Roop Chand vs State of Punjab

R.L. Anand, J.

This is criminal appeal and has been directed against the judgment and order dated 13.10.1998 passed by Addl. Sessions Judge, Barnala, who convicted appellant Roop Chand under Section 19 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ''the Act'') and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was directed to further undergo R.I. for two years.

The brief facts of the case are that on 13.9.1995 ASI Kishan Singh, in charge Police Post Rureke Kalan along with HC Gurcharan Singh and other police officials was holding a nakabandi on the bridge of the drain on a kutcha path going from Dhaula to Khudi Khurd in the area of village Dhaula. In the meantime, Kulwant Singh PW met the policy party. After some time Roop Chand appellant came there from the side of Khudi Khurd and he was having a Jhola in his hand. On seeing the police party present there, he tried to turn back, but was apprehended on the basis of suspicion. ASI Kishan Singh told him that the search of the Jhola was to be conducted and whether he wanted the search in the presence of a Gazetted Officer or a Magistrate. The appellant opted that the search may be conducted in the presence of a Gazetted Officer. A consent memo was prepared in this regard. Thereafter the Investigating Officer through wireless message requested DSP Darshan Singh to reach at the spot. Resultantly, DSP Darshan came at the spot and he disclosed his identity to the appellant. Then in the presence of DSP Darshan Singh search of the Jhola was taken by ASI Kishan Singh and opium was found wrapped in a glazed paper. On weighment it came to 2 Kgs. The Thanedar separated two samples of 10 grams each of opium and sealed them with his own seal bearing inscription ''KS''. The samples were further sealed by DSP Darshan Singh with his seal bearing inscription ''DS''. The remaining opium was also sealed with those very seals. A sample impression was also prepared at the spot and all the articles were taken into possession vide separate recovery memo. The appellant could not produce any permit or licence for the possession of opium. Resultantly, ruqa was sent to the police station for the registration of case, on the basis of which formal FIR was recorded. The appellant and the case property were also produced before the SHO of the Police Station, who, of course, did not reseal the case property because of the fact that it had already been resealed by the DSP. The case property was ordered to be deposited in the Malkhana of the police station. One sample of the opium weighing 10 grams was sent to the office of the Chemical Examiner, who declared the contents of the sample as opium. On completion of investigation of the case, challan was submitted in the court of Area Magistrate, who supplied the copies of the documents to the appellant and vide commitment order dated 4.12.1995 committed the appellant to the Court of Session.

Vide order dated 9.12.1995, the learned Addl. Sessions Judge, Barnala chargesheeted the appellant on the allegations that on 13.9.1995 in the area of village Dhaula he was found in possession of 2 Kgs. contraband opium containing morphine 4.40% and meconic acid and thereby he committed an offence under Section 18 of the Act. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

The oral evidence which was produced by the prosecution is as follow :

PW1 is ASI Krishan Chand before whom the case property and the appellant were produced by ASI Kishan Singh. The case property was sealed with the seals of ''KS'' and ''DS''. This witness verified the investigation and then deposited the case property with MHC Baldev Singh. In the crossexamination this witness deposed that he did not put his own seal on the parcels.

PW2 is HC Gurcharan Singh. He is a witness of recovery and has proved the factum of recovery of opium weighing 2 Kgs. from the possession of the appellant.

ASI Kishan Singh, the Investigating Officer, appeared as PW3 and he has supported the case of the prosecution in its entirety.

DSP Darshan Singh appeared as PW4. He stated that in his presence the search of the appellant was conducted and opium weighing 2 Kgs. was recovered from the Jhola. He also stated that he received the special report of this case under section 57 of the Act. In the crossexamination, DSP Darshan Singh deposed that he was promoted as DSP 5/6 years ago and he joined the police department as a Constable. His substantive rank was Inspector when he made his statement before the court on 9.9.1998. He further deposed that he received the information from ASI Kishan Singh at about 4.45 p.m. when I was sitting in his office.

The documentary evidence on which the prosecution is placing reliance can be described as under :

Ex.PA is the affidavit of MHC Baldev Singh, who gave his statement on affidavit with regard to the deposit of case property with him by PW1 ASI Kishan Singh. Ex.PB is the affidavit of Constable Harbans Singh, who took the sample of the opium to the office of the Chemical Examiner. Ex.PC is the report of the Chemical Examiner, which shows that the sample was received in the office of Chemical Examiner on 19.9.1995, just after six days of the recovery and it was having two seals bearing inscriptions ''KS'' and ''DS'' along with the sample chit Ex.P4. This report has further certified that the seals were intact and tallied with the sample seal and morphine 4.40% was found in the material. Ex.PD is the recovery memo which is attested by Kulwant Singh, Constable Satnam Singh, DSP Darshan Singh, besides ASI Kishan Singh. Ex.PF is jamatalasi memo. Ex.PG is the rough site plan of the place of recovery. Ex.PH is the ruqa which was sent to the police station for the registration of a case on the basis of which formal F.I.R. Ex.PH/1 was recorded. Ex.PJ is the special report which was sent to the higher authorities under section 57 of the Act and it was received by DSP Darshan Singh vide Ex.PJ/1 at 8.50 p.m. on 13.9.1995.

