Ajaib Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal filed by Shri Ajaib Singh and has been directed against the judgment and order dated 3.9.1997 passed by the court of Additional Sessions Judge, Bathinda who convicted the appellant Shri Ajaib Singh under section 15 of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. one lac. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for three years.

The brief facts of the case are that on 4.6.1996 ASI Jagrup Singh was posted as A.S.I. in Police Station Raman. On that day he was accompanied by Head Constable Nachhatar Singh and other police officials. They were going from village Laleana towards village Jalai in connection with patrolling duty in a Government Jeep No. PIB 4013. When the Police Party reached on the bridge of the canal minor in the revenue limits of village Jaijal Chhota Singh Panch of village Laleana met who was also associated. When the police party was still present at the bridge, the accused came from the side of Eastern bank of the canal minor who was carrying a gunny bag on his head. On seeing the Police Party, the appellant tried to slip away but he was apprehended on the basis of the suspicion. The Investigating Officer Shri Jagrup Singh then enquired from the appellant as to whether the latter wanted to give search in the presence of a Gazetted Officer or Magistrate as the police party was suspecting that the appellant was carrying some contraband in the gunny bag. The accused consented to get himself searched before the higher officer. In this regard memo Ex. P1 was prepared. It was read over and explained to the accused who thumb marked it and the same was attested by Head Constable Nachhattar Singh and Chhota Singh panch. Wireless message was sent to D.S.P. Talwandi Sabo for reaching the spot. The accused was asked to keep the gunny bag on the ground. Thereafter Jaswant Singh DSP reached at the spot. The Investigating Officer conducted search of the gunny bag in the presence of DSP which was found to contain poppy husk. On weighment it came to 10 kilograms. The Investigating Officer separated 10 grams of poppy husk as a sample and sealed the sample parcel and the remaining poppy husk with his seal bearing inscription JS. The seal after use was handed over to Head Constable Nachhattar Singh. Separate impression of the was taken into possession vide memo Ex. PB which was attested by DSP Jaswant Singh and the other witnesses. Currency notes of the value of Rs. 23/ were also recovered from the search of the accused which were taken into possession through recovery memo Ex. PC. The grounds of arrest were also intimated to the appellant vide memo Ex. PD which was thumb marked by the accused and attested by the other witnesses including the DSP. Since the accused could not produce any permit or licence for the possession of the poppy husk resultantly, ruqa Ex. PE was sent for the registration of the case through constable Bhupinder Singh on the basis of which formal F.I.R. Ex. PE/1 was recorded by ASI Kaur Singh. The Investigating Officer also prepared rough site plan Ex.PF of the place of the occurrence. He issued Special Report Ex.PG about the detection and seizure of the contraband to the higher authorities. On return to the Police Station he produced the accused alongwith the case property and sample seal before S.H.O. who verified the facts of the investigation and affixed his own seal BS on the case property. Thereafter the case property was ordered to be kept in the Police Malkhana. Ultimately, the sample of the poppy husk was sent to the Office of the Chemical Examiner who vide report Ex.PL declared the contents as chura poppy heads and on completion of the investigation of the case, the appellant was challaned in the Court of Area Magistrate Talwandi Sabo who supplied copies of the documents to appellant Ajaib Singh as required under the law and vide commitment order dated 5.10.1996 committed the accused to the court of Sessions. Vide order dated 21.11.196, learned trial Court framed a charge under Section 15 of the N.D.P.S. Act alleging against the appellant that on 4.6.1996 at about 7.30 A.M. in the area of Village Jaijal, he was found in possession of 10 kgs of poppy husk without any valid permit or licence and thereby committed an offence punishable under Section 15 of the N.D.P.S. Act. The charge was read over and explained to the accused to which he pleaded not guilty and claimed trial.

In order to prove the charge, prosecution examined Jagrup Singh ASI as PW.1, S.I. Balkar Singh as P.W.2 while DSP Jaswant Singh as P.W.3. Prosecution also tendered in evidence affidavit Ex.PK of Constable Mandeep Singh and report Ex.PL of the Chemical Examiner. Constable Harjinder Singh was given up being unnecessary. No crossexamination was conducted by the accused on affidavit Ex.PK which was tendered by Constable Mandeep Singh.

Statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied those circumstances and stated as follows :

"I am innocent. Nothing was recovered from me. My thumb impressions were obtained on blank papers by the police. No document was read over and explained to me. I was brought from my village and this case has been falsely foisted against me. I was brought in the presence of ExSarpanch and other neighbours."

