{"id":130422,"date":"2008-09-19T00:00:00","date_gmt":"2008-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/3-mahavir-singh-son-of-sarwan-vs-the-state-of-punjab-on-19-september-2008"},"modified":"2015-09-21T18:49:10","modified_gmt":"2015-09-21T13:19:10","slug":"3-mahavir-singh-son-of-sarwan-vs-the-state-of-punjab-on-19-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/3-mahavir-singh-son-of-sarwan-vs-the-state-of-punjab-on-19-september-2008","title":{"rendered":"3- Mahavir Singh Son Of Sarwan … vs The State Of Punjab on 19 September, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
3- Mahavir Singh Son Of Sarwan … vs The State Of Punjab on 19 September, 2008<\/div>\n
                   Crl.Appeal No.405-SB of 1999\n                                   1\n\n\n\n    IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n                              Crl.Appeal No.405-SB of 1999\n\n                              Date of Decision :September 19, 2008\n\n    1- Dabo alias Chuchi wife of Sohan Lal, resident of village\n    Langora, District Nawanshahr.\n\n    2- Mohinder Pal alias Kala son of Kabal Ram, resident of\n    village Mugho Patti, District Hoshiarpur.\n\n    3- Mahavir Singh son of Sarwan Singh, resident of village\n    Sunawan, District Nawanshahr.\n    .\n                                          ... Appellants.\n                      Versus\n\n    The State of Punjab\n                                                   .... Respondent\n\n    CORAM: HON'BLE MR. JUSTICE SHAM SUNDER\n\n    Present:       Ms. Sangeeta Dube, Advocate\n                   ( Amicus curiae )\n                   for the appellants.\n\n                   Mr. S.S. Bhullar, DAG, Punjab\n                   for the respondent-State.\n\nSHAM SUNDER, J.\n<\/pre>\n
                   This appeal is directed against the judgment of<\/p>\n
    conviction and the order of sentence dated 20.04.1999,<\/p>\n
    rendered by the Court of Special Judge, Hoshiarpur, vide<\/p>\n
    which it convicted the accused\/appellants, for the offence<\/p>\n
    punishable under Section 15 of the Narcotic Drugs &<\/p>\n
    Psychotropic Substances Act, 1985 (hereinafter called as ‘the<\/p>\n
    Act’   only)    and   sentenced   them to      undergo    rigorous
\n             Crl.Appeal No.405-SB of 1999
\n                            2<\/span><\/p>\n
imprisonment, for a period of ten years each , and to pay a fine<\/p>\n
of Rs.1 lac each, and in default of payment of the same, to<\/p>\n
undergo further rigorous imprisonment for a period of two<\/p>\n
years each, for having been found in possession of 8 bags, each<\/p>\n
containing 40 Kgs poppy husk, falling within the purview of<\/p>\n
commercial quantity, without any permit or licence.<\/p>\n
2.          The facts, in brief, are that on 30.07.1996, during<\/p>\n
the night time, the police party headed by SHO Ajay Singh,<\/p>\n
alongwith other police officials, held a picket, in village<\/p>\n
Sarhala Kalan, near a liquor vend. One vehicle TATA-407<\/p>\n
bearing registration No. PB-08H-7863 was found coming from<\/p>\n
the side of Gondpur. Ajay Singh, ASI, stopped the vehicle and<\/p>\n
found Debo and Mohinder Pal, sitting by the side of the driver<\/p>\n
whereas Mahavir Singh was driving the vehicle. He enquired<\/p>\n
of the occupants of the vehicle, as to what had been kept by<\/p>\n
them therein. They disclosed that some bags, containing poppy<\/p>\n
husk were lying therein. Thereafter, the search of the vehicle<\/p>\n
was conducted, in accordance with the provisions of law, as a<\/p>\n
result whereof, eight bags were found lying therein. Each bag<\/p>\n
was found containing 40 Kgs poppy husk. The bags were<\/p>\n
sealed and taken into possession vide a separate       recovery<\/p>\n
memo. Thereafter, a message was sent to Miss. Gurpreet Deo,<\/p>\n
Assistant Superintendent of Police to reach the spot. She<\/p>\n
reached the spot.    All the bags, aforesaid, along with the
\n             Crl.Appeal No.405-SB of 1999
\n                            3<\/span><\/p>\n
accused were produced before her. She took out a sample of<\/p>\n
250 grams from each of the bags. The samples and the bags,<\/p>\n
containing remaining poppy husk, were converted into separate<\/p>\n
