Ram Singh vs State of Haryana

R.L. Anand, J.

Ram Singh son of Bharat Singh, a young boy of 22 years, resident of Model Town, Bhuna, District Hissar has filed the present criminal appeal and it has been directed against the judgment dated 17.7.1998 and order dated 20.7.1998 passed by Addl. Sessions Judge, Hissar, who convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as `the Act'') and sentenced him to undergo R.I. for 10 years and the pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was directed to further undergo R.I. for 2 years.

The brief facts of the case are that on 10.4.1997 Ishwar Singh ASI along with Chhailu Ram HC, Raghbir Singh Constable etc. was on patrol duty at Rasulpur bus stand chowk. Jagdish son of Sher Singh met him and while they were talking, Ram Singh (also described as Ram Phal) came from the side of village Rasulpur with a bag in his right hand and on seeing the police party, he tried to retreat, but on the basis of suspicion he was apprehended. The police party suspected some narcotic substance in the possession of the appellant. Therefore, notice was given to him to the effect whether he wanted to give his search in the presence of a Gazetted Officer or a Magistrate, but the appellant reposed confidence in the police party. His statement was recorded. It was read over and explained to him. The appellant signed his statement in token of its correctness and it was attested by the members of the police party besides Jagdish, the independent witness who was associated in the police party by the Investigating Officer. On the search of the bag, opium was found. It was weighed and came to 2 kgs. The Thanedar separated 100 grams of opium by way of sample and made a sealed parcel thereof by using his own seal bearing inscription `ISR''. The remaining opium was also separately sealed. The entire case property was taken into possession. The appellant could not produce any licence or permit for the possession of the opium. Intimation was sent to the concerned police station for the registration of the case and thus formal F.I.R. was registered. The appellant was produced before SI/SHO Zile Singh, who resealed the case property with his own seal bearing inscription `ZS''. The sample of the opium was sent to the office of Chemical Examiner/Director Forensic Science Laboratory and on receipt of the report Ex.PJ, the appellant was challaned in the Court of Area Magistrate, who supplied the copies of documents to the appellant and vide commitment order dated 17.7.1997 committed the appellant to the Court of Sessions in order to face the trial.

Vide orders dated 20.9.1997, the appellant was chargesheeted under Section 18 of the Act on the allegations that on 10.4.1997, in the area of village Jabta Khera he was found in conscious possession of one bag containing 2 kgs. opium without any permit or licence and thereby committed the said offence. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

In order to prove the charge, prosecution examined Sat Narain SI PW1, Hem Chander H.C. PW2, Jagdish PW3, Chhailu Ram HC PW4, Balwant Singh HC PW5, Jagdish Rai Constable PW6, Babu Ram ASI PW7, Ishwar Singh ASI PW8 and Zile Singh SI PW9. I will give the brief description of their statements in the later portion of this judgment. Continuing with the part of the investigation, Ex.PA is the special report which was sent to the higher authorities under Section 57 of the Act. This special report was received by Zile Singh SI on 10.4.1997 and was seen by DSP Tohana on 11.4.1997. Ex.PB is the notice which was given to the appellant under Section 50 of the Act in the presence of Chhailu Ram HC and Jagdish son of Sher Singh. Ex.PB/1 is the reply of the appellant. Ex.PC is the confiscation memo of the case property. Ex.PD is the grounds of arrest through which the appellant was informed under which Section he was going to be arrested. Ex.PE and Ex.PF are the affidavits of Balwant Singh HC and Jagdish Rai Constable, who handled the sample of the opium from the date of the seizure upto the date of delivery in the office of the Director, Forensic Science Laboratory. Ex.PG is the ruqa which was sent to the police station for the registration of case and Ex.PG/1 is the formal F.I.R. Ex.PH is the rough site plan of the place of recovery. Ex.PJ is the report of the office of Director, Forensic Science Laboratory, who declared the contents of the sample as opium.

