Punjab-Haryana High Court
Gurbaksh Singh vs State Of Punjab on 1 April, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(i) Crl. Appeal No.D-18-DB of 2012
Date of Decision: April 01, 2013
Gurbaksh Singh
...Appellant
VERSUS
State of Punjab
...Respondent
(ii) Crl. Appeal No.D-398-DB of 2012
Waryam Singh
...Appellant
VERSUS
State of Punjab
...Respondent
(iii) Crl. Appeal No.3039-SB of 2011
Balwinder Singh
...Appellant
VERSUS
State of Punjab
...Respondent
(iv) Crl. Appeal No.1241-SB of 2012
Nema Singh
...Appellant
VERSUS
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE INDERJIT SINGH
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
Crl. Appeal No.D-18-DB of 2012 & connected appeals -2-
Present: Mr.Narinder Kumar Banka, Advocate, for the appellant
(in CRA No.D-18-DB of 2012)
Mr.Sanjeev Manhas, Advocate, for the appellant
(in CRA No.D-398-DB of 2012)
Mr.Rakesh Kumar, Advocate, for the appellant
(in CRA No.3039-SB of 2011)
Mr.Mukesh Kalia, Advocate, for the appellant
(in CRA No.1241-SB of 2012)
Mr.B.S.Bhalla, Addl. Advocate General, Punjab
for the respondent-State.
****
INDERJIT SINGH, J.
This judgment shall dispose of four connected criminal appeals i.e. CRA No.D-18-DB of 2012, CRA No.D-398-DB of 2012, CRA No.3039-SB of 2011 and CRA No.1241-SB of 2012 arising out of the same judgment of conviction and order of sentence dated 05.11.2011 passed by Judge, Special Court, Kapurthala convicting and sentencing the appellants Gurbaksh Singh and Waryam Singh to undergo rigorous imprisonment for twelve 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 two years each, under Section 21 of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. Appellant Nema Singh was held guilty and convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of `1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two years, under Section 29 of NDPS Act. Appellant Balwinder Singh and co-accused Naghar Mal Crl. Appeal No.D-18-DB of 2012 & connected appeals -3- were held guilty and convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of ` 5,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months each, under Section 489-C IPC. Appellant Balwinder Singh and co-accused Naghar Mal were acquitted for the offence under Section 29 of NDPS Act. Co-accused Naghar Mal has not filed any appeal against the above-said judgment of conviction and order of sentence dated 05.11.2011. Co-accused Chaman Lal has been acquitted from the charges framed against him. It is pertinent to mention here that co-accused Sukhchain Singh was discharged by the trial Court vide order dated 14.03.2008 whereas co- accused Subhash Chander has been declared as Proclaimed Offender.
The brief facts of the prosecution case are that on 22.03.2007, Inspector Mangat Rai of CIA Staff, Kapurthala along with other police officials and police officials of Special Staff, Phagwara was present at G.T.Road in the area of village Chachoki, where he received secret information that accused Gurbaksh Singh and Waryam Singh were in the habit of smuggling heroin from the foreign countries and selling the same in big cities like Delhi. The informer also told him that both these accused are present near Somal Dhaba near village Mauli with truck No.AS21-3487 and they are waiting for some person and if raid is conducted, they can be apprehended and recovery of heroin can be effected from them. Finding the information credible, Inspector Mangat Ram sent ruqa Ex.PW9/A to the police Crl. Appeal No.D-18-DB of 2012 & connected appeals -4- station, on the basis of which FIR Ex.PW6/A was registered. Then the Investigating Officer along with other police officials went to the disclosed place where the above-mentioned truck was lying parked. Baljinder Singh, owner of Somal Dhaba was joined as independent witness. Accused Waryam Singh was sitting on the driver seat of the truck and accused Gurbaksh Singh was sitting on the adjoining seat having one bag in his lap. The Investigating Officer verified identity of both the accused and also disclosed his own identity to them. He asked them to board down from the truck. Then he told both the accused that he suspects them to be in conscious possession of some contraband. He further told them that their search is to be conducted and they have a legal right to get their search conducted from him or from some Gazetted Officer or some Magistrate. Accused reposed confidence in a Gazetted Officer. The Investigating Officer informed Jagjit Singh, DSP(D), Kapurthala, who reached at the spot and disclosed his identity to both the accused as a Gazetted Officer and offer to both the accused that as per law they have a legal right to get their search conducted either from him or from some other Gazetted Officer or a Magistrate. Both the accused reposed confidence in DSP Jagjit Singh. Then on the instruction of DSP Jagjit Singh and under his