Crl.A.No.1867-SB of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl.A.No.1867-SB of 2004
Date of Decision: March 10, 2010
Janak Raj son of Shri Kishori Lal (Aged 33 years as per the impugned judgment) Agriculturist, resident of Village Mehmadaki, Tehsil Ratia, District Fatehabad.
.....Appellant
v.
The State of Haryana
......Respondent
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.Rahul Vats, Advocate
for the appellant.
Mr.P.M.Anand, Addl.A.G. Haryana.
......
RAM CHAND GUPTA, J.
1. The present appeal has been filed against judgment of conviction dated 7.9.2004 and order of sentence dated 8.9.2004 passed by the Court of learned Additional Sessions Judge, Fatehabad, vide which it convicted the appellant-accused under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the `Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1 lac and in default of payment of fine to further undergo rigorous imprisonment for a period of one year.
2. Briefly stated, the case of the prosecution is that on 27.10.1998,Ramesh Kumar, Sub Inspector -cum-SHO, Police Station Ratia, Crl.A.No.1867-SB of 2004 -2- (PW4) alongwith Maya Ram ASI (PW5) and some other police officials was present at village Rattangarh in Government gypsy bearing registration No.HNT-4102 on patrol duty. He received secret information that accused Janak Raj was selling poppy husk in the house left behind by his father's elder brother Sadhu Ram and if immediate raid is conducted a large quantity of poppy husk could be recovered from his possession. As the information was reliable, the SHO sent his gypsy immediately to bring Naib Tehsildar, Ratia and he alongwith other police officials proceeded towards village Mehmadaki. Naib Tehsildar also joined them. Chowkidar Nazir Singh and Kaka Singh son of Janga Singh of Village Mehmadaki were also joined in the raiding party. They reached near the said house left behind by Sadhu Ram, paternal uncle of Janak Raj. Accused Janak Raj came out of the house of his uncle and ran away after noticing the policy party. It was told by Kaka Singh and Chowkidar Nazir Singh that the name of the said person, who was running, was Janak Raj. They entered the house, which was consisting of three rooms. In one of the rooms, it was found that there were lying three gunny bags containing poppy husk. Weighing scale and weight were also lying near the gunny bags. 100 gms of poppy husk was separated as sample from each bag and the remaining poppy husk was sealed in the same bags after weighing. One of the gunny bags was found weighing 40 kg 300 gms including weight of gunny bag. Similarly another bag was found weighing 40 kgs and the third bag was found weighing 30 kgs. All the three samples and the bags containing remaining poppy husk were sealed with the seal of RK and seal after use was handed over to Rajesh Kumar, Naib Tehsildar. Sealed parcels were taken into possession vide memo Ex.PF, which was attested by Rajesh Crl.A.No.1867-SB of 2004 -3- Kumar, Naib Tehsildar and Kaka Singh, PW.
3. Ramesh Kumar, Sub Inspector sent information Ex.PB to the police Station on the basis of which formal FIR Ex. PA was registered. He also prepared site plan of the place of occurrence, Ex.PG and recorded statements of the witnesses. On return to the police Station, the case property was deposited with Jagdish Chander, MHC. He also prepared report under Section 57 of the Act and sent the same to DSP Head Quarter, Fatehabad. He arrested accused Janak Raj on 19.11.1998 from Village Mehmadaki. Memo of arrest Ex.PJ was also prepared at the time of his arrest. Sample parcels were sent to FSL Madhuban for analysis and report Ex.PE was received according to which it was found that the samples were of poppy straw.
4. On completion of the investigation, report under Section 173 of the Code of Criminal Procedure (for short `Cr.P.C.') was filed against appellant-accused to face trial for offence under Section 15 of the Act.
5. After commitment of case to the Court of Sessions, accused was charged for an offence punishable under Section 15 of the Act by learned Additional Sessions Judge, Hisar, vide order dated 7.4.1999, to which he did not plead guilty and claimed trial.
6. In order to substantiate the allegations against the accused the prosecution has examined as many as 6 Pws.
7. PW1 is Jagbir Singh, ASI, who had recorded formal FIR Ex.PA on the basis of ruqa Ex.PB received from Ramesh Kumar, SI, SHO, Ratia through Constable Mahinder Singh.
