Criminal Appeal No. 497-SB of 2004 v. State of Haryana

Present: Mr. J.S. Bhullar, Advocate, for Mr. Surinder Batra, Advocate, for the appellants. Ms. Sushma Chopra, Additional Advocate General, Haryana. -.- MOHINDER PAL, J. Kulwant and Chiranj Lal (appellants) have filed this appeal against the judgment of conviction dated 30.1.2004 and the sentence order dated 31.1.2004 passed by the Additional -2- Criminal Appeal No. 497-SB of 2004. Sessions Judge, Bhiwani, whereby they were convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay Rs.1 lac, each as fine, in default whereof to undergo further rigorous imprisonment for one month. As per allegations of the prosecution, on 20.1.2003, Assistant Sub Inspector Subhash Chand, along with other police officials, namely, Head Constable Balbir Singh, Head Constable Shish Ram, Head Constable Om Parkash and Constable Banshi Lal was present in the area of Village Ishwari Chowk, Jhhupa, when Jeep bewaring registration No.DL-2-CE-9567 came from the side of Jhhupa in which three persons were sitting. It was signalled to stop. The driver of the Jeep turned it back and started to move. The jeep was apprehended. One person fled from the Jeep. Two persons i.e the appellants were apprehended. The Jeep was checked and it was found to contain four bags. Both the accused were told by the police that they wanted to conduct search of the Bags contained in the Jeep as they suspected some contraband article therein. The accused were given an option that they could get their search conducted before a Magistrate or a Gazetted Officer. Both the accused opted for their search to be conducted in the presence of a Gazetted Officer. Separate consent memos of the accused in this regard were prepared. Then Deputy Superintendent of Police, Siwani, namely, Ram Kumar, was called to the spot. The search was conducted in the presence of the -3- Criminal Appeal No. 497-SB of 2004. Deputy Superintendent of Police. Upon search, four bags, each containing 40 Kgs of poppy husk were recovered from the Jeep. Two samples of 100 grams each were separated from each bag. The samples and the remaining poppy husk contained in five bags were separated sealed and taken into possession by the police. Rough site plan of the place of recovery was prepared. Ruqa was sent to the Police Station and on its basis formal F.I.R was registered a against the accused under Section 15 of the Act. After registration of the case against the accused, they were formally arrested and memos containing grounds of their arrest were prepared. The Jeep was also taken into police possession. After completion of investigation and on receipt of the report of the Chemical Examiner, report under Section 173 of the Code of Criminal Procedure was presented in Court against the accused-appellants. Charge was framed against the appellants for the offence punishable under Section 15 of the Act. They did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined five witnesses, including Deputy Superintendent of Police Ram Kumar (P.W.1), Assistant Sub Inspector Subhash Chand, Investigating Officer (P.W.2), Sub Inspector/Station House Officer Om Parkash (P.W.3) and Moharrir Head Constable Ram Phal (P.W.5). In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded false implication. They stated -4- Criminal Appeal No. 497-SB of 2004. that nothing was recovered from them. No evidence was, however, led by the accused 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 four bags, each containing 40 Kgs of poppy husk were recovered from the accused. The trial Court convicted and sentenced the appellants, as mentioned above. I have heard the learned counsel for the parties and have gone through the records of the case. The facts of this case, as mentioned above, disclose that there is no doubt about the fact that the accused- appellants were in conscious possession of the quantity of poppy husk recovered from their possession. Learned counsel for the appellants argued that the case of the prosecution is based only on the statements of the official witnesses and no independent person was joined by the police party. According to the learned counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. It has been submitted that non- examination/non-joining of any independent witnesses has upset the balance of the prosecution case, making the alleged recovery doubtful. After giving a careful thought to the argument raised by the learned counsel, I do not find any force therein in the presence of cogent and trustworthy evidence led by the -5- Criminal Appeal No. 497-SB of 2004. prosecution. As noticed above, recovery in this case was effected per chance. Otherwise also, normally the independent witnesses 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. 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 no independent witness was joined to witness the recovery, 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 been examined. To cap it all, the fact of recovery of four bags of poppy husk, each containing 40 kilograms of poppy husk, from the accused, which cannot be planted by the police, weighs with the argument raised by the learned counsel with regard to the non-joining of any independent witness. In these circumstances, non-joining of any independent witness by the police in this case does not at all affect the veracity of the prosecution case. It has further been argued by the learned counsel for the appellant that the samples were sent to the Chemical Examiner after seventeen days of the alleged recovery of poppy husk from the accused. According to the learned counsel, it casts a doubt upon the veracity of the prosecution version. -6- Criminal Appeal No. 497-SB of 2004. Again, I do not find any merit in this argument of the learned counsel. Recovery in this case was effected on

20.1.2003. From the affidavit (Exhibit P.K) of Moharrir Head Constable Ram Phal (P.W.5), it is evident that the case property was deposited with him on the same date. Therefore, there was no likelihood of the tampering with the samples and the case property. Under the circumstances, it hardly matters if the samples were sent to the Chemical Examiner after a delay of some days. Besides, in this case, there was complete compliance of the mandatory provisions of Section 50 of the Act. As noticed above, Deputy Superintendent of Police Ram Kumar, a Gazetted Officer, was called to the spot and the recovery of poppy husk was effected from the accused in his presence. In view of the above, I do not find any ground warranting interference in the impugned judgment of conviction and the sentence order, which are upheld. Consequently, this appeal is hereby dismissed being without any merit. April 01, 2010. ( MOHINDER PAL ) JUDGE