Punjab-Haryana High Court
Kulwant Singh @ Kanti vs State Of Punjab on 8 February, 2011
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No. 1651-SB of 2008 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Date of decision: 8.2.2011
(I) Crl.Appeal No.1651-SB of 2008
Kulwant Singh @ Kanti
... Appellant
versus
State of Punjab
... Respondent
(II) Crl.Appeal No.2079-SB of 2008
Harnek Singh
... Appellant
versus
State of Punjab
... Respondentt
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr.D.S.Dhindsa, Advocate,
for the appellant in Crl.Appeal No.1651-SB of 2008
Mr.H.S.Grewal, Advocate, Amicus Curiae,
for the appellant in Crl.Appeal No.2079-SB of 2008
Mr.Rajinder Mathur, AAG, Punjab.
...
JORA SINGH, J.
Crl.Appeal No.1651-SB of 2008 and Crl. Appeal No.2079-SB of 2008 were preferred by Kulwant Singh @ Kanti and Harnek Singh, respectively, to challenge the judgment of conviction and order of sentence dated 24.7.2008 passed by Judge, Special Court, Patiala, in Sessions Case No.86-T of 23.5.2008/8.11.2004, arising out of FIR No.143 dated 11.5.2004 under Sections 15 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, `the Act'), PS, Samana.
By the said judgment, they were convicted under Section 15 of Crl.Appeal No. 1651-SB of 2008 2 the Act and sentenced to undergo RI for 10 years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for 2 years each.
Dalwinder Singh was acquitted of the charge levelled against him. Against acquittal, no appeal by the State.
Prosecution story, in brief, is that on 11.5.2004, police party headed by SI Kashmira Singh, CIA Staff, Patiala, was holding nakabandi near T-Point Kularan, Bhawanigarh Road, Samana, in connection with checking of vehicles and suspected persons. At about 10.30 AM, truck No. MP-09-K-6778 came from the side of Samana and had stopped about 15/20 karams from the naka. Driver and another person, who was sitting by the side of the driver, after alighting from the truck tried to run away from the spot, but they were apprehended by the police party. On enquiry, driver of the truck disclosed his name as Harnek Singh. Second person sitting by the side of driver disclosed his name as Kulwant Singh. In the meantime, Pardeep Kumar came and was joined by the police party. SI Kashmira Singh suspected some intoxicant in the bags loaded in the truck. Offer was given to the accused separately as to whether they wanted search of the truck before a gazetted officer or a Magistrate. Both the accused reposed faith in the IO for search of the truck. Consent memos (Ex.PB and Ex.PC) were prepared separately. On search of truck, 70 bags of poppy husk, 102 bags of metha and 10 bags of zamain were found loaded in the truck. Two samples each weighing 100 grams were separated from each bag containing poppy husk and remaining poppy husk in each bag on weighment was found to be 34.800 kgs. 140 samples and the remaining poppy husk in 70 bags were sealed separately by the IO with his own seal bearing impression Crl.Appeal No. 1651-SB of 2008 3 `KS'. Seal impression of the seal used was prepared separately. Seal after its use was handed over to ASI Ranbir Singh. Case property was taken into police possession vide separate memo attested by the witnesses. Remaining bags containing metha and zamain were also taken into police possession vide separate memo attested by the witnesses. Route permit, RC, second route permit and insurance cover recovered from the dash board of the truck were also taken into police possession vide separate memo attested by the witnesses. As per RC, owner of the truck was Dalwinder Singh son of Hakam Singh. Grounds of arrest were brought to the notice of the accused. Ruqa (Ex.PM) was sent to the police station, on the basis of which, formal FIR (Ex.PM/1) was registered.
