High Court of Punjab and Haryana, Chandigarh
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Dilbagh Singh v. Inspector Customs, Customs House, Amrits - CRA-D-770-DB-2004  RD-P&H 9090 (24 October 2006)
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Date of decision: October 31, 2006
Dilbagh Singh Vs. Inspector Customs,
Customs House, Amritsar
CORAM: Hon'ble Mr. Justice Virender Singh
Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Vikram K. Chaudhari, Advocate, for the appellant
Mr. D.K. Bhatti, Advocate, representing the Custom Department (Respondent)
Virender Singh, J.
After having been convicted under Section 21 of the Narcotic Drugs Psychotropic Substances Act (for short 'the Act') for allegedly having in his conscious possession 12 Kgs. 255 grams of heroin without any licence or permit, appellant Dilbagh Singh, resident of Amritsar (Punjab) has preferred the instant appeal against the impugned judgment of Special Judge, Amritsar dated 11.9.2004 whereby he has been sentenced to undergo rigorous imprisonment for twenty years and to pay a fine of Rs.2.00 lacs, in default of payment of fine to further undergo R.I. for two years. Scooter No.PJM-3000 on which he was allegedly carrying the contraband has also been ordered to be Crl. Appeal No.770-DB of 2004 2
confiscated to the State.
A complaint was filed against the appellant by Shri Varinder Kumar Dhawan (PW3), the then Inspector Custom (Preventive Custom House, Amritsar), in the Court of Chief Judicial Magistrate, Amritsar under Sections 21/22/23 of the Act, alleging therein that on 4.6.1996 after receipt of a secret and specific information against the appellant to the effect that he would carry heroin, held a joint Naka near village Khurmania at Ram Tirath Road consisting of the custom officials and the police party in which two independent witnesses, namely, Subhash Chander and Veer Singh were also joined. It was at 8.30 P.M. when the appellant was seen coming on his scooter No. PJM-3000, and was asked to stop the scooter. He was found carrying a bag. Inspector Varinder Kumar disclosed his identity and had expressed his wish for conducting the search of the said bag suspecting that he (the appellant) was carrying some Narcotic items. When the appellant was asked as to whether he wanted the search to be conducted before a Gazetted Officer or a Magistrate, he gave in writing his offer of being searched in the presence of a Gazetted Officer. A memo Ex.PA was prepared in this regard which was signed by the appellant and attested by J.S. Sohal, the Inspector Police. Shri H.S. Phul (PW4) was a Gazetted Officer being the Superintendent, Central Excise Custom Department. He was a member of the raiding party and in whom the appellant reposed faith. Consequently in his presence the packet was opened. It was found containing twelve Crl. Appeal No.770-DB of 2004 3
small packets. Out of them eight were having the marking of 'ITTAFAR FACTORY 777 Special quality' (written in Urdu) and four packets were having marking '333 Special International Ithar Factory 555 (written in Urdu). On opening the packets, brown sugar was noticed in them and the same was tested with a drug testing kit which were found to be heroin.
The heroin was weighed and the total weight was 12 Kgs. 255 grams.
Three samples each weighing 10 grams were taken from each packet.
All the samples and the remainder were made into packets and were sealed with the seal bearing No.108 of Custom Division Amritsar.
Recovery memo Ex.PB was prepared in this regard which was attested by Shri H.S. Phul, Superintendent Customs and Jagjit Singh (J.S. Sohal), Veer Singh and Subhash Chander, independent witnesses. A separate memo Ex.PC regarding the details of the recovery of twelve packets was prepared. It was also attested by the aforesaid witnesses. Three samples of 10 grams from each packet were sealed with the seal bearing no.108, Custom Division, Amritsar. Panchnama Ex.PD was prepared in this regard which was also attested by the aforesaid witnesses. On 5.6.1996 the appellant was arrested and produced before Judicial Magistrate Ist Class, Amritsar along with case property and the samples. The learned Magistrate signed and stamped each of the packets of the case property as also the samples. On 6.6.1996 the case property was deposited in Customs House Malkhana. On 9.6.1996 Inspector Mohinder Singh (PW1) took the samples to the Central Revenue, New Delhi and Crl. Appeal No.770-DB of 2004 4
deposited the same on 10.6.1996. As per the report of the Chemical Examiner Ex.PL, the samples were found to be heroin. Thereafter, the complaint Ex.PM was filed against the appellant. The appellant was initially charged under Sections 22/23 of the Act but subsequently the charge was amended and a fresh charge was slapped under Sections 21 and 22 of the Act.
In order to substantiate the charge, the Custom Department had examined the following witnesses:-
Mohinder Singh (PW1) who had stated that on 9.6.1996 while posted as Inspector Customs at Amritsar, Assistant Commissioner Customs (Preventive) gave him the samples of this case for depositing the same in the Chemical Laboratory, Central Revenue, New Delhi and on 10.6.1996 he had deposited the same in the concerned laboratory.
Sanjiv Prabhakar, Inspector Customs (PW2) had stated that on 6.6.1996 vide Entry No.33/96 Shri Varinder Kumar Dhawan (PW2), the Investigating Officer of this case had deposited one sealed trunk containing one sealed gunny bag with 12 packets of brown powder (heroin) sealed with the custom seal No.108 packed in a sealed trunk.
The seals were also with the packets wrapped in a cloth and again duly sealed. He had further stated that 20 sealed envelopes duly sealed with the custom seal no.108 with the signatures and rubber stamp of Judicial Magistrate Ist Class, Amritsar on each envelopes were also deposited with him. He had further stated that the heroin was destroyed in the Crl. Appeal No.770-DB of 2004 5
presence of the Commissioner Custom Amritsar as per rules and the entry regarding destruction of the property was also made in the said register. He had identified the signatures of the concerned official dated 10.3.1998.
Inspector Varinder Kumar (PW3) is the Investigating Officer in this case and the investigation conducted by him has already been detailed in the preceding para.
