Ravinder vs State of Haryana

A.S. Nehra, J.

This appeal is directed against the judgment and order dated 21.9.1985 passed by the Additional Sessions Judge, Jind, by which Ravinder, appellant has been convicted under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1,00,000/ and in default of payment of fine, to undergo further R.I. for a period of two years.

Briefly stated, on June 29, 1994, HC Fakir Chand (PW5) was holding a naka at Data Singhwala barrier. While checking an Haryana Roadways bus coming from Narwana side, he apprehended the appellant on suspicion. Thereafter, HC Fakir Chand sent a verbal message to Sub Inspector Om Parkash, who was on patrol duty near Pepsu Hotel, close to village Ujhana. On receipt of message, SI Om Parkash immediately reached the spot where HC Fakir Chand produced before him the appellant alongwith a gunny bag alleged to contain contraband. Thereafter S.I. Om Parkash served a notice, Ex.PB, on the accused apprising him about his right to be searched in the presence of a gazetted officer or a Magistrate, to which the accused desired to be searched in the presence of a gazetted officer. Accordingly, S.I. Om Parkash sent a verbal message to Shri Sukhdev Singh, DSP, Narwana, who came to the spot at 12 noon, disclosed his identity to the accused and directed S.I. Om Parkash to open the gunny bag, Ex.P1, which was being carried by the accused at the time of his apprehension. On search of the said gunny bag, 18 kgs. 250 grams of poppy husk was recovered, out of which 250 grams were separated as sample. Both the sample and the remaining quantity of contraband were separately sealed with seal bearing impression `BS'' and taken into possession vide recovery memo, Ex.PA, duly attested by Sukhdev Singh, DSP, HC Balbir Singh and HC Fakir Chand. The seal after use was handed over to HC Balbir Singh. Thereafter, the Investigating Officer sent ruqa, Ex.PC to the police station, Garhi; on the basis of which formal FIR, Ex.PC/1 was recorded, prepared rough site plan, Ex.PD, of the place of recovery with correct marginal notes, recorded the statements of the witnesses, arrested the accused and on return to the police station, deposited the case property, with seal intact, alongwith seal impression, with MHC Phool Kumar. On receipt of the report, Ex.PZ, of the Chemical Examiner and after completion of investigation, the challan was presented against the accused.

To prove its case, the prosecution examined Sukhdev Singh DSP as PW1, HC Balbir Singh as PW2 and HC Fakir Chand as PW5. All these eyewitnesses fully supported the prosecution case and gave a detailed version of the manner in which contraband in question was recovered from the appellant.

PW.3 is Constable Ishwar Singh who had taken the sample of poppy husk to the office of F.S.L., Madhuban vide R.C. No. 321 dated 4.7.1994 and he categorically stated that so long as the sample remained in his custody, he did not tamper with the same nor allowed anybody to tamper with it. He also produced his affidavit, Ex.PX.

PW.4 MHC Phool Kumar stated that on 29.6.1994, S.I. Om Parkash (PW.6) had deposited the case property and seal impression `BS'' with him and that he handed over the sample parcel containing poppy husk to Constable Ishwar Singh (PW3) for its deposit in the office of Director, F.S.L. Madhuban for analysis. He also produced his affidavit, Ex.PY/1 and extract of Malkhana register Ex.PY to prove the entrustment of the case property to him.

PW.6 SI Om Parkash is the Investigating Officer of the case, who also supported the prosecution case and deposed in detail about the manner in which the investigation was carried out by him. The prosecution also tendered in evidence, the report, Ex.PZ of Chemical Examiner.

When examined under Section 313 of the Code of Criminal Procedure, the accused denied the prosecution allegations against him in toto and pleaded his false implication. He, however, did not lead any evidence in defence.

I have heard Mr. R.N. Lohan, Advocate, learned counsel for the appellant and Mr. Gobind Dhanda, Assistant Advocate General, Haryana for the State and have carefully gone through the record with their assistance.

