Punjab-Haryana High Court
Jainudin vs State Of Punjab on 14 July, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No.277-DB of 2008
Date of Decision: 14.7.2011
Jainudin.
....... Appellant through
Mrs.G.K.Mann,
Advocate- Amicus
Curiae.
Versus
State of Punjab.
...... Respondent through
Shri K.D.S.Sidhu,
Additional Advocate
General, Punjab.
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE VIJENDER SINGH MALIK
....
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the
Digest?
....
VIJENDER SINGH MALIK,J.
Jainudin son of Banhu Meian, resident of village Dunewan Patti, Police Station Thakrahan District Pachmi Champaran, Bihar (hereinafter referred to as `the appellant') convicted by learned Judge, Special Court, Jalandhar vide judgment dated 5.2.2008 for an offence punishable under section 20 (wrongly mentioned as section 21 in the judgment) of the Narcotic and Psychotropic Substances Crl.Appeal No.277-DB of 2008 -2- ....
Act,1985 (for short `the Act') and sentenced to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.one lakh, with further rigorous imprisonment for one year in default of payment of fine vide order of sentence of the same date, has preferred this appeal. The case set up by Police Station, Division No.6, Jalandhar against him and one Nasir Ali (non-appellant) is as under:-
On 28.3.2005, Harbhajan Singh, S.I., C.I.A. Staff, Jalandhar was proceeding towards Model Town, Jalandhar as incharge of a police patrolling party consisting of Kewal Singh, A.S.I. and others. When he was opposite Ghai Hospital, Jalandhar, he noticed the appellant and Nasir Ali as moving on a bicycle on wrong side of the road. Seeing the police party, they panicked and tried to take a U-turn. They were apprehended and questioned about their names, parentage and addresses. The person pedalling the bicycle told his name as Nasir Ali while the one travelling on his carrier told his name as Jainudin, i.e., the appellant. Harbhajan Singh,S.I. suspecting them of carrying some contraband, thought of carrying out their search. They were informed of their right to be searched in the presence of a gazetted officer or a magistrate. Both of them claimed to have faith in Harbhajan Singh, S.I. and offered them to be searched by him. Their consent memos Exhibits PD and PE were prepared which were signed by the two respectively. Then Harbhajan Singh, Crl.Appeal No.277-DB of 2008 -3- ....
S.I. found the appellant to be carrying a poly bag. It was opened to find it containing charas. Harbhajan Singh, S.I. had drawn a sample of 10 grams from the contents of the bag and had put the same in a small container. The remaining substance recovered had weighed 4 kilograms and 990 grams. It was put in another container. Both the containers were given the shape of parcels with the help of cloth and were sealed with seal `HS'. They were taken into possession by way of recovery memo Exhibit PF along with the bicycle `Hero Jet Plus' make. Specimen of the seal used was prepared and the seal, after use, was handed over to Kewal Singh, A.S.I. The appellant and Nasir Ali were arrested and memos Exhibits PG and PH were prepared therefor. Ruqa, Exhibit PI was sent to Police Station, Division No.6, Jalandhar through Pargat Singh, H.C. on which F.I.R. Exhibit PJ was recorded. Harbhajan Singh, S.I. then prepared rough site plan, Exhibit PK of the place of recovery. Personal search of the appellant and Nasir Ali led to no further recovery. The sample parcel, the remainder, as also the appellant and Nasir Ali were brought to Police Station, Division No.6, Jalandhar and were produced before Vibhor Kumar, Inspector, S.H.O., who verified the facts of the case and affixed his seal `VK' on both the parcels. Vibhor Kumar, Inspector had handed over the parcels to Harbhajan Singh, S.I., who had deposited the same with Gopal Krishan, M.H.C. Crl.Appeal No.277-DB of 2008 -4- ....
On 29.4.3005, Harbhajan Singh, S.I. obtained both the parcels from Gopal Krishan, M.H.C. and took them to the court of Judicial Magistrate Ist Class, Jalandhar. The magistrate broke open the seal of the parcel containing remainder of the charas recovered. He had also drawn a sample weighing 10 grams therefrom which was put in a small container and converting the same into a parcel, sealed the same with seal `HS'. The remainder was again sealed with seal `HS'. The three parcels were handed over by the magistrate to Harbhajan Singh, S.I. which he brought back to the police station and gave them to Gopal Krishan, M.H.C. On 20.4.2005, Gopal Krishan, M.H.C. gave the sample parcel to Jasbir Singh, H.C. for being taken to the office of Chemical Examiner, Punjab at Amritsar. Jasbir Singh, H.C. took the sample parcel and other papers to the office of Chemical Examiner, Amritsar and brought back the receipt issued therefrom to Gopal Krishan, M.H.C. Assistant Chemical Examiner, Amritsar, finding the sample to have intact seals and in good condition, analyzed its contents and found the same to be charas. On completion of the investigation, challan against the appellant and Nasir Ali was prepared and submitted to the court.
