Jiwna vs State of Haryana

Dr. Sarojnei Saksena, J.

By this judgment Criminal Appeal No. 775SB of 1986 filed by the accused appellant against his conviction and Criminal Appeal No. 295SB of 1987 filed by the State for enhancement of sentence are being decided.

Appellantaccused has assailed his conviction and sentence of 10 years under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in brief the Act) by judgment dated 26.11.1986. State has filed the aforesaid appeal for enhancement of sentence on the ground that under Section 17 of the Act the sentence is 10 years Rigorous Imprisonment with fine of one lakh rupees. The trial court has convicted the accused and sentenced him to 10 years Rigorous Imprisonment only. Hence sentence of fine of one lakh rupees be also imposed on the appellantaccused for the commission of the said offence.

The factual matrix of the case, is that on 11.4.1986 ASI Puran Singh (PW2) and ASI Amar Nath (PW3) along with other police officials were on ''mela'' duty. At about 4 p.m. they were present at Drain Bridge AmbalaPehwa road, Ram Ditta (PW 1) was joined in the investigation. After some time this police party saw accused coming from Cheeka side. On seeing the Police party accused descended into the drain and tried to slip away. On suspicion he was nabbed by the Police party. A.S.I. Amar Nath offered his personal search. Thereafter he took personal search of the accused and found that he was carrying one kilogram of opium wrapped in polythene and kept in a bag Ex.P5. Through a constable weighing scale was called. 100 grams of Opium was separated as a sample for analysis. This sample and the remainder were separately sealed with the seal of A.S.I. Amar Nath. Ruqa was sent to the Police Station Pehwa, F.I.R. was registered. Investigating Officer completed the investigation at the spot and brought the sealed packet of opium along with the accused to the Police Station. Case property was deposited in the malkhana of the Police Station and the accused was detained in the police lock up. On 16.4.1986 sample was sent to Chemical Examiner, Karnal. After analysis report Ex.PD was given according to which sample contained opium. Accused was not having any licence for keeping opium in his possession.

Accused denied the charge. His plea is that nothing was recovered from him. He was arrested from his house two/three days before 11.4.1986. Ram Ditta is a police stock witness. Earlier he purchased bricks from him and paid Rs. 2,000/ as its price but after some time he returned the bricks and demanded the price back with interest. He declined to repay the price. Hence he is inimically disposed of towards me. He has not adduced any evidence in defence.

During trial prosecution examined Ram Ditta P.W.1, A.S.I. Puran Singh (PW.2) and A.S.I. Amar Nath (PW3). Affidavits of Sumer Chand and Head Constable Talwant Singh Ex.PE and Ex.PF were tendered in evidence. The defence counsel declined to crossexamine them.

The trial Court minutely scanned the prosecution evidence and came to the conclusion that the sworn testimony of these prosecution witnesses is credible and reliable. Relying on the prosecution evidence, the accused was found guilty of the said offence and was convicted and sentenced as stated above.

The appellant''s learned counsel contending that in this case no independent witness was joined at the time of alleged search and seizure though witnesses were available as Investigating Officer has admitted that at a distance of 500 yards shops were situated and they were open at that time. This fact is admitted by Puran Singh (PW2) also but both these witnesses have stated that no other person was joined in the investigation as it was not required. He pointed out that under Section 100(4) of the Code of Criminal Procedure at the time of any such search or seizure two independent witnesses are required to be joined. As these police officials were satisfied with the presence of Ram Ditta (PW1) who is their stock witness, they did not think it proper to join any other independent witness of the locality at the time of the alleged seizure. Ram Ditta has admitted that he had appeared as a prosecution witness in 6/7 criminal cases of Police Station Sadar, Kaithal. Further he has his own axe to grind against the accused because he had admitted that he purchased bricks from the accused, paid Rs. 2,000/ as its price but returned the bricks and demanded back the price with interest. As the accused refused to return the money there was an altercation between the two. On this count, he is aggrieved of the accused. The Investigating Officer chose to join such a witness at the time of the alleged search and seizure. On his count alone prosecution evidence is not reliable and should have been discarded by the trial Court. To support this contention he has relied on Ram Kishan v. State of Himachal Pradesh, 1992(2) C.L.R. 179.

