Punjab-Haryana High Court
Pardeep Kashyap vs State Of Haryana on 25 September, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
Criminal Appeal No.S-186-SB of 2011 (O&M)
with
Criminal Appeal No.S-606-SB of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.S-186-SB of 2011 (O&M)
Date of Decision: September 25, 2013.
Pardeep Kashyap
..Appellant(s)
Versus
State of Haryana
...Respondent(s)
Crl. Appeal No.S-606-SB of 2011 (O&M)
Date of Decision: September 25, 2013.
Manjesh @ Monu
..Appellant(s)
Versus
State of Haryana
...Respondent(s)
CORAM: HON'BLE MS. JUSTICE ANITA CHAUDHRY
1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No
2. To be referred to the Reporters or not? Yes/No
3. Whether the judgment should be reported in the digest? No
Present: Mr. R.S. Madan, Advocate for the appellant
in CRA-S-186-SB of 2011.
Mr. D.S. Adhlakha, Advocate for the appellant
in CRA-S-606-SB of 2011.
Mr. Dhruv Dayal, Deputy Advocate General, Haryana
for the respondent-State.
*****
ANITA CHAUDHRY, J.
1. This judgment would dispose of Crl. Appeal No.186- SB of 2011 bearing title Pardeep Kashyap Vs. State of Haryana and Crl. Appeal No.606-SB of 2011 bearing title Manjesh Vs. State of Haryana.
Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -2-
2. Appellants Manjesh @ Monu and Pardeep Kashyap have been convicted under Sections 18 & 21 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred as 'NDPS Act') and Section 25 of the Arms Act vide judgment of conviction dated 14.12.2010 and order of sentence dated 16.12.2010 passed by Judge, Special Court, Yamuna Nagar at Jagadhri and accused Manjesh @ Monu was awarded the following punishment:-
Sr. Offence u/S Rigorous Fine Imposed Sentence in No. Imprisonment default of imposed payment of fine
1. 18 of NDPS Act 05 years `5000/- Rigorous (Rupees five imprisonment for thousand) six months
2. 21 of NDPS Act 05 years `5000/- Rigorous (Rupees five imprisonment for thousand) six months
3. 25 of Arms Act 02 years `2000/- Rigorous (Rupees two imprisonment for thousand ) three months All the sentences awarded to accused Manjesh were ordered to be run concurrently.
Accused Pardeep Kashyap was convicted under Section 30 of the Arms Act and was sentenced to undergo rigorous imprisonment for six months along with a fine of `1000/- under Section 30 of the Arms Act. In default of payment of fine, he was to undergo rigorous imprisonment for one month.
3. Detailing the facts, Virender Singh Inspector/SHO of Police Station City Jagadhri was present in front of S.D. Public School, Jagadhri on patrolling duty when he received secret information that Manjesh resident of Gher Gaushala (Uttrakhand) Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -3- who indulged in transportation of Opium and Charas and kept illegal weapons had come to Jagadhri and would proceed towards Jagadhri Market via Matka Chowk and if a raid is conducted, he can be apprehended with the contraband. Believing the information to be true, Inspector Virender Singh prepared a memo under Section 42 of the Act and sent the same to DSP Jagadhri. Thereafter, Inspector laid a picket at Matka Chowk and at about 07:00 A.M. a young boy was seen coming from the bus stand side on foot. On seeing the police party, he turned back and started moving fast. He was apprehended. He disclosed his name and parentage. A notice under Section 50 of the Act was served upon him and he was informed of his right to get the search effected in the presence of a gazetted officer or a Magistrate. The accused exercised the option of getting the search effected in the presence of a gazetted officer. A message was sent to Het Ram, DSP who arrived on the spot and inquired about the facts. Thereafter, the search was carried out and a green-yellow coloured polythene was recovered from the right pocket of the trouser worn by the accused which on opening was found to contain white powder