Criminal Appeal No.2121-SB of 2003 v. State of Haryana

Present: Mr.Baljinder Singh, Advocate, for Mr. K.S. Dhaliwal, Advocate, for the appellant. Ms. Sushma Chopra, Additional Advocate General, Haryana. -.- MOHINDER PAL, J. Appellants Ram Narain and his wife appellant Ayodha have filed this appeal against the judgment of conviction dated

27.8.2003 and the sentence order dated 29.8.2003 passed by -2- Criminal Appeal No.2121-SB of 2003. the Additional Sessions Judge, Panipat, whereby they were convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') for recovery of six kilograms of contraband opium from them and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1 lac, each, in default whereof to undergo further rigorous imprisonment for one year. The facts of the prosecution case, in brief, are that on

7.5.1998, Inspector Samunder Singh along with other police officials, was present near the Bus Stand within the jurisdiction of Police Station City Panipat for checking of crime. One Harish Kumar met the police party and while he was conversing with the police officials, the appellants were seen sitting near the first pillar adjacent to the Cycle Stand. They were holding a bag in their hand. On account of suspicion raised, they were apprehended. The appellants disclosed their identity. The police officials suspected that the appellants were carrying some contraband and, therefore, were given the option to be searched by a Magistrate or a Gazetted Officer. Separate notices under Section 50 of the Act were served on each of the accused. The accused expressed their willingness to be searched by a Gazetted Officer. Accordingly, Deputy Superintendent of Police Partap Singh was asked to come at the spot by sending a wireless message. Constable Ram Kumar was also sent to arrange for a lady Constable. On the directions of Deputy Superintendent of Police Partap Singh, Inspector Samunder Singh carried out search of the bag. A polythene paper containing -3- Criminal Appeal No.2121-SB of 2003. opium was recovered from the bag which was found to be 6 kgs in weight. A sample of 100 grams of opium was separated and was put into a tin box and made into a parcel. The sample and the bulk opium were taken into possession. After completion of investigation and on receipt of the report of the Chemical Examiner, challan against the accused- appellant was presented in Court. Charge was framed against the appellants for the offence punishable under Section 18 of the Act. They did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined Assistant Sub Inspector Rattan Singh (P.W.1), independent witness Harish Kumar (P.W.2), Constable Ram Rattan (P.W.3), Deputy Superintendent of Police Kartar Singh (P.W.4), Deputy Superintendent of Police Partap Singh (P.W.5), Inspector Samunder Singh, Investigating Officer (P.W.6), Head Constable Raghbir Singh (P.W.7) and Head Constable (Retd.) Naresh Kumar (P.W.8). In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded innocence. The appellant examined Constable Narinder Kumar (D.W.1) in their defence. The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case beyond reasonable doubt and that six kilograms of opium was recovered from the accused- appellants. The trial Court convicted and sentenced the appellants, as mentioned above. -4- Criminal Appeal No.2121-SB of 2003. I have heard the learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellant argued that the case of the prosecution is based only on the statements of the official witnesses and the independent person, namely, Harish Kumar (P.W.2) did not support the case of the prosecution and had been declared hostile on the request of the learned Public Prosecutor. According to the learned counsel, it casts a serious doubt upon the veracity of the prosecution case and has upset the balance of the prosecution case, making the alleged recovery doubtful. It has been further argued that the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. After giving a careful thought to the arguments raised by the learned counsel, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the prosecution. Recovery in this case was effected per chance while the police party was patrolling the area. The independent witnesses generally do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to create ill-will and enmity with criminals. It appears to be for this reason that Harish Kumar (P.W.2), while appearing in the witness box, did not support the case of the prosecution and was got declared hostile by the Public Prosecutor in the trial Court. However, a verdict of acquittal cannot follow -5- Criminal Appeal No.2121-SB of 2003. the moment the witnesses turn hostile and dispensation of justice is not dependant upon the witnesses who make efforts to hold the law to ransom. Once the prosecution case is established on record by the other cogent and trustworthy evidence led by the prosecution, non-supporting of its case by the witnesses who appeared to have been won over by the accused does not at all affect the prosecution case. In this case, the official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements. The accused-appellants have also not alleged any enmity with them (police officials). In this background, merely the fact that the independent witness Harish Kumar did not support the prosecution case, is not a good ground to discard the testimonies of the official witnesses. It is well-settled that the prosecution story cannot be discarded on the ground that independent witness has not supported the prosecution case. To cap it all, the fact of recovery of huge quantity of opium i.e six kilograms from the accused, which cannot be planted by the police, weighs with the argument raised by the learned counsel with regard to the non-examination of any independent witness. In this case, there was complete compliance of the mandatory provisions of Section 50 of the Act as Deputy Superintendent of Police Partap Singh (P.W.4), a Gazetted Officer, had reached the spot and the recovery of opium was effected from the accused in his presence. -6- Criminal Appeal No.2121-SB of 2003. For the aforesaid reasons, I do not find any merit in this appeal. The same is hereby dismissed. April 01, 2010. ( MOHINDER PAL ) JUDGE