Charna vs State of Punjab

Sarojnei Saksena, J.

Accusedappellant Charna has preferred this appeal against judgment dated November 24, 1986, wherein he is held guilty under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) by Shri N.C. Khichi, Additional Sessions Judge, Jalandhar, and is sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1 lac, in default of payment of fine with rigorous imprisonment for six months.

In a nutshell, the prosecution story is that on February 4, 1986, Head Constable Gulzar Singh in the company of Constables Ram Dass and Mohan Singh left Police on cycles. They reached village Dharamkot at about 12 noon. On suspicion he conducted raid at the house of the accused. Accused was present there. On interrogation accused disclosed that he had kept concealed and buried two bags of poppy husk in the Southern side of his residential room and would get the same recovered. This disclosure statement Exhibit PA was recorded by HC Gulzar Singh and was attested by Constables Mohan Singh and Ram Dass and was thumb marked by the accused. Thereafter accused took out those two bags of poppy husk Exhibits P1 and P2 from the pointed place of concealment. 250 grams of poppy husk was separated from each bag and thus sample parcels were prepared. Remaining poppy husk was also sealed separately with the seal impression of ''GS''. On the samples also this seal was affixed. After use the seal was handed over to Constable Mohan Singh. This contraband was seized vide seizure memo Exhibit PB. Ruqa Exhibit PC was sent to the Police Station. Consequently, FIR Exhibit PC/1 was recorded by SHO Gurpal Singh. Head Constable Gulzar Singh prepared rough site plan Exhibit PD, recorded statements of the witnesses and came back to the police station along with the contraband and the accused. The seized poppy husk and the separated sample packets were deposited with MHC Jasbir Singh on the same day. On February 6, 1986, samples were sent by MHC Jasbir Singh through Jagtar Singh to Assistant Chemical Examiner for analysis. On analysis, Assistant Chemical Examiner, Amritsar, opined that both the packets contained poppy heads. On these facts, accused was chargesheeted.

During trial, prosecution examined Constable Mohan Singh PW1 and Head Constable Gulzar Singh P.W.2. Affidavits of MHC Jasbir Singh and of Constable Jagtar Singh were tendered in evidence. Report of the Chemical Examiner Exhibit PE was also tendered in evidence.

Accused denied the guilt. His plea is that these bags of poppy husk were seized from somebody else and a false case was foisted upon him. He did not adduce any evidence in defence.

The learned trial Court, finding the prosecution evidence reliable and dependable, held that on February 4, 1986 accused was in possession of 80 kgs. of poppy husk without any licence and thus he was convicted and sentenced, as stated above. The first contention of learned appellant''s counsel is that the statement Exhibit PA recorded by Gulzar Singh PW2, purporting to be the disclosure statement of the accusedappellant, is not admissible in evidence because from the statements of these prosecution witnesses, it is evident that till that time the appellant was not an accused for committing any offence. He pointed out Mohan Singh PW1 has stated that at 12 noon they conducted raid at the house of Charna, who was sitting in his courtyard. Accused was interrogated by Head Constable Gulzar Singh, who made this disclosure statement that he had kept concealed and buried two bags of poppy husk, which he recovered immediately. He further commented that Gulzar Singh PW2 realising his mistake has gone ahead of the prosecution case and has stated that as soon as he conducted raid at the house of the accused who was found present there, he arrested him and then interrogated him. In the ruqa Exhibit PE this fact is not mentioned. Hence this part of his embellished statement cannot be relied on. Thus, resultantly this alleged disclosure statement is not admissible under Section 27 of the Evidence Act. To strengthen his argument, he has relied on Devi Ram Pat Ram v. The State, AIR 1962 Punjab 70.

Learned A.A.G. Punjab contended that to make this disclosure statement admissible in evidence, it is not imperative for the prosecution to prove that before recording such a statement, the accused was really arrested and arrest memo was drawn. It is sufficient if his movements are restricted. Head Constable Gulzar Singh has clearly stated that on suspicion, he conducted raid at the house of the accused, who was found present there. No doubt, he has stated that he arrested the accused. This fact is not mentioned in the ruqa Exhibit PE, but that will not make his statement unreliable, because arrest does not mean really handcuffing the accused. If he is surrounded by the police party, that by itself amounts to arrest because thereby he is taken in custody and is not allowed to move out.

