Punjab-Haryana High Court
Kushal Kumar vs State Of Punjab on 15 March, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl. Appeal No.14-SB of 2002 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No. 14-SB of 2002
Date of Decision: 15 - 3 - 2010
Kushal Kumar .....Appellant
v.
State of Punjab .....Respondent
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Ms.G.K.Mann, Advocate
for the appellant.
Mr.J.S.Bhullar, AAG, Punjab.
***
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
The present appeal has been preferred by Kushal Kumar son of Jagan Nath. He was tried by the Court of Special Judge, Gurdaspur and was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.One lac under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as, `the Act'). In default of payment of fine, he was to undergo further rigorous imprisonment for six months.
In the present case, recovery of One Kg. of Charas was effected. The appellant was tried along with one Ganesh Kumar who was acquitted by the trial Court. Criminal proceedings were initiated against the Crl. Appeal No.14-SB of 2002 [2] appellant in case FIR No.48 dated 15.3.2000 registered at Police Station Division No.1, Pathankot under Section 20 of the Act.
FIR Ex.PC/1 was registered on the basis of a ruqa Ex.PC sent by ASI Dev Dutt, Incharge CIA Staff, Pathankot, wherein it was stated that ASI Dev Dutt PW3 along with his companion police officials was present at Sible Chowk, Pathankot in connection with patrol duty, when a special informant gave information that a Maruti car bearing registration No.HP-46- 0006 colour green metallic driven by the appellant was coming from Chamba (Himachal Pradesh) to Pathankot. On the front seat, Ganesh Kumar was also sitting along with the appellant. It was stated that the accused having a V.I.P. number of the car were doing the business of transporting the Charas for the last about 7-8 months. In case a search is conducted, heavy recovery of Charas can be effected. Ruqa was sent for registration of the case and the Investigating Officer proceeded to the spot. A consent memo Ex.PD was recorded at the spot. The consent memo stated that appellant Kushal Kumar and his co-accused Ganesh Kumar were given an offer to get themselves searched before a Gazetted Officer of the Police, a Magistrate or any other Civil Officer. The accused gave the consent that they wanted to get themselves searched in the presence of a Gazetted Officer of the Police. One Kg. Of Charas was recovered from their possession. A sample of 10 grams was prepared. Thereafter, rest of the contraband's recovery memo Ex.PE was prepared by ASI Dev Dutt in the presence of DSP Charan Dass and the same was attested by ASI Tarsem Lal and HC Rajinder Parshad. A perusal of the recovery memo Ex.PE shows that recovery was effected from inner side of the jacket worn by the appellant. The above said FIR was investigated. Report under Section 173 Crl. Appeal No.14-SB of 2002 [3] Cr.P.C. was submitted.
The Court of Additional Sessions Judge, Gurdaspur on 12.7.2000 charged the appellant for the recovery of One Kg. of Charas. The charge stated that on 15.3.2000 at 4.30 P.M. in the area of bye-pass Pathankot, the appellant along with his co-accused was found in possession of One Kg. of Charas. The appellant pleaded not guilty and claimed trial.
Prosecution examined HC Subhash Chander as PW1. This witness stated that on 15.3.2000, he was posted as Moharrir Head Constable in CIA Staff, Pathankot. On that day, ASI Devi Dutt PW3 deposited with him one sample parcel containing 10 grams of Charas sealed with the seals of `CD' and `DD' along with the sample seal. On 27.3.2000, the said sample parcel was sent through Constable Ved Parkash to the Chemical Examiner, Jalandhar. Constable Ved Parkash after depositing the same with the Chemical Examiner, handed over the receipt to him on 28.3.2000.
Constable Ved Parkash PW2 tendered in evidence his affidavit Ex.PA.
