Jagir Singh vs State of Haryana

Dr. Sarojnei Saksena, J.

Accusedpetitioner has filed this criminal revision assailing his conviction under Section 9 of the Opium Act, whereby he is sentenced to undergo rigorous imprisonment for six months with a fine of Rs. 200/; in default to further undergo rigorous imprisonment for one month.

Adumbrated facts of the case are that on 30.12.1982 Gian Singh Assistant Sub Inspector accompanied by Hari Singh, Head Constable, Avtar Singh, Balwant Singh and Pirthi Singh constables was going towards village Rohti. They saw accused coming from the opposite side. On seeing the police party as he sat down on the pretext of urination, this aroused suspicion, resultantly he was apprehended. On personal search being taken, it was found that he was carrying one kg. of opium in a bag. This opium was seized. 10 gram of opium was separated as sample. The sample and the remainder were duly sealed with seals bearing letters `GS''. After use seal was handed over to constable Avtar Singh. Usual investigation was completed on the spot; ruqa was sent; FIR was registered. After completing the investigation, the sealed property was kept in police Malkhana which was sent for Chemical examination in due course of time. The expert opined that sample was of opium. On these facts, accused was chargesheeted.

Prosecution examined PW1 Avtar Singh Head Constable, PW2 Gian Singh and also tendered in evidence affidavits Exhibits PD and PE of Pawan Kumar and Avtar Singh Constables and report of the Chemical Examiner Exhibit PF. Accused denied the guilt and pleaded false implication due to political rivalry. Accused examined two witnesses also to prove his plea.

The trial court scanned the evidence minutely and finding the prosecution evidence cogent and reliable holding the accused guilty of the said offence sentenced him accordingly. Accused preferred appeal which was dismissed.

Petitioner''s learned counsel argued with all vehemence at his command that on 30.12.1982 one kg of opium is alleged to have been recovered from the possession of the accused. At that time no independent witness was joined though Head Constable Avtar Singh has admitted that during investigation Gurbachan Singh and Gurmukh Singh arrived at the spot, by they were not joined during investigation. This fact is denied by Assistant Sub Inspector Gian Singh. Thus, the statements of both these witnesses are contradictory on this point. Since the independent witnesses were available, but they were not joined, it causes a material dent in the prosecution case and on this count alone, testimony of these witnesses should not have been relied on by the courts below. To support this contention, he has relied on State of Punjab v. Piara Singh, 1992(1) R.C.R. 615 .

His second contention is that the seizure was made on 30.12.1982; sample was sent to the Chemical Examiner on 10.1.1983. This inordinate delay of 10 days in sending the sample for analysis is not explained by the prosecution. According to him on this count also, the accused deserves acquittal. To substantiate this plea, he has relied on Rajiv Kumar v. State, 1992(3) R.C.R. 512 and Narain v. State of Haryana, 1997(1) R.C.R. 414 .

His third contention is that the affidavit, Exhibit PE, cannot be relied on as it is not sworn in as per the provisions of law. To point out this defect in the affidavit, he has relied on Gurnam Singh v. The State of Punjab, 1992(1) R.C.R. 39 . His last contention is that the accusedpetitioner has already undergone jail sentence for few days. Case is pending against him since 1982; he is under this trauma for the last so many years; therefore, his revision should be accepted and sentence awarded to him be modified to sentence already undergone.

Respondent''s learned counsel contended that it was a case of chance recovery. Assistant Sub Inspector Gian Singh along with other police officials was going on excise checking. Suddenly on turning of village Rohti, he found the accused coming from the opposite direction and as in a suspicious way he sat by the side of the road to urinate, he was apprehended by the police. ASI Gian Singh has specifically stated that at that time no person was available around the place where the search and seizure was made. Head Constable Avtar Singh has stated that these persons Gurbachan Singh and Gurmukh Singh reached after arrest and the recovery; therefore, no adverse inference can be drawn against the prosecution. He also submitted that the sample was sent after 10 days, but even the expert found that on the sample seals were intact. From the link evidence, the prosecution has proved that till the sample was sent to the Chemical Examiner, it was not tampered with and the seals were intact. Thus, even this argument does not help the accused.

