Shera Singh vs State of Punjab

P. K. Jain, J.

This appeal is directed against the judgment/order dated 7.10.1994 passed by the Additional Sessions Judge, Sangrur whereby the appellant has been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1 lac or in default of payment of fine, to further undergo rigorous imprisonment for a period of two years.

The backdrop of the prosecution case is that on 3.3.1991, Assistant Sub Inspector Gulzar Singh along with Head Constable Bogha Singh, Constable Paramjit Singh and one Karnail Singh, son of Jagar Singh, Jat, resident of village Lehal Khurd, was on patrolling duty. They were going from village Bhutal Kalan towards village Kallbanjara on the kacha path. When they reached the area of village Kallbanjara, the appellant was spotted sitting on the gunny bags on the pavement of the bridgedrain. On seeing the police party the appellant felt perplexed but was apprehended on suspicion. When the appellant was asked about the material in the gunny bags he replied that there was poppy husk therein. On it, Assistant Sub Inspector Gulzar Singh made an offer to the appellant if he wanted the search of the gunny bags to be conducted in the presence of a Gazetted Officer or a Magistrate but he reposed faith in the said Assistant Sub Inspector. His statement Ex.PA was recorded which was thumb marked by him and attested by Head Constable Bogha Singh and Karnail Singh. The gunny bags on search were found to contain poppy husk. Two samples weighing 250 grams each of poppy husk were taken out of each of the four gunny bags. Each gunny bag was found to contain 35 kilograms of poppy husk. Sample parcels of the remaining poppy husk in the bags were sealed by Assistant Sub Inspector Gulzar Singh with the seal having the impression ''GS'' and the same were taken into possession vide recovery memo Ex.PB. The seal after use was handed over to Karnail Singh. Sample seal Ex.P.1 was also prepared separately. Ruqa (Ex.PC) was sent to the police station through Constable Paramjit Singh on the basis of which formal F.I.R. (Ex.PC/1) was recorded by MHC Bhagwan Dass. Rough site plan Ex.PD was prepared and the statements of the witnesses were recorded. After reaching the police station, Assistant Sub Inspector Gulzar Singh produced the accused and the case property before the Station House Officer, Sub Inspector Ajaib Singh who after verifying the facts to be true, put his own seal bearing the impression ''A S'' on the case property and directed Assistant Sub Inspector Gulzar Singh to deposit the same with M.H.C. After completion of investigation and other formalities of the case, a chargesheet was filed against the appellant.

A charge under Section 15 of the Act was framed against the accused to which he pleaded not guilty and claimed trial.

In support of its case, the prosecution examined Head Constable Bogha Singh (PW1), Assistant Sub Inspector Gulzar Singh (PW2) and Sub Inspector Ajaib Singh (PW3). The affidavits Ex.PA and Ex.PE of Constable Rajbir Singh and MHC Bhagwan Dass and report of the Chemical Examiner Ex.PF were tendered in evidence.

After the close of the prosecution case, the appellant was examined under Section 313 of the Code of Criminal Procedure wherein he totally denied the prosecution allegations and pleaded his innocence. He examined Karnail Singh (DW1) in his defence.

While placing implicit reliance on the testimony of the three prosecution witnesses and the documents tendered in evidence, the trial court came to the conclusion that the prosecution had succeeded in bringing home the guilt to the appellant beyond any doubt. Accordingly, the appellant was convicted and sentenced as stated above. Hence this appeal.

I have heard the learned counsel for the parties and have carefully perused the trial court''s record.

Shri R. S. Ghai, Senior Advocate, while assailing the conviction of the appellant, has argued that Constable Rajbir and MHC Bhagwan Dass whose affidavits Ex.PA and Ex.PE were tendered in evidence, were not produced before the trial court nor these affidavits were put in the examination of the appellant under Section 313 of the Code of Criminal Procedure. It is thus argued that the link evidence in the case is missing and the same is fatal to the prosecution. In support of this contention, the learned counsel has placed reliance upon a judgment rendered by a Single Bench of this court in Jai Singh v. State of Haryana, 1995(3) Recent Criminal Reports 627 .