It has come in the statement of PW1 SI Sat Narain that on 6.7.1997 when he was posted as SI/SHO, Police Station Sadar Tohana, he prepared the challan of this case after the completion of investigation. PW2 Hem Chander, HC stated that on receipt of the report Ex.PA under Section 57 of the Act, he presented the same before DSP Kuldip Singh Sihag, who put his signatures at point Ex.PA/1. PW3 Jagdish, who was associated in the police party just before the search of the appellant, has not supported the case of the prosecution and according to this witness nothing was recovered from the possession of the appellant. He was declared hostile and in the crossexamination he admitted his attestation on the notice Ex.PB and reply Ex.PB/1. He also admitted his attestation on grounds of arrest Ex.PD and recovery memo Ex.PC. PW4 is Chhailu Ram HC, who categorically deposed that on 10.4.1997 he was the member of the police party and in his presence from the possession of the appellant opium weighing 2 kgs. was recovered and the appellant could not produce any permit or licence. It has further come in his statement that a sample of 100 grams opium was separated and the rest of the opium weighing 1 kg. 900 grams was separately sealed by the Thanedar Ishwar Singh with his own seal bearing inscription `ISR''. He further stated that the case property was produced before Zile Singh SI/SHO, who resealed the same with his own seal bearing inscription `JS''. PW5 Balwant Singh HC gave his statement on affidavit Ex.PE and PW6 Jagdish Rai Constable also gave his statement on affidavit Ex.PF. PW7 Babu Ram ASI simply recorded the formal statements of two witnesses under Section 161 Cr.P.C. PW8 Ishwar Singh, ASI supported the case of the prosecution in all particulars by stating that he recovered the opium in the presence of the witnesses and the weight of the opium was 2 kgs. He performed the other formalities of the investigation and he sealed the case property with his own seal bearing inscription `ISR''. He further deposed that he produced the case property and the appellant before Zile Singh SI/SHO, who resealed the case property with his own seal. Zile Singh SI while appeared as PW9 deposed that he resealed the case property with his own seal bearing inscription `ZA'' and further that he also received the special report of this case under Section 57 of the Act.

Statement of the appellant was recorded under Section 313 Cr.P.C. in which he stated that he had been falsely implicated and that nothing was recovered from his possession. According to him, the police wanted to get begar from him to which he flatly refused and at this police officials beat him and this false case was planted upon him. He did not lead any evidence in defence.

The learned trial Court for the reasons given in the impugned judgment convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence, the present appeal. The reasons of conviction are contained in para Nos. 7 to 13 of the judgment and it will be useful for me to reproduce the same for the purpose of appreciation :

"7. Learned counsel for the accused has urged that Jagdish PW3 has not supported the prosecution case and the case against the accused rests upon the testimony of only official witnesses. It is also submitted that as minimum severe punishment is prescribed for the offence, so there should be close scrutiny of the evidence in this case. It is also urged that as there is no independent corroboration, so no reliance on the testimony of the official witnesses should be placed and in support of his contention, learned counsel for the accused has cited before me authority Sunil Kumar v. State, 1995(1) Recent C.R. 638. But these submissions made by learned counsel for the accused are without any merit. There are no reasons to disbelieve the testimony of the official witnesses in this case. No malice or motive is attributed to the prosecution witnesses. The official witnesses also deserve the same treatment as is given to the public witness. Mere fact that the accused has been able to win over the public witness, prosecution case cannot be discarded. In this case, there is consistency in the statements of Chhailu Ram HC PW4 and Ishwar Singh ASI PW8 on all the material points and their statements inspire confidence. In Division Bench authority Roop Singh v. State of Punjab, 1996(1) Recent C.R. 146, it has been laid down that the testimony of the official witnesses cannot be discarded unless these witnesses are malicious. In this authority, it is also laid down that when recovery of contraband is proved, the onus is on the accused to show that he was not in conscious possession of the contraband. As envisaged by Section 54 of the Act, presumption arises against the accused and onus shifts upon the accused to prove that he was not having opium in question in his possession. From the consistent statements of the prosecution witnesses, the recovery of the opium in question from the possession of the accused is fully proved.

