Punjab-Haryana High Court
Sukhdev Singh And Others vs State Of Haryana on 7 October, 2013
Author: K.C. Puri
Bench: K.C. Puri
CRA No. S-998-SB of 2009 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA No. S-998-SB of 2009 (O&M)
Date of decision: 07.10.2013
Sukhdev Singh and Others ..Appellants
Vs.
State of Haryana ..Respondent
CORAM: HON'BLE MR. JUSTICE K.C. PURI
Present: Mr. Baljinder Singh, Advocate for
Mr. K.S. Dhaliwal, Advocate for the appellants.
Mr. Amit Kaushik, Sr. DAG, Haryana.
****
K.C. PURI, J.(ORAL)
Challenge in this appeal is the judgment and order dated 19.02.2009 passed by Ms. Vivek Bharti, Presiding Officer, Special Court, Jind vide which the appellants have been convicted for having been found in possession of 96 Kgs., poppy husk without having any licence and permit and have been sentenced to undergo Rigorous imprisonment for a period of 10 years and to pay a fine of ` 1,00,000/- each and in default of payment of fine to further undergo Rigorous imprisonment for a period of three years. Further they have also been convicted under Section 420 IPC and sentenced to undergo R.I. for 2 years and to pay a fine of ` 1,000/- and in default of payment of fine to further undergo R.I. for three months.
Brief facts as enumerated from the record are that on 02.02.2007 ASI Mahabir Singh along with police party was present at Barricade near power house Naguran, Kaithal Road for cheking the vehicles. A car Vagan- Sharma Poonam 2013.10.09 16:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA No. S-998-SB of 2009 (O&M) 2 R having black glasses came from Jind was stopped for checking. On front number plate HR-12-G-9354 and on back number plate HR-07-0935 was written as registration number. On suspicion the car was checked. Three persons were present in the car. The driver told his name Gurdev Singh S/o Sinder Singh and two boys sitting on back seat told their names Satnam alias Satta, S/o Hazoor Singh and Sukhdev, S/o Jeet Singh. Meanwhile by chance DSP Ashok Kumar along with police party in official jeep came there. DSP was appraised with the situation and on his direction the vehicle was searched. On the back seat plastic bag of white colour and in between the driver seat and the back seat another plastic bag of white colour was found. Both the bags were checked and packets of poppy husk were recovered. On the direction of the DSP two packets from each bag were separated for sample purpose. In all in one bag 22 packets and in another bag 26 packets of poppy husk were found. The weight of each packet was 2 Kgs. Two samples from 2 packets were taken from one bag and 2 samples were drawn from 2 packets from another bag. The samples were made into parcel and remaining packets were put in the same bag and were made into parcel and duly sealed with impression MS and AK. Seal MS after use was handed over to EHC Ranbir Singh and seal AK was retained by DSP.
Report under Section 57 of NDPS Act was sent to DSP Headquarter. Accused along with case property and the witnesses were produced before SHO who after verify the facts of the case affixed his seal bearing impressions AS on the samples and the residue and directed ASI Mahabir Singh to deposit the case property with the MHC and to put the Sharma Poonam 2013.10.09 16:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA No. S-998-SB of 2009 (O&M) 3 accused in lock-up. After investigation and receipt of the FSL report challan was presented against the accused under Section 15 of the NDPS Act and under Section 420 IPC.
Copy of the documents were supplied to the accused free of costs as provided under Section 208 Cr.P.C. Charge under Section 15 of NDPS Act and under Section 420 read with Section 120-B of Indian Penal Code was framed against all the accused to which they pleaded not guilty and claimed trial.
The prosecution in order to prove its case examined HC Krishan Kumar as PW-1, ASI Azad Singh as PW-2, EHC Satbir as PW-3, C. Dilbag Singh as PW-4, HC Ram Chander as PW-5, Jai Singh Registration Clerk as PW-6, Satnarayan Photographer as PW-7, SI Ravinder Kumar as PW-8, EHC Ranbir Singh as PW-9, ASI Mahabir Singh as PW-10, DSP Ashok Saini as PW-11, and Addl. Ahlmad Subhash as PW-12 and closed the prosecution evidence after tendering report of the FSL.
All the accused were examined under Section 313 Cr.P.C. and all the incriminating evidence was put to them to which they denied and pleaded false implication. The accused were called upon to lead their defence evidence but they have not lead any evidence in their defence.
