Punjab-Haryana High Court
Bachittar Singh S/O Amrik Singh vs State Of Punjab on 22 November, 2013
Author: Fateh Deep Singh
Bench: Hemant Gupta, Fateh Deep Singh
CRA-D-43-DB of 2009 and CRA-S-83-SB of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-43-DB of 2009
Date of Decision: 22.11.2013
Bachittar Singh s/o Amrik Singh ....Appellant
Versus
State of Punjab ..Respondent
CRA-S-83-SB of 2009
Date of Decision: 22.11.2013
Vinod Kumar alias Babbi s/o Sarwan Kumar ....Appellant
Versus
State of Punjab ..Respondent
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. Vivek Goel, Advocate for the appellant.
(in CRA-D-43-DB of 2009).
Mr. Navdeep Chhabra, Advocate for the appellant.
(in CRA-S-83-SB of 2009).
Mr. B.S. Bhalla, Additional Advocate General, Punjab.
FATEH DEEP SINGH, J.
Both the present appeals by virtue of which the appellants have impugned the judgment and order of sentence dated 10th October, 2008 of the Court of learned Special Judge, Amritsar having arisen out of same very FIR and an outcome of a common judgment are being disposed off conjointly by this common judgment for the sake of prolixity.
Sharma Aarti 2014.02.24 17:16 I attest to the accuracy and integrity of this document CRA-D-43-DB of 2009 and CRA-S-83-SB of 2009 -2- The brief facts emancipating into this prosecution are that on 16th May, 2006 S.I. Harwinderpal Singh from Special Narcotic Cell, Amritsar who received information that Bachittar Singh @ Kala and Vinod Kumar @ Babbi present appellants were carrying on smuggling activities of heroin through Indo-Pak border and happened to be present near Gill Farm, Marriage Palace, G.T. Road along with contraband. Acting on this information, police party headed by him went in a mini bus make Swaraj Mazda (for short, mini bus) and on seeing the police party both the accused tried to slip away but were apprehended. They disclosed their names as Bachittar Singh @ Kala and Vinod Kumar @ Babbi. After usual formalities of introduction, the Investigating Officer expressed his suspicion and his intention to search accused and after explaining accused of their rights under law sought their option of being searched. Both the accused showed their desire to be searched in the presence of Gazetted Officer regarding which consent memos Ex.PA and Ex.PA/1 were prepared. As per this option PW3 Mohinder Singh, DSP (now Retd.) was called, who after arriving at the spot disclosed his identity and apprised accused of their rights of search on the basis of which accused Bachittar Singh @ Kala and Vinod Kumar @ Babbi gave their consent by way of memos Ex.PB and Ex.PB/1. All these memos were attested by the witnesses and signed by accused. As per this option of search in the presence of the DSP, Investigating Officer searched accused Bachittar Singh and from the bag of brown colour being held by him in his right hand, heroin wrapped in a cloth piece with seal affixed carrying inscription in Urdu and Sharma Aarti 2014.02.24 17:16 I attest to the accuracy and integrity of this document CRA-D-43-DB of 2009 and CRA-S-83-SB of 2009 -3- emblem of 'Star' and '777' scribed on the seal was recovered. 5 grams of heroin was drawn as sample and remaining 495 grams of residual Ex.P1 was prepared into separate parcel and both these parcels were sealed with the seals HS and MS of Investigating Officer. Separate sample seal impressions were also prepared. Similarly, from the search of accused Vinod Kumar @ Babbi from the black colour bag held by him heroin wrapped in polythene carrying a sticker of 'Manisha' was recovered which also bore triangular seal blue in colour with inscription in Urdu bearing emblem of 'Star' and '777'. 5 grams of heroin was drawn as sample and remaining 495 grams of residual Ex.P2 was prepared into separate parcel and both the parcels were sealed with the same very seals and separate seal impressions were prepared. The articles were thereafter, taken into possession through memos Ex.PC and Ex.PC/1 respectively.
From the personal search of accused Bachittar Singh @ Kala through memo Ex.PD `330/- were recovered and from the personal search of Vinod Kumar @ Babbi through memo Ex.PD/1 `220/- were recovered. The hand bags from which the contrabands were recovered were also taken into police possession through memos Ex.PE and Ex.PE/1 respectively. All the memos were signed by accused and attested by the witnesses. Thereafter, ruqa Ex.PF was prepared and the same was sent to Police Station, Sultanwind through C. Sukhwinder Singh leading to registration of FIR Ex.PF/1.
