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2012 DIGILAW 393 (PNJ)

Parmod Kumar v. State of Haryana

2012-03-01

VIJENDER SINGH MALIK

body2012
JUDGMENT VIJENDER SINGH MALIK, J. This is an appeal brought by Parmod Kumar, the appellant challenging the judgment dated 13.8.2002 passed by learned Additional Sessions Judge, Hisar vide which, he has been held guilty and convicted for an offence punishable under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the Act") as also the order on sentence dated 14.8.2002 vide which the appellant has been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- with further rigorous imprisonment for a period of six months in default of payment of fine. The case registered against the appellant for the aforesaid offence by way of FIR No.70 dated 30.6.2001 at Police Station GRP Hisar, is as under: On 30.6.2001, Ram Kishan, SI, Incharge, GRP Jakhal along with Bishan Singh, HC and other police officials was present at platform No. 4, Railway Station, Hisar. He was checking the trains as well as platforms. During the course of the same, he found Parmod Kumar sitting on an iron bench on the platform. Seeing the police party, he stood up and started moving briskly towards the godown. He was having a bag but he threw the same and tried to escape. Suspicion of Ram Kishan, SI having aroused by the conduct of Parmod Kumar, he apprehended him and brought him at the place where he had thrown the bag. Option under section 50 of the Act was given to him asking him as to whether he wanted his search to be conducted before a gazetted officer or magistrate. He was told that a gazetted officer of magistrate could be called to the spot for his search as per his choice. The accused, however, replied that he had confidence in Ram Kishan, SI. His statement in this regard was recorded. Thereafter the contents of the bag were checked and it was found containing opium wrapped in two polythene bags on which 'Tulsi Sarees' was printed. Those polythene bags had been further wrapped in a black blanket. The opium was weighed and it was found to weigh 950 grams. Out of the recovered contraband, two samples, each weighing 50 gms were taken out. The samples were put in small tin boxes. The remaining opium was put in a plastic container alongwith the polythene bags. Those polythene bags had been further wrapped in a black blanket. The opium was weighed and it was found to weigh 950 grams. Out of the recovered contraband, two samples, each weighing 50 gms were taken out. The samples were put in small tin boxes. The remaining opium was put in a plastic container alongwith the polythene bags. The containers of the samples and the remaining opium were given the shape of parcels and were sealed with the seal 'BS'. After retaining sample impression of the seal used, the seal was handed over to Bishan Singh, HC. The sample parcels and the remaining opium alongwith the blanket and bag were taken into possession by way of a recovery memo. A ruqa was sent to the police station for registration of the case, on which Dinesh Kumar, SI recorded the formal FIR (Ex. PC/1). Thereafter, the case property along with the accused and the witnesses were produced before Dinesh Kumar, SI, SHO, Police Station GRP, Hisar who verified the facts and affixed his seal 'DK' on the sample parcels and the parcel of the remainder. On directions of Dinesh Kumar, SHO, Ram Kishan, the investigating officer deposited the case property with the MHC. Dinesh Kumar, SI had prepared a report as provided under section 57 of the Act and had sent the same to the DSP, Rajbir Singh. The samples were sent to FSL, Madhuban and on receipt of report of chemical examiner to the effect that the samples were of opium and on completion of investigation, challan was presented. Accused was charged for the offence punishable under section 18 of the Act on 19.11.2001. He pleaded not guilty to the charge and claimed trial. The prosecution had examined five witnesses in all and tendering the report of chemical examiner, the evidence of the prosecution came to a close. The accused was examined thereafter in terms of section 313 Cr.P.C. He has denied the truth of the prosecution evidence put to him in the shape of questions. He has claimed himself to be innocent and to have been falsely implicated. According to him, waiting for the train, he was sleeping on a bench at platform No. 4 and police came and falsely implicated him. He has claimed himself to be innocent and to have been falsely implicated. According to him, waiting for the train, he was sleeping on a bench at platform No. 4 and police came and falsely implicated him. The accused did not lead any evidence in his defence, though he had desired to lead evidence in his defence when he was called to enter upon the same. Hearing learned public prosecutor for the State and learned counsel for the defence, learned Additional Sessions Judge, Hisar held the accused guilty for the offence punishable under section 18 of the Act vide judgment dated 13.8.2002. Hearing on quantum of sentence was given on 14.8.2002 and the sentence detailed above was awarded to him. Aggrieved by the aforesaid judgment of conviction and order on sentence, the convict has brought this appeal. I have heard Mr. B.R.Gupta, learned counsel for the appellant, Mr. Sagar Deswal, learned Assistant Advocate General, Haryana for the respondent. I have gone through the record carefully. Learned counsel for the appellant has submitted that despite availability, the investigating officer did not join any witness from the