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2009 DIGILAW 941 (PNJ)

Shyam Lal v. State Of Haryana

2009-05-15

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction and the order of sentence dated 14.03.1997, rendered by the Court of Special Judge, Rewari, vide which it convicted and sentenced Shyam Lal, accused (now appellant), as under :- Name of the accused (now appellant) The offence for which conviction was recorded. Sentence awarded Shyam Lal U/Section 7 of the Essential Commodities Act, 1955 . Rigorous imprisonment for two vears. Fine of Rs. 10.000/-. In default of payment of fine to undergo rigorous imprisonment for six months. Accused namely Amar Singh, was, however, acquitted. 2 The facts, in brief, are that on 24.01.1995, Pohap Singh, Inspector of C.I.A. Staff, accompanied by Surender Singh, Head Constable and other Police officials, was present at Railway Crossing Kutubpur, in connection with the general checking, when a secret information was received, to the effect, that Shyam Lal son of Chiranji Lal, resident of MohallaThathera, who was having a cement go-down at Bharawas Road. Rewari, near a temple, used to sell the duplicate cement. It was also informed by the informant. that he had come with such spurious cement in Tata-Four Wheeler and was unloading the same. in his go-down. It was further informed that if a raid was conducted, he could be apprehended red handed. The information was found to be reliable. Therefore, ruqa Ex.PA was sent to Police Station, Sadar Rewari, on the basis whereof, FJR Ex.PA/1 was registered. 3. Pohap Singh, Inspector, constituted a raiding party and went to the godown of Shyam Lal, at Bharawas Road, where he was found present. busy in unloading the cement from TATA vehicle, bearing registration No. RJ-02-1665. In total, 90 bags of cement were found there, out of which, 85 bags of cement were still in the vehicle and five bags of cement had been unloaded therefrom. Out of the total bags of cement, 45 bags were carrying Marka ISI JK 43, 45 bags were of Marka ISI Chetak Super 43 Grade. From each of the bags, 100 grams cement as sample, was taken out, and put in a separate packet. The sample packets and the bags, containing cement, were taken into possession, vide separate recovery memo. The vehicle, in question, was also taken into possession, vide separate recovery memo. Seizure memo Ex.PD was prepared. Rough site plan of the place of occurrence, was prepared. The sample packets and the bags, containing cement, were taken into possession, vide separate recovery memo. The vehicle, in question, was also taken into possession, vide separate recovery memo. Seizure memo Ex.PD was prepared. Rough site plan of the place of occurrence, was prepared. The statements of the witnesses were recorded. Shyam Lal, accused was arrested at the spot, whereas, the other accused namely Amar Singh was arrested on 27.01.1995. The samples were sent to the office of the Forensic Science Laboratory, Madhuban,which vide report Ex.PH, gave the opinion that the samples do not conform to the ISI specifications. After the completion of investigation, the accused were challaned. 4. On their appearance, in the Court, the accused were supplied the copies of all the documents, relied upon by the prosecution. Charge under Section 7 of the Act, against the accused was framed. to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Raghbir Singh, Assistant Sub Inspector, (PW-J), Rohtash, Head Constable, (PW-2), Surender Singh, Head Constable, (PW-3), Bikram,(PW-4), Krishan Singh, (PW-5) and Pohab Singh, Inspector, (PW-6). Thereafter, the Public Prosecutor for the State, after tendering into evidence the report of the Forensic Science Laboratory, Ex.PH, closed the same. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. The accused, however, did not lead any evidence, in their defence. 7. 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 Shyam Lal, accused, as stated hereinbefore, whereas Amar Singh, accused was, acquitted of the charge framed against him. 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was Filed by Shyam Lal, appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was Filed by Shyam Lal, appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant submitted that there was delay, in sending the samples, without any explanation, which caused a great prejudice to the accused, it was further submitted by him that the procedure adopted for taking the samples, was not in accordance with the provisions of law, as the same were put in the cloth bags instead of polythene bags. It was further submitted by him that no evidence was produced by the prosecution, to prove that the cement, was for sale. It was further submitted that no independent. witness was joined, at the time of the alleged occurrence. It was further submitted that the trial Court was, thus, wrong in recording conviction and awarding sentence to the accused. 11. On the other hand, the Counsel for the respondent, submitted that accused Shyam Lal was having a cement godown at Bharawas Road, Rewari, near a temple and there was a definite information against him that he was indulging in the sale of spurious cement, as a result whereof, the raid was conducted. He further submitted that such a large number of bags, containing spurious cement, could not be for any other purpose, than for sale. He further submitted that no evidence was produced that the same was required by the accused, for the construction of his house. He further submitted that the samples were drawn, in accordance with the provisions of law, Rules and Regulations. Fie further submitted that there was no provision of law that the samples of cement should only be taken in the polythene bags, and not in the cloth bags. He further submitted that mere delay in sending the samples, did not at all cause any prejudice to the accused as the same were found fit for analysis and were actually analyzed by the Laboratory.He further submitted that the efforts were made to join an independent witness, but none was ready and, therefore, the Investigating Officer was not successful in his attempt. Fie further submitted that the trial Court was right, in recording conviction, and awarding sentence to the accused. 