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2008 DIGILAW 746 (PNJ)

Madho Ram v. State of Haryana

2008-03-24

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:- This appeal is directed against the judgment of conviction dated 07.10.1997, and the order of sentence dated 09.10.1997, rendered by the Court of Additional Sessions Judge, Ambala, vide which it convicted the accused/appellant, for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substance 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 further rigorous imprisonment for a period of two years. 2. The facts, in brief, are that on 20.04.1996, Assistant Sub Inspector Gurmail Singh along with Head Constable Ved Parkash and other police officials, was present at platform No.3, Railway Station, Jagadhari, in connection with checking. At 8.35 AM, one train No. 4682 down Ludhiana Super Fast came from the side of Ambala, and it was bound for Delhi. The police party entered one second class compartment and started checking the same. Madho Ram, who was sitting with a small suit case, in one of the compartments started alighting from that compartment, on seeing the police party. He was stopped, on suspicion, at Platform No.3 in the presence of the officials and one Resham Singh, PW. On search of the suit case, in accordance with the provisions of law, a plastic bag, bearing the words “Kelvin suiting shirting” HP was found lying therein, from which charas was recovered. On weighment, it was found to be 1.5 Kgs. Two samples of 20 grams, each, were drawn from the recovered charas. The samples and the remainder were made into separate parcels, and sealed with the seal bearing impression “VPS”. Seal after use was handed over to Resham Singh, PW. The case property was taken into possession, vide recovery memo Ex.PB. On personal search of the accused, one ticket of railway fare Ex.P4, one wrist watch, a sum of Rs.500/- in cash, one goggle, one key ring and one belt containing purse were recovered, which were taken into possession vide recovery memo Ex. PC. Ruqa Ex. PD was sent to the Police Station, on the basis of which, FIR Ex. P A was recorded. Rough site plan Ex.PE, was prepared. The statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the challan was presented. 3. PC. Ruqa Ex. PD was sent to the Police Station, on the basis of which, FIR Ex. P A was recorded. Rough site plan Ex.PE, was prepared. The statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the challan was presented. 3. On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 20 of the Act, was framed against him, to which he pleaded not guilty and claimed trial. 4. The prosecution, in support of its case, examined Satish Kumar, Inspector, (PW-1), Resham Singh, independent witness, (PW -2), Gurmail Singh, Assistant Sub Inspector, the Investigating Officer, (PW-3), and Sish Ram, Inspector,(PW-5). Thereafter, the Public Prosecutor for the State, closed the 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 on the intervening night of 19/20.4.1996 he came to Ambala Cantt, Railway Station, and purchased a ticket for Bombay. He boarded the frontier mail, in the early hours of 20.4.1996. He further stated that the train stopped at Jagadhari Railway Station, where the police party boarded the same and when the train reached near Saharanpur, it found one bag, lying in a compartment. The police party inquired from him, whether the bag belonged to him, and on his refusal, there was an altercation. Thereafter, the police party brought him to Ambala and involved him in this case. He, however, 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 lower 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. 7. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the lower 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 accused/appellant, at the very outset, submitted that affidavit of Raj Kumar, Constable, Ex.PF, and the affidavit of Ram Bachhan, MHC, Ex.PG, formal witnesses were tendered into evidence, but they were never offered for cross-examination, by the accused, by the prosecution. He further submitted that on account of this reason, a valuable and indefeasible right of the accused, to cross-examine these witnesses, was defeated and the case of the prosecution, became highly doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct, as the same is not in consonance with the record. Vide statement dated 21.04.1997, Mr. N.K. Goel, Assistant Public Prosecutor for the State, working in the Court concerned, tendered into evidence, affidavit Ex.PF of Raj Kumar, Constable. It is evident from the said statement that Raj Kumar, Constable was present, but the Counsel for the accused, did not want to cross-examine him. Similarly, vide statement dated 10.09.1997, Mr. S.C. Kamboj, Public Prosecutor for the State, working in the concerned Court, tendered into evidence affidavit Ex.PH of Ram Bachan, MHC. It is further evident from the said statement, that Ram Bachhan, MHC, was present in the Court, but the Counsel for the accused, did not want to cross-examine him. Under these circumstances, it could not be said that both these