On return to the police station, case property along with accused was produced before SHO Hardevinder Singh, who after verifying the investigation and interrogating the accused, affixed his own seal bearing impression `HS' on the sealed parcels. Seal impression was prepared separately. Case property was deposited by the IO with the Incharge of Malkhana. On the next day, case property was withdrawn from the Malkhana and produced before the Ilaqa Magistrate along with the accused. Inventory report was prepared by the IO. 100 grams to serve as sample was separated from each bag containing poppy husk and samples and remaining poppy husk in bags were sealed by the Magistrate with his own seal bearing impression `VK'. Photographs of the case property were also got clicked in the Court premises. On return to the police station, IO had re-deposited the case property with the Incharge of Malkhana. 70 sample parcels were sent to the office of Chemical Examiner for analysis. After completion of investigation, challan was presented in Court.
Crl.Appeal No. 1651-SB of 2008 4
Accused were charged under Section 15 of the Act, to which they pleaded not guilty and claimed trial.
Supplementary challan was presented against Dalwinder Singh, owner of the truck.
Again charge was framed under Sections 15 and 25 of the Act against the accused, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined PW1 HC Harjit Singh, who tendered his affidavit (Ex.PA). He was Incharge of Malkhana, with whom case property was deposited by the IO.
PW2 ASI Ranbir Singh is one of the recovery witnesses. He has supported the prosecution story by saying that he was with the police party headed by SI Kashmira Singh and party was holding nakabandi near T-Point Kularan, Bhawanigarh Road, Samana, in connection with checking of vehicles and suspected persons. At about 10.30 AM, truck No. MP-09- K-6778 came from the side of Samana and had stopped about 15/20 karams from the naka. Accused after alighting from the truck tried to run away from the spot, but they were apprehended by the police party. On enquiry, driver of the truck disclosed his name as Harnek Singh. Second person sitting by the side of driver disclosed his name as Kulwant Singh. IO suspected some intoxicant in the bags loaded in the truck. Offer was given to the accused separately as to whether they wanted search of the truck before a gazetted officer or a Magistrate. As per reply of the accused, bags were searched and on search, 70 bags were found to be containing poppy husk. Two samples each weighing 100 grams were separated from each bag containing poppy husk and remaining poppy husk in each bag on weighment was found to be 34.800 kgs. 140 samples and the remaining Crl.Appeal No. 1651-SB of 2008 5 poppy husk in 70 bags were sealed separately by the IO with his own seal bearing impression `KS'. Seal impression was prepared separately. Seal after its use was handed over to him. Case property was taken into police possession vide separate memo attested by the witnesses. On return to the police station, case property along with accused was produced before SHO Hardevinder Singh, who after verifying the investigation and interrogating the accused, affixed his own seal bearing impression `HS' on the sealed parcels. Seal impression was prepared separately. Case property was deposited by the IO with the Incharge of Malkhana.
PW3 Inspector Hardevinder Singh stated that case property was produced before him. After verifying the investigation and interrogating the witnesses and accused, he had affixed his own seal on the sealed parcels bearing impression `HS'. Seal impression was prepared. IO had deposited case property with the Incharge of Malkhana.
PW4 SI Kashmira Singh is the Investigating Officer.
After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent.
Opportunity was given to lead evidence but no defence was led.
After hearing learned PP for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on file.
Learned defence counsel for the appellants argued that Crl.Appeal No. 1651-SB of 2008 6 according to the story, 70 bags of poppy husk were recovered from the truck owned by Dalwinder Singh, who was acquitted by the trial Court, but no cogent and convincing evidence that appellants were in conscious possession of the contraband. Appellants when examined under Section 313 Cr.P.C., then no question was put to them that they were in conscious possession of the contraband. Recovery was effected on 11.5.2004, whereas sample parcels were deposited in the office of Chemical Examiner on 18.5.2004. There is a delay of 7 days. Independent witness was with the police party, but he was not examined. Seal after its use was not handed over to independent witness. Seal after its use was handed over to ASI Ranbir Singh but seal was returned to the IO on the next day. So, possibility of tampering with the case property cannot be ruled out. In case, recovery was genuine one, then independent witness should have been produced. Non-examination of independent witness falsifies the story. File shows that all documents were prepared on the spot but FIR number was not with the police party. FIR number find mentioned in all the documents. That means, entire writing work was done in the police station. There was no recovery as per story.
