Hardip Singh vs State Of Punjab

Hardip Singh .... Appellant

versus

State of Punjab .... Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. The present appeal is directed against the judgment and order dated

18.10.2006 passed by the High Court of Punjab & Haryana at

Chandigarh in Criminal Appeal No. 505-SB of 2000, whereby the High

Court dismissed the appeal filed by Hardip Singh and upheld the

conviction and the sentence passed against him under the provisions of

Section 18 of the Narcotic Drugs and Psychotropic Substance Act, 1985

(hereinafter referred to as the `Act').

2. Briefly, the prosecution case is that on 20.8.1997 when Inspector Jarnail

Singh (examined as PW 5 in the trial), along with SI Sukhwinder Singh and other police officials were standing on a drain bridge falling within

the jurisdiction of village Chamairi, a truck bearing registration No. DIG

4615 being driven by Sri Inder Masih was seen coming from Ajnala side,

when the truck was stopped. Hardip Singh, the present appellant, was

seen sitting by the side of the driver, in the said truck. Meanwhile one

Major Singh, who was examined as one of the witnesses in the trial also

reached there on a bicycle and upon reaching the place he alighted from

the bicycle and joined the police party. Immediately thereafter Inspector

Jarnail Singh sent a wireless message to SS Mann, Deputy

Superintendent of Police (PW 4), requesting him to reach the place of

occurrence, who after receiving the message immediately reached at the

place of occurrence.

Thereafter consent memos (Ex. PB & PC) were prepared to show

compliance of Section 50 of the Act, which were signed/thumb marked by

the appellant and attested by the witnesses including PW 4. On the

instruction of PW 4, the DSP, Inspector Jarnail Singh conducted search of

the appellant Hardip Singh and upon such search one bag in the right hand

of Hardip Singh was found and on search of the said bag, it was found to

contain opium wrapped in a glazed paper. The aforesaid opium, thereafter

was weighed and on such weighing it was found that there was total of 7

Kgs of opium out of which 250 gms of opium was taken as a sample in one

2 of 13 parcel and the remaining quantity of opium being 6.750 Kgs. was put in

another parcel. After preparing two separate parcels, the same were sealed

with the seals bearing inscriptions `SSM' and `JS' of SS Mann, DSP and

Inspector Jarnail Singh respectively. The sealed parcels were taken into

possession vide recovery memo, Ex. PD, attested by the witnesses.

Thereafter the search of the driver, namely, Inder Masih was also

conducted, in whose possession also 3 kgs. of opium was found, for which

two parcels were made out, one of 250 gms. and the other of 2.750 kgs. The

said parcels were sealed and were taken into possession vide recovery

memo, Ex. PE, attested by the same witnesses. From the personal search of

Hardip Singh ten currency notes of the denomination of Rs. 10/- were

recovered. These were also taken into possession by making out a memo,

Ex. PH. Similarly, the truck bearing No. DIG 4615 was also taken into

possession vide memo, Ex. PJ. Ruqqa, Ex. PK, was sent on the basis of

which First Information Report (Ex. PK/1) was recorded. A rough site-plan

was also prepared at the spot. Thereafter, the present appellant along with

Inder Masih and the case property was produced before Inspector Baldev

Singh, the then Station House Officer (SHO), Police Station Ajnala, who

verified the investigation and kept the said articles in his possession. On

30.9.1997 he sent the two parcels of sample for getting the same deposited

in the office of the Chemical Examiner, Amritsar through ASI Surinder

3 of 13 Singh (PW-3). As per the report of the Analyst, the contents of the sample

parcels were found to be of opium. On completion of the investigation a

charge sheet was filed under the provisions of Section 18 of the Act.

3. The learned Sub Divisional Magistrate, Ajnala committed the case for

trial to the learned Court of Sessions Judge. Under order dated 4.3.1998,

the learned Sessions Judge, Amritsar framed charges against both the

accused under the provisions of Section 18 of the Act to which they

pleaded not guilty and pleaded for trial.

4. The prosecution examined altogether four witnesses whereas appellant

Hardip Singh examined five defense witnesses. The report of the

chemical examiner was tendered in evidence. The appellant and the

other accused were also examined under Section 313 of the Code of

Criminal Procedure, 1973.

5. On completion of the trial, the learned Addl. Sessions Judge heard the

arguments and thereafter passed the judgment and order convicting both

the accused persons including the present appellant under Section 18 of

the Act and sentenced them to undergo rigorous imprisonment for a

period of ten years with rupees one lakh as fine and in default of

4 of 13 payment of fine to undergo rigorous imprisonment for a period of two

years, which is the minimum sentence provided under the Act.

