Criminal Misc. No.M-23575 of 2006.
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In the High Court of Punjab and Haryana at Chandigarh.
Criminal Misc.No.M-23575 of 2006.
Date of decision:23-3-2009.
Dr.Gurdev Singh and another.
...Petitioners.
Versus
State of Punjab and others.
...Respondents.
Coram: Hon'ble Mr. Justice K. C. Puri.
...
Present: Mr. R.K. Singla, Advocate for the petitioners.
Mr. P.S.Bajwa, AAG Punjab.
Mr. P.P.S. Duggal, Advocate for respondent No.2.
K. C. Puri, J.
Judgment.
Through the present petition filed under Section 482
Cr.P.C, the petitioners seek quashing of FIR No.11 dated
10.1.2005, under Section 15/61/85 of NDPS Act, Police Station
Lambi, Annexure P-1, challan under Section 173 Cr.P.C dated
4.5.2005, Annexure P-13 and subsequent proceedings conducted
therein before Special Judge, Muktsar qua the petitioners.
Brief facts of the case are that on 10.1.2005, ASI
Darshan Singh, along with police party was going for checking of
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suspected persons. One Maruti car bearing registration No.DBD-
2653 was coming. The ASI gave a signal to stop the Maruti car.
One occupant of the car told his name as Kapur Chand @ Kapuri
and the other person disclosed his name as Sardara Singh @ Kaka.
The ASI expressed his suspicion that they were carrying some
narcotic substance in their car. He gave option to the accused
persons to get their car searched from the Magistrate or the
Gazetted Officer. Both the accused expressed their desire to get
their car searched before some Gazetted Officer. A memo was
prepared and wireless was sent for sending some Gazetted Officer.
At about 9.45 AM, DSP Malout Hargobind Singh reached at the
spot who told to both the accused that he was a DSP at Malout and
was a Gazetted Officer. He also told both the accused that they
have a legal right to get the search of the car before him or
Magistrate or a Gazetted Officer. Both the accused told that they
wanted to get their car searched before him. Consent memo was
prepared and Kapur Chand accused signed the same whereas
Sardara Singh accused put his thumb impression on the same. Then
under the directions of the DSP, the ASI took the search and found
three bags of poppy husk on the rear seat and two bags of poppy
in the dicky.250 grams each was taken as sample from the bags.
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The bags were weighed which were found to contain 29 kilo and
500 grams of poppy husk in each bag. Samples were taken and
sealed. Sample seal was given to HC Gurdeep Singh.
During the interrogation of accused Kapur Chand and
Sardara Singh, they told that Jaswinder Singh @ Chhinda, his
father Gurdev Singh and Pawan Kumar were the owners.
Therefore, final report under Section 173 Cr.P.C was also filed
against the petitioners.
Quashing has been sought on different grounds which
will be discussed in the later part of judgment.
The main plank of the counsel for the petitioners for
quashing the proceedings is that the petitioners have been involved
on the basis of testimony of Jagsir Singh and Rabbi Singh. It is
contended that both these witnesses have given affidavits that they
have not made any statement against the petitioners. It is further
contended that since the other accused Sardara Singh and
Jaswinder Singh have been acquitted and the case of petitioner is
similar to their case so no useful purpose would be served by
continuing the proceedings in the FIR in question.
It is further contended that petitioner has been wrongly
declared as a Proclaimed Offender. He was not properly served and
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as such the impugned order declaring him as a Proclaimed
Offender is liable to be set aside.
The learned State counsel has submitted that the
petitioner is seeking relief under Section 482 Cr.P.C. He has been
declared as a Proclaimed Offender. It cannot be said that he has
been wrongly declared as a Proclaimed Offender, more so, when
his son has appeared before the trial Court. It cannot be pre-judged
that the case of petitioner is similar to that of Sardara Singh and
Jaswinder Singh. The fact that Kapur Chand, one of the accused,
has been convicted goes a long way to prove that it is only the trial
Court which can adjudicate upon the question whether the
petitioner is guilty of any offence or not. By procuring affidavits of
the witnesses further prove the fact that the petitioner is trying to
win over the witnesses.
It is further contended that the petitioner is a habitual
offender as he has faced trial in nine cases. Most of those cases are
of similar nature as that of present case, as detailed in written reply.
So, no ground for invoking provisions of Section 482
Cr.P.C is made out.
Admittedly, petitioner Dr. Gurdev Singh has been
declared Proclaimed Offender by the trial Court. The counsel for
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the petitioner has submitted that he has been wrongly declared as a
Proclaimed Offender and was not duly served but that contention
cannot accepted as his son Jaswinder Singh has appeared before
the trial Court. It cannot be said that he had no knowledge of the
pendency of the case and he has been wrongly declared as a
Proclaimed Offender. From the written reply, it is clear that as
many as nine First Information Reports, most of which are
regarding possession of opium, were registered against the
petitioner. No relief under Section 482 Cr.P.C can be given to a
person who has hoodwinked the Court. Otherwise also, his conduct
of procuring affidavits from the witnesses shows that he is trying
to win over the witnesses. Whether the case of petitioner is similar
to that of Kapur Chand who has been convicted in the present FIR
or that of Sardara Singh and Jaswinder Singh, who have been
acquitted, is a matter of appreciation of evidence. Otherwise also,
proceedings under Section 482 Cr.P.C can only be invoked if there
is clear abuse of the process of the Court.
From the facts on the record, a prima-facie case against
the accused is made out. Consequently, no ground for invoking
provisions of Section 482 Cr.P.C is made out. The petition is
accordingly dismissed.
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However, it is made clear that nothing observed above
shall be construed as an expression of opinion on the merits of the
case.
March 23rd ,2009. (K. C. Puri ) Jaggi Judge