Jarnail Singh vs State Of Punjab

Jarnail Singh ... Appellant

VERSUS

State of Punjab ...Respondent

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This appeal is directed against the final Order of the High

Court of Punjab and Haryana at Chandigarh dated 12th May,

2008 passed in Criminal Appeal No. 590 - SB of 1999,

whereby the High Court upheld the order of conviction passed

against the appellant herein under Section 18 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (hereinafter

referred to as "NDPS Act"), and sentenced him to undergo

rigorous imprisonment for ten years and to pay a fine of

Rs. one lac and in default of payment of the same, to undergo

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rigorous imprisonment for another two years, for having been

found in possession of 1 kg and 750 grams of opium without

any permit or licence.

2. The prosecution story is that on 23rd September, 1994 at

around 2.30 PM, Inspector Ram Pal Singh (PW4) along with SI

Gurdeep Singh, ASI Satpal Singh (PW5) and other officials

were on duty and coming from village Hassanpur to village

Mirsapur. After reaching near the bridge of canal minor while

going on kacha path, the police party noticed the appellant

coming from the bank of canal. On seeing the police party, the

appellant tried to run away but on suspicion he was

apprehended. On enquiry, he informed the police about his

name, parentage, address etc. At that time, he was carrying a

bag (thaili) in his right hand. PW4 suspected that that the

appellant was carrying some incriminating articles in his bag.

The search was conducted and the police party recovered 1 Kg

and 750 gram opium from his custody.

2 3. Ten grams of opium was put into a tin container as a

sample. It was duly sealed. The entire case property was

taken into possession vide memo Ex. PD attested by SI

Gurdeep Singh and ASI Satpal Singh. The seal after use

was handed over to ASI Satpal Singh (PW5). The appellant

could not produce any valid license or permit for possession

of the said opium. On personal search, currency notes

amounting to Rs. 25 /- was also recovered from the

accused and the same was taken into possession vide

memo Ex. P1, signed by the appellant. Ruqa Ex. PF was

sent to the police station and subsequently the FIR was

registered. Inspector, Ram Pal (PW4) recorded the

statements of the witnesses and arrested the appellant.

4. Inspector, Ram Pal (PW4) then produced the appellant along

with the case property and witnesses before Satpal Singh

(PW5) on the same day of the alleged crime. PW4 enquired

about the alleged incident from other witnesses and

checked the case property and also affixed his own seal

bearing impression `RP' on the case property and on

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samples of seal Ex. PD/1. Thereafter, PW3 at 7.30 PM

deposited the sealed case property with MHC Shudh Singh.

The investigation was duly completed and challan against

the appellant was prepared by S.I. Bagh Singh. The

prosecution in support of its case, examined Sudh Singh

(Head Constable) (PW1), Chet Ram (PW2), Rachpal Singh

(Inspector) (PW3), Ram Pal Singh (PW4) and Satpal Singh

(PW5).

5. The Addl. Sessions Judge vide its final order and judgment

dated 19th May, 1999 convicted and sentenced the appellant

under section 18 of the NDPS Act, as noticed above. The

High Court, in an appeal, vide judgment dated

12th May, 2008 affirmed the findings of the Sessions Court

and dismissed the appeal filed by the appellant. Hence the

appeal before this Court.

6. We have heard the counsel for both parties. Mr. Ujjal

Singh, counsel for the appellant submits as follows:

4 i. The whole incident happened in a densely

populated area and there were so many

independent witnesses but only the police have

been made the prosecution witnesses. The

appellant has been falsely implicated.

ii. The courts below have not considered the

appellant's version as recorded under

Section 313 Cr.P.C. The appellant was

apprehended from his village on 10th September,

1994 by the police party. Another police party

dug up his house and courtyard looking for illicit

arms. But nothing incriminating was found. The

Ex-Sarpanch, Narang Singh asked them the

reason for the digging. The police told him that

they were searching for opium and illicit arms,

and that he had relations with terrorists.

