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2010 DIGILAW 872 (PNJ)

Jagga v. State Of Haryana

2010-02-15

RAM CHAND GUPTA

body2010
Judgment Ram Chand Gupta, J. 1 Criminal Appeal No. 92-SB of 1999 filed by appellant- accused Jagga son of Avtar Singh; Criminal Appeal No. 164-SB of 1999, filed by appellant-accused Santokh Singh alias Pappi and Criminal Appeal No. 167-SB of 1999 filed by appellants-accused Chhinda and Kaili alias Karnail Singh are being decided by this common judgment as the same have arisen against the same judgment of conviction dated 15.1.1999 and order of sentence dated 18.1.1999, vide which all the appellants alongwith Suresh Kumar, accused (since expired during the pendency of trial), were convicted for offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as NDPS Act) and sentenced to undergo rigorous imprisonment for ten years each and to pay fine of Rs. 1,00,000/- each and in default of payment of fine to further undergo rigorous imprisonment for two years each. 2 The case of the prosecution is that on 9.11.1995, Suresh Kumar, ASI alongwith Chand Ram, HC; Ramesh Constable No. 1961, Ram Chander, Constable No. 985, and Om Parkash, Constable No. 1375 were going on foot on patrol duty for detection of crime from Village Madh to Nagpur. When they reached near 4th km mile stone on the road, they observed that one maruti car of white colour bearing registration No. DL-4C-5172 was lying parked near cotton fields on the right side of the road and that two persons were taking out gunny bags from the car and were passing on to the other three persons, who were keeping the said gunny bags on the cycles, one by one. On seeing the police party all those persons ran away, however police officials chased them and out of them one Suresh Kumar was over-powered. The names and addresses of three of the remaining four accused have been mentioned as Chhinda son of Bhagwan Singh, Kaili alias Karnail Singh son of Bhagwan Singh, Jagga son of Avtar Singh, all residents of Village Madh, on the plea that they were previously known to the police officials including Suresh Kumar, ASI. The accused, who was apprehended at the spot disclosed his name as Suresh Kumar son of Jiwan Dass, Caste Arora, Resident of Durga Colony, Hisar and that he was the driver of the said car bearing registration No. DL-4C-5172. The accused, who was apprehended at the spot disclosed his name as Suresh Kumar son of Jiwan Dass, Caste Arora, Resident of Durga Colony, Hisar and that he was the driver of the said car bearing registration No. DL-4C-5172. The name of the 5th accused was disclosed as brother of Jeet Ram, resident of Piranwali, who was handicapped (Tunda). 3 A notice in writing was served upon Suresh Kumar, co-accused to the effect that the ASI was having suspicion that there was some contraband substance in the gunny bags being lying in the maruti car and on the three cycles and that the same were to be searched. He was given offer to be searched either before a Magistrate or a gazetted officer, however, accused reposed confidence in the ASI and stated that he did not want to get searched before a Magistrate or a gazetted officer. Five gunny bags were lying in the maruti car and three gunny bags were lying on the carriers of the three cycles, i.e., one gunny bag on each of the three cycles. Sample of 100 gms each was separated from each gunny bag and the remaining bulk was weighed, which was found weighing 34 kgs and 900 gms. in each gunny bag. All the eight sample parcels and all the eight gunny bags containing remaining poppy husk were sealed with the seal of SKS and the seal after use was handed over to Chand Ram HC. Sealed parcels, sealed gunny bags, maruti car without documents and the cycles were taken into police possession by the ASI vide Memo Ex.PF, which was signed by Chand Ram, Head Constable and Ramesh Kumar, Constable. Notice issued to accused Suresh Kumar is Ex.PE and the reply of accused Suresh Kumar is Ex.PE/1. 4 ASI Sent ruqa Ex.PJ on the basis of which formal FIR Ex.PK was recorded. 5 After completing the investigation at the spot, the ASI reached the police station along-with the sealed parcels of recovered material. including samples, cycles, car and the accused and produced them before the SHO of the police Station, namely, Dilbagh Singh, ASI, who verified the investigation and put his own seal of DS on the sample parcels and on the remaining bulk and kept his seal with him and directed Suresh Kumar, ASI to deposit the case property with the MHC of the police Station. 6 The samples were sent to Chemical Examiner for analysis and on the receipt of report Ex.PC of Chemical Examiner, it was found that the samples were of poppy straw (Chura post). Remaining accused were also arrested and after completion of the investigation, report under Section 173 of the Code of Criminal Procedure (for short the Code) was filed for trial of all the five accused for offence under Section 15 of the NDPS Act. 7 After commitment of the case to the court of Sessions, learned Additional Sessions Judge framed charge against all the accused for offence under Section 15 of the NDPS Act, to which they did not plead guilty and claimed trial. 