Criminal Appeal No.199-DBA of 2002 v. Mohinder Singh

40 gms. Two samples from the recovered opium, each weighing 20 gms were taken and were sealed separately having monogram 'JS' and 'GS', that is, the seals of Joginder Singh (PW-2) and Gurjit Singh (PW-4) and taken into possession vide recovery memorandum (Exhibit PE). The specimen of seals were taken on a paper (Exhibit P-1). Information (Exhibit PD) was sent to the Police Station Sadar, Ludhiana for registration of the case. First Information Report (Exhibit PD/1) was registered. Statement of the witnesses were recorded. Case property along with two samples was deposited with Baldev Singh MHC (PW-5). Next day on May 1st, 1998, the case property as well as the sample parcels were produced before the Area Magistrate who initialed the case property and the parcels. The sample parcel was sent to Forensic Science Laboratory (for short 'the FSL') and subjected to chemical analysis and the contents were found to be opium vide report (Exhibit P-1). Accused-appellant was arraigned for trial.

3. Accused pleaded not guilty to the charge framed against him under Section 18 of the Act and in trial that ensued, Criminal Appeal No.199-DBA of 2002. 3 prosecution examined Hardev Singh, Constable (PW-1), Joginder Singh, Sub-Inspector (PW-2), Harbhajan Singh, Assistant Sub- Inspector (PW-3), Gurjit Singh, DSP (PW-4) and Baldev Singh, Head Constable (PW-5).

4. The accused-appellant was examined under Section 313 of Code of Criminal Procedure to explain incriminating circumstance appearing in the prosecution evidence. He pleaded innocence. He stated that he was residing in a rented premises in Mohalla Ishar Nagar owned by Balwinder Singh. The Police raided his house but no incriminating substance was recovered. However, the Police took into possession a tin box from the portion of the house occupied by the landlord. The Police brought him and his wife to the Police Station and kept them for two days in illegal detention. The wife was let off after two days. The Police got his signatures on 2-3 blank papers. The opium was planted upon him. Earlier, he was falsely arrested by the Police under the Arms Act.

5. In defence, the accused examined Raj Kumar (DW-1) who was an independent witness of the prosecution. He supported the version given by the accused in his statement recorded under Section 313 Cr.P.C.

6. Counsel for the parties have been heard. Record over the file has been perused.

7. Learned trial Judge acquitted the accused on the grounds (i) that there was non-compliance of Section 50 of the Act because the investigator asked the accused whether he would like the bag carried by him to be searched in the presence of a Gazetted Police Officer or a Magistrate whereas, it should have been from the Gazetted Officer or Magistrate as such, the offer was partial and it vitiated the trial; (ii) that link evidence was missing because per the prosecution, on return to the Police Station, the sample parcel and remainder were deposited by the Investigator with Baldev Singh Moharar Head Constable (PW-5) but in the Daily Dairy Report (Exhibit D-1), it is mentioned that the case property and the parcels of the sample were deposited by Joginder Singh-Investigator with Criminal Appeal No.199-DBA of 2002. 4 Jaswinder Singh officiating SHO who also affixed his seal 'JS' on the case property and then deposited the case property and the sample parcels with Baldev Singh MHC; (iii) that the sample parcel sent to the Chemical Examiner bore two seals of 'JS' and 'GS' monogram and not the seal having the monogram 'JS' of Jaswinder Singh SHO; (iv) that there was no mention of the fact in register No.19 or Daily Diary Report (Exhibit D-1) that samples of the seals taken on the paper (Exhibit P-1) were also deposited in the Malkhana with Baldev Singh MHC; (v) that the seal after its use was not handed over to Raj Kumar independent witness which creates doubt regarding the veracity of the prosecution case; (vi) that the case property was alleged to have been produced before the Area Magistrate but no such entry was made in the zimny (interim) orders and; (vii) that Raj Kumar independent witness did not support the prosecution case rather supported the version narrated by the accused.