6. Being aggrieved by the aforesaid judgment and order of conviction and

sentence, Hardip Singh, the present appellant and the other accused,

Inder Masih filed an appeal before the High Court of Punjab and

Haryana, which was heard and disposed by Judgment and Order dated

18.10.2006. The order of conviction and sentence passed against the

present appellant was maintained and confirmed whereas the order of

conviction against Inder Masih was set aside and he was acquitted of the

charges. Being aggrieved by the said judgment and order the present

appeal is filed by Hardip Singh on which we have heard the learned

counsel for the parties who have taken us through the entire evidence on

record.

7. Mr. Mahabir Singh, the learned senior counsel appearing for the

appellant strenuously submitted before us during the course of his

arguments that the High Court as also the trial court were not justified in

rejecting the defense case, as the case put up by defense was a probable

case and in that view of the matter benefit of doubt should have been

given to the present appellant. It was also submitted by him that one of

5 of 13 the accused persons having been acquitted by the High Court on almost

similar facts an order of acquittal should also have been passed in favour

of the present appellant, particularly, when there was no sufficient

evidence on record for justifying conviction of the present appellant. His

next submission was that the investigating officer did not comply with

the mandatory provisions of Section 55 of the Act after effecting

recovery from the accused. He also strenuously urged that the sample

having been sent to the analyst for chemical examination after a time gap

of 40 days, the appellant should have been acquitted by holding that the

entire case of the prosecution is doubtful. The other submission of the

counsel was that PW 5 being an interested person bearing grudge against

the appellant and also being the complainant should not have been made

the investigating officer.

8. We may now proceed to examine the aforesaid submissions of the

counsel appearing for the appellant in the light of the evidence on record

and also in the light of the submissions of the counsel appearing for the

respondent, who strenuously urged that the defense case which was put

up by the appellant was nothing but a got up story, and therefore, both

the courts below have rightly rejected the same.

6 of 13

9. The defense story which was put up by the appellant was that he had

been falsely implicated by Inspector Jarnail Singh (PW 5) on account of

a grudge that he nourished against the appellant due to a vehicular

accident which occurred on 26.7.1997, which was ultimately

compromised by a written apology, Ex. DB. The story was sought to be

corroborated and strengthened by certain complaints sent to higher ups,

Ex. DC and Ex. DD on 18.8.1997 and also a telegram Ex. DF sent on

19.8.1997 in that regard by Gurdial Singh, the father of the appellant.

The story was further sought to be substantiated by stating that the mere

fact that Jarnail Singh had allegedly recovered the said opium and also

the fact that he was the investigating officer of the case prima-facie

proves that the appellant has been falsely implicated in the present

criminal case on account of personal grudge against the appellant.

10.We have carefully perused the record in view of the aforesaid

allegations, alleging that the investigating officer was nourishing a

grudge against the appellant over the vehicular accident which occurred

on 26.7.1997. A perusal of the document of apology, exhibited as Ex.

DB., shows that it carries the signatures of various persons including

Gurdial Singh (DW 3) and Harjap Singh (DW 5) but the signature of

Jarnail Singh (PW 5), the investigating officer of the case was not

7 of 13 appearing in the said document. PW 5 was also examined and cross

examined at length but not a single question was put to him about the

execution of the aforesaid document of apology. No suggestion was

given to him that the said document was executed in his presence and

that he was also a consenting party to the said document of apology.

Therefore, the learned trial court as also the High Court were justified in

raising doubt about the genuineness of the said defense case. A

document can always be created falsely by obtaining signatures of few

persons but the said document when produced in evidence must be able

to stand the test of genuineness. In our considered opinion the said

document is a doubtful document and the genuineness of the same could

not be proved by the appellant since he had failed to bring it to the notice

of PW 5, during his cross examination, the fact that the same was

executed in his presence and with his consent.

11.So far as the complaints, Ex. DC and Ex. DD, allegedly sent are

concerned, the same are produced by Gurdial Singh, the father of the

appellant, only during the course of his examination. Whether or not

such complaints were in fact sent and were received by the addressee

should have been and were required to be proved in order to establish

that they were actually sent and received, as alleged. All the aforesaid

8 of 13 document were also pressed before the trial court as also the High Court

and they have given cogent reasons for rejecting the defense version as

also for rejecting evidentiary value of the said documents. Therefore, in

our considered opinion the aforesaid defense version, which is put up by

the appellant is not trustworthy and stands rejected.