8. PW2 is Jagdish Parshad, Head Constable No.67, who tendered in evidence affidavit of his statement Ex.PC to the effect that on Crl.A.No.1867-SB of 2004 -4- 27.10.1998 he was posted as MHC in Police Station Ratia and on that date Ramesh Kumar, SI, SHO had deposited with him three sealed sample parcels and three gunny bags containing poppy husk duly sealed with the seal of RK alongwith sample seal and that on 11.11.1998 he had handed over the sealed samples to Constable Pali Ram for carrying them to FSL Madhuban. He specifically stated in his affidavit that the sample parcels and the bags containing remaining poppy husk remained duly intact with the seals so long as the same remained in his possession. No cross- examination on this witness was done on behalf of the accused.
9. PW3 is Pali Ram, Constable, who also tendered in evidence affidavit of his statement Ex.PD to the effect that on 11.11.1998 Jagdish Prasad, MHC, had handed over to him three sealed parcels duly sealed with the seal of RK for carrying the same to FSL Madhuban and that he had deposited the same with the FSL Madhuban on the same day in the same condition and the receipt was handed over to the MHC. He also specifically stated that the samples remained duly intact with the seals in his possession. No cross-examination was conducted on behalf of the accused on this witness as well.
10. PW4 is Ramesh Kumar, Sub Inspector, who was posted as SHO Police Station Ratia on 27.10.1998. He deposed regarding the whole case of the prosecution, as detailed above. In the cross-examination, he deposed that after the arrest of Janak Raj he did not get conducted identification parade. He also deposed that it was at about 4.00 p.m. and that secret information was not reduced by him into writing. He further deposed that Naib Tehsildar reached just within 15 to 20 minutes. He further clarified that they were at a distance of 30 to 40 yards from the Crl.A.No.1867-SB of 2004 -5- house from where recovery was efffected when Janak Raj accused came out of the house and ran away. He also deposed that he alongwith Maya Ram ASI chased Janak Raj, however, he could not be apprehended, as he concealed himself in some house. He also deposed that he had made enquiry from respectable persons of the village and they told him that the house belonged to deceased Sadhu Ram, uncle of Janak Raj, accused, who died issueless.
11. PW5 is Maya Ram ASI. He also corroborated the version of Ramesh Kumar, Sub Inspector. He also deposed that when they reached near the house of Sadhu Ram, uncle of the accused, he came out of the house and ran away and that they chased him, however, he could not be apprehended.
12. PW6 is Rajesh Kumar, Naib Tehsildar, who deposed that on 27.10.1998 he was posted as Naib Tehsildar, Ratia and that on receiving message from Ramesh Kumar, SI, SHO, he joined the raiding party. He further deposed that SHO told him that he had secret information that Janak Raj of village Mehmadaki is indulging in selling poppy husk and that they reached village Mehmadaki and Chowkidar Nazir Singh and Kaka Singh of that village were also joined in the raiding party. Further deposed that they reached the house of Sadhu Ram, however, on seeing the policy party Janak Raj accused present in the Court came out of the house and ran away. He also deposed that on search of the house three gunny bags were recovered containing poppy husk. He further deposed that three samples were separated from each bag and that sample parcels and bags containing remaining poppy husk were sealed with the seal of RK and seal after use was handed over to him. He deposed in cross-examination that they were Crl.A.No.1867-SB of 2004 -6- at a distance of 20/23 paces when the accused ran away.
13. Statement of accused in terms of Section 313 Cr.P.C. was recorded in which he denied the incriminating evidence coming against him and pleaded innocence. He had taken the following plea: "I am innocent. Nothing was recovered from my
possession. The house from which the poppy straw was recovered was not owned by Sadhu Ram and I was not seen by the police coming out of this house. I have been falsely implicated in this case."
14. However, the accused did not lead any evidence in his defence.
15. After hearing learned public prosecutor for the State and counsel for the accused, learned trial Court convicted and sentenced the accused as aforementioned.
16. I have heard learned counsel for the appellant-accused, learned State counsel, and have gone through the whole record carefully.
17. It has been argued by learned counsel for the appellant-accused that identity of the accused in this case is not established as accused was not apprehended at the spot. It is further contended that even no test identification parade of the accused was got conducted after his arrest in this case and hence, identification of the accused for the first time in the Court is meaningless. It is further contended that name of the accused was allegedly disclosed by independent witness Kaka Singh and, however, he has not been examined by the prosecution. Hence, it is contended that no reliance can be placed on the testimony of official witnesses alone. He has also placed reliance upon Buta Singh v. State of Punjab 2006(1) RCR (Criminal) 835.
18. However, there is no force in this argument of learned counsel Crl.A.No.1867-SB of 2004 -7- for the appellant-accused as Buta Singh's case (supra), on which reliance has been placed on behalf of the accused, is not applicable to the facts of the present case.
