Punjab-Haryana High Court
Natha Singh vs State Of Haryana on 13 January, 2011
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No. S-667 SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. S-667 SB of 2001
Date of decision 13.1.2011.
Natha Singh
...... Appellant.
versus
State of Haryana
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present : Mr. D.N.Ganeriwala, Advocate for the appellant.
Mr. Amandeep Singh Assistant Advocate General, Haryana.
K.C.PURI, J.
Natha Singh appellant has directed the present appeal against the judgment and order dated 12.3.2001 passed by Shri C.B.Jaglian, learned Additional Sessions Judge, Sirsa vide which accused/appellant has been convicted under Section 15 of the Narcotic Drugs and Psychotrpic Substances Act, 1985 ( in short - the Act) and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Criminal Appeal No. S-667 SB of 2001 2 Rs.1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two years whereas acquitted accused Lakha Ram and Sona Singh co-accused of the appellant of the charges levelled against them.
The prosecution story when put in brief is that on 13.4.2000 ASI Bharat Singh along with police officials was present for patrolling at T-point of road leading to village Alika where he received a secret information against Natha Singh accused. While going for raid he came across Tarlochan Singh, who was joined in the police party. The police party then went to the fields of Subhash situated in village Panihani where a tractor trolley was found parked. Natha Singh and Sona Singh were found sitting on the Mudguards of the tractor. A separate notice under Section 50 of the Act was given to each of the accused informing them that if they so wanted, a Gazetted Officer or a Magistrate could be called at the spot for search of the trolley, which was loaded with bags, they desired that a Gazetted Officer should be called at the spot for search. Accordingly, ASI Bharat Singh sent a V.T. Message to Sanjay Kumar, ASP, Sirsa, who reached at the spot. After his arrival and on his directions, ASI Bharat Singh conducted the search of the trolley, which was found loaded with 45 bags of lime at the top and 20 bags of poppy husk at the bottom. Each bag of poppy husk weighed 41 kgs including the weight of the bag. Two samples weighing 250 grams each were separated from each of 20 bags. The sample parcels and the bags were sealed with the seal bearing impressions 'B.S.' was entrusted to Constable Trilok Singh while the seal of SK was returned to ASP after retaining the impressions of the seal on a Criminal Appeal No. S-667 SB of 2001 3 piece of paper. The tractor was of red colour make 'Eicher' but that did not have any registration number. The engine and chassis number of the tractor were mentioned in the recovery memo Ex.PD. A ruqa Ex.PE was sent by the Investigating Officer to the Police Station Sadar Sirsa where formal FIR Ex.PE/1 was recorded by SI Punjab Singh. The investigating Officer prepared rough site plan of the place of recovery, recorded the statements of the witnesses and arrested the accused. After completion of necessary investigation challan against the accused was presented against the accused for trial.
On appearance of accused, documents were supplied to the accused. A prima facie case under Sections 15 of the Act was found against the accused. Charge was accordingly framed against the accused. The accused pleaded not guilty and claimed trial.
In order to prove its case, prosecution examined ASI Bharat Singh (PW-1), Head Constable Trilok Singh (PW-2), Head Constable Bharat Singh (PW-3), Sham Lal (PW-4), ASI Punjaba Singh (PW-5), Trilochan Singh (PW-6) and ASP Sanjay Kumar (PW- 7).
The statements of the accused under Section 313 Cr.P.C. were recorded. They denied the allegations of the prosecution and claimed that they are innocent. Accused Natha Singh pleaded that his relative Sukhminder Singh contested the election of Sarpanch against Guddar Singh who is brother of Sukhdev Singh of Baragudha, who is an active worker of INLD parety which is in power in Haryana at present. His relative Sukhminder Singh was elected as Sarpanch. His co-accused Lakha Singh and Sona Singh belong to the party of his relative Sukhminder Singh and Criminal Appeal No. S-667 SB of 2001 4 they were apprehended from their village on 12.4.2000 in the presence of Sukhminder Singh while he was apprehended from the Dhani of Dilbag Singh on 11.4.2000 in the presence of Sadhu Singh and this false case planted upon the accused and his co-accused at the instance of Sukhdev Singh. Similar defence has been taken by the other accused. accused examined Kapoor Singh as DW-1, Constable Kapoor Singh as DW-2, HC Bharat Singh as (DW-3), Sadh7u Singh, Member Panchayat (DW-4) and Sukhminder Singh (DW-5).
