Crl. Appeal No.291-SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.291-SB of 2000
Date of Decision : 3.11.2008
1. Buta Singh S/o Gurbachan Singh, ....Appellants
resident of Dera Nissing, P.S. Nissing.
2. Gulzar Singh S/o Balkar Singh,
resident of Dera Gondar, P.S. Nissing.
Versus
The State of Haryana ....Respondent
CORAM:HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. K.S.Dhaliwal, Advocate,
for the appellants.
Mr. A.K.Jindal, AAG, Haryana,
for the respondent.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction dated
14.2.2000, and the order of sentence dated 15.2.2000, rendered by the
Judge, Special Court, Karnal, vide which he 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 imprisonment
for a period of ten years each, and to pay a fine of Rs.1 lac each, and in
Crl. Appeal No.291-SB of 2000 2
default of payment of the same, to undergo rigorous imprisonment for
another period of 2 ½ years each, for having been found in possession of
42 bags, each containing 40 Kgs. Poppy-husk, (falling within the ambit of
commercial quantity), without any permit or licence.
2. Satnam Singh and Lakha Singh, accused, were, however,
acquitted by the trial Court, vide the aforesaid judgment.
3. The facts, in brief, are that, on 2.7.1997, Devinder Kumar,
Inspector/SHO, CIA Staff, Karnal, alongwith other police officials, and
M.L.Mangla, AETO, was present, in government gypsy, bearing No.HR-
05-1895, being driven by Siri Krishan, Constable, and one private jeep, at
Prem Khera Chowk, in the area of village Brass, in connection with
excise checking. In the meanwhile, a secret information was received, to
the effect, that the accused were bringing poppy-husk, in a tractor, make
Ford. On receipt of the information, the police party held a picket. After
about 30 minutes, a tractor, bearing No.PUR-8006, make Ford, alongwith
trolley, came from the side of Shambli, which was being driven by Buta
Singh, accused, while Gulzar Singh, accused, was sitting, on the right
hand side of mudguard. The other two accused, namely Satnam Singh
and Lakha Singh, were sitting on the gunny bags, which were loaded in
trolley. Devinder Kumar, Inspector, signalled the tractor trolley to stop.
However, in the meanwhile, Satnam Singh and Lakha Singh, accused,
who were sitting, in the trolley, managed to escape, while Buta Singh and
Gulzar Singh, accused, were apprehended. Search of the tractor trolley,
was conducted, in accordance with the provisions of law, in the presence
of M.L.Mangla, AETO, a Gazetted Officer, as a result whereof, 42 gunny
bags, each containing 40 Kgs. Poppy-husk, were recovered, therefrom.
Crl. Appeal No.291-SB of 2000 3
Out of each gunny bag, 200 grams poppy-husk, as a sample, was taken
out, and the remaining poppy-husk was put into the same gunny bags.
The samples, and the bags, containing the remaining poppy-husk, were
converted into parcels, duly sealed, and taken into possession, vide a
separate recovery memo. Ruqa was sent to the Police Station, on the
basis whereof, formal FIR was registered. The statements of the
witnesses, were recorded. The accused (Buta Singh and Gulzar Singh),
were arrested. Later on, Satnam Singh, accused surrendered before
Devinder Kumar, Inspector, in the month of September 1997, and Lakha
Singh, accused, surrendered before Rattan Singh, HC, on 6.4.1998. They
were also arrested. After the completion of investigation, the accused
were challaned.
4. On their appearance, in the Court, the copies of documents,
relied upon by the prosecution, were supplied to the accused. Charge
under Section 15 of the Act, was framed against them, to which they
pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined Raj Kumar,
ASI, (PW-1), Sanjay Kumar, Constable (PW-2), Vijay Singh, HC (PW-3),
Richhpal Singh, Constable (PW-4), M.L.Mangla, AETO (PW-5),
Bhagwan Chand, ASI (PW-6), Devinder Kumar, Inspector (PW-7), the
Investigating Officer, Rattan Singh, HC (PW-8), and Mahabir Singh,
Inspector (PW-9). Thereafter, the Public Prosecutor for the State, closed
the prosecution evidence.
