Criminal Appeal No.2112-SB of 2003(O&M) [1] v. State of Haryana

findings of the Trial Court qua the guilt of the accused are based not only on the testimonies of the police officials, but a gazetted officer of the status of Tehsildar also, who has supported the factum of recovery from the accused. The case is based on secret information. The efforts made by the Investigating Officer to join independent witness/es failed. It is well-settled by now that obligation to include the public witnesses is not absolute. It is a matter of common experience that no public witness is ready to join the police party as everybody wants to avoid unnecessary and uncalled harassment either at the hands of the accused against whom he was to depose or against the police party for the fear of implication in any case. The public does not want to waste its valuable time and to purchase annoyance of the criminals. As such, non-joining of the public witnesses, where they had refused to join, is not fatal to the prosecution case.

Similar Criminal Appeal No.2112-SB of 2003(O&M) [7] observations were made by the Apex Court in Ajmer Singh vs. State of Haryana, 2010(2) RCR (Criminal) 132, wherein, it was observed as under:- “...It is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated.

The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.” In the instant case, despite the efforts made by the raiding party, no independent person offered to join, that apart, Tehsildar has been examined by the prosecution, who is never under the thumb of the police, therefore, the recovery effected in his presence cannot be discarded for non- joining of any public witness. In any case, while evaluating the testimonies Criminal Appeal No.2112-SB of 2003(O&M) [8] of ASI Brij Mohan (PW4), Sub-Inspector Kaptan Singh (PW5) and Tehsildar Ashok Kumar Gaur (PW7), it transpires that they are quite consistent in their submissions with regard to the time, place and the manner in which the recovery was effected. Barring small discrepancies, no such defect has been brought forth, so as to create dent in the prosecution case.

As such, I have no reason to discard the testimonies of the official witnesses, particularly in case of such heavy recovery of 34 bags of poppy husk and where the police officials had no animus or enmity with the accused to implicate them in such a case. As regards the argument that Section 50 of the Act is applicable, the same sans any merit. The question of compliance and non- compliance of the said Section is relevant only in case of personal search of a person and the scope of it is not extended to the search of any vehicle, container or bag. Similar observations were made in case Himachal Pradesh vs. Pawan Kumar, 2005(2) RCR(Crl.) 622, which again were reiterated by the Apex Court in case of Ajmer Singh (supra), as follows :- “A bag, briefcase or any such article or container, etc. can, under no circumstances be treated as body of a human being. They are given a separate name and are identifiable as such.

They cannot even remotely be treated to be part of the body or a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some Criminal Appeal No.2112-SB of 2003(O&M) [9] extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the Act.” It has been next contended that as per Section 20 of the Act, two samples were required to be taken from the contraband, therefore, violation of the Section vitiates the trial.

In this regard, it cannot be disputed that only one sample was taken from each bag and the same was sent to the Forensic Science Laboratory for analysis. A definite report has been received that the samples, so sent, were found to be contraband and there is no evidence that there was any tampering of the said samples. Object of drawing sample is for analysis. Mere fact that two samples were not taken, does not cause prejudice to the rights of the accused and is hardly a circumstance to condemn the prosecution case on this account. Similar observations were made by our own High Court in Jaipal @ Kala vs. The State of Haryana, 2010(2) RCR(Crl.) 52, wherein, it was observed as under:- “...There is no requirement of law that two samples from the contraband, allegedly recovered from the accused, should be drawn, by the Investigating Officer, at the time of recovery. The object of drawing a sample, is that the same should be sent to the Forensic Science Laboratory, for the purpose of Criminal Appeal No.2112-SB of 2003(O&M) [10] analysis.

The sample was sent to the Forensic Science Laboratory and it found the contents thereof to be sufficient for the purpose of analysis. There was, therefore, no violation of any provision of the Act, or the Rules framed thereunder. No dent, therefore, was caused, in the case of the prosecution, on account of drawing of one sample, from the charas, allegedly recovered. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.” So far as the question of conscious possession of the contraband by the accused is concerned, it needs notice that the raiding party had seen both the accused coming out of the bunker with a gunny bag in their hands. However, on seeing the police party, accused Mansha Ram fled from the scene, but was apprehended later on. The records reveal that there was no-one except the duo at the place of recovery and further the fact that the houses of the brothers of accused Amrik Singh are adjacent to that place, give rise to the presumption that it was Amrik Singh's place.