Bakshish Singh vs State of Punjab

Virender Singh, J.

Bakshish Singh son of Jugraj Singh has earned conviction under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act'') vide judgment dated 7.12.1990 passed by Additional Sessions Judge, Ferozepur. 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.

Three bags each containing 40 kgs of poppy husk were allegedly recovered from the present appellant on 20.4.1989 by ASI Hardev Singh PW3, ASI Hardev Singh PW3, ASI Cheta Singh PW2, ASI Harbans Singh and other police officials who were going in a Mini Bus from Mirjeke towards Ghall Khurd Bachha. The police party noticed the present appellant sitting on three bags in the pits towards right hand side of the road. ASI Hardev Singh PW3 knew the appellant earlier. He apprehended him and suspected that the bags on which he was sitting were containing contraband and he wanted to search the bags. The appellant was apprised of his right to have the search conducted in the presence of a Gazetted Officer or Magistrate but the appellant did not show any inclination to exercise this right and memo Ex. PW2/A was made in this regard which was thumbmarked by the appellant. On search each of the three bags was found to contain poppy husk to the tune of 40 kgs in each bag. 100 gms was taken out as sample from each bag and the same was sealed separately and was made into parcels with the seal of HS belonging to ASI Hardev Singh. The bags Ex.P1 to P3 were sealed separately with the same seal and the bags as well as the samples were taken into possession vide Ex.PW2/B. It was attested by other official witnesses. The seal after use was handed over to ASI Cheta Singh after a separate sample Ex.PW3/A of the seal had been prepared. ASI Hardev Singh sent ruqa Ex.PW3/B to the Police Station Ghall Khurd on the basis of which formal FIR Ex.PW3/C was recorded by the concerned police official of the said police station. The appellant was apprised of the grounds of arrest through memo Ex.PW2/C which was thumbmarked by him and attested by other witnesses. Rough site plan Ex.PW3/D was also prepared at the spot. The case property was then taken to the police station where ASI Kirpal Singh PW5 was officiating as SHO. ASI Kirpal Singh put his own seal `KS'' on the articles and took possession of the case property. He also affixed his own seal on the sample seal Ex.PW5/A. ASI Kirpal Singh then produced the appellant as well as the case property before the Magistrate on the following day and on the direction of the Court, the case property was kept in the police Malkhana in the custody of MHC Darshan Singh PW4. The samples which were sent to the Director, Forensic Science Laboratory, Punjab, Chandigarh for analysis revealed vide report Ex.PA that the chemical analysis gave positive tests about the presence of meconic acid and morphine in the contents of all the three packets. According to the analysis meconic acid and morphine are active ingredients of poppy straw powder. The appellant was, thus, challaned in the present case. He was charged under section 15 of the Act by the trial Court.

In order to prove the charge, the prosecution has mainly examined ASI Cheta Singh PW2 who stated that when he was posted at CIA Staff, Ferozepur, he alongwith ASI Hardev Singh, ASI Harbans Singh and other police officials had apprehended the present appellant from whom the three bags of poppy husk each containing 40 kgs were recovered. He talks about other legal formalities also. ASI Hardev Singh PW3 is the Investigating Officer of this case. His investigation part need not be repeated as the same is dealt with in the preceding paras.

It is worth mentioning here that in order to prove link evidence, the prosecution agency had tendered the affidavits which were marked as PW1 and PW4, of Constable Kirpal Singh and of MHC Darshan Singh.

PW5 is ASI Kirpal Singh. He had kept the case property in his custody after the same was deposited with him by ASI Hardev Singh. Report Ex.PA of Forensic Science Laboratory was also tendered by the prosecution.

The plea taken by the appellant in his statement recorded under section 313 Cr.P.C. is that he has been falsely implicated in this case and that he was taken in custody from the house of his brotherinlaw Harnek Singh situated in village Kot Karor Kalan and after detaining for two/three days in the police station illegally, the present case was falsely implanted against him. In defence he has produced DW1 Avtar Singh, Ahlmad of the Court of Judicial Magistrate 1st Class, Ferozepur who has proved an application marked `X'' to the effect that it was received by the Judicial Magistrate Ist Class, Ferozepur on 17.4.1989 and the said application is by Harnek Singh. The said application was received at 3 PM. The appellant then produced his brotherin law Harnek Singh as DW2 to show that on 17.4.1989 when the present appellant was taken into custody by the police, he moved an application mark `X'' to the Court to show that the present appellant was lifted by the police.

