Punjab-Haryana High Court
Partap Singh @ Kala vs State Of Punjab on 19 April, 2012
Author: A.N. Jindal
Bench: Hemant Gupta, A.N. Jindal
Crl. Appeal No. 449 DB of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 449 DB of 2009
Date of decision: April 19, 2012
Partap Singh @ Kala
...Appellant
Versus
State of Punjab
...Respondent
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. GS Kaura, Advocate,
for the appellant.
Mr. Sandeep Moudgil, DAG, Punjab.
A.N. JINDAL, J.
Vide judgment dated 27.1.2009 (under challenge) passed by the Special Court, Patiala, convicted and sentenced the accused-appellant- Partap Singh @ Kala and Sukhbir Singh (non-appellant) to undergo rigorous imprisonment for 11 years and to pay fine of Rs. 1,10,000/- each under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to 'the Act').
On the wee hours of 18.9.2006, Inspector Karansher Singh had raised a picket where just before 4 a.m., he received a secret information that accused were coming in the Scorpio jeep bearing registration No. MH- 043A/8858 from the side of Guhla Cheeka carrying some contraband. At this, after joining Gurcharan Singh, an independent witness, the police party were put on alert. At about 4 a.m. the aforesaid Scorpio vehicle arrived there. On giving signal, the driver of the jeep, who later on came to Crl. Appeal No. 449 DB of 2009 2 known as Partap Singh @ Kaka, struck the jeep in the barricade and all the four occupants including him tried to flee away. However, two of them succeeded in escaping under the garb of darkness, whereas the appellant and one Sukhbir Singh @ Bittu were apprehended. After giving them option to be searched in the presence of a gazetted officer or a Magistrate, the accused opted to be searched by a gazetted officer. Accordingly, memos Ex. PG and PH were prepared in that regard. Thereafter, DSP Bhupinder Singh, Samana was informed, who arrived at the spot. After disclosing his identity to the accused, he showed his intentions to search the vehicle. Thereafter, as per the directions given by the DSP, Inspector Karansher Singh searched the vehicle and recovered 12 bags of poppy husk. Two samples of 100 grams each from each bag were separated and were numbered as 1-A to 12A. On weighment of the residue each bag came to be 39.800 kgms, which were numbered as 1 to 12. The parcels of all the samples were prepared and sealed with the seal impression 'KS' and 'BS'. Sample seal Ex. P1 was prepared separately and the seal after use was handed over to Gurcharan Singh. Similarly, gunny bags after weighment were also sealed. Then the entire case property was taken into possession, vide recovery memo Ex. PE. Vehicle alongwith RC was also taken into possession, vide recovery memo Ex. PJ. As per the registration, the vehicle was found in the name of one Mrs. Gupta, resident of Coppercane Navi Mumbai.
Ruqa Ex. PO was sent through C. Balbir Singh for registration of the case, on the basis of which FIR Ex. PO/1 was recorded. The Investigating Officer prepared the rough site plan Ex. PP. Personal search memos of the accused Exs. PK and PJ were prepared. After informing the Crl. Appeal No. 449 DB of 2009 3 accused the grounds of arrest, they were arrested. On the same day, the Investigating Officer produced the case property as well as the inventory of the case property Ex. PX alongwith accused before the Sub Divisional Judicial Magistrate, Samana, who passed the order Ex. PS/1. Since Partap Singh was injured while striking the jeep, therefore, he was got medico legally examined, vide application Ex. PT and the report of doctor Ex. PT/2 was obtained in that regard.
On receipt of the report of the Chemical Examiner the charge report was submitted in the court.
Both the accused were charged under Section 15 of the Act and under Sections 479, 411, 467, 468 and 471 IPC.
In order to substantiate the charges, the prosecution examined PW1 HC Jaswinder Singh, PW2 HC Sukhdev Singh, PW3 DSP Bhupinder Singh, PW4 C-II Surjit Singh, PW5 HC Piara Singh, PW6 Dr. Rajesh Kumar, PW7 ASI Gurcharan Singh and PW8 Inspector Karansher Singh.
