Bhola Singh vs State of Haryana

R.L. Anand, J.

Shri Bhola Singh has filed the present criminal appeal and has been directed against the judgment and order dated 4.6.1996 passed by the court of Additional Sessions Judge, Hisar who convicted the appellant under section 15 of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac. In default of payment of fine, the appellant was sentenced to undergo rigorous imprisonment for a period of one year.

The brief facts of the case are that on 7.1.1995, ASI Subhash Chander (PW.3) was posted at Police Post Jhumpa. He along with Head Constable Om Parmash (PW.2) and other police officials was present on the path leading from village Solawali Dhani to village Dhanodhi and he saw the accused coming from the side of Rajasthan while carrying a gunny bag on his head and suspecting him to be carrying contraband, a notice Ex. PC was served upon him. As per the said notice, the accused was informed that he could, if he so desired, be searched in the presence of a Gazetted Officer or Magistrate. Accused stated vide Ex. PC that the search may be taken in the presence of some Gazetted Officer or a Magistrate as a result of which DSP Lal Chand was summoned at the spot through Constable Mahinder Singh. In his presence search of the bag was taken and poppy husk was found. It came to 10 kilograms. 100 grams chura post was separately sealed with the seal of the Investigating Officer bearing inscription SC and the seal after use was handed over to Head Constable Om Parkash. The DSP also sealed the case property with his own seal bearing inscription LC. The case property was taken into possession vide recovery memo Ex. PD. The accused could not produce any licence or permit for possession of the poppy husk as a result of which ruqa Ex. PA to the Police Station on the basis of which formal FIR Ex. PA/1 was recorded. Investigating Officer also prepared rough site plan Ex. PE of the place of arrest and he served grounds of arrest Ex. PF on the accused. On return to the Police Station he submitted his report Ex. PD to the SHO besides producing the accused and case property before him and who had verified the investigation and affixed his own seal on the case property by making an endorsement. The sample of the poppy husk was sent to the office of the Chemical Examiner who certified that it contained chura of the poppy heads. On completion of the formalities of the case, the appellant was challaned in the court of Area Magistrate who supplied copies of the documents to the accused and vide commitment order dated 17.4.1995 committed the accused to the court of Sessions. Vide order dated 16.5.1995, the appellant was chargesheeted under section 15 of the NDPS Act on the allegations that on 7.1.1995 in the area of village Dhani Shilawali he was found in possession of 10 kgs. of chura post without any permit or licence and thereby committed an offence under section 15 of the NDPS Act. The charge was read over and explained to the accused to which he pleaded not guilty and claimed a trial.

In order to prove the charges, prosecution examined Shri Baljeet Singh, SI/SHO, Police Station Siwani who deposed that on receipt of ruqqa Ex. PA he recorded formal FIR Ex. PA/1 on 7.1.1995. On the same day, ASI Subhash Chander had produced before him the accused, the case property, sample and his report Ex. PB. Further it has been testified by Baljeet Singh that he verified the investigation from the accused and witnesses and made his endorsement Ex. PB/1 on Ex. PB. He also affixed his seal on the sample packet and the remaining chura post with seal bearing inscription BS. Head Constable Om Parkash appeared as PW.2. He corroborated recovery from the possession of the appellant. ASI Subhash Chander appeared as PW.3 and he also supported the allegations of the prosecution which has been incorporated in the earlier portion of this judgment. Shri Lal Chand, DSP appeared as PW.4 and stated that under his direction the search of the bag was taken by Subhash Chander ASI and poppy husk weighing 10 kilograms was recovered. He further stated that he also sealed the case property with his own seal, he retained his seal LC whereas seal SC was handed over to HC Om Parkash. The affidavit of HC Vijay Singh was placed on record as Ex. PH and affidavit of Constable Bhoop Singh was placed on record as Ex. PJ in the presence of these witnesses but the learned defence counsel did not want to crossexamine them on the contents of the affidavits. Finally report of the Director, Forensic Science Laboratory Ex. PG was also tendered in evidence.

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. Accused denied those circumstances and stated that he has been falsely implicated and nothing has been recovered from him. At the first instance the accused stated that he would like to lead defence but finally he stated before the Trial Court that he is not interested of leading the defence.

Learned trial court ultimately relied upon the story of the prosecution and rejected the defence version. In this manner, the appellant was convicted and sentenced on 4.6.1996. Aggrieved by his conviction and sentence, the present appeal.

