Jeet Singh vs State of Haryana

A.S. Nehra, J.

The appeal is directed against the judgment and order dated 12.8.1996 passed by Additional Sessions Judge, Hisar by which Jeet Singh, appellant has been convicted under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/ and in default of payment of fine, to further undergo R.I. for one year.

Briefly stated, the prosecution case is that on 24.8.1985, Inspector Raghbir Singh, SHO, Police Station Jakhal accompanied by HC Krishan Kumar and other police officials was going along Bhakra Canal on Government Gypsy for patrolling and when they reached near Ghaggar river, the accused was seen coming from the opposite side with a gunny bag on his head and he was apprehended on suspicion. In the meantime, Balkar Singh also came there and he too was joined in the investigation. Thereafter, Inspector Raghbir Singh served notice, Ex. PA on the accused intimating him that he was suspected to be in possession of some contraband and if he so desired, he could be searched in the presence of a Gazetted Officer or a Magistrate. In reply, the accused expressed his faith in Inspector Raghbir Singh and volunteered his search by him; in pursuance whereof Inspector Raghbir Singh searched the gunny bag carried by the accused and recovered Chura Post, which after weighing was found to be 35 Kgs. Out of the same, 200 grams were separated as sample and thereafter the sample and the remaining Chura Post were sealed separately with the seal '' RS'' and taken into possession vide recovery memo, Ex. P.B. The seal after use was given to Balkar Singh PW. Thereafter, Inspector Raghbir Singh sent ruqa, Ex. PC, to the Police Station; on the basis of which formal FIR, Ex.PC/1 was recorded by Bani Singh, MHC.

To prove its case, the prosecution examined PW1 H.C. Krishan Kumar, PW2 Inspector Raghbir Singh, PW3 HC Bani Singh and PW4 Constable Siri Bhagwan, while Balkar Singh was given up as having been won over by the accused. Besides, report of the Chemical Examiner, Ex. PG was also tendered in evidence.

When examined under Section 313 of Code of Criminal Procedure, the accused pleaded his innocence and false implication. However, he did not lead any evidence in defence.

In have heard Mr. H.S. Gill, Senior Advocate for the appellant and Mr. S.S. Pattar, Assistant Advocate General, Haryana for the State and have gone through the evidence on record carefully.

The prosecution story is unfolded through the testimony of Investigating Officer Raghbir Singh, who while appearing as PW2 testified that on 24.8.1995, while posted as SHO, P.S. Jakhal, he alongwith HC Krishan Kumar (PW.1) and other police officials was proceeding on a police Gypsy along the Bhakra Canal on patrol duty, when the accused was seen by them coming from the opposite side. He further stated that the accused was apprehended on suspicion and thereafter, notice, Ex. PA, was served upon him intimating him that he could, if so desired, be searched in the presence of a Gazetted Officer or a Magistrate to which the accused vide his reply, Ex. PA/1 consented to his search by the Investigating Officer himself. On search of the gunny bag carried by the accused, 35 Kgs. of Chura Post was recovered, out of which 200 grams were separated as sample and then sample and the remaining Chura Post were separately sealed with the seal of ''RS'' and taken into possession vide recovery memo, Ex. PB, while the seal after use was given to Balkar Singh PW. Thereafter, PW2 Inspector Raghbir Singh sent ruqa, Ex. PC to the Police Station; on the basis of which formal FIR, Ex. PC/1 was recorded by HC Bani Singh. Inspector Raghbir Singh also proved rough site plan, Ex. PD, service of notice, Ex. PE of the grounds of arrest on the accused and report, Ex. PF, sent by him under Section 57 of the Act to DSP, Tohana regarding arrest of the accused. PW1 H.C. Krishan Kumar who is a witness to recovery, in sum and substance, corroborated the testimony of the Investigating Officer.

Mr. H.S. Gill, Senior Advocate argued that the alleged independent witness Balkar Singh was not examined by the prosecution and was, in fact, given up by the Public Prosecutor as per his statement dated 20.3.1996 on account of his having been allegedly won over by the accused, and as such the testimony of the two official witnesses could not be considered sufficient to prove the case. In support of his argument, he placed reliance on The State of U.P. and another v. Jaggo alias Jagdish and others, 1971 Cri.L.J. 1173.

Mr. S.S. Pattar, Assistant Advocate General, Haryana, contended that the judgment The State of U.P. and another v. Jaggo alias Jagdish and others, (supra) relied upon by the learned counsel for the appellant nowhere lays down that the testimony of the official witnesses cannot be relied upon in the face of nonexamination of an independent witness though joined in the investigation. He further contended that nonexamination of an independent witness on the ground of his having been won over by the accused cannot render the entire prosecution case doubtful on this score alone as in such a case, the witness who is stated to have been won over, can be produced for cross examination by the accused which would elicit correct facts.

