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SHAMSHER SINGH ALIAS RAMESHWAR versus STATE OF HARYANA

High Court of Punjab and Haryana, Chandigarh

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Shamsher Singh alias Rameshwar v. State of Haryana - CRA-1175-SB-2003 [2006] RD-P&H 1094 (22 February 2006)

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Criminal Appeal No. 1175-SB of 2003

Date of decision : March 06, 2006

Shamsher Singh alias Rameshwar

....Appellant

versus

State of Haryana

....Respondent

Coram: Hon'ble Mr. Justice Virender Singh Present : Mr. R.N.Khush, Advocate, for the appellant Mr. Sunil Katyal, Deputy Advocate General, Haryana Judgment

Appellant Shamsher Singh alias Rameshwar stands convicted under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') vide impugned judgment/order of learned Additional Sessions Judge, Bhiwani dated 30/31.5.2003 for allegedly keeping in his possession four quintals (400 kgs) of poppy straw. The split up is that in 10 gunny bags there were 800 packets and each gunny bag was containing 80 packets and each packet was containing 500 grams of poppy husk. He has been sentenced to undergo RI for ten years and to pay a fine of Rs one lac. In default of payment of fine to further undergo RI for one year.

It is worth mentioning here that one Baljit Singh was also booked with the present appellant. His bail application was cancelled by this Court vide order dated 26.3.2001 passed in Crl. Misc.No. 27831-M of 2000 and his presence was ordered to be secured through warrants of arrest. He could not be arrested and ultimately after initiating proceedings under section 82 of Cr.P.C., he was declared a proclaimed offender vide order dated 9.12.2002.

Case of the prosecution

On 24.6.2000, Assistant Sub Inspector Raj Singh (PW4) who is also the Investigating Officer of this case along with other police officials was present at canal bridge Motipura Minor, Jhuppa Kalan in connection with patrolling. In the meanwhile Jagat Singh son of Kirpal Singh (PW6) also reached there in a jeep. After some time one Gypsy jeep bearing registration No. HR-26C-7778 came from the side of Jhuppa. It was being driven by Baljit Singh (since declared as proclaimed offender) whereas the appellant was sitting in the said Gypsy.

A signal was given to the driver of the Gypsy to stop it but he did not bother and ultimately with the help of the barricades it was made to stop.

On the basis of doubt of contraband being carried in the said vehicle, ASI Raj Singh asked both of them with regard to their search. It was in compliance with the section 50 of the Act. Notice Ex. PD was served upon both of them. Their reply was also obtained in which they opted to be searched in the presence of a Gazetted Officer. The reply is Ex. PE.

Thereafter a message Ex. PF was sent to DSP Narinder Kumar PW5 who arrived at the spot and thereafter on his directions, the Gypsy was searched. It was containing 10 bags. On opening, it was found that each bag was containing 80 packets and each packet was containing 500 grams of poppy straw. In total 800 small packets were recovered. The total weight turned out to be 400 kgs (4 quintals).

It is then the case of the prosecution that one packet weighing 500 grams was taken out as sample from each bag whereas 79 small packets taken out from each bag were kept in the said bag. Ten samples as well as residues were sealed with the seal of RSD (referring to ASI Raj Singh). It was then handed over to DSP Narinder Kumar. The entire case property was taken into possession vide recovery memo Ex.

PG. The appellant and his co-accused could not produce any permit or licence for keeping the poppy straw in their possession. A ruqa Ex. PJ was sent to Police Station Siwani for registration of the case, on the basis of which, formal First Information Report Ex. PA was recorded.

Rough site plan Ex. PH was also prepared at the spot. The appellant and his co-accused Baljit Singh were formally arrested and thereafter they along with case property and the witnesses were produced before Sub Inspector/SHO Rajender Kumar of Police Station Siwani (could not be produced by the prosecution on account of his ill health). He verified the facts and affixed seals bearing inscription AS on the samples as well as residues. The report Ex. PP was prepared in this regard. A report Ex. PM prepared under section 57 of the Act was also verified by DSP Narinder Kumar vide his verification note Ex. PM/1. The samples were then sent to Forensic Science Laboratory, Madhuban, Haryana. On receipt of the report, which reflected that the samples were containing poppy straw, the investigation culminated into filing of challan against the appellant and his co-accused. They were charged under section 15 of the Act.