which was identified as smack. From the left pocket, a blue polythene containing opium was recovered. A revolver 0.22 bore bearing No.045100096 was recovered from the shirt pocket and a straw box containing 22 cartridges was also recovered. Accused Manjesh was carrying a licence in the name of Pardeep Kashyap (co-accused). The recovered contraband was measured and the smack was found to be 330 gms., the opium was weighed and found 130 gms. Two samples weighing 50 gms. each were Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -4- separated from the smack. Two samples of 10 gms. each were also separated from the opium. The samples as well as residue were converted into separate parcels and sealed with seal bearing impression 'VS' belonging to the Investigating Officer. DSP, Het Ram also affixed his seal bearing impression 'HR'. The parcels along with impression of sample seals were taken into police possession and recovery memo was prepared which was duly witnessed. The revolver was measured and its sketch was prepared. The cartridges were counted and put into separate parcel and were sealed accordingly. Ruka Ex.PW12/A was sent to the police station for registration of the FIR. A formal FIR bearing No.28 dated 25.01.2008 was registered in P.S. City Jagadhri. Later on Pardeep Kashyap was arrested as he had violated the terms and conditions of the arms licence. Sanction for prosecution of Manjesh was obtained. The samples and the residue were produced before the Area Magistrate who certified the inventory. The samples were sent to FSL Madhuban. On receipt of the report and completion of all the formalities, the challan was laid in the Court.
4. Charges under Section 18 & 21 of the NDPS Act and under Section 25 of the Arms Act were framed against accused Manjesh. Charge under Section 30 of the Arms Act was framed against accused Pardeep Kashyap. Both the accused pleaded not guilty to the charges and claimed trial.
5. During trial, the prosecution examined 12 witnesses. Inspector Virender Singh - PW12, DSP Het Ram - PW10, ASI Balraj Singh - PW9 are the witnesses to the recovery of the Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -5- contraband and the revolver. ASI Zile Singh - PW1 had arrested accused Pardeep Kashyap. Raj Kumar, Reader to District Magistrate
- PW2 had proved the sanction order Ex.PW2/A. ASI Devi Dayal who was then the MHC - PW5 proved his affidavit Ex.PW5/A, Ram Pal Clerk in the office of Deputy Commissioner - PW6 proved the arms licence in the name of Pardeep Kashyap. The rest of the witnesses are formal witnesses who deposed about the registration of the case and recording of certain entries and provided various links in the case of the prosecution.
6. On conclusion of the prosecution evidence, the incriminating evidence brought on record was put to the appellants who denied the allegations and pleaded false implication. Manjesh denied that any recovery was effected from him. He stated that earlier he was booked by the police in two cases under the NDPS Act in which he had been discharged. Accused Pardeep Kashyap took the plea that the revolver was in possession of Rakesh Tyagi, his friend who had got the entry changed as he wanted to purchase it from him and an application for removal of the entry was to be moved and Rakesh Tyagi has taken his licence in good faith and did not return the revolver and Rakesh Tyagi had played foul. He is innocent and he had not committed any offence. Both the appellants tendered documents Ex.D1 to Ex.D3 in defence evidence.
7. On appreciation of the evidence, the Special Judge found that the recovery was effected from the appellant Manjesh and the prosecution had fully established its case and it was also a case of violation of provisions of Arms Act. Both of them were convicted to the sentences mentioned herein before. Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -6-
