Mahabir vs State of Haryana

Dr. Sarojnei Saksena, J.

Appellant/accused has assailed his conviction and sentence under Section 17/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

In a nutshell the prosecution story was that 18.12.1985, Dalip Singh Assistant Sub Inspector PW2 alongwith Ballu Ram Head Constable PW1 and other police officials went in a police jeep on patrol duty. At about 3.00 p.m. when they were present on the bridge Mamber Minor, Dayal Singh DW1 met them. After some time Dalip Singh saw the accused going with a bag in his hand. On seeing the police party, accused tried to escape from that spot. On suspicion, he was apprehended. The bag which he was carrying was searched. It contained 4 Kg. of opium. Sample of 50 gram was separated. Sample and the remaining opium was duly sealed on the spot with the seal bearing alphabet ''DS''. On personal search Rs. 2,000/ cash was recovered from the accused. Opium was seized vide seizure memo Ex.PC which was attested by Dayal Singh DW1 and Ballu Ram PW1. Cash was seized vide seizure memo Ex.PD. Ruqa Ex.PE was sent to the Police Station Bara Gudah and, thereupon, First Information Report Ex.PE/1 was recorded by Station House Officer. Dalip Singh prepared a site plan Ex.PF. Statements of the witnesses were also recorded by him. He brought the seized articles alongwith the accused to the police station. Accused was put up in the lock up and seized articles were deposited in the Malkhana with MHC. Sample was sent to Chemical Examiner on 26.12.1985. Affidavits of Head Constable Satbir Singh Ex.PA and Constable Davinder Singh Ex.PB were tendered in evidence to prove that the sample was sent from the Police Station, Malkhana to Forensic Science Laboratory, Madhuban, Karnal. On analysis, Chemical Examiner opined that the sample contained 3.38 per cent of morphine and, thus, it was opium. On these facts, accused was charge sheeted.

Accused denied the guilt, though, he admitted the recovery of Rs. 2,000/ from him. He examined Dayal Singh and Gurcharan Singh in his defence.

During trial, the prosecution examined Ballu Ram Head Constable PW1 and Dalip Singh Assistant Sub Inspector as PW2. Affidavits of Head Constable Satbir Singh Ex.PA and Constable Davinder Singh Ex.PB were tendered in evidence. FSL report Ex.PD was also tendered in evidence.

The trial Court disbelieved the defence version that opium was not recovered from the accused, only Rs, 2,000/ were recovered from him, he was coming to purchase turi from village Jhorar Rohi alongwith Raj Pal. Relying on the prosecution evidence, the trial Court held that on 18.12.1985, accused was having in his possession 4 Kg. of opium without any licence and thus he was convicted and sentenced to ten years rigorous imprisonment with a fine of Rs. 1,00,000/; in default RI for two years.

The appellant''s learned counsel contended that when the personal search of the accused was taken, mandatory provisions of Section 50 were not adhered to. The accused was not informed that his personal search can be taken before a Gazetted Officer or a Magistrate. Hence, due to violation of this mandatory provision, the whole of the trial stands vitiated and on his count alone accused is entitled to acquittal. He further contended that Assistant Sub Inspector Dalip Singh PW2 has admitted that he was having weighing scale and weight in his investigation bag which indicates that he had already some secret information that the accused is bringing opium with him. In these circumstances, provisions of Section 50 of the Act should have been complied with.

Learned Assistant Advocate General, Haryana, relying on State of Punjab v. Balbir Singh, 1994(1) RecentCR 736 , argued that since it is a case of chance recovery, provisions of Section 50 of the Act are not attracted. Both the prosecution witnesses have testified that they were on patrol duty. This patrolling was done with a purpose to check crime. They did not go to investigate any offence.