In order to prove its case, the prosecution has examined the following witnesses:-

PW1-ASI Suraj Bhan: This witness had recorded the formal FIR. He also identifies the signatures of one Krishan Kumar SI who prepared the report under section 173 of Cr.P.C.

PW2-HC Subhash This witness tendered his affidavit Ex. PB to Chander prove the link evidence.

PW3- Constable This witness also tendered his affidavit Ex. PC Surender Singh to prove the link evidence.

PW4- ASI Raj Singh: This witness is the Investigating Officer of the entire case. Investigation conducted by him is described in detail in the preceeding paras.

However, the relevant portion from his evidence shall be discussed at the relevant stage.

PW5-DSP Narender He is another witness to the recovery and Kumar reiterates the case of the prosecution.

Prosecution gave up certain official witnesses as un- necessary and tendered the report of the FSL Ex. PN.

The stand taken by the appellant as emerges from his statement recorded under section 313 of Cr.P.C. is one of false implication. He asserts that on 24.6.2000, he along with Baljit Singh was standing at Motipura in order to go to Hissar and was waiting for some vehicle to come. The police party met him and planted a false case registered against him.

In defence the appellant had produced one Dharam Singh son of Kirpa Ram as DW1 who states that on 24.6.2000, his tractor had developed some problem on the Motipura minor. The police party reached there and took away the appellant with them. He then states that he had not seen the appellant having anything with him.

HC Jaivir Singh DW2 is the other witness produced by the appellant. He states that on 24.6.2000, he was posted as Driver on Jeep of Deputy Superintendent of Police, Siwani. From the log book he states that the distance between Siwani and Dhanana is about 65 kilometers.

He also states that the log book was entered by him in the evening hours of 24.6.2000. He further stated that the distance between DSP office Siwani and Police Post Jhoopa is 20 kilometers. He along with DSP had not gone to Police Post Jhoopa as ASI Raj Singh met them at Motipura Canal Bridge. He, however, states that they reached at about 9.30/9.45 AM.

After appreciation of the entire evidence, the appellant has suffered conviction and has been sentenced as stated above. Hence, this appeal.

I have heard Mr. R.N.Khush, learned counsel for the appellant and Mr. Mr. Sunil Katyal,learned Deputy Advocate General, Haryana and with their assistance I have gone through the entire records very minutely.

Mr. Khush at the very outset states that in the instant case the prosecution agency joined one independent witness, namely, Jagat Singh son of Kirpal Singh to give sanctity to the recovery but the said witness did not support the case of the prosecution. He was consequently declared hostile. However, in his cross-examination he has categorically stated that his signatures were obtained by the police on certain blank papers. According to Mr. Khush, this is a material lacuna in the case of the prosecution and creates doubt about the recovery interalia on other weaknesses.

Mr. Khush then submits that the recovery has been effected in this case on the direction of DSP Narender Kumar but there is no such direction in writing. This amounts to flouting of the provisions of section 41(2) of the Act and thus, dents the case of the prosecution. In support of his contentions, he has relied upon a judgment of Hon'ble Apex Court rendered in T.Thomson v. State of Kerala and another (2002) 9 SCC 618 (para 6 refers).

Mr. Khush attacks the case of the prosecution with regard to sealing of the sample and the residues stating that the seal used is of an out sider and this also creates doubt about the entire recovery. Dwelling upon his arguments, he contends that it is the admitted case of the prosecution that the samples and the residues were bearing seals of the inscription of RSD and AS. The seal of RSD is used by the Investigating Officer and when the case property was produced before the SHO, Rajender Singh, he had also affixed his seals as is clear from the statement of the Investigating Officer but the samples sent to FSL for analysis indicate the inscription of 'AS'. According to the learned counsel, AS does not stand for Rajinder Kumar SHO who had to comply with the provisions of section 55 of the Act and was supposed to keep the case property in safe custody. This indicates that the samples have been tampered with at some stage before they reached the hands of the Analyst for testing. According to the learned counsel, no explanation is put forth by the Investigating Officer as to why the SHO had not used his seal in order to comply with the provisions of section 55 of the Act and this can be said to be a serious defect. In this regard, he relies upon a judgment of Delhi High Court rendered in Rahis Ahmed v. State , 1994(3) RCR (Criminal) 597.

