{"id":51186,"date":"2009-11-04T00:00:00","date_gmt":"2009-11-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gulzar-singh-vs-state-of-punjab-on-4-november-2009"},"modified":"2015-12-27T00:28:55","modified_gmt":"2015-12-26T18:58:55","slug":"gulzar-singh-vs-state-of-punjab-on-4-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gulzar-singh-vs-state-of-punjab-on-4-november-2009","title":{"rendered":"Gulzar Singh vs State Of Punjab on 4 November, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Gulzar Singh vs State Of Punjab on 4 November, 2009<\/div>\n
                        Crl. Appeal No. 1390-SB of 2004                   1\n\n\n\n\nIN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.\n\n\n                         Case No. : Crl. Appeal No. 1390-SB of 2004\n                         Date of Decision : November 04, 2009\n\n\n             Gulzar Singh                         ....   Appellant\n                                 Vs.\n             State of Punjab                      ....   Respondent<\/pre>\n
CORAM : HON’BLE MR. JUSTICE L. N. MITTAL<\/p>\n
                         *   *   *<\/p>\n
Present :   Mr. K. S. Dhaliwal, Advocate
\n            with Mr. Baljinder Singh, Advocate
\n            for the appellant.\n<\/p>\n
            Mr. Gaurav Garg Dhuriwala, AAG, Punjab.\n<\/p>\n
                         *   *   *<\/p>\n
L. N. MITTAL, J. (Oral) :\n<\/p>\n
            By preferring this appeal, Gulzar Singh has assailed his
\nconviction and sentence ordered by learned Judge, Special Court, Patiala,
\nvide judgment and order dated 21.04.2004. The appellant stands convicted
\nunder Section 15 of the Narcotic Drugs and Psychotropic Substances Act,
\n1985 (in short – the Act) in FIR No.260 dated 06.10.1997, registered at
\nPolice Station Samana, District Patiala and has been sentenced to undergo
\nrigorous imprisonment for ten years and to pay fine of Rs.1,00,000\/- and in
\ndefault of payment of fine, to undergo further rigorous imprisonment for six
\nmonths. Mehal Singh and Balkar Singh, who were also tried along with the
\nappellant Gulzar Singh, have however been acquitted by the trial Judge.\n<\/p>\n
                          Crl. Appeal No. 1390-SB of 2004                   2<\/span><\/p>\n
            Prosecution case, in nut-shell, is as under :-\n<\/p>\n
            On 06.10.1997, police party headed by Inspector Devinder
\nSingh – Incharge CIA Staff, Samana and comprised of ASI Mohinder Singh
\nand other police officials, was present at Sehajpura Chowk, Samana in
\ngovernment vehicle (TATA 407) driven by Constable Nathu Ram, for crime
\ndetection. ASI Bir Singh and two other police officials of Police Station
\nSamana joined the aforesaid party. Meanwhile, Didar Singh Sarpanch of
\nVillage Acharal Khurd also came there. A little while thereafter, secret
\ninformation was received that Gulzar Singh appellant, Mehal Singh and
\nBalkar Singh were shifting poppy husk to the dera of Gulzar Singh and on
\nraid, poppy husk in large quantity could be recovered. On this information,
\nRuqa (Ex.P-M) was sent to Police Station Samana, where on its basis, FIR
\nEx.P-M\/1 was recorded.        The police party along with Didar Singh
\nproceeded to the dera of Gulzar Singh. Intimation was also sent to Pritpal
\nSingh Thind – Deputy Superintendent of Police (DSP), Samana, who also
\nreached the spot. All the three accused were found digging a pit in the field
\nof Gulzar Singh to conceal poppy husk. Accused Balkar Singh and Mehal
\nSingh fled away, whereas Gulzar Singh appellant was apprehended at the
\nspot. Vide Memo Ex.P-C, Gulzar Singh agreed to search being conducted
\nin the presence of DSP Pritpal Singh Thind. There were lying 15 jute bags
\nat the spot in the field of Gulzar Singh. On search, the bags were found to
\ncontain poppy husk. All the bags were emptied to make heap of poppy
\nhusk. After mixing the same, sample of poppy husk weighing 250 grams
\nwas drawn and sealed into parcel. Remaining poppy husk was put in the
\nsame 15 bags. Poppy husk in each bag weighed 35 kilograms. The sample
\nparcel and the bags were sealed with seal bearing impression `PPS’ of DSP
\nPritpal Singh Thind. Chit of specimen seal impression was also prepared.
