Punjab-Haryana High Court
State Of Punjab vs Balwinder Singh @ Bindi Son Of on 10 October, 2012
Author: S.S.Saron
Bench: S.S.Saron
CRA NO.D-664-DB of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA NO.D-664-DB of 2012
DECIDED ON: October 10,2012
State of Punjab
........Appellant
Versus
Balwinder Singh @ Bindi son of
Rattan Singh, labourer, r/o Jassian
Colony, P.S.Habowal,
District Ludhiana
..........Respondent
CORAM HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present Mr. U.S.Dhaliwal, Additional Advocate General, Punjab
for the appellant.
S.P.BANGARH, J
The appellant (State of Punjab) has assailed the judgment of conviction and order of sentence dated 05/06.05.2011, passed by the learned Judge, Special Court, Ludhiana, in Session Case No. 22 of 10.02.2009, RBT No. 05.06.2010 emanating from FIR No. 257 dated 20.08.2008, Police Station Basti Jodhewal, whereby, the respondent was convicted and sentenced to undergo rigorous imprisonment for two years and to pay fine of `10,000/- and in default of payment of fine, to CRA NO.D-664-DB of 2012 2 further undergo rigorous imprisonment for three months for the commission of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('Act' for short).
It is the case of the prosecution that on 20.08.2008, police party headed by Malkiat Singh, ASI was present in the area of chowk of village Kakka Thola and at about 07:05 p.m, one black Ceilo car No. CH01R-0776 was seen coming from the side of village Kakka Thola, which was intercepted on the basis of suspicion. The driver of the car, who was aged about 33 years, ran away after abandoning the car. Another occupant of the car, who was sitting by the side of the driver, was apprehended and he disclosed his name as Balwinder Singh son of Rattan Singh, resident of Jassian Colony, Police Station Habowal.
Malkiat Singh, ASI disclosed his identity to Balwinder Singh accused (respondent, herein) that some contraband was suspected in the car and that his car is to be searched. Since Balwinder Singh reposed confidence in Malkiat Singh, ASI. Statement of the former, to this effect, was recorded by latter. Later, search of the boot of the car (supra), which was conducted by Malkiat Singh, ASI, resulted in recovery of 50 polythene packets containing poppy husk. Entire poppy husk of the 50 polythene packets was made homogeneous and two samples of 250 gms each were drawn from this homogeneous mixture of 50 packets. Remaining mixture, on weighment, came to 1 quintal 49.5 kgs of poppy husk and was put into five plastic bags each having 25 kgs CRA NO.D-664-DB of 2012 3 and the remaining bulk weighing 24.5 kgs was put into the 6th bag. All the six plastic bags, as also, the two sample parcels were sealed by Malkiat Singh, ASI with his seal bearing impression 'MS' and separate sample seal slip Ex.P1 was also prepared. Later these sealed bags, as also, two sample parcels along with sample slip and 50 empty polythene packets were seized vide memo Ex.PC, which was attested by Harbhajan Singh, ASI and Buta Singh, HC. Cielo car of black colour No.CH01R-0776 along with affidavits, which were recovered from its dashboard, was seized vide separate memo Ex.PD, which, too, was attested by Harbhajan Singh, ASI and Buta Singh, HC.
Later Malkiat Singh, ASI sent ruqa Ex.PE to the Police Station through Sukhdev Singh, HC, which formed the basis of the formal FIR Ex.PF, which was recorded by Harbhajan Singh SI in Police Station Basti Jodhewal. Respondent was arrested formally in this case. Rough site plan Ex.PK of place of recovery was also prepared and statements of the prosecution witnesses were recorded by Malkiat Singh, ASI, who, on return to Police Station, produced the case property before Balwinder Singh, Inspector/Station House Officer. Latter after verifying the facts of the case, appended his own seal bearing impression 'BS' on two sealed sample parcels, six sealed bags containing remaining bulk poppy husk and the sample seal slip and he later deposited the case property with Pargan Chand, MHC and on the next day, accused (respondent,herein) alongwith case property was CRA NO.D-664-DB of 2012 4 produced before the concerned Illaqa Magistrate, where six representative samples were drawn out of six sealed bags containing remaining bulk of the poppy husk, allegedly recovered from the appellant. One sample, which was separated at the place of recovery, was sent to the Chemical Examiner Punjab, Kharar on 26.08.2008 through Constable Dimple and the former vide report Ex.PN declared contents, thereof, to be poppy husk. Driver of the car, during investigation, was identified as Sunil Kumar son of Brij Lal, r/o village Ladian Khurd, Police Station Habowal.
After completion of investigation, Station House Officer of Police Station Basti Jodhewal, instituted police report under Section 173 Cr.P.C before the learned trial Court, to the effect that it appeared that respondent had committed offence punishable under Section 15 of the NDPS Act, 1985.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C, were supplied to the respondent and charge under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was framed against him, whereto, he pleaded not guilty and claimed trial. Consequently, the prosecution evidence was summoned.
