Lilu and Kuldip vs State of Haryana

Virender Singh, J.—We are disposing of two Criminal appeals in this judgment. Criminal Appeal No. 52-DB of 2002 has been filed by Lilu and Kuldip sons of Om Parkash, residents of village Dhingsra, Distt. Fatehabad and Criminal Appeal No. 231-DB of 2002 has been filed by Anirudh son of Het Ram resident of Dhingsra. District Fatehabad and Ramphal son of Kurda Ram resident of village Bhodia Khera, District Fatehabad. All the four appellants have been convicted u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as the Act) by Additional Sessions Judge, Fatehabad vide judgment dated 5.12.2001 and have been sentenced to under go RI for fourteen years each and to pay a fine of Rs. One lac and twenty five thousand each u/s 18 of the Act and in default of payment of fine to further undergo RI for a period of two years each.

It is pertinent to notice that initially nine persons including the four appellants (herein) were booked in the present case. Amar Singh son of Budh Ram resident of village Khuria (Rajasthan), Sahi Ram son of Chatru Ram resident of Gothri (Rajasthan) were declared proclaimed offenders whereas Subhash son of Ramji Lal, Pala Ram son of Prem Kumar and Manoj Kumar son of Mahender Singh were charged alongwith the present four appellants but they were acquitted by the trial court. No appeal has been filed against their acquittal by the State.

In nut-shell, the case of the prosecution is that on 17.11.98. Inspector Shishpal Singh PW9 alongwith other police officials were going towards village Bhattu Kalan in connection with patrolling and crime checking. Whey they reached near temple of village Dhingsra, he received a secret information that six persons have gone towards Dhani of Lilu son of Om Parkash, (appellant in Criminal Appeal No. 52-DB of 2002) in Jeep bearing registration No. HR-22A-9921. The information further received was that Lilu, Kuldip, Anirudh and Ramphal appellants alongwith Pala Ram (since acquitted) were sitting in that Jeep and the same was being driven by Subhash (since acquitted). These persons had brought the opium from Rajasthan and the same was being taken towards the fields of Lilu. It is then the case of the prosecution that Shishpal Singh Inspector PW9 tried to associate some independent persons but they expressed their inability to do so. A raiding party consisting of Inspector Shishpal Singh PW9 and other police officials then reached the Dhani of Lilu appellant and saw that four persons were going in the cotton field adjoining to the path. They were surrounded by the raiding party. The present four appellants had put a plastic bag on a Khes and they were holding corners of the Khes. Inspector Shishpal Singh PW9 suspected some narcotic substance in the plastic bag and he served notices Ex. PA, PB, PC and PD upon all the four appellants respectively giving them option as to whether they wanted the search to be conducted in the presence of a gazetted officer or a Magistrate. All the four appellants then gave their separate replies to the notices Ex. PA/1, PB/1, PC/1 and PD/1 respectively and opted that the search be conducted in the presence of a gazetted officer. It is then the case of the prosecution that a wireless message was sent to Sultan Singh Deputy Superintendent of Police PW3 who reached the spot alongwith his staff. He also verified the facts and the antecedents of the appellants and then instructed Inspector Shishpal Singh PW9 to carry out search of the plastic bag. Upon search of the plastic bag opium was found. Two samples of 250 grams each were separated and the remainder opium came to 30 kilograms 500 grams. The remaining opium was put into two tins. Both the samples and tins containing remaining opium were sealed with the seals bearing impression GR and SS. The case property including the Khes was taken into possession. After recovery, ruqa Ex. PN was sent to police station Bhattu Kalan and formal FIR Ex. PN/1 was registered on the basis of the said ruqa. It is then the case of the prosecution that a report u/s 57 of the Act was also sent to the Deputy Superintendent of Police, Fatehabad which is Ex. PU. Subhash driver of the Jeep was also arrested in this case as he was found standing at a particular place. The Jeep was also taken into possession. Pala Ram was also arrested in this case by Inspector Shishpal Singh PW9 as the appellants had disclosed his name. On further interrogation all the appellants revealed that the opium was brought by them in a Truck from one Amar Singh of village Khuria (since declared proclaimed offender). Manoj Kumar who was the owner of Jeep No. HR-22A-9921 was also arrested in this case. The prosecution agency also made an attempt to arrest Sahi Ram in this case, because he was the owner of the Truck No. RJ-18-0067 which was used for transportation of opium. Ultimately, he was declared proclaimed offenders. Consequently, challan was filed against the four appellants and Subhash, Pala Ram and Manoj (since acquitted).

The appellants were charged u/s 18 of the Act alongwith their three co-accused.

The prosecution in support of its case has examined as many as nine witnesses. PW1 is SI Chet Ram. He infact prepared the final report u/s 173 Cr.P.C. and forwarded it to the Court. PW2 is ASI Ghisa Ram. he is witness to the recovery and has reiterated the prosecution case. Sultan Singh Deputy Superintendent of Police has been examined as PW3. His evidence is to the effect that he was called by Inspector Shishpal Singh PW9 at the spot and he disclosed his identity to the present appellants being gazetted officer and thereafter the plastic bag was searched which was containing the opium. He also talks about extracting of the opium as sample and thereafter sealing done in his presence by Inspector Shishpal Singh PW9 in which his seal and the seal of Inspector Shishpal Singh was used.