The learned trial Court after examining the entire evidence has convicted and sentenced the appellant as indicated above. Hence, this appeal.

I have heard Mr. T.S. Sangha, learned counsel for the appellant and Mr. Ashish Verma, learned Assistant AdvocateGeneral, Punjab. With their assistance I have also gone through the record of the case.

The first argument advanced by the learned counsel for the appellant is that no independent witness was joined by the Investigating Officer in this case even after the apprehension and before completing the legal formalities. Developing his arguments, the learned counsel contends that at least an effort should have been made by ASI Hardev Singh PW3 to call an independent witness when Chhinda driver and Harnam Singh Constable had given to bring weights and scale for the purpose of weighing the contraband. Nonjoining of independent witness creates doubt with regard to recovery.

He then contends that the Investigating Officer in this case should have also made an effort to call a senior police official to give sanctity to the search. The prosecution story can be seen with a pinch of salt especially when it suffers from other infirmities also.

The other legal formalities pointed out by the learned counsel are that there is noncompliance of section 55 of the Act in this case as ASI Kirpal Singh PW5 was not the incharge of the police station Ghall Khurd on 20.4.89 and even if the case property was produced before him by ASI Harbans Singh, it would not amount to compliance of section 55 of the Act in its true sense.

At the same time, the other infirmity pointed out by the learned counsel is that the incriminating evidence in the shape of link evidence has not been put to the appellant. He develops this by submitting that no question has been put to the appellant under section 313 Cr.P.C. with regard to the affidavits of Constable Kirpal Singh and MHC Darshan Singh. In this connection he relies upon a judgment of this Court rendered in Kapil Dev v. State of Punjab, Criminal Appeal No. 334SB of 1993, decided on 25.2.2004 (unreported) : 2004(2) RCR(Crl.) 275 (P&H).

The learned counsel also attacks the prosecution case from another angle that is there is a delay in sending the sample to the FSL and no explanation by the prosecution for the delay caused in this respect is forthcoming. This, according to him, is also fatal to the prosecution. In the same breath, the learned counsel submits that the prosecution has failed to produce the link evidence that CFSL form which bore all the seals of HS and KS with seal impressions were deposited in the Malkhana alongwith case property and from this lacuna the possibility of sample being tampered with before reaching the FSL cannot be rule out. In support of this contention, he relies upon a judgment of Delhi High Court rendered in Rajan Ali v. The State (Delhi Admn.), 1999(4) RCR(Crl.) 632.

A great stress has been laid on an application Ex.DA submitting that whole of the recovery has been implanted by ASI Hardev Singh against the appellant as he was taken into custody by the police on 17.4.1989 from the house of Harnek Singh his brotherinlaw and after keeping the appellant in illegal detention of 2/3 days, the present case has been foisted upon him. He refers to Ex.DA in this regard which indicates that the factum of lifting the appellant from the house of Harnek Singh DW is proved. He also read out the statement of Harnek Singh DW2 before me in this behalf.

Relying very heavily on the aforesaid submissions the learned counsel argues that in case all the aforesaid infirmities are taken collectively, it can be said that the prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubt and as such he deserves acquittal.

The learned State counsel has, however, refuted the submissions made on behalf of the appellant and submits that there is no basic infirmity in the case of the prosecution which would throw out the case of the prosecution in its entirety. He then contends that there is complete compliance of section 55 of the Act as the case property was deposited with ASI Kirpal Singh who was officiating as SHO of the said police station on the date of alleged recovery. He then proceeds to say that so far as delay in sending the sample is concerned, that too has not caused any prejudice to the appellant and this delay is just normal. He further contends that even if the link evidence was not put to the appellant when examined under section 313 Cr.P.C., this also, cannot be considered to be any infirmity so as to discard the prosecution case. The learned State counsel then contends that moving of the application Ex.DA, in fact, is a clever move by the appellant so as to create a defence for him. The case against the appellant is proved to the hilt, the learned State counsel so contends.

After hearing both the sides and perusing the entire record minutely, I am of the view that the prosecution has been able to prove its case against the appellant beyond any shadow of reasonable doubt. His conviction as recorded by the trial Court deserves to be maintained. For arriving at the said conclusion, I shall now be entering into detailed discussion qua all the contentions raised by the learned counsel for the appellant.

