Punjab-Haryana High Court
Des Raj Khanna Son Of Shri Bhagwan Dass ... vs The State Of Punjab on 12 February, 2003
Author: K.C. Gupta
Bench: K.C. Gupta
JUDGMENT K.C. Gupta, J.
1. This appeal is directed by Des Raj Khanna, accused, against the judgement dated 12.8.1989 and order dated 14.8.1989 passed by the Additional Sessions Judge, Ludhiana, whereby he was found guilty and convicted under Section 18 of the N.D.P.S. Act and sentenced to undergo R.I. for 10 years and a fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo R.I. for one year.
2. Briefly stated, the facts are that on 23.1.1998, PW-3 Inspector Gurmail Singh alongwith police party was going in Jeep No. PCL-4891, which was being driven by Darshan Singh, Head Constable. They were on patrol duty towards Villages Dhandra, Kheri, Jhameli etc. When the said Jeep was about one furlong short of culvert of the canal minor in the area of Village Dhandra, they saw the appellant coming on a Hero Majestic Moped No. PCL-1441 from the opposite side. The appellant, on seeing the police party, got perplexed and parked his Moped on one side of the road and sat down in the near trenches on the pretext of passing water. However, he was apprehended on suspicion by PW-3 Gurmail Singh, Inspector with the help of his companions. he was given the option to get himself searched in the presence of a Gazetted Officer but he refused the offer and reposed faith in Inspector Gurmail Singh and told him that he could make the search. He was having a JHOLA, which was tied on the handle of the Moped of the appellant. On search of JHOLA it was found to contain opium wrapped in a glazed paper weighing 4 Kgs. 510 grams. 10 grams of opium was taken out of it as a sample. The sample packet and the remaining opium were separately sealed with the seal impression 'SS' belonging to PW-2 Surjit Singh, ASI. Seal, after use, was handed over to PW-2 Surjit Singh, ASI. The sample packet and the remaining opium alongwith Moped were taken into possession by Gurmail Singh, Inspector, vide memo Ex.PC attested by PW-2 Surjit Singh, ASI, and MC Manjit Singh.
3. PW-3 Gurmail Singh, Inspector, sent Ruqa, Ex.PB, to the Police Station Sadar, on the basis of which formal FIR, Ex.PB/1 was recorded. On return to the Police Station, he deposited the case property with seals intact with MHC Jasmer Singh.
4. After the completion of the investigation, the appellant was challenged and the challan was put up in the Court of Ilaqa Magistrate, who committed the case to the Court of Sessions.
5. Having made out a prima-facie case, the appellant was charged under Section 18 of the NDPS Act, 1985, (hereinafter referred to as "the Act"), to which he pleaded not guilty and claimed trial.
6. In order to prove the allegations, the prosecution examined three witnesses.
7. After the closure of prosecution evidence, the statement of the appellant was recorded under Section 313 Cr.P.C. wherein he denied the allegations of the prosecution and pleaded false implication. He next stated that the Moped which was produced in the Court did not belong to him and in fact, no Moped was recovered from him and one Navy blue coloured Moped was recovered in his presence from other person and the police allowed that person to go for consideration and he was falsely implicated in this case. In defence, he examined DW-1 Milip Chand, DW-2 Amritpal Singh, DW-3 Jagdish Ram Kaushal, DW-4 Ranjit Singh and DW-5 Harvinder Singh.
8. After hearing learned PP for the State and defence counsel, the Additional Sessions Judge, Ludhiana, vide his judgment dated 12.8.1989 found the appellant guilty and convicted him under Section 18 of the Act and sentenced vide order dated 14.8.1989 as stated above.
9. Aggrieved by the said judgment and order, the accused has filed the present appeal.
10. I have heard Shri S.C. Khunger, counsel for the appellant, Ms. R.K. Nihalsinghwala, DAG, Punjab, for the respondent and carefully gone through the record.
11. Counsel for the appellant very fairly conceded that Section 50 of the Act is not applicable to the present case because the alleged recovery was not affected from the personal search of the appellant but it was affected from a JHOLA, which was tied with the handle of Moped. However, he contended that the contraband was handed over by PW-3 Gurmail Singh, Inspector, to MHC and not to the officer-Incharge of the Police Station and the Officer Incharge of the Police Station had not put his seal on the sample packet as well as the remainder and as such, there was non-compliance with Section 55 of the Act, so, the appellant is entitled to be acquitted. For this contention, he placed reliance upon a Division Bench authority of this Court i.e. State of Punjab v. Om Parkash, 2002 (3) RCR (Criminal) 567, which supported the above contention of the learned counsel. In my opinion, the contention of learned counsel is not tenable and the abovesaid authority is not applicable to facts of the present case. Section 55 of the Act reads as under:-
" POLICE TO TAKE CHARGE OF ARTICLES SEIZED AND DELIVERED: An officer in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
12. Therefore, according to this Section the Officer Incharge of the Police Station shall take charge of the contraband and keep it in a safe custody pending the orders of the Magistrate, all articles which are seized under this Act within the local area of that Police Station and shall also allow any officer who might have accompanied such articles or to take samples and also the samples so taken, shall be sealed with the seal of the Officer Incharge of the Police Station. The present case is different. PW-3 Gurmail Singh, Inspector, was the SHO of Police Station Sadar, Ludhiana on 23.1.1998, on the date of recovery as is clear from the Ruqa, Ex.PB. Thus, the SHO had himself arrested the appellant and got recovered the contraband from him. He had taken the sample and had sealed the sample as well as remainder, Ex.P2, with the seal 'SS' of his colleague Surjit Singh, ASI and the seal after use was handed over to him (Surjit Singh, ASI). He had further taken into possession the sample packet as well as remainder, Ex.P2, alongwith the Hero Majestic Moped No. PCL-1441 vide memo Ex.PC. On return to the Police Station, he deposited the case property with seals intact with the MHC Jasmer Singh. Thus, Section 55 of the Act, in the circumstances, is not applicable to the facts of the present case.
