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2008 DIGILAW 949 (PNJ)

Harminder Singh v. State of Haryana

2008-04-29

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J. - This appeal is directed against the judgment of conviction dated 8.2.1999, and the order of sentence dated 9.2.1999, rendered by the Court of Addl. Sessions Judge, Karnal, vide which it convicted the accused/appellant Harminder Singh, for the offence punishable under Section 21 of the Narcotic CL 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.l 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 15 bottles of campher. 2. The facts, in brief, are that on 8.9.1996, Baljit Singh, ASI, alongwith Raj Pal Singh, HC, and other police officials, was proceeding towards Village Danauli, on patrol duty, and when the police party reached at T.Point, near Dera Balbir Singh, situated in the area of aforesaid village, it noticed the accused coming from the side of Safidon, while carrying a gunny bag. He was apprehended on suspicion. The search of the bag, being carried by him was conducted, in accordance with the provisions of law, which led to the recovery of 15 bottles of campher. Out of each bottle, a sample was taken out, and the remaining champher was kept in the same bottles. The samples, and the remaining bottles, were converted into parcels, duly sealed with the seal, bearing impression BS, and taken into possession. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Site plan of the place of recovery, with correct marginal notes, was prepared. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 21 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 Sabha Chand, SI (PW-1), Rajpal Singh, HC (PW-2), Baljit Singh, ASI (PW-3), Suresh Chander, HC (PW-4), and Ram Singh, Constable (PW-5). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. 4. The prosecution, in support of its case, examined Sabha Chand, SI (PW-1), Rajpal Singh, HC (PW-2), Baljit Singh, ASI (PW-3), Suresh Chander, HC (PW-4), and Ram Singh, Constable (PW-5). 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, 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. When the appeal was fixed for regular hearing, on the Board of this Court, and a due notice, in this regard, had been issued to the Counsel for the appellant, none appeared on his behalf. Under these circumstances, no alternative was left, with this Court, than to decide the appeal, after going through the record, and the evidence, as also after hearing the Counsel for the respondent. 9. I have heard the learned Counsel for the respondent, and have gone through the evidence and record of the case, carefully. 10. No independent witness was joined, at the time of effecting the recovery. The recovery, in this case, was effected at about6/6.15 AM i.e. in the morning hours. Raj Pal Singh, HC (PW-2), stated that the place of recovery is a thoroughfare, but no public person came to the spot, at the time of recovery. Baljit Singh, ASI, during the course of his cross-examination, also stated that at the time of apprehension of the accused, no public person, came to the spot. Since, no public witness was present, at the time of the apprehension of the accused, his search and seizure, had any witness been joined, later on, he would not have been said to be a witness to the recovery. The evidence of the official witnesses, cannot be distrusted and disbelieved, merely on account of their official status. The evidence of the official witnesses is trustworthy. In Akmal Ahmed v. State of Delhi. The evidence of the official witnesses, cannot be distrusted and disbelieved, merely on account of their official status. The evidence of the official witnesses is trustworthy. In Akmal Ahmed v. State of Delhi. 1999(2) RCC 297 (SC), it was held that, it is now well-settled that the search and 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. 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-A. In Appa Bai and another v. State of Gujrat, 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. 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. The trial Court was right, in placing reliance on the trustworthy evidence of the official witnesses, for coming to the conclusion that the accused committed the offence. 11. The trial Court was right, in placing reliance on the trustworthy evidence of the official witnesses, for coming to the conclusion that the accused committed the offence. 11. The next question, that arises for consideration, is, as to whether, the report of the Forensic Science Laboratory, was per se admissible or not, and, and whether as per the result of the Forensic Science Laboratory, the accused was found in possession of any narcotic drug. The resort of the Forensic Science Laboratory, as per the provisions of Section 293 of the Criminal Procedure Code, was per se admissible. All the contents recorded therein, could be read into evidence. The report Ex. PH, of the Forensic Science Laboratory, is reproduced in verbatim as under : Parcel No. No. & seal impression Description of parcel(s) I to XV 1 of B.S. & 1 of S.C. On each parcel Fifteen sealed glass quarters marked here as GN-845196 (Exh.I to Exh.