Chhota Singh vs State Of Haryana
2022 Latest Caselaw 10861 P&H

CRA-S-1028-SB-2007(O&M)                                                  -:1:-


     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH

                                           CRA-S-1028-SB-2007(O&M)
                                           Date of decision:-9.9.2022
Chhota Singh
                                                                  ...Appellant
                     Versus
State of Haryana

                                                                 ...Respondent
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN

Present:    Mr.Ramesh Goyat, Advocate
            for the appellant.

            Mr.Vijesh Sharma, Addl.A.G., Haryana.

                            ****
H.S. MADAAN, J.

1. Appellant/accused Chhota Singh was tried by learned

Additional Sessions Judge, Fatehabad in a case FIR No.17 dated

12.2.2005 for an offence under Section 15 of Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'),

Police Station Sadar, Tohana and vide judgment dated 6.3.2007, he was

convicted for the offence for which he was booked and in terms of order

of that very date, he was sentenced to undergo rigorous imprisonment for

ten years and to pay a fine of Rs.1,00,000/- and in default thereof to

further undergo simple imprisonment for a period of one year.

2. Briefly stated, the facts of the case, as per the prosecution

version are that on 12.2.2005, SI Rajbir Singh, Incharge Special Staff,

Tohana (hereinafter referred to as the Investigating Officer/IO)

accompanied by other police officials was on routine patrolling and

checking of crime duty, going towards village Fatehpuri side and when

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the police party reached at bus stand of village Fatehpuri, one Ajaib

Singh, Ex-Sarpanch son of Gurbachan Singh, resident of village Fatehpuri

came; he was joined with the police party and in the meanwhile IO

received a secret information that Chhota Singh son of Ram Lal, resident

of Fatehpuri was indulging in selling of poppy husk in an abandoned

house in dilapidated condition located in the middle of the village and if a

raid was conducted, he could be apprehended; as such the IO prepared a

raiding party, joining Ajaib Singh, Ex-Sarpanch therewith and proceeded

towards the disclosed place; when the raiding party had reached near Baba

Khera Mandi, the accused was seen sitting on the bags having contents;

on seeing the police party, the accused stood up and started walking away

briskly; he was apprehended on the basis of suspicion and his name and

other particulars were inquired about, which he disclosed; there was four

bags in his possession.

3. The IO suspected that those bags contained some contraband,

therefore the IO served notice under Section 50 of the Act Ex.PE upon the

accused that since he (IO) suspected the bags in his possession to contain

some contraband, he wanted to search the same and if the accused so

desired, the search could be conducted in presence of a Magistrate or a

gazetted officer; the accused put his thumb impressions on that notice and

in response Ex.PF, the accused desired that search be got conducted in

presence of a gazetted officer, as such the IO requested Sh.Balbir Singh,

DSP through his mobile phone to come to the spot; after some time

Sh.Balbir Singh, DSP along with his staff arrived there; the IO apprised

him about the facts of the case; then on instructions of the said DSP, the

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IO searched gunny bags, which were found to contain poppy husk; the

accused could not produce any licence or permit for possession of the

contraband.; the IO took samples of 100 grams each from each of the four

gunny bags, converting those into parcels, whereas the remaining poppy

husk in the gunny bags came out to be 34.800 kgs.; the bags containing

residue poppy husk were also converted into parcels; the sample parcels

as well as the bulk parcels were sealed by the IO with his seal bearing

impressions 'RB'; DSP Balbir Singh also put his seal having inscription

'BS' on all the parcels; samples seal impressions were taken on a chit;

DSP Balbir Singh kept his seal with himself, whereas the IO after use

handed over his seal to ASI Ram Bhaj; then the entire case property was

taken into police possession vide a recovery memo.

4. The Investigating Officer sent ruqa Ex.PI to the police

station, on the basis of formal FIR Ex.PJ was recorded. Accused was

accordingly arrested in this case as per rules, preparing requisite

documents. The Investigating Officer prepared rough site plan of the place

of recovery as Ex.PK and recorded statements of witnesses.

