Crl.Appeal No.405-SB of 1999
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Appeal No.405-SB of 1999
Date of Decision :September 19, 2008
1- Dabo alias Chuchi wife of Sohan Lal, resident of village
Langora, District Nawanshahr.
2- Mohinder Pal alias Kala son of Kabal Ram, resident of
village Mugho Patti, District Hoshiarpur.
3- Mahavir Singh son of Sarwan Singh, resident of village
Sunawan, District Nawanshahr.
.
... Appellants.
Versus
The State of Punjab
.... Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Ms. Sangeeta Dube, Advocate
( Amicus curiae )
for the appellants.
Mr. S.S. Bhullar, DAG, Punjab
for the respondent-State.
SHAM SUNDER, J.
This appeal is directed against the judgment of
conviction and the order of sentence dated 20.04.1999,
rendered by the Court of Special Judge, Hoshiarpur, vide
which it convicted the accused/appellants, for the offence
punishable under Section 15 of the Narcotic Drugs &
Psychotropic Substances Act, 1985 (hereinafter called as ‘the
Act’ only) and sentenced them to undergo rigorous
Crl.Appeal No.405-SB of 1999
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imprisonment, for a period of ten years each , and to pay a fine
of Rs.1 lac each, and in default of payment of the same, to
undergo further rigorous imprisonment for a period of two
years each, for having been found in possession of 8 bags, each
containing 40 Kgs poppy husk, falling within the purview of
commercial quantity, without any permit or licence.
2. The facts, in brief, are that on 30.07.1996, during
the night time, the police party headed by SHO Ajay Singh,
alongwith other police officials, held a picket, in village
Sarhala Kalan, near a liquor vend. One vehicle TATA-407
bearing registration No. PB-08H-7863 was found coming from
the side of Gondpur. Ajay Singh, ASI, stopped the vehicle and
found Debo and Mohinder Pal, sitting by the side of the driver
whereas Mahavir Singh was driving the vehicle. He enquired
of the occupants of the vehicle, as to what had been kept by
them therein. They disclosed that some bags, containing poppy
husk were lying therein. Thereafter, the search of the vehicle
was conducted, in accordance with the provisions of law, as a
result whereof, eight bags were found lying therein. Each bag
was found containing 40 Kgs poppy husk. The bags were
sealed and taken into possession vide a separate recovery
memo. Thereafter, a message was sent to Miss. Gurpreet Deo,
Assistant Superintendent of Police to reach the spot. She
reached the spot. All the bags, aforesaid, along with the
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accused were produced before her. She took out a sample of
250 grams from each of the bags. The samples and the bags,
containing remaining poppy husk, were converted into separate
parcels, duly sealed, and taken into possession, vide a recovery
memo. Ruqa was sent to the Police Station, on the basis of
which, the FIR was registered. The accused were arrested.
The site plan was prepared. The statements of the witnesses
were recorded. After the completion of investigation, the
challan was presented.
3. On their appearance, in the Court, the
accused were supplied the copies of documents, relied upon by
the prosecution. Charge under Section 15 of the Act, was
framed against the accused, to which they pleaded not guilty,
and claimed trial.
4. The prosecution, in support of its case, examined
Ms. Gurpreet Deo,ASP, (PW-1), Ashwani Kumar, MHC,
(PW-2), Balbir Singh, ASI, ( PW-3 ), Ajay Singh, SI/SHO,
(PW-4), Balbir Chand, C, ( PW-5 ), Ram Chand, ASI, ( PW-6 )
and Nirmal Kapoor, Clerk, RTA Office, ( PW-7 ). Thereafter,
the Public Prosecutor for the State, closed the evidence.
5. The statements of the accused, under Section 313
Cr.P.C., were recorded, and they were put all the incriminating
circumstances, appearing against them, in the prosecution
evidence. They pleaded false implication. It was stated by Debo
Crl.Appeal No.405-SB of 1999
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alias Chuchi, accused, that on 15.07.1996, she was taking care
of Naju Ram, her husband’s nephew, who had been admitted in
Gandhi Hospital, Phagwara. It was further stated by her, that
she was brought from that hospital, to Police Station Mahilpur.