8 To substantiate the allegation against the accused, the prosecution has examined as many as 7 PWs. 9 PW1 is Raj Kumar, Head Constable, who tendered in evidence affidavit of his statement, Ex.PA to the effect that on 9.11.1995 while he was posted as MHC of Police Station Ratia, Suresh Kumar, ASI had deposited with him 8 gunny bags containing bulk poppy husk and 8 sample parcels sealed with the seals of SKS and DS and that he had handed over the sealed parcels in the same condition to Constable Sat Narain on 13.11.1995 for depositing the same with FSL, Madhuban. He had handed over to him receipt after depositing the same with the FSL, Madhuban. He specifically deposed in his affidavit that the sample remained duly intact with seals in his possession. 10 PW2 is Sat Narain, Constable, who tendered in evidence affidavit of his statement Ex.PB to the effect that on 13.11.1995, sample parcels sealed with the seals of SKS and DS were handed over to him by the MHC for depositing the same with FSL, Madhuban in the same condition and that he deposited the same and handed over the receipt to MHC. He also deposed that parcels were not, in any way tempered with till the same remained in his possession. 11 PW3 is Dharambir Singh, Inspector, who had prepared report under Section 173 Cr.P.C. of this case after receipt of the FSL report Ex.PC. 12 PW4 is Hari Chand, ASI, who had arrested Jagga, appellantaccused in this case on 14.7.1996. He had also arrested Santokh Singh, appellant-accused on 29.7.1996. 13 PW5 is Chand Ram, ASI, who was posted as Head Constable on 9.11.1995. 12 PW4 is Hari Chand, ASI, who had arrested Jagga, appellantaccused in this case on 14.7.1996. He had also arrested Santokh Singh, appellant-accused on 29.7.1996. 13 PW5 is Chand Ram, ASI, who was posted as Head Constable on 9.11.1995. He deposed that he alongwith Suresh Kumar, ASI and another police officials was going towards Village Nagpur from Village Madh for detection of crime and that when they reached on 4th km milestone on the road in the area of Nagpur, they observed a white colour maruti car, bearing Registration No. DL 4C 5172 parked near cotton fields, and he observed that two persons were taking out gunny bags from the car and handing over the same to three other persons and that the said three persons had kept one bag each on the three cycles present there. He further deposed that they had seen all the five persons running and that they chased them and one of them Suresh Kumar, accused was over powered, who has since expired, who was driver of the car. He further deposed that other accused succeeded in running. He further deposed that out of said four persons, one was Chhinda, others were Kaili alias Karnail Singh and Jagga son of Avtar Singh, present in Court, who were earlier known to them. He further deposed that the other accused was brother of Jagga Singh, who was also identified by him in the court as Santokh Singh @ Pappu. He further deposed that after serving notice Ex.PE upon Suresh Kumar accused, the gunny bags were searched and it was found that the same were containing poppy straw. Five gunny bags were in the car and the three were on the cycles. He also deposed that after separating 100 gms of poppy straw from each bag, the remaining were found weighing 34 kg 900 gms each. He also deposed that sample parcels and the bags containing remaining bulk was sealed with the seal of SKS and seal after use was handed over to him and all the sealed parcels were taken into possession vide memo Ex.PF. He also deposed that sample parcels and the bags containing remaining bulk was sealed with the seal of SKS and seal after use was handed over to him and all the sealed parcels were taken into possession vide memo Ex.PF. 14 He further deposed that Suresh Kumar, ASI, produced all the sealed parcels along- with car, cycles, and the accused before Dilbagh Singh, SHO of the police Station, who after verifying the investigation affixed his own seal of DS and directed Suresh Kumar, ASI to deposit all the sealed parcels with the MHC of the police Station. In the cross-examination he clarified that accused Santokh and Suresh were taking out gunny bags from the car and handing over the same to other accused and that the place of recovery is a straight road, which was visible. He also deposed that he was posted in the said police post for the last about 6 to 7 months. He also clarified that the accused were personally known to them. He also clarified that there are only 600 or 700 families in the village Madh and that about 100 to 150 residents of the said village were personally known to them. 15 PW6 is Suresh Kumar, ASI, i.e., the Investigating Officer of this case, who deposed regarding the whole case of the prosecution, as detailed above. He also deposed that accused Chhinda, Keli alias Karnail Singh, and Jagga were personally known to them, present in the Court and that the other accused Santokh Singh @ Pappu is brother of Jeet Ram and who is also present in the Court. He also deposed that he arrested accused Chhinda on 11.11.1995 and accused Keli on 21.12.1995 and that accused Santokh Singh and accused Jagga were arrested by ASI Hari Chand. He also clarified in the cross-examination that accused Santokh and Suresh were lifting gunny bags from the car. He also