Hardip Singh Vs.
State of Punjab [2008] INSC 1391 (20 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 737 OF 2007 Hardip
Singh .... Appellant versus State of Punjab .... Respondent
Dr. Mukundakam
Sharma, J.
1.
The
present appeal is directed against the judgment and order dated 18.10.2006
passed by the High Court of Punjab & Haryana at Chandigarh in Criminal
Appeal No. 505-SB of 2000, whereby the High Court dismissed the appeal filed by
Hardip Singh and upheld the conviction and the sentence passed against him
under the provisions of Section 18 of the Narcotic Drugs and Psychotropic
Substance Act, 1985 (hereinafter referred to as the `Act').
2.
Briefly,
the prosecution case is that on 20.8.1997 when Inspector Jarnail Singh
(examined as PW 5 in the trial), along with SI Sukhwinder Singh and other
police officials were standing on a drain bridge falling within the
jurisdiction of village Chamairi, a truck bearing registration No. DIG 4615
being driven by Sri Inder Masih was seen coming from Ajnala side, when the
truck was stopped. Hardip Singh, the present appellant, was seen sitting by the
side of the driver, in the said truck. Meanwhile one Major Singh, who was
examined as one of the witnesses in the trial also reached there on a bicycle
and upon reaching the place he alighted from the bicycle and joined the police
party. Immediately thereafter Inspector Jarnail Singh sent a wireless message
to SS Mann, Deputy Superintendent of Police (PW 4), requesting him to reach the
place of occurrence, who after receiving the message immediately reached at the
place of occurrence.
Thereafter consent
memos (Ex. PB & PC) were prepared to show compliance of Section 50 of the
Act, which were signed/thumb marked by the appellant and attested by the
witnesses including PW 4. On the instruction of PW 4, the DSP, Inspector
Jarnail Singh conducted search of the appellant Hardip Singh and upon such
search one bag in the right hand of Hardip Singh was found and on search of the
said bag, it was found to contain opium wrapped in a glazed paper. The
aforesaid opium, thereafter was weighed and on such weighing it was found that
there was total of 7 Kgs of opium out of which 250 gms of opium was taken as a
sample in one 2 of parcel and the remaining quantity of opium being 6.750 Kgs.
was put in another parcel. After preparing two separate parcels, the same were
sealed with the seals bearing inscriptions `SSM' and `JS' of SS Mann, DSP and
Inspector Jarnail Singh respectively. The sealed parcels were taken into
possession vide recovery memo, Ex. PD, attested by the witnesses.
Thereafter the search
of the driver, namely, Inder Masih was also conducted, in whose possession also
3 kgs. of opium was found, for which two parcels were made out, one of 250 gms.
and the other of 2.750 kgs. The said parcels were sealed and were taken into
possession vide recovery memo, Ex. PE, attested by the same witnesses. From the
personal search of Hardip Singh ten currency notes of the denomination of Rs. 10/-
were recovered. These were also taken into possession by making out a memo, Ex.
PH. Similarly, the truck bearing No. DIG 4615 was also taken into possession
vide memo, Ex. PJ. Ruqqa, Ex. PK, was sent on the basis of which First
Information Report (Ex. PK/1) was recorded. A rough site-plan was also prepared
at the spot. Thereafter, the present appellant along with Inder Masih and the
case property was produced before Inspector Baldev Singh, the then Station
House Officer (SHO), Police Station Ajnala, who verified the investigation and
kept the said articles in his possession. On 30.9.1997 he sent the two parcels
of sample for getting the same deposited in the office of the Chemical
Examiner, Amritsar through ASI Surinder 3 of Singh (PW-3). As per the report of
the Analyst, the contents of the sample parcels were found to be of opium. On
completion of the investigation a charge sheet was filed under the provisions
of Section 18 of the Act.
3.
The
learned Sub Divisional Magistrate, Ajnala committed the case for trial to the
learned Court of Sessions Judge. Under order dated 4.3.1998, the learned
Sessions Judge, Amritsar framed charges against both the accused under the
provisions of Section 18 of the Act to which they pleaded not guilty and
pleaded for trial.
4.
The
prosecution examined altogether four witnesses whereas appellant Hardip Singh
examined five defense witnesses. The report of the chemical examiner was
tendered in evidence. The appellant and the other accused were also examined
under Section 313 of the Code of Criminal Procedure, 1973.
5.
On
completion of the trial, the learned Addl. Sessions Judge heard the arguments
and thereafter passed the judgment and order convicting both the accused
persons including the present appellant under Section 18 of the Act and
sentenced them to undergo rigorous imprisonment for a period of ten years with
rupees one lakh as fine and in default of 4 of 13 payment of fine to undergo
rigorous imprisonment for a period of two years, which is the minimum sentence
provided under the Act.
6.
