Balwinder Singh vs State of Haryana

R.L. Anand, J. (Oral)

Balwinder Singh son of Karnail Singh, a young boy of 25 years at the time of his conviction, has filed the present Criminal Appeal and has been directed against the judgment dated 23.8.1995 and order dated 25.8.1995 passed by the Court of Additional Sessions Judge, Bhiwani, who convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced 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 shall further undergo rigorous imprisonment for a period of 21/2 years.

Briefly, facts of the prosecution case are that on 4.11.1991 Inspector Jai Singh of C.I.A. Staff, Bhiwani, was present along with Sub Inspector Bhoja Ram, Sub Inspector Hira Lal and other officials in a Government Jeep at `T'' Point Loharu. Banwari Lal and Bajrang PWs came there and they were also associated in the police party. After about 15 months, Balwinder Singh appellant along with one more person came from the side of Loharu. Balwinder Singh was carrying a pipi plastic in his right hand and the second person Kesar Singh was carrying a tin on his right shoulder. On seeing the police party, they tried to avoid it. They were apprehended on the basis of suspicion. A notice was served upon the appellant apprising him of his right to be searched in the presence of a Gazetted Officer or Magistrate. The appellant felt satisfied and offered himself for search by the Inspector himself. The memo to this effect was prepared and then the contents of pipi being carried by the appellant was checked and it was found to contain 2 kgs. of opium wrapped in a wax paper. The Investigating Officer Shri Jai Singh separated 100 grams of opium by way of sample. The residue were sealed in separate parcels with the seal bearing inscription `PS''. The sample and the remaining opium was taken into possession vide separate recovery memo and it was attested by the witnesses. At about 2.00 p.m. Deputy Superintendent of Police Bhup Singh arrived at the spot and the case property along with the accused was produced before him. He also verified the facts of the case and resealed the case property with his seal bearing inscription `HS''. Ultimately, the sample of the opium was sent to the office of the Chemical Examiner, who vide his report declared the contents as opium and on completion of investigation of the case, the appellant was challaned in the Court of area Magistrate, Loharu, who supplied the copies of the documents to the appellant and vide his commitment order dated 4.12.1992 committed the accused to the Court of Sessions.

The appellant was chargesheeted under Section 18 of the NDPS Act on the allegations that on 4.11.1991 in the area of Loharu, he was found in possession of 2 kgs. of opium without any permit or licence from the State Government and thereby committed an offence. Charge was read over to the appellant to which he pleaded not guilty and claimed trial.

In order to prove its case, the prosecution has examined the following oral evidence :

PW2 ASI Ram Chander;

PW2 SI Balkishore;

PW3 Jai Singh, the Investigating Officer; and

PW4 Inspector Bhoja Ram, a witness of the recovery.

The prosecution also tendered in evidence the documentary evidence, which has been relied upon by the prosecution in this case is as follows :

Exhibit PA is the affidavit of Moharrir Head Constable while document Exhibit PB is affidavit of Constable Dariya Singh; Exhibiting PC is a notice which has been served upon the appellant; Exhibit PD is Recovery Memo, which is attested by S/Shri Banwari Lal, Bhoja Ram and the Investigating Officer Shri Jai Singh; Exhibit PD is ruqa which was sent to the Police Station, Loharu and was dispatched from the spot at 3.00 p.m. on the basis of which formal First Information Report was recorded in the Police Station, Loharu at 3.15 p.m. and the Special Report reached the Illaqa Magistrate on the same date at 7.45 p.m.; Exhibit PF is rough site of the place of arrest, while Exhibit PY is the report of Forensic Science Laboratory, Haryana, Madhuban (Karnal), who found Morphine content 3.53% w/w and declared contents as opium.

On the closure of the prosecution evidence, the statement of the accused was recorded under Section 313, Code of Criminal Procedure and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied those circumstances and stated as follows :

"In village Dewana in District Sangrur, the brother of my Jija had a brother inlaw (Saala) who had died. I do not know his name. I had started from village Kehar, Distt. Jhunjhunu for this village Dewana alone. I was apprehended on the border of Haryana with Rajasthan. I was made to alight the bus. I was having rupees 2,000/ in cash which was taken by the police. I was beaten and interrogated about my destination I told them that I was having land in Rajasthan and was going to Punjab. The police told me that I was going purchase Amar (opium). I denied. I was implicated in this case on false allegations I told them to digest the sum of Rs. 2,000/ and requested them not to plant opium on me but the police did not agree."