12. Fie further submitted that the trial Court was right, in recording conviction, and awarding sentence to the accused. 12. Pohab Singh, Inspector, (PW-6), who was In-charge of the raiding party, in his statement, stated that the accused was having a cement godown at Bharawas Road, where the raid was conducted. He further stated that Shyam Lal, accused, was found present near Four-wheeler bearing No. 1665, parked adjoining the go- down. He further stated that the accused was unloading the bags, containing cement, in his go- down and five bags of cement, had already been unloaded from the same, Whereas 85 bags of cement, were found in the four-wheeler. He further stated that Shyam Lal, accused was arrested at the spot. He further stated that the samples, which were taken from the aforesaid bags, were sent to the Forensic Science Laboratory, Madhuban, (Karnal). Vide report Ex.PH, submitted by the Forensic Science Laboratory, Madhuban, (Karnal), it was opined that the cement samples did not conform to the ISI specifications. It means that the cement, contained in 90 bags, which Sham Lal, accused was found unloading in his go-down, was spurious and not genuine. The statement of Pohap Singh, Inspector,(PW-6) was duly corroborated by Surender Singh, Plead Constable, (PW-3), a witness to the recovery. Both Pohap Singh, Inspector, (PW-6) and Surender Singh, Head Constable, (PW-3) were thoroughly cross- examined. During the course of their cross-examination, nothing of consequence, could be got elicited from their mouth, which may go to discredit their evidence. They stood the test of touch-stone of all probabilities, during the course of cross-examination. There was no reason, on the part of these witnesses, to depose falsely, against the accused. Since Shyam Lal, accused, was found in possession of 90 bags, containing spurious cement, it was for him to explain, as to what for, he had brought the same, as this fact was within the special means of his knowledge. It was not one or two bags of spurious cement, which were found in possession of the accused. There is nothing on record, that the cement was brought by the accused with a view to construct his house or for repairs. Even, it was not the case of the accused, that he was raising construction of the house, and for that purpose, he brought 90 bags, containing the aforesaid spurious cement. There is nothing on record, that the cement was brought by the accused with a view to construct his house or for repairs. Even, it was not the case of the accused, that he was raising construction of the house, and for that purpose, he brought 90 bags, containing the aforesaid spurious cement. The mere possession of the accused, in relation to such a big haul of spurious cement, clearly gave rise to an inference that the same was brought by him, for sale only and not for any other purpose. In these circumstances, the submission of the Counsel for the appellant, to the effect that 90 bags, containing spurious cement, were not for sale, being without merit, must fail, and the same stands rejected. 13. The Counsel for the appellant, however, placed reliance on Prem Kumar v. State of Haryana, 2008(3) RCR (Criminal) 335, in support of his contention that the bags, containing cement, aforesaid, were not for sale. In Prem Kumars case (supra), the facts were that the accused were engaged for transportation of the fertilizer for the farmers, who wanted to use the same, for their own agricultural purpose. In that case, Bhag Singh, DW-1, Sohan Singh, DW-2, and Mehnga Singh, DW-3 had appeared and stated that they had purchased the bags, containing fertilizer, which were being transported by the accused. They also produced receipts regarding the transport charges. Even the witnesses, produced by the prosecution, stated that the accused had not purchased the fertilizer from their shops. From the entire evidence, including the defence evidence, produced, in that case, the Court came to the conclusion, that the accused was only transporting the fertilizer for the farmers in the vehicles, who purchased the same, and the same was not for sale by him. It was, under these circumstances, that the conviction of the appellant, in that case, was set aside. The facts and circumstances of the aforesaid case, are clearly distinguishable, from the facts of the instant case. In the instant case, no evidence was produced by the accused that the bags, containing spurious cement w ere not for sale, but for the construction or repair of his house. No evidence was also produced that the bags, containing spurious cement, were being transported by the accused as the same had been purchased by various customers, from different shops. In the instant case, no evidence was produced by the accused that the bags, containing spurious cement w ere not for sale, but for the construction or repair of his house. No evidence was also produced that the bags, containing spurious cement, were being transported by the accused as the same had been purchased by various customers, from different shops. No help, therefore, can be drawn, by the Counsel for the appellant, therefrom. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. The next submission of the Counsel for the appellant, that on account of delay, in sending the samples to the office of the Forensic Science Laboratory, Madhuban, (Karnal), a great prejudice was caused to the accused, is also devoid of merit. The recovery, in this case, no doubt was effected on 24.01.1995, whereas the samples were sent to the Forensic Science Laboratory, Madhuban, (Karnal) on 02.02.1995 i.e. after the delay of 09 days. Even if, it is assumed, that there was delay in sending the samples to the Forensic Science Laboratory, Madhuban, (Karnal) that fact, in itself, was not sufficient to cause any dent in the prosecution story. From Ex.PH, report of the Forensic Science Laboratory, Mad-huban,(Karnal), it is evident that the seals on the sample parcels were intact, when the same were received, in the said laboratory. Under these circumstances, the possibility of tampering with the sample parcels, until the same reached the office of the Laboratory,was completely ruled out. Even otherwise, the Forensic Science Laboratory, Madhuban, (Karnal) found the samples fit for analysis. Ultimately, the Laboratory analysed the samples, and found that the contents thereof, did not conform to the IS1 standards. In State of Orissa v. Kanduri Sahoo, 2004(1) RCR(Criminal) 196 : 2004(2) Apex Criminal 110 (SC), it was held that mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody. Since, it was proved that none tampered with the samples, until the same were received, in the office of the Forensic Science Laboratory, the submission of the Counsel for the appellant, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. Since, it was proved that none tampered with the samples, until the same were received, in the office of the Forensic Science Laboratory, the submission of the Counsel for the appellant, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. The submission of the Counsel for the appellant, in this regard, being without.merit, must fail, and the same stands rejected. 15. Coming to the next submission of the Counsel for the appellant, that the samples were not put in the polythene bags, but, on the other hand put in the cloth bags, it may be stated here, that the same does not carry any weight. No provision of law or the Rules, was cited by the Counsel for the appellant, that the samples were invariably required to be taken, in polythene bags, and not in the cloth bags. When the sample parcels were sent to the office of Forensic Science Laboratory, Madhuban, (Karnal), the seals were found to be intact. The contents of the sample parcels were found to be fit for analysis. U Itimately, the Laboratory, analyzed the contents of the samples and found the same to be not conforming to the 1SI standard. The Counsel for the appellant, could not, show as to what prejudice was caused to the accused on account of taking the samples in cloth bags instead of polythene bags. It, therefore, could not be said that the proper procedures was not adopted, at the time of taking the samples. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 16. No doubt, no independent witness could be joined. Pohap Singh, Inspector, when appeared in the witness box,as PW-6, stated that from the place, where the information was received, he did not make an attempt to join any independent witness. He, however, stated that when the Police party reached the spot, an attempt was made to join the independent witnesses, but they refused. It means that an effort was made, to join an independent witness, but the Investigating Officer did not succeed. There is nothing, on the record, that at the time of recovery, any independent witness was available, but he was not intentionally and deliberately joined. It means that an effort was made, to join an independent witness, but the Investigating Officer did not succeed. There is nothing, on the record, that at the time of recovery, any independent witness was available, but he was not intentionally and deliberately joined. If despite efforts, having been made by the Investigating Officer, he was not successful, in joining an independent witness, then his conduct could not be said to be blame-worthy. The evidence of the official witnesses, cannot be disbelieved and distrusted, merely, on account of their official status, in the face of the evidence of the official witnesses only, the Court is required to be put, on guard, to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from inherent infirmities, the same can be believed. The evidence of the prosecution witnesses, has been scrutinized carefully. Nothing came to the fore, during the course of their cross-examination, which may go to discredit the same. They stood the test of touchstone of all probabilities, during the course of their cross-examination. In Akmal Ahmed v. State of Delhi, 1999(2) RCC 297 (SC), 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 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." 16-A. In Appa Bai and another v. State of Gujarat, 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 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, is 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, being without merit, must fail, and the same stands rejected. 17. No doubt, Bikram, (PW-4), who was employed as Driver on vehicle No. RJ- 02/G-1665, from which, the bags of spurious cement, were recovered, stated that on 24.01.1995, none came to him to hire the said vehicle. He further stated that no cement was loaded, in the said vehicle, on that day. He further stated that no recovery of cement was effected by the Police, from the vehicle in question. It was from this vehicle that the recovery of the aforesaid bags, containing spurious cement, was effected. Ex.PC is the recovery memo, which bears the signatures of Bikram. He stated that his signatures were obtained on blank papers. Such explanation, furnished by him, does not appear to be plausible. Since this witness could sign, it could not be expected of him, to append his signatures on a blank paper. Even if, it is assumed, that his signatures were allegedly obtained by the Police, on blank papers, he could make a complaint to the higher Police authorities or higher Administrative authorities that no cement was loaded in the vehicle, aforesaid, by the accused, nor the same was hired by him, nor the recovery of aforesaid cement was effected from the same. He , however, did not make any such complaint and slept over the matter upto 1996, when he came to the Court and deposed in the manner, that no