Shri H.S. Phul, Superintendent Customs (PW4) was the Gazetted Officer and member of the raiding party. In his presence the bag being carried by the appellant was checked by Inspector Varinder Kumar and the heroin in different packets was recovered. He had also appended his signatures on the recovery memos. This witness had also recorded the statement Ex.PN of the appellant on 5.6.1996 which consists of five pages and each page was got signed by the appellant and attested by him. On 7.6.1996 he had again recorded another statement Ex.PO of the appellant which consists of two pages. It was also signed by the appellant and this witness. Thereafter another statement Ex.PP was also recorded on 9.6.1996 in the same manner. This witness had stated that all the three statements were made by the appellant voluntarily and without any duress or threat.
Mrs. Sonia Arora, Judicial Magistrate Ist Class before whom the appellant was produced on 5.6.1996 was given up as unnecessary.
Crl. Appeal No.770-DB of 2004 6
The plea taken by the appellant as emerges from his statement recorded under Section 313 Cr.P.C. is of false implication.
In defence, the appellant had examined Bir Singh son of Mahinder Singh (DW1), initially joined by the Customs Department at the time of raid. He has stated that he had never gone to village Khurmanian along with customs officials and the appellant was not arrested in his presence by the custom staff. He had further stated that he was called in the Police Station and was made to sign several papers.
According to his statement Subhash Chander another witness to recovery had died.
Head Constable Baldev Singh (DW2) has proved the copy of the FIR No.76 dated 5.6.1996 of Police Station Chheharta (Ex.DA).
After appreciating the entire evidence, the appellant stands convicted and sentenced as indicated above.
We have heard Mr. Vikram Chaudhari, learned counsel for the appellant and Mr. D.K. Bhatti Advocate representing the Customs Department (respondent). With the assistance of the learned counsel for both the sides we have also gone through the entire record minutely.
The first attack launched on the prosecution case by Mr.
Chaudhari is that the vital link evidence is totally missing in this case which would result into vitiation of the trial. Dwelling upon his arguments on this issue, Mr. Chaudhari contends that certain dates are relevant in this context. The secret information was received on 4.6.96 at Crl. Appeal No.770-DB of 2004 7
about 5.30 P.M. and the recovery was effected from the appellant at village Khurmanian at 8.30 P.M. The appellant was brought to the Customs House on 4.6.1996. The house of the appellant was also searched on the same night. But his formal arrest was shown on 5.6.1996 at 5.00 P.M. and thereafter his statements were recorded on three different dates. According to Mr. Chaudhari once the recovery was effected from the appellant on 4.6.1996 itself and the samples were also drawn at the spot, the formal arrest should have been shown on the same date itself. In that eventuality, the appellant would have been produced before the Ilaqa Magistrate on 5.6.1996 instead of 6.6.1996. This according to the learned counsel speaks not only of illegal confinement of the appellant but in turn this flaw would demolish the very case set up by the prosecution. Mr. Chaudhari then contends that there is also unexplained delay of two days in the deposit of the case property in the Malkhana as there is no evidence on record to show as to where the case property was kept for two days. According to the learned counsel it is bounden duty of the prosecution to explain and prove that the samples drawn at the spot are not tampered with it till they reach the hands of the Chemical Examiner for analysis. In the case in hand, the said link evidence is missing. The learned counsel in order to demolish the case of the prosecution on this very aspect further contends that three samples each were drawn from twelve packets (thirty six in number). However, the inventory Ex.PE prepared in this regard indicates that only 24 Crl. Appeal No.770-DB of 2004 8
samples were deposited in the Malkhana. This indicates that only 24 samples were stamped by the Judicial Magistrate. There is thus no evidence produced on the record with regard to the remaining twelve samples.
According to the learned counsel, another fact which goes to show that the link evidence is missing is that 10 grams each were drawn from 12 packets as samples but as per the report Ex.PL of the Chemical Examiner there is a discrepancy in the gross weight of the samples as 6.5 grams was found in one of the samples.
The learned counsel then submits that another flaw which would create doubt in the mind of the Court with regard to the link evidence is that as per the test memo Ex.PK prepared by the Investigating Officer (PW3) for the purpose of sending the samples to the laboratory bear the date 7.6.1996. However, as per the statement of Inspector Mohinder Singh (PW1), the samples were handed over to him on 9.6.1996 for taking it to the laboratory. Our attention has been drawn to the statement of Inspector Mohinder Singh and the relevant document.
The learned counsel while developing his case further contends that there is another lacuna in the case of the prosecution with regard to handling of the case property by the officials of the Customs Department and has set store by the statement of Inspector Mohinder Singh (PW1) wherein he stated that Assistant Commissioner of Customs (Preventive) had handed over the samples to him on 9.6.1996 whereas Crl. Appeal No.770-DB of 2004 9
the said Assistant Commissioner had not stepped into the witness-box.
Varinder Kumar Dhawan Superintendent (PW3) on the other hand stated that he had deputed Inspector Mohinder Singh to take the samples to the laboratory on 9.6.1996. Therefore, there is no evidence to show as to how Assistant Commissioner of Customs (Preventive) came into possession of those 12 (twelve) samples which were ultimately sent to the laboratory.
Mr. Chaudhary at the same time has made another scathing attack to demolish the case of the prosecution stating that there is no documentary or oral evidence with regard to the destruction of the case property and a bald statement of Sanjiv Prabhakar (PW2) could not be said to be sufficient to prove this fact. May be that in his cross- examination he had stated that the case property was destroyed after obtaining the orders of Judicial Magistrate Ist Class, Amritsar yet no such order was brought on record to prove the said fact.
On the basis of the aforesaid submissions, Mr. Chaudhari vehemently contends that the vital link evidence is missing in this case which flaw alone can be said to be very vital in nature so as to discard the case of the prosecution. In support of his aforesaid contentions on all aspects, learned counsel has relied upon the following judgments:- (1) Rajesh Jagdamba Avasthi vs. State of Goa, 2005 (1) R.C.R. (Criminal) 406 (Supreme Court).
(2) Gurbax Singh vs. State of Haryana, 2001 (1) RCR (Criminal) 702.
Crl. Appeal No.770-DB of 2004 10
(3) Baldev Singh vs. State of Punjab, 2004 (3) R.C.R.
(4) Hukam Singh vs. State of Haryana, 2006 (2) R.C.R.
(5) Gian Singh vs. State of Punjab, 2006 (2) R.C.R.
