{"id":130774,"date":"2008-08-04T00:00:00","date_gmt":"2008-08-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/daler-singh-and-another-vs-state-of-punjab-on-4-august-2008"},"modified":"2017-11-08T22:56:33","modified_gmt":"2017-11-08T17:26:33","slug":"daler-singh-and-another-vs-state-of-punjab-on-4-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/daler-singh-and-another-vs-state-of-punjab-on-4-august-2008","title":{"rendered":"Daler Singh And Another vs State Of Punjab on 4 August, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Daler Singh And Another vs State Of Punjab on 4 August, 2008<\/div>\n
            Criminal Appeal No.157-SB of 1999.\n                      -1-\n\nIn the High Court of Punjab and Haryana at Chandigarh.\n\n                         Criminal Appeal No.157-SB of 1999.\n\n                         Date of decision:4-8-2008\n\nDaler Singh and another.\n\n                                                 ...Appellants.\n\n            Versus\n\nState of Punjab.\n\n                                                 ...Respondent.\n\n            ...\n\nCoram:      Hon'ble Mr. Justice K. C. Puri.\n\n            ...\n\nPresent:    Mr. L. S. Sidhu Advocate for the appellants.\n\n            Ms. Manjari Nehru, DAG Punjab.\n\n            ....\n\nK. C. Puri, J.\n<\/pre>\n
Judgment.\n<\/p>\n
            Under challenge in this appeal is the judgment and order<\/p>\n
dated 21.12.1998 whereby the appellants were convicted under Section<\/p>\n
15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in<\/p>\n
short NDPS Act) and sentenced to undergo rigorous imprisonment for<\/p>\n
ten years and to pay a fine of Rs.1,00,000\/- and in default of payment<\/p>\n
of fine, to undergo further rigorous imprisonment for six months.<\/p>\n
            The prosecution story, in brief, is that on 9.4.1996, a police
\n            Criminal Appeal No.157-SB of 1999.\n<\/p>\n
                     -2-<\/span><\/p>\n
party consisting of SI Faqir Fateh Singh and other police officials<\/p>\n
headed by SHO Rashpal Singh, under the supervision of DSP Mander<\/p>\n
Singh, was present at the turning of village Kirian, in the area of village<\/p>\n
Jauneke on the G.T. Road in connection with special Nakabandi and<\/p>\n
checking of vehicles. One truck bearing No.PB-09-0058 came from the<\/p>\n
side of Harike and it was stopped for checking. Accused Daler Singh<\/p>\n
was driving the said truck while accused Sarwan Singh was sitting on<\/p>\n
the bags placed on the marbles loaded in the said truck. On suspicion<\/p>\n
that the bags contained poppy husk, the DSP enquired from the<\/p>\n
accused, whether they wanted their truck to be searched in the presence<\/p>\n
of some Magistrate or Gazetted Officer. The accused reposed<\/p>\n
confidence in the DSP and then the SI conducted the search of the truck<\/p>\n
in the presence of the said DSP. The bags placed on the marbles were<\/p>\n
found having poppy husk. Out of each bag, 250 grams of poppy husk<\/p>\n
was separated as a sample and separate parcels were prepared. The<\/p>\n
remaining poppy husk, when weighed came to be 39 Kilograms and<\/p>\n
750 grams in each bag. The bags and the samples were sealed<\/p>\n
separately by the DSP with his own seal bearing impression ‘MS’. The<\/p>\n
samples and the case property alongwith the truck were taken into<\/p>\n
possession vide a recovery memo attested by the PWs. Ruqqa was sent<\/p>\n
to the Police Station on the basis of which formal FIR was registered.<\/p>\n
            After the completion of investigation and after the receipt<\/p>\n
of report of Chemical Examiner, challan was presented in the Court.\n<\/p>\n
             Criminal Appeal No.157-SB of 1999.\n<\/p>\n
                      -3-<\/span><\/p>\n
            The accused were charge-sheeted under Section 15 of the<\/p>\n
NDPS Act to which they pleaded not guilty and claimed trial.<\/p>\n
            In support of its case, the prosecution examined PW-1 SI<\/p>\n
Rashpal Singh, PW-2 HC Kuldip Raj, PW-3 Constable Gurmit Singh,<\/p>\n
PW-4 SI Faqir Fateh Singh and PW-5 DSP Mander Singh.<\/p>\n
            In their statements recorded under Section 313 Cr.P.C, the<\/p>\n
accused denied the prosecution allegations put to them and pleaded<\/p>\n
false implication. They, however, did not lead any evidence in defence.<\/p>\n
            After trial, both the accused were convicted and sentenced,<\/p>\n
