Punjab-Haryana High Court
Amarjit Singh vs State Of Punjab on 25 February, 2011
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No. 652-SB of 2008 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Date of decision: 25.2.2011
(I) Crl.Appeal No.652-SB of 2008
Amarjit Singh
... Appellant
versus
State of Punjab
... Respondent
(II) Crl.Appeal No.957-SB of 2008
Inderjit Singh and another
... Appellants
versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Ms.Divya Sharma, Amicus Curiae, &
Mr.S.K.Bawa, Advocate,
for the appellants
Mr.P.S.Grewal, AAG, Punjab.
...
JORA SINGH, J.
Crl.Appeal No.652-SB of 2008 was preferred by Amarjit Singh and Crl. Appeal No.957-SB of 2008 was preferred by Inderjit Singh and Kamal to challenge the judgment of conviction and order of sentence dated 27.3.2008 passed by Judge, Special Court, Nawanshahr, in Sessions Case No.127 of 2004, arising out of FIR No.121 dated 25.6.2004, PS, Balachaur, under Sections 15 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, `the Act').
By the said judgment, Inderjit Singh and Kamal were convicted Crl.Appeal No. 652-SB of 2008 2 under Section 15 of the Act and Amarjit Singh was convicted under Section 25 of the Act. Inderjit Singh and Kamal were sentenced to undergo RI for 10 years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for 6 months each under Section 15 of the Act, whereas Amarjit Singh was sentenced to undergo RI for 10 years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for 6 months under Section 25 of the Act.
Prosecution story, in brief, is that on 25.6.2004, police party headed by Inspector/ SHO Naresh Kumar, was holding nakabandi on GT Road at Police Post Asron, as per the instructions of DSP, Balachaur, and SSP, Nawanshahr, in connection with checking of suspected persons and vehicles, then received secret information to the effect that a Canter bearing registration No. HR-58-2871 was coming from the side of Ropar and was being driven by Inderjit Singh son of Balbir Singh. Kamal son of Mohan Singh was sitting by the side of the driver. Bags containing poppy husk covered with a tarpaulin were loaded in the canter and in case vehicle is stopped and checked, then heavy quantity of poppy husk could be recovered. Presuming the information to be credible, ruqa was sent to the police station, on the basis of which, formal FIR was recorded. In the meantime, Jasbir Singh son of Mohinder Singh came and he was joined as independent witness. DSP, Balachaur, was contacted on wireless and requested to reach at the spot. Within few minutes, DSP, Balachaur, came at the spot. After some time, Canter No. HR-58-2871 came from the side of Ropar and was signalled to stop. Shavinderjit Singh, DSP, Balachaur, disclosed his identity as Gazetted Officer and DSP, Balachaur, to the driver of the vehicle. On enquiry, driver of the vehicle disclosed his name as Crl.Appeal No. 652-SB of 2008 3 Inderjit Singh. Second person sitting by the side of the driver disclosed his name as Kamal. DSP disclosed to the accused that he was suspecting some intoxicant in the bags loaded in the canter and are to be searched. Offer was given to the accused separately as to whether they wanted search of the vehicle before him or any other Gazetted Officer or a Magistrate. Both the accused reposed faith in the DSP. Consent memos of both the accused were prepared separately signed by him and attested by the witnesses. After that, as per direction of the DSP, Inspector Naresh Kumar had searched the canter. 65 bags were found loaded in the canter. Bags were unloaded and the same were found to be containing poppy husk. 250 grams was separated from each bag to serve as sample and remaining poppy husk in each bag on weighment was found to be 29.750 kgs. 65 samples and the remaining poppy husk in 65 bags were sealed separately by the IO with his own seal bearing impression `NK'. Seal impression of the seal used was prepared separately. Seal after its use was handed over to ASI Rajiv Kumar. Case property was taken into police possession vide separate memo attested by the witnesses. Canter along with RC, driving licence and insurance cover was also taken into police possession vide separate memo attested by the witnesses. Accused were arrested. Statements of witnesses were recorded. Rough site plan with correct marginal notes was prepared. On personal search of the accused, Rs.10,000/- was recovered from Inderjit Singh, whereas Rs.4,000/- from Kamal. Recovered currency notes were also taken into police possession vide separate memos attested by the witnesses. On return to the police station, case property was deposited with the MHC. Sealed sample parcels were sent to the office of Chemical Examiner and as per report of the Chemical Examiner, contents of the sample parcels were Crl.Appeal No. 652-SB of 2008 4 found to be poppy husk. After completion of investigation, challan was presented in Court.
