Chander Sain vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment dated 23.1.1999 and order dated 25.1.1999 passed by Addl. Sessions Judge, Faridabad, who convicted the appellant under Sections 18, 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ''the Act'') and sentenced him to undergo R.I. for a period of ten years and to pay a fine of Rs. 1 lac on each count. In default of payment of fine, the appellant was directed to further undergo R.I. for two years on each count. However, the trial court held that all the sentences shall run concurrently.

The brief facts of the case are that on 3.6.1998, PW 4 ASI/SHO Rajbir alongwith other police officials was present on Ram Dharam Kanta in connection with general patrolling when he received asecret information that Chander Sain son of Bulbul, caste Sunar, resident of 1D/120, NIT, Faridabad is in the habit of selling opium, smack and charas. The secret information was also that the accused had earlier been apprehended in a number of cases of opium and in case raid is conducted at his house, he can be apprehended while selling opium, smack and charas. On this, ruqa Ex.PB was sent to the police station for the registration of case, on the basis of which formal FIR Ex.PB/1 was recorded. The house of the accused was raided and he was found sitting on a cot in front of his house. On his personal search, he was found in possession of charas, opium and smack. He was also found in possession of a small weighing scale. On weighment, the weight of charas was found 70 grams, of smack 2 grams and opium 700 grams. A sample of 5 grams was separated from the opium. A sample of 10 grams was separated from the charas and a sample of 1 gram was separated from the smack. The samples and the remaining case property were sealed separately with the seal bearing inscription ''RS'' which after use was handed over to HC Ramesh Kumar. The ASP also affixed his seals on the samples and the case property. The samples and the case property along with weighing scales were taken into police possession vide recovery memo Ex.PA. Rough site plan Ex.PE of the place of recovery was also prepared. The samples were sent to the office of Chemical Examiner, who vide report Ex.PC declared the contents of the samples as charas, opium and smack. On completion of the investigation of the case, accused was challaned in the Court of Sessions, which supplied the copies of documents to the accused as per law.

Vide orders dated 9.9.1998, the trial Court framed charges against the accused under Sections 18, 20 and 21 of the Act. The charges were read over and explained to the accused to which the pleaded not guilty and claimed a trial.

In order to prove the charges, the prosecution examined HC Rakesh Kumar PW1, who was a witness of recovery. MHC Ram Kishan appeared as PW2 and deposed that on receipt of ruqa Ex.PB he recorded formal FIR Ex.PB/1. PW 3 is ASP Sandeep Khirwar. He was an IPS Officer and was posted at Faridabad at the relevant time. He also supported the recovery of charas, opium and smack from the possession of the appellant and also stated that under his direction and supervision the person of the appellant was searched. The Investigating Officer, ASI Rajbir Singh appeared as PW 4 and he supported the case of the prosecution. Finally, the report of the Chemical Examiner was tendered into evidence as Ex.PC.

On the closure of the evidence of the prosecution the 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 him. Accused denied those circumstances and stated that he has been falsely implicated in this case. When called upon to enter into his defence, accused did not lead any evidence and closed the case.

The learned trial court for the reasons given in paras No. 7 to 12 of the judgment convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence, the present appeal.

I have heard Mr. T.P.S. Mann, Advocate on behalf of the appellant, Mr. J.S. Ahlawat, Advocate, on behalf of the State of Haryana and with their assistance I have gone through the record of this case.

Before I proceed further to deal with the submissions raised by the learned counsel for the appellant, it will be useful for me to incorporate paras No. 7 to 12 of the impugned judgment which are as under :