Mr. Khush makes an attempt to demolish the case of the prosecution yet from another angle submitting that the case property was kept throughout in the Malkhana of the Police Station and was not kept in Judicial Malkhana after obtaining orders of the Court. The seal after use was also handed over to DSP Narender Kumar a police officer and therefore, the possibility of tampering with the seal on the samples or even on the residues cannot be ruled out as there was no counter check.

The sample has been sent to the Chemical Examiner after 18 days and the case property remained with the Mohrar Malkhana in the same Police Station. According to the learned counsel, a very vital link is missing and the appellant is entitled to benefit of doubt on this count also. In support of his contentions, he has relied upon a judgment of Orissa High Court rendered in Mayadhar Rout vs State 1996(2) Crimes 29.

The learned counsel lastly submits that the case of the prosecution also fails on another material infirmity which knocks at the bottom. He contends that admittedly 800 packets of poppy straw each containing 500 grams are allegedly recovered from the Gypsy. In all there were 10 bags and each bag was containing 80 packets. The case set up by the prosecution is that all the ten bags were opened and all the packets were counted but from each bag one packet containing 500 grams of poppy straw has been taken out as sample. In this way from 10 bags, 10 packets have been taken out as samples and the same were sent to the Analyst for analysis, as is clear from the report Ex. PN. From this, the learned counsel wants to develop that it cannot be said positively that the remaining 79 packets recovered from each bag were, in fact, containing poppy straw or not. Taking out one packet from each bag cannot be said to be a representative sample of whole of the contraband carried in the shape of other 79 packets. The prosecution has not brought forth any clinching evidence in this regard and even if the prosecution story is believed as it is, the appellant can at the most be said to be in conscious possession of 5 kgs of poppy husk only and not 400 kgs as is the case of prosecution. In such a situation, he shall be entitled to reduction in the substantive sentence or even sentence of fine as the recovery allegedly effected from the appellant pertains to the month of June, 2000, but the case was finally decided by the trial court after the amendment of the Act and as per the amended provisions of the Act, the appellant can be sentenced to a lesser punishment keeping in view the less quantity of the contraband. In support of his contentions, the learned counsel relies upon a judgment of this Court rendered in Sikander Singh vs State of Punjab 2005(2) RCR (Criminal) 810.

On the basis of the aforesaid submissions, the learned counsel submits that the prosecution has not been able to prove the conscious possession of the contraband qua the appellant and as such he deserves acquittal or in the alternative if it is said to be proved, then in that eventuality, the appellant may be punished for having in his conscious possession a small quantity of contraband entitling him to reduction in the quantum of sentence, keeping in view the fact that the appellant is in custody since the date of his arrest, i.e. 24.6.2000.

The arguments advanced by Mr. Khush are vehemently opposed by the learned State counsel on all the aspects and that the prosecution case does not suffer from any infirmity and the conviction as recorded deserves to be confirmed.

After hearing rival contentions of both the sides and going through the entire records very carefully, I am of the view that the prosecution has been able to bring home the guilt to the accused beyond any shadow of reasonable doubt and the conscious possession of the appellant qua the contraband is proved.

No doubt the independent witness Jagat Singh has not supported the case of the prosecution as he has been declared hostile but this cannot be said to be a ground to see the case of the prosecution with an eye of suspicion. Independent witness being won over is not an un- common practice. It cannot be taken as a ground to discard the case of the prosecution in its entirety if it is otherwise proved. The court at the most is supposed to scan the evidence of the official witness with more care and caution. The present case rests upon the statement of two official witnesses i.e. the Investigating Officer and one DSP who are the witnesses to the recovery. The learned counsel for the appellant has not been able pin point any material discrepancy in their statements which would speak of false implication of the appellant. These two police officials had no motive to falsely implicate the appellant in a case of this kind of recovery. Even otherwise, no motive is projected by the appellant, if one reads his statement under section 313 Cr.P.C. The defence evidence led also does not strengthen the case of the appellant.

No doubt the prosecution has to prove its case irrespective of the defence plea taken up by the appellant but in a case of possession, the accused is expected to project a plausible defence which appeals to the judicial conscience in order to rebut presumption . The same is missing in the instant case and, therefore, the statements of the official witnesses which includes a gazetted officer of the rank of DSP and not suffering from any flaw cannot be discarded simply that independent witness has not supported the case of the prosecution. My view is strengthened by a judgment rendered by a Division Bench of this Court in Mohd. Iqbal v.