Learned counsel for the appellant assailed the case of the prosecution on the ground that despite availability of independent witnesses at the time of apprehension of the accused, the police had not joined any such witness, which had rendered the case of the prosecution doubtful. In support of his contention, he placed reliance on State of Haryana v. Raghuraj, 1992(1) RCR (Crl.) 153 : 1992(1) Chandigarh Criminal Cases 451 , wherein it had been emphasised that in a case where independent witnesses were available but they were not joined by the police deliberately, the circumstance in itself introduced an element of doubt in the prosecution case. He also referred to the testimony of HC Balbir Singh (PW.2) and HC Fakir Chand (PW.5) where they had specifically stated that several persons were passing near the barrier.

It was next contended by learned counsel for the appellant that the presence of the DSP Sukhdev Singh (PW.1) at the spot was highly doubtful as neither the sample nor the residue quantity of contraband bore his seal and, as such, no reliance could be placed on the testimony of the D.S.P. Sukhdev Singh. He further contended that once the presence of the D.S.P. at the spot is not proved, the case of the prosecution would suffer for noncompliance of mandatory provisions of Section 50 of the Act. To support his contention, he relied upon State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 735.

On the other hand, Mr. Gobind Dhanda, Assistant Advocate General, Haryana referred to the statement of PW1 Sukhdev Singh, DSP, PW2 HC Balbir Singh, PW5 HC Fakir Chand and PW6 SI Om Parkash and submitted that all these eye witnesses had taken a consistent stand as regards the manner in which the accused was apprehended at Datasinghwala barrier during the checking of Haryana Roadways bus by PW5 Fakir Chand HC and recovery of poppy husk from his possession. He further referred to the report, Ex.PZ, of the Chemical Examiner and submitted that link evidence in this case was complete, which further corroborated the case of the prosecution that the contraband recovered from the possession of the accused was poppy husk. He further contended that the case of the prosecution was not to be thrown out for the simple reason that the police party had not associated independent witnesses as it was a case where an attempt was made by the police party to associate the witnesses of the public by requesting the passersby, who showed their inability to join the investigation. It is a common feature that witnesses from the public generally prefer to refrain themselves from undergoing the turmoil of the procedure of trial as they feel it to be a wastage of time to attend the court proceedings in the matter in which they have no personal interest. Moreover, it is nowhere suggested to any of the witnesses of the prosecution that any member of the police party was inimical to the accused. Admittedly, the accused hails from village Kilapur in Uttar Pradesh. He was apprehended by the police party alongwith two other accused who also hail from Uttar Pradesh. All of them were carrying contraband in their respective bags and they were nabbed during the checking of Haryana Roadways bus under suspicious circumstances by PW5 HC Fakir Chand. As the accused was apprehended by the police with bag, Ex.P1, from Haryana Roadways bus alongwith other two accused, Ajay Pal and Ram Singh, no bus passenger would like to leave the bus midway their destination so as to be a witness to the recovery of the contraband. Once the accused was apprehended by the police party with a gunny bag containing some contraband, the police had complied with the provisions of Section 50 of the Act by summoning DSP Sukhdev Singh, under whose orders the gunny bag, Ex.P1, was opened by the SI Om Parkash PW6 and it was found to contain 18 kgs. 250 grams of poppy husk. All the witnesses of the prosecution have supported the case of the prosecution so far as the presence of the DSP Sukhdev Singh is concerned at the relevant time. Even, it is nowhere suggested to DSP Sukhdev Singh (PW1) that he was not present at the spot. Therefore, his presence at the spot is established. The testimony of DSP Sukhdev Singh is not to be brushed aside for the simple reason that he had not affixed his seal on the sample parcel and the residue quantity of contraband. As such, the prosecution has been able to prove not only compliance of mandatory provisions of Section 50 of the Act but also it has furnished cogent explanation for nonjoining of the independent witnesses. The accused has not led any evidence in defence to prove that the present case had been falsely registered against him by the police. The only plea taken by the accused is that the prosecution witnesses, being police officials, were interested in the success of the case, but it is no ground to discard their testimony which otherwise is cogent and trustworthy. The accused could not spell out that any member of the police party was inimical to him and, consequently, planted the present case against him. Moreover, heavy quantity of contraband was recovered from the accused and it cannot to be taken as a case of false implication by the police.

In view of the above discussion, there is no merit in the appeal and the same is hereby dismissed.