Judgment:
CRA-S-1621-SB of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRA-S-1621-SB of 2008 Date of decision:
30. 06.2014 Jagiro @ Jagir Kaur ........ Appellant 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. Pankaj Maini, Advocate for the appellant. Mr. Deepak Garg, AAG, Punjab. R.P. NAGRATH, J.
The appellant and her son Mohan Lal were tried of the charge under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') for being found in possession of 175 kgs. of poppy-husk in five bags being carried in the Esteem Car in which they were travelling. Mohan Lal co- accused was acquitted, there being no cogent evidence to establish his identity whereas the appellant stood convicted of the said charge. She was sentenced to undergo rigorous imprisonment for ten years and to pay fine of ` 1 lac, in default of payment of fine to further undergo rigorous imprisonment for six months. Jitender kumar 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -2- 2. The version of prosecution, in brief, is that on 27.04.2002, the police party headed by PW-2 SI Ram Lubhaya of CIA Staff, Nawanshahr and comprising of lady Constable Kamaljit Kaur and lady Constable Paramjit Kaur and Dharam Pal sarpanch of village Lakhpur, was present on Hakimpur road at bridge of canal in connection with patrolling and checking. The police party spotted an Esteem car No.PB-10P-0929 of white colour, coming from the side of village Hakimpur. The driver of the car stopped the vehicle at a distance of 50 yards on seeing the police party. The driver of the car alighted from the vehicle and fled from there, whereas the appellant who was sitting on the front seat of car was apprehended at the spot.
3. On interrogation the appellant told the name of her accomplice who had fled from the spot. On search of the car, the police party found three bags in the dicky and two bags on rear seat of the car. The appellant was told by the Sub Inspector that they suspected some contraband in the bags lying in the car. The appellant was informed that she has a legal right to be searched before a gazetted officer or a Magistrate. The appellant opted to be searched before a gazetted officer. Ex. PA is the statement of appellant recorded in this regard which was thumb marked by her and attested by witnesses including Dharam Pal sarpanch of village Lakhpur.
4. PW-2 sent a wireless message to DSP (D), Jitender kumar Nawanshahr to reach the spot. PW-7 DSP Jagtar Singh came 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -3- there in the official vehicle alongwith his gunman. PW-7 disclosed his identity to the appellant and informed her that search of the car was to be conducted and whether she wants the search to be made before some other gazetted officer or a Magistrate. The appellant reposed confidence in PW-7 who recorded her consent memo Ex. PB which was thumb marked by the appellant and attested by witnesses.
5. The above story has been testified by PW-2 SI Ram Lubhaya, PW-8 ASI Buta Singh, a member of the police party and PW-7 DSP Jagtar Singh. It has emerged during the trial as per prosecution story and testified by the witnesses that one sample weighing 250 gms. was separated from each of the bag and the remaining contents of the bags were weighing 34 kgs. 750 gms. The sample parcels and remaining bags were sealed with seal bearing impression 'RL' of Sub Inspector and 'JS' of the DSP. PW-6 kept the seal after use with himself whereas PW-2 handed over the seal to ASI Buta Singh. Separate sample impressions of the seals was also prepared. The entire case property was taken into possession by preparing panchnama Ex. PC attested by witnesses including Dharam Pal sarpanch. The Esteem Car was taken into possession vide separate memo Ex. PD.
6. Ruqa Ex. PF was sent to the police station and formal FIR Ex. PF/1 registered. The rough site plan Ex. PE was also prepared. The appellant was thereafter arrested and her arrest Jitender kumar memo Ex. PH was prepared. On her personal search conducted 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -4- under the rules cash amount of ` 615/- was recovered vide memo Ex. PG.
7. Co-accused Mohan Lal was arrested on 03.07.2002 by PW-5 ASI Jagdish Ram to which there is no need of a detailed discussion because Mohan Lal stood acquitted by the trial Court.