When called upon to enter into defence evidence, he examined DW1 Banwari, DW2 Gurcharan Singh, DW3 Nirbhai Singh and DW4 Ashok Kumar, Ahlmad. Banwari LalDW1 has stated that Inspector Jai Singh never apprehended Balwinder Singhappellant in his presence and his thumb impressions on the documents were obtained in the police station and he was cited as a witness in this case. It was further stated by Banwari that neither DSP Loharu nor Jai Singh Inspector ever met him in connection with this case. In cross examination, he admitted that he thumb marked the documents on the asking of Inspector Jai Singh. Shri Gurcharan Singh appeared as DW2 and Nirbhai Singh appeared as DW3. Shri Ashok Kumar, Ahlmad also appeared as DW4. The learned trial court believed the story of the prosecution and rejected the defence version and convicted and sentenced the appellant in the manner, as stated above and aggrieved by this conviction and sentence, the present appeal.

I have heard Shri A.S. Jattana, learned counsel on behalf of the appellant and Shri J.S. Ahlawat, Advocate on behalf of the State of Haryana and with their assistance have gone through the record of this case.

Before I deal with the submissions raised by the learned counsel for the appellant, it will be appropriate for me to narrate in verbatim the reasons which have been adopted by the trial Court for convicting the appellant and those reasons are contained in paras 17 to 30 of the judgment of the trial Court, which are as under :

"17 : Discrepancies or inconsistency in prosecution evidence is a short fall from which no criminal case is free. The thing to be seen while appreciating the evidence is whether discrepancies go to the root of the matter or pertain to insignificant aspect thereof. In the former case, the defence may be justified in seeking advantage of the incongruities in the evidence, however, in the latter case, no such benefit may be available to it. In the present case, discrepancies referred to by the learned counsel for the accused are with regard to minute details, not affecting the root of the matter or the salient features of the case. All the discrepancies occurring in the testimony of these two witnesses, are natural discrepancies of minor nature.

18 : Learned counsel for the accused then argued that in this case, the prosecution has not been able to establish on record that mandatory provisions of Section 50 were complied with by it. In view of the notice Ex. PC and his choice in the negative, the Investigating Officer did not take the accused to any gazetted officer or a Magistrate to witness the personal search of the accused. Basing his argument on this omission, learned counsel for the accused argued that the accused is entitled to acquittal. In this connection, learned counsel for the accused placed his reliance on the decisions of the following cases :

(a) Amrit v. The State of Haryana, 1990(2) RCR page 525 (DB);

(b) Chameli v. The State, 1993(3) RCR page 566, High Court (Single Bench) Delhi;

(c) Har Narain v. The State, 1992(1) C.C. Cases page 393.

A perusal of these authorities relied upon by learned counsel for the accused shows that mere statement of a police officer that the accused had waived his right of being searched before the gazetted officer or a magistrate cannot be accepted in the absence of independent corroboration. These authorities further show that where the accused is not informed of his right and the search is made by the police officer himself, he is entitled to acquittal for noncompliance of the mandatory provisions of Section 50 of the Act.

19 : To my mind, the decisions of the cases of Har Narain, Amrit and Chameli, referred to and relied upon by the learned counsel for the accused have lost their much significance in view of the latest pronouncement by the Apex Court of the country. The case of Har Narain was decided on 21.10.1991; that of Amrit on 27.9.1989 and that of Chameli on 19.4.1993. In the case of State of Punjab v. Balbir Singh, 1994(1) RCR (Crl.) 737 : 1991(4) Crimes, page 753, the Hon''ble Supreme Court vide its judgment dated 1.3.1994 observed as under :

"If a police officer without any prior information as contemplated under the provisions of N.D.P.S. Act makes a search on arrested person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed, at that stage, Section 50 of the N.D.P.S. Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest, there is a chance recovery of any narcotic drug or psychotropic substance, then the police officer who is not empowered should inform the empowered officer who should thereafter proceed in accordance with the provisions of the N.D.P.S. Act. If the happens to be an empowered officer also then from that stage onwards, he should carry out the investigation in accordance with other provisions of N.D.P.S. Act."

