Crl. Appeal No.819-DB of 2007 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.819-DB of 2007
DATE OF DECISION: 16.11.2009
Lal Singh ..........Appellant
Versus
State of Punjab ..........Respondent
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Ms. Shweta Bawa, Advocate
for the appellant.
Mr. D.S. Brar, Deputy Advocate
General, Punjab.
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DAYA CHAUDHARY, J.
1. The present appeal arises out of judgment of conviction and
order of sentence dated 30.7.2007 passed by Special Judge, Moga in
Sessions Case No. 103 dated 21.9.2005 whereby the accused-appellant
has been convicted and sentenced to undergo rigorous imprisonment for a
period of 12 years and to pay a fine in the sum of Rs.1,25,000/- for the
offence punishable under Section 15 of the Narcotic Drugs and
Psychotropic Substance Act, 1985 (hereinafter referred to as ‘the Act’) and
in default of payment of fine to further undergo RI for a period of 1-1/2
years.
2. Briefly the facts of the prosecution story are that on 27.3.2005
SI Ravinder Singh along with ASI Darshan Singh, Head Constable Balkar
Singh and other police officials were going on routine patrol duty. At about
Crl. Appeal No.819-DB of 2007 (2)
11.00 am, when they were present at Bus Adda, village Dhalle-ke, they
received a secret information that accused-Lal Singh @ Lala is doing the
business of selling poppy straw in his residential house at village Rattian
and if a raid is conducted, a huge quantity of poppy straw can be recovered
from his possession. On the basis of said information, ruqa was sent to the
police station for registration of an FIR and Jaswant Singh @ Kala was
also joined as an independent witness at the time of conducting raid. Shri
Jatinder Pal Singh Bainipal, DSP (C), Moga was also called on the spot.
The raid was conducted and accused Lal Singh @ Lala was apprehended
on the spot and five gunny bags tied with a rope were recovered from his
house. Shr. Jatinder Pal Singh Bainipal, DSP ©, Moga asked the accused
that he suspected some contraband in the plastic bags and the accused-
appellant was also apprised of his right to get the search conducted from
the Magistrate or some Gazetted Officer. Accused Lal Singh reposed
confidence on DSP for the search. On the directions of DSP, the
Investigating Officer checked the contents of plastic bags from which poppy
straw was recovered. The said plastic bags were numbered and two
samples of 250 grams each were drawn separately and on weight, the
remaining poppy straw in each plastic bag came to be 30 kg. The
samples and the plastic bags containing poppy straw were sealed by the
Investigating Officer with his seal bearing impression ‘RS’. Sample seal
impression was also prepared and seal after use was handed over to ASI
Darshan Singh. The DSP also affixed his seal bearing impression ‘JS’ on
all the samples and the plastic bags. Sample seal impression was also
prepared and the entire case property was taken into police possession.
The investigation was completed at the spot and the case property was
produced before the SHO. The Chemical Examiner Report was also
received and after completion of investigation, challan was presented in the
court . After supplying copies of the documents under Section 207 Cr.P.C.
Crl. Appeal No.819-DB of 2007 (3)
to the accused-appellant, he was chargesheeted under Section 15 of the
NDPS Act, to which, he pleaded not guilty and claimed trial.
3. In order to substantiate the charge, prosecution examined
Head Constable Gurmel Singh (PW-1), Head Constable Tarsem Singh
(PW-2), ASI Joginder Singh (PW-3), Head Constable Daljit Singh (PW-4),
SI Ravinder Singh (PW-5), SI Jaspal Singh (PW-6), SI Tara Singh (PW-7),
ASI Darshan Singh (PW-8), DSP Jatinder Pal Singh Bainipal (PW-9),
Diwar Singh (PW-10) and Rajinder Kumar (PW-11).
4. After close of the prosecution evidence, statement of accused-
appellant under Section 313 Cr.P.C. was recorded, wherein, he pleaded
false implication by stating that he was picked up by the police from his
house and nothing was recovered from him. It was also stated that the
contraband recovered from him belonged to the private witness Jaswant
Singh, who is a professional criminal and at the instance of police, he has
falsely been implicated. In defence, accused-appellant examined Head
Constable Gurcharan Singh (DW-1) and Sukhjinder Singh, Additional
Ahlmad of the Court of CJM Moga as DW-2.
5. The trial Court on appreciation of evidence and after hearing
both the sides, convicted and sentenced the accused-appellant, as
mentioned above.
6. The judgment of conviction and order of sentence passed by
learned trial Court is subject matter of challenge in the present appeal.
