Wazir Singh vs State of Haryana

Harbans Lal, J.—This appeal is directed against the judgment/order of sentence dated 10.4.2003 passed by the Court of learned Additional

Sessions Judge, Bhiwani, whereby he convicted and sentenced Wazir Singh accused/appellant to undergo rigorous imprisonment for 10 years and

to pay a fine of Rs. 1,00,000/- and in default of payment of the same, to further undergo rigorous imprisonment for one year u/s 20 (b)(ii)(c) of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, `the Act'').

Succinctly put, the facts of the prosecution case are that on 2.12.2001 at about 4.30 P.M., ASI Maha Singh, among other police officials,

happened to be present at Siwani Chowk, Tosham, being on patrol duty. Meanwhile, the accused holding a bag in his right hand came from Kairu

side. On suspicion, he was apprehended. ASI told the accused that the bag in his possession was suspected to contain some contraband and if he

wanted, he can have search of the same in the presence of a Gazetted Officer. He opted to have search of his bag before a Gazetted Police

Officer. On receipt of the telephonic message, Ram Kumar DSP came at the spot. On search of the bag, Charas weighing 1 kg. 300 grams was

recovered. Two samples of 50 grams each of Charas were drawn from the bulk and converted into parcels. The residue was also turned into a

parcel. These parcels were sealed with the seals MS and RK and seized vide recovery memo. The seal MS after use was handed over to HC

Satbir Singh, whereas the other seal RK was kept by Ram Kumar DSP with himself. The ASI sent Ruqa to the Police Station, where on its basis,

formal FIR was registered, prepared rough site plan showing the place of recovery, formally arrested the accused, prepared report u/s 57 of the

Act and produced the parcels before Balwan Singh SI, who after verification, affixed his own seal BS on the parcels and prepared the report.

Thereafter, these parcels were deposited with MHC with seals intact. On receipt of Forensic Science Laboratory''s report and after completion of

investigation, the charge sheet was laid in the Court for trial of the accused. The accused was charged u/s 20 of the Act, to which he did not plead

guilty and claimed trial.

The prosecution examined 6 witnesses and closed its evidence.

When examined u/s 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution

evidence against him and pleaded false implication. He did not lead any evidence in defence.

After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial

Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction/sentence, he has preferred this appeal.

I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.

Mr. K.D. S. Hooda, Advocate appearing on behalf of the appellant, canvassed at the bar that it is in the cross-examination of Maha Singh ASI

Investigator PW/6 that ""it is correct that shops, hotels are situated near the place of occurrence. Peoples were coming and going, but none was

ready to join the investigation. I had asked several persons, but they refused to join investigation. This evidence speaks volumes of the availability

of the independent witnesses at the spot, but no reason has been apportioned for not joining such witnesses in search and seizure.

To tide over this contention, Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, on behalf of the State maintained that by now, it

is well settled that the evidence of official witnesses has to be weighed in the same scales as of others and that being so, the prosecution case

should not be thrown out of hand merely because of non-joining of such witness. There is substance in this submission.

The non-joining of an independent witness at the time of seizure in itself does not create a dent in the prosecution evidence, unless some thing

more is made visible. The independent persons may not associate themselves for fear of earning the wrath of the accused while they will not gain

any thing after becoming the witnesses. The worldly people have become. more self-centred and they watch their own interest in doing any public

act. There are very few people who look for the social cause and are prepared to sacrifice themselves for the larger interest of the society.

Moreso, as ruled by the Apex Court in re: Aher Raja Khima Vs. The State of Saurashtra, , "" the presumption that a person acts honestly applies

as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds

therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police

administration."" Further, as observed by the Hon''ble Supreme Court Appabhai and Another Vs. State of Gujarat, "" the Court, therefore, instead

of doubting the prosecution case for want of independent witness must consider the spectrum of the prosecution version and then search for the

nugget of truth with due regard to probability, if any, suggested by the accused.

Adverting to the facts of the case at hand, on scrutinizing the prosecution evidence with due care and caution,. it transpires that the same does

not suffer from any infirmity as would require interference in the findings arrived at by the learned trial Court in recording the conviction. Doubtless

that on appraising above-referred portion of the cross-examination of Maha Singh ASI, it emanates that there was no dearth as to the availability

of independent witnesses but in the same vein, he has testified that none was ready to join investigation. The reasons for refusal by the independent

witnesses to join investigation have already been referred to above. In view of the observations rendered in re: Appabhai (supra), the Court has to

consider the spectrum of the prosecution version and then search as to whether the evidence tendered by the prosecution witnesses bears a ring of

truth. Here in this case, there being no infirmity in the prosecution evidences it is held that the same can be relied upon without any demur. Sequelly,

this contention being bereft of any merit is jettisoned.