The Investigating Officer prepared rough site plan of this place of recovery Ex.PG and arrested accused through arrest Sharma Aarti 2014.02.24 17:16 I attest to the accuracy and integrity of this document CRA-D-43-DB of 2009 and CRA-S-83-SB of 2009 -4- memos Ex.PH and Ex.PH/1. The Investigating Officer handed over articles to S.I/SHO Harjinder Singh, Police Station Sultanwind through memo Ex.PI and seizure report under Section 57 of the Narcotic Drugs and Psychotropic Substances, Act 1985 (in short, the Act) Ex.PJ was sent to higher authorities. On receipt of report of Forensic Science Laboratory Ex.PK opining contents of parcel to be of heroin and after completion of investigations, recording of statements of witnesses and on presentation of challan, accused were put to trial, who refuted the charges so framed against them and claimed trial.
The prosecution in order to prove its case examined PW1 SI Harwinderpal Singh; PW2 Kewal Singh, who tendered in evidence his affidavit Ex.PL, PW3 Mohinder Singh, D.S.P (Retd.), Inspector Harjinder Singh (since retired) as PW4. PW5 Tehal Chand, Clerk Judicial Malkhana, detailed the deposit of articles in the Malkhana. PW6 Iqbal Singh Brar, Superintendent Sub Jail, Fazilka proved FIR No.51 dated 15.2.1994 under Sections 18, 61,85 of Narcotic Drugs and Psychotropic Substances, Act 1985 registered at Police Station, Ferozepur against accused Bachittar Singh @ Kala, his sentence and the fact that he was released on parole on 19.4.2002 and, thereafter, absconded. HC Jaswant Singh PW7 proved the registration of FIR No.51 dated 15.2.1994 under Sections 18,61,85 of Narcotic Drugs and Psychotropic Substances Act 1985 and FIR No.55 dated 25.2.1994 under Section 18 of the Narcotic Drugs and Psychotropic Substances, Act 1985 both with Police Station Sadar, Ferozepur proving copies Ex.PE and Ex.PF and brought about fact of conviction of accused Sharma Aarti 2014.02.24 17:16 I attest to the accuracy and integrity of this document CRA-D-43-DB of 2009 and CRA-S-83-SB of 2009 -5- Bachittar Singh @ Kala in the said cases. He also proved index of FIR No.51 as Ex.PG and index of FIR No.55 as Ex.PH and thereafter, the prosecution closed its evidence.
Accused when confronted with oral as well as documentary evidence in their statements under Section 313 Cr.P.C. denied the allegations taking the plea of false implication, but did not lead any evidence in defence leading to their conviction which is as follows:-
Under Section 21 NDPS Act Accused Bachittar Singh was sentenced to undergo rigorous imprisonment for 14 years and to pay fine of `1 lac and in default of payment of fine to further undergo rigorous imprisonment for one year.
Under Section 21 NDPS Act Accused Vinod Kumar was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of `1 lac and in default of payment of fine to further undergo rigorous imprisonment for one year.
That is how both these appellants are before this Court in these two separate appeals.
Heard Mr. Vivek Goel, Advocate and Mr. Navdeep Chhabra Advocate for the appellants and Mr. B.S. Bhalla, learned State counsel.
The first and foremost argument raised by the appellant's counsel by placing reliance on judgments in State of West Bengal and others vs. Babu Chakraborty 2004 (4) RCR Criminal 252 and Gurnam Kaur and others vs. State of Punjab 2006 (3) RCR (Criminal) 984 that since the Investigating Officer has received secret information prior to the apprehension Sharma Aarti 2014.02.24 17:16 I attest to the accuracy and integrity of this document CRA-D-43-DB of 2009 and CRA-S-83-SB of 2009 -6- of accused, it was mandatory for him to have reduced the same into writing and since in the present case there has been gross violation of this provision entails acquittal of the appellants. The argument has been refuted on behalf of State that firstly recovery has been effected from a public place and that too in the presence of Gazetted Officer does not calls for such a requirement. Appreciating these submissions the very wording of Section 42(2) and Section 43 of the Act makes it sufficiently clear that Section 42(2) is applicable in cases of recovery as a consequence of search of a building, conveyance and enclosed place, whereas, Section 43 deals with arrest and seizure in any public place while narcotic is under transit. It needs to be emphasised here that as an explanation to Section 43 the expression 'public place' includes any public conveyance, hotel, shop or other place intended for use by or accessible to the public. In this case the plain reading of testimonies of PW1 S.I. Harwinderpal Singh and PW3 Mohinder Singh, DSP (Retd.) make it sufficiently clear that after the receipt of secret information, accused were apprehended while standing near Gill Farm, a marriage palace on the G.T. Road, Jalandhar, thus, by all means a public place. It has been clearly laid down in Dalel Singh vs. State of Haryana (2010) SCC 149 where reliance has been placed on Karnail Singh vs. State of Haryana (2009) 8 SCC 539 that in such a situation provisions of Section 42(2) of the Act are inapplicable. Even otherwise on oral information of Investigating Officer, his immediate officer superior DSP PW3 had arrived before the search and recovery.