\nCase property was seized by the police vide memo Ex.P-D.                 On
\ninterrogation, the appellant made disclosure statement Ex.P-E that he had
\nconcealed five bags of poppy husk in his paddy field and could get the same
\n                           Crl. Appeal No. 1390-SB of 2004                 3<\/span><\/p>\n
recovered and nobody else was aware of it.          Pursuant to disclosure
\nstatement, the appellant got recovered five bags of poppy husk.       Same
\nprocedure was repeated. Sample of poppy husk weighing 250 grams was
\nseized from the heap of poppy husk of these five bags. Remaining poppy
\nhusk was put in the same bags. Poppy husk in each bag weighed 35
\nkilograms. The sample and the bags were sealed with same seal impression
\nand were seized vide memo Ex.P-F.           Separate chit of specimen seal
\nimpression was also prepared. Seal after use was retained by Inspector
\nDevinder Singh. All the aforesaid documents were attested by Sarpanch
\nDidar Singh, ASI Mohinder Singh, ASI Bir Singh and DSP Pritpal Singh
\nThind. Statements of witnesses were recorded. Rough site plan Ex.P-N
\ndepicting both the places of recovery was prepared. Gulzar Singh appellant
\nwas arrested. On reaching Police Station, case property was deposited with
\nMHC Gurdev Singh. On the next day, case property was produced before
\nSub Divisional Judicial Magistrate, Samana along with application Ex.P-O.
\nLearned Magistrate, after checking the case property with seals intact,
\nhimself signed the sample parcels and returned the case property for being
\ndeposited in Malkhana, which was accordingly deposited.\n<\/p>\n
              On 09.10.1997, Balkar Singh and Mehal Singh were arrested,
\non being produced by Labh Singh and Gian Singh respectively. Mehal
\nSingh, after making disclosure statement (Ex.P-H), got recovered one bag of
\npoppy husk.\n<\/p>\n
              On completion of investigation, Samana police presented report
\nunder Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.)
\nfor prosecution of all the three accused.\n<\/p>\n
              Charge under Section 15 of the Act was framed against all the
\nthree accused. They pleaded not guilty and claimed trial.\n<\/p>\n
              To prove its case, the prosecution examined five witnesses.
\nConstable Raghbir Singh (PW-1) and MHC Gurdev Singh (PW-2) being
\nformal witnesses, tendered their respective affidavits Ex.P-A and Ex.P-B to
\n                          Crl. Appeal No. 1390-SB of 2004                  4<\/span><\/p>\n
prove that the case property was not tampered with. DSP Pritpal Singh
\nThind (PW-3), Inspector Devinder Singh (PW-4) and ASI Mohinder Singh
\n(PW-5) broadly stated according to the prosecution version about recovery
\nof contraband poppy husk from the accused. Reports of Chemical Examiner
\nEx.P-R, Ex.P-S and Ex.P-T were also tendered in evidence to prove that the
\nsamples were of poppy husk. PW Didar Singh was given up as won over by
\nthe accused . Other witnesses were given up as unnecessary.\n<\/p>\n
             Accused in their statements under Section 313 Cr.P.C. denied
\nall the incriminating circumstances appearing against them in the
\nprosecution evidence and claimed to be innocent. Appellant Gulzar Singh
\nalleged that he is resident of Village Dhanori and has Ration Card, Voter
\nIdentity Card and land in that village. He was picked up by the police from
\nthere in the presence of Sarpanch Gurdeep Singh and other respectables.\n<\/p>\n
             In defence, the accused examined two witnesses. Gurdeep
\nSingh Sarpanch (DW-1) broadly supported the version pleaded by the
\nappellant. Head Constable Dharam Pal (DW-2) proved entries Ex.D-3 and
\nEx.D-4 of Register No.19 i.e. Malkhana Register.       Copy of Jamabandi
\nEx.D-1 and copy of Voter Identity Card Ex.D-2 were also tendered in
\nevidence.\n<\/p>\n
             Learned   trial   Judge,   vide   impugned   judgment     dated
\n21.04.2004, convicted Gulzar Singh under Section 15 of the Act, but
\nacquitted Mehal Singh and Balkar Singh. Vide order of even date, the trial
\nJudge sentenced the appellant as already noticed in the opening part of this
\njudgment. Feeling aggrieved, Gulzar Singh has preferred this appeal.\n<\/p>\n
             I have heard learned counsel for the parties and perused the
\ncase file.\n<\/p>\n
             Huge quantity of contraband poppy husk has been recovered in
\nthe case. The appellant was apprehended at the spot. All the prosecution
\nwitnesses have broadly supported the prosecution case. There is no reason
\nwhy the police would implicate the appellant in a false case by planting
\n                           Crl. Appeal No. 1390-SB of 2004                      5<\/span><\/p>\n
such huge quantity of poppy husk. Even the appellant in his statement
\nunder Section 313 Cr.P.C., or in cross-examination of prosecution
\nwitnesses, has not stated or suggested any reason for his false implication.