6. 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
Crl. Appeal No.291-SB of 2000 4
implication. They, however, did not lead any evidence, in their defence.
7. After hearing the Public Prosecutor for the State, the Counsel
for the accused, and, on going through the evidence, on record, the trial
Court, convicted and sentenced Buta Singh and Gulzar Singh, accused,
and acquitted Satnam Singh and Lakha Singh, accused, as stated
hereinbefore.
8. Feeling aggrieved, against the judgment of conviction, and the
order of sentence, rendered by the trial Court, the instant appeal, was filed
by Buta Singh and Gulzar Singh, appellants.
9. I have heard the learned Counsel for the parties, and have gone
through the evidence and record, of the case, carefully.
10. The Counsel for the appellants, at the very outset, submitted
that though the secret information was received, in this case, yet the same
was neither reduced into writing, nor sent to the superior Officers, as a
result whereof, there was complete violation of the mandatory provisions
of Section 42 of the Act, leading to the vitiation of conviction, and
sentence. The submission of the Counsel for the appellants, in this
regard, does not appear to be correct. The recovery, in this case, was
effected from a tractor trolley, at a public place, and not from an enclosed
place. Under these circumstances, the provisions of Section 42 of the
Act, were not at all applicable to the instant case. On the other hand, the
provisions of Section 43 of the Act, were applicable, to the instant case.
With a view to properly deal with this plea, taken up, by the Counsel for
the appellants, it would be appropriate to notice the provisions of
Sections 42 and 43 of the Act, which read as under :-
“42. Power of entry, search, seizure and arrest without
Crl. Appeal No.291-SB of 2000 5warrant or authorization – (1) Any such officer (being an
officer superior in rank to a peon, sepoy or constable) of
the departments of central excise, narcotics, customs,
revenue, intelligence or any other department of the
Central Government or of the Border Security Force as is
empowered in this behalf by general or special order by the
Central Government or any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the
revenue, drugs control, excise, Police or any other
department of a State Government, if he has reasons to
believe from personal knowledge or information given by
any person and taken down in writing, that any narcotic
drug, or psychotropic substance, in respect of which an
offence punishable under Chapter IV has been committed
or any document or other article which may furnish
evidence of the commission of such offence is kept or
concealed in any building, conveyance or enclosed place,
may, between sunrise and sunset,
(a) enter into an search any such
building, conveyance or place;
(b) in case of resistance, break open any
door and remove any which any obstacle to
such entry;
(c) seize such drug or substance and all
materials used in the manufacture thereof and
any other article and any animal or
Crl. Appeal No.291-SB of 2000 6conveyance which has reason to believe to be
liable to confiscation under this Act and any
document or other article which he has reason
to believe may furnish evidence of the
commission of offence under Chapter IV
relating to such drug or substance : and
(d) detain and search, and, if he thinks
proper, arrest any person whom he has reason
to believe to have committed any offence
punishable under Chapter IV relating to such
drug or substance:
Provided that if such officer has reason to believe
that a search warrant or authorization cannot be obtained
without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may
enter and search such building, conveyance or enclosed
place at any time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an offence takes down any information in
writing under sub-Section (1) or records grounds for his
belief under the proviso thereto he shall forthwith send a
copy thereof to his immediate official superior.”