as noticed earlier.\n<\/p>\n
            Feeling aggrieved with the said judgment, the accused have<\/p>\n
preferred the instant appeal.\n<\/p>\n
            Learned counsel for the appellants has submitted that link<\/p>\n
evidence is missing in the present case and the appellants are liable to<\/p>\n
be acquitted on that ground.\n<\/p>\n
            He has further submitted that the sample was drawn on<\/p>\n
9.4.1996 but the same has been sent for analysis on 23.4.1996. The<\/p>\n
delay in sending the sample has not been explained. It is further<\/p>\n
submitted that the case property remained in possession of Assistant<\/p>\n
Moharrir Head Constable whereas the Moharrir Head Constable has<\/p>\n
been produced and Assistant Moharrir Head Constable has not been<\/p>\n
examined.\n<\/p>\n
            It is further contended that the sample      was given to
\n               Criminal Appeal No.157-SB of 1999.\n<\/p>\n
                        -4-<\/span><\/p>\n
Constable Gurmeet Singh who handed over the same to Constable<\/p>\n
Gurbir Singh. So, in these circumstances, link evidence is missing.<\/p>\n
              It is further contended that the ownership of the truck has<\/p>\n
not been proved. The appellants are neither owners nor drivers nor<\/p>\n
cleaners of the truck. In these circumstances, conscious possession is<\/p>\n
not proved.\n<\/p>\n
              It is further that although the provisions of Section 50 of<\/p>\n
NDPS Act are not attracted but, according to the prosecution version, it<\/p>\n
has complied with the provisions of Section 50 of NDPS Act but that<\/p>\n
compliance is not sufficient. Composite consent statement for giving<\/p>\n
search was prepared. So, the appellants are liable to be acquitted for<\/p>\n
non compliance of Section 50 of NDPS Act.\n<\/p>\n
              It is further submitted that the appellants are illiterate<\/p>\n
persons and, according to the prosecution version, they have thumb<\/p>\n
marked the memos. The said memos are inadmissible in evidence, in<\/p>\n
view of Section 25 of the Indian Evidence Act.\n<\/p>\n
              It is further submitted that the place of recovery is not<\/p>\n
established. According to the prosecution version, the recovery was<\/p>\n
effected from the area of village Chirian whereas according to the other<\/p>\n
evidence, the recovery was made from the area of village Kirian.<\/p>\n
              It is further submitted that the prosecution story is doubtful.<\/p>\n
There are material discrepancies regarding the bringing of weights and<\/p>\n
measures. According to PW-1 Rashpal Singh, HC Rawal Singh brought
\n             Criminal Appeal No.157-SB of 1999.\n<\/p>\n
                      -5-<\/span><\/p>\n
the weights and scales on the Canter whereas according to PW-4 Faqir<\/p>\n
Fateh Singh, LC Inderpal brought the weights and scales from Harike<\/p>\n
on Rehra.\n<\/p>\n
            It is further submitted that there are discrepancies regarding<\/p>\n
time also. According to the PWs., Naka was held at 12.30 PM whereas<\/p>\n
recovery was effected 15 minutes thereafter but according to the ruqqa,<\/p>\n
recovery was effected at 2.30 PM. So, the prosecution story is doubtful.<\/p>\n
            It is further submitted that the seal of DSP after use was<\/p>\n
handed over to PW-4 SI Faqir Fateh Singh. So, there could be<\/p>\n
possibility of exchanging the seal for tampering with the case property.<\/p>\n
            It is further submitted that no independent witness was<\/p>\n
joined. Therefore, the prosecution story is doubtful.<\/p>\n
            The learned counsel for the appellants has further submitted<\/p>\n
that according to the FIR, secret information was received which was<\/p>\n
provided by Dara Singh son of Sajjan Singh, resident of Sabhra, Police<\/p>\n
Station Patti. The said person has not been examined. So, non-joining<\/p>\n
of independent witness assumes importance.\n<\/p>\n
            The learned Deputy Advocate General, Punjab, has<\/p>\n
supported the judgment of the trial Court.\n<\/p>\n
            I have considered the rival submissions made by both sides<\/p>\n
and have gone through the record of the case.\n<\/p>\n
            So far as the submission made by the counsel for the<\/p>\n
appellants that the joint consent statement recorded by the Investigating
\n             Criminal Appeal No.157-SB of 1999.\n<\/p>\n
