Criminal Appeal No.157-SB of 1999.
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In the High Court of Punjab and Haryana at Chandigarh.
Criminal Appeal No.157-SB of 1999.
Date of decision:4-8-2008
Daler Singh and another.
...Appellants.
Versus
State of Punjab.
...Respondent.
...
Coram: Hon'ble Mr. Justice K. C. Puri.
...
Present: Mr. L. S. Sidhu Advocate for the appellants.
Ms. Manjari Nehru, DAG Punjab.
....
K. C. Puri, J.
Judgment.
Under challenge in this appeal is the judgment and order
dated 21.12.1998 whereby the appellants were convicted under Section
15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in
short NDPS Act) and sentenced to undergo rigorous imprisonment for
ten years and to pay a fine of Rs.1,00,000/- and in default of payment
of fine, to undergo further rigorous imprisonment for six months.
The prosecution story, in brief, is that on 9.4.1996, a police
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party consisting of SI Faqir Fateh Singh and other police officials
headed by SHO Rashpal Singh, under the supervision of DSP Mander
Singh, was present at the turning of village Kirian, in the area of village
Jauneke on the G.T. Road in connection with special Nakabandi and
checking of vehicles. One truck bearing No.PB-09-0058 came from the
side of Harike and it was stopped for checking. Accused Daler Singh
was driving the said truck while accused Sarwan Singh was sitting on
the bags placed on the marbles loaded in the said truck. On suspicion
that the bags contained poppy husk, the DSP enquired from the
accused, whether they wanted their truck to be searched in the presence
of some Magistrate or Gazetted Officer. The accused reposed
confidence in the DSP and then the SI conducted the search of the truck
in the presence of the said DSP. The bags placed on the marbles were
found having poppy husk. Out of each bag, 250 grams of poppy husk
was separated as a sample and separate parcels were prepared. The
remaining poppy husk, when weighed came to be 39 Kilograms and
750 grams in each bag. The bags and the samples were sealed
separately by the DSP with his own seal bearing impression ‘MS’. The
samples and the case property alongwith the truck were taken into
possession vide a recovery memo attested by the PWs. Ruqqa was sent
to the Police Station on the basis of which formal FIR was registered.
After the completion of investigation and after the receipt
of report of Chemical Examiner, challan was presented in the Court.
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The accused were charge-sheeted under Section 15 of the
NDPS Act to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 SI
Rashpal Singh, PW-2 HC Kuldip Raj, PW-3 Constable Gurmit Singh,
PW-4 SI Faqir Fateh Singh and PW-5 DSP Mander Singh.
In their statements recorded under Section 313 Cr.P.C, the
accused denied the prosecution allegations put to them and pleaded
false implication. They, however, did not lead any evidence in defence.
After trial, both the accused were convicted and sentenced,
as noticed earlier.
Feeling aggrieved with the said judgment, the accused have
preferred the instant appeal.
Learned counsel for the appellants has submitted that link
evidence is missing in the present case and the appellants are liable to
be acquitted on that ground.
He has further submitted that the sample was drawn on
9.4.1996 but the same has been sent for analysis on 23.4.1996. The
delay in sending the sample has not been explained. It is further
submitted that the case property remained in possession of Assistant
Moharrir Head Constable whereas the Moharrir Head Constable has
been produced and Assistant Moharrir Head Constable has not been
examined.
It is further contended that the sample was given to
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Constable Gurmeet Singh who handed over the same to Constable
Gurbir Singh. So, in these circumstances, link evidence is missing.
It is further contended that the ownership of the truck has
not been proved. The appellants are neither owners nor drivers nor
cleaners of the truck. In these circumstances, conscious possession is
not proved.
It is further that although the provisions of Section 50 of
NDPS Act are not attracted but, according to the prosecution version, it
has complied with the provisions of Section 50 of NDPS Act but that
compliance is not sufficient. Composite consent statement for giving
search was prepared. So, the appellants are liable to be acquitted for
non compliance of Section 50 of NDPS Act.
It is further submitted that the appellants are illiterate
persons and, according to the prosecution version, they have thumb
marked the memos. The said memos are inadmissible in evidence, in
view of Section 25 of the Indian Evidence Act.
It is further submitted that the place of recovery is not
established. According to the prosecution version, the recovery was
effected from the area of village Chirian whereas according to the other
evidence, the recovery was made from the area of village Kirian.
It is further submitted that the prosecution story is doubtful.
There are material discrepancies regarding the bringing of weights and
measures. According to PW-1 Rashpal Singh, HC Rawal Singh brought
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the weights and scales on the Canter whereas according to PW-4 Faqir
Fateh Singh, LC Inderpal brought the weights and scales from Harike
on Rehra.
It is further submitted that there are discrepancies regarding
time also. According to the PWs., Naka was held at 12.30 PM whereas
recovery was effected 15 minutes thereafter but according to the ruqqa,
recovery was effected at 2.30 PM. So, the prosecution story is doubtful.
It is further submitted that the seal of DSP after use was
handed over to PW-4 SI Faqir Fateh Singh. So, there could be
possibility of exchanging the seal for tampering with the case property.
It is further submitted that no independent witness was
joined. Therefore, the prosecution story is doubtful.
The learned counsel for the appellants has further submitted
that according to the FIR, secret information was received which was
provided by Dara Singh son of Sajjan Singh, resident of Sabhra, Police
Station Patti. The said person has not been examined. So, non-joining
of independent witness assumes importance.
The learned Deputy Advocate General, Punjab, has
supported the judgment of the trial Court.
I have considered the rival submissions made by both sides
and have gone through the record of the case.
