Thandi Ram vs State of Haryana

Dr. Sarojnei Saksena, J.

Accusedappellant has assailed his conviction and sentence awarded to him by the Additional Sessions Judge, Hisar, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) for keeping in his possession 250 grams of opium without any permit or licence. He is sentenced to 10 years rigorous imprisonment with a fine of Rs. One Lac and in default of payment of fine, to undergo further rigorous imprisonment for two years.

Short resume of the case is that on January 1, 1986, ASI Rajinder Singh of Police Station Sadar Hansi along with some constables was on patrolling duty from the police station in the early part of the day. When they were present near Water Works Datta at about 6.15 a.m. they saw the accused coming from the side of Barwala. Seeing the police party, the accused sat down by the side of the road pretending to be urinating. His conduct aroused suspicion and thus he was apprehended. On his personal search 250 grams of opium wrapped in a wax paper was recovered from the pocket of his shirt. He could not produce any permit or licence for its possession. Five grams of opium was separated. Sample was duly prepared. Remainder was also sealed separately. Both the sealed parcels were sealed with seal bearing inscription of ''RS.'' Ruqa was sent to the police station, whereupon FIR was recorded. Thereafter usual investigation was completed on the spot. ASI Rajinder Singh brought the accused along with the contraband to the police station. The sealed packets were deposited with MHC of the police station. On January 13, 1986, the sample was sent through constable Raj Pal to FSL, Madhuban (Haryana). On examination the expert opined that it contained 4.51% of morphine and thus it was opium. Accordingly, the accused was chargesheeted and charge under the aforesaid section was framed against him.

The accused denied the guilt. His plea is that of false implication on the count that prior to his arrest his son Mula Ram, who is also a constable, made a complaint against ASI Mohinder Singh of traffic police. On that animosity on January 1, 1986, opium was recovered from one Raja but he was let off and this false case is foisted upon him. He has examined Teka DW1, Birsala DW2 and Mohinder Singh DW3 in his defence.

The learned trial Court finding the prosecution case credible and reliable held that the prosecution has proved the offence beyond reasonable doubt. Disbelieving the defence version, he convicted the accused and sentenced him accordingly.

The appellant''s learned counsel vehemently contended that in this case since the prosecution has failed to follow the mandatory provisions of section 50 of the Act, it has vitiated the trial and on this count alone the accused is entitled to acquittal. To strengthen his argument, he has relied on Mohinder Kumar v. The State of Panaji, 1995(2) Recent Criminal Reports 599 : AIR 1995 SC 1157 .

The learned Assistant AdvocateGeneral, Haryana, contends that since the prosecution has proved that ASI Rajinder Singh was going on patrolling duty and by chance on suspicion when the accused was apprehended, this opium was recovered from his person. Relying on State of Punjab v. Balbir Singh, 1994(1) RecentCR 737 , he contended that under these circumstances the provisions of section 50 of the Act are not attracted.

The contention of appellant''s learned Counsel is devoid of any substance. Rajinder Singh ASI PW4 and Constable Jaswant Singh PW3 have testified on oath that on January 1, 1986 they left the police station on patrolling duty in connection with excise checking. SI Shingara Singh PW2 has testified in crossexamination that on January 1, 1986, he had sent ASI Rajinder Singh with a police party to village Datta etc. as there was plenty of liquor for sale and also liquor used to be illegally prepared in those areas. Thus, it is obvious that at that time ASI Rajinder Singh was on patrolling duty in connection with violations of the Excise Act. He had no secret information that the accused was possessed of any such contraband. The facts of Mohinder Singh''s case are distinguishable. Though in that case also the police party was on patrolling duty, but when on seeing them the accused persons suddenly entered into their house, their conduct raised suspicion. The Investigating Officer went to their house, directed the accused persons to stay where they were and asked the Head Constable to alert the others and to arrange for the panches. In these facts, it was held that he had reason to believe that the accused persons were in custody of narcotic drugs and thus he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. While taking the search of the house, personal search of the accused was also taken without following the provisions of section 50 of the Act. Thus, on these facts it was held that on this count the accused is entitled to be acquitted. In Balbir Singh''s case (supra) the Apex Court has held that in case of chance recovery, provisions of Section 50 of the Act are not attracted. In the present case, the prosecution has proved beyond doubt that on January 1, 1986, ASI Rajinder Singh went on patrolling duty to check the violations under the Excise Act. Seeing them when suddenly the accused sat by the side of the road pretending to urinate, suspicion arose and ASI Rajinder Singh apprehended the accused. In these circumstances, his personal search was taken. ASI Rajinder Singh first of all gave his personal search to the accused and then his personal search was conducted. I find that this contention has no bearing in this case that mandatory provisions of section 50 of the Act are violated and that it vitiates the trial.

The other contention is that independent witnesses were not joined. ASI Rajinder Singh PW4 and Constable Jaswant Singh PW3 have stated that at that early part of the day when the search of the accused was taken, there was no other person on the road. ASI Rajinder Singh has further testified that after half an hour of the search Sarpanch Abhe Ram, one Panch and one Lambardar came on the spot, but even at that time when he requested them, they declined to join the investigation. No doubt, under Section 100(4) Cr.P.C. the Investigating Officer was duty bound to join independent witnesses while taking personal search of the accused, but in the circumstances of the case since the accused was hurriedly apprehended and his personal search was taken and since at that time no person or persons were within sight, no independent witness was joined at the time of search and seizure. Independent witnesses are joined at the time of such search and seizure to lend assurance and corroboration to the official witnesses and to avoid false implication, but simply on the ground that no independent witness was joined, sworn testimony of ASI Rajinder Singh PW4 and Constable Jaswant Singh PW3 cannot be discarded as incredible and unbelievable. The statements of these witnesses inspire confidence. The trial Court has rightly placed reliance on the veracity of these witnesses.

