Criminal Appeal No.29-SB of 2003 and Criminal Appeal No.125-SB of 2003 v. State of Haryana

CORAM : HON'BLE MR.JUSTICE MOHINDER PAL.

1. Whether Reporters of Local papers may be allowed to see the judgment ? To be referred to the Reporters or not ?

2. 3. Whether the judgment should be reported in the Digest ? Present: Mr. G.S. Sidhu, Advocate, for appellant Bansi Lal. Mr. J.S.Thind, Advocate, for appellant Mukhtiar Singh. Ms. Sushma Chopra, Additional Advocate General, Haryana. -.- -2- Criminal Appeal No.29-SB of 2003 and Criminal Appeal No.125-SB of 2003. MOHINDER PAL, J. This judgment will dispose of the afore-stated two appeals as they arise of the same First Information Report. These appeals have been filed by appellants Bansi Lal and Mukhtiar Singh against the judgment of conviction and the sentence order dated 11.12.2002 passed by the Additional Sessions Judge, Sirsa, 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 fine of Rs.1,00,000/-, each, in default whereof to undergo further rigorous imprisonment for two years. The facts of the prosecution case, in brief, are that on

21.7.1998, Assistant Sub Inspector Ishwar Singh of Police Station, Sadar, Dabwali, along with other police officials, was present at Bus Stand of Village Khuiyan Malkana in a Government Jeep. He was informed by witness Satpal that accused-appellant Bansi Lal had brought five bags of poppy straw and had kept the same in the house of accused-appellant Mukhtiar Singh. On the basis of this information, a raid was organized and conducted at the house of appellant Mukhtiar Singh. At that time, appellants Mukhtiar Singh and Bansi Lal were handling a few bags in a particular room. Appellant Bansi Lal fled away from the house of Mukhtiar Singh after scaling the wall thereof upon seeing the police -3- Criminal Appeal No.29-SB of 2003 and Criminal Appeal No.125-SB of 2003. party. Appellant Mukhtiar Singh was captured by the police party. Assistant Sub Inspector Ishwar Singh apprised the accused- appellant Mukhtiar Singh of his right to be searched in the presence of a Magistrate or a Gazetted officer. Appellant Mukhtiar Singh prayed that the search be conducted in the presence of a Gazetted Officer. Thereupon, Naib Tehsildar Suresh Kumar was summoned at the scene of crime. Five bags of poppy straw containing 36 Kgs each were recovered from the possession of the accused. Two samples of 100 grams each were taken out from each bag. The said samples along with the bags containing poppy straw were seized by the police vide recovery memo Exhibit P.B after sealing them. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. Case property was produced before Hawa Singh, Assistant Sub Inspector/Station House Officer of Police Station Sadar, Dabwali. Both the accused were arrested. After completion of investigation and all the due formalities, challan against them was present in the Court. 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. In order to prove its case, the prosecution examined Head Head Constable Krishan Lal (P.W.1), Jaskaran Singh (P.W.2), Suresh Kumar, Naib Tehsildar, Bahadargarh, District Jhajjar (P.W.3), Assistant Sub Inspector Ishwar Singh (P.W.4), Constable Rajender Kumar (P.W.5), Head Constable Manphool Singh (P.W.6) and -4- Criminal Appeal No.29-SB of 2003 and Criminal Appeal No.125-SB of 2003. Assistant Sub Inspector Hawa Singh (P.W.7). The independent- witness Satpal was given up by the prosecution as having been won over by the accused. Report of the Forensic Science Laboratory, Madhuban (Exhibit P.K) opining the sample in question to be of poppy straw was tendered in evidence. Statements of the appellants were, thereafter, recorded under Section 313 of the Code of Criminal Procedure in which they denied the prosecution allegations and pleaded false implication. In defence, the appellants examined Constable Hanuman Singh (D.W.1), Constable Bhoop Singh (D.W.2) and Inspector Chander Bhan of C.I.A. Staff, Jind (D.W.3). The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case against the accused-appellants beyond reasonable doubt and, accordingly, convicted and sentenced the appellants for the offence punishable under Section 15 of the Act, as mentioned above. I have heard Mr. G.S. Sidhu, Advocate, appearing for appellant Bansi