On the closure of evidence of the prosecution, statement of the appellant was recorded under section 313 Cr. P.C and he took the following defence before the trial court :

"I am innocent. I was arrested from my village on suspicion and was brought from there to Police Post Rureke. I was beaten by the police and falsely implicated in this case."

When called upon to enter into his defence, appellant did not lead any evidence and closed the case.

The learned trial court for the reasons given in paras No. 9 to 16 of the judgment convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction and sentence, the present appeal.

Before I deal with the contentions raised by the learned counsel for the parties, it will be appropriate for me to incorporate the reasons given by the trial court in convicting the appellant.

(a) "Sh. A.S. Sidhu defence counsel sic did not put his seal on the samples and the case property. It was violation of Section 55 of the ND & PS Act, which was mandatory. He pointed out that noncompliance of Section 55 of the ND & PS Act would cause prejudice to the accused and would render the prosecution case doubtful. In this connection he relied upon an authority reported as Prem Singh v. State of Haryana, 1996(1) C.L.R. 389.

(10) It was also argued that there was noncompliance of Section 50 of the ND & PS Act, as DSP Darshan Singh admitted that at the relevant time he was holding the substantive rank of Inspector. He was not DSP and as such, he was not a Gazetted Officer. Counsel for the accused relied upon 1997(4) RCC 333, Satnam Singh v. State of Punjab, 1997(1) RCR 9, Jagir Singh v. State of Punjab. It was argued that purpose of the search was not disclosed to the accused and as such, accused could not exercise the option in terms of Section 50(1) of the ND & PS Act and was prejudiced. Counsel for the accused relied upon 1996(2) RCR 101, Bhagwan Dass v. State of Haryana, in this connection.

(11) It was argued that no independent had been joined or produced and Kulwant Singh socalled independent witness had also not been examined, which could make the prosecution case doubtful against the accused. Reliance in this connection was placed on an authority reported in Prem Singh v. State of Haryana, 1996(1) C.L.R. 389.

(12) From the statements of PW.2 HC Gurcharan Singh and PW.3 ASI Kishan Singh, it was argued that the place of recovery as disclosed by these two witnesses is discrepant.

(13) PW. 2 HC Gurcharan Singh had stated that the place of nakabandi might be 4/5 Kms. from the Rureka Kalan. Khudi Khurd might be two and a half Kms. from the place of recovery. Handiaya might be 45 Kms. from the place of recovery. He stated the place of recovery to be drain bridge on katcha passage from Dhaula to Khudi Khurd. PW. 3 stated that place of nakabandi is at a distance of five and a half kms. from the police post Rureke Kalan. The place of recovery is on the drain leading from the side of Dhaula towards Ghunas. It is towards the side of village Khudi from village Handiaya. However, from these two statements, it cannot be said that the witnesses are discrepant, as far as, place of recovery is concerned.

Addl. P.P. for the State had argued that the accused had been told that the search of the Jhola was to be conducted and whether accused wanted that search before the Magistrate or a Gazetted Officer, when he said that it be conducted in the presence of some big officer, then DSP Darshan Singh was called and the search was conducted in the presence of DSP Darshan Singh. He argued that even if DSP Darshan Singh at the relevant time was not holding substantive rank of Inspector, still no prejudice was caused to the accused. It was also argued that an independent witness was already in the party, but that witness has to be given up as won over, since he was not ready to support the prosecution case. It was argued that there is compliance of Section 50 of the ND & PS Act. Even if the SHO did not put his own seal impression apart from the seal of the Investigating Officer and the DSP on the case property and the samples, it cannot be said that any prejudice was caused to the accused. Ld. Addl. P.P. for the State had relied upon a Supreme Court judgment reported as AIR 1964 SC 221, State of U.P. v. Bhagwant Kishore Joshi. Another authority of the Hon''ble Supreme Court reported as AIR 1973 SC 1379, Durga Dass v. State of H.P. had been relied upon. A Division Bench authority of the Punjab & Haryana High Court reported as 1994(1) RCR 718, Union Territory v. Ram Parkash, was relied upon and Addl. P.P. for the State argued that noncompliance of Section 55 of the Act will not vitiate the trial. Addl. P.P. for the State had also relied upon a Division Bench authority reported as 1998(1) RCR(Crl.) 834, Balwinder Singh v. State of Haryana and pointed out that it was for the Investigating Officer or the Officer Incharge making the search to have the choice to take the accused to the Gazetted Officer or Magistrate, and in this case DSP Tapa had been called and search had been conducted in the presence of DSP Tapa.

