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2008 DIGILAW 1257 (PNJ)

Dilawar Singh @ Kala v. State Of Punjab

2008-07-23

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction and the order of sentence dated 22.04.1997, rendered by the Court of Sessions Judge, Hoshiarpur, vide which it convicted the accused (now appellant), for the offence, punishable under Section 15 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 of 10 years and to pay a fine of Rs. 1 lac, in default of payment of fine to undergo further rigorous imprisonment, for a period of two years. 2. The facts, in brief, are that on 05.09.1995 ASI Balwinder Singh along with H.C. Sawinder Pal, and some other police officials, was present, at the bus stand of village Denowal Khurd, in connection with patrol duty. He received a secret information against accused Dilawar Singh, that he was dealing in the sale of poppy husk, and if a raid was conducted, recovery of poppy husk could be effected from him. On receipt of this information, ruqa Ex.PG, was sent to the Police Station, on the basis whereof FIR Ex.PG/1 was registered. Thereafter, ASI Balwinder Singh, along with other members of the police party, went to the house of the accused for raid. The accused was found present in his house. Ram Lubhaya, Constable, was sent to bring respectables but due to party faction in the village, no person was willing to join the raid. Thereafter, the accused was taken into police custody and interrogated. He suffered a disclosure statement that he had concealed 13 bags of poppy husk in a kotha, in which wheat chaff was lying, of which he only knew and could get the same recovered. Thereafter, the accused led the police party, to the predisclosed place and got recovered 13 bags, each containing 36 Kgs poppy husk. The accused made another disclosure statement that he had concealed seven bottles of Indian made foreign liquor make Binney Aristocrat in a room of his house, about which only he knew and could get the same recovered. In pursuance of the said disclosure statement, he got recovered bottles of licit liquor from the pre disclosed place, for which a separate case was registered. Wireless message was sent to the DSP, Hoshiarpur, as a result whereof, he came to the spot. In pursuance of the said disclosure statement, he got recovered bottles of licit liquor from the pre disclosed place, for which a separate case was registered. Wireless message was sent to the DSP, Hoshiarpur, as a result whereof, he came to the spot. ASI Balwinder Singh produced before him the accused and 13 bags each containing 36 Kgs poppy husk, referred to above. The DSP, Hoshiarpur, took out a sample of 250 grams poppy husk from each of the bags. Thereafter, the contents of the samples were put into separate packets, and the remaining poppy husk was kept in the same bags. These were converted into parcels, duly sealed, and taken into possession, vide separate recovery memo. The site plan was prepared. The statements of the 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 15 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 Nasib Chand, Constable, (PW-1), Paramjit Singh, Head Constable, (PW-2), Sarwan Singh, DSP, (PW-3), Sawinder Pal, Head Constable, (PW-4), and Balwinder Singh, ASI, (PW-5) Thereafter, the Addl. P.P 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. He pleaded false implication. He, however, led no evidence in his defence. 6. After hearing the Additional 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 accused/appellant. 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 though a secret information was received by the Investigating Officer, yet he neither reduced the same into writing, nor sent the same to the Officer Superior immediately. 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 though a secret information was received by the Investigating Officer, yet he neither reduced the same into writing, nor sent the same to the Officer Superior immediately. He further contended that, as such, there was breach of the mandatory provisions of Section 42 of the Act, which must result into vitiation of the investigation, as also the subsequent proceedings, and, as such, the accused was entitled to acquittal. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is, proved from the evidence of ASI Balwinder Singh, that on receipt of the secret information against the accused ( now appellant ) that he was in possession of poppy husk, ruqa Ex.PG, containing the information, was sent to the Police Station, on the basis whereof, formal FIR Ex.PG/1 was recorded by Raj Kumar, Sub Inspector. After recording the FIR, the special reports were sent to the Illaqa Magistrate as also the higher Police Officers. Even after the recovery of 13 bags each containing 36 Kgs of poppy husk, wireless message was sent to the DSP, Hoshiarpur, who came to the spot. He was apprised of the facts and circumstances of the case, as also the recovery of poppy husk, from the accused, who verified the same. In the instant case, the provisions of Section 42 of the Act, were, therefore, complied with. The Counsel for the appellant relied upon Directorate of Revenue & Anr. v. Mohammed Nisar Holia 2008(1) RCR ( Criminal ) 241 in support of her contention that violation of the provisions of Section 42 of the Act amount to the vitiation of conviction and sentence. The perusal of the facts of the aforesaid case, clearly goes to show that secret information, which was received by the Investigating Officer, was not reduced into writing, but conveyed to another officer, who reduced the same into writing. It was thus, held that the officer who received the information was required to reduce the same into writing and having not done so, the conviction and sentence stood vitiated. In the instant case, as stated above, the secret information was received by Balwinder Singh, ASI. It was thus, held that the officer who received the information was required to reduce the same into writing and having not done so, the conviction and sentence stood vitiated. In the instant case, as stated above, the secret information was received by Balwinder Singh, ASI. He reduced the same into writing, in the form ruqa Ex.PG, and sent the same to his Officer Superior i.e. SHO of the Police Station , as a result whereof, formal FIR Ex.PG/1 was recorded. Thereafter, special reports were sent to the Illaqa Magistrate and the Superior Officers. The facts of the Directorate of Revenue & Anr.s case ( supra ), therefore being distinguishable, from the facts of the instant case, no help, can be drawn, by the Counsel for the appellant, therefrom. 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, by the Investigating Officer, despite receipt of a secret information against the accused. She further submitted that even no effort was made to join an independent witness. She further submitted that, on account of this reason, the case of the prosecution became doubtful. She placed reliance on State of Punjab v. Jeet Singh, 2000(4) RCR (Criminal) 509 in support of her contention. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Balwinder Singh, ASI, who appeared in the witness box as, PW5, stated that, as soon as, he received a secret information against the accused-appellant, he along with other police officials, went to the house of the accused. He further stated that after reaching the house of the accused/appellant, he sent Constable Ram Lubhaya to the village to bring the respectables, but due to party faction, in the village, no person was willing to join the investigation. This clearly goes to show that, an effort was made, by the Investigating Officer, to join an independent witness, but none was ready to join, on account of party faction. It is a matter of common experience, that in the villages, there are two to three factions. This clearly goes to show that, an effort was made, by the Investigating Officer, to join an independent witness, but none was ready to join, on account of party faction. It is a matter of common experience, that in the villages, there are two to three factions. On account of the existence of such factions, in the villages, no body is ready to come forward, to join the search and seizure, proceedings conducted by the police, so as to avoid the wrath of the accused and complication, at a later stage, for appearing as a witness in the Court, from time to time. Had no effort been made by the Investigating Officer, to join an independent witness, some merit might have been found, in the arguments of the Counsel for the appellant. If 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 State of Punjabs case ( supra ) relied upon by the Counsel for the appellant, there was violation of the mandatory provisions of Section 42; no independent witness had been joined by the Investigating Officer, at the time of recovery and even no effort had been made by him to join the independent witness. It was under these circumstances, that in the aforesaid case, the appellant was acquitted by a Division Bench of this Court. The facts of the aforesaid case are clearly distinguishable from the facts of the present case. No help can be drawn by the Counsel for the appellant therefrom. On account of non joining of an independent witness, the evidence of the official witnesses, cannot be distrusted and disbelieved. From the cogent, convincing and trust-worthy evidence of the official witnesses, it was proved beyond doubt, that in pursuance of the disclosure statement made by the accused, he got recovered 13 bags containing poppy husk. Nothing could be brought out, during the course of the cross-examination of these witnesses, which may go to discredit their evidence. The witnesses had no ill-will, grudge or enmity against the accused, to falsely implicate him, in the present case. Even otherwise, it can not be imagined that such a big haul of poppy husk, could be planted, against the accused, by the police party. The witnesses had no ill-will, grudge or enmity against the accused, to falsely implicate him, in the present case. Even otherwise, it can not be imagined that such a big haul of poppy husk, could be planted, against the accused, by the police party. In Appa Bai and a nother v. 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 it. It was further held that civilized people, are generally insensitive, when a crime is 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. In State of NCT of Delhi v. Sunil (2000) ISCC 748, it was held as under :- "It is an archaic notion that actions of the Police Officers 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 can not 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". 11. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. On account of non-joining of an independent witness, the case of the prosecution, did not become doubtful. The submission of the learned Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next submitted by Counsel for the appellant, that no investigation was conducted, in respect of the ownership of the house, where from the alleged recovery was effected. She further submitted that, as such, the accused-appellant could not be said to be in conscious possession of the poppy husk, referred to above. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The recovery, in this case, was effected, in pursuance of the disclosure statement, made by the accused. She further submitted that, as such, the accused-appellant could not be said to be in conscious possession of the poppy husk, referred to above. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The recovery, in this case, was effected, in pursuance of the disclosure statement, made by the accused. The accused knew, as to where, he had concealed the bags, containing poppy husk. The concealment of the bags of poppy husk was not in the knowledge of anybody else. The bags, containing poppy husk, were in the exclusive knowledge of the accused. Under these circumstances, the Investigating agency was not required to conduct any investigation, with regard to the ownership of the house, from where the recovery of poppy husk was got effected. Had the recovery of poppy husk been effected, from an open and accessible place and had the bags been not concealed, and had the same been visible to everybody, the matter would have been different. The Counsel for the appellant placed reliance on Mohd Alam Khan v. Narcotics Control Bureau and another 1996 Crl. L.J. 2001 (SC) in support of her contention. The facts of the aforesaid case are clearly distinguishable, from the facts of the instant case. In the aforesaid case, the recovery was not effected, in pursuance of the disclosure statement, made by the accused. The recovery was effected, from a house, as a result of the general search on receipt of a secret information. The investigating agency had failed to investigate into the matter, as to who was the owner of the house, from where the recovery of contraband was effected in pursuance of the general search. It was, under these circumstances, and keeping in view the other facts and circumstances prevailing therein, that the appellant was acquitted. The facts of the aforesaid case being distinguishable from the facts of the instant case, no help can be drawn, by the Counsel for the appellant, therefrom. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellant that only one sample of poppy husk, was taken from each bag. She further submitted that as per the requirement of law, two samples were required to be taken out of each bag. 13. It was next submitted by the Counsel for the appellant that only one sample of poppy husk, was taken from each bag. She further submitted that as per the requirement of law, two samples were required to be taken out of each bag. She further submitted that, on account of this reason, the case of the prosecution became doubtful. She placed reliance Chhabil Das v. State of Haryana 1998(1)RCR (Criminal) 133 (P&H), a case decided by a Single Bench of this Court. In the said case, it was observed that two samples were required to be taken , whereas only one sample was taken. Even the mandatory provisions of Sections 50, 52, 55 and 42 had not been complied with in the said case. Taking into consideration, the facts and circumstances, prevailing therein, this Court came to the conclusion that the prosecution had failed to prove its case, against the appellant, and, as such, he was acquitted. It may be stated here, that the facts of the aforesaid authority, are clearly distinguishable, from the facts of the present case. Even otherwise,there is no mandatory requirement of law, to the effect, that two samples from the poppy husk, were required to be taken. The samples are taken with a view to send the same to the office of the Chemical Examiner, to find out, as to whether, the same are of contraband or not. In this case, the Chemical Examiner, after testing the contents of the contraband, came to the conclusion, that the same constituted poppy husk. The Chemical Examiner did not find the contents of the samples to be insufficient for analysis. Once the Chemical Examiner found the contents of the samples, to be sufficient, for analysis, the question whether one sample was taken or two samples were taken, was hardly of any consequence. No help can be drawn, by the Counsel for the appellant, therefrom. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellant, that there was a delay of nine days, in sending the samples, to the office of the Chemical Examiner, which remained unexplained, as a result whereof, the case of the prosecution, became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It was next submitted by the Counsel for the appellant, that there was a delay of nine days, in sending the samples, to the office of the Chemical Examiner, which remained unexplained, as a result whereof, the case of the prosecution, became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Mere delay, in sending the samples, in itself, is not sufficient to come to the conclusion, that the link evidence was incomplete. In the absence of any explanation regarding delay, the Court is required to place reliance upon the other evidence produced by the prosecution. The other evidence produced, on record, by the prosecution, which has been held to be cogent, convincing, reliable, and trustworthy, is sufficient to prove, that nonetampered with the samples, until the same reached the office of the Chemical Examiner. Had no other evidence been produced, in this regard, the matter would have been different. In this view of the matter, mere delay, in sending the samples to the Laboratory, did not at all, either affect the merits of the case, or make the link evidence incomplete, in any manner. In State of Orissa v. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory, is not fatal, where there is evidence that the sealed articles remained in safe custody. In Narinder Singh @ Nindi v. State of Punjab 2005(3) RCR (Criminal) 343, which was a case relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In these circumstances, it was held that, in the face of other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Under these circumstances, delay of nine days in sending the samples was hardly of any consequence. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. The Counsel for the appellant, however, placed reliance on Darshan Singh v. State of Punjab, 2006(2)Page No. 913. Under these circumstances, delay of nine days in sending the samples was hardly of any consequence. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. The Counsel for the appellant, however, placed reliance on Darshan Singh v. State of Punjab, 2006(2)Page No. 913. RCR(Criminal) in support of her contention that delay in sending the samples to the office of Chemical Examiner, must prove fatal to the case of the prosecution. In that case there was a delay of 13 days, in sending the samples to the office of the Chemical Examiner. From the other evidence, it was not proved that the samples remained untampered with until the same reached the office of the Chemical Examiner. It was, under these circumstances, and taking into consideration the other circumstances of the case, that this Court had held that the link evidence was incomplete. In the face of the principle of law, laid down in State of Orissas case ( supra ), decided by the Apex Court, the principle of law laid down, to the contrary in Darshan Singhs case ( supra ), would not hold the field. No help can be drawn, by the Counsel for the appellant, therefrom. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 16. It was next submitted by the Counsel for the appellant that the seal after use, in this case, was not handed over to an independent witness. It may be stated here that, in the instant case, no independent witness could be joined and, as such, the question of handing over the seal to him, did not at all arise. Had any independent witness been joined, and the seal after use, had not been given to him, the matter would have been different. The Counsel for the appellant, however, placed reliance on Balwinder Singh alias Billa v. State of Punjab 1999(3) RCR (Criminal) 117 , in support of her contention. Balwinder Singh alias Billas case (supra ) related to the decision of a bail petition, and not to the decision of an appeal. No invariable principle of law, was laid down, therein, that if the seal after use, is not given to an independent witness, the case of the prosecution becomes doubtful. Balwinder Singh alias Billas case (supra ) related to the decision of a bail petition, and not to the decision of an appeal. No invariable principle of law, was laid down, therein, that if the seal after use, is not given to an independent witness, the case of the prosecution becomes doubtful. No help can be drawn by the Counsel for the appellant, from the aforesaid case. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 17. No other point, was urged, by the Counsel for the parties. 18. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference. The same are liable to be upheld. 19. For the reasons recorded, hereinbefore, this appeal is dismissed. The judgment of conviction and the order of sentence dated 22.04.1997, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, with due promptitude.