She further stated that she alongwith Mohinder Pal and
Mahavir Singh were detained, in the Police Station. It was
further stated by her that Paramjit Singh alias Madda, who was
a known smuggler, of village Harta, Police Station Sadar,
Hoshiarpur, had occupied one room, in village Sarhala Kalan.
He brought one truck of poppy husk, and this information
leaked. The said smuggler is in the good books of Police. To
save his skin, the police implicated her along with Chanan
Ram, Gurmej Kaur alias Gejo and Tejo in cases under Section
15 of the Act.
5-A Mahavir Singh, and Mohinder Pal, accused, stated
that they were falsely implicated, at the instance of Paramjit
Singh alias Madda, who is a known smuggler.
5-B In their defence, the accused examined Nanju,
DW-1, Dr. Satnam Singh Parmar, DW-2, Dass Ram, DW-3 and
Harbhajan Singh, DW4, and closed the same.
6. After hearing the Addl. Public Prosecutor for the
State, the Counsel for the accused, and, on going through the
evidence, on record, the trial Court, convicted and sentenced
the accused, as stated hereinbefore.
Crl.Appeal No.405-SB of 1999
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7. Feeling aggrieved, against the judgment of
conviction and the order of sentence, rendered by the trial
Court, the instant appeal, was filed by the aforesaid appellants.
8. I have heard the Counsel for the parties, and
have gone through the evidence and record of the case,
carefully.
9. The Counsel for the appellants, at the very
outset, vehemently, contended that the provisions of Section
50 of the Act were not complied with, as a result whereof, trial,
conviction and sentence stood vitiated. The submission of the
Counsel for the appellants, in this regard, does not appear to be
correct. There is no requirement of law, that the search and
seizure proceedings, when the recovery of contraband, is
effected from a vehicle, should be conducted, in the presence of
a Gazetted Officer or a Magistrate. Had the recovery of
contraband been effected from the person of the accused, then,
in terms of the provisions of Section 50 of the Act, notice was
required to be served upon the accused, whether they wanted
their search to be conducted in the presence of a Gazetted
Officer or a Magistrate. In the instant case,the recovery of
contraband was effected from Tata-407, bearing registration
No. PB-08H-7863. The provisions of Section 50 of the Act,
did not apply to this case, and, as such , the Investigating
Officer was not bound to conduct the proceedings, in the
Crl.Appeal No.405-SB of 1999
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presence of a Gazetted Officer, or a Magistrate. In this view of
the matter, the submission of the Counsel for the appellants,
being without merit, must fail, and the same stands rejected.
10. It was next submitted by the Counsel for the
appellants, that the search of Debu alias Chuchi, accused was
not conducted by a lady police Constable, and, as such, there
was violation of the mandatory provisions of Section 50(4) of
the Act, and, thus, the trial, conviction and sentence stood
vitiated. The submission of the Counsel for the appellants, in
this regard, does not appear to be incorrect. In the instant case,
the contraband was recovered from the vehicle, and not from
the body of Debo alias Chuchi, accused. As such, the question
of her search by a lady police Constable, did not at all arise.
Had the contraband been recovered from the person of Debo
alias Chuchi, accused, non-compliance of the provisions of
Section 50(4) of the Act, would have certainly, resulted into
vitiation of conviction and sentence. When the provisions of
Section 50(4) of the Act, were not applicable to the facts of the
instant case, the question of compliance therewith, by the
Investigating Officer, at the time of search and seizure, did not
at all arise. In this view of the matter, the submission of the
Counsel for the appellants, being without merit, must fail, and
the same stands rejected.