“43. Power of seizure and arrest in public place. —
Any officer of any of the department mentioned in Section
42 may —
(a) seize, in any public place or in
Crl. Appeal No.291-SB of 2000 7transit, any narcotic drug or psychotropic
substance in respect of which he has reason to
believe an offence punishable under Chapter
IV has been committed, and, along with such
drug or substance, any animal or conveyance
article liable to confiscation under this Act and
any document or other article which he has
reason to believe may furnish evidence of the
commission of an offence punishable under
Chapter IV relating to such drug or substance;
(b) detain and search any person whom
he has reason to believe to have committed an
offence punishable under Chapter IV, and if
such person has any narcotic drug or
psychotropic substance in his possession and
such possession appears to him to be useful,
arrest him and any other person in his
company.
10-A. A conjoint reading of Sections 42 and 43 of the Act, shows that
these sections are independent of each other. Section 43 authorises any
Officer of the departments, mentioned in Section 42, to seize in any
public place, or in transit, any narcotic drug or psychotropic substance, or
controlled substance, in respect of which, he has reason to believe that an
offence punishable under Chapter IV has been committed, whereas,
Section 42 of the Act, empowers the Officer, to search any building, or
conveyance, in any building, and seize the contraband, lying therein.
Crl. Appeal No.291-SB of 2000 8
When the information is with regard to concealment of some narcotic, in
a vehicle, in transit, then the provisions of Section 43 of the Act are
applicable. The word ‘public place’ has been explained for the purpose of
Section 43 of the Act, which includes any public conveyance, hotel, shop
or other places intended for use or accessible to the public.
10-B. A Division Bench of this Court in Dharminder Kumar Vs.
State of Punjab, 2002(4) RCR (Crl.)278 has held as under :-
“Thus it is evident that if seizure is made from any animal,
conveyance or article in a public place or in transit then
Section43 of the Act would be applicable. Section 43 and
Section 42 of the Act operate in different spheres. Since the
conveyance has been specifically included in Section 43 of
the Act also, therefore, the conveyance which is found in a
public place or in transit would be covered under the
provisions of Section 43 of the Act whereas conveyance used
in Section 42 of the Act has to be read as conveyance which
is other than a public place. This interpretation is the only
harmonious interpretation of Sections 42 and 43 of the Act.”
It is well settled principle of law, that the provisions of a
Statute, are to be construed, in harmonious manner, so that none of the
same is rendered nugatory. By harmonious construing the provisions of
Sections 42 and 43 of the Act, it can be safely concluded, that if a
conveyance is intercepted or apprehended at a public place, or in transit,
then the provisions of Section 42 of the Act, would not be applicable.
10-C. It was held in State of Haryana Vs. Jarnail Singh and others
2004(2) RCR (Crl.) 960 (SC) as under :-
Crl. Appeal No.291-SB of 2000 9
“7. Section 43 of the NDPS Act provides that any officer of
any of the departments mentioned in Section 42 may seize in
any public place or in transit any narcotic drug or
psychotropic substance etc. in respect of which he has
reason to believe that an offence punishable under the Act
has been committed. He is also authorized to detain and
search any person whom he has reason to believe to have
committed an offence punishable under the Act.
Explanation to Section 43 lays down that for the purposes of
this section, the expression “public place” includes any
public conveyance, hotel, shop, or other place intended for
use by, or accessible to the public.
8. Sections 42 and 43, therefore, contemplate two difference
situations. Section 42 contemplates entry into and search of
any building, conveyance or enclosed place, while Section
43 contemplates a seizure made in any public place or in
transit. If seizure is made under Section 42 between sunset
and sunrise, the requirement of the proviso thereto has to be
complied with. There is no such proviso in Section 43 of the
Act and, therefore, it is obvious that if a public conveyance
is searched in a public place, the officer making the search
is not required to record his satisfaction as contemplated by
the proviso to Section 42 of the NDPS Act for searching the
vehicle between sunset and the sunrise.”