The facts of Devi Ram Pat Ram''s case (supra) are distinguishable. In that case, accused Devi Ram first of all lodged a report at the police station on June 28, 1958, that when he was taking the money of Delhi Corporation to be deposited in the Zonal Office on cycle, on the way he was waylaid by three persons, who robbed him of his bag containing the money and inflicted injuries on him as well. On this report investigation was taken up on June 29, 1958. The petitioner made a statement that he gave that money to a covillager and in pursuance of this statement money along with the bag was recovered from the said covillager. Under these circumstances, it was held that when he made the said disclosure statement, he was neither in police custody nor was an accused of an offence. Thus, it was held that the alleged disclosure statement could not be proved against him when subsequently he was made accused for an offence under Section 409 of the Indian Penal Code.

The expression "accused of any offence" used in section 27 of the Evidence Act is descriptive of the person against whom evidence relating to information alleged to be given by him is made probable by this section. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability (see State of U.P. v. Demon, AIR 1960 SC 1125). Information received from a person accused of any offence cannot be read to mean that he must be an accused when he gives the information but would include a person if he became subsequently an accused person, at the time when that subsequently an accused person, at the time when that statement is sought to be received in evidence against him. Hence I find that when Gulzar Singh in the company of two constables raided the house of the accused, who was present there, and then on interrogation he made the disclosure statement Exhibit PA it cannot be said that this is not admissible under Section 27 of the Evidence Act.

The second contention of appellant''s counsel is that at the time of alleged search and seizure Gulzar Singh declined to join independent witnesses, though the seizure was made during the day in a village wherein hundreds of persons reside. This fact is admitted by both the prosecution witnesses. Learned counsel contended that on this count alone, the evidence of both these prosecution witnesses cannot be relied on to convict the appellant. Learned counsel appearing for the State contended that both these witnesses have testified that they tried to join respectables from the village but none was willing to join, Mohan Singh has further clarified that Swarana and Bikkar''s houses adjoin the house of the accused. They were not called because they were not present in their houses. Thus, according to him, it cannot be said that Gulzar Singh never made any attempt to join independent witnesses but he was helpless as none was willing to join.

From the statement of Mohan Singh PW1, it is evident that some respectables from the village were called but none came to join the investigation. The neighbours of the accused were not present in their houses. Constable Ram Dass was sent to call respectables but none came. Gulzar Singh PW2 has also stated so. He has admitted in crossexamination that after reaching the house of the accused, he did not try to join any person from the neighbouring houses but that will not cause any dent in his sworn testimony because he and Mohan Singh have stated that before making the search, Gulzar Singh sent Ram Dass to call certain respectables, but none came to join. The fact remains that there is no independent witness to corroborate these official witnesses on the point of alleged search and seizure. In such a situation, the safest course open to the Court is that it should carefully scrutinise the evidence of police witnesses and if their evidence is otherwise trustworthy and inspires confidence and they also do not appear to have any motive to falsely implicate the accused, there is no reason why they should not be believed. In this case, the defence raised by the appellant in his statement under Section 313, Code of Criminal Procedure, is that the contraband was seized from some other person and he has been falsely implicated in this case. This suggestion is given to the prosecution witnesses also but they have denied it. The accused has not even named the socalled other person. He has not adduced any evidence to this effect. Thus, it is apparent that the defence plea is not reliable.

A Division Bench of this Court has held in State of Punjab v. Ram Prakash, 1978 Chandigarh Law Reporter 104 that if at the time of search and seizure independent witnesses are not joined by raiding party; this omission by itself is not sufficient to attach a taint to evidence of police officials. I am further strengthened in holding this view by a Full Bench decision of this Court in State of Punjab v. Kulwant Singh, 1994(1) RCR 303 and by the Apex Court in State of Punjab v. Balbir Singh, 1994(1) RCR 736 . Keeping in mind the aforesaid caution, I myself have scanned the prosecution evidence very minutely. I find that the statements of these official witnesses are reliable. There is no oblique motive with them to implicate the accused falsely. Hence, I find that even this contention has no force.