When called upon to enter his defence, accused did not lead any evidence and closed his case. Learned trial Court for the reasons given in the impugned judgment which has been read in extenso with the assistance rendered by the counsel for the parties, convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction, the present appeal.

I have heard Shri R.S. Ghai, Senior Advocate assisted by Shri A.P.S. Deol Advocate on behalf of the appellant and Shri Randhir Singh, learned D.A.G. Punjab appearing on behalf of the State and with their assistant have gone through the record of this case.

Making an endeavour for acquittal, the judgment of the trial Court has been assailed on three points, firstly that section 50 of the N.D.P.S. Act has not been complied with in a satisfactory manner, secondly the seal after use was not entrusted to an independent witness and thirdly that the affidavit which has been accepted by the trial Court is not in accordance with law as no opportunity was ever given to the appellant to crossexamine the witness. One additional argument which was raised by the learned Counsel for the appellant is that conviction cannot be based on the testimony of the police officials in the absence of the nonexamination of independent witness. On the contrary, learned D.A.G. appearing on behalf of the State has cited the judgment for the reasons given therein and submitted that every legal formality has been proved whether mandatory or directory and there is no reason to disbelieve the testimony of the police officials simply because they have been lebelled as police officials.

I have considered the submissions raised by the learned Counsel for the parties and am of the considered opinion that this appeal is totally devoid of any merit irrespective of the fact that recovery in this case is small i.e. 10 kilograms of poppy husk. We have to see whether the offence has been proved and the what extent whether the prosecution has been able to place on record cogent and reliable evidence. If the mandatory and directory provisions of the law as contained in the N.D.P.S. Act have been complied with, the benefit cannot be granted to the appellant. I also cannot lost cite (lose sight ?) of the fact that the N.D.P.S. Act is a special legislation which has been introduced by the Legislature with the intention to curb the menace of narcotic drugs and psychotropic substances. Its additional object is that Narcotic Drugs and Psychotropic Substances are not smuggled or transported in our country from one place to other. From the moral side, intention of the Legislature is that the damage which is being caused to our society with the aid of Narcotic Drugs and Pshchotropic Substances should be nipped in the bud. Be that as it may be, I will now examine in depth the arguments which have been raised on behalf of the appellant one by one. The frontal argument which was raised by Mr. R.S. Ghai, Senior Advocate was that Section 50 of the N.D.P.S. Act has not been complied with in this case. His primary objection in this regard was that statement Ex. P.A on the record has not been recorded in the presence of some respectable person. It has been recorded in the presence of Chhota Singh member Panchayat. He has not been examined by the prosecution during the trial. I do not see any merit in this contention. A reading of Ex. PA would show that it is a consent memo. Expectation of Section 50 is that the Investigating Officer must inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or Magistrate. In other words, an option must be given to the accused and he must be apprised of his right that he can be searched in the presence of a Senior Officer. A reading of memo Ex.PA further shows that this offer was given in the presence of Chhota Singh member panchayat and Head Constable Nachhatar Singh. If the accused had stated that he did not want to take the assistance of a Gazetted Officer, Magistrate or a superior officer or that he wants to repose confidence in the Investigating Officer, in such a situation I would have agreed with the contention of the learned Counsel for the appellant on account of nonexamination of Chhota Singh but in the present case there is cogent distinction. If the intention of the Investigating Officer had been bad, he would not have taken attestation of Chhota Singh on Ex.PA. In all fairness, he took assistance of Chhota Singh who was a member panchayat. What the Investigating Officer or Prosecution can do if the character of our people is such that they do not want to assist the law in the administration of justice. We all know the behaviour of our so called independent witnesses for various reasons. Ultimately they do not support the allegations of the prosecution. After all panch witnesses are also human beings and are quite exposed and vulnerable to human feelings, browbeating, threats, inducements. If Shri Chhota Singh has been given up on the plea for having been won over by the accused, what efforts have been taken by Shri Ajaib Singh so as to examine Shri Chhota Singh. Justice cannot be allowed to die simply because Shri Chhota Singh has not been examined. In a Division Bench Authority of our own High Court reported as 1996(1) Recent Criminal Reports 146, Roop Singh v. State of Punjab it has been held that if the only independent witness who has been won over and given up by the prosecution, no adverse inference can be drawn because panch witnesses being human beings are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements. Also it was held by the Division Bench that the witness being won over is fully justified in the presentday situation prevailing in Society. The findings of the Hon''ble D.B. can be quoted in the following manner :