supervision, Investigating Officer conducted search of accused Gurbaksh Singh and from the bag in his right hand, heroin was recovered. Two samples of 20 grams each were separated and converted into sealed parcel and remaining bulk on weighment came to be 3.960 kgs., which was also converted into Crl. Appeal No.D-18-DB of 2012 & connected appeals -5- sealed parcel. All the parcels were sealed by the Investigating Officer with his seal impression 'MR' and by DSP with his seal impression 'JS'. The case property was taken into police possession vide recovery memo Ex.PW6/F. Truck along with its RC was also taken into police possession vide recovery memo Ex.PW6/G. Rough site plan Ex.PW9/B of the place of recovery was prepared. Accused Gurbaksh Singh and Waryam Singh were arrested. Both the accused along with sample parcels, remaining bulk parcel, form No.29-M and sample seal impressions were produced before SI/SHO Ashok Kumar, Phagwara, who verified the facts of the case from the accused and after verification, he affixed his own seal bearing impression 'AK' on all the parcels. Thereafter, he kept the parcels along with CFSL form and separate seal impressions in his custody. On the next day, SI Ashok Kumar handed over custody of accused, case property, CFSL form and seal impressions to the Investigating Officer for producing before Illaqa Magistrate. Accused along with case property were produced before Sh.Munish Arora, Illaqa Magistrate, who checked the seals and also made his endorsement 'seen' on them in token of their presentation. Then, on the asking of the Illaqa Magistrate, the Investigating Officer broke open the seals on the remaining bulk parcels and after making the contraband homogenous, a sample of 20 grams was separated and converted into parcel and same was sealed with the seal of Illaqa Magistrate with seal impression 'MA' and with the seal of Investigating Officer 'MR'. The entire process was photographed. The inventory is Ex.PW9/G. The order of Illaqa Crl. Appeal No.D-18-DB of 2012 & connected appeals -6- Magistrate for separating sample is Ex.PW9/J. Statement of witnesses were recorded. Thereafter, the investigation of the case was handed over to SI Inderjit Singh. On 27.03.2007, as per disclosure statement Ex.PW3/A accused Gurbaksh Singh got recovered 5 kgs. heroin out of which 20 grams sample was separated and was converted into parcel and sealed with the seal of SI Inderjit Singh with seal impression 'IS' and with the seal of DSP Harkamalpreet Singh as 'HPS'. Sample parcel and remaining sealed bulk parcel were taken into police possession vide recovery memo Ex.PB. Rough site plan Ex.PW6/H of the place of recovery was prepared. Accused along with case property was produced before SI/SHO Ashok Kumar, P.S. Sadar, Phagwara. During the investigation, SI Inderjit Singh recorded the statements of witnesses. He produced accused Gurbaksh Singh in the court of Illaqa Magistrate, where one sample of 20 grams was separated from the bulk parcel and both the sample parcels and remaining bulk parcel containing 4.960 kgs. were sealed with seal impression 'MA' of Illaqa Magistrate and with the seal of Investigating Officer as 'IS'. On return to the police station, the Investigating Officer deposited the case property along with samples with the MHC. On 31.03.2007, accused Naghar Mal, Subhash Chander (P.O.), Balwinder Singh and Sukhchain Singh appeared before SI Inderjit Singh. On 01.04.2007, accused Naghar Mal made disclosure statement Ex.PD that he had kept concealed fake currency notes to the tune of ` 11,000/- and he got recovered the same in pursuance of his disclosure statement. Crl. Appeal No.D-18-DB of 2012 & connected appeals -7- Similarly, Subhash Chander suffered disclosure statement Ex.PG that he had kept concealed fake currency notes to the tune of ` 15000/- and he also got recovered the same in pursuance of his disclosure statement. Balwinder Singh also suffered disclosure statement Ex.PE regarding concealing of fake currency notes to the tune of ` 10,000- 12,000/- and he also got recovered the same in pursuance of his disclosure statement. Similarly, Sukhchain Singh suffered disclosure statement Ex.PI regarding concealing of fake currency notes to the tune of `10,000-12,000/- and he also got recovered the same in pursuance of his disclosure statement. Rough site plans of the place of recoveries were prepared. Nema Singh was named in this case on the basis of disclosure statement made by accused Gurbaksh Singh, who stated in his disclosure statement that Balwinder Singh had brought the currency of five lacs from a person of Pakistan namely Julfkar with the help of Incharge of B.S.F. of the police post Abdulian. Accused Nema Singh was arrested on 04.04.2007. Statement of witnesses were recorded. After necessary investigation, challan was presented against the accused-appellants.