(6) Ajaib Singh vs. State of Punjab, 2006 (2) R.C.R.
(7) Fateh Singh vs. State of Haryana, 2006 (2) R.C.R.
The other limb of argument advanced by Mr. Chaudhari in order to dislodge the case of the prosecution is that the material witnesses to the recovery have not been examined. He contends that Jagjit Singh Sohal, Inspector Punjab Police whose presence is shown at the spot at the time of alleged recovery, has not been examined as a witness. He was not from Customs Department and, therefore, examination of the said witness would have certainly given sanctity to the search. He then contends that it is the case of the prosecution that two independent witnesses, namely, Subhash Chander and Bir Singh alias Veer Singh were also present and they had put their signatures on all the material memos. But they were also not examined by the prosecution. Rather Veer Singh examined by the appellant in defence had categorically stated that no recovery was effected from the appellant in his presence and he was made to sign certain papers in the Police Station itself. The learned Crl. Appeal No.770-DB of 2004 11
counsel goes on to contend that even from Ex.DA (FIR) brought on record by the appellant it is clear that Veer Singh son of Mohinder Singh was a witness of the police of Police Station Chhehrata in another case of heroin in which FIR was registered on 5.6.1996 and, therefore, is a stock witness. This indicates that the story as projected by Inspector Varinder Kumar, the Investigating Officer, to the effect that Veer Singh and Subhash Chander, the so called independent witnesses, were also joined in the raiding party, falls on the ground. This flaw also dents the case of the prosecution to a great extent. In support of his contentions, Mr.
Chaudhari has relied upon the following judgments:- (1) Jitendra and another Vs. State of M.P., 2003 (4) RCR (Criminal) 360 (Supreme Court).
(2) Paramjit Singh Vs. State of Haryana, 2005 (3) RCR (Criminal) 321.
(3) Ramesh Kumar Vs. Narcotic Control Bureau, 2006 (1) RCR (Criminal) 622 (Delhi).
Mr. Chaudhari then contends that the tape-recorded version between the appellant and Varinder Kumar Dhawan (PW3) and H.S.
Phul, Superintendent Customs (PW4), demolishes the case of the prosecution. Developing his case in this regard, the learned counsel contends that Varinder Kumar Dhawan (PW3) in his cross-examination has categorically admitted his voice in the tape-recorded cassette Ex.D1 and in the said conversation he had admitted that neither the appellant was apprehended at that time nor any Naka was held at the spot. He had Crl. Appeal No.770-DB of 2004 12
also admitted that many officers had refused to become the Seizing Officer and he had become the Seizing Officer at the instance of one Shri Negi. The learned counsel contends that this witness had also admitted that the case set up against the appellant was false and injustice was done to him but he was helpless as there was no other alternative. He has also drawn our attention to the relevant portion of the cross-examination of Varinder Kumar, the investigating Officer. In this regard, Mr. Chaudhari has also referred to the statement of PW4 vis-a-vis the tape recorded version in the cassette Ex.D2.
Mr. Chaudhari contends that it is settled legal position that tape-recorded evidence is admissible in evidence only in case it qualifies the three tests viz the conversation is relevant to the matter in issue, there is identification of voice and the accuracy of the conversation is proved by eliminating the possibility of erasing the tape-record. According to the learned counsel, in the case in hand Varinder Kumar (PW3) had not only identified his voice but had also accepted the contents of the recorded conversation before the trial Court and, therefore, the prosecution cannot get out of it. In support of his contentions the learned counsel has relied upon a judgment of Hon'ble Apex Court rendered in R.M. Malkani vs. State of Maharashtra, (1973) 1 SCC 471.
Mr. Chaudhari then contends that the statements Ex.PN, PO and PP recorded by Shri H.S. Phul, Superintendent Custom (PW4) on three different dates i.e. 5th
June, 1996 cannot be read into
Crl. Appeal No.770-DB of 2004 13
evidence as the same were not put to the appellant while recording his statement under Section 313 Cr.P.C. It was inculpatory material and, therefore, should have been put to the appellant and failure to do so would tantamount to denial of the basic fairness in a criminal trial. In support of his submissions Mr. Chaudhari has relied upon a judgment of Hon'ble Supreme Court rendered in Shivaji Sahabrao Bobade and another vs. State of Maharashtra, (1973) 2 Supreme Court Cases 793.
Mr. Chaudhari then contends that the prosecution case on the face of it appears to be improbable as it is not understandable as to why Punjab Police officials were associated at the time of alleged recovery and as to why a case was registered at Police Station Chheharata relating to the same incident as is admitted by Varinder Kumar, the Investigating Officer. In this regard, he has drawn our attention to the cross-examination of Inspector Varinder Kumar where he stated that FIR in Police Station Chheharata of this case was also recorded. According to the learned counsel it appears that the Customs Department has not come forward with a clean picture of the alleged recovery. This weakness, also knocks at the bottom of the case.
Mr. Chaudhari also points out certain contradictions in the statements of the witnesses stating that Inspector Varinder Kumar, the Investigating Officer has stated that he had produced the appellant along with the case property and the samples before the Judicial Magistrate Ist Class on 5.6.1996 whereas in his cross-examination he has stated that the Crl. Appeal No.770-DB of 2004 14
appellant was produced for the first time on 6.6.1996. Another contradiction pointed out by the learned counsel is that PW3 in his cross- examination has stated that after the receipt of information, he was summoned by the Assistant Commissioner Dr. Y.D. Wanga from his residence on telephone and H.S. Phul (PW4) came after he had reached the office of Assistant Commissioner. The learned counsel contends that since the case of the prosecution is resting upon the testimony of official witnesses only, the minor discrepancies would also assume importance and can be taken into consideration along with other material flaws.
On the basis of the aforesaid submissions, Mr. Chaudhari contends that the prosecution has not been able to prove the charge against the appellant beyond any shadow of reasonable doubt and, therefore, he deserves acquittal.
