Punjab-Haryana High Court
Tarsem Singh vs State Of Haryana on 6 January, 2023
CRA-S-334-SB-2009 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-334-SB-2009
Reserved on:30.11.2022
Date of Pronouncement:06.01.2023
Tarsem Singh ...Appellant
vs.
State of Haryana ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present : Mr. P.S. Sekhon, Advocate
for the appellant.
Mr. Rajinder Kumar, Deputy Advocate General, Haryana,
***
N.S.Shekhawat J.
Challenging the correctness and legality of the impugned judgment
of conviction and order of sentence dated 07.02.2009, passed by learned
Additional Sessions Judge, Fatehabad, whereby, the present appellant was
convicted under Section 18 (C) of the Narcotic Drugs and Psychotropic
Substance Act, 1985 (hereinafter referred to as Act) and sentenced to undergo
rigorous imprisonment for a period of six months and to pay a fine of Rs.2,000/-
and in default thereof, to further undergo rigorous imprisonment for a period of
one month, the appellant has preferred the instant appeal before this Court.
The story of the prosecution, as it emerges from the report under
Section 173 Cr. P.C., is that on 23.12.2006, ASI Fauja Singh along with other
police officials was present in connection with patrolling and crime prevention,
a person namely Harish Kumar son of Nanak Chand, caste Mahajan, resident of
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Ward No.13, Tibba Colony, Ratia met him by chance and started talking to him.
In the meantime, a person having a cloth bag on his shoulder was seen coming
from the front side and on seeing the police party, all of sudden, turned back and
started walking towards a vacant plot on the right side. On suspicion, he was
caught and he disclosed his name and address as Tarsem Singh @ Semi son of
Chand Singh, caste Saini, resident of Ward No.1, Ratia. The police party raised
the suspicion that he was carrying some contraband in the bag, hanging on his
shoulder. A notice under Section 50 of the NDPS Act was served upon him and
he was given the option that he could get his search conducted in the presence
of any Gazetted Officer or a Magistrate and they could be summoned at the spot
as it was his legal right. However, the accused reposed confidence in the
Investigating Officer. After that, the search was conducted and a polythene
envelope was recovered from the bag of the accused. From the plastic envelope,
one another plastic envelope was recovered and on checking the same, 180
grams of opium was recovered. Two sample parcels of 10 grams each were
separated and were converted into parcels and the seals were affixed on the
same. The remainder of the quantity was also sealed separately by affixing the
seals on the same. The seal after its use was handed over by ASI, Fauja Singh to
HC Kashmir Singh and FIR Ex.P2 was registered against the accused. ASI
Fauja Singh produced the accused alongwith case property and witnesses before
SHO Kulwant Singh and the SHO satisfied himself with regard to the facts of
the case and again affixed his own seal bearing impression "KS" on the parcels
and the same property was deposited with the MHC of the police station. The
complainant ASI Fauja Singh produced the accused alongwith the case property
in the Court of Learned Area Magistrate and moved an application Ex.P-13 and
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the order Ex.P-14 was passed on the application Ex.P-13. After necessary
investigation, the challan under Section 173 Cr.P.C. was filed in the Court
against the accused.
Finding a prima facie case, the accused was charge-sheeted under
Section 18 of the Act, to which the accused pleaded not guilty and claimed trial.
In support of the prosecution case, seven witnesses were examined.
Rajender Singh, ASI, PW-1 recorded the formal FIR Ex.P2 and also made his
endorsement Ex.P-3 on the rukka Ex.P1. HC Kashmir Singh, PW2 was part of
the police team, which apprehended the accused at the spot. He was a witness to
the entire search and seizure procedure and submitted the facts with regard to
the notice Ex.P-4, which was served upon the accused under Section 50 of the
Act. He also submitted the facts with regard to the initial investigation
conducted at the spot. ASI Niranjan Singh was further examined as PW3, who
stated that the report Ex.P-8 under Section 55/57 of the Act was received by
Additional S.P., City Fatehabad and there was sufficient compliance of the said
provisions. The testimony of PW-4 Constable Jasbir Singh was formal in nature.
The prosecution examined PW-5 HC Madan Lal, who was posted as MHC on
23.12.2006. The IO deposited the case property with him with proper seals and
he handed over the sample parcel to Constable Jasbir Singh on 28.12.2006. The
prosecution examined Inspector Kulwant Singh as PW6, who was posted as
SHO in Police Station Ratia on 23.12.2006. ASI Fauja Singh produced before
him the case property, the sample parcels, the witnesses and the accused along
with the report under Section 55 of the Act Ex.P-8. He verified the facts of the
case and affixed the seal "KS" on the sample parcels and after completion of the
investigation, he prepared the challan under Section 173 Cr.P.C. The
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prosecution further examined PW7 ASI Fauja Singh, who was the star witness
of the prosecution and submitted the facts, as verified in the FIR and fully
supported the case of the prosecution. With the examination of seven witnesses,
the prosecution closed its evidence.
The entire incriminating evidence was put to the appellant/accused
in his statement under Section 313 Cr.P.C. and he pleaded his false implication.
He also opted to lead defence evidence. In his defence, Harish Kumar was
examined as DW1, who stated that police never recovered any opium from
Tarsem, accused in his presence and the police had obtained his signatures on
the blank papers in the month of December 2006. He never met the police party
and accused was not involved in selling the opium etc. After examination of
DW1, the defence evidence was closed and the case was disposed of by the
learned Trial Court.