On presentation of challan, copies of challan and other documents were supplied to the accused-appellants under Section 207 Cr.P.C. Finding prima facie case, appellants Gurbaksh Singh, Waryam Singh and Nema Singh were charge-sheeted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and appellant Nema Singh was also charge-sheeted under Section 29 of the NDPS Act. Appellant Balwinder Singh, co-accused Naghar Mal Crl. Appeal No.D-18-DB of 2012 & connected appeals -8- and Subhash were charge-sheeted under Section 489-C IPC. The appellants pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 DSP Harkamal Preet Singh, who mainly deposed regarding joining the police party on 27.03.2007 and regarding recovery of 5 kgs. heroin by accused Gurbaksh Singh in pursuance of his disclosure statement. PW-2 Head Contable Rajeshwar Dutt mainly deposed regarding taking photographs of the proceedings before the Illaqa Magistrate Sh.Munish Arora and he proved the photographs Ex.P1 to Ex.P6 and negatives Ex.P7 to Ex.P12. PW-3 ASI Arjan Singh deposed that he joined the police party of SI Inderjit Singh and deposed regarding the disclosure statement made by accused Gurbaksh Singh and regarding recovery in pursuance of the disclosure statement. He also deposed regarding further investigation conducted by SI Inderjit Singh and also regarding suffering of disclosure statement and recovery effected from accused Naghar Mal, Subhash Chander (P.O.), Balwinder Singh and Sukhchain Singh. PW-4 Head Contable Jasbir Singh was posted as MHC in P.S. Sadar Phagwara and he mainly deposed regarding depositing of case property of this case with him. He further deposed that as long as the case property remained with him neither he nor anybody else was allowed to tamper with the same. PW-5 Head Constable Nirmal Singh deposed regarding handing over of the samples of this case to him on 11.04.2007 for depositing the same with Chemical Examiner, Amritsar and after depositing the same, he handed over the receipt to the MHC. PW-6 Crl. Appeal No.D-18-DB of 2012 & connected appeals -9- SI Inderjit Singh mainly deposed regarding partly investigation conducted by him in the present case. PW-7 Head Constable Raj Pal mainly deposed that on 01.06.2007, MHC Balwinder Singh handed over to him four parcels containing fake currency notes to the tune of ` 10,000/- in one parcel, ` 15,000- ` 15,000/- each in two other parcel, and the fourth parcel was containing five Indian currency notes of the denomination of 500 each for depositing the same in the office of FSL, Chandigarh. He further deposed that he deposited all the parcels on the same day and handed over the receipt to MHC. He also deposed that as long as the parcels remained with him, neither he nor anybody else was allowed to tamper with the same. PW-8 Head Constable Balwinder Singh, who was posted as MHC at P.S. Sadar Phagwara deposed regarding handing over of the samples to him for depositing the same in the FSL. PW-9 Inspector Mangat Rai mainly deposed regarding earlier investigation conducted in the present case by him. PW-10 Jagjit Singh deposed regarding joining the police party on 22.03.2007 and further regarding the search, got conducted in his presence and under his supervision and also deposed regarding recoveries. PW-11 Head Constable Rajpal Singh (again examined) deposed regarding handing over the samples as earlier deposed by him in his examination as PW-7. PW-12 Inspector Ashok Kumar, who was SHO at P.S. Sadar Phagwara mainly deposed regarding production of case property before him by the Investigating Officer and also regarding receiving the samples and bulk parcels with the seals.