To buttress his above contention, learned appellant''s counsel further submitted that the accused has proved that his son filed a complaint against Mohinder Singh of traffic police Haryana to SSP Hisar, which was marked to DSP Hansi for enquiry and proper action in the month of December, 1985. Thereafter on December 31, 1985, the accused was called at Police Station Sadar Hansi to get that complaint withdrawn by his son. Since he declined to do so, he was falsely implicated in this case. The defence witnesses have further tried to state that opium was seized from one Raja on January 1, 1986 but he was let off and instead the accused was falsely implicated in this case. He further submitted that the trial Court has wrongly disbelieved the defence evidence though the accused was not required to prove his defence beyond reasonable doubt.

True, the accused is not required to prove his case beyond reasonable doubt. If by adducing defence evidence, he creates a doubt in the prosecution version, he is entitled to benefit of doubt, but in this case in my considered view the trial Court has rightly disbelieved the defence evidence. No doubt, Mohinder Singh DW3, a clerk from the S.P. Office Hisar, has testified that Mula Ram Constable of S.P. Office Hisar had submitted a complaint to S.S.P. Hisar against ASI Mohinder Singh on November 20, 1985. Mula Ram is son of the accused. This complaint was marked to DSP Hansi for enquiry. In crossexamination this witness has deposed that the complaint was found false. The accused filed affidavit Exhibit D1 of Teka son of Nihala and Birsala son of Solia of village Datta in defence. This affidavit was sworn in on December 12, 1986. The accused examined Teka DW1 and Birsala DW2 to prove that they had signed this affidavit. So far as Teka DW1 is concerned, he has no knowledge of the contents of this affidavit Exhibit D1. He has admitted that the defence counsel got it prepared. He has further stated that on the following day when the accused was arrested, he met DSP Hansi at 11 a.m. who promised to release the accused. Birsala DW2 has tried to corroborate him. Surprisingly enough no application was submitted to DSP Hansi to release the accused. Even thereafter no complaint was made to any superior police officer alleging that in this way the accused is wrongly implicated in this case. This fact cannot be lost sight of that the son of the accused is a police constable and at that time he was posted in the office of S.P. Sirsa. Had the defence version been true, his son would not have spared any stone unturned for getting his father released, but till December 12, 1986, no such attempt was made. The prosecution closed its evidence on January 8, 1987. Thereafter, on that very day the accused was examined under Section 313 Cr.P.C. and on January 14, 1987, affidavit Exhibit D1 was produced in the Court. In my considered view, the defence version is not at all reliable and does not create a suspicion that the accused is falsely implicated in this case.

Last contention made by appellant''s learned counsel is that the provisions of sections 52 and 55 of the Act are not followed in this case and hence the accused is entitled to acquittal. No doubt, section 55 of the Act requires that as soon as a sealed parcel is produced at the police station, it should also be sealed with the seal of the Officer Incharge of the police station. ASI Rajinder Singh PW4 had produced the sealed sample along with the seal impression at the police station Malkhana and it was deposited with the MHC. Affidavits of MHC Kanwar Singh Exhibit PB and that of Rajpal Constable Exhibit PC are tendered in evidence. It is also pointed out that these affidavits are not in accordance with the provisions of section 297(2) Cr.P.C. No doubt, the verification clause is defective, but this part of the affidavit is reliable that to his knowledge when the sample was in his custody seat of this sample parcel was not tampered with by anybody. Constable Rajpal has testified that he took the sample on January 13, 1986, to FSL Madhuban and till then the seal on this sample was not tampered with. Even in the report of the expert Exhibit PD there is a mention that the seal on the sample was found intact and it agreed with sample seal sent. This sample seal is pasted on the reverse side of this report. These affidavits were tendered in evidence by the Public Prosecutor on January 8, 1987, in the presence of the accused and his counsel under section 296 Cr.P.C. No application was moved by the accused that he intends to crossexamine these witnesses. Hence, it can be inferred that he accepted the facts stated in those affidavits as true. While the accused was examined under section 313 Cr.P.C. in question No. 4 he was asked that the sealed sample was sent to FSL Madhuban through Constable Rajpal with sample seal impression with seals intact and as per the report Exhibit PD it was found to be opium. His reply was that he does not know. He has not stated that this seal was tampered with at any point of time after the sample was sealed on the spot, The provisions of section 55 of the Act are mandatory but due to the violation of the same, the trial cannot be held to be vitiated unless prejudice is shown to have been caused to the accused thereby as is held in The State v. Kulwant Singh, 1994(1) RecentCR 303 . In this case it is not the contention of the accused that thereby prejudice is caused to him.

So far as section 52 of the Act is concerned, immediately after the search and arrest of the accused ruqa Exhibit PA was sent to the police station, whereupon Shingara Singh, SI/SHO of Police Station Sadar Hansi recorded the FIR Exhibit PA/1. ASI Rajinder Singh has further stated that immediately after the search and arrest, he brought the accused and the sealed sample to the police station. The property was deposited in the Malkhana and the accused was locked up. ASI Hoshiar Singh PW1 has stated that as SHO be submitted the chargesheet under section 173 Cr.P.C. Thus it is obvious that the provisions of Section 52 of the Act were followed. Further, the provisions of this section are not mandatory to the extent that if they are not adhered to, it vitiates the trial and entitles the accused to acquittal.

No other point is pressed before me.

Consequently, finding no merit in the appeal, it is hereby dismissed. The conviction and sentence of the accused are maintained.