Harbans Lal, J.@mdashThis appeal is directed against the judgment/order of sentence dated 25.10.2002 passed by the Court of learned Special Judge, Amritsar, whereby he convicted and sentenced Nirmal Singh @ Nimma accused/appellant to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of the same, to further undergo rigorous imprisonment for two years u/s 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, ''the Act'')."
2. As set up by the prosecution, on 04.01.1999, a joint Naka (picket) consisting of Customs Preventive Staff, Punjab Police, Ajnala and CIA Staff, Majitha was set up at T-crossing near Saki Bridge, Ajnala. Around 9.30 A.M., a dark green Maruti Car bearing registration No. PB-02-P-5595 came from Bulerwal side and was signalled to stop by the members in the Naka party. When the car came to halt, two occupants made good their escape by taking advantage of the thick fog, though they were given a hot chase. The third one Nirmal Singh was apprehended. Prem Singh, superintendent disclosed his identity to the accused. He was told that he was suspected to be in possession of narcotics and he should tell whether he wanted to be searched before a Gazetted Officer or a Magistrate. He offered to be searched in the presence of a Gazetted Officer. Khazan Singh and Sarup Singh, public men were called. On search, two packets of brown powder lying on the thighs of the accused were recovered. The place being unsafe and unsecured due to thick fog, the accused along with the above mentioned packets as well as Maruti Car were brought to the Police Station, Ajnala. On testing, the contents of recovered powder with the aid of drug testing kit, the same was found to be heroin. When weighed, the contents of each bag came to 1 kg. Two representative samples of 5 grams each were lawn from each packet after homogenizing it. These samples and the residue were converted into parcels which were sealed with the seal No. 108 Customs Division, Amritsar. A Photostat copy of the registration certificate showing one Baljit Singh Bajwa son of Kabul Singh Bajwa of New Majitha Transport company, Amritsar, to be the registered owner of the above mentioned car as well as Insurance Policy of the Car were also recovered. The specimen seal impression of the aforementioned seal was prepared. All the parcels were seized vide recovery memo. The accused were informed about the grounds of arrest. Special Report u/s 57 of the Act was sent to the Senior Officials of the department. The accused in his, voluntary, statement dated 04.01.1999 tendered before Prem Singh (sic) without any threat, pressure, duress, coercion, promise or influence, admitted the factum as well as mode of recovery. The accused was informed that such statement can be read in any Court of law as evidence against him. The accused, along with the case property and 4 representative samples were produced before Mr. Arunvir Vashisht, Judicial Magistrate 1st Class, Amritsar on 05.01.1999. Both the packets of heronry sealed with the above mentioned seal were further put in one tin box, locked and wrapped in cloth and further sealed with the afore- referred seal and deposited with Jasbir Kaur, Incharge Malkhana Customs House, Amritsar. The afore-referred Car was deposited with Ram Kumar inspector, Headquarters, Customs House, Amritsar. On receipt of laboratory''s report, complaint u/s 21/22 of the Act was lodged in the Court. The accused was charged u/s 22 of the Act, to which he did not plead guilty and claimed trial.
3. The prosecution examined 4 witnesses and closed its evidence by giving up Sarup Singh and Khazan Singh as having been won over by, the accused and PW Harbans Singh Inspector being unnecessary.
4. When examined u/s 313 of the Code of Criminal, Procedure, the accused came up with the following plea:
I am innocent. I have been falsely implicated in this case. I was involved in a murder case against Shubegh Singh Ranjit Singh. I was bailed out in the case in August, 1998. The opposite party tried to involve me in a false case by firing bullets with their own arms but by the intervention of Panchayat I was saved. Then in the last week of December, I am falsely picked up in PS Ajnala on 29.12.1998 and this happened Ranjit Smgh who had now died and who was involved with us in above case and as his brother-in-law Sarwan Singh DSP in police and his brother Kartar Singh S.P. On account of said police officers who are closely related to Ranjit Singh opposite party has been implicated in this case falsely.
5. In defence, he examined Harbhajan Lal, SSO, Central Telegraph Office, Amritsar as DW1, Amrik Singh, Clerk to Shri D.S. Pheruman, Advocate as DW2, Shambu Nath, Superintendent as DW3 and closed his evidence by tendering, Exh. D10 certified copy of the judgment dated 25.09.2002 passed by the court of Shri B.K. Mehta, Special, Judge Amritsar.
6. After hearing the Learned Counsel for the parties and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction/sentence, he has preferred this appeal.
7. I have heard the Learned Counsel for the parties, besides perusing the record with due care and circumspection.
8. Mr. D.P.S. Kahlon, Advocate, appearing on behalf of the appellant, eloquently urged that independent witnesses namely, Khazan Singh and Sarup Singh have been kept off the witness box and as its consequence, the appellant has been deprived of his valuable right to cross-examine them. Furthermore, the seal after use was not entrusted to either of these witnesses and that being so, the possibility of tampering with the contents of the sample parcels, cannot be ruled out.
9. Mr. Anmol Rattan Sidhu, Senior Advocate appearing for the respondent, countered this argument by urging that the aforesaid witnesses have been given up on a specific pretext of their having been won over by the appellant and, as such, the prosecution could not be expected to examine either of them. He further pressed into service that it is not the requirement of law to hand over the seal after use to an independent witness. These contentions merit acceptance for the discussion to follow hereinafter.