Learned State counsel argued that recovery of 70 bags of poppy husk was from the truck. Section 50 of the Act is not applicable. Recovery of poppy husk is clear from the statements of ASI Ranbir Singh and SI Kashmira Singh, IO. Before recovery, police officials had no enmity with the appellants. Without enmity, there was no idea to implicate the appellants. Appellants when examined under Section 313 Cr.P.C., then did not state a word as to why they were implicated. Harnek Singh was driving the truck and Kulwant Singh was sitting by his side. Recovery was from the Crl.Appeal No. 1651-SB of 2008 7 truck. Appellants were to explain how the bags containing poppy husk were loaded in the truck. After recovery, case property was produced before the SHO, who after verifying the investigation and interrogating the appellants had affixed his own seal on the sealed parcels bearing impression `HS'. Seal impression was prepared separately. On the next day, case property was produced in Court. Inventory report was prepared. Magistrate had separated one sample each weighing 100 grams from each bag. Samples were sealed by the Magistrate with his own seal bearing impression `VK'. Seals were found intact and tallying with the seal impressions, as per report of the laboratory. No possibility of tampering with the case property. After recovery, ruqa was sent at 5.00 PM. Constable through whom ruqa was sent came back at the spot with FIR number. Special report was delivered to the Ilaqa Magistrate at 8.40 PM. While preparing the documents, space was left to record FIR number. After receipt of FIR number, then in all documents, FIR number was written where the space was left for recording the same. Not safe to opine that while preparing the documents, FIR number was written at the same time. Independent witness was with the police party but he was given up as won over by the appellants. If story was not genuine one, then independent witness could easily be produced in defence.
First submission of learned defence counsel for the appellants was that appellants were not in conscious possession of the contraband recovered as per story. No question was put to the appellants when examined under Section 313 Cr.P.C. that they were in conscious possession of the contraband recovered. In support of this contention, learned defence counsel for the appellants cited 2010 (3) RCR (Crl.) 831, Jagir Singh vs. Crl.Appeal No. 1651-SB of 2008 8 State of Punjab, and 2010(3) RCR (Crl.) 86, Surinder @ Sudama vs. State of Haryana.
In the first authority, police party was present at canal bridge in connection with patrolling. During night time at about 1.30 AM, one truck was seen while coming from the side of Village Daroli Kalan. Truck was signalled to stop. On search of truck, 4 bags containing poppy husk were recovered. In the second authority, recovery of smack was from the bag carried by the accused in his hand. In both the above cited authorities, Court opined that no specific question was put to the accused when examined under Section 313 Cr.P.C. that he was in conscious possession of the contraband. But after going through the evidence on the file, I am of the opinion that submission of learned defence counsel for the appellants carries little weight. In the present case, police party was holding nakabandi near the Kularan turning, Bhawanigarh Road, Samana. At about 10.30 AM during day time, truck was signalled to stop while coming from the side of Samana. Truck was stopped about 15/20 karams from the naka. After alighting from the truck, appellants tried to run away from the spot but they were apprehended by the police party. IO suspected some contraband in the bags loaded in the truck. Offer was given to the appellants separately as to whether they wanted search of the truck before any Gazetted Officer or Magistrate. As per reply of the appellants, truck was searched. 70 bags containing poppy husk were found. Other bags were containing metha and zamain.