Ballu Ram PW1 and Dalip Singh PW2 have clearly stated that on that day, they were on patrol duty. They did patrolling in threefour villages before reaching the spot. When they were standing on Mamber minor bridge situated within the revenue estate of village Raghuwana, Dayal Singh DW1 came there. After some time, at about 3.00 p.m. accused was seen coming from the left bank of the said bridge. When he came near them then he suddenly retraced his steps and started walking swiftly. Thereupon, on suspicion, he was apprehended, accused was carrying a bag with him. When it was searched, it was found that it contained 4 Kg. of opium. Thus, it is apparent that it is a case of chance recovery and I find that provisions of Section 50 of the Act are not at all attracted. Whenever, a police official goes on patrol duty with an intention to check crime, he carries with him investigation bag, scale, weight, wax and other such articles as are necessary contents of such a bag. Simply on this ground that Assistant Sub Inspector Dalip Singh was carrying weights and weighing scales in his investigation bag, it cannot be inferred that he had any secret information that accused is bringing opium. I find that this contention has no force.

Learned appellant''s counsel further contended that at the time of alleged search and seizure one independent witness Dayal Singh was joined by them but he was given up by the prosecution, though, accused examined him as DW1. At Mamber minor, accused was neither apprehended in his presence nor opium was seized from his bag. According to this witness, he was called at the Police Station Bara Gudah and was asked to attest few papers. At that time, accused was sitting in the police station and he (witness) was told that opium has been recovered from Mahabir accused. The trial Court has wrongly disbelieved this witness. No other independent witness was joined except Dayal Singh to witness the alleged search and seizure.

Even this contention has little force, prosecution witnesses have admitted that Dayal Singh came there on Mamber minor and was talking to Dalip Singh at the time when accused was apprehended on suspicion. In his presence, his bag was searched and 4 Kg. of opium was recovered therefrom. Recovery memo Ex.PC was attested by him as well. He was summoned as a prosecution witness but was given up on the ground that he has been won over by the defence. Dayal Singh DW1 has admitted that he was summoned as a prosecution witness but then he was asked by some police official to go back. For the date when he came to depose as DW1 he was not summoned. He was informed by one Chet Singh, his relation to go to the Court to depose as to what he had seen. He admits that accused is not known to him. How Chet Singh is related or known to accused, he does not know. He further states that accused told him something but he does not remember anything except that he told him that he came to purchase turi. According to this witness, he met accused at Police Station Bara Gudah. Gurcharan Singh PW2 has stated that he resides in village Jhorar Rohi. 10/12 months before his statement, accused came to him, gave him advance of Rs. 100/ for the purchase of turi and told him to come after two months for the purchase. When he came later on he told him that he was coming to purchase turi but he has been falsely implicated in an opium case. Even, the statement of this witness is not reliable. He does not know the accused, who resides in Rajasthan. He does not know even the name of the village where accused resides and what is the distance between his village and that of the accused. Without obtaining a receipt of Rs. 100/, accused paid him Rs. 100/. Both these witnesses are interested witnesses to support the accused. From the statement of Dayal Singh it becomes evident that on that very day, accused was brought to the Police Station. Ballu Ram PW1 and Dalip Singh PW2 have stated that after the use of seal, it was handed over to Dayal Singh. Thus, naturally, Dayal Singh had also come alongwith the police party and the accused to the police station on 18.12.1985 after completion of proceedings at the spot. The trial Court has rightly disbelieved these defence witnesses.

The statements of Dalip Singh PW2 and Ballu Ram PW1 are trustworthy and reliable. Nothing could be pointed out to me at the time of argument on the basis of which, it can be said that the statements of these witnesses are not dependable and no credence can be placed on them.

The third contention is that affidavits of Head Constable Satbir Singh Ex.PA and Constable Davinder Singh Ex.PB were not properly tendered in evidence. No opportunity was given to the accused to crossexamine these witnesses and they were not put to the accused during his examination under Section 313 Code of Criminal Procedure. Relying on State of Punjab v. Sewa Singh, 1992(3) RecentCR 359 and Shyam Lal v. State of Haryana, 1993(2) RecentCR 403 , the learned defence counsel contended that since the alleged link evidence is neither properly adduced nor is put to the accused under Section 313 Code of Criminal Procedure, this evidence should not have been relied on by the learned trial Judge to hold the accused guilty of the said offence.