No doubt, ASI Gian Singh PW2 has stated that when he accosted the accused, nobody was there on the road side. When the search and seizure was made then also no independent witness was present at the spot. Head Constable Avtar Singh PW1 has admitted in crossexamination that Gurmukh SinghSarpanch and Gurbachan Singh came at that time, but he is categoric that they came after the arrest of the accused. From the statements of these two witnesses, it is evident that on suspicion accused was apprehended and immediately his search was taken and contraband opium was seized from his possession. Thereafter, if any witness came on the spot and he was not joined by the Investigating Officer, it is not a circumstances which will make the statements of these two witnesses incredible or unreliable. Further Gian Singh has stated in cross examination that when he was writing the papers at that time his attention was towards writing the papers. According to him, even at that time nobody came near him. Gurbachan Singh has been examined as DW1. He admits in examinationinchief that near his field police arrested the accused in case of opium. He does not say that no opium was recovered from the possession of the accused, conversely, he admits in crossexamination that after 5 days he came to know that in an opium case, the accused has been falsely implicated. Had it been true that he was present when the police seized the opium or the Investigating Officer was writing the papers during investigation, he would have said so in his statement and would have emphatically maintained that no opium was recovered from the possession of the accused. He admitted in crossexamination that after 5 days he came to know that a false case has been registered against the petitioner in an opium case, thus it is evident that he was not present at the time of search and seizure. He might have come later on, but at that time it was not necessary for the Investigating Officer to join him in the investigation which was already over till then. The facts of Piara Singh''s case (supra) are distinguishable.

No doubt, the sample was sent to the Analyst after 10 days. In Rajiv Kumar and Narain''s cases (supra) the accused was arrested under the provisions of NDPS Act. There were other factors also. In Narain''s case (supra), mandatory provision of Section 50 of the Act was not complied with; independent witnesses were not joined though they were available and sample was sent after 10 days. There is no finding in this judgment that because of the delay the prosecution case is liable to be thrown in its entirety, but all the facts taken together were considered by the learned Single Judge and considering this fact that mandatory provision of Section 50 was not complied with which goes to the root of the case and which vitiate the trial, the accused was acquitted.

The facts of Rajiv Kumar''s case (supra) are also distinguishable. That was also a case under Section 20 of the NDPS Act. In that case also, no attempt was made to join independent witnesses; there were discrepancies in the statements of the official witnesses; the case property was not produced by the Investigating Officer before the Station House Officer; the case property was also sent after 10 days; no explanation was offered for this delay. Considering noncompliance of the mandatory provisions of the Act, accused was acquitted.

In this case, no doubt, sample was sent after 10 days, but there is link evidence to prove that after seizure sample was deposited in the police Station Malkhana and till it was taken out on 10.1.1983 to be sent to the Public Analyst, it was not tampered with and the seals were intact. On this date the sample was taken to the Public Analyst for analysis. The Public Analyst also found that seal on the sample was intact and was tallying with the sample seal which was sent along with the docket.

Learned counsel also objected that the affidavit, Exhibit FE of constable Avtar Singh is not in accordance with law. The judgment of Gurnam Singh''s case (supra) does not help the accused in this case. In that case in the verification clause, it was not mentioned as to what part of the statement was verified on the basis of knowledge and what part on the basis of information received. In this case from affidavit, Exhibit PE, it is evident that Avtar Singh has deposed that he was posted at Police Station City on 10.1.1983. On this date a packet of sample of opium was handed over to him by the Moharrir Head Constable Pawan Kumar along with sample seals which were tallying with each other. On that very date, he went to the Excise Office to get the docket prepared, then he handed over this sample to Assistant Chemical Examiner and on his return handed over R.C. to Moharrir Head Constable. In the last para he deposed that during the period the sample was in his custody, he did not tamper with it himself nor he allowed anybody else to tamper with it. Thus, the verification of this affidavit is in accordance with the provisions of law. He has verified that the contents of paras 1 and 4 are true to his knowledge and belief and contents of paras 2 and 3 are based on the record which he believes to be true. Thus the verification in the affidavit is in accordance with the provisions of law.

So far as last contention is concerned, accused was found in possession of opium weighing 1 kg. No doubt, he is facing this trial since 1982, but on this count alone, his jail sentence cannot be reduced to already undergone.

Finding no merit in the revision, it is hereby dismissed. Petitioner''s conviction and sentence are maintained.