8. I have heard the submissions made by both the sides and have perused the record.
9. It was contended on behalf of the appellants that the police had secret information but they did not join any independent witness and the area is thickly populated and no explanation has come on record as to why they were not joined. It was urged that the contraband was found to be diazepam and the quantity was small. It was urged that in the Ruka there is a reference to the fact that passersby were called and ASI Balraj Singh admitted to the presence of witnesses but no explanation was offered by the witnesses. It was contended that there was a delay in sending the samples to the FSL and in the affidavit it had been stated that the sample was sent on 29.12.2008 and the requirement of the rule is that it should have been sent to FSL within 72 hours. It was again urged that the recovery had taken place in the presence of the DSP but his statement under Section 161 Cr.P.C. was never recorded and it has caused prejudice to the appellants as they had been deprived of the opportunity to bring up the contradictions. It was vehemently urged that the samples of 50 gms. were taken but in the report the weight of both the samples was more than what was drawn and the sample seal was not sent. It was contended that it has come in the evidence that after the sample was received from the FSL, it was sealed but when it was produced in the Court, it was loosely tied. It was further urged that form 29 was not filled on the spot. It was urged that all the documents have been prepared in the police station as FIR number is mentioned on the same. It was Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -7- contended that it was strange that no cash was recovered from the appellant Manjesh and there is no evidence that the revolver was in a working condition nor any Armourer was examined. It was also urged that the exhibits put on the cartridges shows that they were 24 cartridges but the recovery memo was only of 22 cartridges and the cartridges have been planted to fill up the lacuna.
On behalf of appellant Pardeep, it was urged that sanction for prosecution of appellant Pardeep was not taken which is fatal to the case. It was vehemently urged that there was no evidence that the revolver and cartridges were live and in the absence of evidence of the expert or Armourer, conviction could not be recorded. It was also urged that appellant Pardeep was awarded imprisonment for six months and he has already undergone half of the sentence and the fine has been paid and if the Court is of the view that the offence had been committed by Pardeep then he may be released on probation or the sentence may be reduced to already undergone. In support of the arguments, learned counsel for the appellants placed reliance upon Gurdev Singh and others Vs. The State of Punjab 2009(2) R.C.R.(Criminal) 299, Rupinder Singh Vs. State of Punjab 2012(2) R.C.R. (Criminal) 547, Balwan Singh Vs. State of Haryana 2011(2) R.C.R. (Criminal) 422, Balwinder Singh alias Billa Vs. State of Haryana 2009(2) R.C.R. (Criminal) 730, Randhir Singh Vs. State of Haryana 2010(2) R.C.R. (Criminal) 388, Gurjant Singh Vs. State of Punjab 2007(4) R.C.R. (Criminal) 226, Dayal Singh and Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -8- another Vs. State of Punjab 2007(2) R.C.R. (Criminal) 596; Dadu alias Indraka Vs. State of M.P. 2003 Crl. L. J. 1125, Jaspal Singh Vs. State of Punjab 1999 CRL.L.J. 600, Sans Pal Singh Vs. State of Delhi 1999 CRL.L.J. 19 and Het Ram Vs. State of Haryana 2011(1) R.C.R. (Criminal) 105.
10. Per contra the counsel representing the State vehemently urged that non-recording the statement of DSP under Section 161 Cr.P.C. has not caused any prejudice. It was urged that the authority referred to by the appellant related to the statement of the constable who took the samples to the office of the Chemical Examiner and there it was found that the accused had been deprived of the opportunity of confronting him with his previous statement and therefore, it was found that non-recording of the statement under Section 161 Cr.P.C. was fatal. It was further urged that the delay in sending the samples would not be vital as it remained in custody of the MHC and it was sent to the FSL after three days and the FSL report clearly states that the seals were intact. It was vehemently urged that the weight reflected in the FSL report is of the sample and the container and there is no discrepancy. It was also urged that the appellant Manjesh was arrested on a winter morning when hardly any person would be around and there is no Dhaba around the place of arrest. It was contended that as regards the cartridges, an inventory was prepared by the Illaqa Magistrate and 22 cartridges had been noted and there appears to be some mistake while putting the exhibits at the time of recording the statement in the Court or it could be typographical mistake. It was urged that Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -9- sanction was required for prosecution under Section 25 of the Arms Act which had been taken and the prosecution had fully established its case and compliance of mandatory provisions had been made.