"Panchwitness may turn hostile and not support the case of the prosecution or may be hesitant in appearing in the Court and depose against the accused for various reasons from fear to bribe. He is an average and ordinary human being and quite exposed and vulnerable to the human feelings of yielding, browbeating, threats, inducements etc. To figure as a Panch witness at the stage of the police investigation, is one thing, and thereafter to give evidence before the Court is entirely a different thing. In fact, a Panch witness generally thinks twice before entering into witnessbox and if at all he enters the same, one would not be surprised if he does not support prosecution because of variety of the reasons mentioned above. Therefore, the fact that the prosecution has given up the independent public person Nirbhai Singh having been won over by the accused persons, is fully justified in the presentday situation prevailing in the Society and no adverse inference against the prosecution can be drawn in this case."

We have to see what evidence has been led by the prosecution. In this case recovery of the Poppy Husk has been proved from the statement of Shri Jagrup Singh whose testimony has been fully corroborated by the testimony of PW.3 Shri Jaswant Singh DSP. The conduct of PW.1 Shri Jagrup Singh is above board when he took the assistance of Shri Jaswant Singh DSP who was called at the spot. The Legislature has introduced Section 50 with a purpose primarily to guard the interest of the accused but in shuttled manner it has also protected interest of the prosecution. If the Gazetted Officer or the Magistrate deposes on oath with regard to the recovery of contraband from a person additional weight has to be given to the statements of such persons otherwise Section 50 will become nugatory provision. PW.1 Shri Jagrup Singh has categorically deposed that the appellant was carrying gunny bag. On seeing the police party he became apprehensive of his arrest. He was apprehended on the basis of the suspicion and immediately wireless message was sent to DSP Jaswant Singh for reaching the spot. So is the statement of PW.3 DSP Jaswant Singh who stated that on receiving the wireless message he came to the spot and found that the appellant was in possession of a bag which ultimately contained poppy husk. The documentary evidence in this case establishes that consent memo Ex. PA was prepared and it was attested by Chhota Singh Panch, Head Constable Nachhatar Singh. It was signed by accused Ajaib Singh. Thereafter poppy husk was recovered and on weightment it came to 10 kilograms. Recovery memo Ex.PB was prepared and it is attested by Chhota Singh, Head Constable Nachhatar Singh and DSP Jaswant Singh besides ASI Jagrup Singh. Personal search memo Ex. PC is also attested by these three witnesses. Investigating Officer also complied with the directory provisions when he supplied the grounds of arrest Ex.PD to the accused. He issued special report Ex.PG to the authorities and also prepared rough site plan Ex. PF of the place of occurrence and in this manner I repel the frontal argument raised by the learned Counsel for the appellant that Section 50 has not been complied with. I also repel the additional argument which was raised by the learned Counsel for the appellant that the story of the prosecution has not been proved on account of nonexamination of the independent witness. This point was also dealt from time to time by various courts as to whether conviction can be based on the sole testimony of police officials or not and the same has also been replied by the Division Bench Authority referred to above in para 13 of the judgment and it was stated that if there is nothing on record to reach a conclusion that the police was malicious and interested in falsely framing up of a case, the testimony of the police officer cannot be said to have been shaken if these police officials had stood the test of crossexamination. The Hon''ble D.B. stated in para 13 as follows :

"As regards the second limb of the argument that the conviction has been sustained merely on the testimony of two police officers without any independent corroboration, is also without any merit. It is certainly not the law that in each and every case irrespective of the case and attending circumstances, the evidence of the police officer needs corroboration before it is accepted or to be acted upon. The presumption that a person acts honestly, applies so much in favour of a police officer as of other persons, and it is not the judicial approach to distrust and suspect him without good grounds therefor. Even if the testimony of a police officer requires some corroboration to be acted upon, the corroboration does not necessarily mean that the witness should be corroborated by other witness only. The testimony of a police officer can be corroborated by way of some intrinsic circumstantial evidence available on the record. In fact, in a given case, there may not be any other direct evidence of the witness to corroborate the evidence of the police officer but at the same time there is nothing to (come) at the conclusion that the police officer was malicious and interested in falsely framing up the accused and there was certain inbuilt and unimpeachable circumstantial evidence on the record to support the evidence of the police officer, then in such a case, implicit reliance can be placed upon the testimony of such a police officer."