After hearing the learned counsel for the parties, I find no force in the argument raised on behalf of learned counsel for the appellant because it has nowhere been laid down by the Apex Court that the testimony of the official witnesses cannot be relied upon in the face of nonexamination of independent witnesses though joined in investigation. It has been held by the Apex Court that all the witnesses of the prosecution need not be called but the witness whose evidence is essential to the unfolding of the narrative must be called as his absence seriously affects the truth of the prosecution case. It has been further held by the Apex Court that mere presentation of an application by the prosecution that a certain witness has been won over is not conclusive proof of the allegation and in such a case, the witness can be produced for crossexamination by the accused which would elicit correct facts. The accused could produce the independent witness for cross examination which has not been done in the present case. Therefore, The State of U.P. and another v. Jaggo alias Jagdish and others (supra) is not applicable to the facts of the present case.

Learned counsel for the appellant further contended that signature of Balkar Singh, independent witness, did not exist on the recovery memo, Ex. PB, and it rendered the prosecution case doubtful. However, I am unable to accept this contention because the presence of thumb impression of Balkar Singh on notice, Ex. PA and on its reply, Ex. PA/1 thereto, which as per the testimony of Investigating Officer and the recovery witness, was served on the appellant in the presence of the independent witness Balkar Singh, is sufficient to establish the presence of Balkar Singh at that time. No reason has been put forth by the accused as to why these two witnesses will depose falsely against him for no rhyme and reason. Therefore, the testimony of the above two witnesses regarding recovery of contraband in question from the accused cannot be discarded only on account of nonexamination of the above named independent witness Balkar Singh whose presence at the spot stands proved in view of existence of his thumb impression on the notice, Ex. PA and its reply, Ex. PA/1 thereto. It has been held by this Court in Roop Singh v. State of Punjab, 1996(1) RCR 146 in Para 12 of the judgment as under :

"A Panchwitness may turn hostile and not support the case of the prosecution or may be hesitant in appearing in the court and depose against the accused for various reasons from fear to bribe. He is an average and ordinary human being and quite exposed and vulnerable to the human feelings of yielding, browbeating, threats, inducements etc. To figure as a Panch witness at the stage of police investigation is one thing and thereafter to give evidence before the court is entirely a different thing. In fact a panchwitness generally thinks twice before entering into a witness box and if at all he enters the same, one would not be surprised if he does not support the prosecution because of variety of the reasons mentioned above. Therefore, the fact that the prosecution has given up the independent public person Sirbhai Singh having been won over by the accused persons, is fully justified in the present day situation prevailing in the Society and no adverse inference against the prosecution can be drawn in this case."

It has been further observed in the said authority as under :

"It is certainly not the law that in each and every case irrespective of the case and attending circumstances, the evidence of the police officer needs corroboration before it is accepted or to be acted upon. The presumption that a person acts honestly applied so much in favour of a police officer as of other persons and it is not the Judicial approach to distrust and suspect him without good grounds therefor. Even if the testimony of a police Officer requires some corroboration to be acted upon, the corroboration does not necessarily mean that the witness should be corroborated by other witness only. The testimony of a police officer can be corroborated by way of some intrinsic circumstantial evidence available on record. In fact, in a given case, there may not be any other direct evidence of the witness to corroborate the evidence of the police officer but at the same time there is nothing to reach at the conclusion that the police officer was malicious and interested in falsely framing up the accused and there was certain inbuilt and unimpeachable circumstantial evidence on the record to support the evidence of the police officer, then in such a case implicit reliance can be placed upon the testimony of such a police officer."

In the light of the observations made by this Court referred to above, the testimony of two witnesses regarding the recovery of contraband in question from the possession of the accused on the relevant day and time and in the manner as alleged cannot be doubted, more so, when no suggestion was put forth by the accused during crossexamination as to why they were deposing falsely against him nor was any reason put forth by the accused when examined under Section 313 of Code of Criminal Procedure.

Learned counsel for the appellant next argued that PW1 HC Krishan Kumar had simply testified that the accused was informed through notice, Ex.PA that he could, if so desired, be searched in the presence of a Gazetted Officer without further elaborating that the accused was simultaneously informed of his right for being searched in the presence of a Magistrate as testified by the Investigating Officer Raghbir Singh (PW2). This contradiction, according to learned counsel for the appellant, had rendered the prosecution case doubtful, as the offer made to the accused for his search was only partial. It has been held by the Apex Court in Raghbir Singh v. State of Haryana, Criminal Appeal No. 92 of 1996 arising out of SLP (Criminal) No. 2546 of 1995 as under:

"It is clear from Section 50 of the NDPS Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer taking the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the Officer making the search and not by the accused."

