Judgment:
CRA-S-2001-SB of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRA-S-2001-SB of 2008 Date of decision:
30. 06.2014 Satnam Singh and another ........ Appellants Versus State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH1 Whether Reporters of the local papers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the digest?. Present: Mr. Satnam Singh Gill, Advocate for the appellants. Mr. Deepak Garg, AAG, Punjab. R.P. NAGRATH, J.
Both the appellants are residents of village Pipal Thah, District Jind, Haryana. They faced trial of the charges under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') for keeping in their possession four bags of poppy-husk each containing 35 kgs. of quantity and Section 8(C) read with Section 15 of the Act for transporting the said quantity of poppy-husk in a car. The learned trial Court convicted the appellants under Section 15 of the Act and sentenced them to undergo rigorous imprisonment for ten years and to pay fine of ` 1 lac each, in default of payment of fine to further undergo rigorous imprisonment for two years. Jitender kumar 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -2- 2. The prosecution story, in brief, is that on 18.07.2006, the police party headed by SI Kuldip Singh, SHO of Police Station Julkan was present at Tangri bridge in the area of village Aoujha in an official vehicle for checking. Harnek Singh son of Inder Singh resident of village Hassanpur Kamboan came there on a bicycle and SI Kuldip Singh started having conversation with the witness. In the meanwhile, the police party spotted Tata Sumo No.HR-51- D-6526 of red colour coming from the side of village Binjhal. The driver of Tata Sumo tried to turn his vehicle back, on seeing the police party. The vehicle was surrounded by the police party and both the appellants were apprehended at the spot. Out of them Satnam Singh-appellant No.1 (A-1) was driver of Tata Sumo and the other appellant Mehal Singh-appellant No.2 (A-2) was sitting on front seat alongwith the driver.
3. On checking of the vehicle, it was was found loaded with four bags of poppy-husk kept on the rear seats and some commodity was scattered on the floor of the Jeep. PW-6 SI Kuldip Singh told the appellants that they wanted the search of appellants and their vehicle. The appellants were informed that they have a right to be searched before a gazetted officer or a Magistrate. Both the appellants, however, reposed confidence in SI Kuldip Singh and their separate consent memos Ex. PC and Ex. PD respectively were prepared, signed by appellants and attested by witnesses including the independent witness. Jitender kumar 4. PW-6 then separated two samples of 100 gms. from 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -3- each of these bags and the remaining quantity in each of the bag weighed 34 kg. 800 gms. Sample parcels and gunny bags were sealed by SI Kuldip Singh with his seal bearing impression 'KS' and sample impression of the seal, Ex. PI, was separately prepared. The seal after use was handed over to Harnek Singh PW. The case property was taken into possession vide memo Ex. PE, attested by the witnesses. On the basis of ruqa Ex. PJ sent to the police station from the spot FIR Ex. PJ/1 was registered.
5. From the dash-board of the vehicle its Registration Certificate (RC) Ex. P1 was recovered. Separate panchnama Ex. PF for taking into possession Tata Sumo No.HR-51-D-6526, and the registration number was prepared. It is also stated by PW-6 that Satnam Singh (A-1) is the registered owner of the vehicle which is also evident from RC Ex. P1. The grounds of arrest were also intimated to the appellants by preparing memo Ex. PH-1.
6. PW-4 Constable Bakshish Singh photographer of Police Department was summoned at the spot on 18.07.2006 itself and he took the photographs which are Ex. PW-4/A to Ex. PW-4/D developed from the negatives Ex. PW-4/A1 to Ex. PW-4/D1. The above version of taking photographs was also supported by PW-6. Rough site plan Ex. PK with marginal notes was also prepared. On personal search of both the appellants some cash amount was recovered for which memos Ex. PG and PH respectively, were prepared. Jitender kumar 7. It is further the prosecution story as also testified by 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -4- PW-6 that on return to the police station the case property was deposited with PW-3 MHC Darshan Singh of the Police Station Julkan on the same date. These witnesses have also stated that the case property was produced before the area Magistrate in the presence of appellants on the next day for which application Ex. PM was moved. One representative sample was drawn from each bag in the presence of the Magistrate who also recorded the statement of SI Kuldip Singh Ex. PM/I and passed the necessary order on the application for deposit of the case property in the Judicial Malkhana. It is stated by PW-6 as well as PW-4 Constable Bakshish Singh that photographs were also taken in the Court when the representative samples were drawn, under the orders of Judicial Magistrate. These photographs are Ex. PW-4/E to PW-4/G developed from negatives Ex. PW-4/E1 to Ex. PW-4/G1.
