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2010 DIGILAW 351 (PNJ)

Mukhtiar Singh v. State Of Punjab

2010-01-14

HARBANS LAL

body2010
Judgment HARBANS LAL, J. 1. This appeal is directed against the judgment/order dated 20.10.2003 passed by the court of learned Judge, Special Court, Jalandhar whereby he convicted and sentenced Mukhtiar Singh accused to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1.00 lac under Sec.15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity the Act)and in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Shortly put, facts of the prosecution case are that on 30.5.2001 inspector Gian Singh received a secret information that accused Mukhtiar Singh was indulging in unlawful business of poppy husk and he was very much present in his residential house in which he has constructed two shops abutting the road and that the shops have been fitted with iron shutters towards the road side and there is a door from the entrance opening in one of the shops and he has been selling poppy husk from the door opening in the entrance of the house. It was also informed that he is packing poppy husk in the polythene bags and selling the same and if the house is raided, huge quantity of poppy husk can be recovered. Anil Kumar an independent witness was associated. The ruqa was sent to the Police Station where on its basis formal F. I. R. was recorded. The accused was apprehended while present in front of his house. He was told that he was suspected for having poppy husk in his shops. He was apprised of his right to have search of the shops in the presence of a Gazetted Officer or a Magistrate. He offered to have the same before a Gazetted Officer. On receipt of message, Dharam Singh DSP came at the spot. On search of the shops, six bags containing poppy husk were recovered. From each bag, two samples of 250 grams each were drawn and controverted into parcels. The residue of each bag weighing 34 kgs 500 grams was also controverted into parcels. All the parcels were sealed with the seal DS belonging to the aforesaid D. S. P. and another seal bearing impression GS relating to the Investigator Gian Singh who handed over his seal to Anil Kumar independent witness, whereas D. S. P. retained his own seal with him. All these parcels were seized vide recovery memo. All the parcels were sealed with the seal DS belonging to the aforesaid D. S. P. and another seal bearing impression GS relating to the Investigator Gian Singh who handed over his seal to Anil Kumar independent witness, whereas D. S. P. retained his own seal with him. All these parcels were seized vide recovery memo. The rough site plan showing the place of recovery was drawn. The accused was arrested. On return to the Police station, the case property with seals intact was deposited with the MHC Malkiat rai. After completion of investigation, the charge sheet was laid in the court for trial of the accused. 3. The accused was charged under Sec.15 of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW-1 Constable Bakshish Singh, PW-2 D. S. P. Dharam singh, PW-3 Inspector Gian Singh, PW-4 Head Constable Malkiat Rai and closed its evidence. 4. When examined under Sec.313 Cr. P. C. the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well false implication. He took up the following plea:- "i am innocent. I have been falsely implicated in this case. The shop from where poppy husk is alleged to have been recovered was not in my possession. In fact, the property in which the said shop is located, is owned by my father and in that property there are two shops and a residential house at the back which is in possession of my brothers. I am living separately from my brothers. I have been falsely implicated in the above said case by calling from my house. " 5. In his defence he examined Jaspal Singh DW-1 and Raj Kumar DW-2. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith he has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith he has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. To begin with the learned counsel for the appellant urged with a good deal of force that Anil kumar the so called eye witness to whom the seal after use was allegedly entrusted by the Investigator has not been examined and as its consequence, the appellant has been deprived of his valuable right to cross-examine him. For his non-production at the trial, an adverse inference under illustration (g) of section 114 of the Indian Evidence Act, ought to be drawn against the conduct of the prosecution. This contention merits rejection. The Honble Supreme Court in re: Masalti Vs. State of U. P. AIR 1965 SC 202 has held as under:- " It is undoubtedly the duty of the prosecution to lay before the court all material evidence available to it, which is necessary for unfolding its case. It would be unsound to lay down it as general rule that every witness must be examined, even though his evidence may not be very material or even if it is known that he has been won over or terrorized. " 6. In re: Roop Singh Vs. State of Punjab 1996 (1) Recent Criminal reports (Criminal) 146 the Division Bench of this Court has held as under:- "a Panch-witness may turn hostile and not support the case of the prosecution or may be hesitant in appearing in the Court and depose against an accused for various reasons from fear to bribe. He is an average and ordinary human being and quite exposed and vulnerable to the human feelings of yielding, brow-beating, threats, inducements, etc. To figure as a Panch- witness at the stage of police investigation, is one thing, and thereafter to give evidence before the Court is entirely a different thing. In fact, a Panch-witness generally think twice before entering into a witness-box and if at all he enters the same, one would not be surprised if he does not support the prosecution because of variety of the reasons mentioned above. In fact, a Panch-witness generally think twice before entering into a