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2008 DIGILAW 1613 (PNJ)

Ram Parshad v. State Of Punjab

2008-09-19

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction, and the order of sentence dated 6.4.2000, rendered by the Court of Addl. Sessions Judge, Bathinda, vide which it convicted the accused/appellant, for the offence, punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as the Act only) and sentenced him, to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs. 1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year, for having been found in possession of 4 kgs opium, without any permit or licence. 2. The facts, in brief, are that, on 1.2.1994 SI Gulzar Singh of CIA Staff, Bathinda, accompanied by other police officials left Bathinda in a Government vehicle (canter) for villages Teona, Jhumba etc. in connection with patrol duty and detection of crime and when the police party reached Bus Stop, Teona, SI Ram Parkash, the then SHO Police Station Saddar,Bathinda, accompanied by some other police officials and one Ajaib Singh Chowkidar came across the police party of Gulzar Singh SI and they were also joined with it. Thereafter the said Police party headed by SI Gulzar Singh left towards village Baho Yatri, in connection with checking of crime. When at about 3.30 pm, they reached about 2 kms ahead of village Teona, accused Ram Parkash was spotted coming from the opposite direction while carrying some thing in a cloth bag on his shoulder. On noticing the police vehicle he at once tried to slip away. On suspicion he was apprehended. On search of the bag, in accordance with the provisions of law in the presence of SP Amrik Singh, who was called to the spot, 4 kgs opium was recovered therefrom. A sample of 10 grams was separated. The sample, and the container containing the remaining opium, were converted into parcels, duly sealed, with the seal, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The accused was arrested. Rough site plan of the place of the recovery, was prepared. The statements of the witnesses, were recorded. After the completion of investigation, the accused was challaned. 3. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The accused was arrested. Rough site plan of the place of the recovery, was prepared. The statements of the witnesses, were recorded. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 18 of the Act, was framed against him, to which he pleaded not guilty, and claimedjudicial trial. 4. The prosecution, in support of its case, examined DSP Amrik Singh, PW1, SI Gulzar Singh, PW2, Chander Bhan, PW3, and SI Ram Parkash, PW4 Thereafter, the Additional Public Prosecutor for the State closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C, was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he was picked up by the police from his village in the presence of Chand Singh,Sarpanch, and this false case was planted against him. However, the accused did not lead any evidence in defence. 6. After hearing the Addl. 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 appellant. 8. I have heard the learned 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, s ubmitted that though Ajaib Singh, independent witness, was joined by the Investigating Officer, yet he was not examined. He further submitted that the prosecution, thus, withheld the best evidence, in its possession, and, as such, an adverse inference could be drawn that, had he been examined, he would not have supported its case. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is, no doubt, true that Ajaib Singh, independent witness, was joined, at the time of the recovery, yet he was given up as won over, by the Addl. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is, no doubt, true that Ajaib Singh, independent witness, was joined, at the time of the recovery, yet he was given up as won over, by the Addl. Public Prosecutor for the State, vide statement dated 23.12.1998, as he sided with the accused, during the course of trial. The Additional Public Prosecutor for the State is the master of the case. It was for him to decide as to which witness he wanted to examine and which witness he did not want to examine to prove the case of the prosecution. In the instant case, since on the basis of request of the police that Ajaib Singh, independent witness had been won over by the accused, he was given up by the Additional Public Prosecutor for the State, it could not be said that he did not exercise the discretion vested in him, in a bona fide manner. On the other hand, it can be said that he exercised his discretion, in a bona fide manner. Under these circumstances, in my considered opinion, the Pubiic Prosecutor for the State, took a wise decision, in giving up, such a witness, as he very well knew that, in case, he was examined, he would damage the case of the prosecution. In Masalti v. State of Uttar Pradesh, AIR 1965 (S. C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material or, even if, it is known that he has been won over or terrorized. In Roop Singh v. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference can be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. In Roop Singh v. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference can be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements and giving up of the public witnesses, as won over, is fully justified, in the present day situation prevailing in the society. In Karnail Singh v. State of Punjab, 1983 Criminal Law Journal 1218 (DB), it was held that where the independent witness was won over by the accused, and only the officials witnesses were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly in Appa Bai and another v. State of Gujarat, AIR 1988 SC 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. The principle of law, laid down, in the said authorities, is fully applicable to the facts of the present case. In this view of the matter, the trial Court was, thus, right in recording conviction and awarding sentence, to the accused. 