11. The case of the prosecution which emerges from the record is that the police had definite information that Manjesh who was involved in smuggling of contraband and its illegal trade would be coming to Jagadhri and if a raid is effected, he can be secured. The accused was apprehended and suspecting him to be carrying contraband, a notice under Section 50 of the Act was given and the accused was apprised of his right to get the search effected in the presence of a gazetted officer or a Magistrate. The accused expressed his desire to get the search carried out in the presence of a gazetted officer. The inspector then flashed a message to Het Ram, DSP who arrived on the spot. On the directions of DSP, the police officials gave their search to the accused and thereafter, the personal search of appellant Manjesh was carried out and he was found to be in possession of Charas, Opium, one revolver and 22 cartridges. The necessary formalities which included sealing of the samples and the residue were carried out on the spot.
12. The argument put forth by the appellant Manjesh is that the search was carried out in a thickly populated area and no person from the public was called to join the investigation and the police had prior information and it was fatal to the case. A perusal of the statement made by Het Ram, DSP shows that he (DSP) and the Investigating Officer had tried to join public persons for the Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -10- investigation but they had refused. The DSP had only stated that neither he nor the Investigating Officer had called any shopkeeper from nearby shops to join the investigation. A perusal of the site plan shows that there are no shops nearby the place of recovery. The accused was apprehended near Hindu Girls College. Samrat Hotel is shown to be at a distance. It is clear from the perusal of the site plan Ex.PW12/A that there are no shops near the place of recovery. The statement made by the Investigating Officer as well as DSP is that they had tried to make efforts to join independent witnesses and it has to be accepted. The testimony of official witnesses should not be rejected solely on account of their official status.
13. A perusal of the record shows that there is no delay in sending the samples. The date indicated in the affidavit sworn by MHC Devi Dayal is incorrect. A wrong date due to clerical error is reflected in the affidavit. A perusal of the affidavit shows that the samples have been received by the FSL on 29.01.2008 and not on 29.12.2008. In Hardip Singh Vs. State of Punjab 2008(4) RCR (Criminal) 390 it was held that the delay of 40 days in sending the samples could not have caused any prejudice to the appellant. The issue was dealt in para 12 of the said judgment which is as under:
"12. So far as the question of delay in sending the samples of opium to the Forensic Science Laboratory (FSL) is concerned, the same in our opinion has no consequence for the fact that the recovery of the said sample from the possession of Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -11- the appellant stands proved and established by cogent and reliable evidence led in the trial. PW-5 has categorically stated and asserted about the recovery of opium from the possession of the appellant, which fact is also corroborated by a high officer, namely S.S. Mann, DSP, who was also examined at length during the trial. The said recovery was effected in the presence of the said S.S. Mann, DSP, as senior police officer, who also put his seal on the said parcels of opium. The then Station House Officer, Inspector Baldev Singh, who was examined as PW1, was posted at Police Station Ajnala on the date of occurrence. He received the said samples of opium along with case material, being produced before him by PW-5. It has come on evidence that Inspector Baldev Singh kept the entire case property with him till it was deposited in the office of the Chemical Examiner, Amritsar on
30.09.1997 through ASI Surinder Singh, (PW-3). It has also come on evidence that till the date the parcels of sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -12- possession of the appellant. In that view of the matter, delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant. The aforesaid contention, therefore, also stands rejected."
14. From the above discussion, it can safely be held that there was no tampering with the seal and delay in sending the sample did not cause any prejudice to appellant Manjesh and his contention stands rejected. So far as the contention that the statement under Section 161 Cr.P.C. of the DSP was not recorded is concerned, it can be termed to be a serious irregularity alone but it has not been shown that it had considerably prejudiced the accused to make his testimony tainted and it is not fatal to the prosecution case and it has not occasioned into any miscarriage of justice. The DSP had reached the spot only on the information received from the Investigating Officer. He had got the police officer searched before getting the search of the appellant. There was no breach of any of the provisions and the trial Court had considered and noted all these aspects.
