Punjab-Haryana High Court
Jasbir Singh Alias Shaka vs State Of Punjab on 2 May, 1996
Equivalent citations: 1997CRILJ565
Author: K.S. Kumaran
Bench: K.S. Kumaran
ORDER Harphul Singh Brar, J.
1. This is an appeal against the judgment order dated 15-4-1994 of the learned Additional Sessions Judge, Sirsa vide which he convicted Jasbir Singh appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after called the N.D.P.S. Act) and sentenced him to undergo rigorous imprisonment for 14 years and to pay a fine of Rs. one lac. In default of payment of fine, further rigorous imprisonment for 2 years was imposed.
2. Briefly stated, the alleged facts are that on 21 -3-1992, in the area of village Patli Dabar, Inder Singh and Jasbir Singh alias Shaka accused were found in possession of 6,400 Kgs. of poppy straw contained in 160 bags without any permit or licence. On the same day, S.I. Amrik Singh, S.H.O. Police Station, Ding PW 8 intercepted a truck bearing No. GJ-08T-4040 near Ding Barrier at about 10 p.m. Inder Singh accused was the driver on the said truck whereas the other accused Jasbir Singh alias Shaka was a cleaner. On seeking the police party which included Head Constable Hukam Chand PW 6 and A.S.I. Med Singh, the accused Inder Singh ran away taking advantage of darkness whereas the accused Jasbir Singh was apprehended, S.I. Amrik Singh then sent a V.T. message to the D.S.P. Headquarter and on receipt of the same, Mr. Yogender Nehra, D.S.P. (PW 7) reached there.
3. Mr. Yogender Nehra, D.S.P. searched the truck, as S.I. Amrik Singh suspected some narcotic substance in the same. 160 bags of poppy straw were recovered from the truck and each of the bags contained 40 kgs. of poppy straw. Out of these bags, 100 gms. of poppy straw was separated from each as sample. The samples and the residues were then separately sealed with the seals of 'YN' and the seal after use was banded over to S.I. Amrik Singh whereas the case property was taken into custody vide memo Ex. PE. Builty (consignment note) Ex. PF was also recovered from the said truck arid this consignment was in the name of Dhira Bai and according to the same, the goods were in the shape of 180 bags of soap stone powder weighing 30 quintals and driver on the said truck was Inder Singh. This consignment note was also taken into custody vide memo Ex. PF/I.
4. Ruqa Ex. P was sent from the spot by D.S.P. Yogender Nehra for registration of a case through Constable Ranbir Singh over which formal F.I.R. No. 30 dated 21-3-1992 was recorded by PW 1 A.S.I. Kartar Singh at Police Station Ding under Sections 15 and 16 of the N.D.P.S. Act, a copy of which is Ex. PA/1. On return to the Police Station, the lock-up and the case property was deposited duly intact with the M.H.C. Hawa Singh PW 4.
5. M.H.C. Hawa Singh handed over samples of the case property to Constable Joginder Singh PW 5 on 31-3-1992 for being delivered at Forensic Science Laboratory, Madhuban and the said constable delivered the same in the Laboratory duly intact on 1 -4-1992. Report dated 16-3-1993 Ex. PI was received from the F.S.L. to the effect that the samples were of poppy straw. On 31-7-1992, A.S.I, Ram Niwas PW 3 verified that the consignment note Ex-PB was a fake one.
6. On 25-12-1992, the accused Inder Singh was arrested by S.I. Vijay Kumar PW 2 and then on 24-3-1992, after completion of the investigation, challan was submitted by him Under Section 173 of the Code of Criminal Procedure. The accused were charged Under Section 15 of the N.D.P.S. Act by the learned Additional Sessions Judge, Sirsa. The accused did not plead guilty and claimed trial and ultimately, as stated above, Inder Singh was acquitted and Jasbir Singh alias Shakka was convicted and sentenced.