The learned trial Court after appraisal of evidence found the accused guilty under Section 15 of the NDPS Act for having been found in possession of 96 Kgs of poppy husk without any licence and permit. They were also convicted under Section 420 IPC and sentenced to undergo R.I. and fine, as narrated above. However, Surjit Kaur accused was acquitted. Sharma Poonam 2013.10.09 16:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA No. S-998-SB of 2009 (O&M) 4
Feeling dis-satisfied with the judgment and order dated 19.02.2009, the appellants Sukhdev Singh, S/o Jit Singh, Gurdev Singh, S/o Sinder Singh, Satnam Singh, S/o Hazoor Singh have preferred the present appeal.
The learned counsel for the appellants has not disputed the factum of recovery but has submitted that in this case the case of the prosecution is that 2 samples were drawn from 2 packets of one bag and 2 samples were drawn from other 2 kg packets. It is submitted that in this manner at the most the prosecution has been able to prove the recovery of 8 kgs of poppy husk i.e. 4 kgs, from one bag and 4 kgs from other bag. It is submitted that 8 kgs poppy husk is not commercial in nature. The learned trial Court has wrongly convicted the appellants for recovery of 96 kgs of poppy husk treating it as a commercial quantity. To buttress this arguments learned counsel for the appellants has relied upon decision of this in CRA No. 23-SB of 2004 titled as "Ajay Kumar Vs. State of Haryana and CRA No. 963-SB of 2004 titiled as "Samay Singh Vs. State of Haryana". The conviction under Section 420 has not been challenged. It is further contended that all the appellants have already undergone incarceration for a period more than 4 years, so, lenient view be taken regarding quantum of sentence.
Learned State counsel has supported the judgment of trial Court. It is submitted that the recovery is well proved. The recovery has taken place in the presence of Gazetted Officer i.e. DSP. There is no question of false implication. It is further submitted that FSL report says that the seals Sharma Poonam 2013.10.09 16:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA No. S-998-SB of 2009 (O&M) 5 were intact. So prayer has been made for dismissal of the appeal.
I have considered the submissions made by both sides and have gone through the record of the case.
Learned counsel for the appellants has not disputed the factum of the recovery from the appellants, he has also not disputed the conviction of the appellants under Section 420 IPC. The only challenge made by counsel for the appellants is in respect of the fact that sample was drawn only from 2 packets from one bag and 2 packets from other bag, and they cannot be convicted for residue as it cannot be said with certainty that the same contained poppy husk.
The arguments carries weight and has to be accepted. It is well settled law that harsher is the punishment sticker is the mode of proof. In this case samples were drawn from 2 packets from one bag and 2 samples were drawn from 2 packets from other bag. It is not disputed during the course of arguments that 20 packets of 2 kg in one bag and 24 packets of 2 kgs each from the other bag no sample was drawn. This Court in CRA No. 23-SB of 2004 and CRA No. 963-SB of 2004 on 25.11.2008 has decided this controversy relying upon the authority of Hon'ble Apex Court in Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panji, Goa, AIR 1993, SC 1456 and Javed A. Bhat Vs. Union of India 2008 (1) RCR (Criminal) 57. In both the cases Hon'ble Apex Court has held that the accused can be convicted for the offence in respect of contraband from which the sample has been drawn. In case sample has not been drawn from the another packet he cannot be convicted for that recovery of contraband. Sharma Poonam 2013.10.09 16:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA No. S-998-SB of 2009 (O&M) 6 So considering all the facts and circumstances of the case, the prosecution has been able to prove the recovery of 8 kgs of poppy husk i.e. 2 packets from one bag and 2 packets of poppy husk from another bag each containing 2 kgs poppy husk.
As per conviction of Sukhdev Singh has already undergone incarceration for a period of 4 years, 3 months and 11 days, Satnam Singh has already undergone incarceration for a period of 5 years, 10 months and 23 days as on 19.03.2013 and Gurdev Singh as per custody certificate has undergone incarceration for a period of 3 years, 11 months and 24 days out of the substantive sentence awarded by the trial Court. However, conviction and sentence of the appellants under Section 420 IPC stand affirmed. Otherwise also they have already undergone the sentence more than 2 years out of substantive sentence.
So, in these circumstances, the sentence of the appellants stand reduced to the period already undergone. However, they are directed to pay fine of ` 5,000/- each and in default of payment of fine they shall further undergo R.I. For 6 months. However, both the sentences are ordered to be run concurrently.
Appeal stands partly accepted.
A copy of this judgment be sent to Trial Court for strict compliance.
(K.C. PURI) 07.10.2013 JUDGE Poonam (II) Sharma Poonam 2013.10.09 16:52 I attest to the accuracy and integrity of this document High Court Chandigarh