At the trial, appellant (State of Punjab) examined Dimple Constable as PW1, Balwinder Singh, Inspector as PW2, Pargan Chand, ASI as PW3, Harbhajan Singh, ASI as PW4, Malkiat Singh, ASI as PW5, Jatinder Kumar, HC as PW6, Vinod Kumar as PW7and Vinod Kumar as PW8 and closed the CRA NO.D-664-DB of 2012 5 evidence.
After closure of the prosecution evidence, respondent was examined under Section 313, Cr.PC, wherein, he denied the allegations of prosecution, pleaded innocence and false implication in this case.
Respondent was called upon to enter in defence, and he examined Pritam Singh as DW1 and Ranjit Kumar as DW2 and closed the defence evidence, later.
After hearing both sides, learned trial Court vide impugned judgment of conviction and order of sentence, convicted and sentenced the respondent, as described in the first paragraph of this judgment. Aggrieved, thereagainst, appellant (State of Punjab) has come up in this appeal with prayer for acceptance, thereof, and for convicting and sentencing the respondent for the commission of offence punishable under Section 15(c) of the NDPS Act, 1985.
We have heard learned Additional Advocate General for the appellant and perused the record of the learned trial Court with his assistance.
First of all, it is to be seen as to what the prosecution witnesses deposed against the respondent.
PW1 Dimple, Constable tendered in evidence his affidavit Ex.PA.
PW2 Balwinder Singh, Inspector/Station House Officer of Police Station Basti Jodhewal, District Ludhiana testified that on CRA NO.D-664-DB of 2012 6 20.08.2008, Malkiat singh, ASI, Investigating Officer of this case, produced the case property of this case before him and after verifying the same, affixed his own seal bearing impression 'BS' on six plastic bags and on specimen seal chit and deposited that with Pargan Singh, MHC of that Police Station. He also proved sample seal chit Ex.P1 and form No. M-29 Ex.P2/A. PW3 Pargan Chand, ASI, who, at the time of incident, was posted as MHC of Police Station Basti Jodhewal, District Ludhiana also testified that on 20.08.2008, Balwinder Singh, the then Station House Officer of Police Station deposited with him the case property of this case along with specimen seal slip and Cielo car No. CH01R-0776 and he handed over the sample parcel of this case to Dimple, Constable on 26.08.2008 for deposit, thereof, with the Chemical Examiner, Kharar, who on the same date, deposited the same with the Chemical Examiner, Kharar and handed over the receipt to him. He further testified that, so long as, the case property remained in his possession, no one tampered, therewith.
PW4 Harbhajan Singh, ASI testified that on 20.08.2008, he was the member of police party headed by Malkiat Singh, ASI and was present a little behind Chowk of Kakka Thola, where at about 07:05 p.m, respondent and one other person came driving in car No.CH01R-0776, which was intercepted and driver, thereof, after abandoning the car, fled away and the respondent was apprehended and the search of the boot of the car resulted in recovery of 50 polythene packets containing poppy husk and those CRA NO.D-664-DB of 2012 7 were made homogeneous and two samples of 250 gms each were drawn and the remaining homogeneous bulk of poppy husk was weighed, which came to 1 quintal 49.5 kgms and put in five plastic bags, each containing 25 kgs and the remaining bulk measuring 24.5 kgms was put into the 6th plastic bag. He further testified that both the sample parcels and six bags containing remaining poppy husk were separately sealed by Malkiat Singh, ASI with his seal bearing impression 'MS' and sample seal chit Ex.P1 was also prepared and later case property was seized vide recovery memo Ex.PC along with 50 empty polythene packets/envelops and the car No.CH01R-0776 along with its affidavits Ex.P2, Ex.P4 and receipt Ex.P3, was also seized vide memo Ex.PD.
PW4 further testified that the ruqa Ex.PE was sent to Police Station through Sukhdev Singh, HC, which formed the basis of formal FIR Ex.PF and arrest memo Ex.PG, information memo Ex.PH and personal search memo of the respondent Ex.PJ were also prepared and Malkiat Singh, ASI, on return to Police Station, produced the case property before Balwinder Singh, SHO, who after verifying the same, appended his own seal bearing impression 'BS' on all the parcels of the case property including chit Ex.P1.
PW5 Malkiat Singh, ASI also testified likewise and corroborated the testimony of PW4 which has been reproduced in the earlier parts of this judgment.
PW6 Jitender Kumar, HC testified that on 21.08.2008, CRA NO.D-664-DB of 2012 8 he reached the Court of Illaqa Magistrate, Ludhiana and took photographs Ex.PW6/A to Ex.PW6/D and handed over those to the Investigating Officer.