ASI Dev Dutt appeared as PW3. He stated that he had received a secret information, on the basis of which he sent ruqa Ex.PC. On the basis of ruqa Ex.PC, formal FIR Ex.PC/1 was recorded. This witness stated that a message was sent to DSP Charan Dass who arrived at the spot. An offer was made to join the independent witnesses but none joined. After arrival of DSP Charan Dass, a Maruti car came from Dalhousie road which was signaled to stop and then on personal search of the accused Charas was recovered. The personal search of the accused was carried in the presence of DSP Charan Dass. He proved preparation of consent memo Ex.PD, preparation of the sample, recovery of the case property, the jacket Ex.P1 Crl. Appeal No.14-SB of 2002 [4] from which Charas was recovered and wrapper cloth Ex.P3. In cross- examination, this witness stated that accused was apprehended at 5.30 P.M. DSP Charan Dass reached at the spot at 5.15 P.M. He had not searched the car before the arrival of DSP Charan Dass.
Charan Dass, DSP appeared as PW4. He proved recovery of the Charas from the appellant.
Tarsem Lal ASI who was a member of the police party appeared as PW5 and corroborated the testimony of ASI Dev Dutt PW3.
The Public Prosecutor tendered in evidence report of the Chemical Examiner Ex.PH and closed the prosecution evidence.
Thereafter, statements of the accused were recorded under Section 313 Cr.P.C. and all incriminating circumstances put to them were denied. No witness was examined in defence.
Ms.G.K.Mann, counsel appearing for the appellant has urged that it has come in evidence that before arrival of the accused, Deputy Superintendent of Police was called at the spot. She has submitted that it has come in the evidence of ASI Dev Dutt PW3 that DSP Charan Dass arrived at the spot at 5.15 P.M. and the search was conducted at 5.30 P.M. Ms.Mann has submitted that consent memo Ex.PD was not attested by DSP Charan Dass PW4. According to the counsel when the senior officer was present at the spot, the offer of search ought to have been given by the senior officer. In the consent memo, it was not disclosed that Gazetted Officer was present at the spot. Therefore, according to the counsel, there was a breach of Section 50 of the Act. It is further contended that a perusal of consent memo Ex.PD reveals that a joint offer was made to both the accused, namely, appellant Kushal Kumar and Ganesh Kumar. They were Crl. Appeal No.14-SB of 2002 [5] not informed about their right to get themselves searched in the presence of a Gazetted Officer or a Magistrate. It is contended that both the accused may have exercised the option independently. In support of this contention, learned counsel has relied upon a Single Bench judgment of this Court in Pal Singh v. State of Haryana, 1999(4) R.C.R. (Criminal) 664. Para 7 of the judgment reads as under:-
"7. The submission which was raised by Shri Gorakh Nath, learned counsel appearing on behalf of the appellant is that in this case joint statement has been given to the appellants under Section 50 of the N.D.P.S. Act. So much so, their joint statement has been recorded under Section 50 of the N.D.P.S. Act which is not permissible under law. In support of his contention, learned counsel appearing on behalf of the appellant has drawn my attention to the notice Ex.PF and the joint statement Ex.PF/1 which was recorded by the Investigating Officer. There is merit in the contention raised by the learned counsel for the appellant. It has been held in 1998 (2) RCR 384, Jaswant Singh v. State of Haryana that seizure of poppy husk has been effected from two persons. Offer of search before Gazetted Officer or Magistrate was given to them jointly and not individually, such an offer is not valid under section 50 of the Act. Hon'ble Lordship further held that offer must be given to each accused individually. In 1997(1) RCR 293, Paramjit Singh v. State of Punjab, another Bench of this Court held that option to be searched before Gazetted Officer or Magistrate has to be given to each accused individually and not Crl. Appeal No.14-SB of 2002 [6] jointly. Assuming for the sake of arguments that the Investigating Officer could give joint notice to each of the appellants as to whether they wanted to give search in the presence of a Gazetted Officer or Magistrate, is taken as legal still in view of this court statement of the accused must be recorded separately. Each one of the accused has his own right to say that he wanted to give search in the presence of a Gazetted Officer or Magistrate. In the present case, Investigating Officer has committed a patent illegality when he recorded joint reply Ex.PF/1 of both the appellants. It has been held by this Court in 1999(2) RCR 449, Neema Ram v. State of Punjab that joint statement of the accused is not permissible and Section 50 in such circumstances will not be deemed to have been complied with. The Court held that it cannot be believed that all the accused unanimously and with one voice and at the same time will make statement before the Investigating Officer that they wanted to give search in the presence of a Gazetted Officer. Resultantly, I hold that joint consent statement Ex.PF/1 is not legally valid. As a result, I allow this appeal and acquit the appellants of the charges framed against them. The poppy husk stands confiscated to the State and shall be destroyed according to law. The vehicle be returned to the rightful owner against receipt."