Learned Assistant Advocate General, Haryana, relying on Roop Lal v. State of Punjab, 1984 Criminal Law Times 140; Hari Ram Balram Pande v. State of Maharashtra, 1977(1) PFA 56 and Durlab Singh v. State of Punjab, 1984(2) FAC 107 contended that in the trial Court, no such objection was raised by the accused. Even in the memo of appeal, it is not alleged that thereby any prejudice is caused to the accused. The decisions relied on by the appellant''s learned counsel are distinguishable on facts. In this case, both the aforesaid affidavits were tendered in evidence on 25.9.1986 in the presence of the accused and his counsel. Both these witnesses were present in the Court as well as is clear from the order sheet of this date. The accused never expressed that he wanted to crossexamine these witnesses. Both the affidavits, therefore, were accepted in evidence and, thus, marked as Ex.PA and Ex.PB. When the accused was examined under Section 313 Code of Criminal Procedure, Question No. 5 was asked that the sample was sent to the Assistant Chemical Examiner, who gave his report Ex.PG and opined that it contained opium. The reply was that he had no knowledge of the contents of the sample. In the trial Court, it was not contended by the accused that this sample was ever tampered with. From the statement of Dalip Singh PW2 it is evident that sample duly scaled with the alphabets ''DS'' was deposited on that very day in the Malkhana of Police Station Bara Gudah in the custody of Head Constable Satbir Singh. Satbir Singh in his affidavit has deposed that on 18.12.1985, this sealed parcel weighing 50 grams bearing seal impression of DS was duly deposited by him in the Malkhana and on 26.12.1985 he handed over this sample parcel to Constable Davinder Singh to be taken to Forensic Science Laboratory, Madbuban. Davinder Singh Constable in his affidavit Ex.PB has deposed that on 26.12.1985 this sample duly sealed was handed over to him by Satbir Singh and on that very day, he deposited it in Forensic Science Laboratory, Madhuban, after it was duly docketed by DETO and he brought back the receipt. Both these witnesses have deposed that the seal on the sample was intact and it was not tampered with by anybody till it was in their possession. Even on Ex.PG, there is a note that seal on the sample was found intact according to the sample seal sent. It cannot be said that this link evidence could not have been relied upon by the learned trial Court.

No doubt, if this link evidence is not adduced by the prosecution and under Section 313 Code of Criminal Procedure, accused is not examined with regard to this evidence, no reliance can be placed on the expert report but the facts of Shyam Lal''s case (supra) and Sewa Singh''s case (supra) are distinguishable. In Sham Lal''s case (supra), prosecution did not examine the constable, who deposited the opium and MHC with whom the opium was deposited. Constable who took the sample to the Chemical Examiner also was not examined. Their affidavits also were not tendered in evidence. On 7.1.1986, learned defence counsel submitted written arguments wherein it was objected that link evidence is missing, thereafter, case was adjourned to 28.1.1986 and on this date, affidavits of Constable Rajinder Singh and MHC Chattar Singh were accepted as C1 and C2 before pronouncing the judgment. Under these facts, it was held that as these affidavits were not tendered in evidence and the accused was not examined with regard to these affidavits, they have to be excluded from consideration and, thus, the report of the Chemical Examiner could not be relied on and on this count, accused was acquitted.

In Sewa Singh''s case (supra) affidavits of MHC Maghar Singh was tendered in evidence. Only one witness was examined by the prosecution. The Court held that there was no evidence as to when the sample was sent to Chemical Examiner and through whom and that there was no tampering with the scaled sample parcel. On these facts, accused was acquitted.