The learned trial Court after hearing the learned counsel for the parties convicted and sentenced the accused/appellant vide judgment and order dated 12.3.2001, as aforesaid.
Feeling dis-satisfied with the aforesaid judgment and order, the appellant has preferred the present appeal.
I have heard learned counsel for the appellants and learned Deputy Advocate General for the State of Punjab and have also carefully perused the case file.
Learned counsel for the appellant has submitted that there is clear cut non-compliance of Section 42 of the Narcotic Drugs and Psychotrpic Substances Act, 1985. The case is based upon secret information received by the investigating officer but the same has not been reduced into writing. So, there is violation of Section 42 of the Act, which is mandatory in nature. The Hon'ble Supreme Court and the various other High Courts since 1994 constantly have held that non-compliance of Section 42 of the Act vitiate the trial.
It is further submitted that Tarlochan Singh, witness was Criminal Appeal No. S-667 SB of 2001 5 alleged to be present at the time of recovery, the seal after use was not handed over to him and was kept by the police official. There was ample opportunity for the prosecution to tamper with the seal.
Learned counsel for the appellant has further submitted that appellant was not taken into custody on 11.4.2000 and at the instance of Sarpanch, he has been falsely implicated. The trial Court has wrongly discarded the testimony of defence witnesses in this regard.
It is further submitted that on the same set of allegations Sona Singh accused, alleged to be present at the time of occurrence, has been acquitted by the trial Court. There was no occasion for the trial Court to convict the appellant on the same allegation.
It has been further submitted that that the prosecution has failed to prove the conscious possession of the poppy husk in question. Mere fact that quantity of poppy husk alleged to be recovered is large, the accused cannot be convicted. It is submitted that the prosecution has failed to prove the ownership of tractor and trolley in question from which the poppy husk has been alleged to be recovered. Even the investigating officer has not investigated the case in this regard. The statement of the investigating officer simply to the effect that no registration number was found on the tractor cannot be accepted. The chassis number and engine number must be on the tractor. So, the ownership could be established by the prosecution from the evidence on file.
Lastly, it is submitted that in case this court does not accept the contention of appellant regarding his acquittal, in that case, the sentence in default clause of two years is excessive which may be reduced. Criminal Appeal No. S-667 SB of 2001 6
In support of the above submissions, learned counsel for the appellant has cited following authorities :-
1. State of Punjab vs. Balbir Singh 1994 (1) RCR (Criminal) 736
2. State of West Bengal and others vs. Babu Chakraborty AIR 2004 Supreme Court 4324
3. State of Punjab vs. Balkar Singh and another AIR 2004 Supreme Court 4606
4. Gurnam Singh vs. State of Punjab 2006 (3) RCR (Criminal) 205
5. Raj Kumar vs. state of Punjab 2005(1) RCC 279
6. Beckodan Abdul Rahiman vs. State of Kerala 2002 (2) RCC 225 ;
7. Kashmir Singh vs. State of Punjab 2006 (2) RCR (Criminal) 477
8. Shanti Lal vs. State of M.P. 2007 (4) RCC 617 On the other hand learned State counsel has supported the judgment of the trial Court and it is submitted that such a huge quantity of poppy husk cannot be implanted. The recovery has been effected in the presence of Gazetted Officer. So, prayer has been made for dismissal of the appeal.