15. A contention had been raised that the weight of the sample was lesser than what was actually sent to the Forensic Science Laboratory whereas the FSL refers to a higher weight. It is not so, the weight given in the FSL report is the weight of the sample as well as the container together and not only the sample. This argument merits rejection. The sample which reached the office of FSL, was not tampered. The FSL report certified it very carefully. The sample was duly sealed when it was sent back. Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -13- Dealing with the next argument, reference to the statement of PW-9 Balraj Singh would be necessary as the argument was that the samples which were produced in the Court, were not stitched in a cloth but had been tied. A reading of his statement shows that the witness had spoken about the manner in which the samples were sealed. He had explained that the samples were put in a polythene and then in a plastic container and then the samples were wrapped in a cloth and stitched. The witness had further stated that the samples which were shown in the Court, were not stitched but had been tied. The argument made on behalf of appellant has hardly any merit. The office of the Chemical Examiner had found the seals intact.
16. As regards the argument that Form 29 was not filled on the spot, it is only an irregularity but it does not make the whole case doubtful nor it is fatal to the case.
17. A contention had also been made by appellants that the FIR number had been received subsequently but the documents would reveal that the FIR number had been written at the time of the preparation of the documents and it goes to show that the papers were never prepared at the spot and were prepared in the police station. This argument again has no merit. The FIR number had been put subsequently and it is clearly visible on the notice and other documents i.e. Ex.PW9/A to Ex.PW9/K.
18. It is an admitted case that an inventory was prepared when the recovered material was produced before the Illaqa Magistrate. The inventory shows that there were 22 cartridges. No doubt, when the cartridges were exhibited, it appears that the Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -14- exhibits number had wrongly been counted, the statements as well as references acknowledged only to 22 cartridges. It is not a case of plantation.
19. The defence had tried to project that the case was doubtful and improbable but in my considered view, there is hardly any discrepancy or major contradiction of which benefit would accrue to the appellants. There are no glaring lacunas in the prosecution case. There was no reason for the police party to falsely implicate the appellants and plant a false case on them.
20. The FSL report shows that the sample was of diazepam and the appellant Manjesh could not justify his possession and had made himself liable under the Act. Manjesh was also found in possession of a revolver. The licence was in the name of appellant Pardeep Kashyap. Appellant Manjesh had kept the revolver in his conscious possession and had thus violated the provisions; of the Arms Act. The prosecution had obtained sanction for prosecution of appellant Manjesh and there is no infirmity in the sanction.
21. The prosecution had fully established the charges against appellant Manjesh under Section 18 and 21 of the NDPS Act and under Section 25 of the Arms Act and the judgment as against him is confirmed.
22. So far as appellant Pardeep is concerned, he had made himself liable under Section 30 of the Arms Act. He had given his licensed revolver to Manjesh and had violated the terms & conditions of the Act. He was rightly convicted by the trial Court and the judgment does not call for any interference. The Counsel Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document Criminal Appeal No.S-186-SB of 2011 (O&M) with Criminal Appeal No.S-606-SB of 2011 (O&M) -15- for the appellant Pardeep had prayed for his release on probation as he was a first offender. It has also been urged that appellant Pardeep Kashyap had already undergone half of the sentence and in the alternate had prayed for his release to a sentence already undergone.
23. Keeping in view the peculiar circumstances, the prayer regarding sentence of Pardeep Kashyap is accepted. The sentence awarded to Pardeep Kashyap is modified. Appellant Pardeep is sentenced to undergo the period already undergone.
24. In view of the above discussion, the appeal preferred by appellant Manjesh is dismissed. The judgment and sentence passed as against Manjesh @ Monu is confirmed. The sentence awarded to appellant Pardeep is modified. The appeal of appellant Pardeep is disposed off, accordingly. Lower Courts record be sent back.
(ANITA CHAUDHRY) JUDGE September 25, 2013 sunil Sunil 2013.10.01 14:38 I attest to the accuracy and integrity of this document