Finding a prima facie case against the appellant and Nasir Ali, learned Judge, Special Court, Jalandhar, vide his order dated 14.7.2005 charge sheeted them for an offence punishable under Crl.Appeal No.277-DB of 2008 -5- ....
section 20 of the Act. To the charge so framed against them, they pleaded not guilty and claimed trial. The prosecution has examined six witnesses in all at the trial. Some witnesses were given up as unnecessary and the evidence of the prosecution came to a close.
The appellant and Nasir Ali were examined thereafter under the provisions of section 313 of the Cr.P.C. Nasir Ali has denied the truth of the prosecution evidence put to him in the shape of questions. He has claimed the witnesses to be deposing falsely. According to him, they are motivated and interested. He has claimed himself to be innocent and to have been falsely implicated. The same is the stand of the appellant in his statement recorded under the aforesaid provision. They did not lead any evidence in their defence.
Hearing learned Additional Public Prosecutor for the State and learned counsel for the defence, learned Judge, Special Court, Jalandhar has found the appellant and Nasir Ali guilty for the offence punishable under section 20 of the Act. Hearing on quantum of sentence was given thereafter by learned Judge, Special Court, Jalandhar, who had awarded the above mentioned sentence to the appellant and Nasir Ali.
Though no appeal has been filed by Nasir Ali against the judgment of his conviction and order of sentence, yet it may be noticed that he is reported to have died in custody by Shri Crl.Appeal No.277-DB of 2008 -6- ....
K.D.S.Sidhu, learned Additional Advocate General, Punjab.
We have heard Mrs.G.K.Mann, Advocate - amicus curiae for the appellant and Shri K.D.S.Sidhu, learned Additional Advocate General, Punjab for the respondent-State. We have also gone through the record of the case.
Learned amicus curiae has submitted that there is violation of section 50 of the Act because the search has not been got conducted before a gazetted officer or a magistrate. According to her, the option as provided under the said provision has to be given to the person to be searched in the presence of independent witnesses. She has submitted that no independent witness has been joined in this case. She has drawn our attention to the statement of Harbhajan Singh, S.I., PW5, who has stated in his cross-examination that he had made efforts to join independent witnesses, but no one was willing to join. According to her, when Harbhajan Singh, S.I. was suspecting the two persons moving on bicycle to have some contraband and wanted to conduct search, he was required to join independent witnesses. She has submitted that he did not even take any action against the persons whom he claims to have refused to join investigation. She has further submitted that he did not even take down their names and addresses and, therefore, no reliance can be placed on his words for believing that he has conducted any such exercise.
Crl.Appeal No.277-DB of 2008 -7- ....
Learned amicus curiae has further submitted that there is delay of 22 days in sending the sample parcel for chemical examination. She has submitted that no reason has been given by the prosecution for the sample having been sent after this inordinate delay. According to her, this delay is fatal to the prosecution case.
Learned amicus curiae has lastly submitted that there is no reason given by learned Judge, Special Court, Jalandhar to award sentence of 12 years. According to her, it is a case where minimum sentence of 10 years was adequate punishment to the appellant. She has, therefore, submitted that order of sentence cannot be maintained.
On the other hand, learned Additional Advocate General, Punjab has submitted that there is no legal requirement of the search to be conducted in the presence of independent witnesses. According to him, there is no stigma attached to the statements of the police officials. He has submitted that option was given to the appellant and Nasir Ali for their search before some gazetted officer or magistrate and they did not opt for any such search. They reposed confidence in Harbhajan Singh, S.I. and offered their search to him. According to him, the search in this case is, moreover, not a personal search to which the mandatory provisions of section 50 of the Act are attracted. He has contended that the search of a bag carried by the appellant would fall outside the ambit of section 50 of the Act.
Crl.Appeal No.277-DB of 2008 -8- ....