19. In this case the secret informer had given name, parentage and address of the accused. When police party alongwith Naib Tehsildar reached near the house belonging to uncle of accused, accused came out of the house and ran away. He was chased by the police party, however, he could not be apprehended. Hence, there was sufficient time for the police officials and the Naib Tehsildar to have seen the accused, and hence they identified him in the Court. Name, parentage and address of the accused has been mentioned in ruqa Ex.PB, which was sent to the police station immediately after the recovery. Identification in the Court is a substantive piece of evidence, whereas test identification parade is not a substantive piece of evidence. It depends upon facts of each case as to whether identification of accused for the first time in the Court can be relied upon or not. In this case deposition of both the police officials find corroboration from a Revenue Officer, i.e., Naib Tehsildar. All the three have identified the accused in the Court. It was at about 4.00 p.m. when the accused was seen coming out of the house from which recovery was effected. He started running and was chased by the police officials. He was seen by all the three witnesses in a day light. His name, parentage and address was disclosed by Kaka Singh, a witness of the village and the same was mentioned in ruqa Ex.PB. Though Kaka Singh has been won over by the accused, hence given up by the prosecution, however, merely because of this fact, it cannot be said that cogent and consistent deposition of both the police officials and Naib Tehsildar, who were acting in discharge of Crl.A.No.1867-SB of 2004 -8- their official duties, be disbelieved.
20. In Malkhan Singh and others v. State of Madhya Pradesh 2003(3) RCR (Criminal) 550 law regarding test identification parade was explained by Hon'ble Apex Court and it was held that substantive evidence is the evidence of identification in the Court and that test identification parade does not constitute substantive evidence and hence failure to hold the test identification parade would not make inadmissible the evidence of identification in Court and, however the weight to be attached to such identification should be a matter for the Courts of fact to decide and in appropriate cases it may accept the evidence of identification even without insisting on corroboration.
21. In the present case deposition regarding identification of the accused in the Court by PW4 Ramesh Kumar, SI; PW5 ASI Maya Ram and PW6 Rajesh Kumar, Naib Tehsildar, finds corroboration from the fact that name and address of the accused has been found mentioned in ruqa Ex.PB, which was prepared just after recovery and sent to the police station for registration of the FIR by the Investigating Officer. Ramesh Kumar SI, SHO, PW4 also deposed that he enquired from respectable persons of the village and that everybody told that the house from which recovery was effected belonged to the uncle of accused, who died issueless. All the three witnesses deposed that there was nobody else in the house at the time and only accused was seen coming out of the said house.
22. Further merely on the ground that independent witness Kaka Singh, who had disclosed name of the accused to the Investigating Officer, has not been examined by the prosecution, it cannot be said that no reliance can be placed upon testimony of the police officials duly corroborated by Crl.A.No.1867-SB of 2004 -9- Naib Tehsildar. The independent witness belonged to the same village, hence, he might have come under pressure of the accused. The official witnesses including Naib Tehsildar were having no enmity against the accused. Hence, there is nothing as to why they should have deposed falsely against him. There is nothing as to why they should have falsely identified the accused in the Court. There is also nothing as to why his name should have been mentioned falsely in ruqa Ex.PB.
23. Law is well settled 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 vs. 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.
24. In State of NCT of Delhi vs. 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."
25. In Appa Bai and another vs. State of Gujarat, AIR 1988 SC 696, it was observed that the prosecution story cannot be thrown out, on the Crl.A.No.1867-SB of 2004 -10- 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.
26. In the present case though two independent witnesses of the village were joined in the raiding party by the police alongwith Naib Tehsildar, however, none of the independent witnesses came forward to appear as a witness of the prosecution. Deposition of both the police officials and the Naib Tehsildar is consistent on all the material points. Only some minor discrepancies had come in their deposition, which are bound to come even in the deposition of truthful witnesses with the passage of time. Hence, no doubt is created in the veracity of deposition of PW4 Ramesh Kumar SI; PW5 Maya Ram ASI; and PW6 Rajesh Kumar, Naib Tehsildar.
27. It has further been contended by learned counsel for the appellant-accused that in this case mandatory provision of Section 42 of the Act has not been complied with by the Investigating Officer as the secret information was not reduced into writing and was not sent to higher police officers and on this point he has placed reliance upon a judgment rendered by a coordinate Bench of this Court in Gurjant Singh v. State of Haryana 2002 (2) RCR (Criminal) 47.
28. However, there is no force in this argument of learned counsel for the appellant-accused as well. Gurjant Singh's case (supra) is also of no help to appellant-accused as the same is based on different facts.