While refuting the above contention Shri I. P. S. Sidhu, the learned State counsel has argued that the judgment relied upon by the learned counsel for the appellant is not applicable to the facts of the case in hand. While referring to the trial court''s record, it has been pointed out that both the witnesses Constable Rajbir and MHC Bhagwan Dass were produced by the prosecution for crossexamination, but the defence counsel made a statement that he did not want to crossexamine them. It has been further pointed out that the fact that the samples were sent to the Chemical Examiner through Constable Rajbir and the report Ex.PF was received from the Chemical Examiner wherein the contents of the sample were found to be poppy husk, were put to the appellant in his examination. It has also been contended that any irregularity in examining an accused under Section 313 of the Code is not fatal to the prosecution unless the accused shows that any prejudice has been caused to him thereby.

I have considered the respective arguments.

Having gone through the judgment in Jai Singh''s case (supra), suffice it to say that the same is distinguishable on facts and the appellant cannot derive any help therefrom. In that case affidavits of two witnesses were tendered in evidence by the prosecution but the said witnesses were not produced for crossexamination by the defence nor those affidavits were put to the accused in his examination under Section 313 of the Code. On these facts a Single Bench of this court made the following observations :

"At the evidence stage, no doubt when the prosecution evidence was being recorded, these affidavits were tendered in evidence, but the deponents were not kept present for crossexamination. In this case, there is no such mention either in the zimni order or in the order sheet dated 13.10.1986 that the counsel of the accused declined to crossexamine these deponents. Further, this link evidence is not put to the accusedappellant when he was examined under Section 313 of the Criminal Procedure Code. Thus, the conclusion is inevitable. This socalled link evidence tendered in the shape of affidavits of Constable Karan Singh, Ex.PE and HC Surat Singh Ex.PF cannot be taken into consideration. The resultant effect is that the report of the Chemical Examiner Ex.PD in both the cases cannot be acted upon as this possibility is not ruled out that after the seizure and before the analysis the sample was not tampered with. The prosecution is required to prove beyond doubt that after the seizure till the sample analysed, the seal affixed on the sample/parcel was intact and was not tampered with."

Besides the aforesaid observations, the prosecution case was found to be improbable and unbelievable on merits and the appellant was held to be found falsely implicated. Accordingly, the appeal was allowed and the appellant was acquitted.

In the case in hand, affidavit Ex.PA sworn by Constable Rajbir was tendered in evidence on 19.4.1993. The zimni order of that date goes to show that Constable Rajbir was present in the court and was produced for cross examination by the defence but the defence counsel made a statement that he did not want to crossexamine him. Similarly affidavit Ex.PE sworn by MHC Bhagwan Dass was tendered in evidence on 15.3.1994. The zimni order of that date shows that MHC Bhagwan Dass was very much present in the court and was produced for crossexamination but the defence counsel made a statement that he did not want to crossexamine the said witness. It is well settled law that when a party fails to question his opponent''s witness, the presumption is that his evidence is accepted. Failure to crossexamine a witness on some material part of his evidence or at all may be treated as an acceptance of that part or the whole of his evidence. The appellant never challenged the correctness of the testimony of Constable Rajbir and MHC Bhagwan Dass which was tendered in the form of their respective affidavits by crossexamining them. It is not disputed that the appellant was being represented throughout by a defence counsel. In these circumstances, it shall be presumed that the appellant accepted the testimony of Constable Rajbir and MHC Bhagwan Dass contained in their sworn affidavits Ex.PA and Ex.PE without any objection to be correct.

