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2008 DIGILAW 1724 (PNJ)

Nanhe Lal v. State of Haryana

2008-10-04

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J. - This appeal is directed against the judgment of conviction, and the order of sentence dated 16.9.2003, rendered by the Court of Additional Sessions Judge, Panipat, vide which it convicted the accused (now appellant), for the offence, punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1986 (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 two and half years, for having been found in possession of 6 kgs 600 grams opium, without any permit or licence. 2. The facts, in brief, are that, on 28.3.2000 ASI Ram Niwas, along other police officials was present near the entry gate of bus stand, Panipat in connection with patrol duty, when a man was seen coming from inside the bus stand, carrying a bag in his right hand. On seeing the police party, the man turned back, and started walking with fast speed. On suspicion, the ASI apprehended him. On inquiry he disclosed his name as Nanhe Lal son of Ram Sukh. Suspecting some contraband in the bag, which he was carrying, he was given notice under Section 50 of the Act, asking him as to whether he wanted his search to be conducted, in the presence of a Gazetted Officer or a Magistrate. He opted to be searched in the presence of a Magistrate. Mr. K.K. Amrohi, District Revenue Officer, was sent a telephonic message and was called at the spot. He reached the spot and on his direction ASI Ram Niwas searched the bag, being carried by the accused, as a result whereof 6 kgs 600 grams opium, was recovered therefrom. Two samples of 50 grams each, were separated, and the remaining opium was put into a separate container. The samples and the container containing the remaining opium, were converted into parcels, duly sealed with the seals, and taken into possession, vide separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The accused was arrested. 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. 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 claimed judicial trial. 4. The prosecution, in support of its case, examined Inspector Raghbir Singh, PW1 who proved the FIR Ex. PA/1, recorded by him on the basis of ruqa Ex.PA, Naresh Kumar MMHC, PW2, who tendered in evidence his affidavit Ex.PB regarding deposit of case property with him by ASI Ram Niwas, HC Sumer Chand, PW3, who also tendered his sworn affidavit Ex.PC regarding deposit of sample parcels with FSL, Madhuban on 17.4.2000 with seals intact, Constable Mehar Singh, PW4, who tendered in evidence his sworn affidavit Ex.PD, to the effect, that he delivered the special reports of the instant case to the Ilaqa Magistrate, and the police office, Raghbir Singh, lnspector, PW5, who was the SHO, Police Station City Panipat at the relevant time, and before whom the case property, accused and the sample parcels were produced and who verified the same, K.K. Amrohi, PW6, the District Revenue Officer, a witness to the recovery and ASI Ram Niwas, PW7, the Investigating Officer. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Criminal Procedure Code, was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He examined Constable Jasmer Singh as, DW1, in his defence. Thereafter he closed his defence evidence. 6. After hearing the 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 (now appellant). 8. I have heard the counsel for the parties and have gone through the record of the case, carefully. 9. 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 (now appellant). 8. I have heard the counsel for the parties and have gone through the record of the case, carefully. 9. The Counsel for the appellant, at the very out-set, submitted that, no independent witness was joined, at the time of effecting the alleged recovery, despite the fact, that the alleged place of recovery was outside the bus stand. He further submitted that even no effort by the Investigating Officer was made to join an independent witness, despite availability, and, as such, 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, that he was coming with a big haul of opium. ASI Ram Niwas, Investigating Officer, during the course of cross-examination, stated that some persons were passing, whom he asked to join the investigation, but they expressed their inability to do so. He further submitted that he did not remember whether he had asked the public persons in the presence of K.K. Amrohi to join the investigation. From the statement of ASI Ram Niwas, PW7, it is proved that he made efforts to join an independent witness. It is a matter of general experience, that no independent person, from the general public comes forward to join the search and seizure, with a view to avoid wrath of the accused and the complications, which may arise later on account of his appearance in the Court, from time to time, for evidence. In Akmal Ahmed v. State of Delhi. 1999 (2) RCC 297 (SC), it was held that, it is now well-settled that the evidence of search or seizure, made by the police, will not become vitiated, solely for the reason, that the same was not supported by an independent witness. In State of NCT of Delhi v. Sunil, 2000(1) SCC 748, it was held as under :- "It is an archaic notion that actions of the Police officer, 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. In State of NCT of Delhi v. Sunil, 2000(1) SCC 748, it was held as under :- "It is an archaic notion that actions of the Police officer, 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 cannot 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." 10. In Appa Bai and another v. State of Gujarat, AIR 1988 Supreme Court 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined, by the prosecution. It was further held, in the said authority, that the 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 aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been found to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part to falsely implicate the accused, no doubt, is cast on the prosecution story. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the learned Counsel for the appellant that Ram Niwas, PW7, in this case, sent the ruqa and, as such, became the complainant. He further submitted that he himself investigated the case. He further submitted that such a course adopted by Ram Niwas, ASI, was contrary to law. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. He further submitted that he himself investigated the case. He further submitted that such a course adopted by Ram Niwas, ASI, was contrary to law. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is no requirement of law, that the police official, who sends ruqa to the Police Station for registration of a case, cannot investigate the same himself. No illegality was committed by Ran Niwas, ASI, in following such a practice. In S. Jeevanthan v. State through Inspector of Police T.N., 2004(3) Apex Criminal 209 : 2004(5) SCC 230 it was held by the Apex Court that if Police Officer who is the complainant and also conducts the investigation, and it is not proved that any prejudice or bias was caused to the accused, then he cannot be acquitted on account of the adoption of such a course. In this case, no prejudice is shown to have been caused to the accused, on account of the adoption of such a course. The submission of the Counsel for the appellants, is, thus, rejected. 12. It was next submitted by the Counsel for the appellant, that the sample parcels, in this case, were tampered with, in as much as, two samples of 50 grams each, were taken out, from the recovered opium, but as per the report Ex.PH of the Forensic Science Laboratory, the weight of the sample parcels was 80.600 grams and not 100 grams. He further submitted that this clearly showed that the sample parcels did not remain untempered with, until the same reached the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated here, that when the samples were taken by the Investigating Officer, he weighed the same on the manual scale, and not on the computerized scale which was not available with him. Not only this with the passage of time, opium also dries up and the weight thereof lessens. When the sample parcels were sent to the office of the Forensic Science Laboratory, the weight thereof was conducted through computerized scale. Thus, the computerized scale gave the exact weight of the samples, whereas, the investigating officer gave the approximate weight of the samples, which were drawn by him. When the sample parcels were sent to the office of the Forensic Science Laboratory, the weight thereof was conducted through computerized scale. Thus, the computerized scale gave the exact weight of the samples, whereas, the investigating officer gave the approximate weight of the samples, which were drawn by him. It was on account of this reason, that there was difference of weight of opium of the sample parcels. This did not go to show that the sample parcels were tampered with, in any manner, at any stage, until the same reached the office of the Laboratory. Cogent, convincing, reliable and trust- worthy evidence in the shape of the statements of Naresh Kumar, MMHC, PW2, Constable Sumer Chand, PW3, and Mehar Singh, PW4, was produced. The case property and the sample parcels with seals intact were deposited with Naresh Kumar, MMHC. He handed over the same to Sumer Chand, Constable with seals intact for deposit of the same in the office of the Laboratory. These witnesses, in clear-cut terms stated that none tampered with the sample parcels till the same remained in their custody. Even, it is evident from the report of the Laboratory that the sample parcels, when received, the seals thereon were intact, and tallied with the specimen seals. The submission of the Counsel for the appellant that the sample parcels were tampered with is based on mere conjectures and surmises. As stated above, the sample parcels were not, at all, tampered with, in any manner, at any stage. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected, in the instant case, on 28.3.2000, yet the samples were sent to the office of the Chemical Examiner, on 4.4.2000. He further submitted that the delay of 7 day in sending the samples, to the office of the Chemical Examiner, remained unexplained, as a result whereof, 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. He further submitted that the delay of 7 day in sending the samples, to the office of the Chemical Examiner, remained unexplained, as a result whereof, 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 mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the same were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence, produced by the prosecution, has been subjected to indepth scrutiny, and, it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex.PH, which clearly proves that the seals, on the samples, were intact, on arrival, till the time of their analysis, and agreed with the specimen seals sent. The report of the Laboratory is per-se admissible into evidence, in its entirety, as per the provisions of Section 293. The delay in sending the sample, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In State of Orissa v. Kanduri Sahoo, 2004(2) Apex Criminal 110 (SC), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized 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 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. Therefore, in the instant case, unexplained delay of 7 day in sending the samples to the office of the Chemical Examiner, did not at all matter much. In this view of the matter, 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 K.K. Amrohi, District Revenue Office, PW6, stated that both the sample parcels and the parcel of the remaining opium were sealed with the seal bearing impression "KKA" The Counsel for the appellant further submitted that as per the statement of K.K. Amrohi, PW6, affixed only one seal but when the sample parcels were received in the office of the Laboratory, it was found with two seals of "KKA". He further submitted that, thus, the sample parcels were tampered with. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. K.K. Amrohi, PW6, sealed both the parcels with his seal. It means that he put one seal each on the two parcels. The report Ex. PH of the FSL, thus, was in consonance with the statement of K.K. Amrohi, PW6. There was, therefore no warrant to conclude that the sample parcels were tampered with, at any stage. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected. 15. No other point was urged by the Counsel for the parties. 16. 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. 15. No other point was urged by the Counsel for the parties. 16. 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. 17. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 16.9.2003, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, Panipat, 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, and send the compliance report within two months, from the date of receipt of a copy thereof. Appeal dismissed.