8. Prosecution examined eight witnesses in support of its case.
9. The appellant denied all the incriminating circumstances appearing in the prosecution evidence against her during her examination under Section 313 Cr.P.C. The appellant pleaded that a false recovery has been planted upon her because of enmity as her daughter got a case registered against SI Jasbir Singh and SI Gurdial Singh under the Prevention of Corruption Act. It was also pleaded that SI Gurdial Singh was convicted by Judge, Special Court, Nawanshahr in that case. In defence the appellant examined Dharam Pal as DW-1.
10. Learned trial Court convicted and sentenced the appellant as aforesaid. Learned State counsel placed on record custody certificate of the appellant which shows that the appellant has already undergone about six years and six months of imprisonment.
11. The learned counsel for the appellant attacked the conviction of appellant inter alia on the following grounds:- (i) that evidence of recovery witnesses is highly Jitender kumar discrepant and there was prior enmity to implicate 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -5- the appellant in a false case; (ii) that evidence of prosecution comprises only of the official witnesses and the only independent witness allegedly joined was not examined. Rather Dharam Pal has supported the defence by appearing in the witness box as DW-1; (iii) that no effort was made to locate the owner of Esteem Car; (iv) that the link evidence is doubtful in as much as only one sample from each bag instead of the two were taken and even those were sent after the unexplained delay of 11 days. The seal after use was also not handed over to the independent witness; (v) that the personal search of the appellant was conducted by SI himself which is in violation of the mandatory requirement of sub-section (4) of Section 50 of the Act as a female police official was supposed to make search of the appellant; and (vi) that there is non-compliance of Sections 55 and 57 of the Act.
12. Learned State counsel on the other hand has supported the findings of the learned lower Court. It was contended that the Jitender kumar testimony of official witnesses cannot be discarded in the absence 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -6- of prior enmity or some ulterior motive to falsely implicate the appellant for such a huge recovery. It was also submitted that the version of prosecution and testified by PW-2 the investigating officer is that the personal search of the appellant was conducted by a lady Constable.
13. The prosecution story has been meticulously testified by PW-2 SI Ram Lubhaya, the investigating officer. The witness stated about intercepting the Esteem car from which the co- accused alighted and fled from there whereas appellant was sitting in front seat of the car. PW-2 also testified that he told the appellant that the car was to be searched and she had the option of the search to be conducted in the presence of a gazetted officer or a Magistrate or from him. The third option as stated by the witnesses is, however, not borne out from Ex. PA the statement of appellant recorded at the spot. Vide Ex. PA the appellant was told about her right to be searched before a gazetted officer or a Magistrate. PW-8 ASI Buta Singh stated unequivocally that the appellant was informed of the option of search to be made in the presence of a gazetted officer or a Magistrate and she opted the search to be made in the presence of a gazetted officer.
14. PW-7 DSP Jagtar Singh stated that on receiving wireless message he reached the spot and disclosed his identity to the appellant that he was posted as DSP (D) and as such he is a gazetted officer. The appellant was further told whether she Jitender kumar wanted the search to be conducted from PW-7 or from any other 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -7- gazetted officer or a Magistrate. However, consent statement of appellant as recorded by PW-7 is Ex. PB where the information to the appellant is whether she wanted the search to be made before some other gazetted officer or a Magistrate. It has also been testified by PW-8 ASI Buta Singh, the recovery witness that the DSP gave offer to the appellant whether she wanted the search to be made before some other gazetted officer or a Magistrate. The second time offer was in fact not needed after the appellant exercised her right of being searched before a gazetted officer, whereafter the message was sent to the DSP to reach the spot.
15. The entire version stated by PW-2 is materially and substantially supported by PW-7 DSP Jagtar Singh and PW-8 Buta Singh to whom PW-2 handed over the seal after use.
16. Certain discrepancies have appeared in the cross- examination of witnesses which in my view are not material especially when the witnesses are cross-examined after so many years. Chief-examination of PW-2 was recorded on 11.09.2003 and his further examination was deferred on the aspect of case property. His further statement was recorded on 28.08.2007 and cross-examination was conducted on 29.02.2008 i.e. after five years of the recovery.
17. It is apparent on record that by the time cross- examination of PW-2 was conducted on 29.02.2008 he had already retired from police service. It seems that certain discrepancies Jitender kumar have occurred because of the fading memory with the lapse of 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -8- about six years of the occurrence. No undue importance can thus be attached to those discrepancies.