Thereafter, the police took the appellant to CIA

staff. He was tortured by using third degree

methods. Then he was falsely implicated in this

case. The Courts below have also disregarded the

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deposition of DW-1, Sarpanch Narang Singh for

no valid grounds.

iii. Section 50 of the NDPS Act is a mandatory

provision but the same was never followed in the

present case. The appellant was never given any

option nor taken to the nearest Gazetted Officer

or Magistrate for his search.

iv. There is a delay of twelve days in sending the

sample for the chemical examination. The

prosecution has not been able to give any

reasonable justification for such delay.

v. The consent statement made by the appellant is

in-admissible under section 25 of the Indian

Evidence Act, 1872.

vi. There are vital lapses in the present case. The

version deposed by PW -3 is inconsistent with the

deposition of PW -4.

vii. The prosecution has not been able to prove as to

from where they got weighing scale, tin dabba

and dabhi. The police also could not give any

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valid reason as to why they had gone to the spot.

This shows that they were pre - prepared and

have falsely implicated the appellant.

7. On the other hand, Mr. H.M. Singh, counsel for the

respondent submits as follows:

i. The appellant is rightly been convicted under

section 18 of the NDPS Act. There are numerous

witnesses and evidences to prove his guilt.

ii. The appellant was apprehended with contraband

by the policy party and he was arrested after the

registration of his case vide Ruqa Ex. PF.

iii. The deposition of DW-1, Sarpanch Narang Singh

is baseless. The appellant was arrested on 23rd

September, 1994 but DW -1 appeared for the first

time before the Sessions Court on 13th May,

1999, i.e. after five long years.

iv. Delay of 11 - 12 days in sending the sample for

chemical examination is not enough to demolish

the case of the prosecution. There is nothing on

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record to show that the sample parcel was

tampered by the prosecution at any stage.

8. The trial court as also the High Court have meticulously

examined and re-examined the entire evidence. On such

close scrutiny, both the courts have concurrently found that

the prosecution has proved its case beyond reasonable

doubt. Undoubtedly the jurisdiction and the powers of this

Court under Article 136 are very wide. Even then,

interference with concurrent findings of fact would be an

exception and not the rule. On numerous occasions, this

Court has emphasised that an appeal under Article 136

cannot be converted into a third appeal on facts. This Court

in the case of Ganga Kumar Srivastava Vs. State of Bihar1

discussed at length, the circumstances in which this Court

may interfere with the concurrent finding of facts; which are

as follows:

"From the aforesaid series of decisions of this Court on the exercise of power of the

1 (2005) 6 SCC 211

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Supreme Court under Article 136 of the Constitution following principles emerge:

(i) The powers of this Court under Article 136 of the Constitution are very wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.

(ii) It is open to this Court to interfere with the findings of fact given by the High Court, if the High Court has acted perversely or otherwise improperly.

(iii) It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court.

(iv) When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.

(v) Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record."

9. The first submission of Mr. Ujjal Singh, learned counsel, is

that the appellant has been falsely implicated. We are

unable to accept this submission. Merely because the

prosecution has not examined any independent witness,

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would not necessarily lead to the conclusion that the

appellant has been falsely implicated. It was clearly a case

where the police personnel had noticed the odd behaviour of

the appellant when he was walking towards them on a path

which led to village Mirzapur. It was the display of

hesitation by the appellant on sighting the police party that

Satpal Singh (PW5) became suspicious. On seeing the police

personnel, the appellant tried to run away from the scene. It

was not a case where the prosecution has claimed that the

appellant was apprehended on the basis of any earlier

information having been given by any secret informer. It

was also not a case of trap. In such circumstances, it would

not be possible to hold that the appellant has been falsely

implicated.

10.The prosecution has offered a plausible explanation with

regard to non-joining of the independent witnesses. It was

clearly stated by PW5 that the path on which the appellant

was apprehended was not frequently used by the public. In

fact, efforts were made to bring a member of Panchayat or

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Sarpanch of the village. However, the Head Constable

Baldev Singh who had been sent, reported that none of the

villagers were prepared to join as independent witnesses.

This reluctance on the part of the villagers is neither

strange nor unbelievable. Generally, people belonging to the

same village would not unnecessarily want to create bad

relations/enmity with any other villager. Especially when

such a person would be feeling insecure, having been

accused of committing a crime.

11.We also do not find any substance in the submission of Mr.

