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2008 DIGILAW 563 (PNJ)

Jaili v. State of Haryana

2008-02-27

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:-This appeal is directed against the judgment of conviction dated 13.12.2003, and the order of sentence dated 24.12.2003, rendered by the Court of Addl. Sessions Judge, Jind, vide which it convicted the accused/appellant Jaili, for the offence punishable under Sections 18 and 20 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 five years, and, to pay a fine of Rs.10,000/- under Section 18 of the Act, and further sentenced him to undergo rigorous imprisonment, for a period of five years, and to pay a fine of Rs.10,000/- under Section 20 of the Act, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years. The substantive sentences were, however, ordered to be run concurrently. 2. The facts, in brief, are that on 14.11.2002, Krishan Kumar, ASI, alongwith other police officials, was present at Bus Stand Bibipur, in connection with patrolling and crime detection duty. In the meantime, the accused was seen coming, from the side of Jind city, with a plastic bag of white colour, in his right hand. On seeing the police party, he turned back, and started walking swiftly. He was apprehended, by the ASI, on suspicion. On interrogation, he disclosed his name as Jaili S/o Surjan, resident of village Bibipur. The search of the plastic bag, being carried by the accused, was conducted, in accordance with law, in the presence of Deputy Superintendent of Police, who was called to the spot by sending a V.T.message. The plastic bag was found containing 200 grams opium and 750 grams charas. Two samples of 20 grams each, were taken from the recovered opium and two samples of 50 grams each, were taken from the recovered charas. Separate parcels of the samples, and the remaining contraband were prepared, which were duly sealed with the seal bearing impression ‘KK’ and ‘SR’, and taken into possession vide separate memo. The accused was arrested. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court of the Addl. The accused was arrested. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court of the Addl. Sessions Judge, Jind, the copies of documents, relied upon by the prosecution, were supplied to the accused, and charge under Sections 18 and 20 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 Ram Kumar, SI (PW-1), Raj Kumar, ASI (PW-2), Om Parkash, MHC (PW-3), Ashok Kumar, Constable (PW-4), S.R.Nehra, Deputy Superintendent of Police, H.Q., Jind, (PW-5), Naresh Kumar, HC (PW-6), and Krishan Kumar, ASI (PW-7). Thereafter, the 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. He, however, did not lead any evidence, in his defence. 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/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, contended that the offer given to the accused under Section 50 of the Act, was defective, and, as such, the investigation, as also the subsequent proceedings, stood vitiated. It may be stated here, that the provisions of Section 50 of the Act, were not applicable to the facts of the present case, as the recovery of opium and charas, was effected from a plastic bag, being carried by the accused. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 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 search of premises, vehicles, or articles. Similar, view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. Baldev Singh, 1999(6) S.C.C. 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 search of premises, vehicles, or articles. Similar, view was taken in Smt. Krishna Kanwar Thakuraeen Vs. 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 vehicle, other luggage and articles, and then alone the provisions of Section 50 would be attracted. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts and circumstances of the present case. Since the provisions of Section 50 were not applicable, to the facts of the present case, the question of alleged defective offer, paled into insignificance. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 10. The Counsel for the appellant, next submitted that there was delay in sending the sample, to the office of the Forensic Science Laboratory. He further submitted that the recovery was effected on 14.11.2002, whereas the sample was sent to the Laboratory on 13.12.2002. There was, no doubt, delay in sending the sample to the Forensic Science Laboratory. However, mere delay in sending the sample, did not, in any way affect the merits of the case. From the cogent, convincing, and creditworthy evidence of Krishan Kumar, ASI (PW-7), S.R.Nehra, Deputy Superintendent of Police, (PW-5), Naresh Kumar, HC (PW-6), recovery witness, Ram Kumar, SI (PW-1), Om Parkash, MHC (PW-3), and Ashok Kumar, Constable (PW-4), it was proved beyond doubt that none tampered with the sample and the case property, till the same remained in their custody. Above all, there is report Ex.PE of the Forensic Science Laboratory, that the samples with seals intact, were received. It is further evident from the said report, that the seals on the samples, tallied with the specimen seal, as per the forwarding authorities letter. In these circumstances, mere delay in sending the samples did not, in any way, caused prejudice to the accused, nor did it go to prove that the samples were tampered with, until the same were deposited in the office of the Forensic Science Laboratory. In these circumstances, mere delay in sending the samples did not, in any way, caused prejudice to the accused, nor did it go to prove that the samples were tampered with, until the same were deposited in the office of the Forensic Science Laboratory. 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 further submitted by the Counsel for the appellant, that no independent witness, was joined by the Investigating Officer, though the alleged recovery was effected from a busy place. It was a chance recovery, from the accused. There was no secret information, against the accused, with the police party. The police party was merely on patrol duty, when the accused was seen coming, and was apprehended on suspicion. During the course of crossexamination, it was stated by Krishan Kumar, ASI, that Bus Stand, Bibipur was a busy place. He further stated that people were coming and going, during the investigation. He, however, tried to join, independent witnesses, but they showed their inability. He further stated that he sent Karnail Singh, Constable to call Sarpanch, Ex. Sarpanch, lamberdar from the village namely Bibipur, but none was available. It means that an effort was made by the Investigating Officer, to join an independent witness, but none was ready to join. In these circumstances, it could not be said that the conduct of the Investigating Officer was blameworthy. Even otherwise, the evidence of the official witnesses cannot be distrusted, merely on account of their official status. In the face of the evidence of the official witnesses only, the Court is put on guard to scrutinize the same, carefully and cautiously, and after careful scrutiny, if it comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), 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 Vs. Sunil (2000)I S.C.C. 748, it was held as under:- “It is an archaic notion that actions of the Police officer, should be approached with initial distrust. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 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.” 11-A. In Appa Bai and another Vs. State of Gujrat,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 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 held 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, stands rejected. 12. No other point, was urged, by the Counsel for the parties. 13. 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. 14. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 13.12.2003, and the order of sentence dated 24.12.2003, are upheld. The accused/appellant is directed to surrender to his bail bonds, to undergo the remaining part of the sentence. ———————————