In the alternative, Mr. Chaudhari prays for reduction in the quantum of sentence contending that the appellant is an old man of 70 years and in bad state of health he cannot even walk on his own. He has to be escorted by two persons for the purpose of answering the call of nature. He is a patient of renal failure. Mr. Chaudhari then submits that the appellant was granted interim bail during the pendency of the instant appeal enabling him to get the proper treatment and ultimately the substantive sentence of the appellant was suspended for one year vide order dated 11.11.2005 and he is presently on bail and getting his treatment continuously for his various ailments. He then contends that Crl. Appeal No.770-DB of 2004 15
during the trial also the appellant was granted interim bail for medical reasons from time to time by this Court. On the basis of the medical and humanitarian grounds, the learned counsel prays for reduction in the quantum of sentence (20 years) already recorded by the trial Court.
Controverting the submissions advanced by Mr. Chaudhari, Mr. Bhatti appearing for the Customs Department states that there could not possibly be any reason for false implication of the appellant who was allegedly found in possession of huge quantity of contraband which even on the date of alleged recovery was worth crores. He then contends that even otherwise the recovery effected by the custom officials was crosschecked by the Judicial Magistrate Ist Class when the appellant and the case property were produced before the Judge who had also affixed the seals. This also included the samples and, therefore, there is no chance of doubting the recovery in this case. He then submits that even if some discrepancies have crept in with regard to the link evidence, the same are of no advantage to the appellant as he has not been able to convince about tampering with the case property at any stage. The discrepancies in number of samples, as pointed out by Mr. Chaudhari, would again be of no help to him. He further contends that non- examination of the independent witnesses by the prosecution would not be extending any advantage to the appellant as the recovery allegedly effected is otherwise proved to the hilt from the statements of official witnesses. Similarly, the conversation recorded in the cassettes, would Crl. Appeal No.770-DB of 2004 16
again render no assistance to the appellant as it can not demolish the basic substratum of the prosecution case. On the basis of the aforesaid contentions, Mr. Bhatti prays for confirmation of the conviction as already recorded by the trial Court.
Mr. Bhatti then submits that even otherwise the appellant does not deserve any sympathy with regard to the quantum of sentence as huge recovery of contraband (imported from another country) was found in his conscious possession and, therefore, the substantive sentence as already imposed upon the appellant, deserves to be maintained.
After giving our thoughtful consideration to the rival contentions advanced by learned counsel for both the sides and going through the records, we are of the considered view that the prosecution has been able to prove the conscious possession of the appellant qua the contraband which he was allegedly carrying in a bag on a scooter. We shall now be entering into detailed discussion covering each and every limb of arguments advanced by Mr. Chaudhari.
Much has been said on the link evidence by Mr. Chaudhari to show that it is missing on certain counts. The first attack was on the illegal confinement of the appellant for two days by the customs authorities and this flaw affects the credibility of the search. We have perused the relevant documents in this regard. No doubt, the recovery in this case is effected on 4.6.1996 and the arrest memo of the appellant was prepared on 5.6.1996 and he was produced before the Illaqa Magistrate Crl. Appeal No.770-DB of 2004 17
on 6.6.1996 by Mr. V.K. Dhawan, Inspector Customs, but we are of the firm view that the same would not dent the case of the prosecution for the reason that after effecting the recovery from the appellant from a particular place (Naka) within the area of village Khurmanian, he was brought to the custom house and thereafter the officials of the Custom Department and the police party reached the house of the appellant. On the following day, a statement Ex.PN was recorded by Shri H.S. Phul, Superintendent Custom (PW4). Vide Ex.PG the formal arrest of the appellant was shown on the same day, a copy of which was supplied to the appellant also by the Investigating Officer. A perusal of Ex.PG shows that the arrest of the appellant was shown at 5.00 P.M. (17 hours).
This is the reason that he was produced before the Illaqa Magistrate on 6.6.1996 by Inspector Varinder Kumar as is clear from the application moved by him for police remand (custom custody) and it forms part of the records. From all these facts we do not find any difficulty in observing that the formal arrest of the appellant was shown under Section 43 (b) of the Act after taking all the initial steps necessary which included the search of the house of the appellant also. Since a very heavy recovery of the contraband worth crores of rupees was effected from the appellant that too of another country, further investigation of the matter was in fact needed. His statement Ex.PN under Section 108 of Customs Act was also recorded during his interrogation by Superintendent Customs on the following day i.e. 5.6.1996. We, therefore, are of the Crl. Appeal No.770-DB of 2004 18
positive view that the appellant was not in any manner illegally detained by the custom officials in this case and, therefore, he cannot derive any benefit from it.
The next argument advanced by Mr. Chaudhari with regard to unexplained delay of two days in the deposit of the case property in the Malkhana, in our view, is again of no consequence for the reason that the custom officials had been investigating the case for the next day also i.e. 5.6.1996 and after the formal arrest of the appellant, he along with case property was produced before the Illaqa Magistrate on 6.6.1996 as is clear from the trial Court records. The entire case property was sealed with the Seal No.108 of Custom Division, Amritsar which was cross checked by the learned Judge on 6.6.1996 and thereafter the seal of the Court was also put on all the sample parcels and the bag containing the remainder. Inspector Varinder Kumar being the Incharge of the raiding party had kept the case property with him till he obtained the necessary orders from the concerned Court and thereafter deposited the same with Sanjiv Prabhakar, Incharge Malkhana, Customs House, Amritsar on 6.6.1996 vide Entry No.33/96 as is clear from the statement of aforesaid Sanjiv Prabhakar (PW2). From all these facts, we can reasonably conclude that there was no ghost of chance of tampering with the case property.
An attempt has also been made by Mr. Chaudhari to demolish the case of the prosecution pointing out discrepancy in the Crl. Appeal No.770-DB of 2004 19
sample parcels. We, however, find no lacunae in this regard. The main stress of the learned counsel was on Inventory Ex.PE prepared in this regard. We have once again perused the said document. No doubt, in Ex.PE it is mentioned that one sealed gunny bag containing 12 (twelve) packets of brown powder said to be heroin having the Custom Seal No.108 and also bearing the stamp of Judicial Magistrate Ist Class, Amritsar and 24 (twenty four) sealed envelopes with the same seal impressions have been taken into custody through the aforesaid inventory. In our view, some mistake appears to have been committed by Inspector Varinder Kumar, the Investigating Officer while preparing the said Inventory. In order to be more clear on this aspect we have perused application from the lower court records moved by aforesaid Inspector before the learned Duty Magistrate, Amritsar on 6.6.1996 under Section 52-A of the Act stating therein that 12 (twelve) packets of brown powder sealed in one bag said to be heroin and 36 (thirty six) packets of drawn samples were produced for perusal and signatures. The said application was forwarded by the concerned counsel of the customs department. On the back of the said application the learned Judicial Magistrate Ist Class had passed the following order:-
"Present: Department counsel on behalf of the custom department.
