Ashok Kumar vs State of Haryana

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 8.6.1996, passed by the Court of Additional Sessions Judge, Rohtak, who convicted the appellant Ashok Kumar under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, the appellant was directed to undergo R.I. for three years, for allegedly having been found in possession of Charas weighing 5 kgs. and 500 grams, without any licence or permit.

The brief facts of the case are that on 24.9.1995, ASI Maha Singh along with other police officials, was present at Mokhra Chowk, Madina on G.T. Road, in connection with patrolling and excise checking and was having talks with Daya Nand, Chowkidar of Village Madina. Meanwhile, the appellant was spotted coming from the side of Bus Stand, Madina. He was carrying a bag in his right hand. On seeing the police party, the appellant tried to take a turn but on the basis of suspicion, he was overpowered and arrested. ASI Maha Singh served a notice, Ex. PJ, under Section 50 of the Act and the appellant was directed to exercise his option whether he wanted to give his search in the presence of some gazetted officer or a Magistrate. The appellant opted for his search by a Magistrate. Thereafter, Constable Rajesh Kumar was sent to the Court of the S.D.M., Meham, with the application, Ex. PB, so as to enable ASI Maha Singh to take the search of the appellant in the presence of the Magistrate. The S.D.M. marked the application to Shri Dharam Pal Pannu, TehsildarcumExecutive Magistrate, PW1, so that he may be able to join in the search. Shri Dharam Pal Pannu reached at the spot. Accused Ashok Kumar was produced before the Executive Magistrate along with the bag. Thereafter, in the presence of Shri Dharam Pal Pannu and Daya Nand, Chowkidar, the search of the bag was conducted by ASI Maha Singh, PW4, Investigating Officer. The bag contained Charas wrapped in a wax paper. On weighing, it came to 5 kgs. and 500 grams. The A.S.I. separated 250 grams of charas by way of sample and made a sealed parcel thereof by using his own seal bearing inscription "MS". The case property was also sealed with the seal of the A.S.I. and also with the Seal of the Executive Magistrate Dharam Pal Pannu. Sample seal was also prepared and the seal after use was handed over to Daya Nand, Chowkidar. The entire case property was taken into possession vide recovery memo, Ex. PA, which was attested by Daya Nand, Chowkidar and Head Constable Mahabir and Shri Dharam Pal Pannu. Appellate could not produce any licence or permit for the possession of charas. Resultantly, Ruqa, Ex. PH, was sent to the police station for the registration of the case, on the basis of which formal FIR, Ex. PH/1, was recorded against the appellant. The I.O. also prepared the rough site plan, Ex. PK, of the place of recovery with correct marginal notices and recorded the statements of the witnesses. Accused was formally arrested and on return to the police station, the case property and the accused was produced before Satbir Singh, SHO, who verified the earlier investigation conducted by ASI Maha Singh. The case property, ultimately, was handed over to the Moharrir Head Constable of the Police Station with the seals intact for safe custody. Later on, the sample of the charas was sent to the office of the Director, Forensic Science Laboratory, Madhuban, who vide report, Ex. PL, declared the contents as charas. The special report was also sent to the higher authorities by ASI Maha Singh regarding the search, seizure and the arrest of the accused. Finally, on the completion of the investigation of the case, the appellant was challaned in the Court of the Illaqa Magistrate, who supplied the copies of the documents to the appellant free of cost as required under the law and committed the accused to the Court of Sessions in order to face trial. The learned trial Court framed a charge under Section 20 of the Act. The charge was read over and explained to the appellant, who pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined Shri Dharam Pal Pannu, TehsildarcumExecutive Magistrate, Meham, PW1, Daya Nand, Chowkidar, PW2, ASI Raj Kumar, PW3, I.O. Maha Singh, A.S.I., appeared as PW4 and S.I. Satbir Singh, SHO appeared as PW5. The prosecution also tendered into evidence the affidavits of the formal witnesses besides the report of the Chemical Examiner and closed the case.

On the closure of the prosecution evidence, the statement of the accused was recorded under Section 313, Cr.P.C. and all the incriminating circumstances were put to the accused. Accused denied those circumstances and pleaded innocence and false implication in the case.

When called upon to enter his defence, the accused did not lead any evidence and closed the case.

