Punjab-Haryana High Court
Rohtas Alias Bunder Son Of Bhim Singh vs The State Of Haryana on 26 February, 2003
Author: Virender Singh
Bench: Virender Singh
JUDGMENT Virender Singh, J.
1. Rohtas alias Bunder son of Bhim Singh resident of Bamdolli, District Rohtak stands convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as the Act) and has been sentenced to undergo RI for ten years. However, no fine has been imposed.
2. The factual matrix of the prosecution case is that on 27.2.1989, PW6 SI Shankar Lal alongwith other police officials went to village Bamdolli alongwith the appellant for the purpose of effecting recovery of the case property involved in case bearing FIT No. 39 of 1989 for the offence punishable under Section 457/380 of the Indian Penal Code. When they reached the house of the appellant and after recovery of the case property in the above said case was effected, SI Shankar Lal at once spotted 20 bags lying in a room situated in the east of the house of the appellant. They wee stacked in the northern portion of the room. They were checked and were found to be containing poppy straw weighing 35 kilograms each. From each of the bag 50 gms of poppy straw was taken and was put in a packet. Sample so drawn as representative of all the bags was sealed with the seal bearing seal impression SL and the bags and the remaining poppy straw were also sealed with the same seal and the case property was taken into possession vide recovery memo Ex. PB. Sample of the seal was handed over to one Head Constable Ishwar Singh PW5. The neighbours of the appellant had not joined the investigation out of fear of Rohtas alias Bunder appellant. The ruqa Ex. PA/2 was sent to the police station for recording formal FIR and consequently, the formal FIR Ex. PA was recorded by SI Som Dutt PW4. The statements of the witnesses were also recorded at the spot. After completing investigation at the spot, the appellant, the witnesses and the case property were brought before PW7 Raj Kumar Inspector/SHO of police station Bahadurgarh. He then made inquiries from the appellant, and witnesses and affixed his seal marked RK on the sample packet produced by Shankar Lal SI. He also took out sample from all the bags and sealed the samples so drawn and the bags as well. The case property was then entrusted to Moharar Head Constable of the police station. On receipt of report of the Chemical Examiner to the effect that the bags were containing poppy straw, the appellant was challenged in the present case.
3. The learned trial court framed a charge against the appellant under Section 15 of the Act.
4. In support of its case, the prosecution has examined seven witnesses. PW1 is Kali Ram Inspector. He has submitted the final report under Section 173 Cr. P.C. PW2 is Vijay Singh, Head Constable. His evidence is of formal character as he has tendered his affidavit Ex. PX. Similarly PW3 Daya Chand Constable has tendered his affidavit Ex. PY. SI Som Datt has been examined as PW4. He recorded the formal FIR on receipt of ruqa from SI Shankar Lal. Ishwar Singh Head Constable is examined as PW5. He is the witness of the recovery. He has unfolded the prosecution story by stating that contraband was recovered from the house of Rohtas alias Bunder appellant in a room situated in the east of his house when Rohtas alias Bunder was taken there for the purpose of effecting recovery in FIR No. 39 of 1989 registered against him under Section 457/380 IPC. He also talks of other formalities done at the spot.
5. PW6 SI Shankar Lal is the investigating officer. There no need of entering into detail discussion of his evidence as it has been highlighted by me in my preceding paras.
6. Raj Kumar Inspector is PW7. His evidence is in regard to compliance of provisions of Section 57 of the Act.
7. The defence of the appellant as emerges from his statement recorded under Section 313 Cr.P.C. is that he was infact taken in police custody at Delhi and was brought to the police station. It is then pleaded that 8 to 10 persons were already in the custody of the police and the police manufactured ten cases against him and also involved some other persons who were in their custody. It is further asserted by him that certain person were allowed to go for some reasons. However, in defence no evidence has been produced by the appellant.
8. On consideration of entire evidence, the appellant stands convicted and sentenced as indicated above. Hence, this appeal before me.