parcels, duly sealed, and taken into possession, vide a recovery<\/p>\n
memo. Ruqa was sent to the Police Station, on the basis of<\/p>\n
which, the FIR was registered. The accused were arrested.<\/p>\n
The site plan was prepared. The statements of the witnesses<\/p>\n
were recorded.       After the completion of investigation, the<\/p>\n
challan was presented.\n<\/p>\n
3.                   On their     appearance, in the Court, the<\/p>\n
accused were supplied the copies of documents, relied upon by<\/p>\n
the prosecution. Charge under Section 15 of the Act, was<\/p>\n
framed against the accused, to which they pleaded not guilty,<\/p>\n
and claimed trial.\n<\/p>\n
4.          The prosecution, in support of its case, examined<\/p>\n
Ms. Gurpreet Deo,ASP,           (PW-1), Ashwani Kumar, MHC,<\/p>\n
(PW-2), Balbir Singh, ASI, ( PW-3 ), Ajay Singh, SI\/SHO,<\/p>\n
(PW-4), Balbir Chand, C, ( PW-5 ), Ram Chand, ASI, ( PW-6 )<\/p>\n
and Nirmal Kapoor, Clerk, RTA Office, ( PW-7 ). Thereafter,<\/p>\n
the Public Prosecutor for the State, closed the evidence.<\/p>\n
5.          The statements of the accused, under Section 313<\/p>\n
Cr.P.C., were recorded, and they were put all the incriminating<\/p>\n
circumstances, appearing against them, in the prosecution<\/p>\n
evidence. They pleaded false implication. It was stated by Debo
\n             Crl.Appeal No.405-SB of 1999
\n                            4<\/span><\/p>\n
alias Chuchi, accused, that on 15.07.1996, she was taking care<\/p>\n
of Naju Ram, her husband’s nephew, who had been admitted in<\/p>\n
Gandhi Hospital, Phagwara. It was further stated by her, that<\/p>\n
she was brought from that hospital, to Police Station Mahilpur.<\/p>\n
She further stated that she alongwith Mohinder Pal and<\/p>\n
Mahavir Singh were detained, in the Police Station. It was<\/p>\n
further stated by her that Paramjit Singh alias Madda, who was<\/p>\n
a known smuggler, of village Harta, Police Station Sadar,<\/p>\n
Hoshiarpur, had occupied one room, in village Sarhala Kalan.<\/p>\n
He brought one truck of poppy husk, and this information<\/p>\n
leaked. The said smuggler is in the good books of Police. To<\/p>\n
save his skin, the police implicated her along with Chanan<\/p>\n
Ram, Gurmej Kaur alias Gejo and Tejo in cases under Section<\/p>\n
15 of the Act.\n<\/p>\n
5-A         Mahavir Singh, and Mohinder Pal, accused, stated<\/p>\n
that they were falsely implicated, at the instance of Paramjit<\/p>\n
Singh alias Madda, who is a known smuggler.\n<\/p>\n
5-B         In their defence, the accused examined Nanju,<\/p>\n
DW-1, Dr. Satnam Singh Parmar, DW-2, Dass Ram, DW-3 and<\/p>\n
Harbhajan Singh, DW4, and closed the same.\n<\/p>\n
6.          After hearing the Addl. Public Prosecutor for the<\/p>\n
State, the Counsel for the accused, and, on going through the<\/p>\n
evidence, on record, the trial Court, convicted and sentenced<\/p>\n
the accused, as stated hereinbefore.\n<\/p>\n
                Crl.Appeal No.405-SB of 1999
\n                               5<\/span><\/p>\n
7.             Feeling aggrieved, against the judgment of<\/p>\n
conviction and the order of sentence, rendered by the trial<\/p>\n
Court, the instant appeal, was filed by the aforesaid appellants.<\/p>\n
8.                   I have heard the Counsel for the parties, and<\/p>\n
have gone through the evidence and record of the case,<\/p>\n
carefully.\n<\/p>\n
9.                   The Counsel for the appellants, at the very<\/p>\n
outset, vehemently, contended that the provisions of Section<\/p>\n
50 of the Act were not complied with, as a result whereof, trial,<\/p>\n
conviction and sentence stood vitiated. The submission of the<\/p>\n
Counsel for the appellants, in this regard, does not appear to be<\/p>\n
correct.     There is no requirement of law, that the search and<\/p>\n
seizure proceedings, when the recovery of          contraband, is<\/p>\n
effected from a vehicle, should be conducted, in the presence of<\/p>\n
a Gazetted Officer or a Magistrate.        Had the recovery of<\/p>\n
contraband been effected from the person of the accused, then,<\/p>\n
in terms of the provisions of Section 50 of the Act, notice was<\/p>\n
