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2010 DIGILAW 2872 (PNJ)

Jagrup Singh v. State Of Punjab

2010-10-08

A.N.JINDAL

body2010
Judgment A.N.Jindal, J. 1. This judgment shall dispose of two Criminal Appeal Nos. 1078 and 935-SB of 1998. 2. Jagrup Singh and Kirru appellants-accused (herein referred as the accused) were prosecuted for keeping in their possession 2 kgs. of opium in their possession, consequently, they were convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- each under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein referred as the Act). 3. The prosecution story, in nutshell, is that on 08.09.1997, Sub Inspector Tejinder Singh alongwith other police officials was present at Lohgarh T point on Chandigarh-Ambala Road, near Dhillon Factory, in the area of Village Singhpura, in connection with a case under Section 18 of the Act against Baldev Singh and Rajinder Singh. They also joined Desa Singh son of Ganga Ram with them. DSP Harcharan Singh was also with them. In the meantime, accused Jagrup Singh, while driving a truck bearing registration No. HYJ-2567, came from the Ambala Side whereas accused Kirru was sitting by his side. On suspicion, Sub Inspector Tajinder Singh stopped the truck and after apprehending both the accused, gave an option that whether they wanted to get themselves searched in the presence of a Gazetted Officer or a Magistrate. In this regard, their statements Ex.PC were recorded. Thereafter, on search of the truck in the presence of DSP Harcharan Singh, opium wrapped in glazed paper from underneath the rear seat of the truck was recovered, which, on weighment, was found to be two kgs. After drawing the two samples of 10 grams each, the same were converted into parcels and the remaining bulk opium was put in a tin box and was converted into a separate parcel. All the parcels were sealed with the seals bearing impression TS and HS. The specimen of the seal was prepared on chit Ex. PD, which was attested by Sub Inspector Tejinder Singh, DSP Harcharan Singh and S.P. Kewal Kumar. Sub Inspector Tejinder Singh took all the three parcels into possession vide memo Ex. PE and also the truck bearing registration No. HYJ-2567 alongwith its registration certificate and national permit vide memo Ex. PF. Ruqa Ex. PG was sent to the police Station on the basis of which a formal FIR Ex. PG/1 was recorded. Sub Inspector Tejinder Singh, Investigating Officer prepared the site plan Ex. PE and also the truck bearing registration No. HYJ-2567 alongwith its registration certificate and national permit vide memo Ex. PF. Ruqa Ex. PG was sent to the police Station on the basis of which a formal FIR Ex. PG/1 was recorded. Sub Inspector Tejinder Singh, Investigating Officer prepared the site plan Ex. PH, personal search memo of the accused Ex. PJ, arrested the accused after disclosing them grounds of arrest vide memo Ex. PK. He also recorded the statements of witnesses. On return to the police station, he deposited the case property alongwith the seals intact with MHC Kuldip Singh on the same day i.e. 08.09.1997. On the receipt of the report of Chemical Examiner Ex. PL and on completion of investigation, challan was presented against both the accused. 4. They were charged under Section 18 of the Act, to which they pleaded not guilty and opted to contest. 5. In order to substantiate the charges, the prosecution examined Head Constable Kuldip Singh (PW-1), Constable Hans Raj (PW-2), DSP Harcharan Singh (PW-3), Sub Inspector Tejinder Singh (PW-4) and Inspector Kuldip Kumar (PW-5). 6. When examined under Section 313 Cr. P.C., both the accused denied all the incriminating circumstances appearing against them and they further explained that they were falsely implicated in the case on the pretext that Debo is their relative, who belonged to village Rohti Chhana. Some police officials had inscribed the words Jaib Katrian on her face which excited Debo to file a writ petition in the High Court against the said police officials, as such, on account of their relationship with Debo, they have been falsely implicated in the case. 7. In defence, they examined Head Constable Nachhattar Singh (DW-1). 8. The trial ended in conviction. 9. Arguments heard. Record perused. 10. As usual, the first contention raised by learned counsel for the accused is that the sole independent witness, joined by the police party, has not been examined, therefore, in the absence of any corroboration from the independent source, the case of the prosecution could not be said to be proved beyond doubt. Having pondered over this contention, the same sans any merit. Des Raj, an independent witness, was joined by the police party, who attested the consent memo Ex. PC and recovery memo Ex. PE. Having pondered over this contention, the same sans any merit. Des Raj, an independent witness, was joined by the police party, who attested the consent memo Ex. PC and recovery memo Ex. PE. Undisputedly, he was given up as being won over but it is not the quantity of evidence, which weighs but it is the quality of evidence which weighs with the mind of the Court. The official witnesses are as good as the private witnesses and could be equated at par with the independent witnesses. Their testimonies cannot be thrown away merely on the ground of their official status. They are also worried about their service prospectus and they cannot be presumed to tell lie every time without any rhyme or reason. They are assigned a solemn act of directing the crime but they cannot be dubbed as interested witnesses without any interest therein. At the same time, it is the general tendency among the independent witnesses either not to