5. On return to the police station, the Investigating Officer

produced the accused along with the case property and witnesses before

ASI Rampal Singh, SHO of the Police Station Sadar, Tohana, who

verified the facts and sealed the case property with his seal having

inscription 'RPS'. Thereafter, on his instructions the IO deposited the case

property with MHC and lodged the accused in lock up. He put his

endorsement Ex.PB on report by IO Ex.PA.

During the course of investigation, the sample parcels were

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sent to the office of FSL, Haryana Madhuban and as per report Ex.PL

received therefrom, those were found to be of poppy straw (Choora Post)

of Papaver somniferum L.

After completion of investigation and other formalities,

challan against the accused was prepared and filed in the Court of SDJM,

Tohana.

6. On presentation of challan in the Court of learned SDJM,

Tohana, he supplied copies of documents relied upon in the challan to the

accused free of costs as provided under Section 207 Cr.P.C.

7. Then finding that the offence under Section 15 of the Act is

exclusively triable by Court of Sessions, learned SDJM, Tohana

committed the case to the Court of learned Additional Sessions Judge (I),

Fatehabad.

8. On receipt of the case in the Court, learned Additional

Sessions Judge, Fatehabad, observing that prima facie charge for an

offence under Section 15 of the Act was disclosed against the accused

charge-sheeted him accordingly, to which, he pleaded not guilty and

claimed trial.

9 During the course of its evidence, the prosecution examined

the following witnesses:

PW1 Constable Parkash Chand deposed that on 14.2.2005

while he was working as Reader to DSP, Tohana, on that day, he had

received report Ex.PA having endorsement Ex.PB and he had put up the

said report before DSP, Tohana, who after going through the same put his

signatures thereon at Point A.

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PW2 HC Mahender Singh, a formal witness tendered in

evidence his affidavit Ex.PC to the effect that on 12.2.2005, he was

posted as MHC at Police Station Sadar, Tohana and was Incharge of the

Malkhana; on that day, SI Rajbir Singh, Incharge, Special Staff, Tohana

deposited the case property duly sealed with him and he had handed over

the sample parcels to Constable Mahender Singh for depositing those in

FSL, Madhuban, Haryana vide RC No.24 dated 15.2.2005; Constable

Mahender Singh accordingly did so and handed over receipt to him and

so long as the case property remained in his possession, no tampering

therewith had taken place.

PW3 Constable Mahender Singh, the carrier of the sample

parcels numbering four to FSL, Madhuban, Haryana vide his affidavit

Ex.PD testified that on receipt of four sample parcels duly received by

him from MHC Mahender Singh, he had deposited those in the office of

FSL, Madhuban, Haryana and on return had handed over receipt to MHC

Mahender Singh and so long as the case property remained in his custody,

no tampering therewith had taken place.

PW4 SI Veer Singh stated that on 5.4.2005 while he was

posted as SHO, P.S. Sadar, Tohana, on completion of investigation, he

had prepared challan in this case, which was then filed in the Court.

PW5 ASI Ram Bhaj, who was member of the police party,

which had apprehended the accused and effected recovery of contraband

from him, deposed in that regard.

PW6 DSP Balbir Singh, on whose instructions the IO had

searched the four bags found in possession of the accused, which were

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containing poppy husk, deposed in that regard.

PW7 ASI Rampal, who while posted at Police Station Sadar,

Tohana had registered formal FIR on receipt of ruqa sent by SI Rajbir

Singh and before whom SI Rajbir Singh had produced the case property

along with the witnesses and accused since he was officiating SHO of the

police station deposed regarding his part as narrated above in the earlier

part of the judgment in detail.

PW8 SI Rajbir Singh, who was heading the police party,

which had apprehended the accused and effected recovery from him

under supervision of DSP Balbir Singh, deposed in that respect.

The Public Prosecutor had tendered in evidence report of

FSL, Haryana, Madhuban as Ex.PL and closed the prosecution evidence.

10. Statement of the accused was recorded under Section 313

Cr.P.C., in which all the incriminating circumstances in the prosecution

evidence appearing against the accused were put to him but he denied the

allegations contending that he was innocent and no recovery was effected

from him and he had been falsely involved in this case.

11. During the defence evidence, the accused examined Ajaib

Singh, who had been allegedly joined as independent witnesses by the

police party and in whose presence the recovery was statedly effected, as

DW1. However, he stated that he is Sarpanch of village Fatehpuri and on

12.2.2005, his status was that of Ex-Sarpanch of the village. He stated

that on 12.2.2005, he never joined the raiding party of police headed by

SI Rajbir Singh and further no recovery was effected from accused

Chhota Singh in his presence; the police had obtained his signatures on

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some papers in the Police Station Sadar, Tohana since he usually visited

the police station regarding disputes of the village. He stated that Chhota

Singh had never indulged in selling poppy straw.

12. After hearing arguments, learned trial Court convicted and

sentenced the accused as mentioned above, which left him aggrieved and

he had filed the present appeal, which was taken up on 19.7.2007, when it

was admitted for regular hearing and recovery of fine was stayed during

the pendency of the appeal. On an application under Section 389 Cr.P.C.

having been filed by the appellant/accused for suspension of his sentence

of imprisonment during the pendency of appeal, the same was allowed

vide order dated 16.7.2009 and remaining sentence of the appellant was

suspended during the pendency of the appeal and he was admitted to bail

on furnishing bonds, to the satisfaction of learned CJM/Duty Magistrate,

Fatehabad.

13. Now the appeal has come up for final hearing.

14. I have heard learned counsel for the appellant - accused -

convict, learned Addl. Advocate General for the State of Haryana besides

going through the record.

15. Here the witnesses of recovery namely PW5 ASI Ram Bhaj,

PW6 DSP Balbir Singh and PW8 SI Rajbir Singh have fully supported

the prosecution story with regard to accused having been found in

conscious possession of contraband. They were cross-examined at length

on behalf of the accused but they stuck to their guns and could not be

shattered on any material point. No previous enmity between them and

the accused - convict has been alleged or proved prompted by which they

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might have involved the accused in this case wrongly and deposed against

him falsely to secure his conviction. The account given by these PWs

come out to be worthy of reliance.

16. From the statements of PW2 HC Mahender Singh, PW3

Constable Mahender Singh, it stands duly proved that the case property

remained in safe custody and the sample parcels had reached FSL,

Haryana, Madhuban, in an intact condition. Report from FSL Ex.PL also

goes to show that when the sample parcels had reached there then the

seals were intact and tallied with the specimen seal as per forwarding

authority letter and on analysis, the samples were found to be that of

poppy straw (Choora Post).

17. Learned counsel for the appellant has however attacked the

impugned judgment on various grounds. The first submission made by

him in that regard is with regard to discrepancies in the statements of

official witnesses, namely, PW5 ASI Ram Bhaj, PW6 DSP Balbir Singh

and PW8 SI Rajbir Singh with regard to time when the police party had

observed the accused; the time when DSP had arrived at the spot; the time

spent by the police party at the spot and the time of return of police party

along with the accused and case property to police station etc. and further

regarding the distance of the place of recovery from the police station and

the exact location of the place of recovery etc. According to the learned

counsel for the appellant, such discrepancies make the prosecution story

doubtful.

18. However, I am not convinced by this submission. It has to be

kept in mind that the recovery had taken place on 12.2.2005, whereas

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statements of the witnesses of recovery were recorded after a considerable

time thereof i.e. of ASI Ram Bhaj on 13.12.2005, after a period of 10

months, DSP Balbir Singh and SI Rajbir Singh on 22.2.2006, after a

period more than one year. A few minor contradictions in their statements

do not go to the root of matter since those are bound to occur due to

difference in power of perception, observation and retention of events of

various persons and so also due to lapse of memory on account of passage

of time.

19. The next contention put forward by learned counsel for the

appellant was that independent witness said to have been joined with the

police party, namely, Ajaib Singh, Ex-Sarpanch was not examined by the

prosecution, rather he appeared as a witness in defence and denied having

joined the police party or any recovery having been effected from the

accused in his presence, which creates a serious dent in the prosecution

story causing a reasonable doubt in the mind about its truthfulness.

Therefore, benefit of doubt should be given to the accused and he

deserves to be acquitted of the charge framed against him.