Crl. Appeal No.D-18-DB of 2012 & connected appeals -10- At the close of prosecution evidence, the accused- appellants were examined under Section 313 Cr.P.C. and they denied the correctness of the evidence and pleaded themselves as innocent. Accused Nema Singh further stated that he did not know any of the accused. In one of the encounters Vicky was killed and local residents and his relatives raised hue and cry and protest against him. He further stated that relatives of Vicky are criminals and having links with the local police and they have got involved him falsely in the present case in connivance with the police . Accused Gurbaksh Singh and Waryam Singh stated that they were brought from Chakki Bridge Pathankot by SI Inderjit Singh along with their truck as he wanted their truck for begaar purpose. There was a quarrel between them and SI Inderjit Singh forcibly brought them from there and falsely implicated them in the present case.
In defence, accused examined DW-1 Head Constable Narain Singh, who mainly deposed that he remained posted at Abdulian post Jammu from November 2006 to April 2007. He further deposed that Nema Singh was good and brave officer. A person namely Vicky was shot dead by the official of BSF at the Line of Control on the crossing of Pakistan border on 02.05.2006. Nema Singh was Incharge of the said company at that time. He further deposed that he also knew Naghar Mal who was running a tea shop near village Abdullah and Vicky who was killed by their department was close relative of Naghar Mal and on account of that reason Naghar Mal and some political parties became inimical towards Nema Crl. Appeal No.D-18-DB of 2012 & connected appeals -11- Singh and some villagers made hue and cry against the killing of Vicky. He further deposed that Nema Singh never indulged in illegal activities and he has been falsely implicated in this case. DW-2 Constable S.Samad mainly deposed same facts as deposed by DW-
1. DW-3 Amarnath mainly deposed that he is namberdar of village Abdullah. He knew Naghar Mal, who is an agriculturist and he owned 6/7 acres of land. He is a law abiding citizen. He never participate in the business of fake currency notes. DW-4 Ramesh Chander Sharma also deposed the same facts as deposed by DW-3. DW-5 Head Constable Ganpat Ram mainly brought the attested photocopies of the service record of Nema Singh OTTI, IRLA. DW-6 Paramjit Singh deposed that he knew Gurbaksh Singh and Waryam Singh. Both are doing the business of transport. On 21.03.2007, he had taken lift from them to reach Chandigarh. When they reached near Chakki Band near Pathankot, there SI Inderjit Singh along with other police officials was present and they stopped their truck. SI Inderjit Singh asked them that he wanted their truck for carrying crusher for some senior official for begaar purpose upon which they refused and there was a quarrel between them. Then, SI Inderjit Singh threatened them that he will falsely implicate them. DW-6 Paramjit Singh further deposed that he requested SI Inderjit Singh to leave him as he is only a passenger and he was allowed to go and SI Inderjit Singh took Gurbaksh Singh and Waryam Singh in illegal custody. In cross-examination, he deposed that he did not move any application or representation to any official regarding the alleged false implication of accused nor he asked the Crl. Appeal No.D-18-DB of 2012 & connected appeals -12- Panchayat or co-villagers to take any action in this regard. DW-7 Sukhwinder Singh, Sarpanch mainly deposed that on 01.04.2007, police party came to the house of Balwinder Singh, who was harvesting cattle feed. On seeing the police, Balwinder Singh came to his house. Some other people also came at the spot. They enquired from the police as to why Balwinder Singh is being taken by them, then the police official told them that they are taking him regarding the case of Sukhchain Singh, brother-in-law of Balwinder Singh. Nothing incriminating was recovered from the accused. DW-8 Inspector Rajeshwar Singh also mainly deposed that Nema Singh never indulged in any illegal activities.