-XV) Laboratory Examination Chemical tests and techniques were employed to detect major alkaloids of opium and ethyl alcohol in Exh.-I to Exh-XV. Contents of morphine and ethyl Alcohol were estimated quantiatively in Exh.I to Exh.XV. Morphine, Codeine, Thebaine, Papaverine, Narcotine alongwith Meconic Acids were detected in Exh.I to Exh. XV. Morphine content of Exh.I to Exh.-XV were found to be of. 066% W/V to .096% W/V. Ethyl Alcohol was also detected in Exh.I to Exh. XV. Ethyl Alcohol content of Exh.I to Exh.-XV were found to be 37.6% V/V to 58.20% V/V at 15.56 C. Based upon these examinations carried out in the laboratory, the result of analysis are as under : Result 1. Opium and Ethyl Alcohol were detected in Exh.I and Exh.-XV. 2. Morphine Content of Exh.I to Exh.XV were found to be .066% W/V to. 096% W/V. 3. Ethyl Alcohol content of Exh.I to Exh.XV were found to be 37.60% V/V to 58.20% V/V at 15.56 C. Note : The remanents of the Exh.I to Exh. XV are returned. 4. After examination, the exhibits have been sealed with the seal of SSO (Genl) FSL (H). The above discussed report Ex.PH of Forensic Science Laboratory, thus, reveals that all the samples analysed, contained Morphine, Codeine, Thebaine, Papaverine and Narcotine and meconic acids. XV are returned. 4. After examination, the exhibits have been sealed with the seal of SSO (Genl) FSL (H). The above discussed report Ex.PH of Forensic Science Laboratory, thus, reveals that all the samples analysed, contained Morphine, Codeine, Thebaine, Papaverine and Narcotine and meconic acids. The description of above alkaloids has to be read in conjunction with the description of opium derivative contained in Section-2, (XVI) (c) which defines that "opium derivative" means : "phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts." The aforesaid description of "opium derivatives" has also to be read in conjunction with the definition of "manufactured drug" as defined in Section 2(xi) (a) of the Act, which reads as under : "a manufactured drug means all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate. " 11-A. From the careful reading of the report Ex.PH, it is evident, that morphine, codeine, papaverine, narcotine and meconic acids, were present therein. All these ingredients were sufficient to bring the contents of the sample, in question, within the definition of "opium derivative", as defined by Section 2 (XVI)(c) of the Act. Such "opium derivative", as per the description of "manufactured drug" contained in Section 2(xi)(a) brings the contents of the sample within the definition of narcotic drug, the possession whereof was banned by Section 21 of the Act. The trial Court, in my considered opinion, came to the correct conclusion. The reappraisal of the report of the Forensic Science Laboratory, and the other evidence, also indicates that the finding of the trial Court, in this regard, does not suffer from any infirmity. This Court, therefore, endorses the conclusion, arrived at by the trial Court, in this regard. 12. No doubt, the sample, in this case, was sent to the Forensic Science Laboratory, after a delay of 16 days. Whether mere delay in sending the sample, in itself, is sufficient to come to the conclusion, that the same was tampered with, at any stage, until it was sent to the Forensic Science Laboratory, is the question which requires determination. Mere delay in sending the samples does not, in any way, give rise to an inference that the same were tampered with, until the same were sent to the office of the Forensic Science Laboratory. Mere delay in sending the samples does not, in any way, give rise to an inference that the same were tampered with, until the same were sent to the office of the Forensic Science Laboratory. The prosecution could certainly produce other independent evidence, that none tampered with the samples, till the same reached the office of the Forensic Science Laboratory. The evidence produced, by the prosecution, clearly indicates that the samples remained untampered with, until the same reached the office of the Forensic Science Laboratory. Ex.PH, is the report of the Forensic Science Laboratory. It is evident from the said report, that the seals on the parcels were intact, and tallied with the specimen seals, as per the forwarding authority. As stated above, the report of the Forensic Science Laboratory, is per-se admissible, under the provisions of Sections 293 of the Criminal Procedure Code, in its entirety. In this view of the matter, merely on account of sending the sample, after a delay of 16 days, to the office of the Forensic Science Laboratory, did not at all prove that it was tampered with. The trial Court was right, in coming to this conclusion. This Court endorses the conclusion of the trial Court, in this regard. 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 8.2.1999, and the order of sentence dated 9.2.1999, are upheld. The bail bonds of the appellant are cancelled. The Chief Judicial Magistrate, Karnal, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 Criminal Procedure Code. Appeal dismissed