ASI Ranbir Singh is one of the recovery witnesses, whereas SI Kashmira Singh is the IO. Both on oath stated that when police party was holding nakabandi near T-Point Kularan turning, Bhawanigarh Road, Crl.Appeal No. 1651-SB of 2008 9 Samana, then truck No. MP-09-K-6778 came from the side of Samana and had stopped about 15/20 karams from the naka. After alighting from the truck, appellants tried to run away from the spot but they were apprehended by the police party. IO suspected some contraband in the bags loaded in the truck. Offer was given to the appellants separately as to whether they wanted search of the truck before any Gazetted Officer or Magistrate. They reposed faith in the IO. Section 50 of the Act was not applicable because recovery was from the truck but even then offer was given to the appellants separately as to whether they wanted search of the truck before any Gazetted Officer or Magistrate. Suggestion was given to the recovery witness and the IO that case is false. No suggestion to the witnesses that appellants were implicated in this case. Before the present occurrence, appellants had no enmity with the police party. No suggestion to any witness that appellants were implicated at the instance of some body, with whom they had enmity and that person was known to the police party. 70 bags, each weighing 35 kgs. poppy husk, were recovered. Out of remaining bags, 102 bags were of metha and 10 bags of zamain. Without enmity, there was no idea to plant 70 bags of poppy husk and show recovery of 102 bags of metha and 10 bags of zamain. Recovery of 70 bags of poppy husk is clear from the statements of ASI Ranbir Singh and SI Kashmira Singh, IO. Appellants when examined under Section 313 Cr.P.C., then question was put to them that they were apprehended by the police party while holding a nakabandi. Offer was given to them separately as to whether they wanted search of the truck before any Gazetted Officer or Magistrate. As per reply of the appellants, bags were searched by the IO. 70 bags were found to be containing poppy husk, 102 bags were found to be containing metha and 10 Crl.Appeal No. 1651-SB of 2008 10 bags were found to be containing zamain. Two samples each weighing 100 grams were separated from each bag containing poppy husk and remaining poppy husk in each bag on weighment was found to be 34.800 kgs. 140 samples and the remaining poppy husk in 70 bags were sealed separately by the IO with his own seal bearing impression `KS'. No doubt, specific question was not put to the appellants that they were in conscious possession of the contraband but appellants failed to explain how the bags were loaded in the truck. Harnek Singh did not state a word that he was not the driver of truck No. MP-09-K-6778, owned by Dalwinder Singh, acquitted by the trial Court. Once, possession of contraband is established, then it was for the appellants to explain that they were not in conscious possession of the contraband.
In 2009(2) RCR (Crl.) 762, State of Punjab vs. Ram Pal, Hon'ble Supreme Court opined that the word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. Possession need not be physical possession but can be constructive, having power and control over the article.
In 2009(4) RAJ 330, Balbir Kaur vs. State of Punjab, Hon'ble Supreme Court held that accused found sitting on the bags by the side of the road and on seeing the police party became nervous. Action of the accused raised suspicion. Police enquired about the contents of bags. Then accused disclosed that the bags contained poppy husk. Held that contraband was in conscious possession.
In the present case also, 70 bags of poppy husk were being transported in truck No. MP-09-K-6778. On seeing the police party while holding nakabandi near T-Point Kularan, Bhawanigarh Road, Samana, truck Crl.Appeal No. 1651-SB of 2008 11 was parked at a distance of about 15/20 karams. After alighting from the truck, appellants tried to run away from the spot, but they were apprehended. Recovery of 70 bags of poppy husk from truck No. MP-09- K-6778 driven by Harnek Singh is very much clear. At the time of recovery, Kulwant Singh was sitting by the side of Harnek Singh. So, once the appellants were found in possession of contraband, then presumption is that they were in conscious possession of the contraband. Appellants were to explain how bags containing poppy husk were loaded in the truck.
Next submission of learned defence counsel for the appellants was that recovery was effected on 11.5.2004, whereas samples were sent to the office of Chemical Examiner on 18.5.2004. There was a delay of 7 days. As per instructions of the Narcotic Bureau Centre, samples should be sent within 72 hours. Possibility of tampering with the case property cannot be ruled out. Reliance was placed on 2008(3) RCR (Crl.) 520, Bhajan Singh @ Ghola vs. State of Punjab. But submission of learned defence counsel for the appellants seems to be not correct one. No doubt, recovery was effected on 11.5.2004. Case property was sealed by the IO with his own seal bearing impression `KS'. Seal impression was prepared separately. Seal after its use was handed over to ASI Ranbir Singh. On return to the police station, case property was produced before the SHO, who after verifying the investigation, had affixed his own seal on the sealed parcels bearing impression `HS'. Seal impression was also prepared separately. IO had deposited case property with the Incharge of Malkhana. On the next day, case property was withdrawn by the IO for production in the Court. Case property was produced before the Magistrate. Inventory was prepared. Magistrate had separated 100 grams from each bag to serve Crl.Appeal No. 1651-SB of 2008 12 as sample. Photographs of the case property were also got clicked. 70 samples and remaining poppy husk in the bags were sealed by the Magistrate with his own seal bearing impression `VK'. After production of case property in Court, case property was re-deposited with the Incharge of Malkhana. Seals were found intact and tallying with the seal impressions.