The counsel appearing for the State contended that Ram Ditta''s statement is duly corroborated by the statement of Amar Nath (PW3) and Puran Singh (PW2). There is no reason to disbelieve the sworn testimony of these witnesses. Ram Ditta has admitted that he appeared as witness in 6/7 criminal cases of Police Station Sadar Kaithal but there is no evidence nor even a suggestion that he was a pocket witness of Police Station Pehwa. This case was registered by Police Station Pehwa. Further she argued that these days independent witnesses are not inclined to join investigation especially in Narcotic Drugs and Psychotropic Substances Act, cases because of the implicit danger thereto. Ram Ditta has admitted that on account of the sale of inferior quantity of bricks he returned them to the accused and demanded the price back. As the accused refused to return the price, he is annoyed with him. But on this count, it cannot be said that he had falsely implicated the accused.

In Ram Krishan''s case (supra) it is held that noncompliance of Section 100(4) Cr.P.C. is an irregularity. It does not affect the equality of the proceedings. If independent witnesses are not joined in the search and seizure proceedings in respect of a contraband allegedly recovered from the possession of the accused and if no justifiable reason is assigned for this omission, this renders the entire proceedings doubtful. In that case two eyewitnesses were joined but they were not of that locality. Hence it was held that they were not independent witnesses. Search was conducted in a thickly populated village but still no witness from the village was joined in the raiding party without assigning any reason. There were material contradictions in the statements of the prosecution witnesses. On the basis of these factors conviction was set aside.

It is settled law that when any such irregularity is found it only cautions the court to scan the prosecution evidence minutely to arrive at conclusion whether their statements are reliable or not. It is apparent from the statement of Ram Ditta that he is not a stock witness of Police Station Pehwa. No doubt A.S.I., Amar Nath and Puran Singh, A.S.I. have admitted that weighing scale was called from a shop, about 50 yards away shops were situated and they were open at that time but the Investigating Officer thought that it is not necessary to join any other witness. This explanation cannot be said to be false one. If really he wanted to tell lies he could have taken a recourse that none was present there or he could have stated that shops were situated at far off places but he is a truthful witness and has stated that according to him joining of any other independent witness was not required.

The trial Court has found that the statements of these three witnesses are worthy of credence. Ram Ditta PW1 has a grouse against the accused about the bricks transaction but it cannot be stretched too far to say that he has got the accused falsely implicated in this case.

It is also contended by the learned counsel for the accused that there are major contradictions and discrepancies in the statements of these two witnesses. They have given different direction from where accused was coming before his arrest. This evidence is also discrepant whether the raiding party reached the spot in jeep or truck. Hence of this count also the oral evidence adduced by the prosecution is not reliable and the accused is entitled to benefit of doubt. So far as these contradictions are concerned Investigating Officer has prepared the spot map which is Ex.PB. Ram Ditta (PW1) has stated that the accused was coming from the northern side. In the site plan presence of the accused is shown at point C in the drain which is in the western northern side of the road. Puran Singh PW2 and Amar Nath (PW3) have clearly stated that accused was coming from Cheeka side i.e. from western direction. It cannot be said that there is any discrepancy in the statements of these witnesses on this point. They were examined after about seven months of the alleged recovery. There is discrepancy in the statement of the police officials on the point whether they reached the spot in jeep or truck. Ram Ditta failed in his memory in saying that they reached the spot in a truck. Amar Nath has clearly stated that they went there in a jeep. This fact is recorded in the ruqa and in the F.I.R. as well. Hence even this alleged discrepancy even if treated to be contradiction, being not material renders no assistance to the accused.

It is further argued by the learned counsel for the accused appellant that link evidence tendered in this case is not reliable at all. The affidavits of Head Constable Talwant Singh Ex.PF and that of Constable Sumer Chand. Ex.PE are no affidavits in the eye of law. They have not sworn in the verification clause as to which part of the affidavit is true to their knowledge and which part is true to the information received, Such affidavits are required to be ignored. He has relied upon Ghaki Ram v. State of Punjab 1991(2) C.L.R. 125.

