Punjab-Haryana High Court
Makhan Singh vs State Of Punjab on 27 January, 2023
CRA-S-780-SB-2004 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
343
CRA-S-780-SB-2004 (O&M)
Decided on27.01.2023
Makhan Singh
. . . Appellants(s)
Versus
State of Punjab
. . . Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Mr. Gopal Sharma, Advocate
Amicus Curiae,
appointed by a separate order dated 27.01.2023.
Mr. Anmol Singh Sandhu, AAG, Punjab.
****
SANJAY VASHISTH, J. (Oral)
1. Present appeal has been filed by appellant-Makhan Singh,
against the judgment of conviction and order of sentence dated
27.03.2004 passed by the Judge, Special Court, Patiala, in session case
No. 104 T of 17.10.02/08.12.2003 arising from FIR No. 144 dated
08.06.2002, under Sections 15/61/85 of Narcotic Drugs and
Psychotropic Substances, Act, 1985 (in short 'NDPS Act'), registered at
Police Station Sadar, Patran.
2. Vide judgement of conviction and order of sentence dated
27.03.2004, appellant was convicted for a period of 01 year as rigorous
imprisonment alongwith fine of Rs. 1000/- and in default of payment of
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fine, to further undergo R. I. for 01 month.
3. Brief facts of the case are that on 08.06.2002, ASI Sukhdev
Singh alongwith his police party was present for police patrolling at bus
stop of village Shutrana. Meanwhile, witness Jaswant Rai met the police
party and he was joined by the police party. On reaching near the bus
stop of village Jogewal, accused came there on foot having a bag on his
shoulder. On seeing the police party, he tried to take a turn towards his
left hand and in that process , the bag fell on the ground and some poppy
husk came out of it. Thereafter, ASI Sukhdev Singh took search of the
bag which was found containing 10 kg of poppy husk, out of which two
samples of 250 grams each were separated. Samples were put in parcels.
Remaining poppy husk was also put in a parcel and these were sealed
with the seal of ASI Sukhdev Singh as 'SS' and specimen seal impression
Ex. P1 was also prepared. Case property was taken into possession vide
recovery memo Ex. PD. Ruqa Ex. PF was sent to the police station and
accordingly formal FIR (Ex. PF/1) was registered. After completion of
the other legal formalities, rough site plan Ex. PG of the place of
recovery was prepared. Case property was deposited with the MHC
Mewa Singh and on the same day, the case property was produced
before the lllaqa Magistrate by ASI Sukhdev Singh.
4. On completion of the investigation, challan/report under
Section 173 Cr.P.C. was presented before the concerned Court and after
completion of trial, appellant was held guilty for the offence punishable
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under Section 15 of the NDPS Act.
5. The prosecution, in order to prove its case, examined 05
witnesses, which are as under:-
PW-1 Mewa Singh Head Constable
PW-2 Bimal Kumar Sub-Inspector
PW-3 Sukhdev Singh ASI
PW-4 Harbans Singh Constable
PW-5 Satnam Singh Constable
6. In the statement under Section 313 Cr.P.C., appellant has
denied the allegations of the prosecution and pleaded that he has been
falsely implicated. He has further averred that no recovery was effected
from him.
7. Today, at the time of hearing, there was no representation on
behalf of the appellant, so Mr. Gopal Sharma, Advocate has been
appointed as Amicus Curiae by this Court and given reasonable time for
going through the record. This Court has also examined the record
available before it. Learned Amicus Curiae, while addressing his
arguments on behalf of the appellant, submits that police itself had joined
one independent witness Jaswant Rai, who was not examined for the
reasons best known to the prosecution. Thus, case of the prosecution falls
on this score alone.
8. Another argument addressed by counsel is that there are lot
of contradictions in the statements of of witnesses. Thus, evidence based
upon the deposition of the police witnesses cannot be considered as
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proving of recovery of contraband in the present case without any doubt.
The discrepancies pointed out are as under:
"i) PW-3, ASI Sukhdev Singh has stated that the
accused was seen for the first time on their left side
while Harbans Singh has stated that the accused was
on their right side when they saw him.
ii) PW-3 ASI Sukhdev Singh has stated that the
weighing scales were arranged through driver
Jagdish Singh from Village Jogewal, who went on
Allwyn Nissan, while C. Harbans Singh PW4 has
stated that Jagdish Singh went on foot to arrange
weighing scales.
iii) PW3 ASI Sukhdev Singh has stated that seal
used by him was made of gilt while PW4 C. Harbans
Singh has stated that the seal of ASI Sukhdev Singh
was of silver."