No doubt, there are standing instructions of Narcotic Bureau Centre that samples should be sent within 72 hours but no authority was cited by learned defence counsel for the appellants that if the sample parcels are not deposited within 72 hours, then on this short ground, story is to be rejected. In case sample parcels are not deposited within 72 hours, then this is one of the suspicious circumstance. In Bhajan Singh's case (supra), there was a delay of one month in depositing the sample in the office of Chemical Examiner. There were other grounds for acquittal of the accused.
Delay of 7 days in depositing the sample parcel in the office of Chemical Examiner is not fatal to opine that case property was tampered with.
Next submission of learned defence counsel for the appellants was that independent witness, namely, Pardeep Kumar, was joined but seal after its use was not handed over to him. He was not produced. Non- appearance of independent witness as prosecution witness falsifies the story. But submission of learned defence counsel for the appellants is without any force. Admittedly, Pardeep Kumar was joined as independent witness but seal of the IO after its use was not handed over to him. Pardeep Kumar was given up as won over by the appellants. If there was no recovery, then he could easily be produced in defence. In Balbir Kaur's case (supra), independent witness was joined but he was given up as won Crl.Appeal No. 1651-SB of 2008 13 over and appeared in defence. Hon'ble Apex Court opined that appearance of independent witness in defence cannot be said that search and recovery are in any manner vitiated.
Next submission of learned defence counsel for the appellants was that as per story, documents were prepared at the spot and while preparing the documents, FIR number was written. When FIR number was not with the police party, then it means that documents were prepared in the police station and not at the spot but submission of learned defence counsel for the appellants is not correct one. After recovery, ruqa was sent at 5.00 PM. Constable through whom ruqa was sent came back at the spot with FIR number. While preparing the documents, space was left to record FIR number. After receipt of FIR number, then in all the documents, FIR number was written at the space left for recording the same. FIR number was not written in the same sequence while preparing consent memos, recovery memos and personal search memo etc. After recording FIR in view ruqa sent at 5.00 PM, special report was sent to the Ilaqa Magistrate. Report was received by the Ilaqa Magistrate at 8.40 PM on the same day. So, nothing to presume that while preparing the documents, FIR number was written at the same time.
Last submission of learned defence counsel for the appellants was that appellants are very poor. They were brought from their houses and false implication. But submission of learned defence counsel for the appellants seems to be not correct one. No suggestion was put to the witnesses that appellants were brought from their houses. Appellants when examined under Section 313 Cr.P.C., then did not state a word that they were brought from their houses. Earlier to the recovery, police officials Crl.Appeal No. 1651-SB of 2008 14 had no enmity with the appellants. Appellants are from different villages. When appellants had no enmity with the police officials, then why from different villages were brought by the police. In case, there was false implication, then complaints could easily be sent to different authorities. No complaint by the owner of the truck that Harnek Singh was not the driver and Kulwant Singh was not the Cleaner or truck was away to some other State. Owner of truck was also not inimical towards police party. So, without any reason, no question of false implication.
In view of all discussed above, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is upheld.
For the reasons recorded above, both the appeals, i.e., Crl.appeal No. 1651-SB of 2008 and Crl.Appreal No.2079-SB of 2008 without merit are dismissed.
Appellants are on bail. They are directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which, concerned authority/CJM, Patiala, to issue re-arrest warrants to undergo the remaining period of sentence.
8.2.2011 ( JORA SINGH ) pk JUDGE