                      -6-<\/span><\/p>\n
Officer is not legally admissible is concerned, that argument does not<\/p>\n
help the accused, in any manner.\n<\/p>\n
            The learned counsel for the appellants has himself admitted<\/p>\n
that compliance of Section 50 of NDPS Act is not required in case of<\/p>\n
recovery of contraband effected other than from personal search. In<\/p>\n
authority in case Narayanaswamy Ravishankar Versus Assistant<\/p>\n
Director, Directorate of Revenue Intelligence, 2003 Criminal Law<\/p>\n
Journal 27 (SC), it has been held that where recovery of contraband is<\/p>\n
from a suitcase carried by the accused, Section 50 of the NDPS Act is<\/p>\n
not attracted.\n<\/p>\n
            The submission made by the counsel for the appellants to<\/p>\n
the effect that since the process of Section 50 of NDPS Act was started,<\/p>\n
so on that count, it should have been complied with, is also without any<\/p>\n
force. When the law does not require compliance of Section 50 of<\/p>\n
NDPS Act, in that case, joint consent memo does not vitiate the trial.<\/p>\n
Authorities in cases Pal Singh Versus State of Haryana, 2000(1) All<\/p>\n
India Criminal Law Reporter 106, Jaswant Versus State of Haryana,<\/p>\n
1998(2) Recent Criminal Reports 384 (P&H), Paramjit Singh and<\/p>\n
another Versus State of Punjab, 1996(3) All India Criminal Law<\/p>\n
Reporter 729 and Abdul Rahiman Versus State of Kerala, 2002(3)<\/p>\n
Recent Criminal Reports 404 do not help the appellants as the facts are<\/p>\n
distinguishable from the instant case.\n<\/p>\n
            So far as the submission made by the counsel for the
\n            Criminal Appeal No.157-SB of 1999.\n<\/p>\n
                     -7-<\/span><\/p>\n
appellants to the effect that link evidence is missing is concerned, the<\/p>\n
same is also without any substance. Mere fact that the sample had been<\/p>\n
sent after a few days does not automatically leads to the conclusion that<\/p>\n
there was tampering with the sample. According to the report of<\/p>\n
Chemical Examiner, the seals on samples were found intact. So, mere<\/p>\n
sending the sample late does not create any dent in the prosecution<\/p>\n
version.\n<\/p>\n
            In authority in case Motia Bai Versus State of Haryana,<\/p>\n
2005(3) Recent Criminal Reports 56, it has been held that mere sending<\/p>\n
sample after a few days does not create any doubt in the prosecution<\/p>\n
case. In the said authority, the sample was sent after 20 days of<\/p>\n
recovery and there was no evidence of tampering with the sample.<\/p>\n
According to the report of the Forensic Science Laboratory, the seals<\/p>\n
were intact when the sample reached the Laboratory and conviction<\/p>\n
was up-held.\n<\/p>\n
            The submission made by the counsel for the appellants that<\/p>\n
only MHC has been examined and AMHC has not been examined and<\/p>\n
on that count, the link evidence is missing, also cannot be accepted.<\/p>\n
There was no necessity for the examination of AMHC as he simply<\/p>\n
assists the MHC. The MHC has been examined as a prosecution<\/p>\n
witness. So, it cannot be said that the link evidence is missing.<\/p>\n
            So far as the submission of counsel for the appellants that<\/p>\n
the sample seal was handed over to Constable Gurbir Singh but said
\n              Criminal Appeal No.157-SB of 1999.\n<\/p>\n
                       -8-<\/span><\/p>\n
Gurbir Singh has not been examined and on that count the prosecution<\/p>\n
case is doubtful is concerned, the same is without any substance. PW-2<\/p>\n
HC Kuldip Raj has stated that the sample was handed over to Constable<\/p>\n
Gurmit Singh which fact is clear from vernacular language. It is only<\/p>\n
on account of typographical mistake in the English version that the<\/p>\n
name of Gurbir Singh has been mentioned. So, the above said<\/p>\n
contention is merit-less.\n<\/p>\n
             So far as the submission of counsel for the appellants that<\/p>\n
the ownership of the vehicle has not been proved and on that count, the<\/p>\n
prosecution story is doubtful is concerned, the same is also without any<\/p>\n
substance.\n<\/p>\n
             There was no necessity to prove the ownership of the<\/p>\n
vehicle. The prosecution has been able to prove the recovery of such a<\/p>\n
huge quantity of contraband from the possession of the appellants<\/p>\n
