Raju alias Bhola vs State of Haryana

R.L. Anand J.

This is a criminal appeal and has been directed against the judgment dated 14th November, 1995 and order dated 16th November, 1995 passed by the learned Additional Sessions Judge, Sirsa, who convicted appellant Raju alias Bhola under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act'') and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for a further period of two years.

The brief facts of the case are that on 17th August, 1993 ASI Hema Chand of Police Station City Dabwali along with Head Constable Raj Mal and some Constables was present in front of Bus Stand Dabwali. Bus No. HR128607 of Haryana Roadways came from Sangria side and stopped there. Accused Raju alias Bhola alighted from the bus and on seeing the Police Party he started moving quickly towards Bathinda chowk. In the meantime Sukhvinder Singh PW also reached there. The accused was apprehended on suspicion. Suspecting some narcotic substance in the bag of the accused, notice Exhibit PC was served upon him by ASI Hema Chand, inquiring from the accused whether the wanted to give the search in the presence of some Gazetted Officer or a Magistrate. The accused vide reply Ex. PC/1 opted for search in the presence of any Gazetted Officer or Magistrate. Thereupon Shri Sanjay Kundu, IPS, ASP Dabwali was summoned from his residence and he accordingly reached the spot. Under his supervision search of the bag belonging to the accused was taken and opium was found therefrom. On weighment it came to 2 kgs. Sample weighing 50 grams was taken out of the bulk and a sealed parcel was prepared. The remaining opium was separately sealed. Entire case property was sealed with the seal of ASI Hema Chand, bearing inscription `HC'' and it was taken into possession vide recovery memo. Ex.PD attested by witnesses, including Mr. Sanjay Kundu. The seal after and after retaining the specimen impression, was handed over to Mr. Kundu. The accused could not produce any licence or permit for the possession of opium. Resultantly, Ruqa (Ex. PE) was sent to the Police Station for the registration of the case and formal FIR (Ex.PE/1) was registered on its basis. ASI Hema Chand, Investigating Officer of the case, prepared rough site plan (Ex. PF) at the spot and recorded statements of the witnesses and arrested the accused. On return to the Police Station, he deposited the case property with Moharrir Head Constable (MHC). The sample of the opium was sent to the office of the Chemical Examiner, who found the contents as opium as per his report Ex. PG. On completion of the investigation, the accused was challaned in the Court of the Illaqa Magistrate, who supplied copies of the documents to the accused and vide commitment order dated 6th April, 1994, committed the accused to the Court of Session in order to face trial.

Vide order dated 17th May, 1994 learned Additional Sessions Judge, Sirsa, chargesheeted the appellant under Section 18 of the Act on the allegation that on 17th August, 1993 he was found in possession of opium weighing 2 kgs. without any licence or permit and, therefore, he allegedly committed an offence punishable under Section 18 of the Act. The charge was read over and explained to the appellant, to which he pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined as many as 8 witnesses. The prosecution also tendered in evidence the report of the Forensic Science Laboratory and closed its case.

On the closure of the prosecution evidence, the statement of the accused was recorded and all incriminating circumstances appearing in the prosecution case were put to him. The accusedappellant denied all the circumstances and stated that he was innocent and nothing was recovered from him. It was also pleaded by the appellant that he was implicated in some false cases of theft by the Police of Police Station Sadar, Dabwali. He was released from jail only a few days prior to the alleged date of recovery. He was arrested in some theft case also on 17th August, 1993 and was acquitted in that case later on. The Police, including Mr. Kundu had grudge against him due to his release from jail in the theft cases and therefore, he had been falsely implicated in the present case. In defence the appellant examined Shri Rameshwar Dutt, Record Keeper of Sessions Court, Sirsa, and closed his case.

Learned Additional Sessions Judge, Sirsa, convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction and sentence, present appeal has been filed by Raju alias Bhola.