The State of Punjab 2003(1) RCR (Criminal) 316, wherein two judgments of Hon'ble Apex Court rendered in Ambika Prasad and another v. State (Delhi Admn., Delhi) 2000(1) RCR (Criminal) 643 (SC) and Appabhai and another v. State of Gujarat, AIR 1988 SC 696 are relied upon.

The other arguments advanced by Mr. Khush to the effect that no direction in writing was given by DSP Narender Kumar to the Investigating Officer for conducting search of the Gypsy cannot be said to be fatal to the prosecution at all because as per the facts of the instant case, after the appellant and his co-accused had shown their desire to be searched in front of the gazetted officer, a message was flashed and thereafter Narender Kumar DSP reached the spot. He verified all the facts and then directed ASI Raj Singh to conduct the search. This, in other words, amounts to authorising the subordinate to conduct the search. DSP Narender Kumar was present throughout the search and signed all the requisite recovery memos. This shows that he himself is party to the search. He is a material witness to the recovery and, therefore, it cannot be said that in the instant case there is non compliance of section 41(2) of the Act. The judgment rendered in T.Thomson's case (supra), cited by learned counsel for the appellant, is distinguishable on facts and does not come to the rescue of the appellant.

Another attempt made by Mr. Khush to demolish the case of the prosecution with regard to the controversy about the seal on the samples or even residues is again of no use to the appellant. In this regard I have very minutely seen the entire evidence on the file. ASI Raj Singh PW4 who had initially appeared in the witness box did not cry anything about the compliance of section 55 of the Act. He simply stated that the accused and the case property were produced before the SHO, Police Station Siwani. Subsequently an application was moved by the State under section 311 Cr.P.C. and this witness was recalled for further examination in which he has categorically stated that he had produced the report Ex. PM prepared under section 57 of the Act before Sub Inspector Rajender Kumar who after verification prepared his report Ex.

PP. He also affixed his own seal of inscription 'AS' on the sample as well as residues. As stated above, SHO Rajender Kumar could not be produced by the prosecution on account of his ill-health and therefore, Raj Singh identified his signatures on certain documents. The cross- examination of this witness indicates that on a particular question put to him about affixing of the seal, he gave a categorical reply that SI/SHO Rajender Kumar had affixed the seal of AS but he did not know why he had affixed the said seal. He also makes it clear that on the direction of SI Rajender Kumar, he had deposited the case property in the Malkhana of Police Station. From the aforesaid evidence, there remains no controversy with regard to the seal impression and it can be safely concluded that instead of the seal bearing inscription RK which stands for the name of Rajender Kumar, seal of AS was used. Even the affidavit of police official who had taken the sample to the Analyst indicates that the samples were bearing seal impression RSD and AS. So is the position of the report Ex. PN which reflects that 10 samples bearing seal impression RSD and AS were received in the office of the Chemical Examiner. It is quite possible that SHO Rajender Kumar might not be having his own seal of RK and he used the seal of some other official. ASI Rajender Kumar was not supposed to explain as to why SHO Rajender Kumar did not use his own seal. The fact remains that a seal bearing inscription of AS is used by SHO Rajender Kumar. To be fair to Mr. Khush, it is observed that the judgment rendered in Rahis Ahmed's case (supra) relied upon by the learned counsel for the appellant, does not advance the case of the appellant as the facts of the aforesaid case are entirely different as in the said case it was observed that the seal allegedly used did not belong to either of the member of the raiding party. The position is entirely different in this case. The raiding party consisted of ASI Raj Singh and DSP Narender Kumar and the seal of RS ( of ASI Raj Singh) has been used initially at the time of recovery and thereafter in order to comply with the provisions of section 55 of the Act, Rajender Kumar has used the seal of AS in the Police Station.

Much has been said by Mr. Khus about the deposit of the case property in the General Malkhana of the Police Station and not being deposited in the Judicial Malkhana. No doubt ASI Raj Singh has not submitted any report before the Magistrate with regard to the seized articles for further directions strictly in compliance with the provisions of the Act but the said fact per-se would not be fatal to the prosecution. It is very commonly noticed that in all the cases of recovery, may be under NDPS Act, Excise Act or any other Act, the case property in routine is kept in the Malkhana of a particular Police Station and after filing of the challan, it is deposited in the Judicial Malkhana for the reason that the case property can be produced before the trial court conveniently during the proceedings. In that eventuality, Moharar Head Constable who is Incharge of the said Malkhana is given the custody of the case property.