witness-box and if at all he enters the same, one would not be surprised if he does not support the prosecution because of variety of the reasons mentioned above. Therefore, the fact that the prosecution has given up the independent public person Nirbhai Singh having been won over by the accused persons, is fully justified in the present-day situation prevailing in the Society and no adverse inference against the prosecution can be drawn in this case. " 7. In re: Piara Singh Versus The State of Punjab 1982 (2) Chandigarh law Reporter 447 the Full Bench of this court as held as under:- "that in the ultima ratio criminal trials ordinarily turn and must continue to do so on the credibility and acceptability of the evidence on record. It is not possible to hold that a criminal trial would succeed or fail merely on the technicality of the delivery of an investigating seal to a third person or the latters refusal or inability to appear as a witness about the same. It is more so in the admitted position that there is no statutory requirement what-so-ever to this effect. " 8. If the matter is viewed in the background of the observations extracted from Piara Singhs case (supra) there is no requirement of law to hand over the seal after use to an independent witness or if the same has been given to an independent witness, his non-production in itself would not affect the merits of the trial. The said independent witness has been given up on the specific pretext of having been won over by the accused. The possibility can not at all be ruled that the witness of the prosecution case later on join hands with the accused and in that eventuality prosecution cannot be expected to produce the person as its witness who to its own knowledge is not going to support its case. Thus, the case of the prosecution cannot be thrown overboard merely because of non-examination of Anil Kumar. 9. It is further argued on behalf of the appellant that there is delay of as many as 11 days in sending the sample parcels to the Chemical examiner. In re:ramji Singh Vs. Thus, the case of the prosecution cannot be thrown overboard merely because of non-examination of Anil Kumar. 9. It is further argued on behalf of the appellant that there is delay of as many as 11 days in sending the sample parcels to the Chemical examiner. In re:ramji Singh Vs. State of Haryana 2007 (3) Recent Criminal Reports (Criminal) 452 the delay of 8 days in forwarding the sample parcels to the Chemical Examiner has been viewed seriously. In re: gurjant Singh Vs. Punjab 2007 (4) Recent Criminal Reports (Criminal) 226 it has been held that delay of 14 days in sending the samples to the Chemical Examiner is a serious flaw in the link evidence. In re: Janta Singh Vs. The State of punjab 2008 (2) Chandigarh Law Reporter 211 the sample was sent to the office of the Chemical Examiner after about a period of six days. It was held that had any explanation been furnished the matter would have been considered, in the light thereof, but in the absence of any explanation, having not been furnished in this regard, the Court cannot coin any of its own. In the instant case, delay having not been explained ought to be viewed seriously. I regret my inability to be one with the learned counsel for the appellant for the discussion to follow hereunder:- In re: Jaili Vs. The State of Haryana 2008 (2) Recent Criminal reports (Criminal) 264, there was a delay of one month in sending sample to the forensic Science Laboratory. There was no evidence that samples of the case property were tampered with. The seals on the samples, tallied with the specimen seal as per the forwarding authority letter. Under these circumstances, it was held by this Court that mere delay in sending the samples did not, in any way cause 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 forensic Science Laboratory. Further in re: Mohan Singh Vs. State of Punjab, 2007 (4) Recent Criminal Reports (Criminal) 705, there was a delay of 10 days in sending the samples to the Forensic Science Laboratory. Further in re: Mohan Singh Vs. State of Punjab, 2007 (4) Recent Criminal Reports (Criminal) 705, there was a delay of 10 days in sending the samples to the Forensic Science Laboratory. It was held by the division Bench of this Court that mere delay in sending the same to the laboratory is not fatal, when there is evidence that the seized articles were kept in proper and safe custody. Further in re:ganesh son of Kapil Dev, resident of Haraj, Police Station Sheela Ganj, district Moti Hari (Bihar) Vs. The State of Haryana, 2009 (2) Recent Criminal reports (Criminal) 39, there was a delay of 7 days in sending the sample to the forensic Science Laboratory. The delay was not explained. It was held that the prosecution has led cogent and convincing evidence that the sample was not tampered with during the period and thus the delay was not fatal to the prosecution. Again in Motia Bai Vs. State of Haryana, 2005 (3) Recent Criminal reports (Criminal) 56, there was a delay of 20 days in sending the sample to the forensic Science Laboratory. There was no evidence that the sample was tampered with. The report of the Forensic Science Laboratory indicated that the seals of the sample were intact, when it reached the laboratory. The conviction was upheld. In re: State of Orissa Vs. Kanduri Sahoo, 2004 (1) Supreme Court Cases 337, the sample of cannabis (ganja) was sent for chemical examination after four days of recovery. It was observed by the Apex Court that "the evidence of PW-1 was categorical to the effect that the articles were kept in the Excise malkhana from where they were brought and sent for chemical examination. This relevant aspect appears to have been missed by the High Court. In Valaslas case (supra) it was not laid down that whenever there is delay in sending the samples, the prosecution version would become vulnerable. What was emphasized related to proper and safe custody of the seized articles. In