I have perused the judgment of the learned Single Bench in Pal Singh's case (supra). I am not able to substantiate the view formulated in that case, after the decision of Hon'ble Apex Court in State of Punjab v. Crl. Appeal No.14-SB of 2002 [7] Baldev Singh, 1999(3) RCR (Criminal) 533 wherein it has been held that the right of the accused to be made aware that he should get himself searched before a Gazetted Officer or a Magistrate has been made mandatory. It is for the accused to show that if an offer of search is made but it is not in a prescribed proforma, it will cause prejudice. In the present case, consent memo Ex.PD reveals that such an offer was made to the accused. In the present case, no recovery was effected from accused Ganesh Kumar, therefore, this memo relates only to the present appellant.
Counsel for the appellant has stated that the consent memo must contain a word that an accused has a `right' to get himself searched before a Gazetted Officer or a Magistrate. This argument at the outset is to be rejected. If the accused is made aware that he can get himself searched before a Gazetted Officer or a Magistrate, it means that he is made aware about his right, though the exact word `right' may not be mentioned in the consent memo. Similarly, the very fact that the Deputy Superintendent of Police had reached the spot before apprehension of the accused and he had not signed the consent memo Ex.PD, will not vitiate the search which was conducted vide memo Ex.PE.
This case can be considered from another angle. In the present case, recovery was of One Kg. of Charas. The recovery was effected on 15.3.2000. The judgment by the trial Court was delivered on 28.8.2001. On 2.10.2001, an amendment was carried in the Act and for the first time the words `small quantity', `non-commercial quantity' and `commercial quantity' were introduced. A Single Bench of this Court in Mahavir Singh v. State of Haryana, 2006(1) R.C.R. (Criminal) 799 relied upon a Full Bench judgment of Himachal Pradesh High Court in Ratto v. State of Crl. Appeal No.14-SB of 2002 [8] Himachal Pradesh, 2004(1) RCR (Crl.) 501 and held that recovery upto 1 Kg. of Charas falls under the head `non-commercial quantity'. It will be apposite here to reproduce para 6 of the judgment rendered in Mahavir Singh's case (supra):-
"6. Mr.Malik submits that the recovery of 1 kg. Of Charas falls under the head `non-Commercial Quantity', but the learned trial Court has considered it as Commercial Quantity'. He has drawn my attention to the observation of the trial Court in this regard. In support of his contentions, learned counsel has also relied upon a Full Bench judgment of Himachal Pradesh High Court, rendered in the case of Ratto v. State of Himachal Pradesh, 2004(1) RCR (Crl.) 501 (FB) and two judgments of this Court rendered in the case of Shamsher Singh @ Papu v. State of Haryana, 2003(3) RCR (Crl.) 785 and Sikander Singh v. State of Punjab, 2005(2) RCR (Crl.) 810. The learned counsel submits that in this eventuality, the applicant- appellant can be sentence for less than 10 years as no minimum sentenced is provided under the statute. The learned counsel submits that the amended Act which has drawn the distinction between the `small quantity' and the `commercial quantity' would apply to the instant appeal."
Now the question arises for consideration of this Court `whether the appellant can be granted the benefit of the amendment made in the Act?.