The judgment of the Trial Court has also been gone through in extenso with the help rendered by the learned counsel for the parties and I have not been able to formulate an opinion which goes against the opinion of the Trial Court. Though an effort has been made by Shri T.S. Sangha, learned counsel appearing on behalf of the appellant to convince this court that recovery in this case is false. Of course, the reasons advanced by the Trial Court have been adopted by the learned DAG Haryana when he stated to this court for the maintenance of the conviction. Still it is my duty to deal with the arguments which were raised by the learned counsel for the appellant and his first argument was that Section 50 of the NDPS Act has been flouted because on the notice Ex. PC there is no attestation of any independent witness. It is only attested by Head Constable Sadhu Ram and Head Constable Om Parkash. The argument is not sound. We cannot take as a right that in the police party always there should be association of independent witnesses. Also we cannot presume against the prosecution that the witnesses are always handy with the Investigating Officer. There can be circumstances that when the police party patrols the area for hours together and still no incriminating article may be seized or no vagabond may be arrested. In these situations, always association of an independent witnesses in the police party will be nothing but a sheer wastage of time on the part of such an independent witness. Ours is a poor society. How many of us would like to waste our time in roaming about without any object with the police party ? Anyone roaming about with the police party without any purpose are given the impression that such a person is a tout or stooge of the police. No body would like to have this stigma unnecessarily. The point in the present case is that whether the conduct of Shri Subhash Chander should or should not be believed. A reading of Ex. PC would show that the accused gave statement before the Investigating Officer that he wanted to give search of the bag in the presence of a Gazetted Officer or Magistrate. Section 50 of the NDPS Act has been introduced in the Act with double object, primarily for the benefit of the accused and there is no bar that prosecution can also take benefit of Section 50 of the Act if it is able to establish on record that the search has taken in accordance with law. Why Shri Lal Chand DSP should oblige ASI Subhash Chander without any rhyme or reason ? What is the intention on the part of ASI Subhash Chander or Lal Chand DSP so as to implicate the present appellant with less recovery of 10 kilograms of chura post ? Learned counsel for the appellant has not been able to point out any circumstance why these two police officials should depose against the appellant. Also there is nothing to suggest on the record that ASI Subhash Chander has manoeuvred the recovery allegedly at the instance of some body. Always to infer readily that a particular case against the accused is a sheer plantation would be going to jump in favour of the accused and against the prosecution. If the accused had a right to establish on record "reasonable doubt" after going through the evidence of the prosecution, the prosecution has also right to ask the court that it has been able to prove the charge beyond any reasonable doubt by leading cogent and reliance and satisfactory evidence. I cannot brand Lal Chand DSP, ASI Subhash Chander and other police officials as liars because they wear uniform of the police department. DSP is an officer with responsibility. A Gazetted Officer is also an officer who bears the responsibility of the Government. Legislature has purposely mentioned in Section 50 Magistrate or a Gazetted Officer. In the case of Raghbir Singh v. State of Haryana, 1999(1) RCR 573 the Hon''ble Supreme Court while interpreting the object of Section 50 has laid down that search should be in the presence of a Superior Officer so that no prejudice is likely to be caused to the disadvantage of the accused. Even the Hon''ble Supreme Court in Roop Singh v. State of Punjab, 1996(1) Recent C.R. 146 had stated that it will depend in case to case whether the association of the independent witness is always required or not. No hard and fast rule can be laid down as to the joining or nonjoining of the independent witnesses. It cannot be laid down as a uniform rule if the statement of the accused has not been recorded in the presence of an independent witness, it will always be fatal. In this view of the matter, I am inclined to repel the first argument of the learned counsel for the appellant when he attacked noncompliance of Section 50 of the NDPS Act.

It was then argued by the learned counsel for the appellant that the seal after use was not handed over to the independent witness. Again this argument is totally devoid of any merit. Before I finally repel this argument, I would like to discuss what is the object of affixation of seal and its retention. It is an obligation on the prosecution to prove on the record that the case property remains intact right from the stage of its seizure upto the stage it reached office of the Chemical Examiner. If the seals are found intact and those have not been tampered with and the prosecution was not negligent of handling the case property then there is no use of the argument that the seal has not been entrusted to the independent witness. In the present case three persons had sealed the case property including the sample i.e. Subhash Chander ASI, Shri Lal Chand DSP and Shri Baljeet Singh. A reading of Ex. PG would show that it has been certified that the sample had seals of three persons. Though the Legislature has stated that the case property should be produced before Senior Officer of the Police Station who should reseal the case property so as to avoid chances of false implication and changing of the case property. The witnesses produced by the prosecution have deposed that the case property was produced with seals intact and it is also certified in the affidavit of the witnesses. The office of the Director, Forensic Science Laboratory had also stated that when the sample reached in its office, there was no wrong with it so far the affixation of the seals is concerned. The seals tallied with the specimen seal. In this view of the matter, no concession can be given to the learned counsel for the appellant regarding his argument about the seal affair.

The last argument which was raised by the learned counsel for the appellant is that conviction cannot be based on the testimony of police officials. The argument is not acceptable to the court. Rather the argument is against the settled principle of law enunciated by the Hon''ble Supreme Court in State of Punjab v. Balbir Singh, 1994(1) RCR 736 and also against the judgment of the Hon''ble Division Bench in Roop Singh v. State of Punjab (supra).

No other point has been urged before me.

Resultantly, I dismiss this appeal.