Learned counsel for the accused has also urged that there is delay of 11 days in sending the sample and so, possibility of tampering the same cannot be ruled out. It is also submitted that no reason is forthcoming that as to why the sample was not sent earlier. It is also submitted that on 10.4.1997, the sample was taken, but as is clear from the affidavit Ex.PE of Balwant Singh MHC, the sample has been handed over to Jagdish Rai Constable on 21.4.1997. Affidavit of Jagdish Rai Constable Ex.PF has also referred. Thus, it is submitted that there is delay of 11 days in sending the sample and so, prosecution case becomes doubtful. In support of his contention, learned counsel for the accused has cited before me authority Narain v. State of Haryana, 1997(1) Recent C.R. 414. But this authority does not apply to the present case. A perusal of the report Ex.PJ of the Director, F.S.L. shows that the sample has reached intact. The seals on the sample were found intact and tallied with the specimen seal. In affidavit Ex.PE of Balwant Singh PW5 and in affidavit Ex.PF of Jagdish Rai PW6, it is specifically mentioned that the sample was not tampered in any manner, during the period it remained in their custody. No reason whatsoever has been asked from Balwant Singh HC PW5 as to why the sample could not be sent earlier. Thus, the contention of learned counsel for the accused is without any merit.

The next contention raised by learned counsel for the accused is that according to the prosecution case, 100 grams of opium was taken out as sample, but a perusal of the report Ex.PJ of the Director, F.S.L. shows that approximate weight of the sample was found 98 grams. It is urged that the prosecution has not explained this difference and so, chances of tampering of sample cannot be ruled out. In support of his contention, learned counsel for the accused has cited before me authorities Balwinder Singh v. State of Haryana, 1996(3) Recent C.R. 317 , Ramesh v. State of Haryana, 1998(1) Criminal Court Judgments 142 and Darshan Singh v. State of Punjab, 1998(1) Recent C.R. 426. But these authorities do not apply to the present case. First of all, in the report Ex.PJ only approximate weight is mentioned. There is always difference of scale and weights. It is not possible to weigh the sample taken by the Investigation Officer and sample weighed by the Analyst with the same scale and weight. Moreover, in Division Bench authority of our Hon''ble High Court Balwinder v. State of Haryana, 1998(1) RCR(Crl.) 834 in para No. 23, it has been observed that the difference in the weight is negligible and the weight of the sample given in the report of the Chemical Examiner is only approximate.

Learned counsel for the accused has also urged that the case property was not bearing the seal. It is further submitted that Ishwar Singh ASI PW8 has stated that he did not affix any seal on the bag. The particulars given on the case property were State v. Ram Phal. The father''s name was not mentioned on the slip and it is further submitted that the link evidence is missing because affidavits are not put to the accused in statement u/s 313 Cr.P.C. The possibility of the tampering cannot be ruled out. In support of his contention, learned counsel for the accused has cited before me authority Satnam v. State of Punjab, 1996(3) Recent C.R. 369 and authorities Saravjit Singh v. State of Punjab, 1998(1) Recent C.R. 349 , Ramesh v. State, 1998(1) Criminal Court Judgments 142 and Santosh Kumar v. State of Haryana, 1997(4) RCR(Crl.) 493. Not doubt, the prosecution is to prove affirmatively right from the stage of seizure till it reaches Chemical Examiner there was no possibility of change or tamper with the sample. But in this case, the various contentions raised by learned counsel for the accused are not substantiated from the evidence adduced on the file. Authorities cited do not apply to the present case. Only on the basis of minor snags and difference, prosecution case cannot be discarded. Affidavits of Balwant Singh H.C. PW5 and Jagdish Rai Constable PW6 are put to the accused in statement u/s 313 Cr.P.C. These witnesses have also not been crossexamined on the point of tampering sample. These witnesses namely Balwant Singh HC PW5 and Jagdish Rai Constable PW6 have appeared before the Court and have also filed their affidavits. The defect, if any in the affidavits as submitted by learned counsel for the accused has become meaningless when they have appeared in the Court to afford an opportunity to the accused for crossexamination. Authority Balwinder Singh v. State of Haryana, 1998(1) RCR(Crl.) 191 may be looked into on this point. A perusal of the affidavits of those witnesses read with Chemical Examiner report Ex.PJ speaks volumes about this fact that the sample was not tampered in any manner and it remained intact till it was analysed.