\nStatements of prosecution witnesses inspire confidence. Material witnesses
\nDSP Pritpal Singh Thind (PW-3), Inspector Devinder Singh (PW-4) and
\nASI Mohinder Singh (PW-5) were subjected to very lengthy and searching
\ncross-examination, but they have stood the test of cross-examination. The
\nprosecution evidence is thus sufficient to prove the guilt of the appellant.\n<\/p>\n
             Learned counsel for the appellant contended that according to
\nInspector Devinder Singh (PW-4), they first went to the dera of the
\nappellant and then to the field, from where 15 bags of poppy husk were
\nrecovered, but perusal of site plan Ex.P-N reveals that the only way to dera
\nwas from near the place of said recovery and the police party would not
\nhave, therefore, gone to the dera and would have stopped at the place of
\nalleged recovery on way to dera. The contention cannot be accepted being
\ndevoid of any substance. No question was put to Inspector Devinder Singh
\nor any other prosecution witness in cross-examination that the only way to
\nthe dera of the appellant was from near the place of aforesaid recovery, nor
\nthe witnesses were put any question as to why they did not stop at the place
\nof recovery on way to the dera of the appellant. In this view of the matter,
\nthe aforesaid contention raised by learned counsel for the appellant is
\nuntenable. On the other hand, learned State counsel pointed out that secret
\ninformation was to the effect that poppy husk was being shifted to the dera
\nof the appellant and for this reason, the police party went to the dera of the
\nappellant and on learning from there that the appellant was in the field, the
\npolice party went to the field. Consequently, it cannot be said that there was
\nany unnatural conduct of the police party in firstly going to the dera of the
\nappellant and then going to the field, from where the recovery was effected
\nand there is no discrepancy in the prosecution case on this account.\n<\/p>\n
             Learned counsel for the appellant next argued that there is no
\n                          Crl. Appeal No. 1390-SB of 2004                   6<\/span><\/p>\n
evidence to depict that the appellant was owner or in possession of the land,
\nfrom where recovery was effected and consequently, appellant could not be
\nsaid to be in conscious possession of the contraband poppy husk.          To
\nstrengthen this argument, it was contended that no statement of owner of the
\nland or of Patwari was recorded to the effect that the field, from where 15
\nbags of poppy husk were recovered, was on lease with the appellant, as
\nalleged by the prosecution, nor any revenue record has been produced in
\nevidence to establish this fact.        The contention, although apparently
\nattractive, cannot be accepted. The appellant was digging a pit in the field.
\nFifteen bags of poppy husk were lying there. Appellant’s two companions,
\nwho were present with him at the spot, fled away on arrival of the police
\nparty, but the police was successful in apprehending the appellant at the
\nspot. There is statement of Inspector Devinder Singh (PW-4) that the field,
\nfrom which 15 bags of poppy husk were recovered, was on lease with the
\nappellant. There is no rebuttal of this evidence.   Moreover, the appellant,
\nafter making disclosure statement, got recovered another five bags of poppy
\nhusk from the nearby filed.     It would show that the appellant was in
\npossession of the fields, from which both recoveries were effected. Conduct
\nof the appellant and his companions would also show that they were in
\nconscious possession of the contraband poppy husk. The appellant has also
\nnot explained his presence at the spot. As already noticed herein above,
\nthere is also no reason why the police party would pick up the appellant
\nfrom another Village Dhanori and would plant the poppy husk on him.\n<\/p>\n
            Learned counsel for the appellant next contended that DSP
\nPritpal Singh Thind was not Gazetted Officer, as conceded by him. The
\nwitness has stated that he was ad hoc DSP and his pay was of the rank of
\nInspector, which was his substantive rank and no gazette notification had
\nbeen issued in his name. However, this contention has no bearing on the
\nmerits of the instant case because presence of a Gazetted Officer was not
\nrequired by any provision of the Act.\n<\/p>\n
                           Crl. Appeal No. 1390-SB of 2004                     7<\/span><\/p>\n
             Learned counsel for the appellant contended that Section 42 of
\nthe Act has not been complied with, as secret information, which was
\nreduced into writing in the form of Ruqa Ex.P-M sent to Police Station for
\nregistration of the case, was not sent to superior superior officer, as required
\nby mandatory provision of Section 42 (2) of the Act. This contention is also
\nbereft of any merit. Firstly, Section 42 of the Act is not applicable to the
\ninstant case. Section 42 of the Act applies where any search and seizure is
\ncarried out in any building, conveyance or enclosed place. In the instant
\ncase, however, search and seizure was carried out in open field and
\ntherefore, Section 42 of the Act is not applicable to the instant case.
