Punjab-Haryana High Court
Ramesh Kumar Maingi vs Directorate Of Revenue Intelligence on 24 December, 2009
Author: Daya Chaudhary
Bench: Jasbir Singh, Daya Chaudhary
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.Appeal No. 347 DB of 2007
Date of decision: 24.12.2009
Ramesh Kumar Maingi
......Appellant
Vs.
Directorate of Revenue Intelligence, M-1/C Green Avenue,
Amritsar.
...Respondent
CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH.
HON'BLE MRS.JUSTICE DAYA CHAUDHARY.
PRESENT: Mr.S.S.Das, Advocate with
Mr.D.N.Ganeriwala,Advocate, for appellant.
Mr.D.D.Sharma, Advocate, for respondent.
****
DAYA CHAUDHARY, J.
1. The present appeal arises out of judgment of conviction and order of sentence dated 19.3.2007 passed by Judge, Special Court, Jalandhar, in Sessions Case No. 36 of 2006 vide which accused-appellant Ramesh Kumar Maingi has been convicted under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the Act") and sentenced to undergo RI for 12 years and to pay fine of Rs.2 lacs and in default of payment of fine, he has been directed to further undergo RI for one year.
2. A complaint was filed by the Directorate of Revenue Intelligence, Amritsar against Ramesh Kumar and Sham Sunder to the effect that a secret information was received on 19.6.2001 that both the accused were coming in a Maruti Zen car bearing registration No. PB-08-AE-0321 Crl.Appeal No. 347 DB of 2007 [2] with some contraband. On receiving information, Naka was organized at Paragpur Chungi and Maruti Zen car was apprehended at about 10.50 p.m. Accused Sham Sunder was driving the car and accused Ramesh Kumar Maingi was sitting along with the driver seat. A notice was given to both of the accused under Section 50 of the Act for getting their personal search as well as of their Maruti Zen car and luggage in the presence of a Magistrate or a Gazetted Officer. Both the accused were informed regarding presence of Shri B.S.Nanwal, Deputy Director, a gazetted officer of the department who reposed faith in him for conducting search in his presence. On search, some contraband was found in the false bottom of the suit case, kept in the Maruti Zen car. The said suit case was opened in the presence of both the accused and in presence of Directorate of Revenue Intelligence Officer and a brown coloured powder was recovered which was giving a sharp pungent smell and was suspected to be heroin. A small quantity of contraband was taken out of the bulk which was tested from U.N. field Drug test kit which gave positive result of being heroin. The contraband was weighed which was found to be 3.750 kgs. All the articles used in concealing the contraband in the suit case were seized and two mobile phones of Panasonic brand were recovered from the Maruti Zen car. The vehicle used for transportation was also seized. Two representative samples of 5 grams each were drawn and put in a press lock polythene packets which were marked as A and B. These packets were sealed with the seal of DRI and bearing the signatures of Directorate of Revenue Intelligence Officer. The remaining contraband was also put in Crl.Appeal No. 347 DB of 2007 [3] the bag which was wrapped and stitched in white cloth which was also sealed with the seal of DRI. Signature of Directorate of Revenue Intelligence Officer was put on the remaining quantity. Site plan of the place of interception was prepared and all the proceedings were completed, which were duly signed by both the accused. On completion of investigation, the complaint was filed in the Court.
3. On filing of complaint in the Court, copies of documents, as per provisions of Section 207 Cr.P.C relied by the prosecution, were supplied to the accused. A prima facie case under Section 21 of the Act was made out against both the accused and they were charged-sheeted thereunder, to which they pleaded not guilty and claimed trial.
4. The prosecution to prove its case examined Gurdev Chand Inspector Customs Malkhana, Amritsar PW1, Constable Sukhdev Singh PW2, Sanjay Sarpal, Intelligence Officer PW3. T.P.S.Sandhu Inspector Central Excise PW4 and L.S.Maroria, Intelligence Officer PW5.