ASI Dharambir has been produced as PW4. He infact had recorded formal FIR Ex. PN/1 after receiving the ruqa Ex. PN from Inspector Shishpal Singh. Constable Satish Kumar has been examined as PW5 who had carried the special report to the Ilaqa Magistrate and another report to Superintendent of Police, Fatehabad. HC Attar Singh has been examined as PW6 who has tendered his affidavit Ex. PO. His evidence is to the effect that he had handed over the sample to Constable Jasbir Singh for taking it to Forensic Science Laboratory, Madhuban for analysis. Constable Jasbir Singh has been examined as PW7. He had also tendered his affidavit in which he has asserted that sample was handed over to him by HC Attar Singh for taking the same to analyst. Sahab Ram son of Sher Singh has been examined as PW8. His statement is that he had purchased Jeep No. HR-22A-9921 from Manoj Kumar (since acquitted). Inspector Shishpal Singh has been examined as PW9. He has also reiterated the complete prosecution story because he is the investigator of this case. The F.S.L. report was tendered as Ex. PQ according to which the sample sent for analysis was the opium.

The plea of the four appellants was that they have been falsely implicated in this case and were detained in CIA Staff Fatehabad illegally and when their family members had lodged protest against the conduct of the police, they were involved in the present case. However, no defence was produced by the appellants.

On a consideration of entire evidence, learned trial court has convicted and sentenced all the four appellants as indicated above. However, their three co-accused were acquitted. Aggrieved by the judgment of conviction and sentence, they have preferred the present appeal.

We have heard Mr. S.S. Narula, Advocate and Mr. R.N. Khush, Advocate learned counsel for the appellants and Mr. Sanjay Vashist, learned Deputy Advocate General, representing the State of Haryana. With the assistance of the learned counsel for both the sides, we have also gone through the entire record of the case.

The learned counsel for the appellants have made the following three submissions before us:--

That the sample which was drawn at the spot is not the same which was sent for analysis and therefore, the prosecution case fails;

independent witnesses have not been joined;

non-compliance of Sections 52 and 57 of the Act.

Firstly, it is contended that according to the prosecution case two samples were drawn and in each of the sample 250 grams of opium was extracted whereas according to the statement of Head Constable Attar Singh examined as PW6 he has stated that he weight of the sample was 100 grams which was handed over to Constable Jasbir Singh PW7 for taking it to Forensic Science Laboratory. Our attention has also been to the report of F.S.I. Ex. PQ where the weight of the ample as received by the Analyst is shown as approximately 340 grams. Both the counsel from it want to develop that the opium which was extracted at the spot as sample is not the same which was carried by Constable Jasbir Singh to F.S.I. Madhuban and infact it has been tampered with the between. This is a very vital lacuna in the case of the prosecution for which the appellants deserve acquittal, it is so contended on behalf of the appellants.

The other contention raised before us is that inspite of the fact that Inspector Shishpal Singh PW9 had received secret information and had ample time to join independent witnesses yet no independent witness was joined by him and as such the whole of the prosecution case, thus, is shrouded under the clouds of doubt. For this lacuna also the appellants deserve acquittal.

It is then contended by the learned counsel for the appellants that there is non-compliance of Sections 52 and 57 of the Act in the present case. Developing their arguments, it is further contended that although these provisions of the Act are not mandatory in nature but the non-compliance would certainly prejudice the case of the appellants. The learned counsel submit that since there are material infirmities in the case of the prosecution as indicated above, the non-compliance of Sections 52 and 57 of the Act would also be an additional factor for disbelieving the prosecution case.

Lastly it was contended that in the alternative, the sentence imposed upon all the appellants by the trial court is too harsh and the appellants deserve leniency in reduction of quantum of sentence. It is stated that all the four appellants are in custody since the date of their arrest and have already undergone more than four years of their substantive sentence.

On the other hand Mr. Vashist has strenuously contended that the case against all the appellants is proved to the hilt and there is no reason to disbelieve the official witnesses in this case as they had no animosity to falsely implicate the appellants in which there is very heavy recovery of 31 kilograms of opium. Mr. Vashist contends that the conviction as recorded by the learned trial court is liable to be maintained. On the point of quantum of sentence it has been submitted by the learned counsel for the State that the appellants do not deserve and leniency as they had smuggled opium from Rajasthan and the persons who indulge in such type of nefarious activities do not deserve any sympathy.

After perusal of the evidence recorded by the learned trial court and the other relevant documents, we are of the view that the conviction as recorded by the trial court is to be maintained. None of the arguments advanced by the learned counsel for the appellants is appealing.