The appellant cannot, thus, be heard to contend that there was only partial offer of his search before a Gazetted Officer and not before a Magistrate. Furthermore, in the light of notice, Ex. PA, the inconsistency between the testimony of PW1 regarding the accused having been informed of his right of search before the Gazetted Officer and the testimony of PW2 Raghbir Singh, Investigating Officer regarding the accused having been informed of his entitlement to search before a Gazetted Officer or a Magistrate is not a material contradiction to warrant disbelieving of their testimony. It has been clearly mentioned by the Investigating Officer in the notice, Ex. PA as to whether the appellant would like to be searched before a Gazetted Officer or before a Magistrate, learned counsel for the appellant further contended that there was a contradiction in the testimony of these two officers regarding weighing scale because in his testimony PW1 HC Krishan Kumar had stated that the recovered Chura Post was weighed with the help of weighing scales, one of which was small in size and the other was big in size whereas PW2 Raghbir Singh Investigating Officer, had stated that one of weighing scale was a spring scale and the other one an iron scale. This cannot be considered to be a discrepancy in the real sense of the term. Furthermore, the arguments that PW1 had stated that the writing work was done by him at the dictation of SHO whereas the said SHO Raghbir Singh while appearing as PW2 had stated that some writing work was done by himself whereas the remainder had been got done by him from HC Krishan Kumar (PW1), cannot be considered to be a contradiction. Similarly, the testimony of PW1 HC Krishan Kumar that the distance between Chanderpur Head and the place of recovery was one and a half K.M. whereas SI/SHO Raghbir Singh had testified the distance between these two places was one or two K.M. cannot be considered to be a material contradiction to warrant disbelieving of the testimony of these two witnesses. In this view of the matter, the judgments cited by the learned counsel for the appellant Rohtas v. The State of Haryana, 1986(1) CLR 3 and Daljit Singh v. The State of Punjab, 1973 CLR 460 are of no help to him. He further contended that notice under Section 50 of the Act, Ex. PA served upon the accused by PW2 Raghbir Singh was not admissible in evidence. In support of his argument he referred to State of Punjab v. Kulwant Singh, 1996(3) RCR 363.

Mr. Pattar contended that State of Punjab v. Kulwant Singh (supra) was not applicable to the facts of the present case because in that case, Investigating Officer ASI Baldev Raj (PW2) who conducted the search of the accused, did not mention in his statement at the trial that he had informed the accused about his right to be searched before a Gazetted Officer or a Magistrate and that he declined to avail of his right and in the alternative, offer was made to the accused to get himself searched by the Investigating Officer Baldev Raj. ASI Baldev Raj (PW2) simply by mentioning in ruqa Ex. PC and memo, Ex. PE that Kulwant Singh had been informed about his right to be searched before a nearest Gazetted Officer or a Magistrate and that he had declined the offer, was not sufficient to prove the mandatory provision of Section 50 of the Act.

In State of Punjab v. Kulwant Singh (supra) admittedly no notice under Section 50 of the Act was given to the accused which is clear from the statement made by the accused under Section 313 of Code of Criminal procedure which is reproduced in Para 10 of the judgment and the same reads as under :

"It is in evidence against you that you were offered the opportunity of search in the presence of any Gazetted Officer or any Magistrate. You declined the same and a memo Ex. PE was prepared in this respect and upon your personal search, you were found in possession of 1 Kg. of opium. 10 gms. was separated as sample. The bulk of the remaining opium and sample were made into parcel and were sealed with the seal bearing impression ''BR'' and were taken into possession vide recovery memo Ex. PA. What have you to say ?"

It was held by this Court in State of Punjab v. Kulwant Singh (supra), relying upon an earlier Division Bench decision in Amrit Singh v. State of Haryana, 1990(2) RCR 525 , wherein it was observed that to give meaning and content to the clear legislative intent underlying the safeguard provided by Section 50 of the NDPS Act, mere statement of a police officer saying that the accused was made aware of his right to be searched under the Act is not sufficient compliance of the Act. It was further held in Amrit Singh v. State of Haryana (supra) that the statements made by an accused to police in the course of investigation were inadmissible and if such statement was a confession, it was also hit by Section 25 of the Evidence Act.

After hearing the learned counsel for the parties at length and after going through the Division Bench judgment of this Court State of Punjab v. Kulwant Singh (supra), I hold that the same is not applicable to the facts of the present case because in the case in hand, notice Ex. PA under Section 50 of the Act was served upon the appellant.

Mr. S.S. Pattar, Assistant Advocate General, Haryana contended that Section 50 of the Act had been complied with in accordance with law. In support of his argument he referred to State of Punjab v. Balbir Singh, 1994(1) RCR 737.

In view of the above discussion, I hold that the prosecution case stands proved against the accused beyond shadow of any reasonable doubt. Consequently, there is no merit in the appeal and the same is hereby dismissed.