Full Judgment
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-S-NO.441-SB OF 2014 DATE OF DECISION : 22nd MAY, 2014 Amarjit Singh & another ….
Appellants Versus State of Punjab ….
Respondent CORAM : HON’BLE Mr.JUSTICE SURINDER GUPTA **** Present : Mr.Suresh Kumar Arya, Advocate for the appellants.
Mr.Jasdev Singh Brar, Assistant Advocate General, Punjab.
**** SURINDER GUPTA, J.
The appellants faced trial for offence punishable under Sections 18 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the NDPS Act) and were convicted and sentenced as follows: Convict Amarjit Singh Under Section Imprisonment Fine In default of awarded payment of fine 18 of the ND & PS Act RI for 2 years `3000/- RI for three months 21 of the ND & PS Act RI for 4 months `1,000/- RI for fifteen days Convict Karnail Kaur Under Section Imprisonment Fine In default of awarded payment of fine 18 of the ND & PS Act RI for 2 years `3000/- RI for three months 21 of the ND & PS Act RI for 4 months `1,000/- RI for fifteen days Briefly stated, the case of the prosecution is that on 8th April, 2010 ASI Rohi Ram of Police Station Tripuri, District Patiala along with his police party was going towards village Sidhuwal for patrolling and checking CRA-S-NO.441-SB OF2014-2- of suspicious elements.
When the police party reached the bridge of Bhakhra canal in the area of village Sidhuwal, a clean shaven person and a lady (appellants) were found chatting while sitting on kutcha path by the side of Bhakra canal.
The clean shaven person was having a plastic bag in his hand.
On witnessing the police party they felt perplexed and on suspicion ASI Rohi Ram with his police party apprehended them.
Mewa Singh son of Rameshwar Singh resident of village Lang was joined as independent witness.
ASI Rohi Ram apprised the appellants vide memo Exhibit-PB and PC of his intention to conduct their search and about their right to get the search conducted in the presence of Magistrate or Gazetted Officer.
Both agreed for their search to be conducted in the presence of Deputy Superintendent of Police.
On message DSP Satvir Singh Atwal, reached the spot.
After giving his introduction he again apprised the appellant that they have right to get their search conducted before some other Gazetted Officer or Magistrate but the appellants reposed their confidence in him vide memo Exhibit PD and PE.
On the search of bag carried by the appellant-Amarjit Singh in his right hand opium wrapped in glazed paper was recovered out of which two separate samples of 10 grams each were separated and the remaining opium came to be 980 graMs.Parcels of samples and the remaining opium were prepared and sealed with his seal bearing impression ‘RR’ by ASI Rohi Ram.
DSP Satvir Singh Atwal then fixed his seal bearing impression CRA-S-NO.441-SB OF2014-3- ‘SSA’.
The sample and the case property were taken into possession vide recovery memo Exhibit PL.
The personal search of appellant-Karnail Kaur was conducted by Lady Constable Jasvir Kaur and from packet of her shirt a small bag containing smack was recovered out of which two samples of 1 gram each were separated and the remaining came to be 16 graMs.The parcels of the sample were prepared, while the remaining smack was put in a plastic container and a separate parcel was prepared.
The sample and the remaining case property was sealed with the seal of ASI Rohi Ram bearing impression ‘RR’ and by DSP Satvir Singh Atwal with his seal bearing impression ‘SSA’.
The sample and the remaining case property was taken in custody vide recovery memo Exhibit-PG.
Ruqa Exhibit PH was sent to the police station, whereupon formal FIR Exhibit PW-3/A was registered.
After completing the required formalities at the spot, ASI Rohi Ram along with the accused, PWs and case property on returned to police station produced them before SHO Bharpur Singh along with case property.
After verifying the factum of the recovery from the witnesses and the accused, SHO put his counter seal bearing impression ‘BS’ on the samples and the parcel of remaining contraband recovered from the appellants and on the samples.
On the next day accused and case property were produced before the Illaqa Magistrate along with remand request and the inventory CRA-S-NO.441-SB OF2014-4- memo Exhibit PN on which the Illaqa Magistrate passed the orders as follows: “ASI Rohi Ram has produced the case property including parcels which are sealed with seal bearing impressions RR, BS and SSA.
In two samples, seals are overlapping.
The sample seals has already been seen and return back.
I have initialed over the parcels in token of correctness and intactness of the seals and same is handed over back to ASI Rohi Ram for the stated purpose of testing by the office of Chemical Examiner.