5. Statements of accused under Section 313 Cr.P.C. were recorded wherein they denied the allegations and pleaded innocence and false implication. They examined Baaj Singh DW1, Rajiv Kumar DW2, Narinder Singh DW3, Swaran Singh DW4, Dr.Raj Kumar DW5, Hector John DW6, Gurmit Singh DW7 and Darshan Singh DW8 in their defence.
6. The trial Court acquitted accused Sham Sunder of the charge framed against him and convicted Ramesh Kumar Maingi appellant under Section 21 of the Act and sentenced for a period of 12 years with fine of Rs.2 lacs, who has filed the present appeal impugning the judgment of Crl.Appeal No. 347 DB of 2007 [4] conviction and order of sentence passed by the trial Court.
7. Mr. S.S.Das, the learned counsel for the accused-appellant, has argued that there was non -compliance of the provisions of Sections 41 and 42 of the Act by the trial Court as the search was conducted at 10.50 p.m. in the night which was admittedly after sun-set. Moreover, there was no authorization to conduct search of the accused and of his car. Section 42 of the Act has also not been complied as information regarding search was to be sent within 72 hours to the senior officers and no formalities were completed at the spot which were admittedly done in the office of the Directorate of Revenue Intelligence (DRI) and nothing was reduced into writing. It is a case of manipulation and fabrication of documents by the Investigating Officer to implicate the accused as all formalities were completed in the office of Directorate of Revenue Intelligence. The said recovery was made from the accused at a busy place and no independent witness was examined. The case property was not produced before the trial Court and nothing came in the evidence as what happened to the case property including the suit case. The suit case has not been exhibited in the trial Court. There are certain material contradictions and discrepancies in the statements of the prosecution witnesses, which are fatal to the case of the prosecution.
8. Mr.D.D.Sharma, learned counsel appearing for the respondent, argued that the prosecution has fully proved its case against the accused beyond any reasonable doubt. There are no discrepancies in the statements of the prosecution witnesses. The discrepancies pointed out by the learned Crl.Appeal No. 347 DB of 2007 [5] counsel for the accused-appellant are minor in nature which are bound to occur with the passage of time and the same are not fatal to the case of the prosecution. During the course of argument, it was also pointed out by the learned counsel for the respondent that while the appellant was undergoing treatment at Guru Nanak Dev Hospital at Amritsar, he in connivance with his security guards and officials of the hospital indulged in smuggling of heroin, thereby 500 grams of heroin was recovered and FIR No. 114 dated 27.5.2007 was registered against him under Section 21 of N.D.P.S. Act at Police Station Beas. Moreover, in the present case a huge quantity of heroin i.e. 3.470 kgs falling in the commercial quantity was recovered from the accused.
9. We have heard the arguments of learned counsel for the parties and also perused the evidence and other material available on record.
10. The argument of learned counsel for the accused-appellant is that secret information was not reduced into writing and the same was not sent to the immediate Senior Officer. In the present case, the complainant had examined Shri L.S.Maroria, Intelligence Officer from Delhi as PW5 who stated that he received secret information at Delhi and also prepared the written report dated 19.6.2001 proved on file as Ex.PW5/A which was immediately delivered to Shri Rajiv Talwar Deputy Director, Intelligence. Therefore, there is no substance in the argument of learned counsel for the accused-appellant. Although initially the secret information was received at Delhi and the same was reduced into writing and then it was sent to Crl.Appeal No. 347 DB of 2007 [6] Senior Officers. Accordingly, information was sent to the next higher Officer and there was no illegality in sending the report to the higher authority as it was sent to the senior Officer who was available in the office. Thereafter, the information was sent to the office at Amritsar and there was no necessity to record this information at Amritsar. Even in Amritsar, the information was received by the Senior Officer i.e. Deputy Director who further passed it to an Intelligent Officer directing him to hold a naka at Paragpur Chungi for the interception of Car in question. The Maruti car along with both the accused was intercepted at Paragpur Chungi. Therefore, the argument advanced by learned counsel for the accused-appellant has no substance that the information was not reduced into writing and the same was not sent to the Senior Officer.