public. According to him, Exhibit P1 is the rough site plan of the place of recovery. According to him, the recovery is shown therein to have been effected at point 'A', which is just by the side of signal cabin. According to him, signal cabin is never without a person who could be called to join the proceedings but was not called. He has further submitted that the place of recovery is railway station and it cannot be believed that the railway station bore a deserted look at the relevant time. He has further submitted that there are always numerous persons at the railway station and inspite of their presence, none was joined in the proceedings. According to him, for this reason itself, the statements of the official witnesses have to be looked with suspicion. Learned counsel for the appellant has further submitted that the option as provided under section 50 of the Act has been given to the appellant while he was in custody. According to him, it is strange to note that the appellant reposed confidence in Ram Kishan, SI. Learned counsel for the appellant has further submitted that the option as provided under section 50 of the Act has been given to the appellant while he was in custody. According to him, it is strange to note that the appellant reposed confidence in Ram Kishan, SI. He has submitted that when a person is in the clutches of the police, he cannot say no to the desire of the police officials and that the option given in this manner cannot be held to be valid one and the alleged exercise of the option by the appellant cannot be said to be voluntary. Learned counsel for the appellant has further submitted that the link evidence in this case is missing. According to him, Ex.PA and Ex. PB are the affidavits of Balraj Singh, Constable and Jaivir Singh, Head Constable respectively. According to him, in the verification part of the affidavits, the contents of the affidavits are not verified parawise with reference to knowledge and belief. According to him, while in Ex. PA contents of paragraphs No. 1 to 4 have been claimed to be true and correct with reference to his belief and in Ex. PB, paragraphs No. 1 to 3 are claimed to be correct with reference to his knowledge and belief. According to him, in this view of the matter, the affidavits are not admissible in evidence and, therefore, link evidence to prove that the material allegedly recovered from the possession of the appellant reached the chemical examiner and the same was opium cannot be believed. He has, therefore, submitted that the appellant is entitled to acquittal. In this regard, he has placed reliance on two decisions of this court in cases Jit Lal Vs. State of Haryana, 1995 (3) RCR (Criminal) 482 and Jai Singh Vs. State of Haryana 1995 (3) RCR (Criminal) 627. Learned State counsel has submitted, on the other hand, that the investigating officer had no enmity with the appellant. According to him, he had no motive to falsely implicate the appellant. He has further submitted that at the railway station, people are always in hurry and they can be believed to have refused to join the investigation. According to him, there is no suggestion put to the investigating officer in his cross-examination that no option as provided under section 50 of the Act was given to the appellant. He has further submitted that at the railway station, people are always in hurry and they can be believed to have refused to join the investigation. According to him, there is no suggestion put to the investigating officer in his cross-examination that no option as provided under section 50 of the Act was given to the appellant. He has further submitted that the defect, if any, in the affidavits stands cured by the fact that the deponents of those affidavits have appeared in the witness box and have made statements on oath and have been duly cross-examined. According to him, therefore, no fault can be found with the judgment of conviction and order on sentence of learned Additional Sessions Judge, Hisar. Non joining of independent witness during search and seizure is definitely a matter of concern. However, in all the circumstances of non-joining of independent witnesses, the prosecution cannot be held doubtful. There may be circumstances where the fact of non-joining of independent witnesses would cast no shadow of doubt on the credibility of the prosecution case. One such circumstance would be where the recovery is chance recovery and the place of recovery is an isolated place. In such a situation, the investigating officer would not have an opportunity to join the independent witness the recovery being sudden and not anticipated , nor independent witness would be available to him at that place. There may be another such eventuality in which the recovery is effected at odd hours, when people from public are not available. If there are witnesses from the public available and they were asked by investigating officer to join and they refused to join the investigation, still no adverse inference can be drawn against the prosecution case. There is no rule of law that the police officials are incompetent witnesses and that their statements could not be relied upon to convict the person. The court has to see as to whether statements of the official witnesses are cogent and trustworthy. If it is so, then reliance can be placed on the statements of the official witnesses. The recovery in the present case is from the railway station. The first person, who is said to have been available, by learned counsel for the appellant is the person working in signal cabin. The