The learned trial Court vide the impugned judgment and order convicted the appellant under Section 20 of the Act and sentenced the appellant in the manner stated above. Aggrieved by his conviction and sentence, the present appeal, which I am disposing of with the assistance rendered by Shri D.S. Bali, Sr. Advocate, appearing on behalf of the appellant and Shri Azad Singh, AAG, Haryana, appearing on behalf of the State. With the assistance rendered by the counsel for the parties, I have also gone through the record of this case.

The story of the prosecution has been assailed by the learned senior counsel Shri D.S. Bali mainly on the ground that the identity of the appellant was a doubtful affair. There was a serious discrepancy in the statement of ASI Maha Singh, I.O., PW4 and Shri Dharma Pal Pannu, `Executive Magistrate, PW1, with regard to the nature of the bag in which Charas was allegedly found. It was also argued by the learned senior counsel that the provisions of Section 55 of the Act have not been complied with and, in these circumstances, it is a fit case where the benefit of doubt should be given to the appellant who deserves to be acquitted. On the contrary, the learned A.A.G., Haryana, supported the reasons of conviction as advanced by the learned trial Court.

After hearing the learned Counsel for the parties, I am of the considered opinion that this appeal is totally devoid of any merit and deserves to be dismissed as none of the contentions raised by the learned Counsel for the appellant cut ice in this case.

Firstly, I will deal with the point of identity. It is the case of the prosecution that on the relevant day, i.e. 24.9.1995, ASI Maha Singh, PW4, was present in Mokhra Chowk, Madina, in connection with patrolling and excise checking and Daya Nand, Chowkidar, was with him. Meanwhile, Ashok Kumar, appellant, came there. He was carrying a bag in his right hand. On seeing the police party, he tried to take a turn but on the basis of suspicion, he was apprehended and from the search of the bag which was taken in the presence of Shri Dharam Pal Pannu, Executive Magistrate, and Daya Nannd, Chowkidar, Charas weighing 5 kgs. and 500 grams was found. To determine the question of identity, I will see whether it is doubtful. At the first instance, I would like to discuss the documents which were prepared on the spot with regard to the identity of the appellant. Ruqa, Ex. PH, which was sent to the police station is a material document in which it was clearly mentioned that the appellant was apprehended in the presence of the members of the police party and Daya Nand, Chowkidar. Thereafter, an application was submitted to the S.D.M., Meham with a request to come to the spot so that the search of the appellant may be taken. This document Ex. PB clearly indicates that the name of the appellant finds mention there. The recovery memo, Ex. PA, further indicates that a person by the name of Ashok Kumar s/o Keshav Nath Gupta, resident of Betia, Police Station Loria, District Champaran West, Bihar, was taken into custody. This very person was produced before the superior officer on the same day and he was put behind the bars. On the next day, he was produced before the Magistrate. In these circumstances, the documentary evidence clinchingly establishes that Ashok Kumar, the present appellant, was taken into custody by ASI Maha Singh, PW4. Reliance has been placed in order to confuse the identity of the appellant on the statement of Shri Dharam Pal Pannu, Executive Magistrate, PW1 who stated in the following terms :

"I was requested by the ASI present there to conduct the search of that public person who was having a cloth made bag in his hand. I enquired about his name, parentage, etc. He disclosed his name as Ashok Kumar; accused present in the dock may be the same person."

Emphasis has been laid by arguing that Dharam Pal Pannu, Executive Magistrate was not sure whether the person standing in the dock was the appellant or not and, in these circumstances, the identity of the appellant has not been established.

The argument of the learned Counsel for the appellant is totally devoid of any merit. I cannot lose sight of the fact that the recovery in this case was effected on 24.9.1995 and the statement of PW1 was recorded by the trial Court on 28.2.1996. Dharam Pal Pannu must have remained with the accused for a period of 1/2 hour or one hour on the date of recovery and, thereafter, he did not get any chance to see the appellant. On the contrary, Maha Singh, I.O., would have remained with the appellant for enough time. It is a matter of common knowledge that human memory is bound to fade with the passage of time. It depends upon individual to individual how he will be able to recollect and identify an object/person. In my opinion, Dharam Pal Pannu has made a most honest statement by stating that the accused standing in the dock may be the same person who was searched on 24.9.1995 in his presence. Had he stated that the appellant was the same person who was searched in his presence on 24.9.1995, some doubt could have been created with regard to the identity of the person but by stating that the appellant may be the same person from whom charas was recovered, it is a very natural statement on the part of Dharam Pal Pannu, Executive Magistrate. Recovery memo, Ex. PA, another material document prepared at the spot, clearly indicates that the particulars of Ashok Kumar, appellant, are the same as deposed by ASI Maha Singh, I.O. Fortunately, this very document was attested by Dharam Pal Pannu under his own signatures on 24.9.1995 clearly indicating that Ashok Kumar s/o Keshav Nath Gupta was the actual person who was apprehended at the spot. The appellant, at no point of time, had claimed any identification parade of his identity either from Dharam Pal Pannu or from Maha Singh, I.O. or Daya Nand, Chowkidar. In these circumstances, I have no hesitation to repel the first argument of the alleged mistaken identity advanced by the counsel for the appellant.