When examined under Section 313 Cr.P.C., the accused denied all the allegations and pleaded their false implication in the case. In defence, the accused examined DW1 HC Raja Singh, DW2 Nachhattar Singh and DW3 Kanwaljit Singh.
The trial resulted into conviction.
Arguments heard. Record perused.
In order to assail the prosecution version, learned defence counsel, primarily, has raised the contention that provisions of Section 42 of the Act have not been complied with. As no note with regard to the information received by the Investigating Officer had been sent to the police station before conducting the raid upon the accused, therefore, non- Crl. Appeal No. 449 DB of 2009 4 compliance of the said provisions vitiates the trial. As a matter of fact, section 42 of the Act was brought on the statute book in order to avoid any false implication and to give more authenticity and truthfulness to the allegations. Some times false raids are shown to have been conducted and false recoveries are shown by concocting the story of secret information, but it was never the intention of the legislature that these procedural provisions, as envisaged under Section 42 of the Act, are required to be strictly complied in a mathematical manner. The Apex Court in a case 2001 (3) RCR (Criminal) 808 (Sajan Abraham Vs. State of Kerala) observed that provisions of Section 57 are merely directory and not mandatory. Substantial compliance of the same serves the case of the prosecution. Their Lordships were of the view that the intention of Section 42 is that if the investigating officer is in the police station and he receives the information and had sufficient time to act on the information given, then he would reduce the same into writing and send the same to the SHO of Police Station and is also required to inform the higher authorities regarding such information, but in case where the Investigating Officer has little or no time for reducing such information into writing and he apprehends the information being leaked then the law did not make it mandatory for him to reduce such information into writing. A substitute was provided to the Investigating Officer to send the full particulars of the case to his superiors within 48 hours of the seizure as well as arrest of the accused. In the instant case, the information to DSP Bhupinder Singh, who was a gazetted officer, was given by the investigating officer through wireless message. He appeared as PW-3 and fully supported the prosecution case. Copy of the FIR Ex. PQ/1 also reveals that the FIR was received by the Illaqa Magistrate Crl. Appeal No. 449 DB of 2009 5 within 24 hours. Report with regard to seizure as well as arrest of the accused was given to the superior officers, including Illaqa Magistrate within 48 hours of the arrest and recovery. Even otherwise, in this case, the Investigating Officer was on his routine checking in the field when he received the information, a few minutes before the recovery. Thereafter, he without wasting any time placed the picket and could lay hands over the accused. In any case, no prejudice appears to have been caused for not reducing such secret information into writing. Therefore, the provisions of Section 42 of the Act which are directory in nature do not in any manner make recovery of such a huge quantity of contraband from the accused doubtful.
The other arguments raised by the learned counsel for the appellant is that recovery of petty amount of Rs. 50/- effected from Sukhbir Singh and Rs. 150/- effected from the appellant-Partap Singh shows that , their presence at the odd hours of time with such a huge quantity of contraband becomes improbable and doubtful.
We do not find persuaded by the contention. The accused were four in number. Out of them, only two were arrested. We do not know as to how much money the other two accused were having in their possession. Therefore, this argument fails on this sole ground. In any way, it is not the case of the accused that they needed money for any purpose, including petrol or otherwise. Therefore, mere fact that they had petty money in their possession hardly affects the prosecution case. Reliance, if any, could be made to the judgment Hakam Singh Versus State of Punjab, 2008 (4) Recent Criminal Reports 489.
We are also not impressed by the argument that provisions of Crl. Appeal No. 449 DB of 2009 6 Sections 50 and 52 of the Act have not been complied with by the prosecution. As a matter of fact, it is well settled by now that provisions of Sections 50 are applicable in the case of personal search but not in case of search of the vehicle, dwelling unit, building or other conveyance which is not the part of your body. In any case, having gone through the documents on record and consent memos Exs. PC and PD, we are convinced that the investigating officer had very cautiously complied with these provisions and had called for DSP Bhupinder Singh, who reached the spot so that a finger may not be raised qua the search aspect of the case. The accused had also reposed faith on DSP Bhupinder Singh and offered themselves to be got searched in his presence. Therefore, search in this manner cannot be said to have been vitiated.