7. In support of its case, the prosecution examined A.S.I. Kartar Singh as PW 1, S.I. Vijay Kumar as PW 2, A.S.I. Ram Niwas as PW 3, M.H.O. Hawa Singh as PW 4, Constable Joginder Singh as PW 5, H. C. Hukam Chand as PW 6, Yogender Nehra D.S.P. as PW 7 and S. I. Amrik Singh as PW 8.
8. After the closure of the prosecution evidence, the accused were examined Under Section 313 Cr. P.C. to explain the circumstances appearing against them in the prosecution case. The accused Inder Singh took the stand that he was not the driver on the truck and that he had been falsely implicated in the case. The accused Jasbir Singh took the stand that perchance, he was present near the place where the truck in question was intercepted and that he had been falsely implicated in the case on suspicion by the police party.
9. The accused were called to enter upon their defence but they did not wish to lead any evidence.
10. Learned counsel for the appellant has contended that the judgment of the learned Additional Sessions Judge is liable to be quashed on the following grounds:-
(i) That the mandatory provisions of Sections 50, 55 and 57 of the N.D.P.S. Act have not been complied with.
(ii) That no independent witness has been joined by the prosecution. The conviction of the accused merely on the basis of the tainted testimony of the police witnesses is not safe.
11. We do not intend to go into the other arguments raised by the learned counsel which points towards the acquittal of accused. We have perused the record of the case with the help of the counsel for both the parties and have heard them also. We feel that the judgment/order of the learned Additional Sessions Judge is liable to beset aside on the ground of non-compliance of the mandatory provisions of Section 50 of the N.D.P.S. Act, the relevant portion of which is reproduced as under for facility of reference:-
50. Conditions under which search of persons shall be conducted.- (I) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to "the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (I).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
12. It has come in the evidence of H.C. Hukam Chand PW 6 who deposed at the trial that on 21-3-92, he was posted in Police Station Ding and on that date, he was present at Ding Mor along with S.I./ S.H.O. Amrik Singh. A truck bearing No. GJ-08T-4040 came from the side of Fatehabad. The same was intercepted by the police party headed by S.I./ S.H.O. Amrik Singh. There were two occupants in the said truck. Suspecting some narcotic substance in the truck, S.I. Amrik Singh called the D.S.P. by sending a wireless message and Yogender Nehra, D.S.P. arrived there at about 7-30 p.m. In the presence of the D.S.P., Poppy-straw was recovered.
13. PW 8 Amrik Singh S.I./S.H.O. aforesaid has stated at the trial that he had sent a VT message to D.S.P., Headquarters and on the basis of the same, Yogender Nehra, D.S.P. PW 7 came there. The D.S.P. made enquiry from the accused Jasbir Singh and then on his request, he checked the truck and recovered from the same 160 bags of poppy - straw.
14. Admittedly, the recovery of poppy straw from the accused is not chance recovery. PW 7 Yogender Nehra D.S.P., who effected the recovery of poppy straw from the convict-appellant has stated at the trial which reads as under:-
I received information on my wireless set that S.I./S.H.O. Amrik Singh had intercepted a truck No. G.J-08/4040 near Ding Maur. I went there and at about 7.30 p.m. I found that the truck had been intercepted by the police party headed by SI/SHO Amrik Singh. One Jasbir Singh accused present in the Court was also apprehended by SI/SHO Amrik Singh. As the SI/SHO Amrik Singh suspected some narcotic substance in the truck so I entered in the truck and found that the same was loaded with 160 bags of poppy-straw. The same were brought down and were found containing 40 kgs. of poppy-straw each.
15. In this view of the factual position that the mandatory provisions of Section 50 of the N.D.P.S. Act have not been complied with by the prosecution, conviction of the appellant Under Section 15 of the N.D.P.S. Act cannot be sustained. Consequently, judgment dated 15-4-1994 of the learned Additional Sessions Judge, Sirsa is quashed and the appellant is acquitted of all the charges framed against him. This appeal is allowed.