In the instant case, the normal procedure was followed by the Investigating Officer but after effecting the recovery he took the case property before SHO Rajender Kumar and then on his directions, the sample and the residues were deposited with Moharar Head Constable in his safe custody who in turn handed it over to another police official for taking it to the Chemical Examiner. Both the police officials have tendered their affidavits asserting that till the case property remained with them it was not tampered with. The judgment rendered in Mayadhar Rout's case (supra), relied upon by the learned counsel for the appellant, is again distinguishable on facts. In the aforesaid case, the Investigating Officer has stated that he had approached the Court of Magistrate to keep seized contraband in court Malkhana but the same was not supported by order passed by the Magistrate. The excise Malkhana Register was also not produced and in that eventuality, it was held that the vital and decisive link was missing and the appellant was made entitled to the benefit of doubt. That is not the position in the instant case.

The last limb of arguments on which Mr. Khush has relied very heavily with regard to procedure followed by the Investigating Officer for extracting 10 samples viz one from each bag, apparently appears to be quite attractive but when appreciated in depth it loses its strength. As candidly admitted by the learned State counsel and so is my view that the Investigating Officer has not bothered to adhere to follow the proper and complete procedure in conducting the investigation in this case, that too in a case of very heavy recovery where 400 kgs of poppy straw was being transported in a vehicle. But at the same time, the entire case of the prosecution is not to be thrown out on some-what shoddy investigation at one stage. The Investigating Officer opened all the ten bags. Each bag was containing 80 packets of same weight (500 grams).

He has stated in his evidence that on opening each bag, 80 small packets containing 500 grams each of chura post were found. This shows that the Investigating Officer was very clear in his mind that each packet out of 80 packets in one bag was, in fact, containing poppy straw only and nothing else, and, therefore, according to him taking out one packet of poppy straw as sample from each big bag (bori) would be a representative sample of all the 80 packets contained in that bag (bori).

For this reason he had taken out ten packets weighing 500 grams from ten separate bags. When ASI Raj Singh stepped into the witness box, a specific question was put to him in this regard and he categorically replied that the contraband which was taken into possession by him appeared to be poppy straw. Another material fact which emerges from the case of the prosecution is that Investigating Officer was not aware of the fact as to which particular packet out of one big bag (bori) has to be taken out by him as sample. He had just picked up one packet out of the complete lot of 80 packets. Another factual position which is apparent on the record is that all the 80 packets contained in one bag are weighed separately. This shows that all the 80 packets from one bag were taken out by the Investigating Officer, weighed and then one packet at random was picked up for sample. This is the position with regard to other nine bags also. Therefore, in the aforesaid factual back-drop, it can safely be concluded that each packet from each big bag was the representative sample. The argument advanced by the learned counsel for the appellant has to be repelled in this regard. The judgment rendered in Sikander Singh's case (supra), relied upon by him, is entirely distinguishable on facts and cannot strengthen the case of the appellant.

No other point has been urged before me by either side.

The net result after rescanning the entire evidence surfaces is that the prosecution has been able to prove the conscious possession of the contraband qua the appellant to the hilt. The conviction and sentence as recorded by the learned trial court, thus, stands confirmed.

The instant appeal is accordingly dismissed.

Before parting with my order of confirming the conviction, I may observe that there should be no shoddy investigation. Faulty investigation can lead to serious ramifications and it defeats the very purpose of the Act. No ground should be left for adverse criticism. No doubt, the powers of the Court are wide but the same are not to be used off the record. The police officials investigating the case under the Act are obliged to know the letter as also the spirit of such a legislation.

Special workshops-cum-training programmes are desired to be held for imparting training. Agencies be trained to know that the procedure prescribed by law is the only and the only procedure and no loop-holes should be left in the investigation. It is quite often noticed by the Courts that an accused earns acquittal on account of weak investigation. The senior police officials should take a serious note of it and watch the investigation being conducted from time to time. The times have come for a concerted and coordinate effort by all wings of the State at various levels to take effective steps to extinguish the menace of drugs. Only then, the new Act will be able to achieve its goal.

( Virender Singh )

March 06 ,2006 Judge

'dalbir'


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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