Learned Additional Advocate General has further submitted that delay of 22 days in sending the sample for chemical examination would not by itself vitiate the trial. According to him, the recovered contraband was produced before the magistrate on the very next day of the date of recovery and there was no apprehension of tampering with the recovered substance. He has submitted that the recovery in this case is quite heavy and the sentence awarded to the appellant and Nasir Ali by learned Judge, Special Court, Jalandhar is not disproportionate to the recovery.
The case of the prosecution cannot be held unworthy of credit for non-joining of any independent witness. Independent witnesses in this so-called modern society shirk joining police investigation for the fear of loss of their precious time in making rounds of the courts for recording of their statements. Nothing has been suggested to Harbhajan Singh, S.I., PW5, as also Kewal Singh, A.S.I., PW6 which may provide any reason to learned amicus curiae to suspect the truth of their statements. They appear to have no motive to falsely implicate the appellant and Nasir Ali. The recovery is also not of a petty quantity of the contraband. The contraband recovered is weighing 5 kilograms and this heavy recovery cannot be believed to have been planted by the police upon the appellant and Nasir Ali. So, for the reason that independent witnesses failed to associate Crl.Appeal No.277-DB of 2008 -9- ....
themselves in the police proceedings, the case cannot be thrown over board. No doubt about the prosecution story could, therefore, be entertained on this ground alone.
It is a case of recovery from a bag carried by the appellant, who was travelling on the carrier of the bicycle. In case of such a recovery from bag carried by the accused, Hon'ble Supreme Court of India in Criminal Appeal No.1960 of 2009 - Jarnail Singh Versus State of Punjab, decided on 11.2.2011, has held that section 50 of the Act would not be applicable to a case where the narcotic substance, i.e. opium weighing 1 kilogram and 750 grams was recovered from the bag carried by the appellant. It has further been held that the provisions of section 50 of the Act can be invoked only in cases where the substance was recovered as a consequence of body search of the accused and that those provisions would not be attracted if the recovery is made from a container carried by the individual. In view of this latest pronouncement of Hon'ble Supreme Court of India, the search in this case by Harbhajan Singh, S.I. without the alleged compliance of the provisions of section 50 of the Act would be a valid one.
However, there is no reason for us to hold that the provisions of section 50 of the Act have been given a go-by by Harbhajan Singh, S.I. Harbhajan Singh, S.I. while appearing as PW5 Crl.Appeal No.277-DB of 2008 -10- ....
has stated that he informed the appellant and Nasir Ali of their right to be searched before a gazetted officer or a magistrate and that they were satisfied with their search by him and offered their search to him. It has not been suggested to Harbhajan Singh, S.I. that he did not adopt such a procedure before carrying out the search. So, the statement of Harbhajan Singh, S.I. in this regard cannot be disbelieved. The prosecution, thus, proves that the provisions of section 50 of the Act have been complied with by Harbhajan Singh, S.I. in this case.
It is true that the sample parcel drawn from the recovered substance should have been dispatched with promptitude for chemical examination because delay gives reason to suspect tampering with the recovered material. However, to disbelieve the prosecution case on such a ground, there must be reason to entertain the possibility of tampering with the recovered substance. Gopal Krishan, M.H.C. has appeared as PW1 and nothing has been suggested to him in this regard. Jasbir Singh, H.C. has appeared as PW2. He had taken the sample parcel from Gopal Krishan, M.H.C. to the Chemical Examiner, Amritsar and he has also not been suggested anything in this regard. Therefore, unquestioned testimony of these two witnesses would rule out any tampering with the recovered material and when there is no chance of tampering with the recovered material, delay in sending the Crl.Appeal No.277-DB of 2008 -11- ....
sample to the Chemical Examiner would not cause any dent to the prosecution case.
It is, however, a case where the appellant is in custody right from the day of his arrest. He has already undergone more than six years of sentence. Though, the recovery is heavy, yet it is not so heavy as to award any sentence above the minimum one prescribed for the offence. Therefore, we find the sentence awarded to the appellant to be on higher side and are of the view that the sentence of rigorous imprisonment for a period of 10 years besides the fine imposed by learned Judge, Special Court, Jalandhar would be adequate punishment to him.
Keeping in view the discussion made above, we uphold the judgment of conviction passed by learned Judge, Special Court, Jalandhar, but modify the order of sentence and reduce the sentence to rigorous imprisonment for a period of 10 years. The fine imposed by learned Judge, Special Court, Jalandhar shall remain the same.
With the aforesaid modification in the order of sentence, the appeal is disposed of.
(HEMANT GUPTA ) ( VIJENDER SINGH MALIK)
JUDGE JUDGE
JULY 14,2011
"SCM"