12.So far as the question of delay in sending the samples of opium to the

Forensic Science Laboratory (FSL) is concerned, the same in our opinion

has no consequence for the fact that the recovery of the said sample from

the possession of the appellant stands proved and established by cogent

and reliable evidence led in the trial. PW 5 has categorically stated and

asserted about the recovery of opium from the possession of the

appellant, which fact is also corroborated by a higher officer, namely, SS

Mann, DSP who was also examined at length during the trial. The said

recovery was effected in the presence of the said SS Mann, DSP, as

senior police officer, who also put his seal on the said parcels of opium.

The then Station House Officer, Inspector Baldev Singh, who was

examined as PW 1, was posted at Police Station Ajnala on the date of

occurrence. He received the said samples of opium along with case

material, being produced before him by PW 5. It has come on evidence

that Inspector Baldev Singh kept the entire case property with him till it

9 of 13 was deposited in the office of the Chemical Examiner, Amritsar on

30.9.1997 through ASI Surinder Singh, (PW-3). It has also come on

evidence that till the date the parcels of sample were received by the

Chemical Examiner, the seal put on the said parcels was intact. That

itself proves and establishes that there was no tampering with the

aforesaid seal in the sample at any stage and the sample received by the

analyst for chemical examination contained the same opium which was

recovered from the possession of the appellant. In that view of the

matter, delay of about 40 days in sending the samples did not and could

not have caused any prejudice to the appellant. The aforesaid

contention, therefore, also stands rejected.

13. The contention of Mr. Singh that Section 55 of the Act, which is a

mandatory provision, was violated is also found to be without merit in

the light of the decision of this Court in Karnail Singh v. State of

Rajasthan [(2000) 7 SCC 632] relied by him in order to buttress his

argument, wherein, a similar contention was raised that after the seizure

the goods were sent to the Superintendent, Central Narcotics Bureau,

Kota, who, as per law, was in charge of a police station but had not

affixed his seal on the articles and the samples, and therefore the whole

of the procedure followed became illegal, entitling the appellant to be

10 of 13 acquitted. In the light of the aforesaid submissions, the Supreme Court

proceeded to hold that with the application of Section 51 read with

Sections 52 and 53, the officer required to affix the seal etc., under

Section 55, would be "the officer in charge of the nearest police station"

as distinguishable from an officer in charge of a police station

empowered under Section 53. It was also held that if the arrested person

and the seized articles are forwarded under Section 52(3)(b) to the

officer empowered under Section 53, the compliance with Section 55

cannot be insisted upon. The Supreme Court further held in the said

case that keeping in view the multifarious activities and the duties cast

upon the officer in charge of the police station under the Code of

Criminal Procedure and he being apparently busy with the duties under

the Code, the officers mentioned in Section 53 of the Act have been

mandated to take action for disposal of the seized narcotic drugs and

psychotropic substances by filing an application which, when filed, has

to be allowed by the Magistrate as soon as may be.

The appellant has also failed to show any prejudice caused to him for

not putting the seal in the sample by the officer-in-charge of the police

station. PW 5 has categorically stated that on reaching the Police Station,

Ajnala, he handed over the case property with the seals intact to the officer-

in-charge of the said police station, who was examined in the trial as PW 1.

11 of 13 PW 1 in is deposition has also stated that Inspector Jarnail Singh produced

before him the case property and sample on 20.8.1997 with seals intact. He

has also stated that so long the said articles remained in his custody and

possession, the same were not tampered with. In the light of aforesaid

nature of evidence on record, no prejudice is caused to the appellant on that

count.

In the case of Ouseph v. State of Kerala, [(2004) 10 SCC 647] it

was held by this Court that under the provisions of Section 55 of the Act,

the requirement may not be mandatory. However in that case in view of

peculiar facts of the case and as the contraband articles were kept in totally

unsealed condition for near about two months it was held that the same

creates doubt.

14.As far as the submission that as Inspector Jarnail Singh was the

complainant he should not have been made the investigating officer is

concerned we may make reference to the decision of this Court in State

v. V. Jayapaul, [(2004) 5 SCC 223], wherein it was held as under:

"We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper

12 of 13 to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased"

Concurring with the Courts below we have already held that the

version of the defense is nothing more than a got up story of his own whims

and caprices, thus in the facts and circumstances of the present case the

question of bias does not arise. Sri Jarnail Singh made the recoveries of the

opium and seized the same and therefore, he was rightly made the

Investigating Officer in the case. The defense case which is found to be a

got up story was sought to be made out only during the trial by which time

investigation was complete. This contention therefore is also found to be

without merit.

15.In view of the aforesaid observations and findings recorded by us, we

find no merit in the appeal, which is accordingly dismissed. The

appellant, who is in the custody, shall serve the remaining sentence, in

accordance with law.

................................J. (Dr. Arijit Pasayat)

.................................J. (Dr. Mukundakam Sharma) 13 of 13 New Delhi, August 20, 2008

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