"37 packets (one big and 36 small) alleged to be the case property have been produced before me. 36 small packets alleged to be the samples and one big packet i.e.
Crl. Appeal No.770-DB of 2004 20
(gunny bag) have been seen and signed by me and returned to the I.O. V.K. Dhawan. Papers be sent to the court of Ld.
Chief Judicial Magistrate, Amritsar.
JMIC (D) 6.6.96"
There is another noting by Mr. V.K. Dhawan, the Investigating Officer about the receipt of 36 (thirty six) samples and one gunny bag containing 12 packets said to be of heroin. This shows that in all there were 36 samples were actually drawn at the spot and were deposited with the Incharge Malkhana. Out of 36 (thirty six) samples, 12 (twelve) samples were sent to the Central Revenue Control Laboratory, New Delhi for analysis on 9.6.1996 as is clear from the statement of Inspector Mohinder Singh (PW1). He, of course, stated in his substantive statement that Assistant Commissioner Customs (Preventive) had given him the samples of this case for depositing it with the Chemical Examiner whereas V.K. Dhawan (PW3) the Investigating Officer stated that he had deputed Mohinder Singh to take the samples to the aforesaid laboratory. But in our considered view, this fact cannot be said to be a missing link as no prejudice has been caused to the appellant on account of this fact. After all what is to be proved by the prosecution is that till the samples reach the hands of the analyst, there should not be any chance of tampering with it. In the case in hand, 12 (twelve) parcel samples which reached the hands of the Analyst not only bore the Seal No.108 of Custom Division Amritsar but were signed by the Judicial Magistrate Ist Class, Amritsar also. From this, it can safely be concluded Crl. Appeal No.770-DB of 2004 21
that there was no chance of tampering with the sample parcels at any stage.
The argument advanced by Mr. Chaudhari with regard to the discrepancy in the gross weight of the samples is again of no help to him.
As per the report Ex.PL prepared by the Chemical Examiner, the weight was reflected in two situations, one when the sample was received with plastic bag and the second when it was returned with the plastic bag. The gross weight of samples when received by the Chemical Examiner were approximately of 10 grams each except that in two samples it was shown as 9.3 grams and 8.8 grams. After testing the samples, the weight was shown to be on lesser side. This was bound to happen because some weight gets lost in checking the samples and, therefore, one of the samples which indicated 6.5 grams after testing is with regard to that sample which was initially carrying 8.8 grams of brown powder. Loss in all the samples is to the same extent i.e. 01 gram or little bit more. This does not create any doubt in our mind with regard to missing of the link evidence.
The other discrepancy pointed out by Mr. Chaudhari with regard to the test memo Ex.PK prepared on 7.6.1996 and the samples handed over to Inspector Mohinder Singh on 9.6.1996 for taking it to the Laboratory, is again of no effect in the light of the fact that all the sample parcels were initialled by the Judicial Magistrate on 6.6.1996 and, therefore, there was no chance of tampering. It appears to us that Inspector Varinder Kumar had filled up the form in advance on 7th June,
Crl. Appeal No.770-DB of 2004 22
1996 for the purpose of sending the samples to the Examiner subsequently. This again can be said to be a mere irregularity which would not cause prejudice to the appellant.
We would also like to refer to the next limb of argument advanced by Mr. Chaudhari with regard to link evidence so far as destruction of the case property is concerned. Although no order is available on the records regarding destruction of the case property by the Magistrate, yet we find in the substantive statement of Inspector Sanjiv Prabhakar (PW2) that the heroin was destroyed in the presence of Commissioner Customs Amritsar. He had proved the entry regarding the destruction of the case property from the Malkhana Register pertaining to the year 1996. It was in the hand of Inspector Resham Singh, the then Malkhana Incharge and the entry regarding destruction of the case property was in the hand of K.K. Sharma Inspector which was dated 10.3.1998. He had identified the writing and signatures of both the officials. Provisions of Section 110 (1B) of Custom Act are applicable for destroying the case property but in the case in hand the same was destroyed according to the provisions of Section 52-A of the Act. Even if some irregularity is committed by Mr. V.K. Dhawan in strictly following the procedure, the same would have no adverse effect on the case of the prosecution and the appellant cannot derive any benefit from it.
To be fair to Mr. Chaudhari, he has cited as many as seven judgments i.e. Rajesh Jagdamba Avasthi's case (supra), Gurbax Singh's case (supra), Baldev Singh's case (supra), Hukam Singh's case Crl. Appeal No.770-DB of 2004 23
(supra), Gian Singh's case (supra), Ajaib Singh's case (supra) and Fateh Singh's case (supra) but the same are of no help to him being distinguishable on facts.
The other arguments advanced by Mr. Chaudhari with regard to non-examination of the material witnesses to the recovery, in our view is also of no advantage to him. No doubt, Jagjit Singh Sohal Inspector Punjab Police was a witness to the recovery but his non- examination would not create doubt in our mind leading to the credibility of the search. The testimony of the officials of the custom department is quite convincing. Similarly, even if the prosecution has not produced Subhash Chander and Bir Singh alias Veer Singh the other independent witnesses to the recovery, the said fact would not adversely affect the case of the prosecution as independent witnesses being one over and given up is not an uncommon practice and the prosecution cannot be blamed for that. The court at the most can be expected to adopt a cautious approach while assessing the evidence of the official witnesses.
In the case in hand, Bir Singh before whom, the recovery was effected has been produced as defence witness (DW1) by the appellant. He had stated that nothing was recovered from the appellant at the spot and his signatures were obtained by the police in the Police Station on certain documents. He has also admitted in his cross-examination that no complaint was ever lodged by him to the higher authorities in this regard.