On the basis of the evidence produced by the prosecution, accused-appellants were convicted and sentenced as stated above by the Judge, Special Court, Kapurthala.
At the time of arguments, learned counsel for the appellant Nema Singh argued that there is no evidence on the record against Nema Singh. He further argued that appellant was held guilty only on the basis of disclosure statement of co-accused Gurbaksh Singh. Learned counsel for the appellant next argued that disclosure statement is admissible only to that extent in pursuance of which recovery is effected and the other part of the disclosure statement is irrelevant and cannot be read into evidence being confession before the police etc. He further argued that there is no evidence of any type against the accused-appellant Nema Singh regarding criminal conspiracy or abetment to commit offence.
Crl. Appeal No.D-18-DB of 2012 & connected appeals -13- Leaned counsel for other appellants argued that case of prosecution is doubtful as the samples were sent to FSL after 20 days. They further argued that no independent witness was examined in the present case. They further argued that compliance of Section 50 of NDPS Act has not been made. Provisions of Section 42 of NDPS Act have also not been complied with. Learned counsel for the appellants next argued that conscious possession of Waryam Singh is not proved by the prosecution. Learned counsel for the appellants further pointed out discrepancy regarding depositing the case property by Inspector Mangat Rai, Investigating Officer on 22.03.2007 as deposed by Head Constable Jasbir Singh, whereas the Investigating Officer stated that he left the case property with SHO Ashok Kumar. Learned counsel further argued that fake currency notes were planted upon Balwinder Singh appellant and the currency notes have not been sealed by the Investigating Officer. Therefore, they argued that appeal should be allowed.
On the other hand, learned Addl. Advocate General, Punjab for the respondent-State argued that case of the prosecution had been duly proved. PWs have consistently deposed regarding recoveries. All the mandatory provisions of NDPS Act have been complied with. Learned State counsel further argued that Section 42 of NDPS Act will not apply in the present case as the recovery was made from the vehicle parked at a public place. He further argued that Waryam Singh was driving the truck in which the accused Gurbaksh Singh was sitting with a bag and there is no explanation Crl. Appeal No.D-18-DB of 2012 & connected appeals -14- that Gurbaksh Singh boarded the truck as a passenger etc. Rather, in his statement under Section 313 Cr.P.C., he nowhere states that Gurbaksh Singh boarded the truck as passenger. Learned State counsel further argued that seals of the samples were found intact by the Chemical Examiner and there is also evidence on the record that these are not tampered with by anybody. Therefore, delay in sending the samples itself does not create reasonable doubt in the prosecution case. He further argued that police officials have no enmity or motive against the accused to depose falsely against them. Even if independent witness was not examined, it is not fatal to the prosecution case. Two Gazetted Officers have also deposed regarding the recoveries. Learned State counsel, therefore, argued that the appeals having no merit should be dismissed.
We have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellants and learned Addl. Advocate General, Punjab for the respondent-State.