9. In this regard, it is observed that merely explaining the
direction, which side the accused turned and same being in discrepancies
cannot be said to be a serious defect in the evidences of the witnesses. It
is so observed, more for the reason that in the present case, the recovery
is from the bag which had fallen from the shoulder of the appellant and
on falling down of the bag, some quantity of poppy husk had come out of
it and was visible to the police party. Otherwise, there is no such material
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contradictions found in the statements of material witnesses i.e. PW-3
and PW-4.
10. It is also submitted that regarding the non-examination of
independent witness, Jaswant Rai, trial Court has given observation
which is reproduced as under:-
"14. Seal in this case after use was handed over to
Jaswant Rai independent witness, who has been given
up by the prosecution as having been won over by the
accused. Now the question arises as to whether the
testimony of prosecution witnesses are worthy of reliance
in the absence of independent witness. In the case of
Shera Singh Vs. State of Punjab reported as 1996 (2)
Recent Criminal Reports, 128, it has been observed by
the Hon'ble High Court of Punjab and Haryana that there
is no rule of law that the evidence of police officer cannot
be accepted unless it is corroborated by independent
witness. If the police officer otherwise is dependable. In
the case of Ram Singh Vs. State of Haryana reported
as 2000 (1) Recent Criminal Reports 541 the
independent witness was joined, but he did not support
the prosecution version and His lordships of Hon'ble
Punjab and Haryana High Court observed that the
conviction can be based on the statement of official
witness if it inspires confidence. In the case of Roop
Chand Vs. State of Punjab reported as 1999 (4)
Recent Criminal Reported, 127 the independent
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witness joined by the Police party was not examined and
his lordship of Hon'ble Punjab and Haryana High Court
observed as follows:-
"In my opinion, the case has to be viewed
from, the angle that whether a conviction can be
based on the statements of police officials or not
irrespective of the fact that Kulwant Singh has not
been examined. Assuming for the sake of argument
that Kulwant Singh has been examined and he does
not want to support the case of the prosecution at
the trial, still this court Is of the opinion that
conviction could be based on the testimony of the
police witnesses as held even in Balbir Singh Vs.
State of Punjab, 1994 (1) Recent C.R. 736.
Further it depends upon individual to individual
whether he would like to support the allegations of
the prosecution at the trial stage or not. We have to
see whether the investigation was honest or not.
When the Investigation Officer ASI Kishan Singh
has taken the assistance of Kulwant Singh in getting
his attestation, it can be safely said that there was a
genuine effort on the part of the investigating officer
to associate an independent witness. The appellant
has not taken trouble to examine Kulwant Singh in
his defence to explain under what circumstances he
has attested the recovery memo etc. There can be
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variety of reasons why a witness is not interested to
come forward to assist the law. He can be
threatened; he can be bribed; he might come under
the pressure of co-villagers etc; or he may not want
to purchase enmity with the accused. The non-
examination of a witness who has been joined in the
investigation per se is not fatal untill and unless
some strong circumstance emerges out from which
a reasonable doubt can be created"."
11 Learned State counsel produces custody certificate dated
12.12.2022 and same is taken on record. Registry is directed to tag the
same at appropriate place.
As per said custody certificate, appellant has already
undergone the sentence period of 01 month and 09 days, uptill
17.07.2002 and he is not found to be involved in any other case of similar
nature despite passing of more than 20 years.
12. I have heard and considered the submissions of both the
Counsel and perused the record with the able assistance of arguing
counsel.
13. I find that it is a case where the evidence of independent
witness will not be material, rather it appears that falling down of the bag
from the appellant's shoulder was seen by the police party and even the
poppy husk came out from the bag. Thereafter, according to the FSL
report, it was found that contraband in the bag was nothing but poppy
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husk. Thus, there is connectivity in the recovered contraband and the FSL
report. Hence, qua conviction part, findings of trial Court is maintained
and present appeal stands dismissed.
14. This Court has also gone through the judgment passed by the
trial Court and has found that there is no illegality or perversity, which
require any change in the findings, already recorded.
QUANTAM OF SENTENCE:
15. However, considering the aspect that for the last more than 20
years, appellant has not been found involved in any other case especially
of similar nature; and the recovered quantity is even much less than the
non-commercial quantity in the present case and appellant is already
facing the proceedings of prosecution since the time of registration of
FIR No. 144 dated 08.06.2002, I hereby modify the sentence part to the
sentence already undergone by the appellant that is 1 month and 9 days.
16. However, remaining part of sentence i.e. fine/compensation
etc would remain intact.
17. With the aforementioned modification in the order of
sentence, present appeal i.e. CRA-S-780-SB-2004 stands disposed of.
(SANJAY VASHISTH)
JUDGE
27.01.2023
Riya
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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