Being
aggrieved by the aforesaid judgment and order of conviction and sentence,
Hardip Singh, the present appellant and the other accused, Inder Masih filed an
appeal before the High Court of Punjab and Haryana, which was heard and
disposed by Judgment and Order dated 18.10.2006. The order of conviction and
sentence passed against the present appellant was maintained and confirmed
whereas the order of conviction against Inder Masih was set aside and he was
acquitted of the charges. Being aggrieved by the said judgment and order the
present appeal is filed by Hardip Singh on which we have heard the learned
counsel for the parties who have taken us through the entire evidence on
record.
7.
Mr.
Mahabir Singh, the learned senior counsel appearing for the appellant
strenuously submitted before us during the course of his arguments that the
High Court as also the trial court were not justified in rejecting the defense
case, as the case put up by defense was a probable case and in that view of the
matter benefit of doubt should have been given to the present appellant. It was
also submitted by him that one of 5 of 13 the accused persons having been
acquitted by the High Court on almost similar facts an order of acquittal
should also have been passed in favour of the present appellant, particularly,
when there was no sufficient evidence on record for justifying conviction of
the present appellant. His next submission was that the investigating officer
did not comply with the mandatory provisions of Section 55 of the Act after
effecting recovery from the accused. He also strenuously urged that the sample
having been sent to the analyst for chemical examination after a time gap of 40
days, the appellant should have been acquitted by holding that the entire case
of the prosecution is doubtful. The other submission of the counsel was that PW
5 being an interested person bearing grudge against the appellant and also
being the complainant should not have been made the investigating officer.
8.
We
may now proceed to examine the aforesaid submissions of the counsel appearing
for the appellant in the light of the evidence on record and also in the light
of the submissions of the counsel appearing for the respondent, who strenuously
urged that the defense case which was put up by the appellant was nothing but a
got up story, and therefore, both the courts below have rightly rejected the
same. 6 of 13
9.
The
defense story which was put up by the appellant was that he had been falsely
implicated by Inspector Jarnail Singh (PW 5) on account of a grudge that he
nourished against the appellant due to a vehicular accident which occurred on
26.7.1997, which was ultimately compromised by a written apology, Ex. DB. The
story was sought to be corroborated and strengthened by certain complaints sent
to higher ups, Ex. DC and Ex. DD on 18.8.1997 and also a telegram Ex. DF sent
on 19.8.1997 in that regard by Gurdial Singh, the father of the appellant.
The story was further
sought to be substantiated by stating that the mere fact that Jarnail Singh had
allegedly recovered the said opium and also the fact that he was the
investigating officer of the case prima-facie proves that the appellant has
been falsely implicated in the present criminal case on account of personal
grudge against the appellant.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
We
have carefully perused the record in view of the aforesaid allegations,
alleging that the investigating officer was nourishing a grudge against the
appellant over the vehicular accident which occurred on 26.7.1997. A perusal of
the document of apology, exhibited as Ex. DB., shows that it carries the
signatures of various persons including Gurdial Singh (DW 3) and Harjap Singh
(DW 5) but the signature of Jarnail Singh (PW 5), the investigating officer of
the case was not 7 of 13 appearing in the said document. PW 5 was also
examined and cross examined at length but not a single question was put to him
about the execution of the aforesaid document of apology. No suggestion was
given to him that the said document was executed in his presence and that he was
also a consenting party to the said document of apology.
Therefore, the
learned trial court as also the High Court were justified in raising doubt
about the genuineness of the said defense case. A document can always be
created falsely by obtaining signatures of few persons but the said document
when produced in evidence must be able to stand the test of genuineness. In our
considered opinion the said document is a doubtful document and the genuineness
of the same could not be proved by the appellant since he had failed to bring
it to the notice of PW 5, during his cross examination, the fact that the same
was executed in his presence and with his consent.
11.
So
far as the complaints, Ex. DC and Ex. DD, allegedly sent are concerned, the
same are produced by Gurdial Singh, the father of the appellant, only during
the course of his examination. Whether or not such complaints were in fact sent
and were received by the addressee should have been and were required to be
proved in order to establish that they were actually sent and received, as
alleged. All the aforesaid 8 of 13 document were also pressed before the trial
court as also the High Court and they have given cogent reasons for rejecting
the defense version as also for rejecting evidentiary value of the said
documents. Therefore, in our considered opinion the aforesaid defense version,
which is put up by the appellant is not trustworthy and stands rejected.
12.
So
far as the question of delay in sending the samples of opium to the Forensic
Science Laboratory (FSL) is concerned, the same in our opinion has no
consequence for the fact that the recovery of the said sample from the
possession of the appellant stands proved and established by cogent and
reliable evidence led in the trial. PW 5 has categorically stated and asserted
about the recovery of opium from the possession of the appellant, which fact is
also corroborated by a higher officer, namely, SS Mann, DSP who was also
examined at length during the trial. The said recovery was effected in the
presence of the said SS Mann, DSP, as senior police officer, who also put his
seal on the said parcels of opium.