During trial, Amarjit Singh, owner of Canter No.HR-58-2871, was arrested on 25.6.2004 and was released on bail as per order of Hon'ble High Court.
Accused Inderjit Singh and Kamal were charged under Section 15 of the Act and accused Amarjit Singh under Section 25 of the Act, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW1 Constable Balwinder Singh and HC Surinder Kumar tendered their affidavits, Ex.PA and Ex.PB, respectively.
PW3 ASI Yogesh Kumar on receipt of ruqa, had recorded formal FIR (Ex.PC).
PW4 DSP Shavinderjit Singh stated that on receipt of wireless message from PP, Asron, he had gone to the spot, where police party headed by Inspector Naresh Kumar was holding nakabandi. Jasbir Singh, independent witness was with the party. At about 10.30 PM, Canter No.HR-58-2871 was noticed while coming from Ropar side and was signalled to stop. One person was sitting by the side of driver. On seeing the police party, they tried to run away from the spot, but they were apprehended. Person driving the vehicle disclosed his name as Inderjit Singh and the second person sitting by the side of the driver disclosed his name as Kamal. He had disclosed his identity as Gazetted Officer and DSP, Balachaur. He suspected some intoxicant in the bags loaded in the vehicle. Offer was given to the accused separately as to whether they wanted search Crl.Appeal No. 652-SB of 2008 5 of the vehicle before him or any other Gazetted Officer or a Magistrate. Both the accused reposed faith in him. Consent memos of both the accused were prepared separately signed by him and attested by the witnesses. IO was directed to search the bags loaded in the canter. 65 bags were found loaded in the canter. Bags were found to be containing poppy husk. 250 grams was separated from each bag to serve as sample and remaining poppy husk in each bag on weighment was found to be 29.750 kgs. 65 samples and the remaining poppy husk in 65 bags were sealed separately by the IO with his own seal bearing impression `NK'. Seal impression of the seal used was prepared separately. Case property was taken into police possession vide separate memo attested by the witnesses. Canter along with other documents was also taken into police possession vide separate memo attested by the witnesses.
PW5 Prithvi Raj, Clerk, DTO Office, Yamuna Nagar, as per record stated that Vehicle No.HR-58-2871 was initially registered on 4.9.2002 in the name of Hem Raj and later on, vehicle was transferred in the name of Manoj Kumar.
PW6 HC Satnam Singh stated that on 25.6.2004, MHC Surinder Kumar was on leave. He was Incharge of the Malkhana. On that day, case property along with sample parcels was deposited with him by Inspector Naresh Kumar. On the next day, case property was withdrawn from the Malkhana and was handed over to Inspector Naresh Kumar for production before the Ilaqa Magistrate. After production of case property in the Court, again case property was re-deposited with him. On 1.7.2004, he had handed over case property to HC Surinder Kumar, MHC.
PW7 SI Raunki Dass had partly investigated the case in hand. Crl.Appeal No. 652-SB of 2008 6 He arrested Amarjit Singh, owner of Canter No. HR-58-2871.
PW8 ASI Rajiv Kumar is one of the recovery witnesses. He has supported the version of IO.
PW9 Inspector Naresh Kumar is the Investigating Officer. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent.
Defence version of Inderjit Singh was that no recovery was effected from him. Case is false.
Defence version of Kamal was that no recovery was effected from him. In fact, he had taken a lift in the vehicle in question from Ropar to reach Balachaur. He was not aware of the goods and consignment being carried in the vehicle.
Defence version of Amarjit Singh was that he is innocent. He was falsely implicated in the present case. Truck in question was taken to Delhi by his driver Inderjit Singh by saying that he has consignment to be delivered in Delhi. Inderjit Singh was not authorised to carry any contraband or illegal item in the truck.
Opportunity was given to lead evidence but no defence was led.
After hearing learned PP for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on file.
Learned defence counsel for appellants Inderjit Singh and Crl.Appeal No. 652-SB of 2008 7 Kamal argued that according to the story, independent witness was with the party but seal after its use was not handed over to the independent witness. Case property was sealed by the seal of IO. Seal of DSP was not used to seal the case property. No entry in the log book maintained by the driver of the vehicle used by the DSP to reach at the place of occurrence. So, presence of DSP at the time of recovery is doubtful. Argued that on personal search of the appellants, currency notes were recovered. Firstly, bags were unloaded from the canter and then, offer was given under Section 50 of the Act. So, offer under Section 50 of the Act after unloading the bags from the canter is not valid one. Independent witness was with the police party but he was not examined for the reasons best known to the prosecution. Seal after its use was not handed over to the independent witness. So, presence of independent witness was also doubtful. Recovery was effected on 25.6.2004, whereas sample parcels were deposited in the office of Chemical Examiner on 8.7.2004. Delay of 12 days in depositing the sample parcel in the laboratory is fatal. Possibility of tampering with the case property cannot be ruled out. Appellants were not the owner of the vehicle. Kamal had taken lift in the canter while coming from the side of Ropar to visit Balachaur. Appellants were not in conscious possession of poppy husk alleged to be recovered from the gunny bags.
