JUDGMENT
Pritam Pal, J.
1. By this common order, I shall dispose of two Criminal Appeals bearing Criminal Appeal No. 335-SB of 1991 and Criminal Appeal No. 424-SB of 1991, filed by Baljinder Singh alias Kala son of Raunak Singh, Mazhbi Sikh resident of Hathoor, Police Station Jagraon, as both the aforesaid appeals arise out of one and the same occurrence, registered vide FIR No. 243 of 10-9-1989 under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) at Police Station, Jagraon. The first Criminal Appeal No. 335-SB of 1991 is directed against the judgment and order of Additional Sessions Judge, Ludhiana dated 30-8-1991 who convicted the appellant under Section 18 of the Act and sentenced him to undergo Rigorous Imprisonment for 10 years with fine of Rs. One lac and in default of payment of line, to further undergo RI for one year. The second Criminal Appeal No. 424-SB of 1991 is directed against the order of Additional Sessions Judge, Ludhiana dated 31-10-1991 whereby in proceedings under Section 60(3) read with Section 63 of the Act arising out of the same FIR No. 243 dated 10-9-1989 the scooter of the appellant bearing Registration No. PBE-9528, found to have been used for carrying the contraband substance i.e. 2 Kg. of Opium, was confiscated to the State of Punjab.
2. In nut-shell, the prosecution case, as divulged by the witnesses at the trial, is as under:
On 10-9-1989, at about 4.30 p.m., ASI Kuldip Singh (PW-5) along with his police party, in a Government Jeep was on patrol duty in connection with search of the extremists. When the police party reached ahead of Sua in the area of village Lakha, Police Station Jagraon, appellant was seen coming on scooter bearing registration No. PBE 9528 (make Bajaj Chetak) of light green colour, from the opposite side. On seeing the police party, he tried to turn-back. Thereupon, he was apprehended on the basis of suspicion. Then appellant was given an offer if he wanted his scooter to be searched in the presence of a Gazetted Officer or a Magistrate. But, he declined the offer and reposed confidence in ASI Kuldip Singh (PW-5), who was Investigating Officer in this case. On search of the dickey of the aforesaid scooter, opium wrapped in a glazed paper was recovered, which when weighed, was found to be 2 Kg., 10 gms. of opium was separated as a sample. The remaining opium as well as the sample were made into two separate parcels and sealed with the seal bearing impression “K.S.”. Both the sample and case-property as well as the scooter were taken into possession vide recovery memo Ex. PB attested by HC Jagdish Singh (PW-3) and Constable Arjan Singh. The Investigating Officer then prepared sample impression of the seal used on a chit Ex. P/1 and the seal, after use was handed over to the Head Constable Jagdish Singh (PW-3). From the personal search of the accused, a sum of Rs. 6,000/-, driving licence, a chit regarding transfer of R.C. of the scooter bearing Registration No. PEB 9528 and one wrist watch (make-Seiko) were recovered which were also taken into possession vide memo Ex. P/C which was attested by Head Constable Jagdish Singh (PW-3) and signed by the accused. After that, a ruqa Ex. P/D was sent to the Police Station for the registration of the case whereupon, formal FIR Ex. PD/2 was registered by SI Shinder Pal Singh (PW-4). Investigating Officer then also prepared a rough site plan Ex. PE of the place of recovery with correct marginal notes and then recorded statements under Section 161 of the Code of Criminal Procedure of the prosecution witnesses.
3. On return to the Police Station, ASI Kuldip Singh (PW-5) produced the appellant and case property before SI Shinder Pal Singh, who was then S.H.O., Police Station, Jagraon. In turn, he also interrogated the appellant and verified the investigation and then affixed his own seal bearing impression “SS” on the sample, parcel as well as remaining bulk opium Ex. P/2. After that, he deposited the case property with MHC Jasbir Singh (PW-2). On receipt of the report Ex. P/F of Chemical Examiner and completion of the formal investigation of the case, the appellant was challaned under Section 18 of the Act. The appellant was charge-sheeted in this case on 5-2-1991 to which he pleaded not guilty and claimed trial. The appellant was tried, convicted and sentenced as indicated in the opening part of this judgment. At the same time, after pronouncing the order of sentence on 30-8-1991, appellant was also ordered to be served with a show cause notice as to why his scooter bearing Registration No. PBE-9528 be not confiscated to the State of Punjab. Thereupon the appellant filed his reply and ultimately, proceedings were initiated against him under Sections 60(3) and 63 of the Act for the confiscation of the aforesaid scooter. It was vide order dated 31-10-1991 that the aforesaid scooter of the appellant was ordered to be confiscated to the State of Punjab. This is how, feeling aggrieved against the aforesaid impugned orders of conviction and sentence as well as confiscation of scooter to the State of Punjab, the appellant has come up in these two appeals.
4. I have heard learned Counsel for the parties and have also gone through the file carefully.
5. The first and foremost contention raised on behalf of the appellant is that in this case, sample was taken on 10-9-1989 from the alleged bulk quantity of opium and the same was sent to Forensic Science Laboratory (F.S.L.) after three days i.e. on 13-9-1989. But, there is no writing or any evidence to the effect that the sample had reached intact with the FSL. It was further contended that it is also not proved if any road certificate vide which sample was sent to the FSL through Constable Kashmira Singh, PW-1, was prepared. In such a situation, possibility of interference and tampering with the seal and contents could not be ruled out. After putting forth the aforesaid points of arguments, learned Counsel for the appellant also relied upon Safihllah v. State (Delhi Admn.), 1993 (1) Chand Cri C 497 and Baldev Singh v. State of Punjab, 2005 (1) Rec Cri R 823 and then contended that in the similar facts and circumstances, as stated above, the accused for committing the offence punishable under the Act, were acquitted by giving them benefit of doubt.