The then Station
House Officer, Inspector Baldev Singh, who was examined as PW 1, was posted at
Police Station Ajnala on the date of occurrence. He received the said samples
of opium along with case material, being produced before him by PW 5. It has
come on evidence that Inspector Baldev Singh kept the entire case property with
him till it 9 of 13 was deposited in the office of the Chemical Examiner, Amritsar
on 30.9.1997 through ASI Surinder Singh, (PW-3). It has also come on evidence
that till the date the parcels of sample were received by the 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 in the sample
at any stage and the sample received by the analyst for chemical examination
contained the same opium which was recovered from the possession of the
appellant. In that view of the matter, delay of about 40 days in sending the
samples did not and could not have caused any prejudice to the appellant. The
aforesaid contention, therefore, also stands rejected.
13.
The
contention of Mr. Singh that Section 55 of the Act, which is a mandatory
provision, was violated is also found to be without merit in the light of the
decision of this Court in Karnail Singh v. State of Rajasthan [(2000) 7 SCC
632] relied by him in order to buttress his argument, wherein, a similar
contention was raised that after the seizure the goods were sent to the
Superintendent, Central Narcotics Bureau, Kota, who, as per law, was in charge
of a police station but had not affixed his seal on the articles and the
samples, and therefore the whole of the procedure followed became illegal, entitling
the appellant to be 10 of 13 acquitted. In the light of the aforesaid
submissions, the Supreme Court proceeded to hold that with the application of
Section 51 read with Sections 52 and 53, the officer required to affix the seal
etc., under Section 55, would be "the officer in charge of the nearest
police station"
as distinguishable
from an officer in charge of a police station empowered under Section 53. It
was also held that if the arrested person and the seized articles are forwarded
under Section 52(3)(b) to the officer empowered under Section 53, the
compliance with Section 55 cannot be insisted upon. The Supreme Court further
held in the said case that keeping in view the multifarious activities and the
duties cast upon the officer in charge of the police station under the Code of
Criminal Procedure and he being apparently busy with the duties under the Code,
the officers mentioned in Section 53 of the Act have been mandated to take
action for disposal of the seized narcotic drugs and psychotropic substances by
filing an application which, when filed, has to be allowed by the Magistrate as
soon as may be.
The appellant has
also failed to show any prejudice caused to him for not putting the seal in the
sample by the officer-in-charge of the police station. PW 5 has categorically
stated that on reaching the Police Station, Ajnala, he handed over the case
property with the seals intact to the officer- in-charge of the said police
station, who was examined in the trial as PW 1.
11 of 13 PW 1 in is
deposition has also stated that Inspector Jarnail Singh produced before him the
case property and sample on 20.8.1997 with seals intact. He has also stated
that so long the said articles remained in his custody and possession, the same
were not tampered with. In the light of aforesaid nature of evidence on record,
no prejudice is caused to the appellant on that count.
In the case of Ouseph
v. State of Kerala, [(2004) 10 SCC 647] it was held by this Court that under
the provisions of Section 55 of the Act, the requirement may not be mandatory.
However in that case in view of peculiar facts of the case and as the
contraband articles were kept in totally unsealed condition for near about two
months it was held that the same creates doubt.
14.
As
far as the submission that as Inspector Jarnail Singh was the complainant he
should not have been made the investigating officer is concerned we may make
reference to the decision of this Court in State v. V. Jayapaul, [(2004) 5 SCC
223], wherein it was held as under:
"We find no
principle or binding authority to hold that the moment the competent police
officer, on the basis of information received, makes out an FIR incorporating
his name as the informant, he forfeits his right to investigate. If at all,
such investigation could only be assailed on the ground of bias or real
likelihood of bias on the part of the investigating officer. The question of
bias would depend on the facts and circumstances of each case and it is not
proper 12 of 13 to lay down a broad and unqualified proposition, in the manner
in which it has been done by the High Court, that whenever a police officer
proceeds to investigate after registering the FIR on his own, the investigation
would necessarily be unfair or biased"
Concurring with the
Courts below we have already held that the version of the defense is nothing
more than a got up story of his own whims and caprices, thus in the facts and
circumstances of the present case the question of bias does not arise. Sri
Jarnail Singh made the recoveries of the opium and seized the same and
therefore, he was rightly made the Investigating Officer in the case. The
defense case which is found to be a got up story was sought to be made out only
during the trial by which time investigation was complete. This contention
therefore is also found to be without merit.
15.
In
view of the aforesaid observations and findings recorded by us, we find no
merit in the appeal, which is accordingly dismissed. The appellant, who is in
the custody, shall serve the remaining sentence, in accordance with law.
................................J.
(Dr. Arijit Pasayat)
.................................J.
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