I have heard the learned counsel for the parties and with their
assistance, I have gone through the trial Court record carefully.
Learned counsel for the appellant has vehemently argued that
Harish Kumar was the only independent witness, however, the prosecution
failed to examine him as a witness. Harish Kumar appeared as DW1 and
submitted that no recovery was effected from the accused/appellant in his
presence. He never met any police party at Ratia Chowk and he was not aware
as to whether he had been cited as a witness by the police in the present case.
Consequently, the appellant was entitled to benefit of doubt and was liable to be
acquitted. The said submission was opposed by learned State Counsel by
submitting that the said witness had been won over by the accused and he
appeared as a defence witness and supported the case of the accused.
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Consequently, the non-examination of Harish Kumar, would have no effect on
the merits of the case.
I find no substance in the argument raised by learned counsel for
the appellant. The non-compliance of the provisions of Section 100 and 165 of
Code of Criminal Procedure would amount to an irregularity and the effects of
the same on the main case depends on the facts and circumstances of each case.
Even the Court has to examine as to whether any prejudice has been caused to
the accused in such a situation. In the instant case, Harish Kumar, who was
initially joined by the police party was won over by the accused and he
appeared as a defence witness. Consequently, the case of the prosecution would
not be affected in any manner as there was sufficient incriminating evidence
against the present appellant/accused. The prosecution had examined seven
official witnesses to prove the charge and they had no reason to falsely
implicate the present appellant in a criminal case. Moreover, even the present
appellant had not assigned any reasons for falsely implicating him in a case
under the Act. Moreover, it is well-settled that the testimony of a witness is not
to be doubted or discarded only on the ground that he happened to be an
official. Consequently, the submission raised by learned counsel for the
appellant is liable to be rejected.
Learned counsel for the appellant vehemently argued that a sample
of 10 gram was collected during the seizure and a minimum quantity of 25
grams of the contraband was required for the analysis. Moreover, the sample
parcel of 10 gram was recovered, whereas the sample weighed 16.09 grams in
the FSL and this casts a cloud of suspicion on the prosecution story. Again I find
no substance in the said argument as the sample weighed 16.09 grams in the
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FSL, Madhuban with container. Moreover, the tests were conducted by applying
the analytical techniques by FSL, Madhuban and the sample was found to be
sufficient for the analysis. It has nowhere been stated that the sample was found
to be insufficient, rather the sample was identified as opium containing 1.5%
morphine. Still further, it was submitted by learned counsel for the appellant
that there was delay of 5 days in sending the sample to the FSL, which is fatal
to the case of prosecution. Moreover, the seal was also retained by the police
and the sample was also with the police, so chances of tampering with the
sample could not be ruled out. Apart from that, even the mandatory provisions
of the NDPS Act were not complied with by the prosecution and the appellant
was entitled to acquittal in such circumstances. The submissions raised by
learned counsel for the appellant have been refuted by learned State counsel.
I have considered the rival submissions made by learned counsel
for the parties and find no substance in the arguments raised by learned counsel
for the appellant. The prosecution has led sufficient evidence to show that so
long as the samples remained in the custody of police officials, there was no
tampering with the prosecution evidence. PW5 HC Madan Lal, who was posted
as MHC in the Police Station clearly stated that the samples were sealed with
three seals of "FS" and one seal of "KS" and he handed over the sample to
Constable Jasbir Singh on 28.12.2006 for depositing the same with the FSL.
Even the FSL report clearly shows that the samples were properly sealed and
the seals were intact and tallied with the specimen seal. Thus, it is apparent that
no prejudice has been caused to the appellant by delay of five days in sending
the samples to the FSL. Even the appellant has failed to point out any specific
non-compliance of the mandatory provisions of NDPS Act.
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From the above discussion, it is apparent that the prosecution had
proved the case beyond the shadow of reasonable doubt and had complied with
all mandatory provisions of the NDPS Act and the impugned judgment of
conviction passed by the learned Trial Court does not suffer from any infirmity
and is liable to be upheld by this Court.
However, this Court can not lose sight of the fact that the FIR in
the instant case was registered on 23.12.2006 and the present appellant has
faced the agony of trial for the last more than 16 years. Even the recovery of
contraband from the present appellant is non-commercial in nature. During the
course of hearing, the learned State Counsel has produced the custody
certificate and as per the same, the appellant/accused has undergone actual
sentence of 17 days. Even the custody certificate shows that the present
appellant was not involved in any other case, after he was released on
19.02.2009 on bail. In such circumstances, the ends of justice would be suitably
met, if the sentence of imprisonment is reduced to the period already undergone
by him.
Resultantly, the conviction of the appellant, as recorded by the
learned trial Court is maintained. However, his substantive sentence of
imprisonment is reduced to the one already undergone by him. The sentence of
fine will remain the same and the appellant is directed to deposit the same
within a period of three months from today, if not already deposited; failing
which he shall undergo further rigorous imprisonment for a period of one
month, as observed by the learned Trial Court.
The present appeal is accordingly disposed of.
All pending applications, if any, are also disposed off, accordingly.
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Case property, if any, be dealt with, and destroyed after the expiry
of period of limitation for filing the appeal, in accordance with law. The trial
court record be sent back.
(N.S.SHEKHAWAT)
06.01.2023 JUDGE
Hitesh
Whether speaking/reasoned : Yes
Whether reportable : Yes
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