deposed that on the same day, they had also visited the houses of accused Chhinda, Keli and Jagga, however, they were not found available. He deposed that he was posted about 2 months before this occurrence in police Post Madh. However, he deposed that accused was not arrested by him in any other case and that they had not been joined investigation, in any other case by him. He deposed that he was posted about 2 months before this occurrence in police Post Madh. However, he deposed that accused was not arrested by him in any other case and that they had not been joined investigation, in any other case by him. 16 PW7 is Dilbagh Singh, the then SHO, Police Station Ratia, who deposed that on 9.11.1995 he recorded formal FIR Ex. PK on the receipt of ruqa Ex.PJ from ASI Suresh Kumar. He further deposed that ASI Suresh Kumar also produced before him his report Ex.PG alongwith sealed parcels, car and three cycles alongwith the witnesses and that he enquired from the witnesses and verified the investigation and affixed his own seal on the sample parcels and the remaining gunny bags and directed the ASI to deposit the same with the MHC. He also deposed that he made his endorsement Ex.PG/1 on report Ex.PG. 17 Statements of accused in terms of Section 313 Cr.P.C. were recorded, in which they denied the incriminating evidence coming against them and pleaded innocence. 18 Accused also examined a witness, namely, Hari Chand, DW1, Sarpanch of Village Madh, on the point that 8 bags of chura post could not be contained in maruti car 800 model and that at the most only six bags could be placed in the car. 19 After hearing learned public prosecutor for the State and learned counsel for the accused, learned Additional Sessions Judge, Hisar, convicted the appellants-accused and sentenced them, as aforementioned against which the present appeals have been filed. 20 I have heard learned counsel for the parties and have gone through the whole record carefully. 21 It has been argued by learned counsel for the accused that as per prosecution version only one accused Suresh, (died during trial) was apprehended at the spot and the present appellants-accused were named on the basis of disclosure made by Suresh Kumar, accused. It is further contended that no identification parade of the accused was got conducted by the police and hence, identification, which was done for the first time in the Court is of no value. It is further contended that no identification parade of the accused was got conducted by the police and hence, identification, which was done for the first time in the Court is of no value. It is further contended that no reliance can be placed upon testimony of police officials that appellants-accused were personally known to them as it has been admitted by them that none of them was arrested by them in any other case and none of them was joined by them in any other investigation and none of them was also joined as witness in any other case and that the police officials were also not on visiting terms to any of the accused and having no personal dealing with any of them. 22 Learned counsel for the accused has also placed reliance upon 1964 AIR (SC) 1184 (Haricharan Kurmi v. State of Bihar), 2005(3) Apex Criminal 452 : 2005(30) RCR (Criminal) 651 (Sidharth v. State of Bihar), 2006(1) RCR (Criminal)835 (Buta Singh v. State of Punjab). 23 However, there is no force in the argument of learned counsel for the accused on the point as none of the said authorities is applicable to the facts of the present case, as in this case names and parentage of all the accused have specifically been mentioned in ruqa Ex.PJ, except accused Santokh Singh, however, in case of accused Santokh Singh as well, his description has been given being brother of Jeet Ram, resident of Peeranwali and who is also tunda (having deformity in hand). No evidence has been adduced by accused Santokh that he was having another brother who is tunda. Police post is situated in village Madh, which is consisting of just 600 or 700 houses and it has been deposed by ASI Chand Ram that 100 to 150 residents of village were personally known to him and hence when police post is situated in village Madh itself, it cannot be said that no reliance can be placed upon the statements of police officials regarding identification of the accused, who remained posted in the said police post. Hence, they were acquainted with the accused and hence, it has:been rightly observed by learned trial Court that there was no necessity of getting identification parade done as the accused were known to the witnesses and they were named in the ruqa itself which was sent immediately after the recovery. Hence, they were acquainted with the accused and hence, it has:been rightly observed by learned trial Court that there was no necessity of getting identification parade done as the accused were known to the witnesses and they were named in the ruqa itself which was sent immediately after the recovery. The accused were apprehended at about 6.00 a.m. No question has been put to any of the witnesses that it was a dark. It was a straight road. Police party was on patrol duty, hence, they spotted the car and the accused on the said road from some distance. They also saw the accused taking out gunny bags from the car and putting them on the cycles. They also ran after the accused. Hence, there was sufficient time with the police officials to have identified the accused. Both of them categorically deposed in the Court that all the four accused are the same persons, who were seen by them at the time of recovery, however, they succeeded in running in the fields. Deposition of both the police officials is consistent on all the material points. They were having no enmity against any of the accused. There is nothing as to why they should have deposed falsely against them. They also clarified in the cross-examination;that accused Santokh and Suresh were taking out the bag from the car and the other three were putting them on the carriers of the bicycles and that Suresh Kumar accused was driver of the car. 24 It has further been contended that no public witness has been joined by the Investigating Officer at the time of the recovery and hence, no reliance should be placed upon the testimony of police officials alone. On the point, he has placed reliance upon 1997 (3) RCR (Criminal) 421, (Sadhu Singh v. State of Punjab). However, there is no force in this argument of learned counsel for the appellants-accused as well. It was a case of chance recovery. Police officials were on patrol duty when they apprehended the accused on the road just by chance and recovery was effected. All the accused tried to run, however, one of the accused was over powered and remaining succeeded in running though they were identified by the police officials. It was a case of chance recovery. Police officials were on patrol duty when they apprehended the accused on the road just by chance and recovery was effected. All the accused tried to run, however, one of the accused was over powered and remaining succeeded in running though they were identified by the police officials. Three of other were identified by the police officials as they belonged to the same village and the particulars of the 4th were disclosed by the co-accused. 25 It is settled law that in case of deposition of official witnesses, the Court is put on guard to scrutinize the same, carefully and cautiously and after careful scrutiny if it comes to the conclusion that the same does not suffer from any serious infirmity, the same can be believed. In Akmal Ahmed v. State of Delhi 1999 (2) RCR (Criminal) 265, 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 2001(1) RCR (Criminal) 56, it was observed 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 officials acts of the Police have been regularly performed is a wise principle of presumption and recognised even by the Legislature." 26 In Appa Bai and another v. State of Gujarat, AIR 1988 SC 696, it was observed that the prosecution story cannot be thrown out, on the ground that an independent witness has not been examined by the prosecution as the civil people are generally insensitive when a crime is committed even in their presence and they keep themselves away from the court unless it is inevitable. 27 In this case it has been deposed by the police officials that as it was early in the morning and was a deserted place, nobody was present in the nearby fields. 27 In this case it has been deposed by the police officials that as it was early in the morning and was a deserted place, nobody was present in the nearby fields. It has further been deposed by the Investigating officer that 2/3 persons passed by that way, however none of them was ready to join the investigation. Hence, merely, on the ground that no independent witness was joined by the Investigating Officer, it cannot be said that no reliance can be placed upon sworn testimony of the Investigating Officer, duly corroborated by Chand Ram, ASI. 28 It has further been contended by learned counsel for the appellants- accused that Head Constable to whom the seal after use was handed over has not been examined and that the samples were also sent to FSL after four days of recovery, hence possibility of the sealed samples being tempered with till the same were received in the laboratory, cannot be ruled out. On this point he has also placed reliance upon 2008(3) RCR (Criminal) 543, (Karnail Singh v. State of Haryana) and 2008 (4) RCR (Criminal) 40, (Dharambir v. State of Haryana). 29 However, there is no force in this argument of learned counsel for the appellants-accused on this point as well and none of the aforesaid judgments is applicable to the facts of the present case. Sealed samples in this case were handed over to Chand Ram, who was at that time posted as Head Constable and later on promoted as ASI and he was examined by the prosecution and he deposed that the seal was handed over to him. Further no cross-examination was conducted on behalf of the accused on PW1 Raj Kumar, MHC and PW2 Sat Narain, Constable. The SHO also put his seal on the sample parcels on the same day when the same were produced before him by the Investigating Officer and he kept his seal with himself. Sample parcels were received in the laboratory duly intact with the seals as is clear from the report FSL Ex.PL. 30 Hence, link evidence in this case is complete. Hence, merely on the ground that samples were sent to the FSL after four days of recovery, no doubt is created in the mind of this Court that the samples were not kept intact till the same were received in the laboratory. 