which has been proved by PW-1 SI Rashpal Singh, PW-4 SI Faqir<\/p>\n
Feteh Singh and PW-5 DSP Mandar Singh. There was no reason for<\/p>\n
these witnesses to plant such a huge quantity of contraband on the<\/p>\n
accused.\n<\/p>\n
             Mere fact that the appellants are illiterate does not create<\/p>\n
any doubt in the prosecution version. Compliance of Section 50 of<\/p>\n
NDPS Act was not required and, on that count, joint consent memo of<\/p>\n
appellants does not vitiate the trial. So, the appellants cannot take the<\/p>\n
benefit of the same.\n<\/p>\n
             Criminal Appeal No.157-SB of 1999.\n<\/p>\n
                      -9-<\/span><\/p>\n
            So far as submission made by the counsel for the appellants<\/p>\n
that the place of recovery has not been established is concerned, the<\/p>\n
same is without any substance. Villages Chirian and Kirian are the<\/p>\n
names of one village and village Chirian was also known as Kirian. It<\/p>\n
is only on account of pronunciation that the difference in spellings of<\/p>\n
villages Chirian and Kirian has been mentioned. So, no importance can<\/p>\n
be given to the aforesaid submission.\n<\/p>\n
            The submission of learned counsel for the appellants that in<\/p>\n
the site plan, the place of recovery is different is totally incorrect.<\/p>\n
            Minor discrepancies regarding bringing the weights and<\/p>\n
scales and time as argued by the counsel for the appellants do not<\/p>\n
create any dent in the prosecution version. Minor discrepancies are<\/p>\n
bound to occur in the testimony of truthful witnesses, due to passage of<\/p>\n
time.\n<\/p>\n
            Mere fact that seal after use has been handed over to SI<\/p>\n
Faqir Fateh Singh does not create any dent in the prosecution version.<\/p>\n
Since there was no independent witnesses, so the seal could not be<\/p>\n
handed over to any independent witness.\n<\/p>\n
            So far as the submission of learned counsel for the<\/p>\n
appellants that no independent witness was joined and on that count,<\/p>\n
the prosecution story is doubtful is concerned, the same is also without<\/p>\n
any substance. It is a case of chance recovery and as such there was no<\/p>\n
occasion for the police party to join any independent witness. Mandar
\n            Criminal Appeal No.157-SB of 1999.\n<\/p>\n
                     -10-<\/span><\/p>\n
Singh, DSP, Gazetted Officer has supported the prosecution version.<\/p>\n
No Gazetted Officer will support false version unless there are some<\/p>\n
compelling circumstances for the same.\n<\/p>\n
           So far as the submission made by the counsel for the<\/p>\n
appellants that the case is based upon secret information of Dara Singh<\/p>\n
son of Sajjan Singh, resident of Sabhra, Police Station Patti and he has<\/p>\n
not been examined is concerned, it is to be noticed that it is not the<\/p>\n
prosecution case that the recovery was effected on the basis of secret<\/p>\n
information. So, there was no occasion to examine Dara Singh.<\/p>\n
Moreover, the appellants have not cross-examined any witness on this<\/p>\n
aspect.\n<\/p>\n
           No other point has been urged before me.\n<\/p>\n
           In view of the above discussion, the appeal is without any<\/p>\n
merit and the same stands dismissed.\n<\/p>\n
           The accused are on bail. Their bail bonds stand cancelled.<\/p>\n
They be taken into custody to undergo the remaining part of<\/p>\n
imprisonment awarded by the learned trial Court.<\/p>\n
           A copy of this judgment be sent to the trial Court for strict<\/p>\n
compliance.<\/p>\n
\n\nAugust 4th ,2008.                       ( K. C. Puri )\nJaggi                                          Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Daler Singh And Another vs State Of Punjab on 4 August, 2008 Criminal Appeal No.157-SB of 1999. -1- 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. […]<\/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-130774","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nDaler Singh And Another vs State Of Punjab on 4 August, 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\/daler-singh-and-another-vs-state-of-punjab-on-4-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Daler Singh And Another vs State Of Punjab on 4 August, 2008 - 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