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2008 DIGILAW 1772 (PNJ)

Rishal Singh v. State of Punjab

2008-10-21

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:- This appeal is directed against the judgment of conviction dated 15.9.2003, and the order of sentence dated 16.9.2003, rendered by the Judge, Special Court, Bathinda, vide which he convicted the accused/appellant (Rishal Singh), 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 two years, for having been found in possession of 3 kgs. Opium, without any permit or licence. The trial Court, however, acquitted Daulat Ram S/o Ghisa Ram, accused. 2. The facts, in brief, are that on 5.9.2000, Balwinder Singh, Inspector, alongwith other police officials, was going in a Govt. Canter, towards Village Sheikhu, in connection with patrol duty, and holding a picket, and when the said police party reached at Bagha road, near railway crossing, Sukhpal Singh @ Pala, public witness, met it, who was joined with it. Thereafter, the police party held a picket at unmetalled path, leading from Seikhu to Phulo Meharanwali, in the area of Village Seikhu, at the bridge of canal minor. From the side of Phulo Meharanwali, a jeep bearing No.HR-20-B-5220, of green colour, came there, and it was signalled to stop. It was stopped. On seeing the police party, the driver of the jeep got puzzled, tried to get down from the same, and was apprehended by encircling him. He disclosed his name as Daulat Ram, and the other person, who was sitting in the jeep, disclosed his name as Rishal Singh. A cloth bag of blue colour, was found lying, in the feet of Rishal Singh. The Investigating Officer, suspected that some contraband was lying in the bag. The search of the bag, was conducted, in the presence of Raghbir Singh Chahal, DSP, who was called to the spot, by sending a wireless message, as a result whereof, recovery of 3 Kgs. opium therefrom, was effected. A sample of 50 grams, from the bag, was taken out, and the remaining opium, was kept into a separate container. The sample, and the container, containing the remaining opium, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. opium therefrom, was effected. A sample of 50 grams, from the bag, was taken out, and the remaining opium, was kept into a separate container. The sample, and the container, containing the remaining opium, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The statements of the witnesses, were recorded. The accused were arrested. After the completion of investigation, the accused were 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 them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Dhani Ram, HC (PW-1), Raghbir Singh Chahal, DSP, (PW-2), Wazir Chand, Clerk, (PW-3), and Balwinder Singh, Inspector (PW-4). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, examined Sukhpal Singh, (DW-1), in their 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 Rishal Singh, accused, whereas, acquitted Daulat Ram, 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 (Rishal Singh). 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, submitted that the mandatory provisions of Section 42 of the Act, were not complied with, as a result whereof, the trial, conviction, and sentence, stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The recovery, in this case, was not effected, in pursuance of the secret information, from an enclosed place, or from a vehicle, parked in an enclosed place. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The recovery, in this case, was not effected, in pursuance of the secret information, from an enclosed place, or from a vehicle, parked in an enclosed place. Under these circumstances, the provisions of Section 42 of the Act, were not applicable, to the instant case. On the other hand, the provisions of Section 43 of the Act, were applicable, to this case. With a view to properly deal with this plea, it would be appropriate, to notice the provisions of Sections 42 and 43 of the Act, which read as under :- “42. On the other hand, the provisions of Section 43 of the Act, were applicable, to this case. With a view to properly deal with this plea, 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, olice 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 any which any obstacle to such entry; (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. 9-A. 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, to seize in any public place, or in transit, any narcotic drug or psychotropic substance, or controlled 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 to search any building, or conveyance, in any building, and seize the contraband, lying therein. When the information is with regard to concealment of some narcotic, in a vehicle, in transit, then the 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. 9-B. A Division Bench of this Court in Dharminder Kumar Vs. 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. 9-B. A Division Bench of this Court in Dharminder Kumar Vs. 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.” 9-C. 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 of 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. 9-D. It was held in State of Haryana Vs. Jarnail Singh and others 2004(2) RCR (Crl.) 960 (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. Section 42 contemplates 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. 8. Sections 42 and 43, therefore, contemplate two difference situations. Section 42 contemplates 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.” 10. In the instant case, Balwinder Singh, Inspector, alongwith other police officials, was on patrol duty, from village Seikhu to Phulo Meharanwali, in the area of Village Seikhu, when the appellant was found sitting in a jeep, in which a bag, containing 3 kgs. Opium, was lying, in his feet. The recovery was, thus, effected from a Jeep, in transit, at a public place. Thus, the provisions of Section 43 of the Act, were applicable, and not the provisions of Section 42 of the Act. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. It was further submitted by the Counsel for the appellant, that though an independent witness, in the name of Sukhpal Singh @ Pala, (DW-1), was joined, at the time of the alleged search and seizure, yet he was not examined by the prosecution. She further submitted that, under these circumstances, an adverse inference could be drawn, that had he been examined, he would not have supported the case of the prosecution. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, Sukhpal Singh, independent witness, was joined by the Investigating Officer, yet he joined hands with the accused, during the pendency of trial, and, as such, he was given up as won over, by the accused, vide statement dated 12.10.2001, made by the Addl. Public Prosecutor for the State. The factum that he was won over by the accused is further strengthened, as he appeared as DW-1. The Public prosecutor for the State, is the master of the case. Public Prosecutor for the State. The factum that he was won over by the accused is further strengthened, as he appeared as DW-1. The Public prosecutor for the State, is the master of the case. It is for him, to decide, as to whether, he wanted to examine a particular witness, or not. However, he is required to exercise the discretion, in a bona fide manner. In the instant case, the discretion was exercised by the Addl. Public Prosecutor for the State, in a bona fide manner. There is nothing, on the record, that he exercised such a discretion, in an arbitrary and capricious manner. The other evidence produced by the prosecution, on scrutiny, has been found to be cogent, convincing, reliable, and trustworthy. Under these circumstances, the mere fact that Sukhpal Singh, independent witness, was given up, as won over, did not affect the merits of the case. In Masalti Vs. 