The criticism pointed out by the learned counsel for the appellants regarding variation in the quantity of the sample, we are of the view that the argument advanced in this regard is of no force. We have seen the original affidavit of Head Constable Attar Singh which has been tendered as Ex. PO. It contains four paragraphs. He has nowhere stated in his affidavit about the quantity of the opium. In our view he was otherwise also not supposed to refer to the quantity. On 17.11.98, he was deputed as Moharrar Head Constable in the police station and the case property was deposited with him in the shape of two tins of opium (remainder) and two parcels. He had taken one sample out of the malkhana for sending the same to F.S.I. Madhuban on 24.11.98 and had handed it over to Constable Jasbir Singh No. 383 (PW7). Even if in cross-examination, as indicated by the learned counsel for the appellants, he has stated that the sample which he had handed over to Constable Jasbir Singh was weighing 100 grams of opium would be of no effect and we would term it as a stray statement not at all adversely effecting the case of the prosecution when his own affidavit Ex. PO is there on the file. It is pertinent to mention here that Constable Jasbir Singh PW7 has also tendered his affidavit Ex. PR which does not talk about the weight of the sample. His affidavit is to the effect that on 24.11.98, he was given the sample of opium alongwith specimen of seal for depositing the same with Forensic Science Laboratory for analysis. He was also not supposed to know the weight of the sample because it was to be checked by the analyst only after receiving the same and before conducting the analysis.

A lot of criticism has also been canvassed by learned counsel for the appellants over the report of F.S.I. Ex. PQ in this regard. We have seen the report in original from trial court file. The analyst after verifying the content from the physical appearance, weighed the opium alongwith container and thereafter found the weight to be approximately 340 grams. This makes the position very clear. The container in which the opium was packed must be weighing approximately 90 grams. Perhaps after scanning all these documents, no doubt it left about the quantity of the sample and it can be safely concluded that the sample which was drawn on the spot was the same which was ultimately sent to the analyst on 24.11.98 for analysis. The contention of the learned counsel, thus, in this context looses and is hereby repelled.

The second contention on behalf of the appellants to the effect that no independent witness was joined, is also of no avail. The bare perusal of the ruqa Ex. PN shows that Inspector Shishpal Singh PW9 tried to join a number of persons present near the temple in the raiding party but they had expressed their inability. Although when this witness stepped into witness box, does not talk about making any attempt to join independent witness before conducting the raid but this would not be a ground to see the prosecution story with an eye of suspicion. We have very carefully scanned the statements of all the witnesses of recovery. Since the prosecution case hinges upon the statements of police officials alone, a test of caution in appreciating the evidence has also been applied by us in this case and thereafter we hold that there is no reason to discard their testimony on any count. Consequently, the argument advanced on behalf of the appellants in this regard is also rejected.

The next contention regarding non-compliance of Section 52 and 57 of the Act, we may mention here that the provisions of Section 52 and 57 of the Act are directory and violation thereof would not ipso-facto vitiate the trial or conviction. There is no doubt that the investigating officer cannot totally ignore these provisions and the failure would certainly have some bearing on the appreciation of the evidence regarding arrest of the accused or the seizure of the articles but in the present case there is no such non-compliance which would cause serious prejudice to the appellants. Inspector Shishpal Singh PW9 has categorically stated that he had sent the report u/s 57 to the Deputy Superintendent of Police, Fatehabad which is Ex. PU on 17.11.98 itself after arresting the appellants and depositing the case property in the police station. In so much so that in the said report it is also mentioned that a Jeep bearing No. HR-22A-9921 which was being used has also been taken in police possession after arresting Subhash son of Ramji Lal. This report is subsequently seen by D.S.P. Fatehabad on 17.11.98. Requirement of Section 57 of the Act is that whenever any person makes any arrest or seizure under this Act, he shall within 48 hours next after the said arrest or seizure would make a full report of all the particulars of such arrest or seizure to his immediate police officer. This is so done in this case. Although provision of Section 52 of the Act is not complied with in this case in its true sense, in our view, it would not vitiate the trial. Thus, the argument advanced by the learned counsel in this regard also does not hold water.

As a result of discussion aforesaid, we are of the considered view that the prosecution has been able to bring home the guilt to all the four appellants for the charge framed against them. We, consequently maintain the conviction as recorded by the trial court.

So far as the quantum of sentence is concerned, we feel that the appellants deserve some leniency. The recovery is of the year 1998. All the four appellants have already faced the rigor of protracted trial for about more than four years. In our view, the ends of justice would be adequately met if the substantive sentence of fourteen years imposed by the trial court is reduced to twelve years each. However, the sentence of fine of Rs. 1, 25,000/- each awarded would remain the same keeping in view the heavy recovery. In default of payment of fine, the appellants would further undergo RI for a period of two years each as already awarded by the trial court.

The net result is that both the appeals i.e. Criminal Appeal No. 52-DB of 2002 filed by Lilu and Kuldip sons of Om Parkash, residents of village Dhingsra, Distt. Fatehabad and Criminal Appeal No. 231-DB of 2002 filed by Anirudh son of Het Ram resident of Dhingsra. District Fatehabad and Ramphal son of Kurda Ram resident of village Dhodia Khera, District Fatehabad are dismissed with modification in the quantum of sentence as indicated above.

Intimation of this judgment be sent to the learned trial court and the concerned jail authority at once.