It was, then, submitted by the learned Counsel for the appellant that there is a discrepancy with regard to the nature of the bag allegedly recovered from the possession of the appellant. Reliance has been placed on the statement of Dharam Pal Pannu who had stated that the search of the bag made of cloth was conducted and charas was found whereas the consistent case of the prosecution is that the bag was made of plastic. In the opinion of this court, the discrepancy which is being relied upon by the learned Counsel for the appellant is totally negligible and the same does not create any reasonable dent in the story of the prosecution. For every discrepancy, the benefit of doubt cannot go to the appellant. Only those discrepancies are to be counted which go to the root of the case. This is the basic law of appreciation of evidence of a criminal trial. In the present case it will depend how an individual would try to describe a particular thing.

In the light of the above, I, again, repel the second argument of the counsel for the appellant.

The third submission which was raised by the counsel for the appellant is that the provisions of Section 55 of the Act have not been complied with and, therefore, the benefit of doubt should be given to the appellant. According to the learned Counsel, the provisions of Section 55 of the Act are mandatory in character.

I do not agree with the contention of the counsel for the appellant that the provisions of section 55 of the Act are mandatory in character. In my opinion, these are only directory in nature and every noncompliance of the provisions of section 55 of the Act is not fatal to the prosecution. Even otherwise, I fail to understand how the learned Counsel for the appellant wants to take the advantage of section 55 of the Act, which enjoins a duty upon the Officer Incharge of the Police Station to take charge of the sealed articles and to affix his own seal and then to order that the sealed articles should be kept in safe custody. The object of this provision is that the prosecution must keep the sanctity of the sealed articles intact till the stage those incriminating articles are examined by the office of the Chemical Examiner. In this case, charas was sealed by ASI Maha Singh, PW4, in the presence of Dharam Pal Pannu, Executive Magistrate, PW1, Daya Nand, Chowkidar and Head Constable Mahabir. Dharam Pal Pannu had used his own seal at the spot bearing inscription "DPP" and he kept the seal with him after use. The case property was also sealed by the I.O. with his own seal bearing inscription "MS". The I.O. handed over the seal to Daya Nand Chowkidar, for safe custody. Thus, it can be said that the intention of the I.O. was totally honest when he handed over his own seal to the independent witness Daya Nand, Chowkidar and also allowed the Executive Magistrate to use his own seal so that the case property may not be tampered with. The record of this case further shows that the I.O., then, produced, the case property before Satbir Singh, SHO, PW5. As per the statement of this witness, on 24.9.1995, ASI Maha Singh had produced before him two sealed parcels and Ashok Kuamr, accused. It has also come in the statement of Satbir Singh that he put his own seal bearing inscription "SS" and the case property was returned to ASI Maha Singh with the direction to deposit the same with the Moharrir Head Constable. Further, there is unchallenged affidavit, Ex. PE, of Moharrir Head Constable Ram Niwas, who categorically stated that on 24.9.1995 he had received two parcels, i.e. the case property, bearing seals of Dharam Pal Pannu, ASI Maha Singh and Satbir Singh, SHO, and those sealed parcels were handed over to constable Preet Singh on 9.10.1995 for delivering the same in the office of the Chemical Examiner. Affidavit, Ex. PF, of Constable Preet Singh is also to the same effect. Thus, the case property with the seals intact was produced before the Incharge of the Police Station, Meham, who ordered for the safe custody of the case property and the untampered property reached the office of the Chemical Examiner as certified by him in his report, Ex. PM. Thus, I hold that, firstly, the provisions of section 55 of the Act are not mandatory in nature and, secondly, the same have been duly complied with in the present case.