So far as the submission made by the counsel for the
appellants that the joint consent statement recorded by the Investigating
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Officer is not legally admissible is concerned, that argument does not
help the accused, in any manner.
The learned counsel for the appellants has himself admitted
that compliance of Section 50 of NDPS Act is not required in case of
recovery of contraband effected other than from personal search. In
authority in case Narayanaswamy Ravishankar Versus Assistant
Director, Directorate of Revenue Intelligence, 2003 Criminal Law
Journal 27 (SC), it has been held that where recovery of contraband is
from a suitcase carried by the accused, Section 50 of the NDPS Act is
not attracted.
The submission made by the counsel for the appellants to
the effect that since the process of Section 50 of NDPS Act was started,
so on that count, it should have been complied with, is also without any
force. When the law does not require compliance of Section 50 of
NDPS Act, in that case, joint consent memo does not vitiate the trial.
Authorities in cases Pal Singh Versus State of Haryana, 2000(1) All
India Criminal Law Reporter 106, Jaswant Versus State of Haryana,
1998(2) Recent Criminal Reports 384 (P&H), Paramjit Singh and
another Versus State of Punjab, 1996(3) All India Criminal Law
Reporter 729 and Abdul Rahiman Versus State of Kerala, 2002(3)
Recent Criminal Reports 404 do not help the appellants as the facts are
distinguishable from the instant case.
So far as the submission made by the counsel for the
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appellants to the effect that link evidence is missing is concerned, the
same is also without any substance. Mere fact that the sample had been
sent after a few days does not automatically leads to the conclusion that
there was tampering with the sample. According to the report of
Chemical Examiner, the seals on samples were found intact. So, mere
sending the sample late does not create any dent in the prosecution
version.
In authority in case Motia Bai Versus State of Haryana,
2005(3) Recent Criminal Reports 56, it has been held that mere sending
sample after a few days does not create any doubt in the prosecution
case. In the said authority, the sample was sent after 20 days of
recovery and there was no evidence of tampering with the sample.
According to the report of the Forensic Science Laboratory, the seals
were intact when the sample reached the Laboratory and conviction
was up-held.
The submission made by the counsel for the appellants that
only MHC has been examined and AMHC has not been examined and
on that count, the link evidence is missing, also cannot be accepted.
There was no necessity for the examination of AMHC as he simply
assists the MHC. The MHC has been examined as a prosecution
witness. So, it cannot be said that the link evidence is missing.
So far as the submission of counsel for the appellants that
the sample seal was handed over to Constable Gurbir Singh but said
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Gurbir Singh has not been examined and on that count the prosecution
case is doubtful is concerned, the same is without any substance. PW-2
HC Kuldip Raj has stated that the sample was handed over to Constable
Gurmit Singh which fact is clear from vernacular language. It is only
on account of typographical mistake in the English version that the
name of Gurbir Singh has been mentioned. So, the above said
contention is merit-less.
So far as the submission of counsel for the appellants that
the ownership of the vehicle has not been proved and on that count, the
prosecution story is doubtful is concerned, the same is also without any
substance.
There was no necessity to prove the ownership of the
vehicle. The prosecution has been able to prove the recovery of such a
huge quantity of contraband from the possession of the appellants
which has been proved by PW-1 SI Rashpal Singh, PW-4 SI Faqir
Feteh Singh and PW-5 DSP Mandar Singh. There was no reason for
these witnesses to plant such a huge quantity of contraband on the
accused.
Mere fact that the appellants are illiterate does not create
any doubt in the prosecution version. Compliance of Section 50 of
NDPS Act was not required and, on that count, joint consent memo of
appellants does not vitiate the trial. So, the appellants cannot take the
benefit of the same.
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So far as submission made by the counsel for the appellants
that the place of recovery has not been established is concerned, the
same is without any substance. Villages Chirian and Kirian are the
names of one village and village Chirian was also known as Kirian. It
is only on account of pronunciation that the difference in spellings of
villages Chirian and Kirian has been mentioned. So, no importance can
be given to the aforesaid submission.
The submission of learned counsel for the appellants that in
the site plan, the place of recovery is different is totally incorrect.
Minor discrepancies regarding bringing the weights and
scales and time as argued by the counsel for the appellants do not
create any dent in the prosecution version. Minor discrepancies are
bound to occur in the testimony of truthful witnesses, due to passage of
time.
Mere fact that seal after use has been handed over to SI
Faqir Fateh Singh does not create any dent in the prosecution version.
Since there was no independent witnesses, so the seal could not be
handed over to any independent witness.
So far as the submission of learned counsel for the
appellants that no independent witness was joined and on that count,
the prosecution story is doubtful is concerned, the same is also without
any substance. It is a case of chance recovery and as such there was no
occasion for the police party to join any independent witness. Mandar
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Singh, DSP, Gazetted Officer has supported the prosecution version.
No Gazetted Officer will support false version unless there are some
compelling circumstances for the same.
So far as the submission made by the counsel for the
appellants that the case is based upon secret information of Dara Singh
son of Sajjan Singh, resident of Sabhra, Police Station Patti and he has
not been examined is concerned, it is to be noticed that it is not the
prosecution case that the recovery was effected on the basis of secret
information. So, there was no occasion to examine Dara Singh.
Moreover, the appellants have not cross-examined any witness on this
aspect.
No other point has been urged before me.
In view of the above discussion, the appeal is without any
merit and the same stands dismissed.
The accused are on bail. Their bail bonds stand cancelled.
They be taken into custody to undergo the remaining part of
imprisonment awarded by the learned trial Court.
A copy of this judgment be sent to the trial Court for strict
compliance.
August 4th ,2008. ( K. C. Puri ) Jaggi Judge