Chhinda alias Surinder Singh vs State of Haryana

A.S. Nehra, J.

This appeal is directed against the judgment and order dated October 6, 1989, passed by the Additional Sessions Judge, Sirsa, by which Chhinda alia Surinder Singh, appellant, has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/ and in default of payment of fine, to further undergo rigorous imprisonment for two years.

Briefly stated, the facts of the prosecution case as unfolded by S.I. Prem Singh, Investigating Officer (P.W. 4) are as under:

On November 27, 1988, SI Prem Singh (P.W.4) along with ASI Dharam Singh and other police officials was present at Bus Stand, Mandi Dabwali, in connection with patrolling and crime detection, when they saw the accused carrying a bag in his right hand coming from the side of bus stand. On seeing the police party, the accused turned back but he was apprehended on suspicion. The Investigating Officer asked the accused whether he wanted to be searched then and there or before any Gazetted Officer or Illaqa Magistrate to which he replied that he would be satisfied if his search was to be conducted by the police. A writing to this effect prepared by the Investigating Officer was signed by the accused. The Investigating Officer also joined PWs Babu Ram and Harbans Singh in the investigation. After offering personal search by him, the Investigating Officer searched the person of the accused which led to the recovery of opium weighing about 400 grams wrapped in a wax paper, from the bag which the accused was carrying with him 5 grams of opium was separated as a sample and the sample and the residue opium were separately sealed with the seal of ''PS'' and the case property was taken into possession vide recovery memo, Ex.PC, which was attested by the witnesses and the seal after use was handed over to PW Harbans Singh son of Labh Singh (PW.3). Thereafter, on the basis of ruqa, Ex.PF, sent by the Investigating Officer, to the Police Station City, Dabwali, formal FIR, Ex. PF/1, was recorded by MHC Charan Singh. The Investigating Officer prepared rough site plan, Ex.PG, recorded statements of the witnesses, arrested the accused and on return to the police station, deposited the case property with the MHC with seals intact.

The sample of opium in a sealed parcel was sent to the Forensic Science Laboratory, Madhuban (Karnal) and report, Ex.PH, of the Assistant Chemical Examiner, after analysis of the sample, revealed that the same was that of opium. After completion of the investigation, the accused was sent to face trial in the court.

To prove its case, the prosecution examined PW1 MHC Charan Singh and PW2 Constable Inder Singh, who are formal witnesses and who tendered their affidavits, Ex.PA and PB respectively, in evidence. It also examined PW3 Harbans Singh, an independent witness to the recovery, who fully supported the prosecution case on all material points, besides PW4 SI Prem Singh, the Investigating Officer, who fully corroborated the version of the prosecution as given in the earlier part of the judgment. The Investigating Officer supported the prosecution case with regard to the various aspects of the investigation conducted by him and also on material points. The prosecution closed its evidence after tendering in evidence report, EX.PH, of the Chemical Examiner.

When examined under Section 313, Criminal procedure Code, the appellant denied all the prosecution allegations appearing against him in evidence and pleaded false implication. He stated that he was travelling in a bus when the police had apprehended him and planted a false case on him. He, however, did not lead any evidence in defence.

Mr. P.C. Chaudhary, Advocate, learned counsel for the appellant, contended that the name of Harbans Singh, PW had been changed in ruqa, Ex.PF. I agree that the name of Harbans Singh was cut or corrected but it has been mentioned that Babu Lal, President, Rickshaw Union and Harbans Singh, witnesses, were present at the time of recovery of opium from the accused. However, the name of Harbans Singh also finds mention as a witness in the copy of the FIR Ex.PF/1, recovery memo, Ex.PC, and memo, Ex.PE, regarding personal search of the accused. I do not find any force in the contention of the learned counsel that the name of Harbans Singh had been changed in place of Baldev Singh only because Harbans Singh was to support the case of the prosecution. Harbans Singh (PW3) also deposed that he was present at the bus stand, Mandi Dabwali where the police party was present and the Thanedar had asked the accused whether he wanted to be searched before any Gazetted Officer or Magistrate. Therefore, I do not agree with the learned counsel for the appellant that the name of Harbans Singh (PW3) had been added later on.