\nLearned counsel for the appellant submitted that the police party first went
\nto the dera of the appellant, which is a building and therefore, Section 42 of
\nthe Act is applicable. This contention is also unsustainable because no
\nsearch or seizure was carried out at the dera. The search and seizure was
\ncarried out in open field and Section 42 of the Act is, therefore, not
\napplicable. Moreover, copy of the FIR, registered on the basis of secret
\ninformation reduced into writing in the form of Ruqa Ex.P-M, was sent to
\nIllaqa Magistrate and superior police officers. Copy of FIR Ex.P-M\/1
\nreached Sub Divisional Judicial Magistrate, Samana on 07.10.1997 at 10:05
\nA.M. i.e. within less than 24 hours of the recording of secret information,
\nwhereas Section 42 allows a period of 72 days for sending the information
\nto the superior officer. Thus, Section 42 of the Act was also complied with
\nin the instant case.\n<\/p>\n
             Learned counsel for the appellant also argued that disclosure
\nstatement Ex.P-E , pursuant to which         five bags of poppy husk were
\nallegedly recovered, has not been signed by the appellant.           However,
\nlearned counsel for the appellant was unable to refer to any provision of law
\nor precedent requiring that disclosure statement has to be signed by the
\naccused making the same. Consequently, non-signing of the disclosure
\nstatement by the appellant has no adverse bearing on the prosecution case.\n<\/p>\n
                         Crl. Appeal No. 1390-SB of 2004                   8<\/span><\/p>\n
            Learned counsel for the appellant pointed out that DSP Pritpal
\nSingh Thind stated that the appellant had signed the disclosure statement,
\nbut he was confronted with disclosure statement Ex.P-E, which has not been
\nsigned by the appellant. It was also pointed out that Inspector Devinder
\nSingh (PW-4) stated that he produced the case property before Illaqa
\nMagistrate at Samana on 07.10.1997 by making request Ex.P-O and learned
\nMagistrate passed order Ex.P-O\/1 on the said application, but order Ex.P-
\nO\/1 reveals that the case property was produced by ASI Mohinder Singh
\nand not by Inspector Devinder Singh. However, on the basis of these two
\nminor discrepancies, which do not go to the root of the case, prosecution
\ncase cannot be doubted and the prosecution evidence, which is otherwise
\nreliable, cannot be discarded. Order Ex.P-O\/1 passed by learned Illaqa
\nMagistrate reveals that the case property was actually produced before
\nIllaqa Magistrate, who found the seals intact and also signed the sample
\nparcels. It therefore becomes immaterial as to whether case property was
\nproduced before Illaqa Magistrate by Inspector Devinder Singh or by ASI
\nMohinder Singh. Moreover, some contradictions are bound to occur even in
\nthe statements of most truthful witnesses with passage of time. Parrot like
\nstatements without any contradiction would be prone to suspicion being
\nartificial ones. In the instant case, statement of DSP Pritpal Singh Thind
\n(PW-3) was recorded on 23.10.2001 and 04.04.2003 and statement of
\nInspector Devinder Singh (PW-4) was recorded on 04.04.2003 and
\n22.07.2003. Thus, first part of statement of DSP Pritpal Singh Thind was
\nrecorded more than four years after the recovery and second part of his
\nstatement was recorded 5\u00bd years after the recovery. Similarly, first part of
\nstatement of Inspector Devinder Singh was recorded 5\u00bd years after the
\nrecovery and second part of his statement was recorded after another three
\nmonths. Due to lapse of such long period also, some minor contradictions
\nwere bound to occur in their statements. The said contradictions do not go
\nto the root or substratum of the case and do not shake the foundation of the
\n                           Crl. Appeal No. 1390-SB of 2004                  9<\/span><\/p>\n
prosecution case in any manner. Such minor contradictions cannot be given
\nundue importance.\n<\/p>\n
              Learned counsel for the appellant also submitted that five bags
\nof poppy husk were allegedly recovered from a place near the dera, where
\nthe police had gone in the first instance, and therefore, the said recovery
\nallegedly at the instance of the appellant by making disclosure statement is
\ndoubtful.     This submission also cannot be accepted.      Paddy crop was
\nstanding in the field and therefore, from outside the dera, bags of poppy
\nhusk lying in the field at some distance, could not have been visible. The
\nrecovery was got effected by the appellant by making disclosure statement
\nincluding the statement that nobody else was aware of the said poppy husk.