No doubt, no independent witness has been joined in this case by ASI Hardev Singh PW3 at the time of apprehending the appellant. Even thereafter no effort has been made by the Investigating Officer to call for an independent witness from nearby when Constable Harnam Singh was sent to bring the scale for weighing the contraband. This fact would not amount to doubting the recovery when the other two officials are consistent in their statements so far as conscious possession over the contraband by the appellant is concerned.

The contention of the learned counsel in this regard is, thus, repelled.

If any senior police officer has not been joined while completing the legal formalities under the Act, that too, in my considered view, would not dent the prosecution case.

The other contention regarding noncompliance of section 55 of the Act also merits rejection. I have minutely seen the statement of ASI Kirpal Singh. On 20.4.89, he was posted as SHO at Ghall Khurd. On that day, ASI Hardev Singh PW3 the Investigation Officer had brought three bags containing 39.900 kgs each of poppy husk alongwith three samples containing 100 grams each. The appellant was also produced before him. After putting his seal `KS'' on all the articles, he took into possession the case property. It has also come in his statement that he has affixed his seal on the sample Ex.PW5/A and then produced the case property and the appellant before the Magistrate on the next day for further directions. In crossexamination he has categorically stated that he was delegated the powers of SHO by Harnek Singh Inspector and an entry in the daily diary has been made to this effect. This, in my view, amounts to the compliance of section 55 of the Act in all respects. Even, otherwise it is now authoritatively held that compliance of section 55 of the Act is directory in nature and not mandatory and noncompliance if any would not vitiate the trial. In the present case there is no such noncompliance.

At the same time, I do not find any basic lacuna so far as nonexamination of the present appellant with regard to link evidence is concerned. With regard to link evidence, I have seen the statement of the appellant recorded under section 313 Cr.P.C. once again. No doubt the factum of affidavits of Constable Kirpal Singh and MHC Darshan Singh in the shape of link evidence has not been put to him but to my mind this cannot be said to be a ground to throw out the prosecution case in its entirety. The judgment rendered in Kapil Dev''s case (supra), relied upon by the learned counsel for the appellant in this regard does not come to his rescue. In the aforesaid case when the affidavits proving the link evidence were tendered by the prosecution, the deponents were not present in the Court. They were not put to crossexamination by the defence counsel. Even the affidavits were sworn much earlier the date when those were tendered in the Court and in that eventuality this Court held that the link evidence was not put to the accused. In the present case the factual position is otherwise. Perusal of the record shows that on 5.4.90, the prosecution has tendered affidavit of Constable Kirpal Singh saying that his evidence is of formal nature. On the same date, the statement of the counsel for the accused was also recorded who stated that he did not want to cross examine Constable Kirpal Singh whose affidavit has been tendered in evidence and thereafter the trial Court passed the order in view of the statement of counsel for the parties. Affidavit of Constable Kirpal Singh was directed to be read as PW1. Similarly the affidavit of MHC Darshan Singh was tendered on 19.5.90 and the statement of counsel for the accused was also recorded. Thereafter it was ordered that the affidavit of MHC Darshan Singh be read as PW4. For reference, the statement of Additional Public Prosecutor, statement of counsel for the accused and the order regarding one of the witnesses namely Constable Kirpal Singh is reproduced as under :

"Statement of Addl. P.P.

I tender in evidence affidavit of Constable Kirpal Singh whose evidence is of formal nature."

"Statement of Mr. Baldev Singh Sekhon, counsel for the accused.

I do not want to crossexamine constable Kirpal Singh whose affidavit has been tendered today in evidence."

"In view of the above statements of the counsel for the parties, the affidavit of constable Kirpal Singh is directed to be read as PW1."

I have seen the affidavit of both the witnesses. Affidavit of Constable Kirpal Singh was sworn on 5.4.90 whereas MHC Darshan Singh on 19.5.90, the dates on which they were tendered. In the light of the aforesaid fact, in my considered view, it cannot be now said on behalf of the appellant that any prejudice is caused to the appellant by not putting the aforesaid link evidence to him when he was examined under section 313 Cr.P.C.