A feeble attempt was also made by the counsel for the appellant to convince that the prosecution has withheld the best part of the evidence, i.e., the forwarding memo No. 29204 dated 29.9.1995, regarding which there is a mention in the report, Ex. PM. The attempt is very feeble which has to be rejected with the following explanation :

Letter dated 29.9.1995 is only a forwarding letter which was written by the office of the Deputy Superintendent of Police (City), Rohtak, to the Director, Forensic Science Laboratory, Madhuban, for conducting the test. The case property was despatched vide R.C. No 383 dated 9.10.1995 and in this regard there is a corroboration from the evidence of MHC Ram Niwas, who has clearly stated in para3 of his affidavit that the case property was taken out from the police Malkhana on 9.10.1995 and was despatched to the office of the Director, Forensic Science Laboratory vide R.C. No. 383 dated 9.10.1995. The forwarding letter must be in the possession of the office of the Director, Forensic Science Laboratory and it was not supposed to be proved by the prosecution. If the accused had any doubt about the contents of the report of the Chemical Examiner, he could have examined the witness from the office of the Director, Forensic Science Laboratory about the forwarding letter dated 29.9.1995. Thus, it is not established on the record that the sample of Charas was taken out from the police Malkhana on 29.9.1995. Rather, it is established that the same was taken out on 9.10.1995 as deposed by MHC Ram Niwas.

One more argument was raised by the counsel for the appellant that in this case the time of seizure of Charas and arrest of the appellant is doubtful. The counsel expanded his argument by stating that in Ex. PA, the recovery memo, FIR No. 187 dated 24.9.1995 has been given and this document was prepared prior to 2.30 PM while the F.I.R. was registered in the police station at 3.35 P.M.

This argument does not carry any weight. A perusal of Ruqa, Ex. PH, would show that the appellant must have been apprehended at about 2.00 P.M. on 24.9.1995. Recovery memo, Ex. PA, was prepared. Other formalities such as request for joining the Gazetted Officer, statement of the appellant to the effect that he wanted his search in the presence of a Magistrate, must have been completed. Ruqa was despatched to the police station at 2.30 P.M. F.I.R. was registered at 3.30 P.M. Its number was 187. This number must have been conveyed to ASI Maha Singh, who gave the number of the F.I.R. in the Recovery Memo, Ex. PA. The digit 187 written in Ex. PA is in a separate ink and has been written with the help of a ball point pen. The other contents of Ex. PA have been written with a different ball point pen. This clearly indicates that F.I.R. No. 187 was received by the I.O. at the spot or after he left the spot and, then, he mentioned the same in Ex. PA. In these circumstances, it is difficult to say that the writing has been fabricated and has been done subsequently after 3.30 P.M.

With regard to the alleged proof that Charas weighing 5 kgs and 500 grams was recovered from the possession of the appellant, we have the statement of Dharam Pal Pannu, Executive Magistrate. There is a corroborative statement of ASI Maha Singh to this effect as well. Both these witnesses have consistently deposed that charas was recovered from the possession of the appellant weighing 5 kgs. and 500 grams. Accused could not produce any licence or permit. The mandatory provisions of section 50 of the Act have been duly complied with in this case. The appellant exercised his option that he should be searched in the presence of a Magistrate. A request was sent to the S.D.M. who marked the application to Dharam Pal Pannu, Executive Magistrate. Accused was produced before him and the search of the bag was conducted. It is true that Daya Nand, Chowkidar, who was examined by the prosecution as PW 2, did not support the case of the prosecution but the same will not make any difference. The statement of Dharam Pal Pannu cannot be disbelieved because he is a gazetted officer enjoying the powers of an Executive Magistrate. If the appellant has been able to manage the services of Daya Nand, PW2, for some extraneous reasons, it does not mean that the statements of ASI Maha Singh and Dharam Pal Pannu, PW4 and PW1, respectively, should be thrown in the dust bin. It is difficult to believe on the part of this court that ASI Maha Singh would be able to manage a huge quantity of charas weighing 5 kgs and 500 grams from his personal resources. The special report of this case was also sent to the higher authorities which inspires confidence of this court with regard to the genuineness of the recovery. The link evidence is not missing. The evidence of all the formal witnesses has been duly tendered into evidence. Opportunity was given to the accused to crossexamine those witnesses but he failed to do so. The appellant has not been able to establish his defence that he was falsely implicated in this case.

Resultantly, I do not differ with the reasons advanced by the learned trial Court who convicted and sentenced the appellant for the offence under Section 20 of the Act. I do not find any merit in this appeal and the same is hereby dismissed. Intimation about the dismissal of this appeal be sent to the jail authorities.