8. To be analytic, this Court would take up and consider the pros and cons of the grounds on which the accused was acquitted one by one :-

9. As regards non-compliance of Section 50 of the Act, it was a case of search of a bag which was carried by the accused. The search was of course made in the presence of Gurjit Singh DSP, a Gazetted Officer. What weighed with the learned trial Judge was that the investigator asked the accused whether he wanted the bag to be searched in the presence of a Gazetted Police Officer or a Magistrate and he should not have said the word 'Police' rather it should have been 'Gazetted Officer or Magistrate'. Since the opium was recovered from a bag carried by the accused, Section 50 of the Act will not apply. In State of Himachal Pradesh vs. Pawan Kumar 2005(2) RCR (Criminal) 622, question for consideration whether the safeguards provided by Section 50 of the Act regarding search of any 'person' would also apply to any bag, briefcase or any such article or container etc. being carried by an accused was placed before the larger Bench of the Hon'ble Supreme Court in view of the difference of opinion between two learned Judges of the Supreme Criminal Appeal No.199-DBA of 2002. 5 Court who heard the appeal. A 3-Judge Bench ruled that recovery of contraband from a bag/attache which accused was carrying in his hands is not a search of person and as such, Section 50 of the Act will not apply. In holding so, reliance was also placed by the Bench on a earlier decision rendered by a Constitution Bench in State of Punjab vs. Baldev Singh 1999(3) RCR (Criminal) 533 (SC). In view of this, learned trial Judge fell in error while holding that there was non- compliance of Section 50 of the Act. It is also pertinent to mention here that the learned counsel for the accused has fairly conceded the proposition of law enunciated above.

10. So far as the missing of link evidence is concerned, Joginder Singh Sub-Inspector (PW-2) and Baldev Singh MHC (PW-5) have categorically deposed that on return to the Police Station, the case property and the sample parcels having the seals of 'JS' and 'GS' were deposited by Joginder Singh (PW-2) with Baldev Singh (PW-5) in the Malkhana which remained intact with him (Baldev Singh). Baldev Singh has further deposed that next day, that is, on May 1st, 1998, the sample parcels and the remainder having the seals of 'JS' and 'GS' were handed over to Harbhajan Singh, ASI (PW-3) for producing the same before the Area Magistrate and she also signed the same. Harbhajan Singh (PW-3) has also stated that on May 1st, 1998, sample parcels and the remainder having the seals intact were handed over to him by Baldev Singh along with the sample seal and he produced the same before the Area Magistrate who further tallied the seal with the specimen impression of the seals on the parcel and the remainder. After signing the same, she returned it to him which he deposited with Baldev Singh on the same day. A perusal of the FSL report (Exhibit P-1) also shows that on the samples sent to it, there were two seals having monogram 'JS' and 'GS'. Entry in the DDR is not a substantive piece of evidence and it should not be highlighted particularly when there is overwhelming evidence to prove that sample parcel and the remainder had two seals and not three. The accused could not produce any oral or documentary evidence to prove that any of the seals affixed was Criminal Appeal No.199-DBA of 2002. 6 found broken at any point of time rather prosecution has proved to the hilt that seals remained intact throughout. So, the point of missing of link evidence pales into insignificance.

11. Coming to the next point that in the register No.19 or DDR (Exhibit D-1) it was not mentioned that samples of the seals taken on the paper (Exhibit P-1) were not deposited in the Malkhana by the Investigator which was highlighted by the learned trial Judge in acquitting the respondent does not matter at all because Harbhajan Singh (PW-3) has deposed that Baldev Singh (PW-5) handed over to him a parcel of the sample, remainder and the sample of the seals which he got verified from the Area Magistrate. It could be a procedural lapse but not the ground on which the accused could be acquitted.

12. It was argued by the counsel for the respondent that seals after use were not handed over to the independent witness so, possibility of tampering with the case property could not be ruled out. The Court is required to take into consideration the entire evidence, as also the facts and circumstances of the case, to come to the conclusion, as to whether, any prejudice was caused to the accused, on account of non-handing over the seal, used by the officials, for sealing the material, recovered from him, to an independent witness. There is no such evidence on record that the case property and the samples were tampered at any stage by the Police officials rather as observed in the foregoing paragraphs of this judgment, the case property and the samples remained intact throughout. Otherwise too, it was not incumbent upon the Police officers to hand over the seals to a third person as has been held by a full Bench of this Court in Piara Singh vs. State of Punjab 1982 CLR(2) 447. In view of this, non-entrustment of seal to an independent witness, in view of the convincing evidence, regarding the completion of link evidence does not affect the merits of the case. Thus, the submission of the counsel for the respondent is devoid of merit and is rejected.