The authorities referred to by learned counsel for the accused being that of different High Courts are not applicable in view of the facts of the present case and the guidelines given by the Hon''ble Supreme Court in the case of Balbir Singh (supra).

20 : This very aspect was agitated in the Hon''ble Supreme Court in another case Ali Mustafa Abdul Rahman Moos v. State of Kerala, 1994(3) RCR (Crl.) 595 : 1994(3) Crimes, page 456 but the Hon''ble Supreme Court did not consider it necessary to review the position of law laid down in the case of Balbir Singh (supra).

21 : In the recent decision of our own Hon''ble High Court in the case of Jai Singh v. State of Haryana, Criminal Appeal No. 771SB of 1986 decided by Hon''ble Mrs. Justice Dr. Sarojnei Saxena on 28.3.1995, it was observed as under :

But in this case, Investigating Officer Dharambir was not having any such secret information. Dharambir PW3 has stated on oath that he was on patrol duty and excise checking. In due course of that checking process, he found the accused sitting in the bus with a bedding on his thighs. In routine way of checking when he checked his bedding, he found it containing the contraband opium. Hence, it is the case of chance recovery. Their Lordships of Supreme Court have mandated in the State of Punjab v. Balbir Singh, 1994(1) RCR page 737 that in the case of chance recovery, provisions of Section 50 are not attracted. Hence, I find that on this count, the trial Court''s judgment does not suffer from any illegality or infirmity."

22 : In the present case, the police party of C.I.A. Staff was present on `T'' point and it was only by chance that the accused along with Kesar Singh was noticed coming from the side of Loharu. They had no prior information. The recovery was completely a chance recovery and the accused in such a recovery had no right for claiming compliance of the provisions of Section 50 of the Act.

23 : If the accused had no right to claim the search being conducted in the presence of a magistrate or a gazetted officer, the waiver recorded by the police officer in the shape of Ex. P.C cannot be assailed by the accused on the ground that it was based only on the statement of a police officer. When a person has no right for something, his statement about its waiver, whether recorded or unrecorded and whether proved with the help of independent evidence or with the help of a police officer is immaterial.

24 : Learned counsel for the accused argued that Banwari Lal and Bajrang Lal were convenient witnesses, one of them running a tea shop in front of C.I.A. Staff, Loharu. It may be true. It is because of this that these two persons have been won over by the accused not only in this case but in the other case also. While both of them have been given up as having been won over by the accused, Banwari Lal has been examined by the accused in his defence as DW1. It is common knowledge that in such cases, police does take the help of such convenient witnesses but the police cannot be solely blamed for such a state of affair. It was observed in the case of State of U.P. v. Anil Singh, 1989 Cases (Criminal) page 48 that if prosecution case is otherwise truthful and acceptable, it cannot be rejected because all the witnesses had not been examined or independent witnesses not produced to corroborate. It was further observed in the same authority that public are generally reluctant to come forward to depose before the court. It is common knowledge that in cases relating to the apprehension of the persons dealing in considerable quantities of narcotic drugs, people avoid being witnesses for fear of their own life. If in these circumstances the police officer sought the services of two convenient witnesses, he cannot be blamed. The case otherwise being truthful, the examination or nonexamination of these two witnesses by the prosecution and his false statement in defence of the accused, are of no consequence in this case.