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 Vs. 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 Vs. 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 were examined, as witnesses, for the prosecution, 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 Vs. Similarly in Appa Bai and another Vs. 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 victim’s 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 submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that Sukhpal Singh, independent witness, was examined by the accused, in his defence, as DW-1. She further submitted that he stated that no recovery was effected, from the accused, in his presence, but his signatures were obtained on blank papers. She further submitted that, under these circumstances, it could be said that the accused was falsely implicated, in the instant case. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Since, Sukhpal Singh, independent witness, had been given up, as won over by the accused, he was bound to support his case, while appearing as DW-1. In case, his signatures were obtained, on the documents, when the same were blank, he had many occassions, to make a complaint, against the alleged high-handedness of the police. He, however, slept over the matter for a period of about more than 3 years, and, ultimately, came to the Court on 8.9.2003, and appeared as DW-1, stating that no recovery was effected, in his presence. The mere fact that his signatures existed on these documents, and he did not complain to any authority, that the same were obtained on blank papers, in itself, proved that he was present at the time of recovery, but made a false statement, while appearing as DW-1. His statement, therefore, was hardly of any consequence, to cause a dent, in the prosecution story. In State of Rajasthan Vs. His statement, therefore, was hardly of any consequence, to cause a dent, in the prosecution story. In State of Rajasthan Vs. Udai Lal, [2008(4) LAW HERALD (SC) 2558] : 2008(2) RCR (Criminal) 956 (S.C.), 4 panch witnesses, though examined, resiled from their previous statements, and did not support the case of the prosecution. They, however, admitted their signatures, on the documents. In these circumstances, it was held by the Apex Court, that they were untruthful witnesses, and their evidence did not affect the merits of the case, when the other evidence, produced by the prosecution was cogent, convincing, and reliable, to prove the case of the prosecution. No help, therefore, can be drawn, by the Counsel for the appellant, from the evidence of Sukhpal Singh (DW-1). 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 the Moharrir Head Constable, was not examined, in the instant case, as a result whereof, the link evidence was incomplete. It may be stated here, that the examination of the MHC was not necessary, in this case, as the sample was sent by the Investigating Officer, after producing the case property, and the accused, before the Sub Divisional Judicial Magistrate, Talwandi Sabo. Balwinder Singh, Inspector (PW-4), stated that, on reaching the Police Station, he retained the case property, in his custody, being the SHO of Police Station Raman. He further stated that on 6.9.2000, i.e. on the next date, he sent the special report to the superior officer, which was seen by Raghbir Singh Chahal, DSP. He further stated that he produced the accused before the S.D.J.M., alongwith the case property, and the sample parcels. It was further stated by him, that the S.D.J.M., passed necessary orders. He further stated that on 7.9.2000, he sent the sample parcel, and the sample seal, to the office of the Chemical Examiner, Patiala, through Dhani Ram, Constable, for depositing the same, in the office of the Chemical Examiner. It was, under these circumstances, that the case property was not deposited with the MHC. Since, the case property, was not deposited with the MHC, his nonexamination, did not prove that the link evidence was incomplete. It was, under these circumstances, that the case property was not deposited with the MHC. Since, the case property, was not deposited with the MHC, his nonexamination, did not prove that the link evidence was incomplete. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellant, that the seal after use, was not handed over to the independent witness, and, as such, the possibility of tampering with the case property, and the sample parcel, could not be ruled out. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. There is no requirement of law, for handing over the seal, after use, to a third person, or an independent witness. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal, on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal, by the Investigating Officer, later on, was not produced as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the trial, and the prosecution case, could not be thrown out, on that score alone. It was further held, in this case, that it was not incumbent upon the Police Officer, to hand over the seal to a third person forthwith, and even, in cases, where he had done so, it was not obligatory for him, to produce such person, as a witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. Non-entrustment of seal, to the independent witness, by the Investigating Officer, in view of the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, regarding the completion of link evidence, did not at all affect the merits of the case. In this view of the matter, the finding of the trial Court, is endorsed. The submission of the Counsel for the appellant, being devoid of merit, is rejected. 15. In this view of the matter, the finding of the trial Court, is endorsed. The submission of the Counsel for the appellant, being devoid of merit, is rejected. 15. It was next submitted by the Counsel for the appellant, that the provisions of Section 55 of the Act, were not complied with. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Balwinder Singh, Inspector (PW-4), himself was the SHO of Police Station Raman, on the relevant day. The case property was required to be kept by the SHO, in his custody, as per the provisions of Section 55 of the Act. Since, he himself was the SHO, there was no necessity, on his part, to produce the same, before any other Superior Officer. However, it may be stated here, that Raghbir Singh Chahal, DSP, was present, at the time of search, and seizure, in this case. The case property, and the sample parcel, were sealed, in his presence, and taken into possession. In this way, it could be said, that the sample parcel, and the case property, were produced before the DSP, a superior Officer, though Balwinder Singh, Inspector, was not required to do so. In this view of the matter, there was complete compliance of the provisions of Section 55 of the Act. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 16. No other point, was urged, by the Counsel for the parties. 17. 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. 18. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 15.9.2003, 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, 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 Cr.P.C., and submit compliance report, to this Court, within a period of two months, from the date of receipt of a copy thereof. 19. 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 Cr.P.C., and submit compliance report, to this Court, within a period of two months, from the date of receipt of a copy thereof. 19. The District & Sessions Judge, Bathinda, shall send a report, within a period of two months, as to whether the Jeep, in question, has already been confiscated, and taken into possession, as per the Judgment of the trial Court or not. --------------------