Therefore, we do not give much importance to the statement of Veer Crl. Appeal No.770-DB of 2004 24
Singh alias Bir Singh. May be that the name of aforesaid witness finds mentioned in another FIR No.76 dated 5.6.1996 of Police Station Chheharta (District Amritsar) under N.D.P.S. Act (Ex.DA), but this fact again would not be enough to conclude that aforesaid Veer Singh was a stock witness of the police. Even if we may agree with the contention of Mr. Chaudhari that aforesaid witness was a convenient witness for the prosecution, still it would not uproot the case of the prosecution so far as recovery of contraband allegedly effected from the appellant is concerned, as in our considered view, the case of the prosecution is fully proved from the statement of Varinder Kumar (PW3) and H.S. Phul (PW4).
Mr. Chaudhary has relied upon Jitendra and another's case (supra), Paramjit Singh's case (supra) and Ramesh Kumar's case (supra), but in our considered view all the said three judgments would not advance the case of the appellant. In Jitendra's case (supra), the contraband was not produced before the trial court; five witnesses had turned hostile and the Investigating Officer was not examined. On that account, the Hon'ble Apex Court had disturbed the conviction. In Paramjit Singh's case (supra) the Single Bench of this Court has dislodged the case of the prosecution on the ground that no independent witness was joined despite the fact that the witnesses were available, the evidence of official witnesses was not free from doubt; sample had reached the Chemical Examiner after one month and the SHO, who had Crl. Appeal No.770-DB of 2004 25
not put his seal upon sample parcel and case property, was not examined.
Similarly, in Ramesh Kumar's case (supra) Hon'ble Delhi High Court had granted bail to the accused on the ground that the PWs who were shown as chance witnesses, were in fact witnesses of Narcotic Control Bureau who had already appeared in 3/4 cases. Difference in the weight of the sample was also taken into consideration. On these flaws the bail was granted. In our view, all the aforesaid judgments cited by Mr. Chaudhari are entirely distinguishable and shall not apply to the case in hand.
Consequently, we repel the arguments advanced by the learned counsel on this aspect.
Mr. Chaudhari in order to discard the case of the prosecution has taken the help of tape recorded version Ex.D1 and D2 concerning Varinder Kumar Dhawan the investigating officer and H.S. Phul Superintendent Customs. We have once again perused the cross- examination of aforesaid main two witnesses to the recovery. In fact, the main voice in the said conversation is of the appellant and the reply is by Mr. V.K. Dhawan, the Investigating Officer that too in the term of 'yes' or 'no'. H.S. Phul (PW4) did not recognize his voice in the recorded conversation but in his cross-examination he stated that the appellant used to pressurize the custom officials (exact words used is "the accused used to pressurize us daily not to depose against him"). He further stated in his cross-examination that he (H.S. Phul) used to say that he was helpless. No doubt, this witness stated that he had not informed about Crl. Appeal No.770-DB of 2004 26
the pressure from the accused to his superiors but from the evidence on record we can safely conclude that the accused was pressurizing the officials of the custom to depose in his favour. For reference we are reproducing the court questions put to Mr. Varinder Kumar in relation to his recorded conversation. The same are as under:- "Q. Why did you entertain the accused?
Ans. I entertained the accused because he used to pressurise me daily.
Q. Did you bring this fact to the notice of your senior officers or the Court?
Ans. I had orally brought this fact to the notice of Shri Dinesh Chander, Asstt. Commissioner and not the court.
Q. What did the AC, Dinesh Chander, told you? Ans. Dinesh Chander, AC advised me not to entertain the accused and to take care of your case.
Q. How your conversation in the Tape was recorded? Ans. I cannot say at which place it was taped.
Q. Where did the accused meet you?
Ans. The accused met me in the court complex. He used to meet me on every date of hearing."
May be the learned trial Court has not taken into account the tape recorded conversation in the aforesaid cassettes on the ground of admissibility for want of mode of proof considering that exhibiting a document is not sufficient and it cannot be said to have been proved in accordance with law of Evidence Act. But even if we take into Crl. Appeal No.770-DB of 2004 27
consideration the conversation between the appellant and V.K. Dhawan, the Investigating Officer, to be admissible as Varinder Kumar has not only identified his voice but has also accepted the contents of the conversation, still we are of the view that it was the tactics adopted by the appellant to put pressure upon the officials of the custom department and, therefore, this fact would not affect the recovery of the contraband allegedly effected from the appellant. We may observe here that if the admitted conversation is assessed analytically, the necessary implication would follow that the appellant was confessing that the recovery was effected from his possession. However, we are not attaching any importance to this conversation for or against either side as we are maintaining the conviction on the basis of convincing and credit worthy evidence of V.K. Dhawan (PW3) and H.S. Phul (PW4). We, therefore, reject this limb of argument as well.
The other argument advanced by Mr. Chaudhari to the effect that the statements Ex.PN, PO and PP recorded by H.S. Phul, Superintendent Customs (PW4) cannot be read into evidence as the same were not put to the appellant while recording his statement under Section 313 Cr.P.C., merits rejection. No doubt, this was an incriminating evidence appearing against the appellant and should have been put to him while examining him under Section 313 Cr.P.C. But what is to be seen by the Court is as to whether the said flaw, if any, has caused prejudice to the appellant or not. The conceded legal position is that the Crl. Appeal No.770-DB of 2004 28
statements of the accused recorded under Section 108 of Customs Act are admissible in evidence and the prosecution can take advantage from it. The only plea which in our view can be taken by the accused is that his statement was recorded under coercion or pressure. We have examined the case in hand from that aspect as well. No doubt, the aforesaid three statements do not have any endorsement to the effect that the same were made voluntarily by the appellant without any inducement or coercion. But the statements are in the hand of the appellant himself and there is no evidence before us to infer that these statements were extracted from him under force or inducement. A perusal of the statement of H.S. Phul, Superintendent Customs (PW4) shows that he was cross-examined at length with regard to the aforesaid statements allegedly made by the appellant. This indicates that the appellant was aware of the fact that the prosecution was relying upon the aforesaid three statements. In order to shatter the case of the prosecution in this regard, a categoric suggestion was also put to the aforesaid witnesses (PW4). Therefore, even if the aforesaid statements were not put to him when he was examined under Section 313 Cr.P.C., in our view, it has not caused any prejudice to him so as to entitle him to acquittal especially when we have already believed the case of the prosecution with regard to the recovery of the contraband allegedly effected from the appellant on 4.6.1996 from a particular spot (near village Khurmanian at Ram Tirath Road). In a latest judgment of Hon'ble Apex Court rendered in State of Crl. Appeal No.770-DB of 2004 29
Punjab vs. Sawaran Singh, 2005 (3) RCR (Criminal) 889, it has been held by their Lordships that where an omission to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings and the accused must show that the failure of justice was occasioned by such omission. In the aforesaid judgment, the other four judgments of Hon'ble Supreme Court including Shivaji Sahabrao Bobade's case (supra), relied upon by Mr. Chaudhari were also taken into consideration.