In Durlab Singh''s case (supra) cited by the prosecution, the Court has observed that if the accused is not examined with regard to a particular piece of evidence but if no such objection is made by the accused in the trialCourt that thereby he has been prejudiced and in the High Court if such an objection is raised, it does not help the accused and on that count whole of the prosecution case cannot be rejected as this omission only amounts to irregularity which is curable. In this case, as is pointed out by the learned Assistant Advocate General, Haryana, when the prosecution evidence was being recorded, affidavits of Satbir Singh Ex.PA and that of Davinder Singh Ex.PB were tendered in evidence on 25.9.1986. Both these witnesses were present in the Court. At that time, accused and his counsel were also present but no request was made that accused wants to crossexamine these witnesses. In the statement of the accused recorded under Section 313 Cr.P.C. Question No. 5 is put to him that the sample was sent to Chemical Examiner who gave his report Ex.PG. The accused has clearly replied that he does not know about the contents of the sample. By tendering the affidavits of the aforesaid witnesses, the prosecution has proved that from the time this sample was deposited in the Malkhana till it was delivered to the Laboratory it was duly sealed and seal was not tampered with. This fact is also recorded by the expert in his report Ex.PG. In the Lower Court, accused never objected that since link evidence is not duly proved as it is not put to him in his statement under Section 313 Code of Criminal Procedure, the expert report cannot be relied on. In the memo of appeal also, this objection is not raised. Even during arguments, it could not be shown as to how prejudice is caused to the accused. Hence, I find that this contention has no force.

It is also contended that mandatory provisions of Section 57 of the Act are not complied with. Even, this contention does not hold water. In Balbir Singh''s case (supra), the Apex Court has held that provisions of Sections 52 and 57 are by themselves not mandatory. If there is noncompliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. So far as the compliance of 57 is concerned, Dalip Singh PW2 has stated that immediately after the arrest, Ruqa Ex.PE was sent to the Police Station and, thereupon, First Information Report Ex.PE/1 was recorded by Station House Officer. Thus, according to me, the provisions of Section 57 of the Act are thereby complied with.

It is also contended by the appellant''s learned counsel that Assistant Sub Inspector Dalip Singh was not authorised by Haryana Government under Sections 41, 42 and 43 of the Act. Hence, he had no jurisdiction to seize the alleged contrabands from the accused and on that basis the accusedappellant could not have been prosecuted and convicted.

Admittedly, Government of Haryana issued a notification dated 29.12.1986 authorizing police officials above the rank of Deputy Superintendent of Police under Section 41(2) and Police Officials above the rank of Assistant Sub Inspector under Sections 42(1) and 67 of the Act. This Act came into force on 14.11.1985. Accused was apprehended and contraband was seized from him on 18.12.1985 thereafter the above notification was issued by the Haryana Government.

Provisions of Sections 41, 42, 43 and 74 of the Act were taken into consideration by a Division Bench of this Court in Union Territory Chandigarh v. Ram Parkash, 1994(1) RecentCR 718 and it is held that Section 74 provides transitional provisions qua the powers to investigate during the period till no such powers are conferred under Sections 41 and 42 of the Act. In view thereof, I find that though Assistant Sub Inspector Dalip Singh was not an authorised Police Officer under the aforesaid provision of the Act to conduct search and seizure made by him on 18.12.1985 but the investigation conducted by him is not vitiated in view of the provisions of Section 74 of the Act.

Last contention is that under Rule 2(c) of the Narcotic Drugs and Psychotropic Rules, Chemical Examiner means the Chemical Examiner of Government Opium and Alkaloid Works Neemuch or as the case may be Ghazipur. In this case, the sample was sent to F.S.L., Madhuban, Karnal which is not an authorised Laboratory to conduct analysis of a narcotic drug seized under the Act. Hence, on this count also the report Ex.PG could not have been acted upon.

According to me, even this contention has little force. Such a contention was raised before a Full Bench of Madhya Pradesh High Court in Ram Dayal v. Central Narcotic Bureau, Gwalior, 1993(1) RecentCR 264 and it was held that although Rule 2(c) of Narcotic Drugs and Psychotropic Rules, 1985 defines the term Chemical Examiner and names Neemuch and Ghazipur as places where there are "Government Opium and Alkaloid Works", that definition is meant for the purpose of Chapter III of the said Rules for analysis of samples of lawfully cultivated and produced opium, as contemplated under Rule 22. 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 as would expedite investigation and trial. The appellant''s counsel could not cite any authority of any High Court or of Supreme Court holding a contrary view. Hence, I find that the report Ex.PG is a valid and legal report and conviction can be based on it.

No other point is pressed before me.

Consequently, appeal being meritless is hereby dismissed. Appellant''s conviction and sentence is maintained. He is directed to surrender to his bail bonds to undergo the sentence.