PW7 Vinod Kumar testified that one Beena Dheer d/o Vinod Kumar, resident of 601, Sector 8-B, Chandigarh is the registered owner of Cielo Car No. CH01R-0776. He proved letter Ex.PAA in this regard bearing the signature of Bhupinder Singh, Incharge of the Registering and Licensing Authority, U.T, Chandigarh.
PW8 Vinod Kumar also testified that he purchased car No. CH01R-0776 from Beena Dheer vide affidavit Ex.P2 dated 29.05.2008. He also proved the receipt Ex.P3 regarding payment of sale consideration and he further testified that after some time, he sold the car to Sunil Kumar, s/o Brij Lal, r/o village Ladian Khurd, Police Station Bagga Khurd, District Ludhiana vide document Ex.P4, which bears his signature.
Learned Additional Advocate General for the appellant contended that the quantity of the recovered poppy husk from the respondent was 150 kgms and against that, the learned trial Court wrongly concluded vide impugned judgment that only 25 kgms of poppy husk were recovered from the respondent. He also contended that the poppy husk recovered from the respondent, which was in 50 polythene packets was made homogeneous and simply that it was made homogeneous, its quantity/weighment could not decimate 25 kgms.
So, he contended that the learned trial Court fell in CRA NO.D-664-DB of 2012 9 grave error by concluding the quantity of recovered poppy husk from the respondent as 25 kgms only, while, on the contrary, it should have been concluded that the respondent was found in possession of 150 kgms of poppy husk and should have been held guilty and punished for keeping in possession of commercial quantity of the poppy, which is punishable under Section 15(c) of the NDPS Act, instead of under Section 15(b) of the Act, as has been done vide impugned judgment of conviction and order of sentence.
So, the learned Additional Advocate General for the appellant contended that appeal may be allowed and the respondent should be held guilty of commission of offence punishable under Section 15(c) of the NDPS Act, 1985.
We have given our thoughtful consideration to the contentions raised by the learned Additional Advocate General for the appellant, but find no merit, therein, as it was required of the Investigating Officer to take distinct samples from each polythene packet, which allegedly contained poppy husk and each packet should have been weighed separately and then the total weighment of the contents, thereof, should have been disclosed.
Learned counsel for the appellant failed to point to any provision of law, whereunder, the Investigating Officer was required to make the poppy husk, allegedly recovered from the respondent, in separate 50 polythene packets homogeneous one by scrambling that on the ground and then taking two samples, CRA NO.D-664-DB of 2012 10 therefrom.
On the contrary, it has been held by this Court in Harwinder Singh @ Kaka and another v. State of Punjab 2005 (3) RCR(Criminal) page 117, that it was not necessary that the contents of all the bags should have been mixed up and made homogeneous. In this judgment, six bags of poppy husk were recovered and sample was drawn from each bag separately. It was held that, in such a case, it was not necessary that contents of all the bags should have been mixed up and made homogeneous before taking sample by placing reliance upon Pilli Dilli Dora v. State of Orissa, 1995 Crl. L.J 1758.
So, in this view of the ruling ibid, making of poppy husk homogeneous was not requirement of law, while on the contrary, the samples were required to be drawn from each plastic packet numbering fifty.
Apart from that, learned trial Court observed that the appellant, during arraign, failed to produce 50 empty polethene packets in the Court. It was also observed that, from the testimony of PW2 SI/SHO, it transpires that six sealed plastic bags along with 12 sealed sample parcels were produced before him and, thus, only six bags and not 50 packets of poppy husk were recovered from the car, wherein, respondent was travelling.
Learned trial Court further observed that it transpires from the testimony of PW2, that 12 samples were separated from six bags I.e two samples from each bags, but from the testimony CRA NO.D-664-DB of 2012 11 of PW1 and PW3, it is candid that only one sample was sent for its analysis to the office of the Chemical Examiner and in this manner, only one bag could be said to have contained poppy husk weighing 25 kgms.
There is no illegality or impropriety in the impugned judgment of conviction and order of sentence. The respondent could be held guilty of possession of 150 kgms of poppy husk, if the contents of all the 50 packets would have been weighed and samples drawn from each plastic packet without making the contents, thereof, homogeneous. Only one sample was sent to the Chemical Examiner, as per the testimony of PW1 and PW3 and in view, thereof, no contrary view, than the view taken by the learned trial Court is possible that the respondent was found in possession of 150 kgms of poppy husk and the respondent cannot be held guilty for the commission of offence punishable under Section 15(c) of the NDPS Act, 1985, as prayed.
Resultantly, appeal being devoid of merit, ought to be, and is, hereby, dismissed.
( S.P.BANGARH ) ( S.S.SARON)
JUDGE JUDGE
October 10, 2012
mamta