8. The charge-sheet against the appellants was presented on receiving the report of Chemical Examiner finding the contents of all the four samples sent for analysis to be containing chura poppyHead.
9. The prosecution examined six witnesses in support of its case.
10. In their examination under Section 313 Cr.P.C., the appellants denied all the incriminating circumstances appearing in the prosecution evidence against them. It is pertinent to mention that Satnam Singh (A-1) even denied the circumstance about Jitender kumar ownership of Jeep which was otherwise proved from the record of 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -5- registration certificate as well as the statement of official of the office of District Transport Officer. A-1 simply pleaded that he is a heart patient and was operated upon in the PGIMER, Chandigarh. The case of A-2 was of simple denial.
11. The appellants examined DW-1 HC Budh Gir of the Police Station and proved copy of register No.19 as Ex. DX.
12. Learned trial Court convicted and sentenced the appellants as aforesaid.
13. I have heard learned counsel for the appellants, the State counsel and have also gone through the trial Court record quite extensively with their able assistance.
14. The learned appellants' counsel challenged the conviction on the grounds inter alia:- (i) that there is serious doubt in the link evidence. (ii) that the material question with regard to appellants being in conscious possession of the contraband was not put to them under Section 313 Cr.P.C., resulting into a serious prejudice; (iii) that the evidence of prosecution comprises of only the official witnesses and the only independent witness allegedly joined was not produced; (iv) that there is unexplained delay in sending the samples for analysis to the Chemical Examiner; Jitender kumar and 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -6- (v) that there is non-compliance of the provisions of Sections 52, 55 and 57 of the Act.
15. On the other hand, learned State counsel contended that the evidence in proof of the charge is quite consistent and the official witnesses have no prior enmity against any of the appellants. It was further submitted that the very fact that A-1 was the owner of the vehicle in which contraband article was carried would be sufficient to corroborate the prosecution story. It is also contended that there has been substantial compliance of various important provisions of the Act.
16. Before dealing with the rival contentions, I find it appropriate to refer to the formal evidence led in the case to connect the report of Chemical Examiner Ex. PX with the recovery effected from the appellants.
17. PW-3 HC Darshan Singh was posted as MHC of the Police Station at the relevant time. PW-6 SI Kuldip Singh, the investigating officer testified that on return to the police station he deposited the case property with MHC of the Police Station on 18.07.2006 itself. PW-3 has tendered his affidavit Ex. PB to this effect. As per contents of this affidavit (Ex. PB), the entire case property was handed over to PW-6 on the next day for being produced before the area Magistrate. This fact is also testified by PW-6 in the witness-box.
18. PW-6 moved an application Ex. PL to the area Jitender kumar Magistrate for seeking remand of appellants and also an 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -7- application Ex. PM for production of the case property by attaching inventory of articles including eight sample parcels bearing seal impression 'KS'. Learned Magistrate recorded the statement of SI Kuldip Singh Ex. PM/I to the effect that eight sample parcels and four representative samples separated before the area Magistrate alongwith bags containing poppy-husk be deposited in the Judicial Malkhana. There is a detailed order passed by the Magistrate on application for production of the case property stating therein that eight sample parcels weighing 100 gms. each and four gunny bags weighing 34 kgs. 800 gms. each were produced before the Magistrate bearing seal impression 'KS'. It was also specifically mentioned that photographs were directed to be clicked. The proceedings conducted before the Magistrate as contained in the order are that seal of four gunny bags which were containing 34 kgs. 800 gms. of poppy-husk were broken in the Court and one representative sample each weighing 100 gms. from the bulk was taken out. Four representative samples and remaining case property were ordered to be sealed with seal of Court bearing seal impression 'JK' and also the seal impression 'KS' of the investigating officer.