7. Ms. Shweta Bawa, learned counsel for the accused-appellant
has argued that the accused-appellant is the only bread earner in the
family and has falsely been implicated in the present case. There is
nothing on record to connect the accused-appellant with the commission of
offence and there is no previous criminal history. She also argued that
there are material contradictions and discrepancies in the statements of
prosecution witnesses, which makes the prosecution case doubtful. As per
Crl. Appeal No.819-DB of 2007 (4)
statement of Diwar Singh (PW-10), he photographed 34 bags of poppy
straw and the recovery was only of five bags of poppy straw and the
difference of 29 bags has not been explained by the prosecution. Ms.
Bawa further argued that there is delay of nine days in sending the
samples to Chemical Examiner and it has not been explained by the
prosecution. This fact has also been lost sight of by the trial Court.
8. Mr. D.S. Brar, learned Deputy Advocate General, Punjab has
argued that the accused-appellant has rightly been convicted by the trial
Court as he was found in conscious possession of the contraband and raid
was conducted in presence of an independent witness after following the
mandatory provisions of the Act. The delay in sending the samples to
Chemical Examiner Laboratory has also been explained by the
prosecution.
9. We have heard the arguments of learned counsel for the
parties and perused the evidence and other documents available on
record.
10. Argument of the learned counsel for the accused-appellant
that there is a delay of nine days in sending the samples to Chemical
Examiner Laboratory for testing whereas the samples are to be sent within
72 hours, has no substance. In the present case, the recovery was
effected on 27.3.2005 and the docket was prepared on 4.4.2005 from the
office of SSP Moga and the samples were deposited in the Chemical
Examiner Laboratory on 5.4.2005. The delay is only 4-5 days in sending
the samples to Chemical Examiner Laboratory. Head Constable Gurmel
Singh (PW-1) has not been cross-examined by the counsel for the
accused-appellant for seeking explanation for the delay in sending the
samples. Moreover, there is no evidence on record to show that the seals
on the samples and docket were tampered with. There is no opinion of the
Chemical Examiner Laboratory regarding tampering of the seal. Therefore,
Crl. Appeal No.819-DB of 2007 (5)
the delay in sending the samples is not fatal and material for the case of
the prosecution.
11. The argument of the learned counsel for the accused-appellant
that Diwar Singh (PW-10) took photographs of 34 bags and the recovery
was of five bags only, has no substance. Five gunny bags are visible from
the five photographs and the wrong statement given by Diwar Singh (PW-
10) has not made the case of the prosecution doubtful. The photographs
taken during the inventory proceedings before the Ilaqa Magistrate has
also proved that only five bags were found in conscious possession of the
accused-appellant.
12. The argument of the learned counsel for the accused-appellant
that there are contradictions and discrepancies in the statements of
prosecution witnesses, does not carry any weight. As per version of SI
Ravinder Singh (PW-5), the private witness was looking like a Mullah, who
was wearing kurta pajama and was in the age group of 30-35 years but as
per the version of DSP Jatinder Pal Singh Bainipal (PW-9) the said private
witness was a sikh gentleman. Similarly, the Investigating Officer stated
that form No. 29 was not filled at the spot whereas the DSP stated in his
cross-examination that Form No. 29 was filled at the spot. These
contradictions and discrepancies are minor in nature and does not make
the prosecution case doubtful as whether the independent witness Jaswant
Singh was looking like a Mullah or Sikh does not make the prosecution
case doubtful as both support beard and resemble each other. Moreover,
the age of the private witness has correctly been given by all the witnesses.
The statements of the witnesses were recorded in the Court after a
considerable long time and such like variation, minor contradictions and
discrepancies are bound to occur with the passage of time and moreover
these are not fatal to the case of the prosecution.
13. Keeping in view the facts and circumstances of the present
Crl. Appeal No.819-DB of 2007 (6)
case and in the interest of justice, we deem it appropriate to reduce the
sentence of the accused-appellant from 12 years to 10 years as he is only
bread earner in the family and no other case is pending against him.
Therefore, the sentence imposed upon the accused-appellant is reduced
from 12 years to 10 years and fine is also reduced from Rs. 1,25,000/- to
Rs. 1,00,000/- and in case of default of payment of fine, imprisonment of 1-
1/2 years is also reduced to one years.
14. Accordingly, the appeal is disposed of in the aforesaid terms.
(DAYA CHAUDHARY)
JUDGE
November 16, 2009 (JASBIR SINGH)
pooja JUDGE
Note:-Whether this case is to be referred to the Reporter …….Yes/No