I have heard Shri Gorakh Nath, learned counsel appearing on behalf of the appellant, and Shri Shailender Singh, Deputy Advocate General, Haryana, appearing on behalf of the State, and with their assistance have gone through the record of this case.

Learned counsel for the appellant criticised the story of the prosecution from different angles. His first argument was that the provisions of Section 55 of the Act had not been complied with, rendering the entire investigation as illegal. Elaborating his argument, Shri Gorakh Nath submitted that Shri Hema Chand, Investigating Officer, did not produce the case property before the SHO of the Police Station nor the SHO of the Police Station resealed the case property with his own seal, and in this manner the provisions of Section 55 of the Act, which are mandatory in character, have been violated.

The argument of the learned counsel for the appellant is devoid of any merit. First of all I may make a mention that the provisions of Section 55 are merely directory in nature and not mandatory in character, as stated by the learned counsel for the appellant. A reading of Section 55 of the Act lays down that "an officerincharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officerincharge of the police station." The object of incorporating Section 55 of the Act was to preserve the sanctity of the case property. Before any inference can be drawn in favour of the appellant, it has to be established on the record that there was officerincharge of the Police Station other than the Investigating Officer. It may equally be possible that the seizing officer may himself be the incharge of the Police Station and in that eventuality it is not necessary for the seizing officer to produce the case property before some other Police Officer. As I have stated above, the object of Section 55 of the Act is to preserve the sanctity of the case property. In the present case the sanctity of the case property has been preserved and maintained by the Investigating Officer when he handed over the seal of the case property to Shri Sanjay Kundu, who was none else but an IPS Officer of the Police Cadre. He was a Gazetted Officer of the Police Department and law expects that such an officer with such a status is not going to tell a lie in connivance with a junior officer of the rank of ASI like Shri Hema Chand. The evidence on the record is that the seal after use at the spot was handed over to Shri Kundu and the case property was handed over to the M.H.C. on the same day for safe custody. In this view of the matter, the first argument which has been raised by the learned counsel for the appellant is devoid of any merit and it is held that Section 55 is not mandatory in character and moreover the provisions of Section 55 have been fully complied with by the Investigating Officer.

It was then submitted by the learned counsel for the appellant that the case property has been tampered with by the prosecution. The learned counsel submitted that as per the statement of A.S.P. Shri Kundu, the sample of the opium was put in a tin container whereas the sample which was sent to the office of the Director, Forensic Science Laboratory, Madhuban, was contained in a plastic container.

The argument if examined in depth is totally devoid of any merit. Let me state how the proceedings went. Exhibit PB is the recovery memo. It talks of that out of 2 kgs. of opium, 50 grams of opium was separated and the remaining opium was also separated and both these chunks were separately sealed. This memo. does not talk if the sample of the opium was put in a tin box or in a plastic box. Ruqa (Ex. PE) was sent to the Police Station for the registration of the case. Even this does not talk about the putting of the sample of opium whether it was put in a tin box or in a plastic box. The case property was sealed with the seal of Shri Hema Chand, bearing the inscription `HC''. On the same day, i.e., 17th August, 1993, as per affidavit sworn by Moharrir Head Constable Ram Kumar, the case property with seals intact bearing inscription `HC'' along with the sample seal was handed over to him and thereafter the case property was handed over to Shri Balwant Singh on 31st August, 1993 for delivery in the office of the Director, Forensic Science Laboratory, Madhuban. Police Officers are busy officers and they perform multifarious duties. Evidence in this case was recorded much subsequent to the date of recovery. The statement of Shri Kundu, IPS, was recorded on 13th March, 1995. With the passage of time there can be a false impression about the nature of the Dibba (box) in which the opium was put. It is difficult to disbelieve the testimony of an IPS Officer, who has fully corroborated the statement of Shri Hema Chand, Investigating Officer. Both these officers have no axe to grind against the appellant. It is not believable that the Investigating Officer would plant opium weighing 2 kgs. upon the appellant from his personal resources. In these circumstances no benefit can be given to the appellant with regard to the nature of the container.