19. It is stated in the affidavit Ex. PB of PW-3 that four sample parcels out of eight prepared at the spot were entrusted to HC Mohinder Singh on 24.07.2006 for being deposited in the office of Chemical Examiner. There is the affidavit of PW-1 HC Mohinder Jitender kumar Singh as Ex. PA tendered on record and it is testified that samples 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -8- were deposited in the office of Chemical Examiner on the same day with seal intact. There is certificate to this effect by the office of Chemical Laboratory as mentioned in the report Ex. PX.
20. There is twofold attack to the aforesaid evidence. Learned counsel for appellants contended that the affidavits of formal witnesses do not bear seal of the Magistrate. I do not see any substance in this contention. There are complete certificates of the Judicial Magistrate stating that contents of the affidavit were read over and explained to the deponents who were identified by the Naib Court personally known to the Magistrate and the deponents understood the same. This contention would also pale into insignificance because the appellants also had the opportunity to cross-examine both the witnesses.
21. The other contention was that FSL form was not prepared at the spot as stated by PW-5 and PW-6 in cross- examination. Both PW-5 and PW-6 stated that sample of the seal Ex. P1 was separately prepared at the spot, which was sent alongwith articles for getting the same examined by the Chemical Examiner.
22. Coming straight to the evidence of recovery witnesses, the entire version has been testified by PW-6 SI Kuldip Singh, Investigating Officer who is materially and substantially corroborated by PW-5 ASI Gulzar Singh, a recovery witness. Both the witnesses have been cross-examined quite extensively and Jitender kumar have withstood the test of scrutiny. Both the witnesses were 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -9- examined on the same day and are quite consistent on various material questions. They stated that some of the writing were done by ASI Gulzar Singh and some by HC Baljit Singh. The witnesses are also consistent in stating that all the recovery memos were written in the hand of PW-5 ASI Gulzar Singh. According to PW-5, the police station is about 3-4 kilometers from the place of recovery whereas this distance is stated to be 5 or 6 kilometers by PW-6.
23. Learned appellants' counsel, however, referred to a discrepancy which is quite insignificant. PW-5 stated that HC Amrik Singh brought the weight and scales in the official vehicle driven by HC Kala Singh driver. PW-6, however, does not know what was the mode of transport adopted by HC Amrik Singh in bringing weights and scale. This is hardly a material discrepancy especially when the witnesses appeared after about two years of recovery and cannot be meticulous on such aspects as they are to appear in the Courts in similar types of cases investigated during the course of their official duties. It is sufficient to say that both PW-5 and PW-6 are quite consistent on the point that HC Amrik Singh arranged the weights and scale. Both PW-5 and PW-6 are quite specific in stating that it was the weighing machine on which the bags were weighed.
24. The defence set up by the appellants during cross- examination of both the recovery witnesses including the investigating officer is that the police wanted some undue Jitender kumar obligation from Satnam Singh (A-1) which he refused and thus he 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -10- was illegally arrested from his house and later on false recovery was planted. This plea has been denied by the witnesses and there is no material on record even to remotely accept this plea. It is admitted by PW-6 in cross-examination that A-1 is permanent resident of Ludhiana. However, as per the case set up by the prosecution he originally belongs to village Pipal Thah in District Jind, Haryana and they were apprehended in the area of village Julkan.
25. The bone of contention of appellants' counsel was that no question was put to them under Section 313 Cr.P.C. that the appellants were in conscious possession of the contraband which has thus caused serious prejudice to them. In support of this contention learned appellants' counsel relied upon the judgment of Division Bench of this Court in Sukhdev Singh and another vs. State of Punjab, 2006 (4) RCR (Criminal) 263 and judgment of Hon'ble Supreme Court in Avtar Singh and others vs. State of Punjab, AIR2002SC3343 26. The above argument cannot be sustained in view of the very fact that A-1 is the owner of vehicle in which contraband was being carried and A-2 has not explained the circumstances as to how he was travelling in the vehicle of A-1. It has also come in the testimony of witnesses which is in consonance with the story that the appellants tried to turn back the vehicle on seeing the police party. Ex. P1 the registration certificate of the vehicle was Jitender kumar recovered from Tata Sumo when it was recovered at the spot and 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -11- A-1 is the registered owner. PW-2 Rajesh Kumar from the office of District Transport Officer, Jind brought the record of this vehicle showing the ownership of the vehicle to be transferred in the name of A-1 vide endorsement Ex. P2. A very strange plea was taken by appellants even denying the incriminating circumstance of ownership of vehicle during examination under Section 313 Cr.P.C. The endorsement Ex. P2 is of the year 2005.