\nThe fact that the said recovery was effected from an open field also would
\nnot show that the appellant was not in possession of the said contraband
\npoppy husk because poppy husk had been concealed there by the appellant
\nin the standing paddy crop and nobody else except the appellant was aware
\nof it. The place of said recovery being at a small distance from the dera of
\nthe appellant, anybody else could not have concealed five bags of poppy
\nhusk there.\n<\/p>\n
              Learned counsel for the appellant also argued that Didar Singh
\nindependent witness has not been examined by the prosecution. However,
\nthe said witness had to be given up because he had been won over by the
\nappellant. It is not uncommon that independent witnesses in such cases do
\nnot support the prosecution case because they have no personal interest in
\nthe case. On the other hand, by deposing against the accused, independent
\nwitnesses apprehend incurring wrath and enmity of the accused. Moreover,
\nthere is no reason to discard or disbelieve the statements of DSP Pritpal
\nSingh Thind, Inspector Devinder Singh and ASI Mohinder Singh. They had
\nno animus against the appellant to implicate him in a false case. Their
\nstatements cannot be disbelieved or doubted merely because of their official
\nuniform, particularly because there is no allegation of any malice or hostile
\n                          Crl. Appeal No. 1390-SB of 2004                   10<\/span><\/p>\n
attitude on their part towards the appellant. The fact that seal after use was
\nnot given to independent witness Didar Singh would also not adversely
\neffect the prosecution case in any manner. There is no requirement of any
\nlaw or precedent that seal after use should always be handed over to
\nindependent witness only.\n<\/p>\n
            Learned counsel for the appellant also argued that the appellant
\nowns land in Village Dhanori, as revealed by copy of Jamabandi Ex.D-1
\nand is also listed as voter in the said village, as depicted by Voter Identity
\nCard ExD-2 and as also stated by Gurdeep Singh (DW-1). This contention
\ndoes not help the appellant in any manner. Copy of Jamabandi Ex.D-1 is
\nfor the year 2000-01 i.e. 3-4 years after the recovery, whereas Voter Identity
\nCard Ex.D-2 is dated 23.08.2003 i.e. almost six years after the recovery.
\nSo, these documents do not depict that even on the date of recovery i.e. on
\n06.10.1997, the appellant was resident of Village Dhanori. Oral statement
\nof Gurdeep Singh (DW-1) would not be sufficient to give a finding to this
\neffect. Moreover, even if the appellant was resident of Village Dhanori, it
\nwould not mean that he could not be in possession of land in another
\nvillage.\n<\/p>\n
            For the reasons recorded herein above, I find that prosecution
\nhas successfully proved the guilt of the appellant beyond reasonable doubt.
\nAcquittal of appellant’s co-accused Mehal Singh and Balkar Singh has no
\nbearing on the prosecution case against the appellant because the appellant
\nis not on parity with Mehal Singh and Balkar Singh. The appellant was
\ncaught at the spot, whereas Mehal Singh and Balkar Singh had allegedly
\nescaped from the spot. Head Constable Ajaib Singh, who was in the police
\nparty, had allegedly identified the two escaping persons as Mehal Singh and
\nBalkar Singh, but Head Constable Ajaib Singh was not examined as witness
\nand therefore, there was practically no evidence on record to prove that the
\ntwo persons, who had escaped from the spot, were Mehal Singh and Balkar
\nSingh. Consequently, acquittal of Mehal Singh and Balkar Singh does not
\n                          Crl. Appeal No. 1390-SB of 2004                    11<\/span><\/p>\n
adversely effect the prosecution case against the appellant. Conviction of
\nthe appellant is well founded and is accordingly upheld. Sentence imposed
\non the appellant also does not warrant reduction because only minimum
\nsentence provided for the offence has been imposed on the appellant. There
\nis, therefore, no merit in the instant appeal, which is accordingly dismissed.\n<\/p>\n
             The appellant, if on bail, shall surrender to his bail bonds or
\nshall be arrested to undergo the remainder of his sentence.\n<\/p>\n
November 04, 2009                                   ( L. N. MITTAL )\nmonika                                                     JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Gulzar Singh vs State Of Punjab on 4 November, 2009 Crl. Appeal No. 1390-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 1390-SB of 2004 Date of Decision : November 04, 2009 Gulzar Singh …. Appellant Vs. State of Punjab …. […]<\/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-51186","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nGulzar Singh vs State Of Punjab on 4 November, 2009 - 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\/gulzar-singh-vs-state-of-punjab-on-4-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gulzar Singh vs State Of Punjab on 4 November, 2009 - 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