the background to that particular case, when delay of 3 months was there and there was no clear evidence as to with whom the articles were lying, the decision was rendered. No evidence was led to show that the contraband articles were in proper custody and in proper form. But the factual situation is different here. In the background to that particular case, when delay of 3 months was there and there was no clear evidence as to with whom the articles were lying, the decision was rendered. No evidence was led to show that the contraband articles were in proper custody and in proper form. But the factual situation is different here. That being so, the High Courts judgment does not stand scrutiny and is set aside. The conviction as done by the trial Court was proper. " It was also held that merely because the articles were kept in the excise malkhana for four days would not make the prosecution version suspect. 10 Reverting back to the instant case, the Chemical Examiner in his report Ex. PG has mentioned with specificity that the seals of the exhibits were intact and agreed with the seal sent. Further the Investigator Gian Singh (sic)has solemnly affirmed that "on coming to the CIA staff I deposited the case property with seals intact with MHC Malkiat Rai. So long as the case property remained with me it was not tampered with in any manner either by me or any body else. " Bakshish Singh constable PW-1 who carried sample parcels to the office of the Chemical Examiner has stated in unequivocal terms that "so long as the sample and docket remained in my custody, I did not tamper with it nor I allowed any body to tamper with the same. " Malkiat Rai HC (PW-4) with whom the case property was deposited has solemnly affirmed in his affidavit Ex. PX that so long as the case property including the sample parcels remained in my custody I did not tamper with their contents nor the same were allowed to be tampered with by any body else. This entire evidence is a clincher towards the fact that the link evidence is complete. Thus, this contention pales into insignificance. The next argument having been raised on behalf of the appellant is that the conscious possession of the appellant over the contraband has not been established as he is not in possession of the house and shops from where the alleged recovery has been made. This contention is unacceptable. The appellant has not adduced any documentary evidence showing that he is residing at some place other than the place of recovery. This contention is unacceptable. The appellant has not adduced any documentary evidence showing that he is residing at some place other than the place of recovery. Had he been living in some other place in all probabilities he would have produced his voter card or ration card etc. Jaspal Singh DW-1 has testified that the said house belongs to Bana Ram father of the accused, and that Bana Ram has died about 5 years ago; that the aforesaid house is lying locked ever since the death of Bana Ram, because after death of Bana Ram, his sons has dispute regarding his ancestral house; that even shops that are constructed in the said house, are lying locked under the lock of the brothers of the accused. 11 I have well considered this evidence. 12. The appellant has not produced any cogent or convincing evidence to the effect that some dispute with regard to this house is going on. Raj Kumar dw-2 has also stated in identical terms. To my mind, ipse dixit trickled from the respective mouths of these defence witnesses would not be enough to say that the place from which the recovery has been effected is lying locked due to some dispute and the same is not in possession of the appellant. To crown it all, by no stretch of speculation, it can be assumed that the Investigator of the rank of Inspector would have been able to arrange such a huge quantity of poppy husk for being planted on the appellant particularly when the record is quite barren to show that he is inimically disposed off towards the appellant. There is nothing on the record to show that at the time of recovery any inmate was present in the house. To prove his joint possession, the appellant has not adduced any luculent evidence. Thus, there can be no escape from the finding that the place of recovery was in exclusive possession of the appellant and resultantly his conscious possession qua the recovered poppy husk stands established. 13. The learned counsel for the appellant had been emphatic in the course of arguments that Dharam Singh Uppal D. S. P. PW-2 being not signatory to the rough site plan Ex. PE his presence at the spot is rendered highly doubtful. I am unable to persuade myself to agree with this submission. 13. The learned counsel for the appellant had been emphatic in the course of arguments that Dharam Singh Uppal D. S. P. PW-2 being not signatory to the rough site plan Ex. PE his presence at the spot is rendered highly doubtful. I am unable to persuade myself to agree with this submission. The law does not contemplate that the rough site plan showing the place of recovery ought to be signed by the recovery witnesses. Thus, this contention being devoid of any merit is turned down. No other material point has been urged or agitated by either counsel. 14. On scrutinizing and analysing the entire evidence with due care and caution, it transpires that the impugned judgment does not suffer from any infirmity or illegality. Sequelly, this appeal stands dismissed. Vide order dated 15.12.2006 passed by this Court in Criminal Misc. No.58045 of 2006 the sentence of the appellant was suspended during the pendency of the appeal. The registry is directed to send a copy of this judgment to the trial Court as well as the learned Chief Judicial Magistrate, Jalandhar for taking necessary steps to send the appellant to the prison for serving out the unexpired period of his sentence. Since main appeal has been decided, all Criminal Miscellaneous stands disposed of.