10-D. In the instant case, Devinder Kumar, Inspector, alongwith other
police officials, and M.L.Mangla, AETO, was present in Prem Khera
Crl. Appeal No.291-SB of 2000 10
Chowk, in the area of Brass, in connection with excise checking, when he
received an information from a special informer, that the accused were
bringing popy-husk, in a tractor make Ford. On receipt of this
information, the police party, including M.L.Mangla, AETO, a Gazetted
Officer, held a picket. It was, at that time, that the appellants were found
coming in the tractor trolley , make Ford, in which 42 gunny bags,
containing poppy-husk, were lying. The recovery was effected from a
vehicle, in transit, at a public place. Thus, the provisions of Section 43
were applicable, and not the provisions of Section 42. In this view of the
matter, the trial Court, was right in holding that the question of
compliance of the provisions of Section 42, did not at all arise, as the
same were inapplicable. The trial Court was, thus, right in recording
conviction, and awarding sentence, to the accused.
11. It was next submitted by the Counsel for the appellants, that the
evidence of the Investigating Officer, in this case, was not in consonance
with the contents of ruqa. He further submitted that, in the ruqa, no
mention was made, that notice, in terms of the Section 50 of the Act, was
served, upon the accused, as to whether, they wanted the search of the
tractor-trolley, to be conducted in the presence of a Gazetted Officer, or a
Magistrate. He further submitted that, since the provisions of Section 50
of the Act, were applicable, at the time, when the recovery was effected,
in this case, the Investigating Officer, fabricated, Exs.PB and PC, the
consent memos, of the accused, later on. He further submitted that, if
such like documents, could be fabricated by the Investigating Officer,
then it could be said that the entire case of the prosecution was false. The
submission of the Counsel for the appellants, in this regard, does not
Crl. Appeal No.291-SB of 2000 11
appear to be correct. No doubt, in the ruqa, this fact was not mentioned.
It may be, on account of slip of pen, that such a factum, could not be
recorded, in the ruqa. However, when the Investigating Officer, appeared
in the Court, as his own witness, he in clear-cut terms, stated that an offer
was given to the accused, as to whether, they wanted the search of the
tractor trolley, to be conducted in the presence of a Gazetted Officer or a
Magistrate and consent memos Ex.PB and PC were prepared. Bhagwan
Chand, ASI and M.L. Mangla, AETO, the recovery witnesses also made
statements, in the same manner. In the face such cogent and reliable
evidence, that an offer was given to the accused, in terms of Section 50 of
the Act, and the memos Ex.PB and PC were prepared in this regard, the
mere fact that it was not mentioned in the ruqa, does not make the case of
the prosecution doubtful. Even, it may be stated here, that ruqa, does not
constitute the substantive evidence. The substantive evidence is the one,
which was given by the prosecution witnesses, in the Court. Such like
discrepancy was rightly ignored by the trial Court. Even otherwise, it
may be stated here that the provisions of Section 50 of the Act, were not
applicable, to the instant case, as the recovery was not effected from the
person of the accused, but from the tractor trolley, of which they were the
occupants. Had the recovery been effected from the personal search of
the accused, the provisions of Section 50 of the Act, would have been
attracted to this case. In State of Punjab Vs. Baldev Singh, 1999(6)
S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond
doubt, that the language of Section 50, was implicitly clear, that the
search had to be, in relation to a person, and not in relation to the
premises, vehicles, or articles. Similar view was taken in Smt. Krishna
Crl. Appeal No.291-SB of 2000 12
Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In
these circumstances, it can be said that the consistent, and particularly the
view of the larger Bench of the Supreme Court, appears to be that the
search, must relate to the person, and not vehicles, other luggage and
articles, and then alone the provisions of Section 50 would be attracted.
Since, in view of the principle of law, laid down, in the aforesaid
authorities, the provisions of Section 50 were not applicable, to the
search, in the instant case, the trial Court was right in recording
conviction and awarding sentence, to the accused. The submission of the
Counsel for the appellants, in this regard, being devoid of merit, is
rejected.