Regarding delay factor I have once again seen the trial Court record in this respect. No doubt there is delay in sending the sample which was deposited with the office of Director, FSL, Chandigarh on 5.5.89 but this fact would not dent the case of the prosecution at all. The delay is very common and the accused has to show the prejudice caused to him in this regard. In the present case when Constable Kirpal Singh was produced on 5.4.90 and he had tendered his affidavit, no question was put to him regarding the delay. He has solemnly affirmed in para No. 2 of the affidavit (PW1) that on 4.5.89 MHC Darshan Singh had handed over to him three parcels containing samples with the seal impression and the same was deposited by him on 5.5.89 with the office of Director, FSL Chandigarh in the same condition after getting the docket from the concerned quarters. It is worth mentioning here that no question was put to MHC Darshan Singh in this regard who had kept the case property in his custody from 21.4.89 till it was handed over to Constable Kirpal Singh on 4.5.89. Thus, in my view, the contention of learned counsel in this regard has to be repelled having no weight in it.

While relying upon Rajan Ali''s case (supra) the learned counsel for the appellant has also attacked the investigation conducted in this case contending that alongwith the case property the form having seal impression was not deposited with the MHC. The factual position is absolutely otherwise. I have once again minutely seen the evidence of ASI Hardev Singh, ASI Kirpal Singh and affidavits of Constable Kirpal Singh and MHC Darshan Singh. ASI Hardev Singh has categorically stated in his examination in chief that separate sample of seal used was prepared as Ex.PW3/A. Admittedly his seal impression is `HS''. Similarly, ASI Kirpal Singh has also categorically stated that he has put his seal on all three articles and also on the seal impression Ex.PW5/A. Admittedly, his seal impression is `KS'' as is clear from his statement. In this context I have seen the affidavits of MHC Darshan Singh (PW4) and in the said affidavit it has been stated that on 21.4.89 ASI Kirpal Singh had deposited with him three samples of poppy husk sealed with the seal `HS'' and "KS" alongwith the case property and the sample seal and the same was deposited in the Malkhana. The report Ex.PA of FSL also indicates in column No. 7 that when the condition of seals on packing was checked these were found intact and tallied with the specimen seals. From this there remains no doubt that seal impression was not deposited with the MHC on 21.4.89 when the case property was deposited after getting the orders from concerned court. In my considered view, the judgment relied upon by the learned counsel in this regard does not render any help to advance his case.

Much has been said about Ex.DA an application moved by Harnek Singh brotherinlaw of the appellant on 17.4.89 has been taken into custody by the police from his house. I have seen the said application which is in Vernacular. It was received by the concerned Judicial Magistrate Ist Class, Ferozepur on 17.4.89 at 3 PM and the order passed thereon is "Be filed". It was moved by Harnek Singh DW2. It was moved through counsel. The last line was that this application is being moved so that it can be used for getting justice. In Vernacular it reads as "Ish lae darkhasat brae itlah de riha han tanke insaaf vaste kam ae sake". As per the averments made in the said application, the appellant was lifted in the morning of 17.4.89 by the police. Harnek Singh is resident of village Kot Karor Khurd whereas the present appellant is resident of village Mirjeke. As per the application, the raid was conducted on the house of Harnek Singh and his house was searched for some incriminating article and the assertion that the appellant was lifted by the police for the purpose of foisting a false case upon him does not appeal to judicial conscience. This application on the other hand can be said to be a preemptive move. The last lines of the application also indicate that the application is being moved so that it can be used at a proper stage. It can be doubted from another angle as well. The order shows that the application was just filed by the concerned Magistrate. The counsel was also present yet no request was made on behalf of Harnek Singh applicant DW2 who is real brother inlaw of the present appellant, requesting the court to take immediate action. At least a request for calling the report of the concerned SHO could be made very well but no action was taken in this regard. Even after the appellant did not knock at the doors of higher authorities showing his grievance to the effect that he has been falsely implicated in the present case. This all shows that Ex.DA is nothing but a mere subterfuge.

To sum up, I am of the considered view that prosecution has been able to prove the charge against the appellant beyond any shadow of doubt and his conscious possession over three bags of poppy husk each containing 40 kgs, is proved to the hilt as to bring his case within the ambit of section 15 of the Act. Consequently, the conviction recorded by the trial Court is hereby maintained.

The trial Court has awarded the minimum sentence as provided under the statute and on that count also no interference is called for.

Resultantly, the present appeal is dismissed having no substance in it.

The appellant is on bail as his substantive sentence was suspended way back in December, 1990. He shall now surrender to custody to serve the remainder of his substantive sentence.