The third contention is that Head Constable Gulzar Singh PW2 has conducted the raid, recorded the alleged disclosure statement and seized the contraband from the house of the accused. Thus, he is no better than a complainant. Even then, he conducted the investigation also in this case, sent the ruqa Exhibit PC to the Police Station and after the AIR Exhibit PC/1 was recorded, he prepared the site plan Exhibit PD and even recorded the statements of the prosecution witnesses under Section 161, Code of Criminal Procedure, as he admitted in the examinationinchief itself. Thus, the whole of the investigation is vitiated and on its basis the accused cannot be held guilty. He has relied on Gyan Chand v. State of Rajasthan, 1993 Cr. L.J. 3716; Darshan Kumar v. State of Rajasthan, 1992 Cr. L.J. (NOC) 28; Nathiya v. State of Rajasthan, 1992 Cr. L.J. 2342 and Bhagwan Singh v. State of Rajasthan, AIR 1976 SC 985. He also referred to a Single Bench decision of this Court rendered by K.K. Srivastava, J. in Criminal Appeal No. 7SB of 1987 decided on March 19, 1995, wherein relying on Gyan Chand''s and Darshan Kumar''s cases (supra), it was held that since the police official, who had seized the contraband, had conducted the investigation also, investigation was bad in law.

The same argument was advanced before me by the defence counsel in Criminal Appeal No. 815SB of 1986 (Piara v. State of Punjab) decided on 9.5.1995 : 1994(1) RecentCR 158 (P&H) . In that judgment I have repelled this contention and have held that under Sections 42(1), 52, 55 and 57 of the Act, Police Official was required to perform the duties enumerated therein and Section 67(c) of the Act empowered him to record statements of witnesses who are acquainted with the facts and circumstances of the case. Thus, I find that this contention has no force.

Fourthly, the report Exhibit PE is assailed on the basis of the judgment delivered in Mohd. Hanif Sheikh Abrahim v. State of Gujarat, 1995 (1) Crimes 274 on the count that since the Chemical Examiner has not given full and complete data disclosing the tests and experiments performed by him, the report loses its evidentiary value. This objection was also raised before me in the aforesaid Criminal Appeal No. 815SB of 1986. The report submitted in that case and report submitted in this case are identical in so far as the tests mentioned therein are concerned. In this case both the packets of the sample containing 250 grams of poppy husk each were sent to the laboratory on February 6, 1988. The report is dated March 4, 1986. The Expert has mentioned that microscopic test was done and morphine and maconic acid were found present in both the samples. In this case also, when this report was tendered in evidence, no objection was advanced and no prayer was made that Chemical Examiner should be examined in Court. Repelling the contentions made on this ground in the aforesaid appeal, I have held that the report has evidentiary value and conviction can be based on it.

Lastly, it is contended that link evidence cannot be relied on for convicting the accused. These witnesses were not examined in Court and their evidence was not put to the accused under Section 313 Code of Criminal Procedure. Even this contention is devoid of any substance. From the trial Court''s record, it is evident that the affidavits of Constable Jagtar Singh and that of MHC Jasbir Singh were tendered in evidence on November 21, 1986. Accused was present with his counsel when these affidavits were tendered in evidence. Learned defence counsel declined to crossexamine both these witnesses. Therefore, it was ordered that their evidence will be read as that of PW3 and PW4. Thereafter prosecution closed its evidence. Thus, at that point of time accused did not challenge the contents of the affidavits of these two witnesses. In question No. 5, accused is asked that these samples were sent to the Chemical Examiner and report Exhibit PE was received. His reply was that he does not know, nothing was recovered from him. During trial, it was not objected that the samples prepared on the spot, on which seal of Gulzar Singh was affixed, were tampered with at any point of time before they reached the laboratory of Assistant Chemical Examiner. Head Constable Jasbir Singh has deposed in his affidavit that on February 4, 1986, both these samples, duly sealed with the seal of letters ''GS'' were handed over to him by Head Constable Gulzar Singh. He deposited them in the Malkana. On February 6, 1986, he handed over both these parcels to Constable Jagtar Singh, to be submitted in the office of Assistant Chemical Examiner, Amritsar. Jagtar Singh Constable has deposed that on February 6, 1986, both these parcels, duly sealed, were handed over to him by MHC Jasbir Singh. He got them registered and numbered from the office of S.S.P. Jalandhar and on February 7, 1985, he deposited the sampleparcels in the office of Assistant Chemical Examiner, Amritsar, and obtained receipt, which he handed over to MHC. Both these deponents have stated that the seals on these parcels were not tampered with. From the report Exhibit PE, it is evident that the seal impression was also sent alongwith the covering letter. The Assistant Chemical Examiner has also reported that seals on both the exhibits were intact and agreed with the specimen seal sent. Hence, there is no reason not to rely on this link evidence. The accused never challenged this evidence in the trial Court.

No other point is pressed before me.

Finding the appeal meritless, it is hereby dismissed. Conviction and sentence of the accusedappellant is confirmed.