27. The other factor is that there was a specific question put to the appellants that in the Jeep in which they were travelling four bags of poppy-husk were recovered. It is not a case that there was any other commodity loaded in the Jeep apart from bags of poppy-husk. Learned appellant's counsel, however, referred to the judgment of Apex Court in Avtar Singh's case (supra) in support of his contention. That case pertained to the recovery of bags of poppy-husk from a truck in which some of the accused persons were sitting beside the driver, some were sitting on the back of the truck and one was the driver.
28. Avtar Singh's case (supra) was also discussed in the latest judgment of Hon'ble Supreme Court in Gian Chand and others vs. State of Haryana, 2013 (14) SCC420 In Gian Chand's case (supra), the police party saw a jeep coming at a high speed from opposite direction and asked the said Jeep to stop. However, instead of stopping, the driver accelerated the speed of the jeep. This created suspicion in the minds of the Jitender kumar police officials and thus they chased the jeep. The occupants of 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -12- the jeep took a U-turn and in that process the jeep struck the wall of a house in the village. The three occupants of the jeep tried to run away but they were caught by the police and identified as appellants.
29. Hon'ble Supreme Court in Gian Chand's case (supra) held as under:-
“13. The Appellants were found travelling in a jeep at odd hours in the night and the contraband material was found. Therefore, the question arises whether they can be held to have conscious possession of the contraband substances. This Court dealt with this issue in Madan Lal and Anr. vs. State of Himachal Pradesh, 2003 (4) R.C.R. (Criminal) 100, observing that Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences and penalties for possession of such articles. Undoubtedly, in order to bring home the charge of illicit possession, there must be conscious possession. The expression 'possession' has been held to be a polymorphous term having different meanings in contextually different Jitender kumar backgrounds. Therefore, its definition cannot be 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -13- put in a straitjacket formula. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Possession in a given case need not be actual physical possession and may be constructive i.e. having power and control over the article in case in question, while the person to whom physical possession is given holds it subject to that power or control. The Court further held as under: “Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.....It has not been shown by the Accused-Appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act. (Emphasis added) Jitender kumar 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -14- 14. From the conjoint reading of the provisions of Section 35 and 54 of the Act, it becomes clear that if the Accused is found to be in possession of the contraband article, he is presumed to have committed the offence under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the Accused to prove otherwise. Thus, in view of the above, it is a settled legal proposition that once possession of the contraband articles is established, the burden shifts on the Accused to establish that he had no knowledge of the same.”. 30. It was further held that once the possession of contraband material with an accused is established, the accused has to establish how he came to be in possession of the same as it is within his special knowledge and therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872. It was further held as established that in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court. It was also Jitender kumar 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -15- held that Avtar Singh's case (supra) does not lay down the law of universal application as it was decided on its own facts.
31. In the instant case, however, no such occasion arises as the word 'conscious' need not be specifically put to the accused under Section 313 Cr.P.C. when the entire story of their apprehension with the jeep containing bags of poppy-husk was specifically put to them and their version was of simple denial.
32. In Mohinder vs. State of Haryana, 2013 (2) R.C.R. (Criminal) 594, the charge against the appellant was that recovery of 3 kgs. of opium from a tin retained by the appellant was made. It was found by the Hon'ble Supreme Court that nothing was explained or denied by the appellant in his statement under Section 313 Cr.P.C. nor examined anyone as a defence witness. It was held that the High Court rightly observed that once the appellant was asked by the court that he was carrying a tin in his hand and opium was recovered therefrom, the aspect of conscious possession of the contraband is presumed and in the absence of any contra evidence, there is no reason to disbelieve the prosecution version.