I have given my thoughtful consideration to the rival contentions and have gone through the records of the case. Criminal Appeal No. S-667 SB of 2001 7
So far as the submission made by the counsel for the appellant that seal was not handed over to the independent witness and on that account the prosecution story is doubtful is concerned, that submission is without any substance. It is not mandatory that seal should be handed over to an independent witness. It depends upon the circumstances of each case. To appreciate this aspect of the case, from the facts and circumstances of the case handing over the seal to an independent witness does not create any doubt in the prosecution version. Such a huge quantity of poppy husk cannot be planted. The reasoning given for false implication was rightly rejected by the trial Court as the same does not appeal to the reason.
So far as the submission made by learned counsel for the appellant-accused that the appellant-accused was taken into custody on 11.4.2000 is concerned, that submission is also without any substance. The defence witnesses produced in this regard are interested witnesses and have wrongly deposed to save the accused from legal punishment. Their testimony has been rightly discarded by the learned trial Court.
So far as the submission made by the learned counsel for the appellant to the effect that on the same set of allegation, Sona Singh accused has been acquitted is wrong on the face of it. The case of Sona Singh accused is distinguishable. His name does not appear in the secret information. The recovery was effected in the presence of the Gazetted officer ASP Sanjay Kumar (PW-7). The bags of poppy husk were concealed by the appellant under the bags of lime. So, the learned trial Court has rightly convicted the appellant.
Criminal Appeal No. S-667 SB of 2001 8
So far as the submission made by the learned counsel for the appellant that the prosecution has failed to prove the conscious possession is concerned, that submission is also without any substance. Sections 35 and 54 of the Act shift the onus to disprove the conscious possession of contraband once accused is found in possession of contraband. It has come on the record that tractor was not bearing any registration number. So, in these circumstances, the prosecution was handicapped to find out the ownership of the tractor in question. Mere fact, that tractor and trolley contained engine number and chassis number, is not sufficient to put onus on the prosecution to make further investigation regarding ownership of tractor and trolley. The accused has to explain under what circumstances, he has come in possession of such a huge quantity of poppy husk.
So far as the submission made by the learned counsel for the appellant that there is non-compliance of Section 42 of the Act, I find no fault on the observations made by the trial Court in paragraph No.13 of the judgment in this regard. The learned trial Court has rightly held that ruka was sent, which contained the details of the case, and impliedly fulfills the conditions of Section 42 of the Act. Moreover, the said provisions are attracted in case of search and seizure made between sun set and sun rise. The accused has failed to prove that search and seizure was made between the said period. So, the appellant cannot have the benefit of authorities State of Punjab vs. Balbir Singh and State of West Bengal vs. Babu Chakorbortry cases (supra).
Authority State of Punjab vs. Balkar Singh's case is distinguishable as in that case possession of poppy husk was not proved. Criminal Appeal No. S-667 SB of 2001 9
Authority Gurnam Singh's case (supra) is distinguishable as in that case recovery was not in the presence of Gazetted Officer.
Authority Raj Kumar's case (supra) is distinguishable as in that case possession of contraband was not proved.
Authority Beckodan Abdul Rahiman's case relates to the recovery of 11 grams of opium from the personal search of the accused. Section 50 of the Act is not attracted to the facts of the present case and on that account the learned counsel for the appellant has rightly not raised any argument in this regard.
In authority Kashmir Singh's case (supra) also conscious possession was not put to the accused and was not proved. So, that authority is also distinguishable.
So, far as the submission made by learned counsel for the appellant to the effect that sentence in default clause be reduced can be accepted in view of authority Shanti Lal's case (supra). In the said case, the sentence in the default clause was reduced to six months instead of three years. So, the sentence in default clause stands reduced to one year instead of two years as awarded by the trial Court.
So, in view of the above discussion, the appeal stands dismissed with the modification in the default clause of sentence of imprisonment. The appellant shall undergo rigorous imprisonment for ten years and shall also pay a fine of Rs.1,00,000/- and in default thereof, shall undergo imprisonment for a period of one year instead of two years as awarded by the trial Court.
.
Criminal Appeal No. S-667 SB of 2001 10
The appeal stands disposed of accordingly.
A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI )
JUDGE
January , 2011
sv