Karamjit Singh vs State of Punjab

L. N. MITTAL, J.—Karamjit Singh accused by filing instant criminal appeal has assailed his conviction and sentence ordered by learned Additional Sessions Judge/Special Judge, Amritsar vide judgment of conviction dated 01.08.1995 and order of sentence dated 04.12.2002 thereby convicting the accused-appellant u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the ''Act'') and sentencing him to undergo rigorous imprisonment for five years and to pay fine of Rs.50,000/-and in default thereof, to undergo further rigorous imprisonment for one year

Prosecution case in brief is that on 13.09.1993, police party headed by SI Tarsem Parkash Singh and including ASI Santokh Singh and other police officials was present in chowk Ram Talai, Amritsar. Babu Ram was also joined by the police. Accused Karamjit Singh came from the side of Golden Avenue. On seeing the police party, he sat down on the pretext of urinating. He was apprehended by the police on suspicion. He was to be searched on suspicion of contraband substance. He was informed about his right to be searched in presence of Magistrate or Gazetted officer. The accused desired to be searched in presence of Gazetted officer. Accordingly by sending wireless message, Chaman Lal, DSP was called to the spot. Thereafter bag of the accused was searched. It was found to contain opium. Out of it, 10 grams opium was separated as sample and the remaining opium weighed 1 kilogram. Separate parcels of sample and remaining opium were prepared and sealed and were seized by the police. FIR was got registered by sending ruqa to the Police Station. Statements of witnesses were recorded. Rough site plan of place of occurrence was prepared. The accused was arrested. On return to Police Station, the accused along with case property was produced before Joginder Singh, SHO, who affixed his own seal on parcels of sample and remaining opium. The sample on analysis by Chemical Examiner was found to be of opium. Accordingly, on competition of investigation, police presented report u/s 173 of the Code of Criminal Procedure (in short, ''Cr. P. C.'') for prosecution of the accused u/s 18 of the Act.

Charge u/s 18 of the Act was framed against the accused. He pleaded not guilty and claimed trial.

In support of its case, prosecution examined five witnesses.

Chaman Lal, DSP PW-1, Santokh Singh, ASI PW-2 and Tarsem Parkash, SI PW-4 have broadly stated according to prosecution version regarding recovery of 1 kilogram 10 grams opium from the accused. Tarsem Parkash, SI also stated about investigation of the case conducted by him.

Satwant Singh, Constable, PW-3 stated that he had deposited the sample parcel with Chemical Examiner without any tempering by anybody.

Joginder Singh, SHO PW-5 stated that the accused along with case property was produced before him. He affixed his own seal on both parcels of sample and remaining opium. He also stated that the case property including sample was not tempered with in his custody.

The accused in his examination u/s 313 Cr.P.C. denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He stated that he was in police custody since 10.09.1993 and he was implicated in this false case on 13.09.1993. His brother Sukhraj Singh had met him in police station Ram Bagh on 11.09.1993 and had sent telegrams to officers on 12.09.1993 about his illegal detention.

In defence, the accused examined four witnesses.

Pardeep Kumar DW-1 LRC from the office of District and Sessions Judge, Amritsar stated that telegram sent by Sukhraj was received on 13.09.1993.

Rattan Chand DW-2 from Central Telegraph Office proved certified copy of the telegram and stated that record of the telegram had since been destroyed.

Sukhraj Singh, DW-3 brother of the accused stated according to defence version.

Rakesh Kumar, DW-4 Clerk from office of Deputy Commissioner stated that telegram sent by Sukhraj Singh was received in their office on 13.09.1993 regarding illegal detention of Karamjit Singh accused.

Learned Additional Sessions Judge, Amritsar vide impugned judgment dated 01.08.1995 convicted the accused u/s 18 of the Act. Arguments in the case had been heard on 28.07.1995 and the case had been adjourned to 01.08.1995 for pronouncement of order. However, on 01.08.1995, the accused did not come present. He was ultimately declared proclaimed offender. Thereafter his presence could be secured on 29.11.2002. He was then heard on the quantum of sentence on 04.12.2002 and vide order of even date, learned Special Judge, Amritsar imposed sentence on the appellant as already mentioned herinabove. Feeling dissatisfied, convict has filed the instant criminal appeal.

I have heard learned counsel for the parties and perused the case file with their assistance.

Learned counsel for the appellant vehemently contended that there has been delay of 22 days in sending the sample to Chemical Examiner for analysis. It was also submitted that the seal after sealing the parcels of sample and remaining opium was not handed over to Babu Ram independent witness but was handed over to ASI Santokh Singh who was junior/subordinate of investigating officer Tarsem Parkash SI and Chaman Lal, DSP. It was thus argued that possibility of tampering with contents of the sample cannot be ruled out. It was also submitted that Babu Ram has not been examined as witness by the prosecution. It was further canvassed that Babu Ram is stock witness of the police having been cited in large number of cases as evidenced by copies of FIRs Exhibits D-3 to D-13. It was accordingly argued that prosecution evidence is not reliable and sufficient to prove guilt of the accused. Prayer for reduction in sentence was also made in view of lapse of long period.