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 the grounds of suspicion were not recorded in this case, 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 a chance recovery. No secret information had been received against the accused. Not only this even the recovery was effected from the accused at a public place. The provisions of Section 42 of the Act were not applicable to this case. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It was a chance recovery. No secret information had been received against the accused. Not only this even the recovery was effected from the accused at a public place. The provisions of Section 42 of the Act were not applicable to this case. On the other hand, the provisions of Section 43 of the Act were applicable. Since the provisions of 43 of the Act were applicable,there was no necessity to reduce into writing the grounds of suspicion. With a view to properly deal with the argument of the Counsel for the appellant, it would be appropriate to notice the provisions of Sections 42 and 43 of the Act, which read as under :- "42. Since the provisions of 43 of the Act were applicable,there was no necessity to reduce into writing the grounds of suspicion. With a view to properly deal with the argument of the Counsel for the appellant, it would be appropriate to notice the provisions of Sections 42 and 43 of the Act, which read as under :- "42. Power of entry, search, seizure and arrest without warrant or authorization - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, (a) enter into an search any such building, conveyance or place; (b) in case of resistance, break open any door and remove anv which any obstacle to such (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of offence under Chapter IV relating to such drug or substance : and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance : Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an offence takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior." "43. Power of seizure and arrest in public place. Any officer of any of the department mentioned in Section 42 may - (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be useful, arrest him and any other person in his company. 11. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 42, for search, seizure, arrest and detention in any public place, or in transit, in respect of any narcotic drug or psychotropic substance, in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed, whereas Section 42 of the Act empowers the officer for search and seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to concealment of some narcotic, in a vehicle, in transit, then provisions of Section 43 of the Act are applicable. The word public place has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 12. The word public place has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 12. A Division Bench of this Court in Dharmin- der Kumar v. State of Punjab, 2002(4) RCR (Crl.) 278 has held as under :- "Thus it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act." 13. It is well settled principle of law that the provisions of a Statute are to be construed, in harmonious manner so that none of the same is rendered nugatory. By harmonious construing the provisions Sections 42 and 43 of the Act, it can be safely concluded that if a conveyance is intercepted or apprehended at a public place, or in transit, then the provisions of Section 42 of the Act would not be applicable. 14. It Was held in State of Haryana v. Jarnail Singh and others 2004(2) RCR(Crl) 960 : 2004(3) Apex Criminal 163 (SC) as under "7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public. 8. Sections 42 and 43, therefore, contemplate two difference situations. Explanation to Section 43 lays down that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public. 8. Sections 42 and 43, therefore, contemplate two difference situations. Section 42 templates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise." Thus, the provisions of Section 43 were applicable, and not the provisions of Section 42. The trial Court was, thus, right in recording conviction, and awarding sentence, to the accused. The submission of the Counsel for the appellant, in this regard, being without merit must fail and the same stands rejected. 15. It was next contended by the Counsel for the appellants that the mandatory provisions of Section 50 of the Act were not complied with, as a result whereof, the investigation and the subsequent proceedings stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In the instant case, the contraband was not recovered from the personal search of the accused but from the search of the bag in question. Accordingly, the mandatory provisions of Section 50 were not applicable, to the facts of the instant case. Had the recovery been effected, from the search of the person of the accused, it would have been said that there was some force, in the argument, advanced by the Counsel for the accused. In State of Punjab v. Baldev Singh, 1999(3) RCR(Criminal) 533:1999(6) SCC 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear, that the search had to be in relation to a person, and not in relation to the premises, vehicles, or articles. In State of Punjab v. Baldev Singh, 1999(3) RCR(Criminal) 533:1999(6) SCC 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear, that the search had to be in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view, was taken in Smt. Krishna Kanwar Thakuraeen v. State of Rajasthan, JT 2004(1) S.C. 597. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone the provisions of Section 50 would be attracted. Since, in view of the principle of law, laid down, in the aforesaid authorities, the provisions of Section 50 were not applicable, to the search in the instant case, the submission of the Counsel for the appellant deserves rejection. Had the recovery been effected, from the personal search of the accused, the matter would have been different. In this view of the matter, 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 link evidence in this case was incomplete. The submission of the Counsel for the appellant, in this regard, does notappearto be correct. SI Ram Parkash, PW4, stated that on the day of recovery, the case property and the accused were handed over to him by SI Gulzar Singh. He further stated that he produced the case property with seals intact before the llaqa Magistrate vide application Ex.PG, on which order Ex.PG/1 was passed by him. The Counsel for the appellant submitted that since the case property and the sample parcel from 1.2.1994 to 2.2.1994, till the same (sample parcel) was sent to the Chemical Examiner remained with Ram Parkash, SI, who was also in possession of the specimen impression of the seals , as such, the possibility of tampering with the same could not be ruled out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated here, that the mere fact that the seal and the sample parcel remained with Ram Parkash, S.I. for one day, in itself, was not sufficient to come to the conclusion that it was tampered with at any stage. The Court is required to take into consideration the entire evidence, to come to the conclusion as to whether the sample parcel was tampered with, at any stage or not In the instant case, sufficient cogent, convincing and reliable evidence was produced by the prosecution to prove that none tampered with the sample parcel until the same reached the office of the Chemical Examiner. There is affidavit Ex.PF of Constable Chander Bhan who stated that on 2.2.1994, he was handed over the sample parcel duly sealed in this case, by Ram Parkash SI, along with sample impression of the seal and he deposited the same in intact condition on 2.2.1994 in the office of the Chemical Examiner. He further stated that none tampered with the same until it remained in his custody. Above all there is report E.PJ of the Chemical Examiner, which is admissible irr toto under Section 293 Cr.P.C. in evidence. According to this report, at the time of receipt of this sample, the seal on the exhibit was intact and agreed with the sample seal sent. No challenge to this report was made by the accused. Under these circumstances, the possibility of tampering with the sample parcel until it reached the office of the Chemical Examiner stood completely ruled out. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected. 17. It was next submitted by the Counsel for the appellant that in the statement under Section 313 Cr.P.C, the incriminating circumstances were not put to the accused. The submission of the Counsel for the appellant, in this regard, is not at all correct. The statement under Section 313 Cr.P.C. has been carefully gone through by me. All the incriminating circumstances, appearing against the accused in the prosecution evidence were put to him, and he gave answers. The submission of the Counsel for the appellant, in this regard, is not at all correct. The statement under Section 313 Cr.P.C. has been carefully gone through by me. All the incriminating circumstances, appearing against the accused in the prosecution evidence were put to him, and he gave answers. The Counsel for the appellant could not point out, as to which incriminating circumstance, was not put to the accused, in his statement under Section 313 Cr.P.C. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 18. It was next submitted by the Counsel for the appellant, that according to Gulzar Singh, SI, PW2, the accused was apprehended at sand dunes, whereas, Amrik Singh DSP, PW1, stated that the accused was apprehended at the metalled road. He further submitted that this clearly goes to show that no recovery was effected from the accused, and he was falsely implicated in this case. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Amrik Singh, DSP, PW1 stated that he reached the area of village Teone on the link road. Baha Yatri is at a distance of 2 kms from villages Teona, where, SI Gulzar Singh had already apprehended accused , Ram Parshad along with some contraband. The accused was not apprehended in the presence of Amrik Singh, DSP, PW1. As such, he could not say, as to whether, the accused was apprehended at the metalled road or on the sand dunes. The evidence of Gulzar Singh, SI as to at which place the accused was apprehended is very material. It was stated by him that the accused was seen coming from the opposite direction while carrying something in a cloth bag, and he was arrested on suspicion. He did not say that the accused was apprehended at the sand dunes or on the metalled road. Under these circumstances, no help can be drawn by the Counsel for the appellant, from the statement, if any, made by Amrik Singh, DSP, PW1, regarding the place where the accused was apprehended. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected. 19. No other point was urged by the Counsel for the parties. 20. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected. 19. No other point was urged by the Counsel for the parties. 20. 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, and are liable to be upheld. 21. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 6.4.2000, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, Bathinda, shall take necessary steps to comply with the judgment, with due promptitude, keeping in view the applicability, of the provisions of Section 428 of the Code of Criminal Procedure.