Full Judgment
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl.
Appeal -S- No.900-SB of 2003 Date of Decision:21.05.2013 Lala Ram ………Appellant Versus State of Punjab ………… Respondent ***** CORAM : HON’BLE Mr.JUSTICE L.N.MITTAL Present:- Mr.Amarjit Markan, Advocate Amicus Curiae for the appellant.
Mr.Rupam Aggarwal, DAG, Punjab.
***** L.N.Mittal, J.(ORAL) Convict Lala Ram has filed this criminal appeal impugning his conviction and sentence ordered by learned Judge, Special Court, Sangrur vide judgment and order dated 01.05.2003 thereby convicting the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the ‘Act’) and sentencing him to undergo rigorous imprisonment for ten years and to pay fine of `1,00,000/- and in default of payment thereof, to undergo further imprisonment for one year.
According to prosecution version, on 13.04.2001, Police party including Inspector Joginder Singh, ASI Surjan Singh and other police officials, was patrolling.
Jaswant Singh PW was also joined on the way.
At about 4:00 P.M., accused-appellant was seen coming from the side of village Babanpur, on the bank canal with a cloth bag.
The accused tried to retreat on seeing the police.
He was apprehended on suspicion.
He was Crl.
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2. informed of his right to be searched in presence of a gazetted officer or Magistrate.
He opted to be searched before Gazetted Officer.
Accordingly, Harjit Singh Pannu, Deputy Superintendent of Police was called to the spot.
On search of bag of the accused, it was found to contain 3 Kgs opium wrapped in a glazed paper.
Out of it, two samples of 10 grams each were separated.
Samples and the remaining opium were sealed in separate parcels and were seized by the police.
Seal after use was given to PW Jaswant Singh.
Ruqa was sent to the police station.
Thereupon FIR was registered.
Rough site place of the place of occurrence was prepared.
Statements of witnesses were recorded.
On the next day, accused was produced before learned Judicial Magistrate Ist Class, Malerkotla along with case property.
Learned Magistrate checked the case property and affixed his stamp and signatures thereon.
The sample on analysis was found to be of opium.
Accordingly, on completion of investigation, report under Section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) was presented for trial of the accused under Section 18 of the Act.
Charge under Section 18 of the Act was framed against the accused who pleaded not guilty and claimed trial.
In support of its case, prosecution examined six witnesses.
Mr.B.S.Deol, Judicial Magistrate Ist Class, Malerkotla (PW-1) stated that on 14.4.2001, case property was produced before him and he affixed his signatures and stamp thereon.
Head Constable Narinder Singh (PW-2) and Constable Dharamvir Singh (PW-3) being formal witnesses, tendered their affidavits in evidence.
DSP Harjit Singh Pannu (PW-4).Inspector Joginder Singh (PW-5) and ASI Surjan Singh (PW-6) have broadly stated according Crl.
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3. to prosecution version about recovery of 3 kilograms opium from the accused-appellant.
Inspector Joginder Singh (PW-5) also stated about investigation of the case by him.
Jaswant Singh an independent witness was given up by the prosecution being won over by the accused.
The accused in his examination under Section 313 Cr.
P.C.denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent.
He alleged that nothing incriminating was recovered from him.
He had been falsely implicated in the case.
He was allegedly apprehended from bus stand, Dhuri.
In defence, the accused examined Piare Lal DW-1.
He broadly stated about the defence version.
Learned trial Judge convicted and sentenced the accused vide judgment and order dated 01.05.2003 as noticed hereinbefore.
Feeling aggrieved, the convict has filed the instant appeal.
I have heard learned counsel for the parties and perused the case file including file of trial Court with their assistance.
Learned counsel for the appellant contended that Jaswant Singh, to whom the seal was handed over, has not been examined by the prosecution and, therefore, the link evidence is not complete.
It was also argued that Jaswant Singh was the only independent witness but he has not been examined and, therefore, the adveRs.inference should be drawn against the prosecution.
Counsel for the appellant has placed reliance on a Division Bench judgment of this Court in State of Punjab versus Surjit Singh, 2008(1) R.C.R.(Criminal) 266.
Crl.
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4. On the other hand, learned counsel for the State contended that the prosecution has led sufficient evidence to prove the guilt of the accused.
I have carefully considered the rival contentions.
All the three main prosecution witnesses namely Harjit Singh Pannu, DSP (PW-4).Inspector Joginder Singh (PW-5) and ASI Surjan Singh (PW-6) have fully supported the prosecution case.
Their veracity could not be impeached in their lengthy cross-examination.
There is no reason why the accused would be falsely implicated in the case by planting huge quantity of opium weighing 3 kilograMs.Even the accused in his statement under Section 313 Cr.P.C.has not alleged any ground for his false implication.
Consequently, there is no reason to discard the sworn statements of the aforesaid three witnesses of the prosecution, including a gazetted officer of the rank of DSP, an Inspector and an Assistant Sub Inspector.
Fate of the case cannot be left to the whims and fancies of the independent witness, who was present at the time of recovery of the contraband substance from the accused.
In most of the cases, such independent witnesses do not support the prosecution case because they do not want to earn the wrath of the accused.
Jaswant Singh, who was independent witness in this case, had to be given up by the prosecution as won over by the accused.
However, statements of the officials witnesses cannot be disbelieved or discarded merely because of their official uniform.
Their statements are as much credible as those of non-official witnesses, in the absence of any hostility or enmity of the official witnesses with the accused.
As regards the seal, the prosecution has led link evidence Crl.
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5. proving that the seals remained intact.
Report of the Chemical Examiner also reveals that the sample was received in the Laboratory with seals intact.
Moreover, the case property, including the sample parcels, was produced before the learned Magistrate on 14.4.2001 i.e.on the next day of the recovery and the Judicial Magistrate after checking the same affixed his own stamp and signatures.
Consequently, link evidence is complete.
Judgment in the case of Surjit Singh (supra) has no applicability to the facts of the case in hand because that was appeal by the State against acquittal of the accused by the trial Court.
In appeal against acquittal, the appellate Court is slow to interfere.
Even if two views are possible, the view in favour of the accused is to be accepted.
The view taken by the trial Court in acquitting the accused cannot be reversed in appeal merely because another view is possible.
In the reported case, the trial Court came to the conclusion that the prosecution case was doubtful and accordingly acquitted the accused.
One of the grounds for acquittal was non-examination of the independent witness.
There were also other grounds for acquitting the accused in that case.
However, in the instant case, there is no ground, whatsoever, for discarding the prosecution evidence.
Consequently the aforesaid judgment has no applicability to the facts of the instant case.
For the reasons aforesaid, as well as for other reasons recorded by the trial court, I find that prosecution has successfully proved the guilt of the accused-appellant beyond reasonable doubt.
Accordingly, conviction of the appellant, being well founded, is upheld.
As regards quantum of sentence, minimum sentence prescribed Crl.
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6. for the offence has been imposed on the appellant.
Consequently, sentence also does not warrant any reduction.
Resultantly, the appeal is found to be lacking any merit and is, therefore, dismissed.
The appellant, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining sentence.
21.05.2013 (L.N.Mittal) 'sp' JUDGE