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11. It was next submitted by the Counsel for the
appellants, that the defence evidence, produced by the
accused, was wrongly discarded by the trial Court. She further
submitted that Debo alias Chuchi, accused, was present in the
hospital for taking care of Naju Ram, her husband’s nephew, on
the relevant day and she was arrested therefrom. She further
submitted that under these circumstances, how Debo alias
Chuchi, accused, could be present, in the vehicle, where from
eight bags containing poppy husk were allegedly
recovered. The submission of the Counsel for the appellant, in
this regard, does not appear to be correct. Dr. Satnam Singh
Parmar of Gandhi Hospital, appeared in the witness box as
DW2. He, in examination-in-chief, stated that Nanju son of
Karma resident of Langroya, was admitted in hospital on
15.07.1996, and was brought by Debo and Krishna. He was
discharged on 07.08.1996. It was a case of acute pancreatits
with pseudo cyst formation. He gave certificate Ex.DA. He
further stated in examination-in-chief that Debo, accused, who
was present in the Court, had got admitted Nanju, patient. He
further stated that one of the relatives of Debo, told him that
she was taken by the police from the hospital. However,
during the course of cross-examination, it was made clear by
him that Smt. Leelo was one of the attendants of Nanju . He
further stated that there was over writing in certificate Ex.DA .
Crl.Appeal No.405-SB of 1999
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He further stated that the cutting/over writing was done by him.
He further stated that the certificate Ex.DA was issued by him
when Nanju was under treatment. He further stated that the
police never visited his hospital, in his presence. He further
stated that he was only told by the relative of Debo that she
was taken away by the police from the hospital. He further
stated that on 30.07.1996 the police did not visit the hospital,
in his presence. When Dr. Satnam Singh Parmar, DW-2, was
not present on 30.07.1996, in his hospital, when Debo, was
allegedly taken away by the police therefrom, then his evidence
could be said to be hearsay. No reliance, therefore, could be
placed on the evidence of Dr. Satnam Singh Parmar, that Debo
was taken away from the hospital, by the police on 30.07.1996.
Even certificate Ex.DA issued by him, bore the over-writing.
The authenticity of this document, was, therefore, doubtful.
Nanju, DW1, stated that the police took away Debo on
29.07.1996 forcibly from the hospital, where he was admitted.
He stated, during the course of cross-examination that there
were 3-4 patients in the hospital, when the police arrived. He
further stated, during the course of cross-examination that he
did not know the names of other two patients. He also stated
that he did not move any written complaint, against the SHO,
being an illiterate person. If such an act had been done by the
police, then he would have certainly moved a complaint,
Crl.Appeal No.405-SB of 1999
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against the Police that she ( Debo ) had been falsely implicated.
The evidence of Nanju, DW1, and Dr. Satnam Singh Parmar,
therefore, did not go to prove that accused Debo, was taken
away, from the hospital, on the night of 29.07.1996 or
30.07.1996. The defence version, being an after thought, was
rightly rejected by the trial Court. This Court, after re-appraisal
of the evidence, produced by the accused, also comes to the
same conclusion. There is no reason, to interfere with the
findings of the trial Court that the defence evidence was
unbelievable. In this view of the matter, the submission of the
Counsel for the appellants, being without merit, must fail, and
the same stands rejected.
12. No other point was urged, by the Counsel
for the parties.
13. In view of the above discussion, it is held
that the judgment of conviction and the order of sentence,
rendered by the trial Court, are based, on the correct
appreciation of evidence, and law, on the point. The same do
not warrant any interference. The same are liable to be upheld.
14. For the reasons recorded, hereinbefore, the
appeal is dismissed. The judgment of conviction and the order
of sentence, dated 20.04.1999, are upheld. If the appellants are
on bail, their bail bonds, shall stand cancelled. The Chief
Judicial Magistrate, shall take necessary steps, in accordance
Crl.Appeal No.405-SB of 1999
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with the provisions of law, to comply with the judgment, within
two months, from the date of receipt of a certified copy of the
same, keeping in view the applicability of the provisions of
Section 428 of the Code of Criminal Procedure.
19.09.2008 (SHAM SUNDER) dinesh JUDGE