25 : It was argued that the mandatory provisions in respect of Section 55 of the Act were not complied with in this case. He argued that in view of the ratio of the authorities Makhan Ram v. State of Punjab, 1995(2) RCR (Crl.) 424 : 1995(1) Chandigarh Law Reporter page 572 and Kundan Singh v. State, 1992(2) CC Cases page 274, the nonjoining of independent witnesses and the noncompliance of the provisions of Section 55 of the Act makes the accused entitled to acquittal. So far as the provisions of Section 55 of the Act are concerned, in view of the decision of Full Bench of our own Hon''ble High Court in the case of State of Punjab v. Kulwant Singh, 1994(1) RCR (Crl.) 303 : 1994(1) SLJ page 642, the provisions of Section 55 are mandatory in the sense that the concerned officials are bound to comply with the same but their non compliance per se would not prove fatal to the case unless it has resulted in miscarriage of justice or prejudice to the accused on the facts of a particular case. It is true that in this case second seal of the S.H.O. was not put on the sample as well as the remainder, but the seal of the DSP, a superior officer, who also reached the spot at about 2.00 p.m. and verified the facts of the case, with initials of HS, was put on the sample as well as the residue as it evident from the testimony of Bhoja Ram Inspector and Inspector Jai Singh. This fact that there was a second seal is corroborated from the report of the Forensic Science Laboratory Ex. PX which says that the sample contained five seals of PS and two seals of HS and the seals were found intact on the parcels and they had tallied with the specimen seals as per forwarding authority. In view of this, the only objection which remains is about the nonexamination of Bajrang Lal and Banwari Lal which I have discussed hereinbefore. The compliance of the provisions of Section 55 stands proved beyond reasonable doubt.

26 : Learned counsel for the accused put a question during the arguments and asked as to why in the presence of socalled independent witnesses, seal after use was handed over to SI Bhoja Ram. There may be many reasons for the same with the Investigating Officer. Suffice it to say that seals in this case were found intact by the authorities in the F.S.L. who cannot be said to be favouring any party to the case. The ratio of the case Safulla v. The State, 1993(1) RCR (Crl.) 622 : 1993(1) CC Cases page 497, therefore, is of no avail to the accused in this case.

27 : Learned counsel for the accused argued that independent corroboration of the testimony of police officials was necessary in this case. I do not see much force in this argument because the presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds therefor. It was so observed by the Hon''ble Supreme Court in the case of Ahir Raja Khima v. State of Saurastra, AIR 1956 SC page 217. The police officer who was posted as Inspector in C.I.A. Staff, Bhiwani, should have very strong motive for false implication of the accused who was neither known to any witness nor to the police officers. The accused is resident of Punjab and was apprehended at Loharu while coming from the side of Loharu, a small town bordering Rajasthan. There should be very strong reason for the police officer to plant on him, not a small quantity of opium, but 2 kgs of opium which may be worth Rs. 15,000 to Rs. 20,000/ in the illegal narcotic market. Had the police officer intended some mischief, he would have been successful in his aim by planting a small quantity of any narcotic material. No police officer would arrange for 2 kgs. of opium to be planted on an innocent person that too hailing from a very distant place simply because his appearance was suspicious and like that of a terrorist. In view of the considerable quantity of opium recovered from the possession of the accused, the false implication of the accused appears to be not correct.

28 : Coming to the version of the accused in his defence, the accused has examined Banwari Lal DW1 who said that his thumb impression was obtained by the police on some papers and he was cited as a witness but nothing had happened in his presence. Gurcharan Singh DW2 said that Balwinder Singh had come to him and started cultivating his land. He said that after 45 months, he went to Punjab as a letter from his native place had come from Punjab that three of his relatives had been killed by the terrorists and that Balwinder Singh should come after arranging a sum of Rs. 2,000/. The witness said that the accused went to his village and thereafter on 6.11.1991 the police of Loharu came and asked some question about Balwinder Singh and it wanted to assure itself that he was a terrorist. Nirbhai Singh DW2 also made a similar statement saying that Balwinder was to come to his village as three persons whose death certificates are Ex. DX/A, Ex. DX/B and Ex. DX/C have been killed by the terrorists.