29. In Sajan Abraham v. State of Kerala 2001(3) RCR (Criminal) 808, three Judges' Bench of Hon'ble Apex Court held that Crl.A.No.1867-SB of 2004 -11- prosecution case cannot be thrown out due to non-compliance of mandatory provision of Section 42 of the Act and that the said provision is not to be literally interpreted so as to render its compliance impossible. It was further observed that in case if the following of the mandate strictly results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out.
30. In the present case secret information was received by SI SHO of the police station while he was on patrol duty. Hence, he immediately called for a Revenue Officer, i.e., Naib Tehsildar posted in the said Tehsil, who reached just after 15 to 20 minutes whereas he alongwith police party proceeded towards the place of recovery and also joined two independent witnesses from the village, however, despite that the accused on getting information came out of the house and ran away after seeing the police party. Hence, there was no time for the Investigating Officer to have recorded the secret information because had the Investigating Officer not proceeded towards the place of recovery immediately, the opportunity of seizure of the contraband would have been lost.
31. It has further been argued that affidavit filed by the police officials Ex.PC and PD did not state separately as to which facts is within their knowledge and as to which facts were believed to be true by them on reasonable belief and that hence the same are not admissible in the evidence. On this point he has placed reliance upon another judgment rendered by Coordinate Bench of this Court in Bhoolan v. State of Punjab 1995(3) RCR (Criminal) 505.
32. However, there is no force in this plea of learned counsel for the defence as well. In this case both these witnesses have appeared in the Crl.A.No.1867-SB of 2004 -12- witness box and were administered oath and they tendered their respective affidavits in the examination-in- chief and offered themselves to be cross- examined and, however, no cross-examination was conducted on them on behalf of the accused. Hence, it cannot be said that any prejudice has been caused to the accused for the alleged defect in verification.
33. In Balwinder Singh v. State of Haryana 1998(1) RCR (Criminal) 191, a division Bench of this Court while dealing with this fact observed as under:-
"22.As regards the alleged defect in the verification of the affidavits Ex.PF and PG, we are of the opinion that the evidence of the deponents of these affidavits do not lose the evidenciary value simply because in the verification, the deponent has stated that the facts stated in the affidavit are true to his knowledge and belief and have not clearly stated that which paragraph of the affidavit is true to his belief. PW-4 Krishan Lal through his affidavit Ex.PF has proved that the sample parcel of the opium with the seal `OP' along with other case property was deposited in the Malkhana on 28.11.1993 by Inspector Om Parkash and the sample parcel of the opium was handed over to PW-5 Krishan Kumar on 1.12.1993 for being sent to DFSL, Madhuban. This witness was cross- examined by the learned counsel of the appellant. Similarly, PW-5 Krishan Kumar through his affidavit Ex.PG has proved that on 1.12.1993, the sample parcel with the seal `OP' was handed over to him by Krishan Lal MHC (PW-4) for being sent to DFSL, Madhuban and he deposited the said sample with the Director, FSL, Madhuban and on return RC was handed over to MHC. He further stated that the sample had not been tampered with when it remained in his custody. Opportunity to cross-examine this witness was also given to the learned counsel of the appellant though he did not put any question in cross-examination. The chemical report Ex.PH Crl.A.No.1867-SB of 2004 -13- also shows that the seals on the parcel containing sample were found intact and tallied with the specimen seals. In view of these facts, it is clear that no prejudice has been caused to the appellant for the alleged defect in the verification of the affidavits as opportunity to cross-examine both these witnesses, who had given these affidavits, was given to the appellant."
34. In this case as well report of FSL Ex.PE shows that seals on the parcels containing sample were found intact and tallied with the specimen seal. The seal after use was handed over to the Revenue Officer, i.e., Naib Tehsildar and not to any police official. Naib Tehsildar categorically deposed that seal was handed over to him. Both the police officials appeared in witness box and opportunity to cross-examine them was given to counsel for the appellant-accused, however, no question was put to them in cross-examination on behalf of the accused.
35. Hence, link evidence in this case is complete and prosecution has been able to prove that samples were not tempered with in any way till the same were received in the laboratory for examination.
36. No other point was argued.
37. In view of the above discussion, I am of the view that 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.
38. For the reasons recorded above, the present appeal is hereby dismissed being devoid of any merit.
39. The judgment of conviction dated 7.9.2004 and order of sentence dated 8.9.2004 passed by learned trial Court is, hereby, upheld. Crl.A.No.1867-SB of 2004 -14-
40. The Chief Judicial Magistrate, Fatehabad 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. 10.3.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.