13. There is affidavit, Ex.PG, of MHC Jasmer Singh that on 23.1.1988, he was working as MHC and on that day, Gurmail Singh, Inspector, had handed over to him the sample packet as well as the remainder of opium sealed with the seal of 'SS' and on 8.2.1988, he had handed over the sample packet to Constable Kartar Singh No. 2612 for getting docket issued from the office of S.S.P. and then the same was returned on that day after getting the docket issued and then again the said Constable took it to the office of Chemical Examiner on 9.2.1988 and had handed over the receipt to him. To the same effect is the affidavit, Ex.PA, of Constable Kartar Singh. Therefore, the sample was not tampered with as long as it remained in the custody of MHC Jasmer Singh and Kartar Singh, Constable. The report of the Chemical Examiner, Ex.PF, shows that the article, which was recovered from the appellant, is opium.
14. Counsel for the appellant next contended that the police party was going for patrolling and it was incumbent upon the said police party to join some independent witness before going for patrolling. For this contention, he placed reliance upon an authority Dalbir Singh v. State of Punjab, 1998 (1) RCR (Criminal) 79, in which it was observed that it was not safe to impose heavy punishment on the accused on uncorroborated testimony of official witness as it was cardinal principle of criminal jurisprudence that 'graver the offence, stricter the proof." However, in my opinion, the above-mentioned authority is not applicable to the facts of the present case. Each case depends upon its own facts. In the abovesaid authority, police officials had held Naka-Bandi at Bus Stand of Village Khazala and the accused of that case was seen coming towards the Bus Stop of Village Khazala, who, on seeing the police party, tried to take a turn, but was apprehended on suspicion. Thus, the alleged recovery had taken place at the Bus Stop where other persons were also present. In such circumstances, it was held that in the absence of independent evidence, the testimony of police officials should not be relied upon. However, in the present case, it is not the case that they were going from the Police Station after getting some secret information but they were just going for patrolling and the recovery of opium had taken place in the way just by chance. There is also no evidence that any independent witness was available but was not intentionally joined. In such circumstances, they were not obliged to take independent witness with them. The absence of independent evidence does not make the prosecution case doubtful.
15. PW-2 Surjit Singh, ASI, and PW-3 Gurmail Singh, Inspector, have fully corroborated the prosecution version. Both of them had stated that the appellant was intercepted in the way on 23.1.1988, when they were going in Jeep No. PCL0-4891 towards Village Dhandra at about 5 P.M. and opium was recovered from his JHOLA, which was tied with the handle of his Moped and on weighment, the opium was found to be 4 Kgs. 510 grams, out of which 10 grams of opium was separated as sample and the same was put in small DIBI and the remaining opium was put in a tin box, Ex.P2. They further stated that sample and the remaining opium were separately sealed by Gurmail Singh, Inspector, with the seal bearing impression 'SS' and the same were taken into possession alongwith Moped vide memo Ex.PC. They were subjected to a lengthy cross-examination but the defence counsel has not pointed out any major discrepancy, which could discredit their statements. It is not the case that a police officer should be dis-believed merely on the ground that he belongs to the Police Department. However, in the absence of independent evidence, the evidence of police officials is to be closely scrutinised. On close scrutiny, I find that their evidence is reliable.
16. Counsel for the appellant further contended that the Hero Majestic Moped bearing No. PCL-1441 did not belong to the appellant and in fact, it was falsely planted on him and as such, the whole prosecution story is doubtful. Of course, DW-1 Milap Chand, Clerk, D.T.O. Office, Ludhiana, stated that Moped No. PCL-1441, Make Hero Majestic stands in the name of Nish Kaur Asheami resident of 57-R, Industrial Area B, Ludhiana and its Engine Number is 023538 and Chassis Number is 053340. DW-4 Ranjit Singh, Mall Khana Moharrar, P.S. Sadar Ludhiana, on the other hand, stated that the Moped No. PCL-1441, which is the case property of the present case was having Engine No. MH-236591 and Chassis No. MD233983 i.e. the engine number and the chassis number do not coincide with the Hero Majestic Moped PCL-1441 as stated by DW-1. This shows that the registration number PCL-1441 on the Moped, which was recovered from the appellant, is fictitious. The fictitious registration number may have been fixed intentionally in order to hoodwink the police.
17. Counsel for the appellant lastly contended that there was a note in the statement of PW-3 Gurmail Singh, appellant, that the defence counsel had touched the number on the back Mudguard of the Moped and the black colour struck to his thumb. According to him, the shows that it was fresh by painted and in fact, it was not Moped bearing No. PCL-1441. In my opinion, the contention of learned counsel is not tenable. Even if it is proved that the number on the back Mudguard of the Moped was freshly painted as it might have erased due to passage of time but even then there was number PCL-1441 written on the front Mudguard also, for which there is not evidence that it was freshly painted. Moreover, the alleged recovery of Moped is not material because the material fact is that the opium weighing 4 Kgs.510 Grams was recovered from the appellant.
18. In view of the above discussion, I hold that there is no force in the appeal and the same is hereby dismissed. The bail bonds of the appellant are cancelled and he be taken into custody to serve the remaining party of sentence.