On the basis of the aforesaid discussion and following the ratio of the judgments of the Hon'ble Apex Court, in our considered view, the omission by the prosecution to bring the attention of the appellant to Ex.PN, PO and PP has not caused any prejudice to his case at all and, therefore, he cannot derive any advantage from it.
Much has been said by Mr. Chaudhari with regard to the improbability of the prosecution case contending that the registration of a case at Police Station Chheharta relating to the same incident as admitted by Varinder Kumar, the Investigating Officer, creates doubt about the manner of the investigation of this case. We are, however, not impressed by the argument of the learned Counsel. May be the Investigating Officer has stated that a case was registered at Police Station Chheharta but it appears to be a stray statement as no supportive evidence is put forth on record. The fact remains that no case has been registered at Police Station Chheharta with regard to this incident. Had it been there, Crl. Appeal No.770-DB of 2004 30
the appellant would have produced the copy of the said FIR especially when he could produce another FIR No.76 dated 5.6.1996 Ex.DA in his defence. We at the same time do not find it to be unusual if the Punjab Police officials were associated by the custom officials at the time of holding a Naka and there is nothing unusual in it. We, therefore, discard the argument of Mr. Chaudhari on this aspect.
Some contradictions in the statements of the official witnesses pointed out by Mr. Chaudhari, in our view, are again of no help to him as discrepancies do occur even in the statements of most truthful witnesses. What is to be appreciated by the Court is as to whether the discrepancies are so material as to uproot the case of the prosecution in its entirety or not. We do not enter into detailed discussion with regard to the discrepancies pointed out as we consider them of no significance in the light of the convincing statements of the aforesaid two official witnesses of the Custom Department who have been successful to bring home the guilt against the appellant beyond any shadow of doubt. Both the witnesses have been subjected to very strenuous cross-examination from the appellant side, still their evidence remains unshaken.
No other point has been left by us untouched.
As a sequel to the aforesaid discussion, we conclude that the prosecution has proved the conscious possession of the contraband (heroin) qua the appellant beyond any shadow of doubt. Consequently, Crl. Appeal No.770-DB of 2004 31
his conviction as recorded by the trial Court for the charge of Section 21 of the Act deserves to be confirmed. Ordered accordingly.
The recovery allegedly effected from the appellant is very heavy and in the normal circumstances we would have not shown any sympathetic tilt towards him with regard to reduction in the quantum of sentence (R.I. for twenty years) already awarded by the learned trial Court but keeping in view the fact that the appellant is of the age of 70 years and is a patient of Haemuturia with renal failure, he does deserve some concession with regard to the substantive sentence as well as sentence of fine.
The record reveals that during the pendency of the instant appeal, a Misc. Application (Crl. Misc. No.49801 of 2005) was moved by the applicant for suspension of substantive sentence and this Court vide detailed order dated 11.11.2005 was kind enough to grant the interim bail to the appellant for a period of one year effective from 11.11.2005 itself. For reference we reproduce the said order as under:- "Crl. Misc. No.49801 of 2005
Learned counsel for the applicant-appellant has stated that the appellant is seriously ill and is incapable of walking. He is an old man of 70 years. He has to be escorted by two persons for the purpose of answering the call of nature. Appellant is a patient of Haematuria with renal failure. Learned counsel further prays that the sentence of the appellant be suspended on medical and humanitarian ground, so that the appellant can have himself medically treated from the best hospital.
Crl. Appeal No.770-DB of 2004 32
Learned counsel for the Union of India has stated that the appellant can be given adequate medical treatment from a hospital at government expense.
Appellant was admitted to Guru Nanak Dev Hospital, Amritsar from 24.7.1996 to 9.11.1996, as he was suffering from acute Prolapse Intervertebral Disc. He was advised an operation. Appellant-applicant was operated upon on 13.1.1997. His Disc at LF-SI level was removed, but unfortunately, the wound got infected. He was advised another operation.
Applicant-appellant then filed Criminal Misc.
No.988-M of 1997 in this Court, during the course of his trial. He was released on interim bail on medical grounds, which was extended from time to time. This Court vide its order dated 3.3.1997 (Annexure P-5) held as under:- "I had adjourned this matter on 13.2.1997 and had directed the learned counsel for the respondent to verify the contents of Annexure P-3 medical certificate issued on 30.12.1996. Learned counsel has submitted that the petitioner is undergoing the treatment and no doubt can be raised in regard thereto.
The matter was taken up on 24.2.1997 and then on 27.2.1997. Then the matter was listed for today.
Today, the learned counsel for the respondent has not challenged the authenticity of these certificates. Once authenticity of certificates Annexure P-2, P-4 and P-5 is not challenged, it cannot be said that the petitioner is having reasonable health what to talk of good health. Complications arising from such operation Crl. Appeal No.770-DB of 2004 33
are not uncommon. If the petitioner is bed ridden and cannot move from the bed, I see no reason as to why he should not be granted interim bail for getting himself treated and examined from best hospital and receive best treatment available in the country. The submission of the learned counsel for the respondent that earlier bail application was withdrawn, can be considered in both aspects. The certificate does indicate that the petitioner is passing blood in urine.
This, by itself, indicates that there must be something wrong with the renal functioning of the petitioner.