"7. PW 4 ASI Rajbir Singh, Investigating Officer, of the case stated that on 3.6.1998 he was posted at Police Station Kotwali. He alongwith Ramesh Kumar Head Constable (PW1), Bahal Singh, Head Constable, Pawan Kumar Head Constable, Nirmal Singh and driver Ram Phal was present at Ram Dharam Kanta No. 1 in connection with general patrolling and excise checking in Government Jeep where he received secret information that Chander Sain was selling opium, charas and smack in his house sitting on a cot and in case raid is conducted he can be apprehended on the spot. On this information, V.T. message was sent and raiding party was conducted and he along with staff reached the house of the accused where he was found present sitting on a cot in front of his house. On the same moment, PW3 Sh. Sandeep Khirwar, ASP Faridabad also reached there. On inquiry, the accused disclosed his name, father''s name etc. Then he gave notice Ex.PD under Section 50 of the Act to the effect that some contraband item was in his possession and search was to be conducted. He could be searched before Gazetted Officer or a Magistrate, on which the accused agreed to be searched before the ASP and then signed the consent memo. Search was conducted at the instance of ASP and on search, five packets of Salfa (Charas) wrapped in a polythene paper were recovered from his front pocket of shirt. One packet containing smack was found from the right pocket of the shirt and one pocket wrapped in polythene paper containing opium was recovered from the foot of the accused. On weighment opium was found 700 grams and Charas was found 70 grams and smack was found 2 grams. Samples were taken. The sample and remaining were sealed separately with his seal RS and the seal of ASP. The sample and remaining Ex.P1 to Ex.P3 were taken into police custody vide recovery memo Ex.PA and the seal after use was handed over to PW 1 Head Constable Ramesh Kumar. He also proved on record notice Ex.PD, ruqa Ex.PB, formal FIR Ex.PB/1 and brought site plan Ex.PE. He further stated that statements of witnesses were recorded and the case property was deposited with MHC with seals intact. He also proved the report under Section 173 of Cr.P.C. prepared under the signatures of Krishan Kumar SISHO. He also identified the accused present in the court. In his crossexamination, he stated that there are houses near the place of occurrence. It look half hour in completion of all formalities. Many persons also passed thereby. He denied if no notice under Section 50 of the Act was served upon the accused or if nothing was recovered from the accused or if he has deposed falsely.

PW4 has also been fully and consistently corroborated by the statement of PW1 Ramesh Kumar Head Constable and PW3 Sh. Sandeep Khirwar ASP. PW1 Head Constable Ramesh Kumar also proved on record the recovery memo Ex.PA and the case property Ex.P1 Opium, Ex.P2 Smack and Ex.P3 Charas. Besides, he also stated that seals after use were handed over to him. Similarly, in his crossexamination, PW1 stated that the house of accused is situated in a residential colony and threefour persons had collected there. It took their about 2025 minutes in the completion of the investigation. He denied if he was not present there or if nothing was recovered from the possession of accused or if he has deposed falsely. PW3 in his crossexamination also stated that there were many residential houses near the house of the accused but he denied if nothing was recovered from the possession of accused or if no notice under Section 50 of the Act was given to the accused or if he has deposed falsely.

PW2 Ram Kishan MHC proved on record FIR Ex.PB/2 and his endorsement

Ex.PB/2 on the ruqa Ex.PB.

The learned Public Prosecutor has also referred to the above allegations and above discussed evidence. He also referred to FSL report Ex.PC.

On the other hand, learned defence counsel raised two fold arguments firstly that according to PW1 police party remained on the spot for about 25 minutes while according to Investigating Officer, it took their about one and half hours. The second point argued is that the accused was arrested allegedly in front of his house, which is surrounded by other residential houses and even threefour persons had collected there or had passed thereby but no independent witness was joined. A strict punishment is provided under the Act. He placed reliance on Makhan Ram v. State of Punjab, 1995(1) Criminal Court Judgments P&H 668. In that case poppy husk was recovered from the house of accused as a result of disclosure statement made before police in the presence of witnesses. No attempt was made to join public witness from near the house of accused at the time of recovery. Witness to disclosure statement was not examined. Testimonies of official witnesses were not relied upon and the accused was acquitted. He also placed reliance on Chander Pal v. State of Haryana, 1995(2) CRC P&H 254. In that case recovery was of 2 kgs. of opium. No independent witness was joined although search was conducted in thickly populated area. The contention of ASI was that he had asked some persons to witness the search but they declined. ASI did not enter their names in case diary but noted the names on a piece of paper attached with case diary. Statement of ASI was not believed. Had it been true, he would have recorded their names in case diary. Accused was acquitted.

To the contrary, the learned Public Prosecutor has argued that as to the discrepancy regarding the time of stay at the house of accused he argued that it is ignorable. Moreover, such minor discrepancies are bound to come in the statements of truthful witnesses. As regards nonjoining of independent witnesses, he argued that recovery has been witnessed by an IPS officer, who was posted as Additional S.P., Faridabad and atleast there should be no reason to disbelieve his statement. In my view the discrepancy pointed out is ignorable and there is no reason for me to disbelieve at least statement of an IPS Officer of the rank of Additional SP in whose presence the recovery was effected. Hence, I determine this point in the positive."