In Basheer @ N.P.Basheer v. State of Kerala, 2004(1) RCR (Criminal) 1008 it was held as under:-
Crl. Appeal No.14-SB of 2002 [9]
"23. Thus, in our view, the Rubicon indicated by parliament is the conclusion of the Trial and pendency of appeal. In the cases of pending trials, and cases pending investigation, the trial is yet to conclude; hence, the retrospective mollification of the rigour of punishment has been made applicable. In the cases where the trials are concluded and appeals are pending, the application of the amended Act appears to have been excluded so as to preclude the possible contingency of reopening concluded trials. In our judgment, the classification is very much rational and based on clearly intelligible differentia, which has rational nexus with one of the objectives to be achieved by the classification. There is one exceptional situation, however, which may produce an anomalous result. If the trial had just concluded before 2.10.2001, but the appeal is filed after 2.10.2001, it cannot be said that the appeal was pending as on the date of the coming into force of the Amending Act, and the amendment would be applicable even in such cases. The observations of this Court in Nallamilli's case (supra) would apply to such a case. The possibility of such a fortuitous case would not be strong enough reason to attract the wrath of Article 14 and is constitutional consequences. Hence, we are unable to accept the contention that the proviso to Section 41 of the amending Act is hit by Article 14."
A perusal of the judgment of Hon'ble Apex Court in Basheer's case (supra) makes it explicit that if the trial concluded before 2.10.2001 Crl. Appeal No.14-SB of 2002 [10] and the appeal was filed on or after 2.12.2001, the benefit of amendment can be granted to the appellant. In the present case, the appeal for the first time was filed in the Registry on 17.9.2001, though on the index of the appeal, the date written is 30.8.2001. It was returned with the objections on 1.12.2001. Thereafter, the same was re-filed after compliance. The appeal was listed before the Bench on 4.1.2002, when it was admitted and recovery of the fine was stayed.
This Court has to determine as to what is the date when institution of the appeal is to be considered:-
(a) the date when it was filed in the Registry?
(b) when it was assigned number by the Registry?
(c) when it was admitted by the Bench?
In the present case, the number i.e. Criminal Appeal No.14-SB of 2002 was assigned. Hence, it is apparent that number was assigned in the year 2002. The appeal was listed before the Bench for admission on 4.1.2002.
To find the answer of above said question, reference can be made to the Punjab and Haryana High Court Rules and Orders Volume 3. Chapter 25 deals with Appeal and Revisions - Criminal. Part A specifies regarding admission of petitions (Appeals). Part C of Chapter 25 states that if an appeal is not disposed of summarily, appellant is to be heard. Para 3 of Part C of Chapter 25 states regarding notice of date of hearing. It is stated that notice of the day fixed for hearing should be given to the appellant or his pleader. Para 6 of Part C of Chapter 25 states that appeal cannot be rejected summarily, it should be admitted to hearing.
Since the present appeal was not assigned the number before 2.10.2001 and it was not admitted to hearing, borrowing the words from Crl. Appeal No.14-SB of 2002 [11] Basheer's case (supra), it cannot be said that before 2.10.2001, the appeal was pending before this Court especially when the same was returned by the Registry with objections on 1.12.2001 and was re-filed lateron. The appeal may have not been filed after removing the objections before 2.10.2001, it was assigned the number in the year 2002. Thus, it will be treated that the present appeal was filed after 2.10.2001 and the appellant was entitled to the benefit of the amendment. Since 1 Kg. of Charas was a `non commercial quantity', the appellant is to be sentenced for the same.
Even otherwise, the amendment was brought on record as a beneficial provision. The appellant was granted bail by this Court on 6.2.2003 and it was noticed in order dated 6.2.2003 that the appellant had undergone two years and six months of sentence. Taking into consideration the fact that the recovery of 1 Kg. of Charas was effected in the year 2000 and same is construed as a non commercial quantity, this Court is of the view that the ends of justice will be fully met if the sentence awarded to the appellant is reduced suitably. Hence, the sentence from ten years rigorous imprisonment is reduced to two years and six months rigorous imprisonment. The sentence of fine is also modified to the extent that the appellant shall pay Rs.10,000/- as fine. In default of payment of fine, he shall undergo rigorous imprisonment for three months.
With the aforesaid observations, the present appeal is disposed of.
( KANWALJIT SINGH AHLUWALIA ) March 15, 2010. JUDGE RC