required to be served upon the accused, whether they wanted<\/p>\n
their search to be conducted in the presence of a Gazetted<\/p>\n
Officer or a Magistrate. In the instant case,the recovery of<\/p>\n
contraband was effected from Tata-407, bearing registration<\/p>\n
No. PB-08H-7863. The provisions of Section 50 of the Act,<\/p>\n
did not apply to this case, and, as such , the Investigating<\/p>\n
Officer was not bound to conduct the proceedings, in the
\n             Crl.Appeal No.405-SB of 1999
\n                            6<\/span><\/p>\n
presence of a Gazetted Officer, or a Magistrate. In this view of<\/p>\n
the matter, the submission of the Counsel for the appellants,<\/p>\n
being without merit, must fail, and the same stands rejected.<\/p>\n
10.         It was next submitted by the Counsel for the<\/p>\n
appellants, that the search of Debu alias Chuchi, accused was<\/p>\n
not conducted by a lady police Constable, and, as such, there<\/p>\n
was violation of the mandatory provisions of Section 50(4) of<\/p>\n
the Act, and, thus, the trial, conviction and sentence stood<\/p>\n
vitiated. The submission of the Counsel for the appellants, in<\/p>\n
this regard, does not appear to be incorrect. In the instant case,<\/p>\n
the contraband was recovered from the vehicle, and not from<\/p>\n
the body of Debo alias Chuchi, accused. As such, the question<\/p>\n
of her search by a lady police Constable, did not at all arise.<\/p>\n
Had the contraband been recovered from the person of Debo<\/p>\n
alias Chuchi, accused, non-compliance of the provisions of<\/p>\n
Section 50(4) of the Act, would have certainly, resulted into<\/p>\n
vitiation of conviction and sentence.    When the provisions of<\/p>\n
Section 50(4) of the Act, were not applicable to the facts of the<\/p>\n
instant case, the question of compliance therewith, by the<\/p>\n
Investigating Officer, at the time of search and seizure, did not<\/p>\n
at all arise. In this view of the matter, the submission of the<\/p>\n
Counsel for the appellants, being without merit, must fail, and<\/p>\n
the same stands rejected.\n<\/p>\n
             Crl.Appeal No.405-SB of 1999
\n                            7<\/span><\/p>\n
11.         It was next submitted by the Counsel for the<\/p>\n
appellants, that     the defence evidence, produced by the<\/p>\n
accused, was wrongly discarded by the trial Court. She further<\/p>\n
submitted that Debo alias Chuchi, accused, was present in the<\/p>\n
hospital for taking care of Naju Ram, her husband’s nephew, on<\/p>\n
the relevant day and she was arrested therefrom. She further<\/p>\n
submitted that     under these circumstances, how Debo alias<\/p>\n
Chuchi, accused, could be present, in the vehicle, where from<\/p>\n
eight   bags     containing   poppy    husk    were    allegedly<\/p>\n
recovered. The submission of the Counsel for the appellant, in<\/p>\n
this regard, does not appear to be correct. Dr. Satnam Singh<\/p>\n
Parmar of Gandhi Hospital, appeared in the witness box as<\/p>\n
DW2. He, in examination-in-chief, stated that Nanju son of<\/p>\n
Karma resident of Langroya, was admitted in hospital on<\/p>\n
15.07.1996, and was brought by Debo and Krishna. He was<\/p>\n
discharged on 07.08.1996. It was a case of acute pancreatits<\/p>\n
with pseudo cyst formation. He gave certificate Ex.DA. He<\/p>\n
further stated in examination-in-chief that Debo, accused, who<\/p>\n
was present in the Court, had got admitted Nanju, patient. He<\/p>\n
further stated that one of the relatives of Debo, told him that<\/p>\n
she was taken by the police from the hospital.         However,<\/p>\n
during the course of cross-examination, it was made clear by<\/p>\n
him that Smt. Leelo was one of the attendants of Nanju . He<\/p>\n
further stated that there was over writing in certificate Ex.DA .\n<\/p>\n
                Crl.Appeal No.405-SB of 1999
\n                               8<\/span><\/p>\n
He further stated that the cutting\/over writing was done by him.<\/p>\n
He further stated that the certificate Ex.DA was issued by him<\/p>\n
when Nanju was under treatment.      He further stated that the<\/p>\n
police never visited his hospital, in his presence. He further<\/p>\n
stated that he was only told by the relative of Debo that she<\/p>\n