From the evidence on record, first of all we find that there is no evidence on record to show the involvement of Nema Singh in the present case in any way. There is no evidence regarding criminal conspiracy or connivance of Nema Singh with the other accused. There is no recovery from accused-appellant Nema Singh. Name of Nema Singh is only mentioned by co-accused Gurbaksh Singh. It is settled law that disclosure statement under Section 27 of the Evidence Act given by the accused is relevant only to the extent in pursuance of which recovery is effected. The other facts written in the Crl. Appeal No.D-18-DB of 2012 & connected appeals -15- disclosure statement regarding part played by that accused or other accused in the offence are treated as confession before the police, which is hit by Section 25 of the Evidence Act. In the present case, even the other facts given by Gurbaksh Singh against himself are inadmissible and cannot be read into evidence except part of recovery in pursuance of disclosure statement. As regarding mentioning of role of Nema Singh by Gurbaksh Singh in the disclosure statement, at the most is confessional statement of co-accused. As already discussed it is inadmissible in evidence. Further, even name of Nema Singh has not been written in the statement of Gurbaksh Singh. Rather, 'Incharge' of BSF Chowki Abdulian is only mentioned. Therefore, from the evidence on record, we find that there is no cogent evidence against appellant Nema Singh in the present case. Some of the DWs as discussed above, have also deposed in favour of Nema Singh. Even the Investigating Officer and other witnesses have deposed that nothing incriminating has been recovered from Nema Singh during the investigation. There is also no document on record to connect him with the crime. Therefore, we find merit in the arguments of learned counsel for the appellant Nema Singh and we hold Nema Singh not guilty and he is acquitted of all the charges framed against him.
As regarding arguments of learned counsel for the appellants Gurbaksh Singh and Waryam Singh, we find no merits in their arguments. Even, if it is taken that samples were sent after 20 days, even then there is nothing on the record to show that the samples were tampered with. PWs have appeared and deposed that Crl. Appeal No.D-18-DB of 2012 & connected appeals -16- till the samples remained in their possession, neither they themselves nor they allowed anybody to tamper with the same. The report of Chemical Examiner also shows tallying of the sample seals and finding them in intact condition. Therefore, delay in sending the samples in no way creates doubt in the prosecution version. Link evidence is complete in the present case. The mere fact that PW-4 Jasbir Singh has deposed that PW-9 Inspector Mangat Rai deposited the case property with him on 22.03.2007, itself does not show that the case property was deposited by Inspector Mangat Rai. Inspector Mangat Rai has made recovery on that day and as per his statement he handed over the case property to the SHO Ashok Kumar on return, who also put his seal 'AK' on the samples as well as on the bulk parcels. Investigating Officer PW-9 Mangat Rai has also deposed regarding the same and PW-12 SHO Ashok Kumar also deposed the same facts. Therefore, this discrepancy in no way go to the root of the case nor it shows any tampering with the evidence, samples or case property.
As regarding the argument that no independent witness was examined in the present case, we find that it is settled law that testimony of police official is as good as of any other witness unless some enmity or motive is alleged and proved. In the present case, though, accused have produced DWs to show that SI Inderjit Singh stopped the truck or wanted the truck or the accused was apprehended on that ground but that defence version cannot be believed. There is no documentary evidence to support that defence Crl. Appeal No.D-18-DB of 2012 & connected appeals -17- version. Such type of witnesses can be produced at any stage. There is no documentary corroboration to their statements. If Gurbaksh Singh and Waryam Singh have been apprehended as deposed by DWs or in other words they have been falsely implicated in this case, then natural course for DW-7 Sukhwinder Singh, Sarpanch and other DWs, was to file application or representation or complaint to higher authorities or to report the matter to Gram Panchayat to get the resolution passed against the erring officials but no such step has been taken by the DWs. Therefore, much reliance cannot be placed on the defence version. There is no cogent evidence to show motive or enmity of the police officials to falsely implicate the accused. In the present case, total recovery is of about 9 kgs. of heroin and such a huge quantity cannot be falsely implanted upon the accused. Furthermore, two DSPs namely PW-1 DSP Harkamal Preet Singh and PW-10 DSP Jagjit Singh, in whose presence search was made and recoveries had been effected, have deposed consistently regarding prosecution version. There is nothing on the record that why Gazetted Police Officers will falsely depose against the accused-appellants. Therefore, on the mere fact that independent witness was not examined, no reasonable doubt exists in the prosecution case. It is for the prosecution to produce those witnesses who support the prosecution version. If any PWs have been won over by the accused, the prosecution can give up them being won over.
As regarding conscious possession of appellant Waryam Crl. Appeal No.D-18-DB of 2012 & connected appeals -18- Singh, we find that Waryam Singh was driving the truck and apprehended on the spot from which recovery has been effected and Gurbaksh Singh was sitting with him holding a bag. It is not case of Waryam Singh that Gurbaksh Singh had taken the lift in the truck from somewhere. Rather, the case of the accused as given in the statement under Section 313 Cr.P.C. and also as per defence version is that they have been brought from District Pathankot as they refused to give the truck to PW-6 SI Inderjit Singh, but as already held, there is nothing on the record to support the defence version. How PW-6 SI Inderjit Singh reached Pathankot when he was posted in Kapurthala District. Otherwise also, first recovery was effected by PW-9 Inspector Mangat Rai on 22.03.2007 and the second recovery of 5 kgs. of heroin was effected by PW-6 SI Inderjit Singh. Even if it is presumed that SI Inderjit Singh had some quarrel with Gurbaksh Singh and Waryam Singh, why two Gazetted Police Officers and the other Investigating Officer Inspector Mangat Rai will depose falsely against the accused. They have no motive to depose falsely against the accused and in no way they can be held under the influence of PW-6 SI Inderjit Singh. So the defence version is not believable. The recovery was effected from Gurbaksh Singh, who was sitting with Waryam Singh having a bag in his hand, itself proves conscious possession of Waryam Singh and Gurbaksh Singh.
As regarding compliance of Section 42 of the NDPS Act, we find that recovery was effected from the truck on the public road, therefore, Section 43 of the NDPS Act will apply and Section 42 will Crl. Appeal No.D-18-DB of 2012 & connected appeals -19- not apply in the present case. Therefore, on this ground also, it cannot be held that provisions of NDPS Act have not been complied with.
As regarding compliance of Section 50 of the NDPS Act, we find that recovery of 5 kgs. of heroin has been effected in pursuance of disclosure statement of Gurbaksh Singh, which the accused himself got recovered. Other recovery was from the bag which he was carrying. Otherwise also, PW-10 DSP Jagjit Singh was called, who was a Gazetted Officer and in whose presence and supervision, recovery was effected from the bag carried by the accused Gurbaksh Singh. In our view firstly there was no need for compliance of Section 50 of the NDPS Act in the present case. Even otherwise, option was given to the accused-appellants to get the search conducted from the Investigating Officer or from DSP himself or from a Magistrate. Therefore, from the above discussion, we find no merits in the arguments of learned counsel for the appellants Gurbaksh Singh and Waryam Singh.
As regarding accused-appellant Balwinder Singh, we find that he got recovered fake currency notes in pursuance of his disclosure statement. There is FSL report. It is written in the recovery memo that all the notes were bearing same number. Therefore, in no way it can be held that accused-appellant Balwinder Singh was not knowing that those currency notes are fake one. Therefore, appellant Balwinder Singh has been correctly convicted and sentenced under Section 489-C IPC. Hence, we also find no merit in the arguments of Crl. Appeal No.D-18-DB of 2012 & connected appeals -20- the learned counsel for the appellant Balwinder Singh.
From the evidence on record, we find that PWs have consistently deposed regarding recoveries from Gurbaksh Singh, Waryam Singh and Balwinder Singh. There are no material contradictions or improvements in their statements which may go to the root of the case. Link evidence is complete. All the mandatory provisions of NDPS Act have been complied with. Defence version is not believable. Prosecution has duly proved its case by leading cogent evidence beyond reasonable doubt.
In view the above, CRA No.D-18-DB of 2012, CRA No.D- 398-DB of 2012 and CRA No.3039-SB of 2011 filed by Gurbaksh Singh, Waryam Singh and Balwinder Singh respectively, are dismissed. As accused-appellant Balwinder Singh is on bail, his bail bonds stand cancelled and he is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance with law.
Further, CRA No.1241-SB of 2012 filed by Nema Singh Otti is allowed. The impugned judgment of conviction and order of sentence qua him is set aside. He be released forthwith if he is not required in any other case.
(JASBIR SINGH) (INDERJIT SINGH)
JUDGE JUDGE
April 01, 2013
Vgulati