11. The further argument of learned counsel for accused-appellant that no proceedings were conducted at the spot, no independent witness was joined and was examined by the complainant. Admittedly, the place of interception was Octroi Post G.T.Road, Jalandhar which is a public place and there is always a rush at that place and all the proceedings were conducted there only and as such the contention of the learned counsel has no merit. As far as the testimony of Rakesh and Ashok Kumar witnesses is concerned, both were given up by the counsel for the complainant as they were won over by the accused. Shri T.P.S.Sandhu, Intelligence Officer was examined by the counsel for the complainant who is seizure Officer as well as Shri Sanjay Sarpal, Intelligence Officer who is the marginal witness. Both these witnesses were cross-examined at length on several Crl.Appeal No. 347 DB of 2007 [7] dates. Their statements are consistent and there is no major discrepancy to shatter their credibility.
12. The further argument of learned counsel for accused-appellant that the case property was not produced in the Court which has caused a serious prejudice to the accused. Section 52 A of the Act deals with disposal of seized Narcotic Drugs and Psychotropic Substances. There is a clear provision regarding preparation of inventory which is to be certified by the Magistrate and Section 52 A(4) further makes it clear that this inventory is to be treated as Primary evidence. The inventory of goods seized was prepared by Shri T.P.S.Sandhu on 22.6.2001 which was signed by Inspector In-charge Malkhana Customs House, Amritsar. There is a specific order of Additional Chief Judicial Magistrate, Amritsar Ex.P3 vide which he had certified the inventory prepared by the seizing Officer. Therefore, non production of case property does not harm the complainant in any manner. Moreover, there is no delay in depositing the case property in Malkhana and in sending sample for chemical analysis. As per complainant version, the alleged recovery was effected on the intervening night of 19th/20th June, 2001. It has come in evidence that it remained with Central Excise Inspector on 20.6.2001 till 8.00 a.m. and accused were arrested on 20.6.2001 only i.e. within 24 hours. They were produced before the Illaqa Magistrate. It has also come in cross-examinations of Shri T.P.S.Sandhu PW4 and Shri Sanjay Sarpal PW3 that they returned back to Amritsar on 21.6.2001 at 5.00 p.m. and thereafter the case property was deposited in the Customs House, Amritsar on 22.6.2001. Gurdev Chand Crl.Appeal No. 347 DB of 2007 [8] Inspector PW1 has proved the entry regarding deposit of case property, which is Ex.P-1, and inventory was also prepared which was certified by Addl. Chief Judicial Magistrate, Amritsar and there was no question of tampering with the case property and the sample was also sent for the purpose of testing through Constable Sukhdev Singh PW2 on 24.6.2001 and it was deposited by him in the Laboratory at Delhi on 25.6.2001. Moreover, nothing has come on record to show that the seal of sample was tampered with.
13. In view of the above discussion, we are of the view that the accused appellant has been rightly held guilty by the trial Court as huge quantity of heroin i.e. 3.470 kgs was recovered from the suit case of Ramesh Kumar Maingi accused-appellant which cannot be a case of false plantation. The accused -appellant along with contraband was travelling in his Zen Car bearing registration No. PB-08-AE-0321. At the time of effecting recovery of contraband, the documents regarding ownership of car were also recovered. The invoice/bill of Lovely Autos in the name of Ramesh Kumar accused along with its temporary number and Insurance Policy Ex.P-14 in the name of accused-appellant Ramesh Kumar has proved the involvement of accused. The said Maruti Zen Car used for bringing the contraband from Delhi to Jalandhar was confiscated by the complainant party. The accused-appellant was also involved in case FIR No. 114 dated 27.5.2007 registered under Section 21 of N.D.P.S. Act at Police Station Beas for recovery of 500 grams of heroin from his possession which shows that he is a habitual offender. Crl.Appeal No. 347 DB of 2007 [9]
14. For the reasons recorded above, we do not find any legal infirmity in the judgment of conviction and order of sentence dated 19.3.2007 passed by the trial Court. The appeal being devoid of any merit is dismissed.
(DAYA CHAUDHARY) JUDGE (JASBIR SINGH ) JUDGE December 24, 2009 raghav