29 : These photostat copies of death entries do indicate that three persons had died on 2.10.1991 in village Dewana. The accused was apprehended at Loharu on 4.11.1991. The accused cannot take any benefit from these death entries because even if we assume for the sake of argument that these persons of village Dewana were remotely related to the accused, there was no question of this man going after a month and two days of their death with a sum of Rs. 2,000/ being arranged for them by him. By that time, even the customary period of 13 days of mourning had also passed more than a fortnight back. The men may lie but the circumstances do not lie. It may be true that the accused is holding some land and cultivating the same in village Kehar as is evident from the copy of the entry of revenue record Ex. DX and the sale deed Ex. DX/D but the testimony of the defence witnesses does not fit in with the original story of the accused in his statement recorded under Section 313 Cr.P.C. The accused said that the brother of his Jija had a brotherinlaw (Saala) who had died. He said that he did not know his name and he had started for this village Dewana alone. He said that he was apprehended on the border of Haryana with Rajasthan and was made to alight the bus.

30 : If he had started alone from village Kehar, he could not be in the company of Kesar Singh, that too on foot at Loharu, both having been found in possession of considerable quantity of opium. Furthermore, according to the testimony of Gurcharan Singh DW2, Balwinder was alone in his village having meals etc. with Gurcharan Singh and all other members of the family of the accused were in Punjab to attend the condolence meeting etc., if any, in village Dewana. The very fact that the other person, in whose company, the accused was found, was found with 8 kgs. of opium, falsifies the whole of the story of the accused that he had started from village Kehar alone. It is worth mentioning here that Kesar Singh, from whom 8 kgs. of opium was recovered almost at the same time when both of them were travelling together, has also been convicted by me today vide my separate judgment. The contradictions in the stand taken by the accused in his statement under Section 313 Cr.P.C. and the shaky type of evidence of the DWs clearly shows that there is no truth in the story of the accused that he was apprehended by the police as a suspect terrorist."

Learned counsel for the appellant firstly assailed the judgment and the order of the trial Court. It was submitted at the first instance that there are material discrepancies in the statement of PW3 Jai Singh and PW4 Inspector Bhoja Ram and for that reason, the appellant is entitled to acquittal. Upfolding his submissions, learned counsel for the appellant submitted that as per the statement of PW3 Jai Singh, Deputy Superintendent of Police Shri Bhoop Singh arrived at the spot at 4.00 p.m., whereas according to the Investigating Officer, the Deputy Superintendent of Police arrived at the spot at 2.00 p.m. According to Mr. Jattana, it is a discrepancy which is very fatal and goes to the root of the case. I am not inclined to subscribe to the argument raised by the learned counsel for the appellant. I cannot lose sight of the fact that the recovery in this case was effected on 4.11.1991 and the evidence of S/Shri Jai Singh and Bhoja Ram was recorded in the trial Court on 15.7.1995. After a lapse of four years, the human memory is bound to fade. Moreover, when Shri Jai Singh PW made statement before the trial Court, he had already retired from service. He might have forgotten about the exact time of arrival of the Deputy Superintendent of Police at the spot. There is a documentary evidence to suggest that the Deputy Superintendent of Police arrived at the spot and he verified investigation of the case. A perusal of the ruqa would show that it was dispatched from the spot at 3.00 p.m. This ruqa was prepared after completing formal investigation such as, after the arrest of the appellant; after serving a notice upon him; after preparation of the recovery memo etc., meaning thereby that, the Investigating OfficerShri Jai Singh must have spent sufficient time before recording the ruqa. It is specifically mentioned in the ruqa and also in the substantive statement of PW Jai Singh that the Deputy Superintendent of Police arrived at the spot and the case property was resealed by using the seal bearing inspection `HS''. If Shri Bhoop Singh, Deputy Superintendent of Police, had arrived at the spot at 4.00 p.m., as stated by Jai Singh PW3, the Investigating Officer, there could not have been a mention in the ruqa about the arrival of Deputy Superintendent of Police and the use of the seal by him. Moreover, this discrepancy is of a trifle nature. Every discrepancy is not fatal to the prosecution case. Only those discrepancies can be looked into by the law of Courts, which go to the root of the case. It was then submitted by the learned counsel for the appellant that there is a discrepancy with regard to number of seals used, which were put on the sample of the opium and the remaining bulk. Learned counsel submitted that according to PW3 Jai Singh, the Investigating Officer, he affixed five seals on the sample and the Deputy Superintendent of Police affixed two seals on the case property, i.e., on the sample and on the sealed cloth parcel, whereas according to PW4 Bhoja Ram, six seals in all were used on the sample and six seals on the remaining bulk. Again in the opinion of this Court, this discrepancy which has been highlighted by the learned counsel for the appellant is very trifle. A perusal of the report of the Director, Forensic Science Laboratory would show that on the sample there were seven seals. As stated by the Investigating OfficerJai Singh that five seals were of bearing inscription `PS'' and two seals were of bearing inscription `HS''.