On the other hand, learned State counsel contended that prosecution has led reliable evidence to bring home the charge against the accused. Prayer for reduction in sentence was also opposed keeping in view the quantity of contraband substance as well as the conduct of the accused-appellant who remained absconding for over seven years after his conviction was announced.

I have carefully considered the rival contentions.

All the prosecution witnesses have fully supported the prosecution version. Statements of Chaman Lal, DSP PW-1, Santokh Singh, ASI PW-2 and Tarsem Parkash, SI PW-4 are cogent and reliable and therefore, sufficient to prove the recovery of contraband opium from the possession of the accused. Their veracity could not be impeached in their cross-examination. They had no enmity with the accused so as to implicate him in a false case or to depose falsely against him. No suggestion was even put to them in their cross-examination in this regard. Even the accused in his statement u/s 313 Cr. P. C. has not alleged any ground for his false implication. Consequently there is no reason to doubt or disbelieve the statements of aforesaid three witnesses. Their statements are further corroborated by testimony of Joginder Singh SHO PW-5 before whom the accused along with case property was produced on the same day. Prosecution evidence is thus found to be credible.

Sending of telegram by brother of the accused to District and Sessions Judge and to Deputy Commissioner regarding alleged illegal detention of the accused by the police does not carry much weight. It has become common practice for smugglers of contraband substances to send such telegrams in advance to create defence in case the accused is caught by the police. On the other hand, if the accused is not caught, there would be no harm by sending of the telegram. Moreover, there is no reason why the police would illegally detain the accused for three days and then implicate him in a false case. There is neither any reason for alleged illegal detention of the accused nor any reason for his alleged false implication in the case. The police would not have planted huge quantity of 1 kilogram 10 grams opium on the accused simply to implicate him in a false case and that too, without any rhyme or reason.

Delay in sending the sample parcel to chemical examiner by itself is not sufficient to acquit the accused because the prosecution has led complete chain of link evidence to depict that contents of the sample parcel were not tampered with. In this regard, we have statements of Contable Satwant Singh PW-3 and SHO Joginder Singh PW-5. There is also report of Chemical Examiner certifying that seals on the sample parcel were intact when received there and tallied with specimen seal impressions. Consequently mere delay in sending the sample parcel to Chemical Examiner cannot be said to be fatal to the prosecution case because there is sufficient evidence on record to depict that contents of the sample parcel were not tampered with. In this view, I am supported by judgment of Hon''ble Supreme Court in the case of Hardip Singh Vs. State of Punjab, . In that case, there was delay of about 40 days in sending the samples to Laboratory. Still conviction of the accused was upheld.

Non-handing over the seal to Babu Ram is also not sufficient to doubt the prosecution case. There is no requirement of law that seal should always be handed over to non-official witness. Moreover parcels of sample and remaining opium were sealed not only with the seal of investigating officer Tarsem Parkash, SI but also with the seal of DSP Chaman Lal and also later on with the seal of SHO Joginder Singh. It cannot be said that all these three police officials along with ASI Santokh Singh, to whom the seal had been handed over by Tarsem Parkash, connived against the accused to tamper with the contents of the sample parcel. On the other hand, these police officials had no enmity with the accused and had no ill will or malice against him so as to implicate him in false case. Moreover, if opium had been planted on the accused to implicate him in false case, there would have been no need to tamper with the contents of the sample parcel.

Non-examination of Babu Ram PW also cannot be said to be fatal to the prosecution case. He had to be given up as won over by the accused. Fate of the prosecution case cannot be left to the whims of the non-official witness who had been joined at the time of recovery. Even otherwise, statements of DSP Chaman Lal, ASI Santokh Singh and SI Tarsem Parkash are equally reliable as those of non-official witnesses, because these police officials had no motive to depose falsely against the accused. They had no enmity or malice against him. Consequently, their statements cannot be discarded merely because of their official uniform.

The contention that Babu Ram was stock witness of the police also does not help the accused-appellant because Babu Ram has not even been examined by the prosecution as its witness. Consequently, the aforesaid contention becomes infructuous.

For the reasons aforesaid, I find that the prosecution evidence is cogent and credible and sufficient to bring home the charge against the accused beyond reasonable doubt. Conviction of the accused is well founded. Accordingly, the impugned judgment of conviction is affirmed.

As regards quantum of sentence, the recovery of contraband opium was effected from the accused on 13.09.1993 i.e. eighteen years ago. However, out of this long delay, the accused himself is responsible for delay of seven years four months when he remained absconding from the process of law. Nevertheless, remaining period of eleven years lapsed during which the accused faced the agony of trial including the instant appeal. This is a mitigating circumstance in his favour. However, at the same time, the accused remained absconding for seven years four months which is an aggravating circumstance against him. Balancing the mitigating and aggravating circumstances, I am of the considered opinion that ends of justice would be met if the sentence of imprisonment awarded to the accused is reduced to rigorous imprisonment for three years and sentence of fine is reduced to Rs.25,000/-while maintaining the sentence of imprisonment for one year in default of payment of fine. It is ordered accordingly.

With reduction in sentence as aforesaid, the appeal stands disposed of accordingly. The accused-appellant who is on bail shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence.