercial quantity is indicated as 250 grams. Mr. Gupta very intelligently contended that as content of the morphine in the material sent for analysis shows 3.48% morphine it would fall under the head small quantity in case it is not to be taken as opium. The learned counsel, thus argued for the acquittal of the appellant on this count alone. 9. However, colouring his arguments, on other aspects as well, the learned counsel for the appellant has submitted that the Chemical Examiner in this case is not the designated Chemical Examiner according to then rules and therefore, the report of the Chemical Examiner is no report in the eyes of law. The next contention raised by the learned counsel for the appellant is that the sample in this case has not been drawn according to the instructions/standing order of the Government of India issued on 13.6.89. According to Mr. Gupta, the sample was to be taken in duplicate and that the quantity should have been of 24 grams in each case but in the present case the quantity taken is 20 grams only. It is further contended that before extracting the sample, the Investigating Officer should have made the whole of the contraband homogeneous which is not done in the present case. 10. The other contention made by the learned counsel for the appellant is that prosecution case is suffering from another basic lacuna. Harjoginder Singh who according to the prosecution was an independent witness and had joined the police party at the time of the alleged recovery in so much so that he had signed certain papers at the spot did not come forward to support the case of the prosecution and instead, he supported the defence as DW1 stating therein that no recovery was effected in his presence and that he was asked to sign certain blank papers. Picking up the thread Mr. Picking up the thread Mr. Gupta contended that infact Harjoginder Singh, the independent witness was infact from the police departments as retired official and the Investigating Officer went to the extent of saying that he did not know that the witness was from their department. This material concealment on the part of the Investigating Officer touches the core of the case and speaks volumes of false implication of the appellant in this case. In this context, the learned counsel for the appellant has taken us through the statement of Investigating Officer. 11. The learned counsel has also pointed out certain infirmities in the case of prosecution so far as seals are concerned. According to Mr. Gupta, PW4 SI Jasbir Singh was stated that three seals were affixed on the samples seal slip when the sample was sent to the Chemical Examiner. He has taken us through the cross-examination of this witness which is on page 117 of the paper book. The learned counsel for this wants to develop that once the seals were affixed on the sample seal slip at the time of sending the sample to the Chemical Examiner, chances of tempering with the sample cannot be ruled out. 12. Mr. Gupta further contends that provisions of section 52 of the Act are not complied within this case. 13. Learned counsel has made an endeavour to pin-point certain discrepancies in the statements of official witnesses. He has taken us through the statement of ASI Surjit Singh PW2 on page 97 of the paper book where this witness has stated that weights and scale were brought by Pargat Singh from village Badhni Kalan and had returned after 15/20 minutes. He contends, that once the recovery was effected inasmuch as the opium was also weighed before the ruqa was sent, then how Pargat Singh had gone at 7.30 PM to bring the weights and scale. Similarly he has also read out the statement of this witness to the effect that he has stated that 14 Kgs of opium was weighed in one stretch with the hand balance scale. Similarly he has also read out the statement of this witness to the effect that he has stated that 14 Kgs of opium was weighed in one stretch with the hand balance scale. The learned counsel wants to create a doubt by saying that 14 Kgs could not be weighed by one stretch by hand balance scale and since this witness has given evasive replies, this fact in itself indicates that ASI Surjit Singh PW2 was not there at the spot and everything was done in the police station itself. 14. Mr. Gupta in the light of the above said contentions contend that defence of the appellant as projected by him is most plausible asserting that the appellant has been falsely implicated in this case by the police at the instance of Superintendent of Police and consequently the impugned judgment of conviction is liable to be set-aside. 15. On the other hand Mr. Gill, learned Senior Deputy Advocate General, Punjab submits that it is a case of very heavy recovery and the prosecution agency has no animosity of any kind for which they would involve the appellant in this case. It is then contended that even though HarJoginder Singh the so called independent witness was not produced by the prosecution and thereafter he came forward in defence. This fact itself would not be denting the case of the prosecution which otherwise is proved from the statements of the official witnesses. It is further contended by Mr. Gill that even in the severe cross-examination the defence could not get any material in favour of the appellant and a such the conviction as recorded by the trial court is liable to be maintained. 16. We do not agree with any of the submissions made by the learned counsel for the appellant and are of the view that the conviction is liable to be maintained. We are now meeting the contentions raised by the appellant one by one. 17. So far as the first contention is concerned, we have once again perused the report Ex. PJ minutely. The vernacular (Punjabi) of the same is on page 43 of the file of the trial court which is in 9 columns. We are concerned with column No. 9 only. 17. So far as the first contention is concerned, we have once again perused the report Ex. PJ minutely. The vernacular (Punjabi) of the same is on page 43 of the file of the trial court which is in 9 columns. We are concerned with column No. 9 only. Column No. 9 is in three parts and the same is as under :- "xxx xxxx xxxxx xxx xxx xxxx 9., Identification test Meconic test Found present Acid found present Percentage morphine 3.48% xxx xxxx xxxxx xxx xxx xxxx" 18. Then there is a final report indicating that on analysis of the substance contained in the above referred parcel, meconic acid and 3.48% morphine were found present in the substance. The report further shows that Meconic acid and morphine are the substantive elements of opium. 19. As in the identification test the word found present is used by the Examiner in first part, this in our view, indicates specie only which was to be opium poppy. Simply that the analyst has not defined the plant of species Papaver somniferum L or the plant of any other species of Papaver from which opium or any phenanthrene alkaloid could be extracted would not be a ground to come to the conclusion that the substance which was sent to the Laboratory was not the opium poppy as described in section 2(xvii) of the Act. We thus, conclude that the substance which was sent to the analyst was opium and nothing else. Admittedly, there is no dispute about the presence of percentage of morphine which falls under the definition of opium as derived from section 2(xv) of the Act. The first contention, thus, being of no avail is hereby repelled. 20. The second contention is also of no force. It cannot be said that the Chemical Examiner who had analysed the sample was not designated Chemical Examiner. By our experience, we have noticed that no designated Chemical Examiner has been appointed till date under the rules but this fact by itself would not be enough to comment that the Deputy Director, Toxychology, Forensic Science Laboratory, Punjab Chandigarh was not aware of the procedure for testing the contraband. His report is otherwise admissible under section 293 of Code of Criminal Procedure, 1973. His report is otherwise admissible under section 293 of Code of Criminal Procedure, 1973. If the defence had to challenge this report on any count, it was within his right to move an application under section 293(2) Criminal Procedure Code satisfying the trial court to summon the expert as to the subject matter of his report which is not done in this case. Consequently, we cannot doubt the report of FSL Ex. PJ as it is. 21. The other contention of learned counsel for the appellant is to the effect that no proper procedure was followed in this case at the time of taking sample insomuch so that it was not made homogeneous or the sample before extracting the same, the sample was not taken in duplicate and quantity of 24 grams in each of the sample was not taken. We have perused the instructions of Government of India dated 13.6.89. There is no doubt that the instructions are there but the contravention of the said instruction would not necessarily vitiate the conviction. There is no doubt that although these instructions are to be followed as guide by the Investigator yet they are having no force of law. The check is to ensure only that the case property is not tampered with at any stage. The learned counsel for the appellant has not been able to show that any serious prejudice has been caused to the appellant by not following the instructions in respect of taking of the sample or otherwise. In the present case, the moment the recovery was effected, the appellant and the case property was produced before SI/SHO Jagjit Singh PW5 who verified all the facts, sealed case property, sealed sample, put his seal impression on the seal slip and thereafter kept the case property with him. He on the next date took the appellant alongwith case property to the Magistrate, obtained orders from the concerned Magistrate for the purpose of depositing the case property in the malkhana and after obtaining orders submitted the same before Kuldeep Kumar MHC. Till it reached the FSL, sample remained intact throughout. This fact is also clear from the FSL report itself. May be during the course of arguments, Mr. Till it reached the FSL, sample remained intact throughout. This fact is also clear from the FSL report itself. May be during the course of arguments, Mr. Gupta has read out the statement of SI Jasbir Singh PW4 in which he has stated that three seals were affixed on the sample seal slip when the sample was sent for chemical examination to show that the chances of tampering with the samples were there, but we after seeing the report Ex. PJ in original from the trial court file and the seal impression slip Ex. P1 affixed to it, held that this statement was made inadvertently. We call it as stray statement. On Ex. PI there are three seal impressions. JS certainly of Jasbir Singh SI, BSR certainly of Bachan Singh Randhawa Superintendent of Police and another JS certainly of Jagjit Singh SI/SHO. We have also noticed three different signatures viz one of Jasbir Singh SI, CIA Staff Moga, second of Bachan Singh Randhawa, S.P.(D) Moga and the third of Jagjit Singh SI/SHO police station Badhni Kalan. The date under all the signatures is 28.9.97. The sample was sent on 6.10.97. There is no seal impression slip of this date. Once we are of the view that there was no chance of tampering with the seal at any juncture, the contravention of the instructions, if any would not be fatal to the prosecution at all as no prejudice is shown to have been caused on that count. Our view is strengthened by the observation of Honble Apex Court rendered in Khet Singh v. Union of India, 2002(4) SCC 380. 22. The other contention of learned counsel for the appellant to the effect that non-production of Harjoginder Singh independent witness is fatal to the prosecution, we do not find any substance in this argument as well. It is settled preposition of law that the conviction can be passed on the statements of police official alone in case the statements are worthy of credence. In case the independent witness is joined and not produced for any reason may be on account of being won over by the accused the note of caution, at the most is that the other evidence resting on the statement of police official has to pass through fine-toothed-comb. In case the independent witness is joined and not produced for any reason may be on account of being won over by the accused the note of caution, at the most is that the other evidence resting on the statement of police official has to pass through fine-toothed-comb. We have scanned the entire prosecution evidence very carefully and minutely and we do not find any infirmity on any count in unfolding the prosecution case against the present appellant so far as the alleged recovery of contraband is concerned. The enmity as projected by the appellant for his false implication is not substantiated by any cogent evidence. The argument raised by the learned counsel for the appellant that the evidence of police officials remains un-corroborated by any independent source and therefore, it should not be made the sole basis of the conviction, it is too late in the day for us to reject the testimonies of police officials out of which one police official was of the rank of Superintendent of Police. 23. So far as the discrepancy pointed out by learned counsel for the appellant, we would say that those discrepancies are not of the nature which would uproot the case of the prosecution in its entirety. Certain facts are bound to obliterate from the memory of the witness with the passage of time. We do not consider these discrepancies as so material which would call for our discussion in detail. 24. So far as the non-compliance of section 52-A of the Act is concerned, we are of the view that this would not affect the validity of the trial in any manner. The object of section 52-A of the Act relates to the disposal of the case property at the pre-trial stage so as to ensure that the case property is not misused and also to relieve the prosecution of the responsibility of safe custody. Here in the present case, admittedly there is no dispute about the identity of the case property at any stage and that even if there is non- compliance of section 52-A of the Act, it would not vitiate the trial at all. The provisions of section 52-A of the Act are directory and not mandatory in nature as so held in Amarjeet Kaur v. State of Haryana and others, 2003(1) RCR(Criminal) 99. No other point has been urged before us. 25. The provisions of section 52-A of the Act are directory and not mandatory in nature as so held in Amarjeet Kaur v. State of Haryana and others, 2003(1) RCR(Criminal) 99. No other point has been urged before us. 25. Consequently, we are of the view that the prosecution has been successful to bring home the guilt to the accused. His appeal stands dismissed being devoid of any merit. In our view the substantive sentence awarded to the appellant is also most adequate in this case. Intimation of this judgment be sent to the learned trial Court and the jail authorities. Appeals dismissed.