9. I have heard Mr. P.C. Chaudhary, learned counsel for the appellant and Mr. Rajnish Dhanda, learned Assistant Advocate General, Haryana. With their assistance, I have also gone through the records of the case.
10. At the very outset, Mr. Chaudhary has contended with vehemence that the prosecution has violated mandatory provisions of Section 52(1) of the Act and Section 100(4) of the Code of Criminal Procedure. Violation of these provisions would vitiate the trial and the appellant is entitled to acquittal.
11. On the other hand, Mr. Dhanda has submitted that there is no violation of any mandatory provisions in the present case. So far as joining of any independent witness is concerned, it is contended by Mr. Dhanda that it is the case of the prosecution that no one had come forward to join the recovery because of the fear from the side of the appellant. He further contended that in the present case, the police could not go to the extent of implicating the appellant in a case of huge recovery like the present case and as such the appellant has no escape from his liability.
12. After hearing both the sides, I am of the view that the prosecution has been able to bring home the guilt to the appellant beyond any shadow of doubt. So far as Section 52(1) of the Act is concerned, in the present case the provisions of Section 52(1) of the Act would not be applicable. Requirement of Section 52(1) of the Act is that any official arresting a person under Sections 41, 42, 43 or 44 shall, as soon as, may inform him of the grounds of his arrest. The present case is entirely on a different footing as is clear from the prosecution story. The appellant was already in custody of the police in connection with other case of theft and when the police reached the house of the appellant to effect the recovery of that theft case, 20 bags were spotted by SI Shankar Lal lying in a room and thereafter the recovery of the poppy straw was effected and as such nothing was left to be stated to the accused (appellant) in compliance of the above said provisions disclosing the grounds of such arrest. In my view the provisions of Section 52(1) of the Act have no application in this case and the same have not been transgressed by the investigating officer. The argument advanced by Mr. Chaudhary in this regard is, thus, repelled.
13. The other limb of arguments projected by the learned counsel for the appellant of non-compliance of Section 100(4) of Cr.P.C. also does not hold water. It is clear from the statement of Shankar Lal SI PW6 that he had not associated anyone from the locality before entering into the house of the appellant. The explanation given by SI Shankar Lal PW6 is that he had called neighbours to be the witness of the recovery but they had not joined the investigation on the plea that the appellant is a person of bad character. The relevant portion from his examination-in-chief is reproduced as under:-
"xx xxx xxx the neighbours were called to be witnesses. They did not join the investigation on the plea that Rohtas is a person of bad character.
"xx xxx xxx
14. I am of the view that this explanation is most plausible on the face of it. Even otherwise the strict compliance of Section 100(4) of Cr.P.C. was not required in this case because SI Shankar Lal had not entered the house in order to search for some contraband. he had already entered the house of the appellant in connection with another case of theft in which certain articles of the theft committed by him at different places were to be recovered and recovery of stolen articles was also effected as is clear from the statement of Shankar Lal SI. Incidently he spotted the poppy straw and took that also into possession and as such even if no witness from the locality was joined for taking contraband into possession would by itself not be a ground to doubt the recovery of 20 bags of poppy straw, a huge quantity. The appellant cannot derive any benefit from the contentions advanced by Mr. Chaudhary in this regard.
15. The prosecution version is fully supported by Head Constable Ishwar Singh PW5 and PW6 SI Shankar Lal. There is no reason to doubt or disbelieve their evidence. I have noticed that some minor discrepancies have occurred in the statements of these two witnesses but this cannot be termed as a weakness as to up root the prosecution case in its totality.
16. As a sequel to all that is said above. I am of the view that prosecution has established the charge against the appellant to the hilt and as such his conviction as recorded by the trial court deserves to be maintained.
17. No other point has been urged before me.
18. Consequently, the present appeal is dismissed being devoid of any merit.
19. The substantive sentence of the appellant was suspended by this court vide order dated 9.1.1991 and he was admitted to bail. Let the appellant be taken in custody forthwith to serve his un-expired period of substantive sentence. The learned trial court and Chief Judicial Magistrate concerned shall be informed at once in this regard to take necessary steps.