33. In Madan Lal and another vs. State of H.P., 2003 (7) SCC465 it was held by Hon'ble Supreme Court that to determine whether there was conscious possession it has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused Jitender kumar persons were travelling in a vehicle and as noted by the trial Court 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -16- they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. It was further held that once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. The appellants before Hon'ble Supreme Court were charged of the offence under Section 20 of the Act and it was ultimately found from the evidence on record that all the occupants of the car knew about transportation of charas, and each had a role in the transportation and possession with conscious knowledge of what they were doing.
34. The next question is whether it was necessary to examine the independent witness associated by the police party and further as to whether the case should be looked with suspicion if the witnesses examined are from the police department. In Rohtash vs. State of Haryana, 2013 (3) R.C.R. (Criminal) 355, Hon'ble Supreme Court considered the issue at length and after placing reliance upon its earlier judgments came to the conclusion that where all witnesses are from the police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the Jitender kumar 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -17- ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars should be sought. Hon'ble Supreme Court held as under: “Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon.”. 35. In Appabhai and Anr. vs. State of Gujarat, AIR1988SC696 Apex Court dealt with the issue of non-examining the independent witnesses and held as under:- “The prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is Jitender kumar 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -18- indeed unfortunate, but it is there everywhere whether -in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties.”. 36. Harnek Singh was given up by prosecution as having been won over by the accused. He belongs to village Hassanpur which is at quite some distance from the place of recovery. The appellants belong to village Pipal Thah in district Jind, Haryana. The appellants also seem to be quite influential persons as heavy quantity of poppy-husk was being carried in the vehicle owned by A-1. Therefore, there can be a reasonable apprehension in the mind of prosecution for there being no utility in examining the witness.
37. The other argument was that there is defect in the case property produced. This argument is without substance. The entire case property was produced during examination of PW-5 and PW- 6. According to both the witnesses, the gunny bags containing poppy-husk were marked as serial Nos. 1 to 4 and sample parcels separated at the spot were marked as 1-1A to 4-4A. The sample parcels produced during examination of witnesses are Ex. P-2 to Ex. P-5; representative samples Ex. P-6 to Ex. P-9 and bulk bags are Ex. P-10 to Ex. P-13. It is admitted by the witnesses that on the representative samples it is mentioned that the sample parcels were sealed with seal impression 'KS' and that these sample Jitender kumar parcels were bearing the seal impression 'JK' instead of 'KS'. But 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -19- PW-6 volunteered that seal impression prepared at the spot is 'KS'. There is no such apparent defect because it is the prosecution story that when case property was produced in the Court of Magistrate, the representative samples were also prepared in the Court and sealed with seal impression 'JK' of the Judicial Magistrate. No other apparent defect was pointed out in the entire case property produced during examination of the witnesses.
38. The learned appellant's counsel, however, referred to copy of register No.19 Ex. DX in which detail of case property was entered. It is stated in Ex. DX that after the case property was produced before the Judicial Magistrate, the investigating officer deposited eight samples separated at the spot which bear initials of the Magistrate and four representative sample with seal impression 'JS' of the Magistrate and 'KS' of Investigating Officer. However, the weight of bags redeposited was mentioned as 24 kgs. 700 gms. However, the careful perusal of Ex. DX copy of register No.19 clearly records about deposit of eight samples and four bags containing 34 kgs. 800 gms. each on 18.07.2006 by investigating officer. It is also recorded that on 19.07.2006, the case property including the bag containing 34 kgs. 800 gms. of the commodity were taken out to be produced before the Magistrate. It is only at the end of the subject matter of Ex. DX it was recorded that bags weighing 24 kgs. 800 gms. were redeposited, which is apparently a clerical mistake/error. Jitender kumar 39. It was next contended that the sample parcels were not 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -20- promptly deposited with the Chemical Examiner. Learned appellants' counsel relied upon Harbans Singh @ Kala vs. State of Punjab, 2014 (1) RCR (Criminal) 493 a judgment of this Court that if there is delay in sending the sample that brings suspicion to the story. I do not find any such apparent delay in the instant case because the recovery was effected on 18.07.2006; the case property was produced before the area Magistrate on 19.07.2006 and within one week i.e. on 24.07.2006 the samples were deposited in the office of Chemical Examiner. No question was put to the formal witnesses especially PW-3 asking him to explain if there was any inordinate delay in sending the samples for examination.