It was then submitted by the learned counsel for the appellant that the seal after use was not handed over to an independent witness, rather it was given to Shri Sanjay Kundu, who was working as ASP on the date of recovery.

This argument is also devoid of any merit. The purpose of handing over the seal to an independent person is to ensure that the case property should not be tampered with. We have seen in experience that even the independent witnesses, who are associated in the investigation, sometimes become shy in deposing against the smugglers and this has exactly happened in the present case. The independent witness in this case was Shri Sukhminder Singh. He was examined by the prosecution as PW3 but for the reasons best known to him, he did not support the story of the prosecution, though he admitted his signatures on the recovery memos. If the character of a citizen has stooped so low that he feels shy in telling the truth, it does not mean that such so called independent witnesses can dupe the law also. The Investigating Officer took all precautions while handing over the seal to Shri Kundu, who enjoyed the status of an IAS Officer. Handing over the seal to an independent witness is not the rule of law but a rule of caution. The object is that the case property must reach the office of the Chemical Examiner in the same state as it was recovered from the accused. In the present case, without wastage of time, the Investigating Officer shortly handed over the case property to the Moharrir Head Constable, who handed over the case property to Shri Balwant Singh Constable and the case property reached the office of the Chemical Examiner with seals intact with the specimen seal impressions. It was certified by the Chemical Examiner that the specimen seal impressions tallied with the seals on the sample parcel and there was no tampering of the seal. In these circumstances I repel the third argument raised by the learned counsel appearing on behalf of the appellant.

It was then submitted by the learned counsel for the appellant that the independent witness Shri Sukhminder Singh has not supported the story of the prosecution and, therefore, the benefit of doubt should go to the appellant.

This argument is again devoid of any merit. I have already condemned Shri Sukhminder Singh as a man of no character. Section 50 of the Act has been introduced for the benefit of the accused. a right has been given to the accused to give his search either in the presence of a Gazetted Officer as mentioned under Section 42 of the Act, or in the presence of a Magistrate. The appellant exercised his option to be searched in the presence of a Gazetted Officer. Shri Hema Chand associated a Gazetted Officer of the rank of IPS Officer and the testimonies of both the witnesses stand at par with that of nonofficial witnesses. Once the provisions of Section 50 of the Act have been complied with and once the statements of Shri Hema Chand and Shri Kundu inspired confidence in the mind of the Court about the genuineness of the recovery, their statements can be acted upon in order to confirm the conviction. I have not been able to see any circumstance from which the statements of Shri Kundu and that of the Investigating Officer should be disbelieved. Both these witnesses stood the test of crossexamination and no tangible discrepancy has come in their statements from which I am able to hold that they are not truthful witnesses.

It was then submitted by the learned counsel for the appellant that link evidence in this case is missing. According to the learned counsel, though at one stage it was stated that the case property first was handed over to Shri Ram Kumar who handed it over to Shri Balwant Singh, but later on it has come that this case property was also handed over to Head Constable Raj Mal and there is no statement of Shri Raj Mal to the effect that he tackled the case property.

The argument is again devoid of any merit. As per report Ex. PG of the Chemical Examiner, the case property reached the Laboratory on 3rd September, 1993 through Constable Balwant Singh. It was despatched vide R.C. No. 263 dated 23rd August, 1993 and the forwarding letter bore No. 1266 dated 1st September, 1993. It was obtained from the office of the Deputy Excise & Taxation Commissioner, Sirsa. As per report Ex. PA of Shri Ram Kumar, Head Constable, the case property was entrusted to him with seals intact with the sample seal on 17th August, 1993 by Shri Hema Chand. He entrusted the sample of the opium to Shri Balwant Singh Constable No. 911 on 31st August, 1993 and he handed over the same in the Laboratory on 1st September, 1993 vide R.C. No. 263 and this was so certified by the Director, Forensic Science Laboratory. Unnecessary confusion has been created by the learned defence counsel in order to show that the case property was dealt with by constable Raj Mal. At no point of time it has been shown by the learned counsel for the appellant that Shri Raj Mal had the opportunity or the occasion to tamper with the case property. In this view of the matter I do not extend any benefit of doubt to the appellant to the effect that the alleged link evidence is missing.