The remaining parcels are also handed over back to him for deposit in the Judicial Malkhana.”
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The samples were sent to the Chemical Examiner.
The contraband recovered from appellant-Karnail Kaur was found to be of smack and from appellant-Amarjit Singh as opium.
After completion of investigation challan was filed against the appellants.
In support of its case the prosecution has examined HC Jaspal Singh PW-1, ASI Gurnam Singh PW-2, ASI Rohi Ram PW-3, ASI Lakhbir Singh PW-4, HC Avtar Singh PW-5, DSP Satvir Singh PW-6 and Inspector Bharpur Singh PW-7.
The appellants were confronted with the entire prosecution evidences in their statement under Section 313 Cr.P.C.which they denied and pleaded their false implication.
I have heard learned counsel for the parties and perused the case file with their assistance.
CRA-S-NO.441-SB OF2014-5- Learned counsel for the appellants has argued that the independent witness-Mewa Singh joined by the police party has not been examined for the reason best known to the prosecution.
Lady Constable who conducted the search of the appellant-Karnail Kaur was also not examined.
All these facts when taken together create suspicion about the case of the prosecution.
The police has effected separate recovery of contraband from both the appellants.
There is no evidence that the contraband recovered from the possession of the appellant-Amarjit Singh was in conscious possession of Karnail Kaur and vice-versa.
As such, the trial Court has committed grave error of law while convicting and sentencing both the appellants under Sections 18 and 21 of the NDPS Act.
While concluding his arguments learned counsel for the appellants has argued that both the appellants are not previous convicts.
They are in the age group of more than 50 years and have five daughters and one son, as such, in the event of the arguments of the appellants seeking acquittal of appellant fail to cut any ice, the request has been made for leniency in the quantum of sentence awarded by the trial Court.
The learned State counsel has argued that the appellants are husband and wife, dealing in contraband, as such, were jointly liable for recovery of contraband made from both of them.
The trial Court has rightly convicted the appellants for offence under Sections 18 and 21 NDPS Act.
The prosecution has examined DSP Satvir Singh Atwal, Investigating Officer, ASI Gurnam Singh, who were the witnesses of recovery.
The fact that the Lady Constable who conducted the search of Karnail Kaur has not CRA-S-NO.441-SB OF2014-6- been examined, is not fatal to the case of the prosecution as the recovery was made before ASI Rohi Ram and DSP Satvir Singh Atwal.
The independent witness Mewa Singh was given up by the prosecution as have been won over by the accused.
It is a general tendency that the independent witnesses either avoid joining the police party and if at all they joined they do not appear to support the prosecution case.
The appellants have utterly failed to shatter the statement of prosecution witnesses so as to disbelieve them.
Arguments advanced by learned counsel for the appellants call for determination of following points in this appeal: 1.
Non-examination of independent witness 2.
Non-examination of Lady Constable Jasbir Kaur: 3.
Whether recovery of opium and smack was affected from conscious possession of both the appellants.
My observations on points for determination referred above are as follows: 1.
Non-examination of independent witness: The prosecution has given up Mewa Singh as having been won over by the accused.
The prosecution case find support from the statement of the Investigating Officer ASI Rohi Ram, the recovery witnesses ASI Gurnam Singh and DSP Satvir Singh Atwal PW-6 and Inspector Bharpur Singh before whom the accused and the case property was produced on reaching the police station.
There is nothing on file to show that the aforesaid witnesses were in any manner inimical towards the appellants or had any reason or motive to falsely depose against them.
CRA-S-NO.441-SB OF2014-7- In support of his argument that adveRs.inference is to be drawn against the prosecution due to non-examination of the independent witness joined at the time of alleged recovery from the accused, the learned counsel for the appellant has relied upon the observation in the case of Ram Lubhaya versus State of Punjab, 2014(1) RCR (Criminal).697 (P&H) (Single Bench).In that case there were material contradictions in the statement of recovery witness and the Hon’ble Bench has observed that non- examination of independent witness is a circumstance leading to draw of adveRs.inference against the prosecution.
Hon’ble Supreme court in the case of Jarnail Singh versus State of Punjab, 2011(3) SCC521 has categorically observed that the mere non-examination of independence witness do not lead to the conclusion of false implication of the accused.
The Hon’ble Division Bench of this Court in the case of Ramesh Kumar Versus State of Punjab, 2013(4) RCR (Criminal) 320, has observed that the testimony of official witnesses cannot be discarded until it is proved that they have any animus or hostility against the accused for his false implication.