20. Again I am not impressed by this contention. It has to be kept

in mind that many a times human beings do get influenced by various

factors like close proximity with a person, accused of an offence,

considerations like caste, creed religion and factors like the person,

accused belonging to the same village or town, which make them hesitant

to speak the truth and rather presenting a wrong version to help the

accused. Merely because the independent witness had chosen not to

support the prosecution story, the prosecution story does not get adversely

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affected for that reasons since as already observed, the official witnesses

did not have any motive to involve the accused in this case wrongly or

depose against him to secure his conviction. There is nothing on record to

show that such official witnesses of recovery examined by the

prosecution had any previous score to settle with the accused. Therefore,

their statements are to be taken at par with those of independent

witnesses. An independent witness showing hostile tendency towards the

prosecution, his deposition cannot be taken to be gospel truth so as to

discard the voluminous incriminating evidence adduced by the

prosecution both oral as well as documentary, which is found to be

cogent, convincing and reliable. A Single Bench of this Court in judgment

Krishan Kumar Versus State of Punjab, 2016(2) RCR(Criminal)707 had

observed that testimonies of the official witnesses carry the same

evidentiary value as that of any other witness and their statements cannot

be discarded simply on account of their official designation.

21. A Division Bench of this Court in case Sucha Singh Versus

State of Punjab 2015(4) RCR (Criminal)25 when an independent witness

had been joined during the search and recovery of contraband. He had

appeared as a witness for the defence stating that his signatures were

procured on blank papers when he had visited the police station in

drunken condition, had observed that such contention was not acceptable

holding that it cannot be believed that numerous signatures on various

papers having different written material could be signed by a witness on

blank papers. The testimony of that witness was held to be unreliable and

was discarded. In that very judgment, credibility of official/police

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witnesses was considered and it was observed that when there is no

allegation of any enmity against the police officials to falsely implicate

the appellants and there was no reason for them to depose against the

appellants, the trial Court had rightly concluded that non-examination of

independent witness of search and recovery being won over by the

accused does not raise any doubt in the prosecution case.

22. Learned counsel for the appellant has further stated that

presence of DSP at the spot is doubtful, keeping in view the reply given

by him in his cross-examination that place of recovery is of 4-5 kms. from

Fatehabad, whereas the distance is much more.

23. However, I do not find myself in agreement with this

contention. The presence at the spot of DSP Balbir Singh stands

adequately established from the record. All the parcels bear his seal and

the remaining witness of recovery also deposed about DSP Balbir Singh

having arrived at the spot and IO having searched the bags under his

instructions.

24. The prosecution has proved its charge against the accused

conclusively and affirmatively. The accused could not render any

reasonable or plausible explanation for his alleged false implication nor

could he account for possession of the contraband without any licence or

permit thereby showing that he was in conscious possession of the

contraband.

25. As regards the sentence part, the accused was sentenced to

undergo rigorous imprisonment for ten years, which is the minimum

prescribed sentence for possession of commercial quantity of the

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contraband. Even otherwise, the appellant/accused for a pecuniary benefit

opted to play with lives and health of people of the area by making them

addict to taking drugs. The drug peddlers have successfully destroyed the

social fabric of our society and led youth to the wrongful path. Such type

of persons need to be dealt with firmly and sternly and no sympathy can

be shown to them lest that should prove to be counter productive and

result in increased drug trafficking. Therefore, the sentence awarded to the

appellant/accused is not found to be on very high side and does not call

for any reduction.

26. The impugned judgment of conviction and order of sentence

passed by the trial Court are well reasoned one, based upon proper

appraisal and appreciation of evidence and correct interpretation of law.

There is no illegality or infirmity therein. The said judgment of conviction

and order of sentence are upheld whereas the appeal is found to be

without any merit and the same is dismissed accordingly.

27. Appellant Chhota Singh is stated to be on bail granted to him

by this Court. His bail is cancelled. Chief Judicial Magistrate, Fatehabad

is directed to issue arrest warrants to get him arrested so as to make him

undergo the remaining sentence.

9.9.2022                                (H.S.MADAAN)
Brij                                       JUDGE


                     Whether reasoned/speaking :               No / Yes

                     Whether reportable              :         No / Yes




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