30 Hence, link evidence in this case is complete. Hence, merely on the ground that samples were sent to the FSL after four days of recovery, no doubt is created in the mind of this Court that the samples were not kept intact till the same were received in the laboratory. 31 No doubt there was delay of four days in sending the samples to the office of Chemical Examiner. That fact alone could not said to be sufficient to come to the conclusion that the possibility of tempering with the samples could not be ruled out. The other evidence produced by the prosecution has been held to be cogent and convincing. Had there been no other cogent, convincing, reliable and trustworthy evidence regarding the completion of link evidence, the matter would have been different. In view of the other cogent, convincing and reliable evidence, the possibility of tempering with the sample parcles, until the same reached the office of the Chemical Examiner, stood completely ruled out. In Narinder Singh (a) Nindi v. State of Punjab 2005 (3) RCR Criminal 343, which was a case, relating to the recovery of 4kgs 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, reliance 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 authority, is fully applicable to the facts of the present case. In this view of the matter, the submission of the counsel for the appellant, to the effect that link evidence was incomplete, being without merit, must fail, and the same stands rejected. 32 It has further been argued by learned counsel for the accused that there is violation of Section 55 of the NDPS Act as the sample parcels and the parcels containing remaining poppy husk were not produced before the SHO. On this point he has placed reliance upon 2008(1) RCR (Criminal) S20, (Rupa Ram v. State of Haryana) and 2008(2) RCR (Criminal) 128 (Mohmed Salim v. State of Haryana). However, there is no force in this argument of learned counsel for the appellants-accused as well. On this point he has placed reliance upon 2008(1) RCR (Criminal) S20, (Rupa Ram v. State of Haryana) and 2008(2) RCR (Criminal) 128 (Mohmed Salim v. State of Haryana). However, there is no force in this argument of learned counsel for the appellants-accused as well. It has been deposed by the Investigating Officer that he had produced the accused alonewith the case property, car and the cycles and the witnesses before the SHO. The SHO has also appeared as PW7 and deposed that the sealed parcels alongwith the accused and the witnesses were produced before him by the Investigating Officer and he affixed his own seal of DS on the sealed parcels. When the samples were received in the laboratory, the same were found sealed with the seals of SKS and DS, hence, it cannot be said that there is non-compliance of Section 55 of the NDPS Act by the prosecution in this case. 33 It has further been argued that no question has been put to the accused in statement under Section 313 Cr.P.C. regarding conscious possession of the contraband. However, there is no force in this argument as well. Perusal of the statements shows that specific question was put to them that they were five in number and that two of them were taking out gunny bags from the car and three of them were putting them on the carrier of the cycles and that total eight gunny bags of poppy husk, i.e., five from car and three from cycles, were recovered. The accused were not required to be put the provisions of law, or the presumption, operating under the provisions of law. They were only required to be put the incriminating circumstances, appearing against them, in the prosecution evidence, which were put to them. Once possession of accused of the contraband was proved then the presumption under Sections 54 and 35 of the NDPS Act operates against them that they were in conscious possession thereof. In Madan Lal v. State of H.P., 2003(4) R.C.R.(Criminal) 100 : 2004(1) Apex Criminal 426 : 2003 SCC (Crl.) 1664 it was held as under :- "The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. In Madan Lal v. State of H.P., 2003(4) R.C.R.(Criminal) 100 : 2004(1) Apex Criminal 426 : 2003 SCC (Crl.) 1664 it was held as under :- "The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from the possession of illicit articles." 34 No other point was urged by the counsel for the parties. 35 In view of the above discussion, I am of the view that the judgment of conviction and order of sentence rendered by learned trial Court is based on correct appreciation of evidence and law on the point and the same does not warrant any interference and is liable to be upheld. 36 For the reasons recorded above, the present appeals are, hereby, dismissed being devoid of any merit. 37 The judgment of conviction dated 15.1.1999 and order of sentence dated 18.1.1999 passed by learned trial Court are, hereby, upheld. 38 If the appellants are on bail, their bail bonds shall stand cancelled. Chief Judicial Magistrate, Hisar, shall take necessary steps to comply with the judgment of this Court with due promptitude, keeping in view the applicability of provision of Section 428 Cr.P.C.