Learned counsel for the appellant also pointed out certain discrepancies in the statement of witnesses. PW3 Harbans Singh stated that he was sitting in a shop from where the police had called him whereas the Investigating Officer stated that Harbans Singh, PW was taking tea in a nearby shop. PW Harnbans Singh further stated that the Constable who took Ruqa to the Police station might have come back within 10/15 minutes meaning thereby he was not present when he constable had come back. He further stated that the entire writing work was completed in about one hour meaning thereby that the Constable who had taken ruqa to the police station might have come back at about 1 P.M. whereas I.O. stated that the said Constable had come back at 1.30 P.M. If the Constable had come back at 1.00 P.M. and the I.O. states that the Constable had come back at about 1.30 P.M., I do not find that the witnesses are discrepant as to when the constable had returned to the spot.

PW Harbans Singh further stated that the entire writing work was done by the I.O. while sitting in front of the Bus Stand on the ground whereas the I.O. deposed that he had completed the entire writing work while sitting on the gate which is on the front side of the Police Station City, Dabwali and the writing work was completed within 22 hours. No suggestion has been put to I.O. as to where the writing work was completed by him i.e. while sitting on the ground or on the Bench or on any other thing.

The discrepancies pointed out by the learned counsel for the appellant are natural and such minor discrepancies are bound to occur after a lapse of considerable period. PW Harbans Singh is an independent witness and no suggestion has been made to him as to why he is deposing against the accused. Only one suggestion was made to him that he used to join whenever the police called him and he admitted the same. I am not impressed with the argument of the learned counsel for the appellant that no reliance can be placed on the testimony of Harbans Singh. I am of the view that the statement of Harbans Singh is truthful in the sense that he admitted that he used to join whenever the police asked him. Keeping in view the circumstances of the case, I am of the considered view that the statements of both the witnesses are trustworthy and reliable.

Learned counsel for the appellant further contended that the affidavit Ex.PA of Charan Singh, MHC and affidavit Ex.PB of Inder Singh, Constable are defective inasmuch as none of these officials stated in the verification as to which part of their affidavit was based on personal knowledge and which part thereof was based on information and belief. In support of his argument, he relied upon D.B. judgment of this Court reported as State of Punjab v. Nachhatro, 1994(2) Recent Criminal Reports 442. In the verification of affidavit of Charan Singh, Ex.PA, it is mentioned that paras 1, 2, 3 and 5 are correct and true to the best of his knowledge and para No. 4 is correct to his belief and that nothing has been concealed therein. Constable Inder Singh stated in his affidavit, Ex.PB, that on 30.11.1988 Charan Singh, MHC took out a parcel and handed over the same to him for delivering in Forensic Science Laboratory, Madhuban vide R.C. No. 498 dated 30.11.1988. He reached the office of E.T.O., Sirsa same day, got the docket issued therefrom and on next day i.e. 1.12.1988, deposited the parcel containing sample of poppyhusk sealed with seal bearing inscription ''PS'' intact in Forensic Science Laboratory, Madhuban and handed over its receipt to Charan Singh, MHC. He further stated in his affidavit that as long as the aforesaid parcel of poppyhusk remained in his possession, he did not tamper with the same nor allowed anybody to do so. In the verification of his affidavit EXLPB, Inder Singh stated that paras 1 to 4 were correct and true according to his knowledge and nothing had been concealed therein.

Inder Singh, Constable took form M29, Ex.PH vide R.C.No. 498 dated 30.11.1988 and reached the office of E.T.O. Sirsa on the same day where he got the docket issued and deposited the parcel containing the sample with seals intact in F.S.L., Madhuban on 1.12.1988, which is clear from the report of the Chemical Examiner, Ex.PH, that the sample was received on 1.12.1988 through Constable Inder Singh No. 402. In this form, number of F.I.R. and name of the accused is clearly mentioned.

Mr. S.S. Pattar, Assistant Advocate General, Haryana contended that the link evidence in this case was complete. The verification on the affidavit of Charan Singh, MHC and Inder Singh, Constable was not defective and the judgment relied upon by the learned counsel for the appellant State of Punjab v. Nachhattaro (supra) was not applicable to the facts of the present case. Both the officials stated in the verification of their affidavits that the facts mentioned in their affidavits were based on their personal knowledge. He contended that the link evidence was complete because Inder Singh submitted form M29 before the E.T.O. which was received by E.T.O. on 30.11.1988 and he issued the docket. Inder Singh, Constable on 1.12.1988 reached F.S.L. Madhuban and deposited the parcel containing the sample, which is clear from Ex.PH.

In view of the above discussion, there is no merit in the appeal and the same is dismissed.