Balkar Singh vs State of Haryana

Dr. Sarojnei Saksena, J.

Appellantaccused Balkar Singh had filed this appeal against the judgment dated 15.11.1986 of Shri Babu Ram Gupta, Additional Sessions Judge, Karnal whereby he found him guilty of the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the ''Act'') and sentenced him to undergo rigorous imprisonment for 10 years with a fine of Rs. one lac, in default to undergo further rigorous imprisonment for 5 years.

Briefly stated the prosecution case is that on 11.5.1986, ASI Yad Ram, Head Constable Bani Singh and Constable Karan Singh were present on Jatal Road near Railway Crossing Panipat on patrol duty. At about 11.30 a.m. they saw accused coming from Gohana Road. An Air Bag was hanging over his right shoulder. On suspicion, he was apprehended by ASI, Yad Ram, when search of the Air Bag was taken, it was found that it contained a woollen Chaddar, Pyjama and opium wrapped in a wax paper. Accused was not having any licence for its possession. The total weight of opium was 1 Kg. 500 gms. 50 grams of opium was taken out as sample. Two separate packets were prepared of 50 grams and remaining 1 Kg. 450 grams of opium and were duly sealed by ''YR'' seal of ASI Yad Ram. All the articles were seized vide seizure memo. Ex. PA. Ruqa Ex. PB was sent to the police station. F.I.R. Ex. PB/1 was recorded. After completing usual investigation on the spot, ASI Yad Ram brought the accused alongwith the seized and sealed articles to the police station, deposited the case property in the Malkhana of the police station and handed over the accused to SHO. On 19.5.1986, sealed sample of seized opium was sent to Chemical Examiner for analysis, Vide report Ex.PD dated 27.5.1986, the expert opined that it contained opium. He also mentioned that seal on the sample was found intact which tallied with the specimen seal impression of ''YR'' sent to the Laboratory. On these facts, the accused was prosecuted.

The accused denied the guilt. His plea is that he was returning from Delhi after informing his relations about the proposed marriage of his sister. He alighted from a bus at Busstand Panipat to take water, at that time he was apprehended by the police and on being told that he belongs to a village of Tehsil Rajpura, District Patiala, he was brought to police station where he was kept in custody for 4 days and thereafter, this false case is foisted upon him. He has not adduced any evidence in his defence.

During trial, prosecution examined Head Constable Bani Singh PW1, ASI Yad Ram PW2, HC Bhale Ram PW3 and Constable Sunder Lal PW4. The trial Court disbelieved the defence plea, found the sworn testimony of the prosecution witnesses cogent and reliable and thus accused was found guilty of the said offence and was convicted accordingly.

The learned defence counsel contended that in this case mandatory provisions of the Act are violated. He pointed out that Yad Ram P.W. 2 has put his seal on the packet of sample as well as on the parcel of the remaining seized opium but these seized articles were not handed over to S.H.O. on that very day and SHO has not affixed his seal on these packets. No separate report was sent to any superior officer. Thus mandatory provisions of sections 55 and 57 of the Act were violated. Further at the time of search and seizure, accused was not apprised of his right that he has an option to be searched before a gazetted officer or a Magistrate. Thus the mandatory provisions of Section 50 were violated.

He further stressed that Bhale Ram PW3 has admitted that earlier he gave an affidavit Ex.BD wherein the weight of the seized opium is mentioned as 4 Kg 950 gms. This falsifies the whole of the prosecution story. ASI Yad Ram has tried to state in his crossexamination that the sealed parcels were presented by him before the SHO and SHO has put his own seal as ''SR'' on these packets. He has stated that the parcel Ex. P1 bears the seal of SHO as ''SR''. In this connection, he referred to the statement of Sunder Lal PW4 who took the parcel of sample to Chemical Examiner for analysis. In the crossexamination, Sunder Lal has stated that there was only one seal on that packet. He also pointed out that there are contradictions in the statements of Yad Ram PW2 and Bani Singh PW1 on the points as to where they saw the accused, how they chased him what was thereof exact spot where they were standing and where the accused was arrested. He also contended that no independent witness was joined though both these witnesses have admitted that many persons were present on the spot. They have stated that they tried to join independent witnesses but they declined. This is only a face saving device. They have not taken any action against those persons who declined to join as witnesses, even their names were not enquired. No such entry is made in the case diary. All these facts reveal hollowness of the aforesaid explanation of these witnesses. According to him, the trial Court has not gone into the prosecution evidence minutely and has wrongly believed the prosecution evidence to hold the accused guilty of the said offence.

The learned counsel appearing for the State supported the judgment and contended that since it is a case of chance recovery, the provisions Section 50 are not applicable. Provisions of sections 55 and 57 of the Act are not mandatory. The prosecution has proved beyond doubt the alleged offence against the accused. No doubt, there are minor discrepancies in the statements of Yad Ram PW2 and Bani Singh PW1 but there are natural variations as they are not tutored witnesses and their statements are recorded after six months of the incident. Hence no undue importance can be attached to these minor contradictions.