Coming to the second limb of the argument, it is correct that one of the essential facts to be proved affirmatively by the prosecution in a case like the present one is that right from the stage of seizure of the contraband till it reaches the hands of the Chemical Examiner, there was no possibility to change or tamper with the recovered material. From the unimpeachable testimony of Assistant Sub Inspector Gulzar Singh (PW2) it is established that two samples, each weighing 250 grams, were drawn from each of the four gunny bags on the spot and the sample parcels and the gunny bags containing the remaining poppy husk were duly sealed with the seal of GS. It is also evident that sample of the seal Ex.P1 was prepared separately and the seal after use was handed over to the independent witness Karnail Singh (DW1). It further stands proved that the sealed sample parcels and the sealed four gunny bags were produced before Sub Inspector Ajaib Singh, the Station House Officer of the police station, who after verification of the facts, affixed his own seal of the initials ''AS'' thereon. On a direction given by the said Station House Officer, Assistant Sub Inspector Gulzar Singh then deposited the sealed sample parcels, case property and sample of the seal with MHC Bhagwan Dass on that very day. Affidavit Ex.PE sworn by MHC Bhagwan Dass while corroborating the factum of deposit of the sample parcel, case property etc. in the Malkhana on that day by Assistant Sub Inspector Gulzar Singh, further shows that on 18.3.1991, he had handed over the four sealed parcels of poppy husk duly sealed with the seals of GS and AS along with the sample seal and the despatch letter to Constable Rajbir Singh to take the same to the office of the Chemical Examiner at Chandigarh, after obtaining docket number from the office of the S.S.P. Sangrur. This affidavit further goes to show that the samples of the case property were not tampered with till the same remained under his care and custody. Similarly the affidavit Ex.PA, sworn by Constable Rajbir Singh, reveals that after obtaining the docket from the office of S.S.P. Sangrur on 18.3.1991, he had deposited sample parcels duly sealed along with sample seal and the forwarding letter in the office of the Chemical Examiner, Chandigarh on 19.3.1991 and had obtained the receipt which was deposited by him with M.H.C. Bhagwan Dass on 20.3.1991 on his return. This affidavit further ensures that the said articles were not tampered with by any body till the same remained under his care and custody. The report of the Chemical Examiner Ex.PF further corroborates that the sample parcels were received in his office intact duly sealed with the seals of GS/AS and the same tallied with the specimen seal received along therewith. Thus, there is a complete chain of evidence produced by the prosecution which indicates beyond doubt that the sample parcels were not tampered with by any body from the time these were drawn and sealed at the spot on 3.3.1991 and till the same reached the office of the Chemical Examiner on 19.3.1991.

The third limb of the contention raised by the learned counsel for the appellant is that the testimony of Constable Rajbir and MHC Bhagwan Dass contained in their affidavits Ex.PA and Ex.PE was not out to the accused in his examination under Section 313 of the Code of Criminal Procedure and this omission is fatal to the prosecution case. From a perusal of the record of the trial court, it is evident that it was put to the appellant that the samples were sent to the Chemical Examiner through the Constable Rajbir and vide report Ex.PF the Chemical Examiner found the contents of the sample to be of poppy husk. It is correct that the contents of the affidavit Ex.PE sworn by MHC Bhagwan Dass and that of Ex.PA sworn by Constable Rajbir were not put to the accused in his examination under Section 313 of the Code. The question is as to what is the effect of this omission ?

It is correct that after close of the prosecution case, the trial court is under a legal obligation to put to the accused each circumstance appearing in evidence against him separately and further put the prosecution case generally for the purpose of affording him an opportunity to explain those circumstances. The whole object of the section is to afford the accused a fair and proper opportunity of explaining the circumstances appearing against him. The question was considered by the apex court in Shivaji Sahebrao v. The State of Maharashtra, AIR 1973 SC 2622 and their Lordships were pleased to make the following observations :

"It is trite law, nevertheless fundamental that the prisoner''s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failure in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred, it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relief for its conviction. In such a case, the court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342 Cr.P.C. (of 1898) the omission has not been shown to have caused prejudice to the accused. Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and to put it to the accused even though at the end of a long trial judge may be a little fagged out."