Learned counsel for the accused has also urged that the investigation in this case is not verified by any gazetted officer. It is also submitted that it is not proved by the prosecution that the opium in question was produced before some gazetted officer and so prosecution case becomes doubtful. Authority Barjinder v. State of Punjab, 1998(2) Recent C.R. 524 has been cited before me. But this authority also does not apply to the present case because it has transpired from the evidence adduced on the file that Sh. Ishwar Singh, ASI, Investigating Officer has produced the accused alongwith case property before Sh. Zile Singh, Incharge of the police station, who after verifying the facts has put his seal on the sample parcel and remaining bulk parcel. Then it is also stated by Zile Singh SI PW9 that he sent report Ex.PA with his endorsement to D.S.P. Tohana. A perusal of the copy of the F.I.R. Ex.PG/1 also shows that a copy of same has been sent to the Senior police officer. Thus, the contention of learned counsel for the accused is without any merit.

Learned counsel for the accused has criticized the statements of the prosecution witnesses on some minor contradictions. It is submitted that Ishwar Singh ASI PW8 has stated that he had asked 3 or 4 persons of the public to become witnesses, but they refused. It is further submitted by learned counsel for the accused that Chhailu Ram PW4 has not stated about this fact, rather he has stated that none passed from Rasulpur chowk during their stay at the spot. It is further submitted by him that people were working in the fields. He has stated that there is no shop, house etc. near the place of occurrence. But Ishwar Singh ASI PW5 has stated that nobody was working in the nearby fields and there was flow of traffic at the spot. But these contradictions are not material. The same are bound to occur as a result of variation in the faculty of observation, recollection and memory. The main substratum of the prosecution case is not impaired in any manner.

A perusal of the report of the Director, F.S.L. Madhuban shows that the sample was found to be of opium. The accused could not produce any permit or licence for keeping the opium in his possession. It may also be mentioned before parting that there is also compliance of mandatory provisions of Section 50 of the Act as is clear from the statements of Chhailu Ram PW4 and Ishwar Singh ASI PW8."

I have heard Mr. Atul Lakhanpal, Advocate, for the appellant, Mr. J.S. Ahlawat, Advocate for the State of Haryana and with their assistance I have gone through the record of this case.

There was nothing much to say on the part of the learned counsel for the appellant in this case as this Court after going through the evidence of the lower Court has come to this impression that recovery of opium weighing 2 kgs. stands proved from the possession of the appellant and this recovery is proved through the statement of SI Ishwar Singh and HC Chhailu Ram. The Court is further convinced that other formalities of the case such as compliance of Sections 50, 52, 55 and 57 has also been made. However, the learned counsel for the appellant raised three contentions. His first contention was that Jagdish PW, who was associated in the police party, has not supported the case of the prosecution and it will be a risky affair to base the conviction on the testimony of Ishwar Singh ASI and Chhailu Ram HC. I do not subscribe to the argument raised by the learned counsel for the appellant. It is true that Jagdish PW3 has not supported the prosecution case but his association in the police party is an honest attempt on the part of the Investigating Officer who with all fairness tried to associate an independent witness before serving notice under Section 50 of the Act and before effecting the search of the bag which was found in the possession of the appellant. Jagdish PW3 has been tested by the prosecution. He has not been withheld from the Court. It has been seen in experience by the law Courts that independent witnesses invariably are reluctant to assist the law. The statement of PW3 Jagdish to the effect that nothing was recovered from the possession of the appellant cannot be accepted. This witness had to admit in the crossexamination his signatures on the various documents. He never filed any complaint to the higher authorities that his signatures were obtained by way of attestation on blank papers. He never raised the cause of the appellant to the effect that he was falsely implicated. There can be variety of reasons why Jagdish is suppressing the truth. He could have been allured by the accused. He might under threat of the accused was not ready to support the case of the prosecution. Irrespective of the fact that a public witnesses has not supported the case of the prosecution, still the conviction can be based on the testimony of the police officials if their statements inspire confidence in the mind of the Court about the genuineness of the recovery. The only test is that such statements should be read with care and caution so that no prejudice may be caused to the accused. I have gone through the statements of Ishwar Singh ASI and that of Chhailu Ram HC with the assistance rendered by the learned counsel for the parties. Both the witnesses are consistent regarding the factum of recovery, place of recovery, time of recovery and the manner in which the search has been taken and also in the manner how the sample was preserved. In this view of the matter, I reject the first contention raised by the learned counsel for the appellant which was to the effect that the appellant deserves acquittal on account of the nonsupporting of the case of prosecution by Jagdish PW3.