18. PW-2 stated that the DSP reached the spot at about 10.30 a.m. PW-7 DSP Jagtar Singh, however, stated that he received wireless message at about 12.45 p.m. and reached the spot at about 01.00 p.m. Against this PW-8 stated that DSP reached the spot at 02.00 p.m. I do not find the above discrepancy on such time factors to be so material to discard the entire story of recovery which is proved to be made in the natural course of events.
19. Learned appellant's counsel also referred to the the statement of PW-8 ASI Buta Singh who stated contrary to the prosecution story that all the bags were lying in the dicky of the car. I would reject this to be an immaterial discrepancy as the testimony of other two witnesses are quite consistent on the subject. More over it does not seem possible that five bags each containing 35 kgs. of quantity could be accommodated in the dicky of an Esteem car. This is only the lapse of time that such a discrepancy has arisen.
20. The other contradiction referred by the learned counsel for the appellant is that in the remand papers it was admittedly stated that the appellant was sitting on the back seat of the car whereas the prosecution story and the testimony of all the three witnesses is to the effect that appellant was sitting on the front Jitender kumar seat. I do not think that this statement in the remand papers can 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -9- be given any importance as it was prepared on 28.05.2004 whereas the FIR was registered in the Police Station on 27.04.2002 with correct assertion and as per endorsement on the FIR Ex. PF/1, the same had reached the area Magistrate at 5.30 p.m. on the same day.
21. The bone of contention to challenge the prosecution story was ulterior motive with the police party to plant a false recovery.
22. PW-8 admitted in cross-examination that Kashmiro daughter of the appellant registered a criminal case against SI Jasbir Singh who at one time remained posted at Police Station Nawanshahr. Similarly PW-7 DSP Jagtar Singh also admitted that SI Gurdial Singh of Police Station Banga was booked under the Prevention of Corruption Act but could not say if that case was registered at the instance of daughter of the appellant. So far as PW-2 is concerned he was not aware if there was any prior enmity between other officers of the police department and the appellant. PW-8 also admitted in cross-examination that the appellant used to generally file writ petitions against the police officials of Nawanshahr. PW-7 also stated that he could not say if SI Gurdial Singh was convicted in a case under the Prevention of Corruption Act registered at the instance of family members of the appellant.
23. The above is quite a vague story of enmity propounded by the appellant at a time when PW-7 was examined in the year Jitender kumar 2006 and cross-examination of PW-2 and PW-8 was recorded in 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -10- the year 2008. This contention could have some substance if some case had been registered against police officers, at the instance of family members of the appellant, in the year 2002 to which the instant recovery relates. No such FIR, copies of writ petitions or the judgments under the Prevention of Corruption Act were tendered on record, for remotely suggesting that there was any such case prior to the present recovery. In the absence of any such probable evidence, it would not be correct to accept the contention of the appellant that she has been implicated because of the prior enmity.
24. I am further of the view if the police party intended to plant a false recovery, it would have propounded a version in a different manner, to make sure that son of the appellant is not saved. There is nothing unnatural in the version that the co-accused ran away, because the vehicle was stopped at a distance of about 50 yards from the police party. There is no substance in the plea of ulterior motive because PW-2 did not know the appellant prior to this recovery. Even PW-8 stated that neither he nor any member of the police party knew the appellant prior to the present case.
25. Therefore, in the absence of prior enmity before the instant recovery, the testimony of official witnesses must be accepted like any other independent witness. It is not possible to plant such a huge recovery upon an innocent person in a case which involves minimum harsh punishment.
26. It was next contended that the only independent Jitender kumar 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -11- witness allegedly associated was not examined. This contention by itself cannot discard the sworn testimony of three recovery witnesses examined in support of the charge. The allegation that Dharam Pal was won over by the accused gets fortified from the fact that Dharam pal appeared for the appellant as a defence witness. This witness was given up by the prosecution on 06.02.2003. Careful scrutiny of the statement of Dharam Pal examined as DW-1 would substantiate the apprehension of the prosecution.