In an earlier judgment rendered in Makan Jivan and others v. The State of Gujarat, AIR 1971 SC 1797 the trial court after reading out the statements made by the accused in the committal court, merely asked them as to what they had to say about prosecution evidence recorded in their presence. It was held by their Lordships that the examination is highly defective but in view of the plea of the accused that they were not present at the time of the occurrence, any further question to them would have been purposeless and so there was no prejudice. Similar views already expressed in Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469 and Ajmer Singh v. State of Punjab, 1953 SCR 418 were followed with approval.

At the cost of repetition it may be stated that affidavits Ex.PA and Ex.PE were tendered in evidence and their respective deponents Constable Rajbir and MHC Bhagwan Dass were produced for crossexamination but the defence made a specific statement that it did not want to crossexamine them. In other words, the testimony of these two witnesses in the form of affidavits remains unchallenged and presumed to have been accepted by the appellant. Further, the plea taken up by the appellant is that nothing was recovered from him and he has been falsely implicated in this case. The learned counsel for the appellant has failed to show that any prejudice has been caused to the appellant by the alleged omission in not putting the contents of these affidavits to the appellant in his examination under Section 313 of the Code. Therefore, this plea raised on behalf of the appellant does not affect his conviction.

Then the learned counsel for the appellant has argued that Karnail Singh (DW1), an independent public person was a member of the raiding party in whose presence the recovery is alleged to have been affected and subsequent proceedings regarding drawing and sealing of samples of the case property, are alleged to have been conducted but the prosecution has failed to examine Karnail Singh as a prosecution witness. While elaborating this argument, the learned counsel has pointed out that this witness was examined by the appellant in his defence and according to his testimony no such recovery was effected from the appellant nor any such proceedings were conducted by the police in his presence on any day, rather he was summoned to the police station and was made to put his thumb impressions on the blank papers on the pretext of standing a surety for the appellant. Thus, it has been argued that this has caused a serious dent in the prosecution case and the conviction of the appellant cannot be based merely on the testimony of the police officials.

I do not speculate as to how and under what circumstances the aforesaid unfortunate situation of a panch turning hostile has been arising in not only this but in several other cases because I am not prepared to accept the contention that the police have been guilty of wholesale fabrication of documents and that the panch when he had turned hostile and given evidence to the effect that he was asked to sign blank document is telling the truth. It is quite obvious that something has happened and it is not difficult for any one to conclude what this is, because of the simple inference that there can be only one beneficiary from the panch turning hostile or disappearing. A panch witness is an average ordinary human being. He may turn hostile for a variety of reasons from bribery to threat.

Under aforesaid circumstances the judicial pragmatism warrants that if the Police Officer is otherwise found to be dependable, then merely because the panchas do not support that should not be mechanically made a ground to discard his evidence. Merely because a witness happens to be a police official, that by itself is not sufficient to stamp him out as an interested witness in success of the investigation. It is only when the investigation is mala fide, with an obvious and ulterior motive to frame up an innocent citizen then and then only such an investigation deserves to be condemned and not relied upon. In fact there is no such rule of law nor indeed there can be any, that the evidence of the Police Officer cannot be accepted unless it is corroborated by Panchwitness.

I have scrutinised carefully the testimony of Head Constable Bhoga Singh (PW1), A.S.I. Gulzar Singh (PW.2) and S.I. Ajaib Singh (PW.3). The detailed crossexamination to which these witnesses have been subjected indicates that their testimony has remained unshaken. There is nothing on record to demonstrate that any of these three witnesses has some sort of animus or motive for falsely implicating the appellant in the present case. From unimpeachable and unshaken testimony of these three witnesses, it is established that on the day of the occurrence, the appellant was found to be in possession of four bags of poppy husk. Their testimony is a complete chain of evidence to prove as to how the appellant was appreheaded, how the search of the bags was conducted, how the samples were drawn, how the sample and the remaining contents were sealed on the spot, how the recovery memo was prepared, how the ruka was sent for the registration of the case and how other proceedings were conducted on the spot ? Their testimony is consistent as to how thereafter the sample parcels and the sealed bags were taken into custody by the Officer Incharge of the Police Station i.e. Sub Inspector Ajaib Singh (PW3) and he had affixed his own seal thereon. The testimony of Constable Rajbir and M.H.C. Bhagwan Dass in the form of their respective affidavits Ex.PA and Ex.PE, as already discussed above, completes the link evidence to prove that the sample parcels were not tampered with by any body from the time they were prepared till the same reached the hands of the Chemical Examiner. I agree with the trial court that implicit reliance can be placed upon the testimony of these three Police Officers and the fact that Karnail Singh, a public witness, has turned hostile would be too far fetched to conclude that the entire case is a fabrication of the police and the appellant has been falsely implicated. Therefore, this contention of the learned counsel for the appellant is also without any substance.

Lastly the learned counsel for the appellant has made a faint attempt to urge that the provisions of Section 50 of the Act have not been complied with and the same is fatal to the prosecution case. Reliance has been placed upon a recent judgment of the apex court rendered in Saiyad Mohd. Saiyad Umar Saiyad and others v. The State of Gujarat, 1995(2) Recent Criminal Reports 388 : JT 1995(3) SC 489 . While approving the earlier view expressed by the apex court in State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : 1994(3) SCC 299 their Lordships were pleased to hold as under :

"Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Dalbir Singh''s case that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate."

In para 12 of the judgment, their Lordships proceeded to lay down the following guidelines :

"Finding a person to be in possession of articles which are illicit under the provisions of NDPS Act has, as we have said, the consequences of requiring him to prove that he was not in contravention of its provisions and it renders him liable to punishment which can extend to 20 years rigorous imprisonment and a fine of rupees two lakhs or more. It is necessary, therefore, that courts dealing with offences under the NDPS Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the concerned officer that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. It need hardly be emphasised that the accused must be made aware of his right or protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with. Instructions in this behalf need to be issued so that investigation officers take care to comply with the statutory requirements and drug peddlers do not go scot free due to noncompliance thereof."

In the aforesaid case, the prosecution had not produced any evidence to prove that the searching officer had apprised the accused about their right under Section 50 of the Act but the High Court had maintained the conviction by raising a presumption under illustration (e) of Section 114 of the Indian Evidence Act to the effect that the investigating officer must have informed the accused about their such a right to be searched in the presence of a Gazetted Officer or a Magistrate before the search as it was an official act. While setting aside this view, their Lordships were pleased to observe that when evidence of the search is given, all that transpired in its connection must be stated. Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. It was further held that if no evidence to this effect is given the court must assume that the person to be searched was not informed of the protection of law given to him and must find that the possession of the illicit article under the N.D.P.S. Act was not established.

Adverting to the case in hand, it is evident from the testimony of Head Constable Bhoga Singh (PW.1), and A.S.I. Gulzar Singh (PW2) that they had no prior information regarding the presence of the appellant along with the illicit articles at the place of the occurrence. Merely on a suspicion the appellant was apprehended and on enquiry he had revealed that the material in the gunny bags was poppy husk. It was at this stage that A.S.I. Gulzar Singh made an offer to the appellant whether he wanted the search of the gunny bags to be conducted in the presence of a Gazetted Officer or a Magistrate, but the accused reposed faith in him (A.S.I. Gulzar Singh). Optional statement Ex.PA was recorded which was thumb marked by the appellant and attested by Head Constable Bhoga Singh (PW1) and Karnail Singh (DW1). In other words, A.S.I. Gulzar Singh had duly complied with the provisions of Section 50 of the Act before conducting search of the four bags found in possession of the appellant. Thus, this contention of the learned counsel for the appellant is also without any merit.

No other point has been raised or argued on behalf of the appellant at the Bar.

As a result of the above discussion, I do not find any merit in this appeal and the same is hereby dismissed.