Learned defence counsel for appellant Amarjit Singh argued that Amarjit Singh had no concern with the vehicle in question. . As per PW5 Prithvi Raj, initially vehicle was registered in the name of Hem Raj. After that, vehicle in question was registered in the name of Manoj Kumar. No document on the file that vehicle was registered in the name of Amarjit Singh. Amarjit Singh did not allow the driver to transport poppy husk in Crl.Appeal No. 652-SB of 2008 8 the canter. Amarjit Singh is liable for punishment if knowingly he allowed the driver to transport poppy husk in the canter.
Learned State counsel argued that police party while holding nakabandi, then received secret information that Inderjit Singh and Kamal were transporting poppy husk in Canter No.HR-58-2871 coming from the side of Ropar. As per secret information, ruqa was sent to the police station. Independent witness was joined but he was not examined as won over by the appellants. DSP, Balachaur, was also requested to visit the place of occurrence. When DSP, Balachaur, was at the spot, then canter in question was sighted while coming from the side of Ropar and was signalled to stop. Inderjit Singh was driving the canter, whereas Kamal was sitting by the side of Inderjit Singh. Both were arrested. Police party suspected some intoxicant in the bags loaded in the vehicle. Section 50 of the Act is not applicable but despite that, offer was given to the appellants separately as to whether they wanted search of the vehicle before Gazetted Officer, i.e., DSP, Balachaur, or any other Gazetted Officer or a Magistrate. Both the accused reposed faith in the DSP. As per direction of the DSP, bags were searched by the IO and on checking, same were found to be containing poppy husk. As per report of the laboratory, contents of sample parcels were found to be poppy husk. In case, case property is sealed with the seal of IO only, then presence of witnesses is not to be doubted. No evidence on the file that there was no entry in the log book regarding visit of the DSP. When DSP appeared as witness, then appellants could easily request the Court to defer cross-examination with direction to the State to bring log book, but no such request. Recovery was from the vehicle. Section 50 of the Act was not applicable. Delay in depositing the sample Crl.Appeal No. 652-SB of 2008 9 parcel in the laboratory is not fatal because on the next day, case property was produced in Court. As per report of the laboratory, seals were found intact and tallying with the seal impression. Independent witness was not examined as won over by the appellants. If there was no recovery, then independent witness could easily be produced in defence. If seal after its use was not handed over to independent witness, then on this short ground story is not to be ignored. On the one hand, allegation of Amarjit Singh is that he was not the owner of the vehicle in question but when examined under Section 313 Cr.P.C., then stated that Inderjit Singh was employed as driver. He had gone towards Delhi side to hand over consignment. Vehicle is on superdari with Amarjit Singh. If Amarjit Singh was not the owner of the vehicle, then there was no idea to apply for getting the vehicle on superdari and get the same insured.
According to the story, 65 bags containing poppy husk were recovered from Canter No. HR-58-2871 driven by Inderjit Singh, owned by Amarjit Singh. Kamal was also in the canter at the time of recovery, whereas defence version is that Kamal had taken a lift in the vehicle while coming from the side of Ropar to reach Balachaur. Owner of the vehicle did not allow Inderjit Singh to transport intoxicant in the canter. Now question is whether recovery was effected as per story or defence version seems to be more probable.