Learned counsel for the appellant further argued that the story of the prosecution suffers from preponderances and probabilities as according to the prosecution there were about four persons. If this is so, then the huge police force, which was present at the spot, would not have allowed the two persons to run away and the accused as well as the contraband could not be adjusted in the Scorpio. In this regard, it may be observed that the story, as set up by the prosecution, cannot be said to be improbable or doubtful in any manner. On seeing the police party, accused Partap Singh, who was driving the vehicle, instead of stopping it quietly, struck it against the barricades with an intention to create a chaos and provide opportunity to the accused to escape. Accordingly, two persons were successful in escaping under the garb of darkness, however, Partap Singh (being injured) and Sukhbir Singh were apprehended. As such the prosecution version appears to be quite natural and probable and lacks any Crl. Appeal No. 449 DB of 2009 7 falsehood. If the police wanted to implicate the four persons, then it was not difficult for them to do so but that was not done. As regards the placing of twelve bags, volume of the vehicle needs no further explanation. It has sufficient room to place twelve bags. No suggestion was given to the witnesses that the Scorpio vehicle recovered from the accused could not accommodate twelve bags of small size.
Even otherwise, according to the prosecution, some bags of poppy husk were lying on the passenger seats of the vehicle whereas the remaining were stacked in its dicky. In this manner, 12 bags weighing 40 kgs each of poppy husk could easily be accommodated in the dicky and passenger seats, as Scorpio vehicle is a multi utility vehicle.
Now coming to the other argument, that there were nine days delay in sending the sample, we are of the view that actually this much delay normally occurs due to busyness of the police officials in multifarious duties. There was no allegations that the seals on the samples were ever tampered with or altered. The witnesses have duly proved that the Investigating Officer had taken the sample parcel and personally sealed them. It has also come in evidence that the parcels were intact when handed over to the constable and the same were also recovered intact when reached the Laboratory. The report does not reveal if there was any tampering with seals when these reached the Laboratory. Therefore, such delay, if any, caused in sending the sample, having not resulted into any prejudice to the accused, cannot be taken note of. The judgment, if any, in support of the issue can be cited as Dharambir Versus State of Haryana 2008 (4) RCR
41. Though many other arguments had been raised before the trial Crl. Appeal No. 449 DB of 2009 8 court to falsify the prosecution version but the learned counsel for the appellant has not touched the other issues, however, on scrutiny of the trial court judgment, it appears that the trial court widely dealt with all the issues including the fact as to why Gurcharan Singh was given up.
Gurcharan Singh cannot be said to be a police stooge merely for the fact that he was cited as witness in two different cases of the same police station. Search appears to have been conducted in a fair manner. The case property as well as samples were sealed by the investigating officer as well as DSP at the spot and also by the SHO at the police station. The case property complete in all respects was produced before the Illaqa Magistrate without any delay and free from any tampering. The case property was deposited in the malkhana in safe condition. Therefore, link evidence also cannot be said to be missing in the case.
No other argument has been advanced.
Now coming to the question of sentence, taking all the facts and circumstances of the case into consideration, we deem it appropriate to reduce the sentence from 11 years to 10 years and also reduce the fine from Rs. 1,10,000/- to Rs. 1,00,000/- under Section 15 of the Act without any alteration in the sentence awarded in case of default. We order accordingly. However, conviction and sentence under Section 279 IPC is maintained.
Resultantly, the appeal is dismissed with the aforesaid modification in the sentence.
(HEMANT GUPTA) (A.N. JINDAL)
JUDGE JUDGE
April 19, 2012
prem
Crl. Appeal No. 449 DB of 2009 9