one came to him to hire the vehicle, nor the recovery of cement was effected, from the vehicle aforesaid. It may be stated here, that the case of the prosecution cannot be allowed to hinge on the statement of a single witness. The Court is required to scrutinize the evidence of the prosecution, as a whole, and come to the conclusion, as to whether, the same is cogent, reliable, and trust-worthy or not. Once the Court comes to the conclusion, after scrutiny of the evidence of the prosecution, as a whole, that the same is reliable and carries a ring of truth, then the mere fact that one of the witnesses though he may be an independent witness, did not support its case, does not cause any dent. The other evidence has been thoroughly scrutinized, and it has been found, to be cogent, convincing, credible and trust-worthy. The trial Court was right in relying on the same. In State of Rajasthan v. Udai Lal, 2008(2) RCR(Crl) 956: 2008(3) RAJ 443 (SC), four independent witnesses were joined, and examined by the prosecution". They all resiled, from their previous statements. However, they admitted their signatures, on the documents. In these circumstances , the Apex Court held that their evidence should be ignored as they were untruthfulness witnesses, and reliance, on the evidence of other witnesses, could be placed, to bring home the guilt to the accused. Ultimately, the accused was convicted, on the basis of the other evidence, produced by the prosecution. In the instant case, the other evidence led by the prosecution has been held to be cogent and convincing and the trial Court was right in placing reliance on the same. In P.P. Fathima v. State of Kerala, 2004(1) RCR(Criminal) 81 : 2004(2) Apex Criminal 23 (SC), the Panch witnesses did not support the case of the prosecution. It was held that their evidence, by itself, would not be fatal to the case of the prosecution. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. The prosecution, acted in an impartial and bona fide manner, in examining Bikram, independent witness. It was held that their evidence, by itself, would not be fatal to the case of the prosecution. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. The prosecution, acted in an impartial and bona fide manner, in examining Bikram, independent witness. Had he been not examined, then the allegation against the prosecution, would have been that the independent witness had not been examined by it, and, as such the material evidence had been withheld by it. On account of non-corroboration of the evidence of other witnesses, by Bikram, no dent was caused in the prosecution story, in any manner. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 18. It was next submitted by the Counsel for the appellant, that the appellant, has been facing the agony of protracted criminal proceedings since January, 1995, the date when the case was registered against him i.e. for the last more than 13 years and , as such, a lenient view be taken, by granting him the benefit of the provisions of the Probation of Offenders Act. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The accused (now appellant) committed an economic offence. He was selling spurious cement, for minting money, knowing very well that when the same was used for the construction of any building,it (building) will fall like the house of cards and the valuable lives" of some persons, may be lost. In such like cases, no leniency can be shown, in the matter of imposition of sentence or reduction thereof. Even it is not a fit case, in which the benefit of the provisions of Probation of Offenders Act should be extended to the accused-petitioner. In State of Kamataka v. Murlidhar, 2009(2) RCR(Criminal) 469:2009(2) RAJ 513: (2009(2) Law Herald 1377 (SC), it was held that imposition of sentence without considering its effect on the social order in many cases, may be, in reality, a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, da-coity, kidnapping, misappropriation of public money, treason and other offences, involving moral turpitude or moral delinquency which have great impact on social order, and, public interest, cannot be lost sight of and per se require exemplary treatment. The social impact of the crime, e.g. where it relates to offences against women, da-coity, kidnapping, misappropriation of public money, treason and other offences, involving moral turpitude or moral delinquency which have great impact on social order, and, public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentence or taking too sympathetic view merely on account of lapse of time, in respect of such offences will be result-wise counter productive in the long run and against societal interest, which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system. Keeping in view the principle of law, laid down, in the aforesaid case, by no stretch of imagination, it can be said that it is a fit case, warranting the reduction of sentence or grant of the benefit of the provisions of the Probation of Offenders Act. The sentence awarded by the trial Court, is commensurate with the proved guilt of the accused. It is neither harsh nor excessive. In these circumstances, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 19. No other point, was urged, by the Counsel for the parties. 20. 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. 21. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. 22. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit the compliance report within two months. 23. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame. The Registry shall keep track of the matter, and put up the compliance report, if received, within the time frame. 23. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame. The Registry shall keep track of the matter, and put up the compliance report, if received, within the time frame. Even if, the same is not received, within the time frame, the matter shall be put up, within 10 days, after the expiry of the same.