Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 1774 (PNJ)

Malla Singh S/o Kesar Singh v. State of Punjab

2008-10-21

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J 1. This appeal is directed against the judgment of conviction, and the order of sentence dated 22.5.2006, rendered by the Judge, Special Court, Bathinda, vide which he convicted the accused/appellant, for the offence, punishable under Section 15 of the Narcotic Drugs And 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 six months, for having been found in possession of 15 bags, each containing 35 kgs. Poppy-husk, without any permit or licence. 2. The facts, in brief, are that, on 18.4.2005, Mohinder Kumar, Inspector, alongwith other police officials, was on patrol duty and checking of crime, in a Government Vehicle, in the area of village Karar Wala, on National Highway, which leads from Bathinda to Barnala-Chandigarh, when Phulveer Singh, ASI, received a secret information, from the informer, that Malla Singh, accused, was indulging in the sale of poppy-husk, and if a raid was conducted, at his house, heavy recovery of poppy-husk, could be effected. The information was credible. The information was reduced into writing, vide ruqa Ex.PM, at 8.15 AM, and the same was sent to the Police Station, on the basis whereof, formal FIR was registered, against the accused. Wireless message was sent to the SHO, P.S. Rampura, to send some Gazetted Officer. The Investigatining Officer, alongwith other police officials, reached the railway crossing, where the DSP joined the said party. Darshan Singh, a public witness, was joined with the police party. Thereafter, the Police party went to the house of the accused, where he was found sitting on a cot. He was arrested. On interrogation, he disclosed that he had concealed 15 bags, containing poppy-husk, in a room, meant for stacking fodder, for cattle, in his house, of which he only knew, and could get the same recovered by pointing out. His disclosure statement was reduced into writing, which was thumb marked by him, and attested by the witnesses. In pursuance of the disclosure statement, the accused took the Police party, to pre-disclosed place, and got recovered 15 bags, each containing 35 kgs. Poppy-husk. His disclosure statement was reduced into writing, which was thumb marked by him, and attested by the witnesses. In pursuance of the disclosure statement, the accused took the Police party, to pre-disclosed place, and got recovered 15 bags, each containing 35 kgs. Poppy-husk. Two samples of 100 grams each, from each of the bags, were taken out, and the remaining poppy-husk, was kept in the same bags. The samples, and the bags, containing the remaining poppy-husk, were converted into parcels, duly sealed with the seals, and taken into possession, vide a separate recovery memo. 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 15 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 Darshan Singh, HC, (PW-1), Raghbir Singh Chahal, DSP (Retd.)(PW-2), Gurpreet Singh, SI, (PW-3), and Mohinder Kumar, Inspector (PW-4). The Addl. 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 residing in a joint family, consisting of his wife, his sons, and their families. It was further stated by him, that he was taken away from his house at about 3.35 PM, on 18.4.2005 by the police of CIA/P.O.Staff, Bathinda. It was further stated by him, that nothing incriminating was recovered, from his possession, in the presence of Gobind Singh, Malkiat Singh, Suraj Bhan, Babu Singh, and others, and later on, during the night, the police again brought him, to his house, placed some bags therein, and took the photographs thereof. It was further stated by him, that he was falsely implicated, in this case, at the instance of Avtar Singh, Sukhdev Singh @ Gugni, and Jaswinder Singh, of his village, due to party faction, in the village. It was further stated by him, that regarding his false implication, his relations had also sent applications, and the telegrams to the higher authorities. It was further stated by him, that regarding his false implication, his relations had also sent applications, and the telegrams to the higher authorities. It was further stated by him, that the bags, which were placed, in his house, were brought by the Police from some ditches, located near the railway line, at a distance of about 70-80 karms. 5-A. The accused, however, examined Suraj Bhan (DW-1), Darshan Singh (DW-2), Babu Singh (DW-3), and Rajpal, HC (DW-4), in his defence. Thereafter, he closed his defence evidence. 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. During the pendency of appeal, the appellant died on 9.8.2008. Since, the appeal had also been filed, against the imposition of sentence of fine, the same could not abate, as a whole, in view of the provisions of Section 394(2) of the Code of Criminal Procedure. Under these circumstances, the Counsel for the appellant, submitted that he be permitted to address arguments, on merits. 9. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that though an independent witness, in the name of Darshan Singh, at the time of alleged search and seizure, was joined, yet he was not examined by the prosecution. He further submitted that the prosecution, thus, withheld the best evidence, in its possession. He 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, Darshan 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 1.10.2005, 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-2. Public Prosecutor for the State. The factum that he was won over by the accused, is further strengthened, as he appeared as DW-2. When he appeared as DW-2, he stated that nothing was recovered, in his presence, from the house of the accused. In case, no recovery of the contraband, had been effected, from the house of the accused, in his presence, how his signatures on various documents, including the recovery memo, which were prepared, at the spot, were found, could not be explained by him. 