Ujjal Singh that both the courts have ignored the plea of the

appellant under Section 313 of the Cr.P.C. without any

basis. The evidence of DW1, Narang Singh, upon which the

appellant placed heavy reliance would not be of much

assistance to the appellant. It is note worthy that even

according to the appellant the police had dug up his house

and the courtyard on 10th September, 1994. According to

the appellant, nothing incriminating was found. This was

sought to be supported by the evidence given by DW1, the

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Ex-Sarpanch, Narang Singh. Both the courts below, in our

opinion, have correctly concluded that such evidence

cannot be believed as the witness DW1 seems to have

appeared for the first time as a witness in court on 13th

May, 1999. Prior to the appearance in court, this Ex-

Sarpanch did not make any complaint in writing either to

the police authorities or to the civil administration. Being

the Ex- Sarpanch of the village, he can be expected to act

with responsibility. There is no material to show that he

made any efforts to complain about the high handed

behaviour of the police. In our opinion, both the courts

below have rightly discarded the evidence of DW1.

12.The next submission made by Mr. Ujjal Singh is that there

has been non compliance of Section 50 of the NDPS Act, in

that requisite option was not given to the appellant, as to,

whether he wanted to be searched in the presence of a

Gazetted Officer or a Magistrate. We are unable to accept

the aforesaid submission. Inspector Ram Pal (PW4) has

clearly stated that the option was duly given to the

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appellant. The appellant had, in fact, signed on the consent

statement expressing his confidence to be searched in

presence of the aforesaid witness. Similarly, Satpal Singh

PW5 has also stated that before affecting the search, the

accused/appellant was given the necessary option as to

whether he wanted to be searched before a Gazetted Officer

or a Magistrate. This witness also stated that the appellant

reposed his confidence in Inspector Rampal. In such

circumstances, it cannot be held that there was non

compliance with Section 50 of the NDPS Act.

12. This apart, it is accepted that the narcotic/opium,

i.e., 1 kg. and 750 grams was recovered from the bag (thaili)

which was being carried by the appellant. In such

circumstances, Section 50 would not be applicable. The

aforesaid Section can be invoked only in cases where the

drug/narcotic/NDPS substance is recovered as a consequence

of the body search of the accused. In case, the recovery of the

narcotic is made from a container being carried by the

individual, the provisions of Section 50 would not be attracted.

13 This Court in the case of Kalema Tumba Vs. State of

Maharastra2 discussed the provisions pertaining to `personal

search' under Section 50 of the NDPS Act and held as follows;

"....... if a person is carrying a bag or

some other article with him and narcotic

drug or psychotropic substance is found

from it, it cannot be said that it was found

from his person."

Similarly, in the case of Megh Singh Vs. State of

Punjab3, this Court observed that;

"A bare reading of section 50 shows that

it applies in case of personal search of a

person. It does not extend to a search of a

vehicle or container or a bag or premises."

The scope and ambit of Section 50 was also examined by

this Court in the case of State of Himachal Pradesh Vs.

Pawan Kumar4. In paragraphs 10 and 11, this Court

observed as follows:-

"10. We are not concerned here with the wide

definition of the word "person", which in the

legal world includes corporations, associations

or body of individuals as factually in these type

of cases search of their premises can be done

2 (1999) 8 SCC 257

3 (2003) 8 SCC 666

4 (2005) 4 SCC 350

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and not of their person. Having regard to the

scheme of the Act and the context in which it

has been used in the section it naturally means

a human being or a living individual unit and

not an artificial person. The word has to be

understood in a broad common-sense manner

and, therefore, not a naked or nude body of a

human being but the manner in which a normal

human being will move about in a civilised

society. Therefore, the most appropriate

meaning of the word "person" appears to be

-- "the body of a human being as presented to

public view usually with its appropriate

coverings and clothing". In a civilised society

appropriate coverings and clothings are

considered absolutely essential and no sane

human being comes in the gaze of others

without appropriate coverings and clothings.

The appropriate coverings will include footwear

also as normally it is considered an essential

article to be worn while moving outside one's

home. Such appropriate coverings or clothings

or footwear, after being worn, move along with

the human body without any appreciable or

extra effort. Once worn, they would not

normally get detached from the body of the

human being unless some specific effort in that

direction is made. For interpreting the provision,

rare cases of some religious monks and sages,

who, according to the tenets of their religious

belief do not cover their body with clothings, are

not to be taken notice of. Therefore, the word

"person" would mean a human being with

appropriate coverings and clothings and also

footwear.