12. It was next submitted by the Counsel for the appellants, that
there was violation of the provisions of Section 55 of the Act, in as much
as the case property, the accused, the witnesses, and the sample parcels,
were not produced before the SHO, of the Police Station. It may be
stated here, that Devinder Kumar, Inspector, was himself the SHO of the
CIA Staff, at the relevant time. Since, he himself was the Inspector/SHO
of the CIA Staff, at the relevant time, it was not incumbent upon him, to
produce the case property, the sample parcel, the sample seals, and the
accused, before the SHO, of the Police Station, wherein the FIR was
registered. In these circumstances, there was complete compliance of the
provisions of Section 55 of the Act. Not only this, even the DSP was
present with the Police party, at the time of recovery. Even if, it is
assumed that there was non compliance with the provisions of Section 55
of the Act, the same being directory in nature, it was for the accused to
prove that a prejudice was caused to him, on account of violation thereof.
Crl. Appeal No.291-SB of 2000 13
No evidence was produced, showing that any prejudice was caused to the
accused, on account of the alleged violation of Section 55 of the Act.
The submission of the Counsel for the appellants, being without merit, is
rejected.
13. The Counsel for the appellants, however, placed reliance on
Raj Bahadur Vs. The State of Punjab 2008(4) RCR (Criminal) 34 and
Dharambir Vs. The State of Haryana 2008(4) RCR (Criminal) 40, to
contend that the violation of the provisions of Section 55 of the Act, must
prove fatal to the case of the prosecution. The perusal of the facts of the
aforesaid cases, relied upon by the Counsel for the appellants, clearly
goes to show that there were a number of infirmities, and lacunae, in the
case of the prosecution. Taking into consideration, those infirmities and
lacunae, as also the factum that the provisions of Section 55 of the Act,
had not been complied with, that the appellant was acquitted, for having
been found in possession of non-commercial quantity of poppy-husk,
and non-commercial quantity of opium, respectively. Those cases were,
thus, decided on the peculiar facts and circumstances, prevailing therein.
Under these circumstances, no help can be drawn, by the Counsel for the
appellants, from the ratio of law, laid down, in the cases, relied upon by
him, and referred to above. The facts of the aforesaid authorities, being
distinguishable, for the reasons recorded above, the same do not advance
the case of the appellants. The submission of the Counsel for the
appellants, being without merit, must fail, and the same stands rejected.
14. It was next submitted by the Counsel for the appellants, that the
provisions of Section 57 of the Act, were not complied with. The
submission of the Counsel for the appellants, in this regard, also does not
Crl. Appeal No.291-SB of 2000 14
appear to be correct. The Investigating Officer was required to send the
information, with regard to the search and seizure to the Officer superior,
within 48 hours from the time of recovery. In the instant case, from the
spot itself, the ruqa was prepared, containing the complete details of the
search and seizure, and sent to the Police Station, on the basis whereof,
the FIR was registered. Thereafter, the copies of the FIR, by way of
special reports, were sent to the Illaqa Magistrate, as also the superior
Officers. In this view of the matter, there being complete compliance of
the provisions of Section 57 of the Act, the submission of the Counsel for
the appellant, being without merit, must fail and the same stands rejected.