Lal, Mr. J.S.Thind, Advocate, appearing for appellant Mukhtiar Singh and Ms. Sushma Chopra, Additional Advocate General, Haryana, appearing for the State of Haryana 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 straw recovered from his possession. -5- Criminal Appeal No.29-SB of 2003 and Criminal Appeal No.125-SB of 2003. Learned counsel for the appellant argued that the case of the prosecution is based only on the statements of the official witnesses and the only independent witness Satpal, on whose information the raid was conducted at the house of appellant Mukhtiar Singh, was given up as having been won over by the accused. It has been 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. It has been submitted that non-examination of independent witness Satpal 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 put forth by the prosecution. As has been noticed above, five bags of poppy straw, each containing 36 Kgs, were recovered in this case. Recovery was effected by the police officials in the discharge of their official duties. They had no reason to plant five bags of contraband on the accused without any rhyme or reason. Both Head Constable Krishan Lal (P.W.1) and Assistant Sub Inspector Ishwar Singh (P.W.4), the members of the raiding party, have corroborated each other on all the material particulars of the case. They had no axe to grind against the accused-appellants. The statements of Head Constable Krishan Lal and Assistant Sub Inspector Ishwar Singh get further corroboration from the -6- Criminal Appeal No.29-SB of 2003 and Criminal Appeal No.125-SB of 2003. statement of Naib Tehsildar Suresh Kumar (P.W.3). Naib Tehsildar Suresh Kumar has deposed in detail as to how he had reached the spot to witness the search of the accused on 21.7.1998. Besides, the prosecution has also examined Jaskaran Singh (P.W.2), who had taken some photographs of the scene of crime. He duly proved the photographs (Exhibits P.6 to P.9) along with their negatives (Exhibits P.10 to P.13) relating to this case. 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. No material contradiction, worth the name, has been pointed out by the learned counsel for the appellants in the statements of the official witnesses. The accused-appellants has also not alleged any enmity with them (police officials). It is well-settled that the prosecution story cannot be discarded on the ground that the independent witness has not been examined. Learned counsel for accused-appellant Bansi Lal further argued that the said appellant was not arrested at the spot and, therefore, his identity has not been established on record. According to the learned counsel, it makes the case of the prosecution doubtful. I have given my careful thought to this argument of the learned counsel for appellant Bansi Lal, but do not find any substance therein. It is important to note that the bags of poppy straw were found in possession of both the accused Bansi Lal and Mukhtiar Singh at the time of raid by the police. However, -7- Criminal Appeal No.29-SB of 2003 and Criminal Appeal No.125-SB of 2003. appellant Bansi Lal had run way upon seeing the police party. He had been identified at the spot. As such, the failure of the police party to arrest Bansi Lal at the spot was only due to an overt act done by accused-appellant Bansi Lal himself. The police cannot be blamed for that. It is further argument of the learned counsel for the accused that the sample in this case was sent to the Chemical Examiner after a few days of its recovery and it casts a doubt upon the veracity of the prosecution version. Again, I do not find any merit in this argument of the learned counsel. The report of the Forensic Science Laboratory (Exhibit P.K) confirms the receipt of sample in intact condition. There is nothing on record to show that the sample had been tampered with. The delay, if any, appears to be procedural in nature and it does not attract any lapse on the part of the prosecution. In the presence of the impeccable evidence led by the prosecution, I have no hesitation in holding that the prosecution has been able to prove its case against the appellants beyond all reasonable doubts. Consequently, I do not find any merit in these appeals and the same are hereby dismissed. April 06, 2010. ( MOHINDER PAL ) JUDGE