To my mind, the contentions raised by the learned appellant''s counsel are devoid of any substance, From the statements of Bani Singh P.W. 1 and Yad Ram PW2 as well as from the FIR Ex.PB/1, it is evident that it is a case of chance recovery. Yad Ram PW2 and Bani Singh PW1 were going on patrol duty when they reached near the Railway crossing on the Jatal Road. They found accused coming from Gohana Road. On suspicion, he was apprehended. ASI Yad Ram PW2 has testified that he asked the accused to take his personal search and thereafter he took personal search of the accused. He was carrying an air bag Ex.P.2. It contained chaddar Ex.P.3, Pyjama Ex.P.4 and in this chaddar 1.50 Kg. opium was found wrapped in a wax paper. Immediately, weights and scales were brought by constable Karam Singh 50 grams of opium was separated as a sample which was separately sealed and the remaining opium was separately sealed. Seal ''YR'' was used in sealing both the parcels. Yad Ram PW2 has clearly stated that after completing the investigation on the spot, he came back to the Police Station, City Panipat, handed over the accused and the sealed parcels to SHO. He had categorically stated that he does not remember whether SHO affixed his seal on these parcels but while looked at parcel Ex.P.1, presented in the Court, he stated that it bears the seal of ''YR''. The statement of Sunder Lal PW4 is that the sealed packet which he took from Police Station Panipat from MHC Bhale Ram on 19.5.1986 and delivered it in the office of the Chemical Examiner, it had only one seal. From the Chemical Examiner''s report Ex.PD also it is evident that this sample packet had only one seal of ''YR''. Section 55 of the Act provides that as soon as sealed packets are produced before the SHO he is required to put his own seal on those articles. But in view of the Full Bench authority of this court (State of Punjab v. Kulwant Singh, 1994(1) Recent Criminal Reports 303 ), provision of Section 55 are not mandatory in nature. Its mere violation is not fatal and will not vitiate the trial unless it can be shown that its noncompliance has resulted in prejudice to the accused.

Yad Ram has also admitted that he has not sent any separate information of this arrest and seizure to any superior Police officer. Under section 57 of the Act, a full report of such arrest and seizure report of such is required to be sent to the immediate superior officer of the person who made this search and seizure. But even this provision is not mandatory as is held by the Apex Court in (State of Punjab v. Balbir Singh, 1994(1) RCR 736 ). It is directed that if there is noncompliance of these provisions and if there are lapses like the delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. In this case, as is evident from the statements of Yad Ram PW2, Bhale Ram PW3 and Sunder Lal PW4 that the accused was arrested on 11.5.1986, contraband article was seized from his possession on this very day. Within few hours, he was brought to the police station and was produced before the SHO. On 19.5.1986, the parcel of sample was handed over by Bhale Ram PW3 to Sunder Lal PW4 who delivered it in the office of the Chemical Examiner on that very day. The Chemical Examiner''s report is at Ex.PD. It also contains a recital that sample was received on 19.5.1986. Seal impression ''YR'' was also affixed on the memo sent alongwith the sample. The same was found in tact and on 27.5.1986, the report was given that the same contains opium. Hence it cannot be said that there is any delay in sending the sample for analysis or the seal was ever tampered with.

ASI Yad Ram has stated in crossexamination that before search, he offered to the accused that his personal search can be taken in the presence of gazetted officer but this fact is not recorded in the ruqa Ex.PB. Under section 50 of the Act, every accused has a right to give his personal search either before a gazetted officer or before a Magistrate. Both these options are to be given to him and he is to be apprised of this valuable right, but these provisions can be invoked only when the Investigation Officer takes personal search of the accused after receiving secret information. If all of a sudden on suspicion any police officer takes search of an accused and finds any Narcotic Drugs or Psychotropic Substance in his possession, in such matters, he is not liable to follow the procedure laid down in section 50 of the Act. The Apex Court has held so in Balbir Singh''s case (supra) otherwise, if the search is taken after having secret information that an accused is carrying such contraband with him, the officer taking search is duty bound to follow the mandatory provisions of Section 50 of the Act.

Admittedly, no independent witness was joined at the time of search and seizure. Yad Ram PW2, and Bani Singh PW1 have admitted that many persons were present but none agreed to be a witness to this search and seizure. No doubt, their names are not recorded in the case diary. No action was taken against those persons but simply on these counts as well as on the count that independent witnesses were not joined, the evidence about search and seizure cannot be branded an unreliable and unworthy of credence. The statements of both these witnesses on minute scrutiny reveal that they are trustworthy. They have no animus to implicate the accused falsely. No oblique motive is attributed to them even in the defence plea. Further in Balbir Singh''s case, the Apex Court has held that if independent witnesses are not joined at the time of search and seizure, then the search would not per se be illegal and would not vitiate the trial. Effect of such failure has to be borne in mind by the Court while appreciating the evidence on record. The trial Court has found the statements of these prosecution witnesses wholly reliable. I see no infirmity in this finding.

So far as discrepancies in the statements of ASI Yad Ram PW2 and Bani Singh PW1 are concerned, the trial Court has dealt with them in para 11 of its judgment. According to me also, these variations are immaterial. They are natural also because their statements were recorded after six months of the incident. They are not tutored witnesses, hence such minor contradictions are bound to creep in but they do not go to the root of the matter. Hence no undue importance can be attached to them while weighing the sworn testimony of these witnesses. I find that the statements of these two witnesses are reliable.

Affidavit of Bhale Ram PW3 was produced at Ex.DB but later on he was examined in the Court also. Thus he was confronted with his aforesaid affidavit wherein the weight of the opium is wrongly recorded as 4 Kg. 950 gms. He has admitted that this weight is wrongly mentioned in his affidavit. Even this discrepancy will not help the accused because from the statements of Bani Singh PW1 and Yad Ram PW2, it is evident that only 1.50 Kg. opium was seized from the prosecution of the accused on 11.5.1986. Bhale Ram PW3 and MHC of Police Station City Panipat on that day. It is possible that while swearing in the affidavit Ex.DB, he committed a mistake about the weight of the seized opium. No other point is pressed before me.

Finding no merit in the appeal, it is hereby dismissed. Appellant''s conviction and sentence is confirmed. He is directed to surrender to the bail bonds for undergoing the remaining sentence.