27. DW-1 remained sarpanch of village Lakhpur in the year 2002. How possibly the police could get the signatures of a sarpanch on blank papers?. The testimony of DW-1 is self contradictory. In chief-examination DW-1 stated that he went to the CIA staff on 27.04.2002 in order to get one person released and the police obtained his signatures on certain documents. He also stated that he enquired from the police that his signatures should be required only at one place only for letting off one person but how they are taking his signatures on several papers. It was at that time the police told the witness that there is a case of one lady and only a formality is to be completed. In the cross-examination the witness has a different story to state that he had gone to the police station for one superdari case and the police told him that his signatures are being taken on superdari papers. I am thus of the view that the version of the prosecution in associating an Jitender kumar independent witness who was sarpanch of the nearby village 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -12- during the routine checking is worthy of credence.
28. The law on the subject is also quite well settled. 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 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.”. 29. In Appabhai and Anr. vs. State of Gujarat, AIR1988SC696 the Apex Court dealt with the issue of non-examining the independent witnesses and held as under:- Jitender kumar “The prosecution case cannot be thrown out or 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -13- 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 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.”. 30. It was, however, contended with vehemence that no attempt was made to enquire the owner of the vehicle nor owner of the vehicle was challaned in terms of Section 25 of the Act. PW-2 stated in cross-examination that appellant is not owner of the vehicle and he could not say who was owner of the car. PW-5 who partly investigated the case and arrested Mohan Lal co-accused also stated that he recorded the statement of official of DTO office and that of Balbir Singh, owner of the vehicle. Record of the trial Court, however, shows that the Mohan Lal co-accused had produced his driving licence as well as registration certificate of the vehicle but that accused has since been acquitted. If owner of the vehicle was not challaned that will not provide any benefit to the appellant. Jitender kumar 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -14- 31. It was submitted that only one sample from each of the bag was separated whereas normally two samples should have been taken. There is no requirement under the law of drawing two samples at the spot. PW-7 DSP Jagtar Singh stated that the case property in this case was disposed of under the direction of the Court concerned. An application was submitted before the Sub Divisional Judicial Magistrate, Nawanshahr giving particulars of 102 FIRs including the instant FIR No.95 dated 27.04.2002 at serial No.92. Learned Sub Divisional Judicial Magistrate, Nawanshahr passed the order Ex. PP dated 04.03.2004 and case property mentioned from serial No.1 to 102 was allowed to be disposed of as per provisions of law, as samples envisaged under Section 52(A) of the Act were drawn from respective case property. Ex. PQ are the proceedings of the Drug Disposal Committee and Ex. PS is copy of DDR in proof of the destruction of the case property in the presence of the Drug Disposal Committee. There is no cross-examination of PW-7 to challenge the above story.
32. The sample parcels which were drawn from the five bags by the Drug Disposal Committee were produced during examination of PW-2. These are Ex. P1 to P5 and no defect in the aforesaid samples which were drawn under the order of Sub Divisional Judicial Magistrate could be shown.
33. Another contention of the learned counsel related to violation of mandatory requirement of sub-section (4) of Section 50 Jitender kumar of the Act. PW-2 stated in cross-examination that except Dharam 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -15- Pal and male police officials no body else was present at the spot. Reference is made to the cross-examination of PW-2 that he conducted the personal search of the appellant at 12.30 p.m. This contention I would reject straightway in view of the fact that the question basically pertained to the time when the appellant was searched. PW-8 in cross-examination also stated that the personal search of the appellant was conducted by the investigating officer prior to giving of the offer. There being vague questions on this aspect put to both the witnesses, no benefit can be availed by the appellant.
34. There was in fact a categorical statement of PW-2 in chief-examination that after sending the ruqa on completion of the necessary proceedings, personal search of the appellant was conducted by lady Constable Kamaljit Kaur and currency notes of ` 615/- were recovered. The personal search memo Ex. PG was attested by ASI Buta Singh and lady Constable Kamaljit Kaur. Perusal of personal search memo Ex. PG would establish the fact that it was signed by lady Constable Kamaljit Kaur. Therefore, unless the specific question in this regard is put to PW-2 and PW-8 in order to confront them with the statement made in chief- examination by PW-2, the above contention cannot be sustained.