This Court does not feel it necessary to comment any further in this regard, but some directions are certainly called for keeping in view the aforesaid admitted documents."
Medical certificates (Annexures P-1, P-2 and P-4) which are reproduced:-
"Annexure P-1:- Medical Certificate
"This is to certify that the patient Dilbagh Singh son of Shri Sohan Singh was admitted in the Guru Nanak Dev Hospital, Amritsar in a serious condition as an emergency case of Haemuturia with renal failure vide C.R. No.90392 dated 24.7.98. He is still under treatment and being investigated to find out the cause of haemuturia and uraemia."
Annexure P-2 Medical Certificate
" This is to certify that patient Dilbagh Singh son of Shri Sohan Singh was admitted in an emergency case in Guru Nanak Dev Hospital, vide C.R. No.90392 dated 24.7.1998. He is suffering from Haematuria with renal failure. He is under investigation and Crl. Appeal No.770-DB of 2004 34
treatment and may require dialysis."
Annexure P-3 Medical Certificate
" This is to certify that patient Dilbagh Singh son of Shri Sohan Singh was admitted in this hospital in Ortho Unit II since 09.11.96 vide Cr.No.61649.
Earlier he was admitted in Guru Nanak Dev Hospital, Amritsar in Surgery Unit IV & V from 24.7.96 to 09.11.96 as a patient of Haematuria with Renal failure and he was restored to this department for his Acute Prolapse Intervertebral Disc. He is having weakness of his both lower limbs and cannot stand without support. His C.T. Scan report shows anterior and posterior disc bulge at L-5-SI and he was advised operation for this."
Annexure P-4 To whom it may concern
" This is to certify that patient Dilbagh Singh son of Shri Sohan Singh 54M is admitted in this hospital since 09.11.96 vide Cr. No.61649. He is a case of Acute Prolapse Intervertebral Disc L5-S1 Level. He was operated on 13.1.97 in this Hospital and his disc at L5 S1 was removed. But his wound got infected and hem needs operation to treat the infection. The operation is to be done unde Anesthesia. At present he is totally confined to bed and needs constant attendant to look after him."
The above said quoted medical certificates show that the appellant was operated upon, but unfortunately, the wound got infected.
Vide certificate dated 9.2.2005 (Annexure P-9), the Medical Officer, General Hospital, Ambala has opined as under:-
Crl. Appeal No.770-DB of 2004 35
" Certified that Dilbagh Singh son of Sohan Singh has remained under my treatment for hamaeturia with loss of control over bladder and lower limbs recurrent episodes. He had undergone surgery for herniated disc opposite L5-S1 at SGTB Hospital, Amritsar in Jan.1997 as a result this patient developed weakness in lower limbs which aggravates from time to time he requires aggressive medical treatment, complete bed rest he requires support and help to walk; lumbar belt to support his back and help of an attendant to carry out activity like urination etc."
Appellant was admitted in General Hospital City Ambala, as he was undergoing treatment for haematuria with loss of control over bladder and lower limbs due to his surgery of herniated disc opposite L5-S1 at SGTB Hospital, Amritsar, in January 1997. The doctor has opined in this certificate (Annexure P-9) that the appellant requires an aggressive medical treatment and complete bed rest.
We have taken all the certificates (Annexure P-1 to P-10) into consideration which definitely show that the appellant needs medical treatment to survive. As per the judgment, his age has been shown as 62 years.
Sentence of appellant Dilbagh Singh is suspended for a period of one year. He is granted bail to the satisfaction of Chief Judicial Magistrate, Amritsar.
During the period of interim bail, the appellant is directed not to leave the country. If he holds a passport, he shall surrender it forthwith to the Chief Judicial Magistrate, Amritsar.
Crl. Appeal No.770-DB of 2004 36
Appellant, after one year, shall furnish the medical treatment certificates from hospital/hospitals, he has been getting himself treated from.
(MEHTAB S. GILL)
11.11.2005 ( NIRMAL YADAV )
No doubt on account of aforesaid discussion, we have come to a definite conclusion that the conscious possession of 12 Kgs. 255 grams heroin qua the appellant is proved by the prosecution as he was apprehended at the spot carrying the said contraband, yet what is paining us more is that the custom authorities have not taken their investigation to a logical track to know the exact source. It is evident from Ex.PN, the statement of the appellant recorded under Section 108 of Customs Act that he was running a consumer store and was earning about rupees three/four thousand per month. It had also come in his statement that one Tilak Raj of Ajnala had handed over the said packets to him. It has also come in the said statement that one Mukhtiar Singh alias Goldi had told him that on 3.6.1996 Tilak Raj would be handing over 12 packets containing heroin. The recovery of a meagre amount (Rs.50/-) from his personal search coupled with the aforesaid facts goes in long way to suggest that the appellant could not afford buying the aforesaid heavy Crl. Appeal No.770-DB of 2004 37
quantity of heroin which even at that time was worth crores of rupees and he was being used as a carrier for transporting the same. In our view, a grave laxity has been shown by the concerned authorities in not nabbing those persons who were really financing such type of nefarious activity so as to haul them under Section 27-A or 29 of the Act. This certainly causes anguish for the reason that if such type of serious cases are handled in a most casual manner, then the object for which the present Act was brought on the statute book would not achieve its goal of saving the human race especially the young blood who have already fallen victim to this menace.
However, keeping in view the entirety of facts and circumstances, especially the fact that the appellant is suffering from certain chronic ailments, as observed herein above, we after taking a humanitarian view, extend concessional tilt towards him and reduce the substantive sentence of twenty years to twelve years and sentence of fine from Rs.2,00,000/- to Rs.1,00,000/- only. Sentence of two years for default clause is also reduced to one year. Ordered accordingly.
Order of confiscation of the scooter is also affirmed.
The net result is that the instant appeal stands dismissed except with the modification in the quantum of sentence, as indicated herein above.
The appellant is stated to be on interim bail upto 11.11.2006, pursuant to the aforesaid order dated 11.11.2005. He shall now be Crl. Appeal No.770-DB of 2004 38
surrendering before the concerned authorities without any delay for serving the remainder of his substantive sentence, in default thereof, necessary steps shall be taken for taking him into custody.
October 31, 2006
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