Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 303 (PNJ)

Iqbal Singh v. State Of Haryana

2005-02-23

PRITAM PAL

body2005
Judgment Pritam Pal, J. 1. This appeal is directed against the judgment of conviction dated November 21, 1988 and order of sentence dated November 24, 1988 passed by Sh. R.N. Singal, learned Additional Sessions Judge, Ambala, whereby the appellant was sentenced to undergo R.I. for 10 years and also to pay a fine of Rs. 1,00,000/- (Rs. one lac). In default of payment of fine, he was further ordered to undergo R.I. for 5 years under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to as `the Act). 2. Shorn of un-necessary details, the facts giving rise to the present appeal, may be stated thus :- 3. On November 28, 1986, Inspector Saheb Ram was posted as SHO Police Station, City Ambala. On that date, he along with Constable Surinder Singh was present near Gurdwara Manji Saheb Chowk, Ambala City in his government vehicle at Ambala. There, Head Constables Ram Dutt and Jagat Singh also met him. He then received a secret information that Iqbal Singh accused (hereinafter referred to as `the appellant) was in the habit of selling opium and if his house was raided, he could be apprehended. On that information, the Inspector formed a raiding party and then raided the house of the appellant situated in Manmohan Nagar. On seeing the police party, he tried to run away, but was not allowed to do so. He was then taken into custody and given an option if he wanted to be searched in the presence of a Gazetted Officer or a Magistrate, but he declined the offer, and, thereafter, he was interrogated. Thereupon, he made a disclosure statement Ex. PD, to the effect that he had kept concealed opium wrapped in a wax paper and after putting it into a gunny bag has kept the same beneath the fodder of his fodder-room. He also offered to get the same recovered. His that disclosure statement was signed by him and in pursuance of the same, he then got recovered contraband substance from that very place. On weighing, it was found to be 3 (three) kilograms. 200 grams of opium was taken out as a sample. Thereafter, sample and the remaining opium were sealed separately with the seal of `SR. After retaining its impression, seal was given to Head Constable Ram Dutt. Both the sealed parcels were then taken into possession vide recovery memo Ex. PE. On weighing, it was found to be 3 (three) kilograms. 200 grams of opium was taken out as a sample. Thereafter, sample and the remaining opium were sealed separately with the seal of `SR. After retaining its impression, seal was given to Head Constable Ram Dutt. Both the sealed parcels were then taken into possession vide recovery memo Ex. PE. Thereafter, ruqa Ex. PF was sent to the Police Station, on the basis of which, formal FIR Ex. PF/1 was recorded by Gias Ram, MHC. Site plan Ex. PG of the place of occurrence was also prepared. Appellant was arrested. After completion of necessary investigation and receipt of the report Ex. PC of the Assistant Chemical Examiner, the appellant was challaned for having committed an offence punishable under Section 18 of the Act. 4. This case was then committed to the Court of Sessions by Sh. R.C. Bansal, the then learned Chief Judicial Magistrate, Ambala. 5. The appellant was charge-sheeted for having committed an offence punishable under Section 18 of the Act, to which he pleaded not guilty and claimed trial. 6. In order to prove its case, the prosecution examined PW-1 Ram Dutt Head Constable, a witness to the recovery of alleged contraband substance and PW-2 Inspector Saheb Ram, who is the Investigating Officer of this case. 7. Learned Public Prosecutor in his statement also tendered into evidence Ex. PA affidavit of Head Constable Ram Singh, who was posted as MHC with whom Inspector Saheb Ram had deposited the case property on November 28, 1986. Ex. PB is the affidavit of Ram Phal Constable, who had handed over the sealed sample to the Assistant Chemical Examiner, Chandigarh. Aforesaid affidavits were tendered to prove the link-evidence in this case. 8. After closure of the prosecution case, the accused was examined under Section 313 Cr.P.C. wherein he denied all the allegations of the prosecution and pleaded false implication. In answer to the last question, he submitted as under :- "My son Lovely was given a knife blow by Liloo, Pammi & others on June 3, 1986. Those people wanted a compromise with us and Pammi was the Leader of Hindu Suraksha Samiti. Those people wanted that we should compromise with them, which was registered against them in Police Station, Ambala City. Those people wanted a compromise with us and Pammi was the Leader of Hindu Suraksha Samiti. Those people wanted that we should compromise with them, which was registered against them in Police Station, Ambala City. On our refusal to compromise the matter, they got me implicated in this false case, with the connivance of the police." 9. When the appellant was called upon to enter his defence, he chose in negative. 10. Learned trial Court after hearing the learned counsel for the parties and going 0through the entire record convicted and sentenced the appellant as referred to in the opening part of this judgment. This is how, the appellant has come up in appeal before this Court. 11. I have heard Mr. B.S. Kathuria, learned counsel for the appellant, Mr. Sidharath Sarup, learned Assistant Advocate General, Haryana and have gone through the record carefully. 12. The first and foremost point of argument raised by the learned counsel on behalf of the appellant is that in this case, a secret information is alleged to have been received by Saheb Ram Inspector, the Investigating Officer of this case, but he failed to reduce the same into writing. Thus, there is a total non-compliance of the provisions of Section 42 of the Act, hence, the appellant is entitled to acquittal on this very score. In support of his argument, he has relied upon a case reported in Beckodan Abdul Rahiman v. State of Kerala, 2002(2) RCR(Criminal) 385. 13. On the other hand, Mr. Sidharath Sarup, learned Assistant Advocate General, Haryana, has opposed the plea aforesaid put forth on behalf of the appellant and submitted that it is not always necessary to reduce the secret information into writing inasmuch as when there are chances of running away of the accused from the place of occurrence and in that eventuality, the police officer heading the raiding party is not bound to reduce into writing the secret information. He further argued that in such circumstances, the appellant cannot claim acquittal on the ground of non-compliance of the provisions of Section 42 of the Act. In order to buttress his this point of argument, learned State Counsel has relied upon Sajjan Abraham v. State of Kerala, 2001(6) SCC 692. 14. He further argued that in such circumstances, the appellant cannot claim acquittal on the ground of non-compliance of the provisions of Section 42 of the Act. In order to buttress his this point of argument, learned State Counsel has relied upon Sajjan Abraham v. State of Kerala, 2001(6) SCC 692. 14. I have given my thoughtful consideration to the rival contentions of learned counsel for the parties and find that the aforesaid point of argument raised on behalf of the appellant is devoid of any merit inasmuch as on receiving secret information, Saheb Ram Inspector, who was present at Gurdwara Manji Saheb Chowk, Ambala City had immediately raided the house of the appellant, who on seeing the police party had tried to run away, but he was apprehended at the spot. According to the prosecution, the appellant had made a disclosure statement Ex. PD in pursuance of which 3 Kg of opium was got recovered from his house. In the given facts and circumstances of this case, it can be safely inferred that had the police party made delay in conducting the raid at the house of the appellant, who is stated to be habitual of selling opium, he would have escaped from the spot. It has also come in the evidence that on seeing the police party, the appellant had also made an attempt to run away, but he was not allowed to do so. 15. It is also pertinent to mention here that at the time of hearing arguments of this case, another Criminal Appeal No. 317-SB of 1988 of this very appellant was also argued, wherein he has also been convicted in a similar offence for keeping in his unlawful possession 6 kg. of opium. 16. The next point of argument raised on behalf of the appellant is that in this case, at the time of effecting recovery, the prosecution has failed to join any independent witness, though, there was no dearth of such witnesses at the spot and as such, the appellant is entitled to acquittal on this ground as well. In support of his argument, learned counsel for the appellant has relied upon a judgment of Division Bench of this Court reported in State of Punjab v. Kashmir Singh, 2002(3) RCR(Criminal) 481. 17. In support of his argument, learned counsel for the appellant has relied upon a judgment of Division Bench of this Court reported in State of Punjab v. Kashmir Singh, 2002(3) RCR(Criminal) 481. 17. On the other hand, learned Assistant Advocate General, Haryana, has again rebutted the aforesaid points of arguments putforth on behalf of the appellant and he also relied upon a Division Bench of this Court reported in Tarlochan Singh v. Assistant Commissioner, Customs, 2003(1) RCR(Criminal) 47. 18. The learned State Counsel then contended that even otherwise, now a days, it is very difficult to find out independent witnesses from the public inasmuch as such witnesses do not come forward to join investigation for various reasons. 19. I have given my thoughtful consideration to the above points of arguments put-forth on behalf of learned counsel for the parties and find force in the submission made on behalf the State-respondent inasmuch as here in the instant case, it has come in the statement of Saheb Ram Inspector PW-2 that he had tried his best to associate the independent witness from the public at the time of effecting recovery from the appellant, but none of them was willing to join the investigation. 20. No doubt, the Investigating Officer could also proceed against such public persons, who failed to join investigation, but on this lapse on the part of the Police Officer, the appellant cannot claim acquittal. It is a matter of common knowledge that now a days, it is well known that persons from general public do not come forward to depose against their neighbours. Here in the instant case, also, no doubt, though some persons from locality were available at the time of raid conduct by the police at the house of the appellant, but as discussed above, none of them was willing to be associated. 21. It was also argued by learned counsel for the appellant that the place from where the alleged recovery of opium is shown to have been effected in this case is also occupied by his wife and children, so, the learned counsel submitted that the same cannot be said to be in exclusive possession of the appellant. This submission has also failed to carry any conviction with me inasmuch as it is the appellant, who is the head of the family. This submission has also failed to carry any conviction with me inasmuch as it is the appellant, who is the head of the family. Moreover, neither the wife nor the children have been examined in defence by the appellant in support of his this plea now put-forth by learned counsel for the appellant. 22. At the fag-end of his arguments, learned counsel for the appellant has also pointed out some minor contradictions occurred in the statements of witnesses regarding bringing of weights and weighing scales etc. 23. I have given my thoughtful consideration to the submissions made in this regard and find that the same do not go to the root of the prosecution case. Even otherwise, with the passage of time, such minor discrepancies are bound to occur in the statements of truthful witnesses. 24. Learned counsel for the appellant also submitted that witnesses of link evidence have not been examined, but this contention of the learned counsel is also devoid of any merit inasmuch as here in the instant case, a perusal of the file shows that Head Constable Ram Singh and Constable Ram Phal have tendered their respective affidavits Exs. PA and PB in the evidence to prove the link evidence. Moreover, neither objection of any kind was raised on behalf of the accused/appellant at the time of tendering these affidavits before the learned trial Court, nor any cross-examination was sought to be done upon the deponents of the aforesaid affidavits. Thus, I am of the opinion that link evidence is also complete in all respects. In the totality of the circumstances of this case as discussed above, I find no force in any of the pleas raised by learned counsel for the appellant and as such, this appeal is hereby dismissed. The appellant, who is stated to be on bail in this case, is directed to be taken into custody to serve out the remaining period of his sentence.