35. On the question of non-compliance of provisions of Section 55 of the Act for not producing case property before the Magistrate, suffice it would be appropriate to refer to the statement Jitender kumar of PW-1 ASI Paramjit Singh who was MHC of the police station at 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -16- the relevant time, that the case property bearing seal impressions 'RL', 'JS' and 'BS' was deposited with him. PW-1, PW-2 and PW-3 are quite consistent about the time when the case property was produced at the police station and thereafter deposited with the MHC.
36. In Jaswant Singh @ Jassa vs. State of Haryana, 2005 (1) RCR (Criminal) 802 this Court held that when the case property has been exhibited during trial, the fact that it was not produced before the Illaqa Magistrate is inconsequential.
37. In fact there is substantial compliance of Section 55 of the Act as on return to the police station PW-2 produced the case property before Inspector Bakshish Singh, SHO examined as PW-3. PW-3 stated that SI Ram Lubhaya produced before him five bags of poppy-husk and five samples duly sealed with seal bearing impression 'JS' and 'RL' and also shown to him the specimen impression of the seal. PW-2 had also produced the appellant before him. PW-3 verified the facts after interrogation of the appellant and affixed his own seal on the case property bearing seal impression 'BS'.
38. PW-1 stated that the case property with aforesaid seal impressions was deposited with him alongwith Esteem car on 27.04.2002 and he entrusted the sample parcels to PW-6 HC Tara Ram on 08.05.2002 whose affidavit is Ex. PN. There is no challenge to the correctness of the testimony of PW-6. Vide report Jitender kumar Ex. PJ of the Chemical Examiner, the contents of all the samples 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -17- sent for analysis were found to be poppyHead. The slip bearing three seal impressions 'RL', 'BS' and 'JS' are affixed on the form and as per certificate of the office of Chemical Examiner, the seals on the exhibits were found to be intact and tallied with sample seals impression sent for analysis.
39. It was then contended that there is non-compliance of the provisions of Section 57 of the Act. I find that there is substantial compliance in this case as information was sent from the spot to the DSP who reached there. Even the ruqa was sent from the spot immediately and FIR was registered on the same day. The contents of the FIR Ex. PF/1 would show that the special reports were sent to senior officers and control room was also informed. Otherwise the law is well settled that requirement of provisions of Section 52, 55 and 57 are directory and not mandatory.
40. Hon'ble Supreme Court in Babubhai Odhavji Patel and others vs. State of Gujarat, (2005) 8 SCC725held that provisions of Sections 52, 55 and 57 of the Act are not mandatory provisions and they are only directory. In the said case, it was found that there was no serious violation of these provisions and those are found to be substantially complied with.
41. Similarly in State of Punjab vs. Leela, (2009) 12 SCC300 Hon'ble Supreme Court held as under:-
“13. It is not in dispute that provision of Section 55 are directory in nature. In the instant case, the DSP who Jitender kumar 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -18- was examined as PW-1 is an officer and was higher in rank or of the same rank as the SHO in the instant case. There is no reason indicated as to how the accused has been prejudiced by PW-1 putting his seal instead of the SHO. The provisions are directory and as there is no doubt about the authenticity of the official Act, the High Court ought not to have held that there was noncompliance with the requirement of Section 55.”
. Even in this case, the case property was sealed with seal of the DSP who reached the spot within a short time.
42. It was lastly contended that there is delay of 11 days in sending the sample. In Hardip Singh v. 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. In that case also statement regarding recovery made by the IO was corroborated by higher officer of the rank of DSP, who was examined at length during the trial. It was found that the said recovery was effected in the presence of DSP, a senior officer, who also put his seal on the said parcels of opium. Besides it had also come in 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 Jitender kumar 2014.07.03 16:06 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1621-SB of 2008 -19- 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.
43. From the above discussion I find the conviction recorded by learned trial Court is well based and there is no ground to interfere in the findings of the trial Court. Learned trial Court has awarded the minimum sentence provided for the offence and even there is no scope of interference in the quantum of sentence. Therefore, there is no merit in the instant appeal and the same 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