First submission of learned defence counsel for the appellants was that presence of DSP at the time of recovery is doubtful because seal of DSP was not used to seal the case property. Secondly, DSP failed to bring log book to show that on the date of recovery, he had visited the place of occurrence but after going through the evidence on the file, I am of the Crl.Appeal No. 652-SB of 2008 10 opinion that submission of learned defence counsel for the appellants seems to be not correct one. Police party headed by Inspector Naresh Kumar was holding nakabandi on the GT Road, then received secret information that Canter No. HR-58-2871 was coming from the side of Ropar driven by Inderjit Singh and in that canter, poppy husk was being transported. As per secret information, ruqa was sent to the police station, on the basis of which, formal FIR was recorded. Wireless message was sent to DSP, Balachaur, requesting him to reach at the spot. Before the arrival of DSP, independent witness was joined in the police party. After arrival of DSP, canter was sighted while coming from the side of Ropar and was signalled to stop. On seeing the police party, occupants of the vehicle tried to run away from the spot but they were apprehended. On enquiry, driver disclosed his name as Inderjit Singh and second person sitting by the side of the driver, disclosed his name as Kamal. DSP had disclosed his identity as Gazetted Officer and DSP, Balachaur. DSP disclosed to the accused that he was suspecting some intoxicant in the bags loaded in the canter. Offer was given to the accused separately as to whether they wanted search of the vehicle before him or any other Gazetted Officer or a Magistrate. Both the accused reposed faith in the DSP. Consent memos of both the accused were prepared separately signed by him and attested by the witnesses. After that, as per direction of the DSP, Inspector Naresh Kumar had searched the canter. 65 bags were found loaded in the canter. Bags were unloaded and the same were found to be containing poppy husk. 250 grams was separated from each bag to serve as sample and remaining poppy husk in each bag on weighment was found to be 29.750 kgs. 65 samples and the remaining poppy husk in 65 bags were sealed separately by the IO with his own seal Crl.Appeal No. 652-SB of 2008 11 bearing impression `NK'. Admittedly, seal of DSP was not used to seal the case property but if case property was sealed with the seal of IO only and seal of DSP was not used, then on this short ground, story is not to be ignored. When DSP appeared as witness, then appellants could easily request the Court to defer cross-examination with direction to the State to bring log book. Presence of DSP cannot be doubted simply on the ground that his seal was not used to seal the case property.
Second submission of learned defence counsel for the appellants was that there is violation of Section 50 of the Act. Section 50 of the Act is mandatory. Appellants were searched and on their personal search, currency notes were recovered. Firstly, bags were unloaded from the canter and then offer was given to the appellants as to whether they wanted the bags to be searched before a Magistrate or any Gazetted Officer. Recovery is from the bags. When recovery is from the bags, then Section 50 of the Act is not applicable. Section 50 of the Act is applicable when recovery is from the person of the appellants. 65 bags were not recovered on the personal search of the appellants. Only currency notes were recovered on the personal search of the appellants. Offer was given separately to the appellants as to whether they wanted the bags to be searched before a Magistrate or any Gazetted Officer. Before personal search of the appellants, if no offer under Section 50 of the Act, then on this short ground, story is not to be ignored. Offer can be oral or in writing. When IO suspected some intoxicant in the bags carried on the vehicle, then accused were to be apprised of their valuable right as to whether they wanted the bags to be searched before a Magistrate or a Gazetted Officer. Then it is for the accused to see as to whether they wanted the bags to be Crl.Appeal No. 652-SB of 2008 12 searched before a Magistrate or a Gazetted Officer. In the present case, Gazetted Officer was already present at the spot. He had disclosed his identity as Gazetted Officer and DSP, Balachaur. Offer was given to the appellants as to whether they wanted the bags to be searched before him or a Magistrate or any other Gazetted Offer. So, offer under Section 50 of the Act was rightly given and was valid.
Next submission of learned defence counsel for the appellants was that there is a delay of 12 days in depositing the sample parcels in the laboratory. Delay is fatal. So, possibility of tampering with the case property cannot be ruled out. But submission of learned defence counsel for the appellants seems to be not correct one. On 25.6.2004 at about 10.30/11.00 PM when police party was holding nakabandi, then in the presence of Gazetted Officer, Canter No.HR-058-2871 was sighted while coming from the side of Ropar and was signalled to stop and on search of the canter, 65 bags were found loaded in the canter. Bags were containing poppy husk. Case property was sealed by the IO with his own seal bearing impression `NK'. On return to the police station, case property was deposited with HC Satnam Singh because on that day, regular MHC was on leave. On the next day, case property was withdrawn from malkhana by the IO for production in the Court. After production of case property in Court on 26.6.2004, again case property was redeposited with HC Satnam Singh. Seals were found to be intact. After the arrival of regular MHC on 1.7.2004, case property was handed over to HC Surinder Kumar (PW2). Ex.PB is the affidavit of HC Surinder Kumar. On 25.6.2004, he was on leave and on 1.7.2004, he had received case property from HC Satnam Singh (PW6). On 8.7.2004, sample parcels were handed over to Constable Crl.Appeal No. 652-SB of 2008 13 Balwinder Singh (PW1) for depositing in the laboratory.
Constable Balwinder Singh appeared as PW1 and tendered his affidavit (Ex.PA). As per affidavit (Ex.PA), on 8.7.2004, he had received sample parcel from MHC Surinder Kumar and had deposited the same in the office of Chemical Examiner. Report of laboratory is to the effect that seals were found to be intact and tallying with the seal impressions. No doubt, there was a delay of 12 days in depositing the sample parcel in the laboratory but prosecution has led cogent and convincing evidence that case property was not tampered with.
Next submission of learned defence counsel for the appellants was that case property was sealed with the seal of IO but seal was not handed over to the independent witness. Independent witness was not examined. So, story is not genuine one. But submission of learned defence counsel for the appellants is without any force. No doubt, independent witness was with the party but seal after its use was not handed over to him. Independent witness was not examined as won over by the appellants. Independent witness failed to appear in defence. In case, seal after its use was not handed over to the independent witness, then on this short ground, story is not to be ignored.
In 2009(4) RAJ 330, Balbir Kaur vs. State of Punjab, independent witness was with the party but he was given up as won over and accused examined him in defence. Then Hon'ble Supreme Court held that it cannot be said that the search and recovery are in any manner vitiated.
Next submission of learned defence counsel for the appellants was that appellants were not in conscious possession of poppy husk Crl.Appeal No. 652-SB of 2008 14 recovered from the bags. No specific question was put to the appellants when examined under Section 313 Cr.P.C. That they were in conscious possession of intoxicant but after going through the evidence on the file, I am of the opinion that submission of learned defence counsel for the appellants is without any force. Recovery of poppy husk is very much clear in view of the statements of DSP, IO and one of the recovery witness. Once recovery of contraband from the possession of the accused is established, then the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. In 2009(2) RCR (Crl.) 762, State of Punjab vs. Ram Pal, Hon'ble Supreme Court opined that the word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. Possession need not be physical possession but can be constructive, having power and control over the article.
In 2003(4) RCR (Crl.) 319, Megh Singh vs. State of Punjab, accused was found sitting on the gunny bags. Then held that accused was in conscious possession. Conviction was upheld.
In the presence case also, Inderjit Singh was the driver of the vehicle in question. No question was put to the witnesses that he was not the driver of the vehicle. Defence version of Kamal was that he had taken a lift while going from the side of Ropar to Balachaur. No question to any witness by Kamal that Inderjit Singh was not the driver and gunny bags were not loaded in the vehicle. Inderjit Singh and Kamal were arrested at the spot. Only question was whether they were apprehended with the contraband.
Case of Amarjit Singh was that he was not the owner of the Crl.Appeal No. 652-SB of 2008 15 vehicle as per statement of Prithvi Raj (PW5), but when examined under Section 313 Cr.P.C., then stated that Inderjit Singh was employed as driver. Inderjit Singh had reported him that he was going towards Delhi to deliver certain goods. Vehicle recovered is on superdari with Amarjit Singh. Vehicle was got insured by Amarjit Singh. If Amarjit Singh was not the owner of the vehicle, then there was no idea to get the vehicle insured and move an application for release of the vehicle on superdari. No documentary proof on the file that certain goods were loaded from such and such place for delivery at Delhi. According to story, there was a secret information that Canter No.HR-58-2871 was coming from the side of Ropar and poppy husk was loaded in the said vehicle. Canter was sighted while coming from the side of Ropar and was signalled to stop. On search of the vehicle, 65 bags of poppy husk were recovered. Evidence on the file is that Amarjit Singh allowed the driver and cleaner to collect payment by selling narcotic. When contraband is recovered from the vehicle driven by the driver, then it is very easy for the owner to state that without his knowledge, contraband was being transported by the driver. No question was put to the witnesses that owner of the vehicle had no knowledge about the contraband transported in the vehicle. Secondly, driver was not permitted to transport contraband. Defence version of Amarjit Singh was that vehicle was taken to Delhi by his driver Inderjit Singh by saying that he has consignment to be delivered in Delhi. Inderjit Singh was never authorised to carry contraband or any other illegal item but no oral or documentary evidence on the file. On the one hand, case of Amarjit Singh is that he is not the owner of the vehicle, on the other hand, when he was examined under Section 313 Cr.P.C., then stated that driver was not allowed to carry any contraband in Crl.Appeal No. 652-SB of 2008 16 the vehicle. Vehicle in question was on superdari with Amarjit Singh. Vehicle was also got insured by him. That means, version of Amarjit Singh is not correct one.
In view of all discussed above, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is upheld.
For the reasons recorded above, both the appeals, i.e., Crl. appeal No. 652-SB of 2008 and Crl. Appreal No.957-SB of 2008 without merit are dismissed.
25.2.2011 ( JORA SINGH ) pk JUDGE