40. In Hardip Singh vs. State of Punjab, (2008) 8 SCC557 40 days delay in sending the samples of seized opium to Forensic Science Laboratory was found to have no consequence for the fact that the recovery of the said sample from possession of the appellant stands proved and established by cogent and reliable evidence led at the trial. It had also come in the evidence that till the date, the parcels of sample were received by 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 on the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from possession of the appellant. In Harbans Jitender kumar Singh's case (supra) there were so many defects found in the 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -21- story. No enquiry was made to know the owner of the scooter in which the contraband was carried; two months delay in sending the samples and non-compliance of Section 55 and 57 of the Act. In the instant case, however, the owner of vehicle is A-1 himself.
41. The other challenge was about non-compliance of Sections 52, 55 and 57 of the Act. Under clause (a) of sub-section (3) of Section 52 of the Act, the accused as well as articles seized are required to be produced before officer-in-charge of the police station. In this case PW-6 was himself the SHO of police station. He had drawn the samples at the spot and put the seals thereon alongwith rest of the case property. The case property was in fact deposited with PW-3 HC Darshan Singh MHC of the police station who categorically stated in his affidavit Ex. PB that the case property remained intact during his possession and the same was not permitted to tampered with. The other important aspect is that on the very next day the entire case property was produced before the Judicial Magistrate by preparing inventory and it has been recorded by the Magistrate in the order dated 19.07.2006 that the seals on the parcels were intact. The representative samples were drawn before the Magistrate. Therefore, the requirement of Section 52-A has been meticulously complied with. In fact Section 52-A was the subject of application made before the Magistrate on 19.07.2006.
42. It was submitted that report of arrest and seizure was Jitender kumar not made by PW-6 to the officer immediately superior, and there is 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -22- thus non-compliance of the provisions of Section 57 of the Act. It is stated by PW-5 and PW-6 in cross-examination that they did not send any such report from the spot. It would be seen that information to the police was sent by sending ruqa Ex. PJ and the same was delivered to the Judicial Magistrate spontaneously as endorsement of the Magistrate on the FIR Ex. PJ/1 in token of delivery to the Magistrate was made at 03.25 p.m. on 18.07.2006 itself, ruling out any concoction. It is also stated by both the witnesses that on return to the police station on completion of investigation, the appellants were lodged at the police station at 03.30 p.m. In fact ruqa was sent by PW-6 from the spot for registration of FIR and according to PW-5 that constable returned to the spot with FIR number at about 1.45 p.m. and according to PW-6 that Constable had returned at 12.30 p.m. or 1.00 p.m. As per the contents of FIR, information about registration of FIR was sent to Incharge of the Control Room and copies of FIR were being sent through Constable Lakhwinder Singh to the senior officers as well as the area Magistrate. There is thus substantial compliance of all the aforesaid provisions.
43. The law is also settled on the subject that the provisions of Sections 52, 55 and 57 are only directory in nature. Reliance in support of the above view can be placed upon judgment of Hon'ble Supreme Court in Babubhai Odhavji Patel and others vs. State of Gujarat, (2005) 8 SCC725wherein it was held that provisions Jitender kumar of Sections 52, 55 and 57 of the Act are not mandatory provisions 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2001-SB of 2008 -23- and they are only directory. In the said case, it was found that there was no serious violation of these provisions and those were found to be substantially complied with.
44. In view of the above discussion, I find that the trial Court has rightly held the charge against the appellants as proved beyond suspicion, in view of the meticulous and cogent evidence led in support of the case.
45. On the quantum of sentence learned trial Court has imposed the minimum sentence provided for the offence. However, two years rigorous imprisonment awarded in default of making payment of fine seems to be on the excessive side. That period is reduced to one year rigorous imprisonment. Subject to the aforesaid modification in the default clause of imprisonment, the instant appeal is dismissed. June 30, 2014 ( R.P. NAGRATH ) jk JUDGE Jitender kumar 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh