Punjab-Haryana High Court
At Chandigarh vs Gurtej Singh And Another on 12 August, 2013
Author: K.C.Puri
Bench: K.C.Puri
Verma Sunil
2013.10.22 11:55
Criminal Appeal No. 1325 SB of 2010 1 I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court
Chandigarh
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 1325 SB of 2010
Date of decision 12 .08.2013.
State of Haryana
...... Appellant.
versus
Gurtej Singh and another
...... Respondents.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Mr. Amit Kaushik, Senior DAG, Haryana for the appellant.
Mr. Anmol Rattan Singh Sidhu, Sr. Advocate for
respondents No.1 and 2
K.C.PURI, J.
State of Haryana has directed the present appeal against the judgment dated 11.2.2010 and order dated 13.02.2010 passed by Shri J.S.Kundu, learned Additional Sessions Judge, Sirsa for enhancement of sentence imposed under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on the respondents.
2. The brief facts of the prosecution case are that on 20.04.2006 at about 7:00pm a police party headed by Ajmer Singh SI of Police Station City Dabwali in a Government vehicle bearing registration No. HR-24F-
Verma Sunil 2013.10.22 11:55 Criminal Appeal No. 1325 SB of 2010 2 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 8702 was present at Bathinda Chowk, Dabwali in connection with patrolling and detection of crime. In the meantime, a TATA Sumo vehicle bearing registration No. DL-4CJ-0733 came from Sirsa side. On seeing the police party, the driver of the said vehicle tried to reverse the same. On suspicion, the vehicle was got stopped. The vehicle was being driven by accused Gurtej whereas accused Jagmeet alias Sony was found sitting on the rear seat of the vehicle. On checking of the vehicle, two gunny bags were found lying on the rear portion of TATA Sumo. Suspecting some type of contraband in the gunny bags, PW5 served a notice to accused Gurtej Singh apprising the right of search before Gazetted Officer or Magistrate or they could be summoned at the spot. Accused Gurtej Singh declined the said offer and opted to give search of the bag to him. Memos Exh.PG and Exh.PG/1 were signed by Gurtej Singh and were attested by HC Om Parkash and Parwinder Singh Constable. PW5 conducted the search of the gunny bags and poppy straw was recovered therefrom. Two samples of 100 gms each were separated from each bag. The remaining poppy straw on weighment was found to be 38 kgs in each bag. All the four samples and residue were converted into separate parcels, sealed with seal 'AS' and were taken into police possession vide separate recovery memo Exh. PH which was attested by aforesaid two witnesses. Seal after use was handed over to HC Om Parkash. PW5 conducted the search of the TATA Sumo and registration certificate was recovered. Thereafter, Inspector Ajmer Singh PW5 prepared ruqa and sent the same to police station through constable Parvinder Singh for registration of a case on the basis of which formal FIR Verma Sunil 2013.10.22 11:55 Criminal Appeal No. 1325 SB of 2010 3 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh was registered by Atma Ram MHC. On having come to know about the registration of this case, PW5 prepared rough site plan of the place of recovery with correct marginal notes. He prepared report under Section 57 of N.D.P.S Act on the spot. PW5 recorded the statements of the witnesses under Section 161 Cr.P.C and formally arrested the accused persons at the spot. After completion of investigation, the accused were sent up to face trial under Section 15 of N.D.P.S Act by the S.H.O P.S. City, Dabwali.
3. The accused were charge-sheeted under Sections 15 and 25 of N.D.P.S Act to which the accused pleaded not guilty and claimed trial.
4. The prosecution examined Baltej Singh PW-1, Inspector Madan Lal (PW-2), Balraj Singh ( PW-3 ), MHC Atma Ram (PW-4), Ajmer Singh, the investigating officer (PW-5), Om Parkash (PW-6) and closed the evidence.
5. Both the accused were examined under section 313 of Cr.P.C., and all the incriminating evidence appearing against the accused- respondents were put to them to which they denied and pleaded their innocence and stated that nothing was ever recovered from them. They further submitted that some persons died in an accident caused by Jaskaran Singh relative of accused Gurtej Singh on 24.04.2006. On that day i.e the date of accident on receipt of information, both the accused Jarnail Singh (father of accused Gurtej Singh), Amarjit Singh Sarpanch, Jai Singh and Jaskaran Singh s/o Nachattar Singh had come to village Dabwali in vehicle TATA Sumo bearing No. DL-4CJ-0733 of his co-accused to effect a compromise in that accident. A quarrel took place between them and the Verma Sunil 2013.10.22 11:55 Criminal Appeal No. 1325 SB of 2010 4 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh police at village Dabwali and due to that grudge the police took them to P.S. City Dabwali where they were made to sit and they were falsely implicated in this case while conducting the entire proceedings in the police station. The accused examined Jai Singh HC as DW-1 and Raj Kumar constable as DW-2 in their defence evidence.
6. The learned trial Court after appraisal of the evidence, vide judgment dated 11.2.2010 convicted the accused under Section 15 of the Act and vide order dated 13.02.2010 sentenced them to undergo rigorous imprisonment for a period of four months and to pay a fine of Rs.5000/- each and in default thereof to further undergo rigorous imprisonment for a period of one month each.
7. Feeling dissatisfied with the impugned judgment and order, the State has preferred the present appeal for enhancement of sentence.
8. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
9. Learned counsel for the appellant has submitted that according to the prosecution story two bags containing about 38.200kgs each of poppy husk were recovered from the appellant. Learned trial Court has also accepted the prosecution evidence that two bags of poppy husk containing 38.200kgs of poppy husk were recovered from the respondents. Admittedly, recovery of 76.400kgs of poppy husk is commercial quantity and the minimum sentence prescribed for commercial quantity is rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-. It is submitted that the trial Court on technicalities has held that two samples were drawn at Verma Sunil 2013.10.22 11:55 Criminal Appeal No. 1325 SB of 2010 5 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh the spot may belong to one bag and on that account, the respondents were convicted for having been found in possession of 38.200kgs of poppy husk. It is submitted that the trial Court has gone on technicalities.
11. Learned counsel for the appellant-State has further submitted that even if it is assumed that 38.200kgs of poppy husk was recovered from the respondents in that case the sentence of four months is extremely on lower side. It is submitted that commercial quantity is more than 50kgs of poppy husk. 38.200Kgs of poppy husk is nearer to commercial quantity and awarding sentence of four months amounts to frustrate the very purpose of enacting the Act. The prayer has been made for enhancement of sentence.
12. Learned counsel for the respondents-accused has supported the judgment of the trial court. It is submitted that the learned trial Court has rightly held that prosecution has failed to prove that samples were sent from one bag or two bags. So, the learned trial court has rightly held that recovery of 38.200kgs of poppy husk is not proved. In authority Sikander Singh vs. State of Punjab reported in 2005 (2) R.C.R. (Criminal ) page 810, accused was convicted for lessor quantity where the samples sent for analysis were not proved to be from one bag or from the two bags.
13. Learned counsel for the respondents-accused has further submitted that a Division Bench of this Court in authority State of Punjab versus Tarlok Kumar reported in 2001 (2) R.C.R. ( Criminal) page 334 , has held that the delay of four days in sending the sample was held to be a ground for acquittal. In the present case also there is a delay in sending the sample.
Verma Sunil 2013.10.22 11:55 Criminal Appeal No. 1325 SB of 2010 6 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh
14. Again in authority Noor Aga vs. State of Punjab and another reported in 2008 (3) R.C.R. (Criminal ) page 633, the Hon'ble Apex Court has held that statutory instructions issued in terms of the provisions are mandatory in nature , the substantial compliance of the same insisted upon.
15. In authority Rita Karoline Kummel vs. Customs reported in 2001 (1) R.C.R. (Criminal ) page 328 (Delhi High Court ) held that severer the punishment, greater care has to be taken to see all the safeguards provided in a statute are scrupulously followed.
16. I have carefully considered the submissions made by both the sides and have gone through the records of the case.
17. The allegation against the accused-respondents in this case are that two bags each containing 38.200kgs of poppy husks were recovered from them without any licence and permit. The learned trial Court accepted the version of the prosecution in respect of recovery of two bags of poppy husk but has given the benefit to the respondent-accused on account of the fact that prosecution has not marked the sample. In all four samples were drawn from two bags i.e, two samples from each bag. It is observed by the trial Court that the prosecution has failed to prove that sample sent for analysis was from the same bag or from two bags and as such the prosecution has been able to prove the recovery of 38.200kgs of poppy husk only.
18. Now the question arises whether the said finding of the trial Court called for any interference or not? After re-appreciation of the Verma Sunil 2013.10.22 11:55 Criminal Appeal No. 1325 SB of 2010 7 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh evidence that finding does not call for any interference. The State counsel could not point out that samples were marked and also failed to raise any pointed attention that the sample sent to the Forensic Science Laboratory belongs to two different bags and not from one bag. The possibility of error in sending two samples for analysis out of the four samples drawn from one bag, cannot be ruled out in the absence of any specific marking on the samples.
19. The State counsel could not specifically bring to my notice that marking of the samples were done.
20. Similar question was posed before this Court in authority Sikander Singh's case (supra) in that case four samples of 250grams each were drawn from two bags each containing 25½kgs. The prosecution failed to prove that sample belongs to two different bags or one bag in the absence of marking of samples. The accused was convicted for having been found in possession of 25½kgs of poppy husk in respect of one bag whereas the total recovery was 51kgs from two bags.
21. So, in these circumstances, the finding of the trial Court in the present case that prosecution has been able to prove the guilt of the accused regarding 38.200kgs of poppy husk does not call for any interference.
22. The accused has not challenged his conviction in respect of recovery of 38.200kgs of poppy husk without any licence and permit by filing any appeal.
23. However, the counsel for the accused has challenged the conviction on the ground that there is a delay in sending the sample and that Verma Sunil 2013.10.22 11:55 Criminal Appeal No. 1325 SB of 2010 8 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh statutory instructions have not been complied with. However, counsel for the appellant could not convince during the course of argument that the sample sent for analysis was tampered with at any stage and mere delay in sending of the sample is not a ground for discarding the prosecution version. So, the accused/respondents cannot derive the benefit of authorities State of Punjab versus Tarlok Kumar's case (supra) and Noor Aga's case (supra).
24. In authority Rita Karoline Kummel's case (supra) it has been held that harsher the punishment and sticker is the proof. There is no dispute to the said proposition of law laid down in that ruling. However, in the present case, recovery of two bags of poppy husk stands proved by the official witnesses. There was no reason for the prosecution witnesses to falsely implicate the accused and to allow the actual culprit to go scot free. Such a huge quantity of poppy husk cannot be planted without any motive. No motive has been alleged or proved by the accused for falsely implicating them. Moreover, the respondents have not challenged their conviction by filing an appeal.
25. The second contention raised by the counsel for the appellant - State is in respect of quantum of punishment. The said contention carries weight and has to be accepted. The Parliament in its wisdom has enacted the Narcotic Drugs and Psychotropic Substances Act, 1985 with a view to curb the menace of use of the poppy husk and other Narcotic Drugs. The very purpose of the Act would be frustrated by mere awarding four months of imprisonment for having been found in possession of 38.200kgs of poppy Verma Sunil 2013.10.22 11:55 Criminal Appeal No. 1325 SB of 2010 9 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh husk. The commercial quantity is more than 50kgs of poppy husk. Although according to the prosecution 78.400kgs of poppy husk recovered from the accused/respondents but on technical grounds mentioned above, the prosecution has been able to prove the recovery of 38.200kgs of poppy husk. The punishment provided under the Act for possession of quantity lessor than commercial but greater than small quantity is that of rigorous imprisonment for a terms which may extend to ten years and with fine which may extend to Rs.1,00,000/-. The punishment of rigorous imprisonment for four months for having been found in possession of 38.200kgs of poppy husk does not commensurate with the offence proved against the accused/respondents. So, it will amount to mockery of justice to award punishment of only four months for having been found in possession of 38.200kgs of poppy husk without any licence and permit.
26. Even in authority Sikander Singh's case (supra) relied upon by the counsel for the accused/respondent, the punishment awarded for having been found in possession of 25½kgs of poppy husk was for three years and a fine of Rs.5000/-.
27. So, considering the ratio of that judgment relied upon by the counsel for the accused/respondents, the sentence of the accused stands enhanced to rigorous imprisonment for a period of three years and to pay a fine of Rs.5000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one month.
28. The accused are stated to be on bail. They be taken into custody to undergo the remaining part of their sentence as mentioned above.
Verma Sunil 2013.10.22 11:55 Criminal Appeal No. 1325 SB of 2010 10 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh
29. However, while dealing with the appeals under Narcotic Drugs and Psychotropic Substances Act, 1985, it is revealed that the Special Courts are awarding sentence which in some of the cases do not commensurate with the offences proved. In one of those cases, sentence of two years was awarded even in case of commercial quantity i.e. 4Kgs of opium. The present case is also an example of awarding sentence which is irrational and frustrate the very object of enactment of NDPS Act.
30. So, in these circumstances, information be called from all the Special Judges, of the States Punjab, Haryana and Union Territory Chandigarh and they be directed to submit the details of cases decided during the last one year under NDPS Act. The Special Judges are required to give the FIR Numbers and its details, quantity recovered and the sentence awarded. These lists will contain the details of NDPS Act in which conviction has been recorded. The said details be called on or before 10.10.2013.
31. A copy of this judgment be sent to the trial Court for strict compliance.
August 12 , 2013 ( K. C. PURI ) sv JUDGE