These two affidavits were tendered in evidence and the defence counsel declined to crossexamine these witnesses though they were present in the Court. Talwant Singh Head Constable has deposed in his affidavit that on 16.4.1986 a sealed packet of sample of opium with the seal of A.N. was handed over to him from the Malkhana for getting it analysed at Chemical Examiners Laboratory, Karnal. On that very day he handed over the packet to that laboratory and brought back the receipt which he handed over to Sumer Chand M.C. So long as this packet was in his possession, he did not tamper with its seal. This clearly shows that all the facts to which he has deposed are true to his knowledge. No fact is deposed by him which is based on his formation. Head Constable Sumer Chand has deposed in his affidavit that on 11.4.1986 he was posted as M.C. at Police Station Pehwa. On that day Amar Nath A.S.I. brought two sealed packets of opium one of them was of 100 grams, both were sealed with seal of A.N. for depositing them in the Malkhana. He deposited them in the Police Station Malkhana and made its entry in Register No. 19. On 16.4.1986, he took out the packet of the sample and gave it to Talwant Singh Head Constable for getting it examined at Chemical Examiner Laboratory. On that very day Talwant Singh brought back the receipt for depositing that sample at the Laboratory. He has further stated that so long this packet was in his possession its seal was not tampered with. It again shows that whatever facts were within his knowledge he has deposed about them and the same are verified by him in the verifications clause. He has not deposed about any fact the knowledge of which was received by him by information. Thus it cannot be said that these facts are not verified as per law and rules. According to me these affidavits are reliable and they prove the facts that on 11.4.1986 the sample duly sealed was deposited in the Malkhana. On 16.4.1986 it was sent for analysis and till it reached Laboratory the seal affixed on this sample was intact. It gets further for the seals of this sample were found intact.

No doubt Amar Nath and Puran Singh are official witnesses but it is not shown that they possess animus or hostility towards the accused. Simply on the basis of their official mentle their sworn testimony cannot be rejected, which is found credible and believable by the trial Court. I do not see any reason to disagree with this finding of the trial Court. Their testimony inspires confidence and the same can be acted upon for recording conviction of the accused.

Last contention was that the sample was not analysed by competent Chemical Examiner as per Rule 2(e) of the Narcotic Drugs and Psychotropic Substances Rules, 1985. This rule is interpreted by Full Bench of Madhya Pradesh in Ram Dyal v. Central Narcotic Bureau Gwalior, 1993(1) RCR 264 . It is held by their Lordships that when contraband opium is seized from the possession of the accused and it is to be analysed then it is not necessary that it should be sent to Chemical Examiner at Neemuch and Ghazipur Laboratories. There is no provision in the said rules or in the Act debarring chemical analysis of unlawfully possessed opium seized in connection with an offence elsewhere at any other Laboratory in the country. Hence I find that on this count also it cannot be held that the said report of the Chemical Examiner cannot be considered for arriving at the conclusion whether the contraband seized from the accused is opium or not.

No other point is pressed by the learned counsel appearing for the accused.

I find that the trial Court has rightly believed the prosecution evidence and has rightly convicted the accused for the said offence. Criminal Appeal No. 775 of 1986 of the accused being meritless is hereby dismissed. His conviction and sentence is maintained.

Learned counsel appearing for the State contended that the accused is held guilty under Section 17 of the Act. This section provides punishment of 10 years which may be extended to 20 years with a fine of Rs. 1 lac which again can be extended to Rs. 2 lac. This is mandatory provision. The court has no jurisdiction to reduce this sentence. The trial Court convicted the accused under Section 17 of the Act and sentenced him to 10 years rigorous imprisonment only. Fine sentence of one lakh rupees should also have been imposed on the accused for this offence. The trial Court has fallen into error in not awarding sentence of fine.

A bare reading of Section 17 reveals that the offence under this Section is punishable with rigorous imprisonment for a term which shall not be less than 10 years... and shall also be liable to fine which shall not be less than one lakh rupees... Thus the trial Court has fallen into error in not awarding sentence of fine of one lakh rupees to the accused while convicting him under Section 17 of the Act. Accordingly State''s Criminal Appeal No. 295 of 1987 is hereby allowed. Accused Jiwna found guilty under Section 17 of the Act and sentenced to ten years rigorous imprisonment, is also awarded a sentence of fine of one lakh rupees. It is directed that in default of payment of fine he shall further undergo rigorous imprisonment for five years.

JUDGMENT accordingly.