15. It was next submitted by the Counsel for the appellants, that
there was a delay of 7 days, in sending the samples, which remained
unexplained, as a result whereof, it could not be said that the samples
were not tampered with, until the same reached the office of the Forensic
Science Laboratory. The submission of the Counsel for the appellants, in
this regard, does not appear to be correct. The mere fact that delay, in
sending the samples, to the office of the Forensic Science Laboratory,
was not explained, in itself, was not sufficient, to come to the conclusion,
that the sample parcels were tampered with, at any stage. In such
circumstances, the Court is required to fall back upon the other evidence,
produced by the prosecution, to complete the link evidence. The other
evidence produced by the prosecution, has been subjected to indepth
scrutiny, and, as stated above, it has been found to be cogent, convincing,
reliable, and trustworthy. From the other evidence, produced by the
prosecution, it was proved that none tampered with the sample parcels,
until the same reached the Laboratory. Above all, there is report of the
Crl. Appeal No.291-SB of 2000 15
Forensic Science Laboratory, Ex.PF, which clearly proves that the seals
on the samples, were found intact, and tallied with the specimen seals, as
per forwarding authority. The report of the Forensic Science Laboratory,
is per-se admissible into evidence, in its entirety, as per the provisions of
Section 293 Cr.P.C. The delay in sending the samples, to the office of the
Forensic Science Laboratory, therefore, did not prove fatal to the case of
the prosecution. Had no other evidence, been produced, by the
prosecution, to prove that the sample parcels, remained untampered with,
until the same reached the office of the Forensic Science Laboratory, the
matter would have been different. In State of Orissa Vs. Kanduri Sahoo
2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in
sending the sample to the Laboratory is not fatal, where there is evidence
that the seized articles remained in safe custody. In Narinder Singh @
Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a
case, relating to the recovery of 4 Kgs. of opium, the samples were sent to
the office of the Chemical Examiner, after 23 days. All the samples were
intact. In these circumstances, it was held that, in the face of the other
cogent, convincing, reliable, and trustworthy evidence, produced by the
prosecution, to prove the completion of link evidence, it could not be
held that the possibility of tampering with the samples, could not be ruled
out. The principle of law, laid down, in the aforesaid authorities, is fully
applicable to the facts of the instant case. Therefore, in the instant case,
unexplained delay of 7 days, in sending the samples to the office of the
Forensic Science Laboratory, did not at all matter much. In this view of
the matter, the submission of the Counsel for the appellants, being
without merit, must fail, and the same stands rejected.
Crl. Appeal No.291-SB of 2000 16
16. It was next submitted by the Counsel for the appellants, that no
effort was made by the Investigating Officer, to find out the owner of the
tractor trolley, and the source/origin of the poppy-husk. It is, no doubt,
true that the Investigating Officer, did not try to ascertain the ownership
of the tractor trolley, as also the origin of the poppy-husk. The mere fact
that the Investigating Officer, committed some irregularity, or illegality,
did not mean that the criminal liability of the accused, was diluted, in any
manner. Once the accused were found in conscious possession of poppy-
husk, they committed the offence, punishable under Section 15 of the
Act. If the illegalities or irregularities committed by the Investigating
Officer, during the course of investigation, are taken into consideration,
then every dishonest or negligent Investigating Officer, shall leave a
lacuna, in the investigation, so as to create an escape route for the
accused. At the most, had the owner of the tractor trolley been
ascertained, and if, it had been found that he permitted the use thereof,
knowingly for transporting the contraband, he could be challaned, under
Section 25 of the Act. However, non-ascertainment of this fact, did not,
in any way, absolve the appellants of their liability, for the offence,
punishable under Section 15 of the Act. In this view of the matter, the
submission of the Counsel for the appellant, being without merit, must
fail, and the same stands rejected.
17. It was next submitted by the Counsel for the appellants, that
Vijay Singh, MHC (PW-3), stated that only 42 bags of poppy-husk, and
42 sample parcels, were deposited with him. He further submitted that he
did not state that the tarpauline, and the tractor-trolley, were also
deposited with him. He further submitted that this clearly cast a cloud of
Crl. Appeal No.291-SB of 2000 17
doubt, on the prosecution story. The mere fact that the tarpauline, and
the tractor-trolley, were not deposited, with the MHC, in itself was not
sufficient, to come to the conclusion, that no recovery, of these articles,
was effected from the accused. The contraband, in this case, was poppy-
husk, which was recovered from the accused. Devinder Kumar, Inspector
(PW-7), the Investigating Officer, in clear cut terms stated that the
contraband was being transported in the tractor trolley. He also proved
memo, Ex.PD, vide which the case property, and the sample parcels, the
tarpauline, and the tractor-trolley, were taken into possession. Devinder
Kumar, Inspector (PW-7), the Investigating Officer, in clear-cut terms
stated that the tractor-trolley, were also taken into posession. He also
stated that when they reached the Police Station, the case property, as
also the tractor-trolley, were deposited with the MHC. If the MHC,
inadvertantly did not state, with regard to the deposit of the tarpauline,
and the tractor-trolley, with him, that does not cast any doubt, on the
prosecution case. In these circumstances, the submission of the Counsel
for the appellants, being without merit, must fail, and the same stands
rejected.