Mr. Mann, learned counsel for the appellant submitted at the first instance that it is the admitted case of prosecution that the Investigating Officer Rajbir received secret information against the appellant and in these circumstances it was incumbent upon him to associate an independent witness before conducting a raid upon the house of the appellant. He has not associated any independent witness and, therefore, the recovery from the possession of the appellant is doubtful. On the contrary, the learned counsel for the respondent submits that on receipt of secret information, which was to the effect that appellant was present in his house, it was obligatory on the part of the Investigating Officer to record the information in writing and it has been actually done in the present case when the Investigating Officer sent ruqa Ex.PB to the police station. He also despatched wireless message to the higher authorities and on receipt of the same, Mr. Sandeep Khirwar, an IPS Officer appeared at the spot. The counsel for the respondent also submitted that the search has been conducted in the presence of an IPS officer, whose testimony is as credible as that of an independent witness and in these circumstances the search, seizure and recovery of the opium, smack and charas is not bad. I agree with the submissions made by the learned counsel for the respondent. The information was to the effect that appellant was present at his house and in these circumstances the information was required to be reduced into writing which has been done in this case. Special report was supposed to be sent to the higher authorities and that too has been given through the wireless message. There was hardly any time for the Investigating Officer to associate an independent witness. The moment he goes to the village, he finds his senior officer PW3 Sandeep Khirwar, ASP at the spot. In these circumstances the only compliance which was sought to be made by the Investigating Officer was under Section 50 of the Act which has been done in this case as I will tell in the subsequent portion of this judgment. At this juncture, I dismiss the first objection raised by the learned counsel for the appellant that independent witness has not been associated and, therefore, the recovery is bad.

The second submissions raised by the learned counsel for the appellant is that Section 50 of the Act has not been complied with. Unfolding his submission Mr. Mann submitted that ASP Sandeep Khirwar was already present in front of the house of the appellant and before the arrival of the raiding party. In fact, he became the member of the raiding party and the consent statement which has been recorded in this case is not admissible because the Gazetted Officer has not been called in pursuance of the consent statement allegedly made by the appellant. I do not subscribe to the argument raised by the learned counsel for the appellant. As I have already stated above it was a case of secret information. In these circumstances the first anxiety of the Investigating Office would be to catch the culprit. He recorded the ruqa and it was despatched to the police station for the registration of case. Moreover, he informs his superior officer. The superior officer can be present at a short distance from the house of the accused and if he arrives earlier to the raiding party that does not mean that the Investigating Officer should say to the officer to go at some distance so that he may be able to record the statement of the accused. This is not the intention of Section 50. The object of this section is that search should be taken either in the presence of a Gazetted Officer or it should be taken in the presence of a Magistrate. This section, in fact, has been introduced in the Act as a guardian feature for the accused. In the present case, the moment police party reaches in front of the house of the accused, he was apprehended. Shri Sandeep Khirwar PW 3 who is an IPS Officer and in whose presence the search has been conducted, cannot be held to be a liar unless there are certain circumstances appearing on the record to show that he was conniving with the Investigating Officer. The record of this case shows that the consent statement Ex.PD was recorded. It was made clear to the accused as to whether he wanted to give the search in the presence of a Magistrate or a Gazetted Officer. The accused stated before the Investigating Officer that he wanted to give the search in the presence of some senior police officer. Mr. Sandeep Khirwar PW 3 was already present at the spot as he was informed about the raid under Section 42 of the Act and, therefore, in the capacity of a supervisory officer if he reaches at the spot, no fault can be found in the mode of investigation. The search in this case has been conducted in the presence of Mr. Sandeep Khirwar, IPS and HC Ramesh Kumar. Both these witnesses have unanimously deposed that from the possession of the appellant 700 grams opium, 70 grams charas and 2 grams smack was recovered and the appellant was not in a position to show any licence or permit for the possession of the narcotic drugs.

So far as the evidence of all the prosecution witnesses is concerned, I have not been able to find out any material discrepancy from which I may be able to say that a reasonable doubt has been created by the defence in the prosecution story.

Resultantly, I do not see any merit in this appeal and dismiss the same.