(15) In the present case HC Gurcharan Singh PW. 2, ASI Kishan Singh PW.3, who is the Investigating Officer, are the persons, who had apprehended the accused. Thereafter the search was effected in the presence of DSP Darshan Singh PW.4. The evidence of these three witnesses is quite consistent that the Jhola carried by the accused contained opium. There is no discrepancy worth while in the statements of the witnesses. Even if Kulwant Singh independent witness had not been examined, the evidence of these three witnesses inspires confidence as far as recovery from the possession of the accused is concerned, since there is no allegation that the Police officials had any motive or ill will to falsely implicate the accused. The samples and the case property had already been affixed with the seals of ASI Kishan Singh bearing initial "KS" and of DSP Darshan Singh bearing impression "DS". The accused had been taken and the case property was also produced by ASI Kishan Singh before SHO/PS Tapa, ASI Kishan Singh PW. 1, who had verified the investigation. Even if the S.H.O. did not put his own seal it will not cause any prejudice. Similarly DSP Darshan Singh was working as D.S.P. Tapa at the relevant time. Even if he was having just substantive rank of Inspector, it can again not be said if any prejudice was caused to the accused.

(16) The recovery is as much as two kgs. of opium. The evidence of the official witnesses is consistent. They had no motive or illwill to falsely implicate the accused. In view of law laid down by the Hon''ble Supreme Court : unless prejudice has been caused, mere technicalities will not take the prosecution case doubtful against the accused."

I have heard Mr. A.P.S. Deol, Advocate on behalf of the appellant, Mr. S.S. Randhava, Deputy Advocate General on behalf of the State and with their assistance I have gone through the record of this case.

The judgment and order of the trial court have been assailed by the learned counsel for the appellant on different grounds and his first attack to the judgment is that Section 50 in this case has not been complied with properly because the search has not been taken before a Gazetted Officer. According to Mr. Deol, Mr. Darshan Singh, DSP was not a Gazetted Officer for the purpose of Section 50 as his substantive rank was yet an Inspector and, therefore, the search is totally illegal. In support of his contention, the learned counsel for the appellant relies upon Amarjit Singh v. State of Punjab, 1997(4) RCR(Criminal) 333 and Raghbir Singh v. State of Haryana, 1999(1) RCR(Criminal) 573. I may state here that so far as the dictum of Raghbir Singh is concerned, it is not applicable to the facts in hand. The ratio of the judgment given by the Hon''ble Supreme Court is that it is within the domain of the Investigating Officer either to call a Gazetted Officer or a Magistrate. Option is not with the accused. So far as the citation of Amarjit Singh''s case (supra) is concerned, in my humble opinion this citation is not applicable to the facts in hand at all. In the cited case the search and seizure was made by an Inspector of police, who was just performing the duties of Superintendent of Police and in these circumstances the Hon''ble Division Bench held that Inspector of Police was not a Gazetted Officer. Here is a case where the search and seizure was taken by ASI Kishan Singh. It has been categorically stated by DSP Darshan that he was D.S.P. at the time of recovery. D.S.P. is a Gazetted Officer in police department in Punjab. There is no indication at all that Darshan Singh was drawing the salary of an Inspector. In view of the categorical statement made by Darshan Singh PW4 that he was D.S.P. no benefit can be granted to the appellant that the search was illegal.

It was further submitted by the learned counsel for the appellant that Section 55 of the Act has not been complied with in this case because as per the statement of PW1 ASI Krishan Chand he did not put his own seal on the parcels. In support of his contention, the learned counsel for the appellant has relied upon Thandi Ram v. State of Haryana, 1999(2) RCR(Criminal) 857. This submission made by the learned counsel for the appellant is totally devoid of any merit. In the present case, the case property was resealed by DSP Darshan Singh, who arrived at the spot. The reading of Section 55 would show that these provisions are directory in character. The object of Section 55 is to preserve the sanctity of the case property. Section 55 of the Act lays down as follows :

"An officerincharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, 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 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."

A reading of this section would show that a duty has been casted upon the in charge of the police station to take charge of the case property and to place it in safe custody. If ASI Krishan Chand was already satisfied that after putting double seal by DSP Darshan Singh the sanctity of the case property had already been preserved by ASI Kishan Singh, it was not necessary for him to further reseal the case property. He handed over the case property to the MHC for safe custody, who again delivered the case property to the Constable with seals intact and in this manner the sample of the opium went to the office of the Chemical Examiner. The Chemical Examiner had certified that the seals on the sample tallied with the specimen seal, which was sent along with the case property. Thus the chain is totally complete and, therefore, the second submission raised by the learned counsel for the appellant is not acceptable to this court.