Mr. Hooda further assailed the prosecution edifice by urging with great eloquence that as is borne out from the evidence given by the

Investigating Officer PW Maha Singh PW/6, the appellant was not made aware of his right to have search of the bag in the presence of a

Magistrate and, thus, it amounts to partial offer. It clearly indicates that he acted abhorrent to the letter and spirit of the mandatory provisions of

Section 50 of the Act.

To overcome this submission, Mr. Vashisht argued that this being a case of chance recovery, the provisions of Section 50 are not attracted.

There is substance in this submission.

Needless to say, the recovery has been effected from the bag of the appellant and not from the person of the appellant. Secondly, it is a case

of chace recovery. As is ruled in re: State of Punjab v. Balbir Singh, 1994 (1) RCR (Cril) 736, the provisions of Section 50 are mandatory, but

Section 50 is not attracted in the case of chance recovery of narcotic drugs. Where a Police Officer acting under Criminal Procedure Code comes

across a person and on search, recovers narcotic drugs, question of complying with Section 50 would not arise. More to the point, as ruled in re

T.T. Haneefa Vs. State of Kerala, , if the accused is informed of his right to have his search before a Gazetted officer and he does not make him

aware of his right to have search before a Magistrate, it does not amount to partial offer. So, this contention being bereft of any merit, is turned

down.

Mr. Hooda further argued that a careful delving into the statement of Maha Singh PW-6 would reveal that he has no where stated CFSL form

was filled at the spot and furthermore as would be apparent from the FSL report, Exh. PK, there is inordinate delay of as many as 19 days in the

despatch of the sample, which has not been explained. The combined effect of these infirmities is that the link evidence is missing in this case.

Mr. Vashisht refuted this argument by urging that as per Exh. PK, the seals were intact and tallied with the specimen seal as per forwarding

authority''s letter and this clearly indicates that the specimen seal was prepared and C.F.S.L. form was filled at the spot.

I have well considered the rival contentions.

Of course, it does not surface in the testimony of Maha Singh (sic) that the CFSL form was filled at the spot. It is pertinent to point out here

that the CFSL form is to be prepared for sending the same to the to Laboratory along with the sample so that the Laboratory can test the sample

and give its result. Such document contains the details of the seals affixed on the samples, FIR number, date and place of seizure, date of deposit

of samples and the date of withdrawal of sample from the Malkhana. True that, as revealed by the FSL report, CFSL form was filled up on

10.12.2001 though the recovery was made on 2.12.2001, but its preparation on the said date in no manner evidences the prejudice, if any, caused

to the appellant particularly when the certification on Exh. PK tends to show that the seals were intact and tallied with the specimen seal as per

forwarding authority''s letter. The filling up of this form on the aforesaid date in itself does not create any doubt about the recovery of Charas from

the appellant. The Court has to adopt a pragmatic approach while considering the spot investigation. Fair and impartial investigation is no doubt

sacrosanct but rituals of investigation cannot be insisted upon, unless strict compliance of such rituals is prescribed by the statute. There is no rule

of evidence or procedural rule under the Code of Criminal Procedure or NDPS Act that every document must be prepared at the spot of

recovery. Mr. Hooda did not draw attention of the Court to any rule framed under the Act requiring that the CFSL form has to be prepared at the

spot. Doubtless that sealing of the case property/samples etc. has to be done at the spot. The CFSL form can be prepared by the Investigating

Officer later on. It is not the requirement of law that the entire investigation must be completed at the spot or that no part of writing can be done by

such Agency later on in the Police Station. The instructions or guidelines issued by the Narcotic Department, if any, are advisory in nature and have

no legal sanctity. Thus, the first limb of Mr. Hooda''s argument being unsustainable is turned down.

In re: State of Orissa v. Kanduri Sahoo, 2004 (1) RCR (Cri) 196 : 2004 (2) Apex Criminal 110, the inasmuch as 12 Kgs. cannabis (Ganja)

was recovered from the accused. The sample was sent for chemical examination after 4 days. The evidence showed that the contraband articles

were kept in proper and safe custody. The Apex Court held that"" there was no ground to quash prosecution on account of delay as the articles

were in proper and safe custody."" Here in this case, HC Sunil Kumar PW/2 in his affidavit, Exh. PB has solemnly affirmed that on 2.12.2001, the

case property of this case with seals intact was deposited with him by Balwan Singh, SHO PS Tosham and on 20.12.2001, he handed over the

sample parcel to Constable Ramesh Kumar for taking to the FSL for chemical analysis and the contents of the sample parcel were not tampered

with by him nor the same were allowed to be tampered with by any one else during the period, the same remained in his custody. Ramesh Kumar

in his affidavit, Exh. PA has also stated in identical terms. These affidavits coupled with Exh.PK, go a long way in proving that at no stage the

contents of the sample parcels were tampered with. Thus, there being no substance, this contention is repelled.

No other material point has been urged or agitate by either counsel.

In the result, this appeal fails and is dismissed.