presence of person in the signal cabin is of utmost importance. The recovery in the present case is from the railway station. The first person, who is said to have been available, by learned counsel for the appellant is the person working in signal cabin. The presence of person in the signal cabin is of utmost importance. Such a person cannot leave the signal cabin for even a single minute because his absence therefrom can be hazardous. Non joining of this person cannot, therefore, be taken as a circumstance to go against the credibility of the official witnesses. People from different places are there on the railway stations. They are either in hurry to take the trains or too unwilling to join the proceedings for the fear of harassment later on in appearing before the court at a place other than their place of residence. In these circumstances, it can be definitely believed that the persons available at the railway station would not have obliged the investigating officer, if he had asked them to join the proceedings. The official witnesses of recovery in this case are Bishan Singh, HC (PW-4) and Ram Kishan, SI (PW-5). Both of them have categorically stated that they asked the people available at the platform to join the proceedings but they did not join. So, for mere non-joining of persons from public, it cannot be said that the prosecution case has suffered any serious set-back. The next submission made before me by learned counsel for the appellant is that the option as provided under section 50 of the Act was given to the appellant while he was in custody. I cannot envisage any situation in which an accused under the Act could be asked to exercise the option under section 50 of the Act without his being in custody. When someone is asked by the police team to stop and is conveyed that the police suspected him to be having some contraband in his possession, the submission on the part of the person who is so asked would amount to his custody. So, in every such case, the person to be searched would be in custody and while he is in custody, he would be asked to exercise the option. It is a case where the appellant was having a bag with him and after seeing the police party, he started moving away by throwing the bag. So, in every such case, the person to be searched would be in custody and while he is in custody, he would be asked to exercise the option. It is a case where the appellant was having a bag with him and after seeing the police party, he started moving away by throwing the bag. So, it is not a case of personal search and the provisions of section 50 of the Act would not be applicable to this case. In this regard, reliance could be placed on a decision of Hon`ble Supreme Court of India in Megh Singh Vs. State of Punjab 2004 SCC (Crl.) 58 wherein it is observed as under:- “16. A bare reading of section 50 shows that it only applies in case of personal search of a person. It does not extend to a search of a vehicle or a container or a bag or premises.” This view was followed in a latest decision of Hon`ble Supreme Court of India in Jarnail Singh Vs. State of Punjab, (2011) 1 SCC (Crl.) 1191. So, even if the provisions of section 50 of the Act have not been complied with in this case, it makes no difference. Learned counsel for the appellant has then argued that the link evidence is missing in this case. According to him, the affidavits, Ex. PA and PB of Balraj Singh, Constable and Jaivir Singh, Head Constable are having defective verification. According to him, the two witnesses have not verified the contents of the affidavit with reference to separate paragraphs from their knowledge and belief. According to him, for this reason, the affidavits are defective and cannot be taken into consideration and, therefore, the prosecution would fail in proving that the recovered material was opium. The decisions relied upon by learned counsel for the appellant would have no application to the facts of this case. It is not a case where affidavits alone have been tendered in evidence. The deponents of the affidavits have stepped into the witness box and have been offered for cross-examination. It was not there in the reported cases. The only cross-examination made upon Balraj Singh, Constable is a suggestion put to him that he has furnished a false affidavit on wrong facts which he has denied. The deponents of the affidavits have stepped into the witness box and have been offered for cross-examination. It was not there in the reported cases. The only cross-examination made upon Balraj Singh, Constable is a suggestion put to him that he has furnished a false affidavit on wrong facts which he has denied. On Jaivir Singh, though the cross-examination is a bit lengthy but nothing touching the verification of the contents of the affidavit is there in the cross-examination. The witnesses who have tendered their affidavits have stood the test of cross-examination successfully and whatever was the defect in the verification of their affidavits, stood cured by their being offered for cross-examination. For the aforesaid reasons, I find no substance in the submissions made by learned counsel for the appellant. Consequently, I uphold the judgment of conviction of the appellant. I also find no reason to differ from learned trial court on the aspect of sentence, which is not harsh in any manner. Consequently, I uphold the order of sentence also. The appeal is, therefore, dismissed. The appellant be taken into custody to undergo the sentence awarded to him by learned Additional Sessions Judge, Hisar.