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, to reveal, 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 Darshan 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. 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. 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. 11. It was next submitted by the Counsel for the appellant, that the conscious posession of the appellant, in respect of the bags, containing poppy-husk, was not proved, as the house, in question, was jointly owned by him, and his family members. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In the instant case, the recovery was not effected, on search of the hosue of the accused, in a routine manner. The accused suffered a disclosure statement, that he had concealed 15 bags, each containing 35 kgs. Poppy-husk, in a room, meant for stacking fodder for the cattle, of which he only knew, and could get the same recovered by pointing out. Thereafter, he got effected the recovery, in pursuance of the said disclosure statement. The accused suffered a disclosure statement, that he had concealed 15 bags, each containing 35 kgs. Poppy-husk, in a room, meant for stacking fodder for the cattle, of which he only knew, and could get the same recovered by pointing out. Thereafter, he got effected the recovery, in pursuance of the said disclosure statement. The concealment of the bags, containing poppy-husk, was, therefore, in the exclusive knowledge of the accused. Under these circumstances, it could not be said that the accused was not found in conscious possession of the bags, containing poppy-husk. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected, in this case, on 18.4.2005, yet the sample parcels were sent to the office of the Chemical Examiner, on 20.4.2005. He further submitted that the delay of 2 days, in sending the samples, was not explained by the prosecution witnesses, and, as such, the possibility of tampering with the same, until the same reached the office of the Chemical Examiner, 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 sample parcels 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.PL, which clearly proves that the seals, on the samples, were intact, and agreed with the specimen seals sent. 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.PL, which clearly proves that the seals, on the samples, were intact, and agreed with the specimen seals sent. The report of the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions of Section 293 Cr.P.C. The delay, in sending the samples, 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 Vs. 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 seized articles remained in safe custody. In Narinder Singh @ Nindi Vs. 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 the 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 2 days, 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. 13. It was next submitted by the Counsel for the appellant, that the trial Court did not take into consideration the defence version set up, and the defence evidence, produced by the accused, regarding his false implication, in the instant case. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. 13. It was next submitted by the Counsel for the appellant, that the trial Court did not take into consideration the defence version set up, and the defence evidence, produced by the accused, regarding his false implication, in the instant case. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. On careful perusal of the judgment of the trial Court, it is evident, that the defence version set up by the accused, and the defence evidence produced by him, were duly noticed in Para Nos.40 to 43. The defence version was appreciated, in the light of the defence evidence, produced by the accused. Ultimately, the trial Court came to the conclusion, that the defence version, set up by the accused, was an afterthought, and the defence evidence, produced by him, in support of the same, was not believable. The trial Court, thus, discarded the defence version, as also the defence evidence, for valid reasons, recorded in the aforesaid paragraphs. There is no reason, to differ with the findings recorded by the trial Court, for discarding the defence version, and the defence evidence. This Court, after carefully going through the defence evidence, on record, as also the reasons, recorded by the trial Court, for discarding the same, comes to the same conclusion. The finding of the trial Court, in discarding the defence version, and the defence evidence, being based on valid reaons, is affirmed. 14. No other point, was urged, by the Counsel for the parties. 15. 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 judgment of conviction, is liable to be maintained. Similarly, the order imposing sentence of fine, deserves to be upheld, whereas, the order regarding substantive sentence, and sentence awarded in default of payment of fine, is liable to be set aside, on the ground, that the appellant demised, during the pendency of appeal. 16. For the reasons recorded, hereinbefore, the appeal is partly accepted, in the manner, that the judgment of conviction is maintained. 16. For the reasons recorded, hereinbefore, the appeal is partly accepted, in the manner, that the judgment of conviction is maintained. The appeal abates, qua the substantive sentence, and the sentence awarded, in default of payment of fine, on account of the death of the appellant, during the pendency of appeal, whereas, the order imposing sentence of fine, is upheld. 17. The Chief Judicial Magistrate, Bathinda, shall take necessary steps, for the recovery of amount of fine, from the estate of the deceased/appellant, if any, inherited by his legal reprresentatives, in accordance with the provisions of law, and submit a report, within a period of 3 months, from the date of receipt of a copy of the judgment. Order accordingly.