13. The prosecution has proved that the case property Criminal Appeal No.199-DBA of 2002. 7 parcels of the sample and sample of the seals were duly produced before the Area Magistrate and she verified the same. In view of this, it hardly matters whether this fact was mentioned in the interim orders by the Police or not. On that score, the case of the prosecution should not have been dis-believed by the trial Judge.

14. The defence of the accused also appears to be an afterthought. Joginder Singh (PW-2) has deposed that to collect further material evidence connecting the accused with the alleged commission of crime, he searched the house of the accused. If the story propounded by the accused in his statement under Section 313 Cr.P.C had any grain of truth, he could very well approach the higher authorities complaining against investigator but he did not. No suggestion was even put forth to the investigator by the defence counsel that one tin box was recovered from the portion of the house occupied by the landlord and the accused and his wife were brought to Police Station and were illegally detained in the Police Station and thereafter, opium was planted upon the accused. It shows that the defence of the accused is an afterthought.

15. It was further urged by the learned counsel for the respondent, that Raj Kumar, independent witness, appeared as DW- 1 and supported the plea of the accuse as pleaded by him (accused) in his statement recorded under Section 313 Cr.P.C which clearly shows that the accused was falsely implicated in the case. The submission of the Counsel for the respondent is not tenable. Raj Kumar (DW-1), during the course of his cross-examination stated that his signatures were obtained by the Police on some blank papers. In case, his signatures had been obtained on blank papers, then he could move an application before the Higher Police Authorities, that he did not witness the alleged search and seizure, but he was introduced as a witness, to this case later on. He, however, did not do so. Since, he had been won over by the accused he would naturally say that the search and seizure, was not effected, in his presence. In State of Rajasthan v. Udai Lal, 2008(2) RCR (Criminal) 956 (S.C.). , independent witnesses were joined, and Criminal Appeal No.199-DBA of 2002. 8 examined, by the prosecution. They resiled from their statements. They, however, admitted their signatures, on the documents. In these circumstances, it was held by the Apex Court, that their evidence did not affect the merits of the case, when the other evidence produced by the prosecution, was cogent, convincing, and reliable, to prove the case of the prosecution. The other evidence produced by the prosecution was taken into consideration, and the accused were held guilty, convicted and sentenced. In this view of the matter, the submission of the counsel for the respondent, being without merit stands rejected. More so, there is no evidence that there was any previous enmity between the Police officials concerned and the accused-respondent, who in fact was a stranger. Why accused- respondent should have been implicated falsely ? The quantity of opium was 7 Kgs 40 gms . Will the Investigator plant this quantity ? The answer to these questions has to be in the negative. To suspect the officials of Police in respect of acts done by them in the discharge of their public duties, shall run counter to the recognized principles of law that the presumption is that a person, including a Police official, acts honestly unless the contrary is proved. This Court sees no reason why the testimony of Joginder Singh, Sub-Inspector (PW-2), Harbhajan Singh (PW-3), Gurjit Singh, DSP, (PW-4) and Baldev Singh, MHC (PW-5) should not be relied upon. The case stood proved beyond any shadow of doubt.

16. In view of above, the entire approach of the learned trial Judge in acquitting the accused was lopsided and rather, contumacious.

17. In upshot, for the reason recorded supra, the appeal filed by the State is accepted. Resultantly, the impugned judgment of acquittal is set-aside and the accused-respondent is held guilty of offence punishable under Section 18 of the Act and convicted thereunder. This Court sentences accused-respondent to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lac. In default of payment of fine, he shall undergo further rigorous imprisonment for a period of one year. He be arrested and Criminal Appeal No.199-DBA of 2002. 9 sent to jail to undergo the sentence passed. Trial Judge is directed to comply with this order forthwith under intimation to this Court. (ASHUTOSH MOHUNTA) (NAWAB SINGH) JUDGE JUDGE

30.6.2010 SN