join official witnesses or if they join then they withhold themselves for variety of reasons viz. to avoid enmity with the accused or of their families to avoid unwanted harassment in the courts and wastage of time, therefore, the non-examination of independent witnesses hardly affects the substratum of the case. Moreover, the accused has failed to level any allegation with regard to the hostility or enmity of the police officials against them and they had no motive to implicate them falsely in the case. They have withstood the test of cross-examination and despite the lengthy cross-examination, no material discrepancy or contradiction has come in their testimonies which may turn the recovery of contraband as doubtful, therefore, in the absence of any enmity or malice by the police officials against the accused to implicate them in the false case, their evidence cannot be ignored. Mere allegations that they were related to Debo, who had filed the writ petition in the High Court against some police officials, therefore, they were implicated in this case, is of no consequence. It is not explained as to how they were related to Debo. Admittedly, the writ petition was not filed against Sub Inspector Tejinder Singh, Investigating Officer or the other police officials of the police party, who had apprehended the accused, therefore, this mere allegation is hardly sufficient to condemn the entire police force, who are on their job to detect the crimes. Admittedly, the writ petition was not filed against Sub Inspector Tejinder Singh, Investigating Officer or the other police officials of the police party, who had apprehended the accused, therefore, this mere allegation is hardly sufficient to condemn the entire police force, who are on their job to detect the crimes. 11. I also do not find any merit in the contention that there was delay in sending the samples to the Chemical Examiner. There are no allegations that the seals of the sample were tempered and it is also a matter of common experience that sometimes business of the police officers in their official duties, becomes the cause of delay in sending the samples. There is nothing to show if the accused were prejudiced in any manner for this small delay. In this regard, reliance could be placed over the judgment delivered in case Sher Singh @ Shera v. State of Punjab, 2010(1) RCR (Criminal) 474, wherein it was observed as under :- "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 untempered with until the same reached the office of the Chemical Examiner, the matter would have been different. 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. In Narinder Singh @ Nidhi v. State of Punjab, 2005(3) RCR (Criminal) 343 (P&H), 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. 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 04 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." 12. The other argument of the learned counsel for the appellants that there was a violation of Section 57 of the Act for not sending the special report to their immediate official superiors also does not hold water. The Investigating Officer sent ruqa to the police station for registration of the case and it was mentioned that the special reports were to be sent to the Higher Authorities and also to the Ilaqa magistrate. This fact has been corroborated by Sub Inspector Tejinder Singh (PW-4). Moreover, Investigating Officer, who himself was the SHO, incharge of police Post Lohgarh, had deposited the case property with MHC with the seals intact, therefore, it appears that this directory provisions of law stood complied with and even non-compliance of such directory provisions, do not vitiate the recovery. 13. Learned counsel for the appellants has urged that the testimonies of the official witnesses namely DSP Harcharan Singh (PW-3), Sub Inspector Tejinder Singh (PW-4) and Inspector Kuldip Kumar (PW-5) are contradictory on material points, therefore, the same could not be placed reliance and that the accused cannot be said to have in conscious possession of the contraband. Having compared the statements of these official witnesses, no iota or doubt remains in mind that they are consistent on all the material points including the recovery of contraband, the conversion of opium into parcels, preparation of the sample seal chit and arrest of the accused. Minor discrepancies are bound to occur in the statements of the truthful witnesses as the human memory is likely to fade with the passage of time. Furthermore, in the absence of any enmity against the accused, they could not be contemned as interested witnesses. The recovery was effected from the place where they were sitting. Both the accused were from the village Ghawdan Kothi Distt. Sangrur, however, they were apprehended at a distant place in the odd hours of night at T point Lohgarh on Chandigarh-Ambala Road. The recovery was effected from the place where they were sitting. Both the accused were from the village Ghawdan Kothi Distt. Sangrur, however, they were apprehended at a distant place in the odd hours of night at T point Lohgarh on Chandigarh-Ambala Road. They were not transporting any goods or nothing was found from their possession, indicating that they were taking some commodity while holding the same in their truck. They could not explain as to under what circumstances, they were found there. The opium was also recovered from underneath the seat over which they were sitting, therefore, their conscious possession would be well inferred from the aforesaid circumstances, prevailing over the case. No other argument has been raised. Resultantly, both the appeals, being devoid of any merit, are dismissed.