Thirdly, it was submitted by the learned counsel for the appellant that the independent witness Kulwant Singh has not been examined by the prosecution. Moreover, the seal after use has not been handed over to Kulwant Singh. Therefore, the recovery in this case is doubtful. This argument is also totally devoid of any merit. In my opinion, the case has to be viewed from the angle that whether a conviction can be based on the statements of police officials or not irrespective of the fact that Kulwant Singh has not been examined. Assuming for the sake of argument that Kulwant Singh has been examined and he does not want to support the case of the prosecution at the trial, still this court is of the opinion that conviction could be based on the testimony of the police witnesses as held even in Balbir Singh v. State of Punjab, 1994(1) Recent C.R. 736. Further, it depends upon individual to individual whether he would like to support the allegations of the prosecution at the trial stage or not. We have to see whether the investigation was honest or not. When the Investigation Officer ASI Kishan Singh has taken the assistance of Kulwant Singh in getting his attestation, it can be safely said that there was a genuine effort on the part of the Investigating Officer to associate an independent witness. The appellant has not taken trouble to examine Kulwant Singh in his defence to explain under what circumstances he has attested the recovery memo etc. There can be variety of reasons why a witness is not interested to come forward to assist the law. He can be threatened; he can be bribed; he might come under the pressure of co villagers etc.; or he may not want to purchase enmity with the accused. The nonexamination of a witness, who has been joined in the investigation per se, is not fatal until and unless some strong circumstance emerges out from which a reasonable doubt can be created.

It was then submitted by the learned counsel for the appellant that admittedly two samples of the opium were drawn, each weighing 10 grams, but only one sample has been sent to the office of the Chemical Examiner and the other has been kept back. In my opinion, this argument is for the sake of argument. A competent Investigating Officer may draw more than one sample perhaps with an idea that if one sample of the contraband is destroyed in transit or some wrong is committed with that sample, the other sample may be preserved so as to complete the chain of investigation. It depends upon individual to individual whether one sample is drawn or two samples are drawn. We have to see whether the sample which was drawn from the bulk contained morphine contents or not. The office of the Chemical Examiner has certified that there was meconic acid and morphine 4.40%, which is above the prescribed ratio, making the quantity seized as opium within the definition and meaning of ''opium'' as defined in the Act.

The fifth argument which was raised by the learned counsel for the appellant was that there was a material discrepancy in the statements of Investigating Officer ASI Kishan Singh PW3 and HC Gurcharan Singh PW2. The learned counsel for the appellant submitted that as per PW2 HC Gurcharan Singh the place of nakabandi was at a distance of 4/5 kilometres from Rureke Kalan and village Khudi might be 2 kilometres from the place of recovery and village Haniaya might be 4/5 kilometres from the place of recovery. Precisely, the statement of PW2 HC Gurcharan Singh is as follows :

"The place of nakabandi might be 3/4, again said 4/5 kilometre from Rureke Kalan. Khudi might be 2 kilometre from the place of recovery. Handiaya might be 4/5 kilometre from the place of recovery."

The Investigating Officer ASI Kishan Singh has stated as follows :

"Khudi might be 56 Kms. from village Handiaya and village Dhaula might be 5 Kms. from Handiaya."

The above discrepancy which has been highlighted by the learned counsel for the appellant is no discrepancy in my view. The case of the prosecution has to be examined in broad probabilities and cannot be thrown on minor variations here or there. The accused can only take the advantage of inherent and major contradictions and not of small contradictions. Both the witnesses are consistent that the police party was holding a nakabandi on the bridge of the drain on a kutcha passage which goes from village Dhaula to Rureke Kalan. There can be a honest mistake with regard to the assessment of distance irrespective of the fact that the witnesses are police officials. In this view of the matter, I am of the opinion that there is no material discrepancy for which the benefit can be granted to the appellant.

The last submission which was raised by the learned counsel for the appellant was that there was a delay of six days in sending the sample to the office of the Chemical Examiner. I again do not find merit in this contention of the learned counsel. The recovery in this case is dated 13.9.1995. The accused was produced before the Magistrate on the next day. A road docket is supposed to be got prepared from the office of the Superintendent of Police, which was prepared on 18.9.1995. Official acts do take some time. The said delay is not inordinate from which an inference can be drawn that the sample must have been tampered with. The Chemical Examiner certifies that the seals were intact and tallied with specimen seal. Thus this contention of the counsel for the appellant also stands repelled.

No other point was urged before me.

The finality of the things remains that there is no force in the present appeal and the same is hereby dismissed.