11. A bag, briefcase or any such article or

container, etc. can, under no circumstances, be

treated as body of a human being. They are

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given a separate name and are identifiable as

such. They cannot even remotely be treated to

be part of the body of a human being.

Depending upon the physical capacity of a

person, he may carry any number of items like

a bag, a briefcase, a suitcase, a tin box, a

thaila, a jhola, a gathri, a holdall, a carton, etc.

of varying size, dimension or weight. However,

while carrying or moving along with them, some

extra effort or energy would be required. They

would have to be carried either by the hand or

hung on the shoulder or back or placed on the

head. In common parlance it would be said that

a person is carrying a particular article,

specifying the manner in which it was carried

like hand, shoulder, back or head, etc.

Therefore, it is not possible to include these

articles within the ambit of the word "person"

occurring in Section 50 of the Act."

It has come in evidence that although the body search of the

appellant was conducted but no recovery of any narcotic was

made. The body search only led to the recovery of Rs.25/-from

his pocket.

13. Mr. Ujjal Singh then submitted that the consent

statement made by the appellant is inadmissible under

Section 25 of the Indian Evidence Act, 1872. We are unable to

accept this submission. The consent statement signed by the

appellant has not been used as a confession, therefore, the bar

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under Section 25 would not be applicable. A statement in

order to be treated as a confession must either admit in terms

of an offence, or at any rate substantially all the facts which

constitute the offence. No confession has been made in this

case through the consent given by the appellant with regard to

any of the ingredients of the offence with which he was

subsequently charged.

14. Mr. Ujjal Singh then submitted that there was a delay of

twelve days in sending the sample of narcotic for chemical

examination. This submission, in our opinion, is without any

factual basis. The trial court as well as the High Court, on

examination of the entire material, concluded that there was

sufficient independent evidence produced by the prosecution

regarding the completion of link evidence. Therefore, the delay

in sending the sample parcel to the office of Chemical

Examiner pales into insignificance. We are of the considered

opinion that mere delay in sending the sample of the narcotic

to the office of the Chemical Examiner would not be sufficient

to conclude that the sample has been tampered with. There is

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sufficient evidence to indicate that the delay, if any, was

wholly unintentional. This Court had occasion to deal with a

similar issue, in the case of Balbir Kaur Vs. State of Punjab5.

The Court made the following observations:

"As far as delay in sending the samples is concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh case6 wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the Court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case."

The trial court as well as the High Court, on examination of

the evidence on record, concluded that the case property was

handed over by Ram Pal (PW4), Investigating Officer to the

SHO Inspector Rachhpal Singh (PW3). This witness checked

the case property and affixed his own seal bearing impression

`RS' on the case property as also on the sample impression of

the seal. The case property was deposited with MHC Sudh

Singh on the same day. Sudh Singh appeared as PW1 in court

5 (2009) 15 SCC 795

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and tendered his affidavit Ex. PA to the effect that the case

property including the sample parcel and the specimen

impression of the seal, duly sealed and intact was deposited

with him by Ram Pal, PW4, on 23rd September, 1994. He also

stated that he handed over the sample parcel, duly sealed and

sample impression of seal to Constable Chet Ram

on 4th October, 1994 for depositing the same in the office of

Chemical Examiner. It was further stated that none had

tampered with the aforesaid case property and the seal which

remained in his custody. He ultimately deposited the case

property in the office of Chemical Examiner on the same day

and tendered receipt. This apart, there is a report of the

Chemical Examiner (Ex. PJ) which indicates that the seals

were intact when the sample was received and tallied with the

sample impression of the seal. It is note worthy that such a

report of the Chemical Examiner would be admissible under

Section 293 of the Cr.P.C. Considering the aforesaid clear

evidence, it cannot be said that there is any infirmity in the

link evidence merely because there was a delay of few days in

sending the sample to the office of the Chemical Examiner.

19 15. Having considered the entire material on the record, the

trial court as well as the High Court have concurrently found

the appellant guilty. We are unable to find any perversity or

any miscarriage of justice in the findings so recorded. Finding

no merit, we dismiss the appeal.

...................................J.

[B.Sudershan Reddy]

...................................J.

[Surinder Singh Nijjar]

New Delhi;

February 11, 2011.

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