Even in the famous case of State of Punjab v. Balbir Singh, 1994(1) R.C.R. 736 the Hon''ble Supreme Court has been pleased to hold that there is no bar of recording conviction after relying the statements of police officials. The only check before acting upon the statements of police officials is that due care and caution must be taken by the law courts and if on applying that test, no reasonable dent has been created in the testimony of the police officials, the courts can also base conviction. To brand a police official or public officer as liar without any cogent basis will upset the judicial system itself. The Investigating Officer conducted search of the accused in the presence of Chhota Singh member panchayat. It is his character ultimately which has given a ditch to the Investigating Officer. Nevertheless the statements of ASI Jagroop Singh (P.W.1) and DSP Jaswant Singh (PW.2) leaves no manner of doubt that recovery has been effected from the possession of the accused.

Now I will deal with the other argument of the learned for the appellant when he submitted that seal after use has not been entrusted to independent witness. This argument invariably is before the law courts. Let us see first what is the purpose of this argument because in some of the judgments the Hon''ble High Court and Hon''ble Supreme Court has laid a stress for the entrusment of the seal in seizing the case property should be handed over to the independent witness. The object is that the case property should not be tampered or allowed to be tampered with. The purpose is that right from the stage of seizure upto the stage it comes to the office of the Director, Forensic Science Laboratory or Chemical Examiner, it must remain in the same condition. In the present case, the case property was sealed by the Investigating Officer with his own seal bearing inscription JS. As per law he produced the case property before the S.H.O. who resealed the case property. When the Legislature has given dictate to the Investigating Officer of double seal it has been given with a purpose so that one Investigating Officer may not be in a position to bungle with the case property. The Legislature in the given mandate directed that the case property should also be produced before the Magistrate so that nothing should remain as a matter of chance with the Investigating Officer. Seal always cannot be handed over to an independent witness. The reason being that the seal is such an article which can be expected to be utilised by the Investigating Officer frequently because he is busy to investigate the crime. He cannot afford always to entrust the seal to independent witness which is supposed to remain is his possession for days together till the case property reaches its destination. If the independent witness goes with the seal and for some valid reason, is not available to the Investigating Officer, from where Investigating Officer will be able to bring additional seal of his own name for sealing the case property in some other case ? The nonhanding the seal to an independent witness may create a remote suspicion which has to be held as very feeble. A feeble circumstance can never take the place of reasonable doubt. Every doubt is not reasonable and every flutter cannot create a reasonable dent in the story of the prosection. In the present case the case property was even produced before the Judicial Magistrate on 5.6.1996 by SI Balkar Singh. The Magistrate has certified that the seals were intact and they bore the impression of JS and VS. Under the directions of the Magistrate, the case property was ordered to be deposited with MHC Judicial Malkhana Bathinda and it was ordered that the sample be returned to the S.H.O., P.S. Raman. The Chemical Examiner in his report Ex.PL certified that the case property reached in its office on 6.6.1996. Hardly, there is any delay in the delivery of the sample of the poppy husk in his office. The docket was issued by S.S.P. Bathinda on 6.6.1996. In this view of the matter, I am of the opinion that if seal has not been handed over to Chhota Singh whose credentials ultimately are such that he had to be given up by the prosecution on the plea of having been won over by the accused, it is not fatal.

Last argument which remains to be dealt with is of affidavit i.e. link evidence. Sample of the Poppy Husk was handed over to Constable Mandeep Singh whose statement was tendered by way of affidavit which is Ex. PK on the record. The criticism against this man is that the appellant has not been afforded an opportunity to crossexamine this witness and that there is nothing on record that when his affidavit Ex.PK was tendered on 5.5.1997 he was present in the Court. We cannot go by inference or presumption. Rather we will presume in favour of the law that it has been complied with. The Additional Public Prosecutor tendered into evidence affidavit Ex. PK of Mandeep Singh on 5.5.1997, as record of the lower Court indicates, alongwith report of the Chemical Examiner Ex.PL. This affidavit was tendered in the presence of the defence counsel as stands proved from the Zamni JUDGMENT of that date. At no point of time, the appellant counsel even made a prayer either to the Court that he wanted to crossexamine this witness. In the Zamni JUDGMENTs it is not required to be written by the Presiding Officer that the witness was present. As per provisions of Cr.P.C. a persons whose statement is of formal character can be tendered by way of affidavit. In the present case appellant did not want to avail the right of crossexamination. Resultantly the third argument of the learned Counsel for the appellant also fails.

No other argument was raised by the learned Senior Advocate.

In the light of the above, I am of the opinion that the present appeal is totally devoid of any merit and the same is hereby dismissed.