While discussing the question of non-joining of the independent witnesses, it was observed that they are aveRs.to join the police and depose in favour of prosecution as they are afraid of the fact that joining the police and deposing in favour of the prosecution may expose them to serious consequences.
Hon’ble Division Bench has observed in para 21 of the judgment as follows: “21.
It was held by the Hon’ble Supreme Court of India in Ajmer Singh v.
State of Haryana, 2012(2) CRA-S-NO.441-SB OF2014-8- RCR (Criminal) 132: 2010(2) Recent Apex Judgments (R.A.J.) 13: 2010(2) JT175 though in cases like the case in hand, independent evidence is required, but accused cannot be acquitted merely because no independent witness produced.
Hence conviction was upheld inter alia on said ground.
So, the contention raised by the learned counsel for the appellant to the effect that evidence of PW-5 (HC Sham Lal) and PW-7 (ASI Jai Kishan) cannot be relied upon for want of corroboration by the evidence of independent witness, is repelled, in view of the judgment (supra).”
.
In the case of Sumit Tomar versus State of Punjab, 2013(1) SCC395 Hon’ble Supreme Court on the point of non-examination of independence witness joined by the police, has observed as follows: “In view of the above discussion, we hold that though it is desirable to examine independent witness, however, in the absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with.
On the other hand, the procedure adopted by the prosecution is acceptable and permissible, particularly, in respect of the offences CRA-S-NO.441-SB OF2014-9- under the Narcotic Drugs and Psychotropic Substances Act.”
.
In view of the above observations and keeping in view the fact that testimony of recovery witnesses and supervisory officer is reliable, unshattered and without any animus, this argument of learned counsel for the appellant is repelled.
2.
Non-examination of Lady Constable Jasbir Kaur: The prosecution had given up Lady Constable Jasbir Kaur as unnecessary.
Her non-examination in no manner make the prosecution case weak or suspicious.
The recovery of smack was made from the pocket of shirt (kurti) of Karnail Kaur in the presence of DSP Satvir Singh Atwal, ASI Rohi Ram and ASI Gurnam Singh.
All these witnesses have fully supported the prosecution case.
The provisions of Section 50 NDPS Act were duly complied with.
This argument of learned counsel for the appellants as such has no merit and is discarded.
3.
Whether recovery of opium and smack was affected from conscious possession of both the appellants: Now the only question which required answer in this case is as to whether both the appellants could be convicted for offence under Section 18 and 21 of the NDPS Act.
As per the prosecution version both the appellants were sitting on the kucha strip by the side of the Bhakhra canal and were talking to each other.
The recovery was separately effected from them.
No evidence has been produced to suggest that Karnail Kaur was in conscious possession of the recovery of contraband, effected from Amarjit Singh and that appellant Amarjit Singh was in conscious possession of contraband recovered from the pocket of Kurti of Karnail Kaur.
No doubt the appellants are husband CRA-S-NO.441-SB OF2014- 10 - and wife but their marital status is not enough to hold them guilty for the recovery of contraband from the possession of the other spouse in the absence of any cogent and convincing evidence produced by the prosecution.
The trial Court has committed grave error of law while convicting Amarjit Singh for offence punishable under Section 21 of the NDPS Act and appellant Karnail Kaur for offence punishable under Section 18 of the NDPS Act.
As a sequel of my discussion above the conviction of both the appellants as recorded by the trial Court is modified as follows: (i) Appellant Amarjit Singh is convicted for offence punishable under Section 18 of the NDPS Act (ii) Appellant Karnail Kaur is convicted for offence punishable under Section 21 of the NDPS Act.
The sentence awarded to Karnail Kaur for offence punishable under Section 21 of the NDPS Act is maintained and keeping in view the facts and circumstances of the case the sentence awarded to appellant Amarjit Singh for offence punishable under Section 18 of the NDPS Act is reduced from RI for 2 years to RI for 1 years 6 months.
However, the sentence of fine awarded to appellant Amarjit Singh is maintained.
This appeal is partly allowed in above term.
Copy of this judgment be sent to learned trial Court and Chief Judicial Magistrate, Patiala.
22nd MAY, 2014 (SURINDER GUPTA) GUPTA) ‘raj’ JUDGE Raj Kumar 2014.05.28 09:32 I attest to the accuracy and integrity of this document Chandigarh