The second argument which was raised by the learned counsel for the appellant is that the link evidence in this case is missing. I do not subscribe to this argument also. It is the case of the prosecution that the opium was recovered on 10.4.1997. The affidavit of HC Balwant Singh shows that the case property with seals intact bearing seals `IS'' and `JS'' was received by him. He handed over the case property to Constable Jagdish Rai on 21.4.1997 and on 22.4.1997 the case property was handed over in the office of Director, F.S.L. Madhuban. I may here make a mention that there is some clerical mistake in the affidavits Ex.PE and Ex.PF. The case of the prosecution was specific that first the case property was sealed with the seal bearing inscription `ISR'' and then the seal bearing inscription `ZS''. The report of the Chemical Examiner EX.PJ shows that there were two types of seals bearing inscriptions `ZS'' and `ISR''. F.I.R. No. 95 dated 10.4.1997 registered in Police Station Sadar Tohana under Section 18 of the Act has also been given on the sample of the opium which was sent to the office of Director, F.S.L., Madhuban. There is hardly any delay in sending the sample to the office of the Director, F.S.L.

The third argument which was raised by the learned counsel for the appellant is that the identity of the case property which was produced in the Court has not been established. In this regard, the learned counsel for the appellant invites my attention to the statement of PW4 HC Chhailu Ram, who made the following statement before the trial Court :

"....It is correct that the slip which is affixed on the remaining bulk parcel bears State v. Ram Phal....."

The counsel submitted that the name of the accused is Ram Singh and not Ram Phal. Further, it has been admitted by this witness as follows :

"....There is no seal on the bag in which remaining bulk parcel Ex. P1 is containing......"

My attention has also been invited to the statement of PW8 Ishwar Singh ASI, who deposed as follows :

"....Ex.P1 was the same which I got recovered from the accused. No seal was affixed on the bag. The slip affixed on the bag is written by me with my own hand. It is correct that name of accused is mentioned as State v. Ram Phal on the slip. It is correct that there is no mention of father''s name and village of the accused on the slip......"

From the above statements of these witnesses, a presumption is sought to be raised that the case property of some other case was produced at the stage of recording the prosecution evidence. This argument is not acceptable to this Court. If the statements of both the witnesses namely HC Chhailu Ram and SI Ishwar Singh are read closely, HC Chhailu Ram, PW4 has clearly deposed that F.I.R. No. 95 dated 10.4.1997 under N.D. and P.S. Act has been written on the bulk of the case property which was produced in the Court. The Investigating Officer has also deposed categorically that it is the same bag Ex.P1 which was recovered from the possession of the accused. Moreover, in such cases we have to determine about the contents of the seized articles as to whether those are narcotic drugs/psychotropic substance or not. The sample was despatched to the office of Director, F.S.L. Madhuban. The material for affixing the seals is invariably of wax which is very brittle and with the passage of time the seals may not remain on the gunny bag or plastic bag. Moment the sample of the opium reaches the office of the Chemical Examiner for its analysis, it has to be inferred that the sanctity of the seizure has been maintained by the police. The Chemical Examiner has certified that the sample had two types of seals bearing inscriptions `ISR'' and `ZS''. The name of the accused is Ram Singh. His father''s name is the same. Address is also correct. In the light of this, I am of the opinion that the case property has not been tampered with.

No other point was urged before me.

Resultantly, I do not see any merit in this appeal and dismissed the same.