10. It is only by way of abundant caution that the procedure of giving of seal after use to a public man is being adopted though there is no such law that the seal after use should be handed over to any independent witness. This procedure is being evolved to prove beyond doubt that after the sample was sealed at the time of seizure, it was not tampered with till it reached the office of Chemical Examiner. In re: Piara Singh v. State of Punjab, 1982 (2) CLR 447, the Full Bench of this Court held as under:
Held, that in the ultimate ratio criminal trials ordinarily turn and must continue to do so on the credibility and acceptability of the evidence on record. It is not possible to hold that a criminal trial would succeed or fail merely on the technicality of the delivery of an investigating seal to a third person or the latter''s refusal or inability to appear as a witness about the same. It is more so in the admitted position that there is no statutory requirement whatsoever to this effect. To conclude, it must be held that there is neither a statutory requirement nor a presidential mandate for handing over the seal used by the police officer in the course of an investigation to a third person forthwith. It necessarily follows therefrom that even where it has been so done, the non-production of such a witness cannot by itself affect the merits of the trial.
11. In view of the above observations, neither examination of either of the said witnesses nor handing over of the seal to either of them was required. The aforesaid witnesses have been given up on the specific pretext of their having been won over by the accused/appellant. The possibility cannot at all be ruled out that the witnesses of the prosecution can later on join hands with the accused and in that eventuality, the prosecution cannot be expected to produce the person as its witness who to its own knowledge is not going to support its case. The Apex Court
It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it, which is necessary for unfolding its case, but it would be unsound to lay down as a general rule that every witness must be examined, even though his evidence may not be very material or even if it is known that he has been won over or terrorised.
12. The same view was reiterated in case
13. Mr. Kahlon further canvassed at the bar that in view of the observations made by the Apex Court in re: Noor Aga v. State of Punjab & Anr., 2009 (1) ACJ 192 (S.C.) : 2009 (1) CCC 230 (S.C.) : 2008 (3) RCR(Cri) 633, the confessional statement allegedly made by the accused/appellant before the Customs Officer is hit by Section 25 of the Evidence Act and that being so, the learned trial Court was not justified in placing reliance upon it.
14. Mr. Sidhu canvassed at the bar that the Customs Officer being not a Police Officer, the confessional statement suffered before him by the accused is admissible being not hit by Section 25 ibid.
15. I have well considered the rival contentions.
16.
All the parts of a recorded statement of an accused are not entitled to equal credit. An inculpatory part of the statement could be accepted even though the exculpatory part of the statement of the accused was rejected. Where the inculpatory part of statement of the accused is distinct and severable from the exculpatory part, if the Court finds the exculpatory part to be inherently improbable, the other part of the statement and which the Court sees no reason to disbelieve, could be accepted.
17. In view of the above observations, the inculpatory part of Exh. PE suffered by the accused/appellant can be accepted.
18. In re: Raj Kumar Karwal v. Union of India, 1990 (1) RCR (Cri) 719, the Apex Court held that the Officers of the Department of Revenue Intelligence are not Police Officers as they have been given certain powers of Police but not all powers under Chapter XII and Section 173 of the Code of Criminal Procedure. If an officer is invested under any special law with powers analogous to those exercised by a Police Officer, he does not thereby become a Police Officer u/s 25 of the Evidence Act unless he has the power to lodge a report u/s 173 of the Code of Criminal Procedure.
19. As is being evidenced by Ex. PQ, the case property with seals into was produced before the Chief Judicial Magistrate, Amritsar on 08.03.2000 and the certificate u/s 110(i)(b) of the Customs Act, 1962 was issued. Jasbir Kaur PW2, Incharge Malkhana, Customs House, Amritsar has stated that on 05.01.1999, Jagtar Singh Inspector Customs deposited with her the case property with seals intact and the samples were handed over to D.D. Mishra on 06.01.1999 by Jagtar Singh that so long as the samples remained in her custody, these were not tampered with. D.D. Mishra, PW3 has deposed that on 06.01.1999, Jagtar Singh Inspector handed over to him 2 samples of 5 grams each with seals intact and that on In re: Raj Kumar Karwal v. Union of India, 1990 (1) RCR (Cri 719, he deposited the same in the office of the Central Revenue Control Laboratory, New Delhi, and on return, he gave receipt in the Customs Office. As per Exh. PO issued by Central Revenue Control Laboratory, seals on samples tallied with facsimile on test memo. Exh. PPl is the test memo. This documentary evidence completes the chain in the link evidence.
20. There is nothing on the record to show that Prem Singh, Superintendent, Customs PW4 before whom the appellant made confessional statement was invested under the NDPS Act with powers analogous to those exercised by a Police "Officer. As such, he does not become a Police Officer u/s 25 of the Evidence Act. Consequently, the said statement is not hit by Section 25 ibid and hence, it can be relied upon.
21. Later on, the accused/appellant retracted his confessional statement. In his statutory statement too, he has back tracked from his confessional statement, Exh. PE after more than 2-112 years. As per the order, Exh. PG, the accused/appellant was produced before the Duty Magistrate, Amritsar on 05.01.1999. In this order, it has been mentioned that the accused has been produced along with the case property. If he had not suffered the confessional statement, Exh. PE. he would have brought this fact to the notice of the Duty Magistrate. Assuming that this statement is hit by the provisions of Section 25 of the Act, despite that there is cogent, convincing and clear evidence in the nature of the statement of Jagtar Singh, Customs Inspector PW1 and Prem Singh, Superintendent, Customs, Amritsar PW4. A glance through their statements would reveal that they were subjected to grueling and searching cross-examination, but they could not be shattered or shaken in any manner. In other words, their credibility could not be impeached when their statements were tested with their cross-examination. So, their evidence can be made the basis for conviction without any demur.
22. No other material point has been urged or agitated by either counsel.
23. As a sequel of the above discussion, this appeal fails and is dismissed.