The next round of arguments by the appellant's counsel Sharma Aarti 2014.02.24 17:16 I attest to the accuracy and integrity of this document CRA-D-43-DB of 2009 and CRA-S-83-SB of 2009 -7- revolves around the applicability of Section 50 of the Act and it is stressed that since the recovery has been effected from the person of the accused it was mandatory for the Investigating Officer to have conducted search in the presence of Gazetted Officer or a Magistrate, and which argument has been rightly controverted by the State counsel. It needs to be stressed here that plain reading of Section 50 of the Act makes it abundantly clear that it is applicable only to recoveries effected from person of a person. By now such a controversy has been laid to rest by Hon'ble Apex Court's view in case State of Punjab vs. Baldev Singh 1999 (3) RCR (Criminal) 533 SC.
More so, PW3 Mohinder Singh D.S.P (Retd.) being a Gazetted Officer was present at the time of this search and recovery and by that score as has been contended by Mr. Bhalla learned State counsel suffices the purpose of Section 50 of the Act, even if it is accepted to be applicable.
The mere premise that there has been non-examination of independent witness does not cast its affect on the outcome of the prosecution story. No doubt, it is well elaborated by the Investigating Officer as well as PW3 Mohinder Singh DSP (Retd.) as to the presence of Jagtar Singh, an independent witness whose non-examination cannot be taken as fatal for the prosecution. It is the quality of the evidence that matters and not the quantity and therefore, keeping in view the present trend in the society, people are reluctant to come forth to testify and being mere rule of prudence cannot be taken as a rule of mandate and, therefore, this argument of the appellant's counsel falls to the ground. Sharma Aarti 2014.02.24 17:16 I attest to the accuracy and integrity of this document CRA-D-43-DB of 2009 and CRA-S-83-SB of 2009 -8- Learned counsel could not pinpoint any material contradiction in the testimonies of the witnesses. After the recovery, the articles have been duly handed over to Inspector Harjinder Singh PW4, who produced the same before the learned Magistrate and after appropriate procedure having been adopted were deposited in a safe and intact state in the judicial Malkhana which is corroborated by none other than Tehal Singh PW5 Clerk of the learned Chief Judicial Magistrate.
The depositions of PW6 Iqbal Singh Brar, Superintendent Jail and PW7 HC Jaswant Singh where they have proved Ex.PE, Ex.PF, Ex.PG and Ex.PH rather suggests the conduct of accused appellant Bachittar Singh being a previous convict under similar offences and having absconded.
Learned counsel for the appellants could not pinpoint what explanation is forth coming from the side of the defence to explain for these circumstances proved at the trial oral as well as documentary. It is well elicited in the testimony of PW1 S.I. Harwinderpal Singh that they have filled the NCP-1 form at the spot. The formal witness PW2 Kewal Singh through his affidavit Ex.PL has brought about safe deposit of the parcels in the Laboratory.
Thus, from this overall evidence it clearly stands established that from each of accused-appellants heroin weighing 500 grams each was recovered from their conscious possession and, therefore, a natural presumption arises in terms of Section 54 of the Act, which accused have failed to rebut by any means.
Thus, from this evidence detailed and discussed above, Sharma Aarti 2014.02.24 17:16 I attest to the accuracy and integrity of this document CRA-D-43-DB of 2009 and CRA-S-83-SB of 2009 -9- we do not find any illegality in the findings so recorded by the trial Court, and, thus we are not inclined to show any indulgence in the same. Therefore, both the appeals stand dismissed.
(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) JUDGE 22.11.2013 aarti Sharma Aarti 2014.02.24 17:16 I attest to the accuracy and integrity of this document