6. I have given my thoughtful consideration to the above points of arguments and have also perused the facts of the above cited rulings and find that the facts contained therein are quite at variance from the facts of the case in hand inasmuch as here, in the instant case, it has been categorically stated by PW-2 HC Jasbir Singh, who proved his affidavit Ex.P/A on the file, that sample and the case property of this case were deposited with him on 10-9-1989 with seals intact, by PW-4 Shinder Pal Singh, the then SHO. He further stated in his affidavit Ex.P/A that on 13-9-1989, he had handed over the sample and the case-property to Constable Kashmira Singh, PW-1 through road No. 275. At this stage, it is also pertinent to mention that PW-1 Const. Kashmira Singh, who had taken the sample to F.S.L., has categorically stated that on the same day i.e., on 13-9-1989 he had handed over the sample bearing seal impression ‘KS’ and ‘SS’ to the FSL, Punjab, Chandigarh. It is further there in his statement that he had got issued docket on the same day from the S.S.P. Office, Ludhiana. At the end, he clarified that so long the sample remained with him, none was allowed to tamper with the same. The most relevant point to be highlighted here is that the aforesaid version of PW-1 Const. Kashmira Singh and PW-2 Head Const. Jasbir Singh goes unchallenged as none of them was cross-examined inspite of opportunity granted to the appellant. In this view of the aforesaid discussion, no benefit can be derived from the observations made by their Lordships in the above cited rulings.
7. The last noticeable point of arguments, raised on behalf of the appellant in this case is that learned trial Court has not taken note of the factum of non-compliance of Sections 55 and 57 of the Act. In that, it was argued that the sample and the case-property were not delivered to the officer Incharge of the police station. Not only that, information as required under Section 57 of the Act was not sent to the immediate superior of the Investigating Officer within 48 hours after the arrest of the appellant. Learned counsel further submits that no independent witness was joined by the police. Counsel for the appellant also relied upon Thandi Ram v. State of Haryana, 1999 (2) Rec Cri R 857 : (2000 Cri LJ 588), wherein for non-compliance of provisions of Sections 55 and 57 of the Act, the accused who had already undergone a sentence of 9 years, was acquitted by the Apex Court.
8. On the other hand, Shri N. S. Gill, Assistant Advocates General, appearing for the State of Punjab, has repelled the aforesaid points of arguments put-forth on behalf of the appellant and then contended that in fact, in this case, no bias or any animous has been alleged against any of the five police officials examined by the prosecution. Not only that, the compliance of provisions of Sections 55 and 57 of the Act has also been made. In that, he made reference to the unchallenged statements of PW-1 Const. Kashmira Singh, PW-2 HC Jasbir Singh, PW-4 Shinder Pal Singh and PW-5 ASI Kuldip Singh. Learned State counsel also submitted that the military in the days of occurrence of this case was on the peak in the State of Punjab and as such people were reluctant to associate themselves in any investigation of the case and as such, inspite of the best efforts made by the police, no person from the public was ready to join the investigation. At the fag end of his arguments, learned Assistant Advocate General, Punjab also placed on the record, a report received from the Superintendent, Central Jail, Ludhiana, addressed to the office of Advocate General, Punjab, which indicates that appellant, in all, in this case, has undergone only 28 days of his total sentence. Later on, after his conviction and sentence in this case, he was also arrested for commission of similar offence punishable under Section 18 of the Act in case bearing FIR No. 265 dated 6-8-1994, Police Station Sadar, Ludhiana and ultimately, vide order dated 27-9-2002, he was sentenced to undergo R.I. for 12 years with a fine of Rs. one lac and in default of payment of fine to undergo further RI for six months. Later on, he was released on parole in the said case but, he failed to turn up for serving out his remaining sentence. Upon that, another case bearing FIR No. 445 dated 25-9-2002 was registered under Section 224 of the Indian Penal Code at Police Station Division No. 5 Ludhiana against the appellant. After put-ling forth the aforesaid points of arguments, learned Assistant Advocate General, Punjab contended for the dismissal of the aforesaid appeals preferred by the appellant.
9. I have given my due consideration to the aforesaid points of arguments raised on behalf of the parties and find no force in any of the above pleas taken on behalf of the appellant inasmuch as a perusal of statements of PW-1 Const. Kashmira Singh, PW-2 Head Constable Jasbir Singh and PW-4 SI Shinder Pal Singh goes a long way to show that the sample and other case-property seized in this case were duly sealed and taken into possession vide recovery memo, Ex. P/B, by PW-5 ASI Kuldip Singh and then the appellant as well as the entire case property were produced before PW-4 SI Shinder Pal Singh who was the immediate official superior to PW-5 ASI Kuldeep Singh. The statements of the aforesaid police officials go unchallenged on all the material points. Not only that, no bias or any animous is alleged against any of the police officials. In such a situation, the evidence consisting the statements of police officials cannot be discarded just on the ground of their having official status, which otherwise inspires confidence.
10. In this view of my foregoing discussion, it cannot be said that compliance of Sections 55 and 57 of the Act has not been made in this case.
11. In relation to Criminal Appeal No. 424-SB of 1991, learned Counsel for the appellant could not point-out any illegality in the order regarding confiscation of the scooter to the State of Punjab. Rather, he stated that fate of this appeal is linked with the main appeal bearing Criminal Appeal No. 335-SB of 1991.
12. In the result, both the appeals fail and the same are hereby dismissed. Appellant, who is on bail in this case and is now stated to be absconding, be taken into custody to serve out the remaining sentence passed against him.