18. It was next submitted by the Counsel for the appellants, that the
tarpauline and the tractor-trolley, were not produced, at the time of the
evidence of the prosecution witnesses. At the time of the evidence of
Bhagwan Chand, ASI (PW-6), a witness to the recovery, the case
property i.e. Bags, containing poppy-husk Exs. P1 to P40, and the
residuary of samples Exs.P41 to P80, were produced. The tarpauline and
the tractor-trolley were not produced, at the time of his evidence. He also
did not state, as to why these were not produced. At the time of the
Crl. Appeal No.291-SB of 2000 18
evidence of Devinder Kumar, Inspector (PW-7), the Investigating
Officer, bags containing the remaining poppy-husk Exs.P1 to P42, and
the residuary of samples Exs.P43 to P84, were produced. The tractor
trolley and the tarpauline were not produced, at the time of his evidence.
It could be, at the most, said to be the gross-negligence, on the part of the
Public Prosecutor for the State, who was conducting the case, at the
relevant time. It was for the Public Prosecutor for the State, to ascertain,
as to why, the tarpauline and the tractor-trolley were not produced, at the
time of the evidence of these witnesses. In case, the tractor trolley had
been given on sapurdari, which fact is not available, on the record, nor
the Counsel for the appellants, when asked, as to whether the same was
released on sapurdari, could tell anything about the same, then the
spurdar was required to produce the same in the Court. For the
negligence of the Public Prosecutor for the State, conducting the case, at
the relevant time, no dent is caused, in the prosecution story. The
contraband, which was recovered from the accused was produced. If the
vehicle, in which the same was being carried, and the tarpauline, with
which the bags, were covered, were not produced, that did not cast any
doubt, on the prosecution story. In this view of the matter, the
submission of the Counsel for the appellants, being without merit, must
fail, and the same stands rejected.
19. No other point, was urged, by the Counsel for the parties.
20. 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, and are liable to be upheld.
Crl. Appeal No.291-SB of 2000 19
21. For the reasons recorded, hereinbefore, the appeal is dismissed.
The judgment of conviction dated 14.2.2000, and the order of sentence
dated 15.2.2000, are upheld. If the appellants are on bail, their bail
bonds, shall stand cancelled. The Chief Judicial Magistrate, Karnal, shall
take necessary steps, to comply with the judgment, with due promptitude,
keeping in view the applicability of the provisions of Section 428 of the
Cr.P.C., and submit compliance report, to this Court, within a period of
two months, from the date of receipt of a copy thereof.
22. No specific order, was passed by the trial Court, regarding the
confiscation, or otherwise, of the tractor trolley, in question. The trial
Court shall initiate the proceedings, if already not initiated, regarding the
confiscation of tractor trolley, in question, by resorting to the provisions
of Sections 60(3) and 63 of the Act, complete the same, and submit
compliance report to this Court, within two months, from the date of
receipt of a copy of the judgment.
23. The District & Sessions Judge, Karnal, is directed to ensure
that the directions are complied with strictly, by the Courts concerned,
and the compliance report is sent within the time-frame.
24. The Registry shall keep track, that the compliance reports are
received within the time-frame. Whether the compliance reports are
received within the time-frame or not, the papers shall be put up after 10
days of the expiry of the same, for further action.
3.11.2008 (SHAM SUNDER) Vimal JUDGE