was taken away by the police from the hospital.      He further<\/p>\n
stated that on 30.07.1996 the police did not visit the hospital,<\/p>\n
in his presence.    When Dr. Satnam Singh Parmar, DW-2, was<\/p>\n
not present on 30.07.1996, in his hospital, when Debo, was<\/p>\n
allegedly taken away by the police therefrom, then his evidence<\/p>\n
could be said to be hearsay. No reliance, therefore, could be<\/p>\n
placed on the evidence of Dr. Satnam Singh Parmar, that Debo<\/p>\n
was taken away from the hospital, by the police on 30.07.1996.<\/p>\n
Even certificate Ex.DA issued by him, bore the over-writing.<\/p>\n
The authenticity of this document, was, therefore, doubtful.<\/p>\n
Nanju, DW1, stated that the police took        away Debo on<\/p>\n
29.07.1996 forcibly from the hospital, where he was admitted.<\/p>\n
He stated, during the course of cross-examination that there<\/p>\n
were 3-4 patients in the hospital, when the police arrived. He<\/p>\n
further stated, during the course of cross-examination that he<\/p>\n
did not know the names of other two patients. He also stated<\/p>\n
that he did not move any written complaint, against the SHO,<\/p>\n
being an illiterate person. If such an act had been done by the<\/p>\n
police, then     he would have certainly moved a complaint,
\n              Crl.Appeal No.405-SB of 1999
\n                             9<\/span><\/p>\n
against the Police that she ( Debo ) had been falsely implicated.<\/p>\n
The evidence of Nanju, DW1, and Dr. Satnam Singh Parmar,<\/p>\n
therefore, did not go to prove that accused Debo, was taken<\/p>\n
away, from the hospital, on the night of           29.07.1996 or<\/p>\n
30.07.1996. The defence version, being an after thought, was<\/p>\n
rightly rejected by the trial Court. This Court, after re-appraisal<\/p>\n
of the evidence, produced by the accused, also comes to the<\/p>\n
same conclusion. There is no reason, to interfere with the<\/p>\n
findings of the trial Court that the defence evidence was<\/p>\n
unbelievable. In this view of the matter, the submission of the<\/p>\n
Counsel for the appellants, being without merit, must fail, and<\/p>\n
the same stands rejected.\n<\/p>\n
12.                No other point was urged, by the Counsel<\/p>\n
for the parties.\n<\/p>\n
13.                In view of the above discussion, it is held<\/p>\n
that the judgment of conviction and the order of sentence,<\/p>\n
rendered by the trial Court, are based, on the correct<\/p>\n
appreciation of evidence, and law, on the point. The same do<\/p>\n
not warrant any interference. The same are liable to be upheld.<\/p>\n
14.                For the reasons recorded, hereinbefore, the<\/p>\n
appeal is dismissed. The judgment of conviction and the order<\/p>\n
of sentence, dated 20.04.1999, are upheld. If the appellants are<\/p>\n
on bail, their bail bonds, shall stand cancelled. The Chief<\/p>\n
Judicial Magistrate, shall take necessary steps, in accordance
\n              Crl.Appeal No.405-SB of 1999
\n                             10<\/span><\/p>\n
with the provisions of law, to comply with the judgment, within<\/p>\n
two months, from the date of receipt of a certified copy of the<\/p>\n
same, keeping in view the applicability of the provisions of<\/p>\n
Section 428 of the Code of Criminal Procedure.<\/p>\n
19.09.2008                                 (SHAM SUNDER)\ndinesh                                         JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court 3- Mahavir Singh Son Of Sarwan … vs The State Of Punjab on 19 September, 2008 Crl.Appeal No.405-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.405-SB of 1999 Date of Decision :September 19, 2008 1- Dabo alias Chuchi wife of Sohan Lal, resident of village […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-130422","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\n3- Mahavir Singh Son Of Sarwan ... vs The State Of Punjab on 19 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/3-mahavir-singh-son-of-sarwan-vs-the-state-of-punjab-on-19-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"3- Mahavir Singh Son Of Sarwan ... vs The State Of Punjab on 19 September, 2008 - 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