It was then submitted by the learned counsel for the appellant that the story of the prosecution looks to be unnatural because as per the version of the prosecution, the appellant Shri Raju alias Bhola alighted from the bus and was apprehended by ASI Hema Chand, but strange enough no bus ticket was found in the possession of the appellant and no currency was found in his pocket.

This argument of the learned counsel for the appellant may look alluring at the first instance, but on my deeper scrutiny, I found it to be without any force. No Jama Talashi memo. was prepared at the spot. It is equally possible that the appellant, who according to his own admissions was involved in many cases, might have destroyed the tickets of the bus on seeing the Police Party and this act might have remained unnoticed by the Investigating Officer. The carrying of money by the appellant is not necessary. The appellant, who looks to be a dealer in the trade of opium might be carrying the opium in order to sell the same to undesirable persons and he would obtain money after sale. The point for determination in this case is whether opium has been recovered from the possession of the appellant in the manner as deposed by the prosecution or not. In this regard there is consistent statement of the Investigating Officer besides that of Shri Sanjay Kundu. Both these witnesses have consistently deposed about the search. The provisions of Section 50 have been complied with. There is no ground to disbelieve the sworn testimony of Shri Hema Chand and that of Shri Sanjay Kundu. The link evidence in this case is complete.

Learned counsel for the appellant has relied upon the authority of this Court reported as Prem Singh v. State of Haryana, 1996(2) Recent Criminal Reports 44. This authority is not applicable to the facts in hand. I have already stated above that the objection of Section 55 is to preserve the sanctity of the case property. The Investigating Officer after sealing the case property at the spot, did not waste any time and restored its custody to the Moharrir Head Constable, who kept the case property with seals intact till the sample of the opium was despatched. Learned counsel for the appellant also relied upon Bhagwan Dass v. State of Haryana, 1996(2) Recent Criminal Reports 101. This authority also does not come to the rescue of the appellant. It is not established on the record that some other officer than the Investigating Officer was discharging the duties of SHO of the Police Station and in these circumstances, no inference can be drawn against the prosecution. The counsel also relied upon Sees v. State of Punjab, 1995(3) RCR 16. The facts of this case are also distinguishable. Learned counsel for the appellant also relied upon Jagan Nath v. State of Punjab, 1996(3) RCR 46. I have gone through this authority very minutely. Nowhere acquittal was given by the High Court on the solitary fact that the seal was not handed over to the independent witness. For this reason I am also not inclined to place reliance on Resham Singh v. State of Punjab, 1996(3) RCR 629 . The citation reported as Makhan Ram v. State of Punjab, 1995(2) RCR 424, is also not applicable. In the present case effort was made by the Investigating Officer to associate independent witness. It depends upon the character and courage of the independent witness whether he would ultimately give his statement in the Court or not. If the witness has not supported the prosecution at the trial, fault cannot be attributed to the prosecution so long as there is cogent evidence to establish the factum of recovery. In the present case there is statement of the Investigating Officer which was corroborated by Mr. Sanjay Kundu. The citation reported as Sarwan Singh v. State of Punjab, 1973 CLR 620, relied upon by the learned counsel for the appellant, is not applicable to the facts in hand. Every case has to be seen from its own angle and on its own facts.

After scanning through the entire evidence led by the prosecution on record, I am of the considered opinion that the prosecution has been able to prove the charge against the accused beyond any reasonable doubt, by leading cogent, reliable and satisfactory evidence, and I do not see any infirmity or illegality in the judgment and order passed by the trial Court.

There is no merit in this appeal and the same is hereby dismissed. Intimation about the dismissal of this appeal be sent to the jail authorities.