formal witnesses, were not offered for cross-examination, by the accused, by the prosecution. Had these witnesses been not present on the dates aforesaid, on which the affidavits were tendered into evidence and had they been not offered for cross-examination, by the accused, the matter would have been different. In the instant case, both these witnesses, who were present on 21.04.1997 and 10.09.1997 respectively, were duly offered for cross­examination to the accused, but the Counsel for the accused stated that he did not want to cross-examine them. In these circumstances, an opportunity was afforded to the accused to cross-examine these witnesses, but he did not avail of the same of his own. In these circumstances, an opportunity was afforded to the accused to cross-examine these witnesses, but he did not avail of the same of his own. In these circumstances, it could not be said that he was deprived of the opportunity of cross-examination of these witnesses, and, as such, his valuable and indefeasible right of cross-examination, was defeated. In this view of the matter, 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 according to the prosecution, Resham Singh, independent witness was joined. He further contended that he was not, in fact, an independent witness, but was a stock witness of the police and as such, no reliance could be placed, on his evidence. The submission of the Counsel for the appellant, does not appear to be correct. Resham Singh, PW2, was joined by the Investigating Officer. He fully supported the case of the prosecution. No doubt, during the course of his cross-examination, it came to light, that he belonged to the same village, to which ASI Gurmail Singh, belonged. The mere fact that this witness belonged to the village of the Investigating Officer, did not mean that he was a stock witness, or was interested in him. It was per chance that he was found at the Railway Station and was joined by the Investigating Officer. It was, in his presence, that the recovery of charas was effected, from the suit case of the accused. Nothing was brought, on the record, that he was habitual in joining the search and seizure proceedings, conducted by the Gurmail Singh, Assistant Sub Inspector or by the police. He, therefore, could not be said to be a stock witness. In this case, the evidence of the official witnesses, was duly corroborated by the independent witness, in the name of Resham Singh, PW2. The trial Court was, thus, right in placing reliance on the evidence of Resham Singh, PW2. In view of this, 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 provisions of Section 55 were not complied with, in the instant case, as a result whereof, the case of the prosecution became doubtful. In view of this, 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 provisions of Section 55 were not complied with, in the instant case, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. ASI Gurmail Singh, PW3, during the course of cross­examination, stated that the case property and the witnesses were produced before Shish Ram, Inspector SHO P.S. GRP, Ambala Cantt, who affixed his seal on three parcels. The seal after use was handed over to Resham Singh, PW2. He further stated that Shish Ram, SHO verified the facts from the accused and the witnesses. The case property was deposited on the direction of SHO and the accused was detained in the lock up. Shish Ram, Inspector, who appeared in the witness box as, PW5, in clear cut terms, stated that when he was posted as SHO, P.S. GRP Ambala Cantt on 20.04.1996, Gurmail Singh, ASI produced before him, Resham Singh, Ved Parkash, HC and the accused, along with the case property. He further stated that he verified the facts from the prosecution witnesses, and the accused, and thereafter, he affixed his own seal bearing letters ‘SR’ on the parcels containing the samples and the residue. PW5 Shish Ram, Inspector, further stated that the seal after use was handed over to Resham Singh, PW. He further stated that on his direction, ASI Gurmail Singh, deposited the case property with the MHC, and sent the accused to lock up. Under these circumstances, the submission of the Counsel for the appellant, to this effect, that the provisions of Section 55 of the Act were not complied with, could not be said to be in consonance with the record. On the other hand, the provisions of Section 55 of the Act, were duly complied with, by Gurmail Singh, ASI. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. No other point, was urged, by the Counsel for the parties. 13. On the other hand, the provisions of Section 55 of the Act, were duly complied with, by Gurmail Singh, ASI. The submission of the Counsel for the appellant, being without merit, must fail, and the same 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. The same are liable to be upheld. 14. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 07.10.1997 and the order of sentence dated 09.10.1997, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, Ambala, is directed to take necessary steps, to comply with the judgment, with due promptitude. —————————