The third submission which was raised by the learned counsel for the appellant is that the seal after use has not been handed over to the independent witnesses S/Shri Banwari and Bajrang and therefore, reasonable doubt has been created on this file. I do not subscribe to the arguments raised by the learned counsel for the appellant. This circumstance alone is not fatal to the prosecution. This Court has to see all the attending circumstances before giving the benefit of doubt to the appellant. The seal is supposed to be used by the Investigating Officer invariably as and when incriminating article is seized and recovered. If seal is allowed to be given to an independent witness and who is supposed to return the same after a few days, the official work could be disturbed. The object of handing over the seal to an independent witness is to ensure that the case property could not be tampered with till it reaches the office of the Chemical Examiner. If the case property has not been tampered with, no benefit of doubt can be granted to the appellant. The Director, Forensic Science Laboratory, in his report Exhibit PX has certified that the seals on the parcel were found intact and tallied with the specimen seals as per forwarding authority. It was then submitted by the learned counsel for the appellant that the case property had been kept in the Malkhana and it reached the office of Chemical Examiner very late. This argument is again devoid of any merit.

A reading of the report Ex. PX would show that the Investigating Officer did not lose any time in dispatching the sample to the office of the Chemical Examiner. The case property was dispatched vide forwarding Memo dated 17.11.1991 and was dispatched vide RC No. 367 dated 18.11.1991. In these circumstances, I do not find any delay in sending the sample to the office of the Chemical Examiner. Moreover, it has not been shown from the record that the sample was ever tampered with when it was in the custody of the police. It was then submitted by the learned counsel for the appellant that the conviction should not be based on the testimony of PW3 Jai Singh and PW4 Inspector Bhoja Ram, especially when Shri Banwari, so called independent witness, had not supported the allegations of the prosecution. Rather, this witness Banwari had appeared in defence as DW1, who has categorically deposed that nothing was recovered from the possession of the appellant. The argument of the learned counsel for the appellant may look alluring, but in my deeper scrutiny, I do not find merit in the same. DW1 Banwari admits that his thumb impressions were obtained on some papers. His conduct suggests that he did not make any complaint against the Investigating Officer or against the Deputy Superintendent of Police that his thumb impressions have been obtained by the police while sitting in the Police Station. With the lapse of time, appellant had an opportunity to win over such witnesses. I cannot lose sight of the fact that heavy recovery, i.e., 2 kgs. of opium has been recovered from the possession of the appellant, but it cannot be said that such a quantity of opium could be planted upon him by Shri Jai Singh, the Investigating Officer, from his personal resources.

So far as the testimony of PW3 Shri Jai Singh and PW4 Shri Bhoja Ram Inspector is concerned, their testimony as official witnesses has to be considered at par with that of nonofficial witnesses. The only rule is a rule of caution. Before acting upon the testimony of the official witnesses, the Court will see by applying the rule of caution that no injustice should be done to the accused. Both these witnesses have been crossexamined at length and no material discrepancies have come on the record from which this Court may be in a position to extend the benefit of doubt to the appellant. It has not been even remotely suggested that the Investigating Officer was inimical towards the appellant or that he was playing a stooge at the hands of some body else. How could he afford to plant opium of 2 kgs. upon the appellant in the presence of the Deputy Superintendent of Police ?

Lastly, it was argued by the learned counsel for the appellant that no opportunity has been granted to the appellant to crossexamine the formal witnesses. This argument also lacks merit. At no stage, it was ever claimed that he wanted to crossexamine the witnesses. The affidavits of the witnesses have been tendered in the presence of the accused. No prejudice is likely to be accused to him. The link evidence in this case is not missing.

No other point has been urged.

Resultantly, I do not see any merit in this appeal and the same is hereby dismissed.