Punjab-Haryana High Court
Sandeep Kumar @ Bachi @ Malkiat Singh vs State Of Haryana on 29 March, 2010
Bench: Hemant Gupta, Jaswant Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : March 29, 2010
Crl. Appeal No.550-DB of 2007
Sandeep Kumar @ Bachi @ Malkiat Singh ...Appellant
Versus
State of Haryana ...Respondent
Present: Mr. H.L.Bhatia, Advocate, for the appellant.
Mr. S.S.Patter, Sr. DAG, Haryana, for the respondent-State.
Crl. Appeal No.323-DB of 2008
State of Haryana ...Appellant
Versus
Sarja Singh ...Respondent
Present: Mr. S.S.Patter, Sr. DAG, Haryana, for the appellant-State.
Mr. J.S.Thind, Advocate, for the respondent.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE JASWANT SINGH
HEMANT GUPTA, J. (ORAL)
This order shall dispose of Criminal Appeal No.550-DB of 2007 filed by the convict against the judgment of conviction dated 5.5.2007 and order of sentence dated 7.5.2007 passed by the Addl. Sessions Judge, Sirsa, whereby the appellant was convicted for an offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act') and sentenced to undergo rigorous Crl. Appeal No.550-DB of 2007 & 2 Crl. Appeal No.323-DB of 2008 imprisonment for a period of 12 years, and to pay a fine of Rs.1 lac and; Criminal Appeal No.323-DB of 2008 filed by the State of Haryana against the acquittal of Sarja Singh, owner of the truck from which, the contraband was recovered.
The prosecution case was set in motion on the statement of Inspector Om Parkash, SHO P.S.Sirsa. He has stated that on 17.7.2004, when he was on duty alongwith other police officials, he received a secret information to the effect that a truck bearing registration No.RJ-13-G-0712 loaded with huge quantity of gunny bags of poppy straw by Madan Lal @ Maddi son of Mahinder and Sandeep Kumar, driver would come on road by the side of Lord Shiva College and if a nakabandi is held on way of Lord Shiva College, they can be apprehended. On receipt of this information, he prepared a notice under Section 42 of the Act and sent Constable Chander Pal on the government motor-cycle for taking the same to the Deputy Superintendent of Police, City. Thereafter, he alongwith other police officials reached at T-point of Lord Shiva College Road for holding nakabandi. At about 10.30 PM, one truck was seen coming from the side of Lord Shiva College. On seeing the police party at naka, the truck was stopped by the driver at a distance. Couple of persons alighted from the truck from different sides and started running. On suspicion, with the help of other officials, a person, who alighted from the side of driver, was apprehended, whereas other persons alighted from the other sides managed to escape by taking advantage of darkness. On enquiry, the person so apprehended disclosed his name as Sandeep son of Pritam Singh, the appellant herein. He (Sandeep) further disclosed that Madan Lal @ Maddi Crl. Appeal No.550-DB of 2007 & 3 Crl. Appeal No.323-DB of 2008 is the person, who has run away. The secret informant also told the name of fleeing person as Madan Lal @ Maddi. On reaching near the truck, the registration number of the truck was found as RJ-13-G-0712. The truck was found to be loaded with gunny bags and it seems that some of the gunny bags have been unloaded from it, as rear portion of the truck was empty. He suspected that gunny bags, carried in the said truck, were containing poppy straw. A notice under Section 50 of the Act was served upon Sandeep Kumar informing him that he can summon a Gazetted Officer or Magistrate to the spot for his personal search and of the truck. The appellant replied that he does not want to get the search of his truck through him (Inspector Om Parkash) and wanted the search of the truck to be conducted in the presence of a Gazetted Officer. Thereafter, at about 11.15 PM, Shri Sajjan Kumar, Deputy Superintendent of Police, City, Sirsa alongwith his personal staff came to the spot. Under the orders of the Deputy Superintendent of Police, the truck was got unloaded through the officials. 100 gunny bags were recovered from the truck. After opening, all the gunny bags were found to be containing poppy straw. HC Jagdish Chander and Constable Chander Pal were sent for arranging cloth packets and other articles. At about 1.00 AM, both the officials reached at the spot alongwith the articles and light gas cylinder. Couple of samples each weighing 100 grams of poppy straw from each of the gunny bags were taken out and converted into parcels. Each gunny bag was stitched with white cloth and on weighment each bag was found containing 40.8 kgs. of poppy straw alongwith the weight of the bag. The sample parcels and all the gunny bags were sealed by him (Om Parkash) with his seal 'OP' bearing four seals and by the Deputy Superintendent of Police with his own seal 'SK'. The seal after use Crl. Appeal No.550-DB of 2007 & 4 Crl. Appeal No.323-DB of 2008 was handed over to SI Subhash Chander by him and the Deputy Superintendent of Police retained his seal with him. All the sample parcels and gunny bags duly sealed alongwith truck were taken into possession through property seizure memo, attested by the witnesses. Thus, intimation (ruqa) was sent to the Police Station at 4.00 AM on 18.7.2004 for registration of FIR for the offences punishable under Sections 15 & 16 of the Act against Sandeep, the appellant, Madan Lal @ Maddi and Sarja Singh, owner of the truck. On the basis of said information FIR No.432 dated 18.7.2004 was registered at P.S.City, Sirsa.
During the course of investigation, Sandeep Kumar, the appellant suffered a disclosure statement Ex.PW-6/H to the effect he and Madan Lal @ Maddi had brought 150 gunny bags containing poppy straw, out of which 50 gunny bags were unloaded in a godown located on the road by the side of Lord Shiva College. The appellant has further disclosed that remaining 100 gunny bags were to be unloaded by Madan Lal @ Maddi in other godown. On the basis of such disclosure statement, 50 gunny bags containing poppy straw were recovered from the disclosed place vide recovery memo Ex.PW-6/J. Two samples of 100 grams each were taken out and converted into parcels. Each gunny bag and sample parcel were sealed and taken into possession.
After completion of investigation and other formalities, a report under Section 173 Cr.P.C. was submitted in the Court seeking trial of the present appellant, Madan Lal @ Maddi for the offence punishable under Section 15 of the Act as well as of Sarja Singh, owner of the truck bearing Crl. Appeal No.550-DB of 2007 & 5 Crl. Appeal No.323-DB of 2008 No.RJ-13-G-0712, for knowingly permitting the use of the same, for the purpose of transporting poppy straw under Section 25 of the Act.
During the course of trial, an application was filed by the D.S.P., CIA Staff, Sirsa on 17.4.2005 for discharge of accused Madan Lal @ Maddi. However, the said application was declined by the learned trial Court vide order dated 22.11.2005, inter alia, for the reason that the DSP, Sirsa is telling a lie about the involvement of the accused Madan Lal @ Maddi and that the material on record clearly shows involvement of accused Madan Lal @ Maddi. The Court also noticed that accused Madan Lal @ Maddi has already been declared a proclaimed offender. Therefore, the proceedings were ordered to be continued against the present appellant, Madan Lal @ Maddi and Sarja Singh, owner of the truck.
In evidence, the prosecution relied upon the report of the Forensic Science Laboratory Ex.PX. As per report Ex.PX, all 150 samples received by FSL were identified as poppy straw (choora post) of Papaver somniferum L. All 150 samples were found to be containing Meconic acid, Morphine, Codeine, Thebaine, Papaverine and Narcotine. Apart from tendering the said report in evidence, the prosecution has examined PW-3 Rajesh Kumar, the owner of the premises from where 50 gunny bags containing poppy straw were recovered in pursuance of the disclosure statement suffered by Sandeep Kumar, appellant. In his statement, he has deposed that he has given one hall room of his factory on rent to Madan Lal son of Mahender Singh at the rate of Rs.5000/- per month from 24.5.2004. He has also produced a rent deed Ex.PW-3/A. The document Ex.PW-3/A (rent deed) is in respect of entire factory premises. The prime prosecution Crl. Appeal No.550-DB of 2007 & 6 Crl. Appeal No.323-DB of 2008 witness is PW-6 Inspector Om Parkash, the then SHO Police Station City, Sirsa, who alongwith other police officials has held nakabandi and apprehended the appellant alongwith the truck containing contraband. PW- 7 is Sajjan Kumar, the then Deputy Superintendent of Police, City, Sirsa, before whom the search and recovery proceedings were carried out.
After going through the evidence on record, the learned trial Court returned a finding that the charge of possessing narcotics contraband i.e. poppy straw, stands proved against the appellant, whereas the prosecution has miserably failed to establish that Sarja Singh, the registered owner of the truck, had knowingly permitted his vehicle to be used for transportation of the contraband and consequently, granted the benefit of doubt to Sarja Singh and acquitted him. Therefore, two appeals have been filed; one by the State against the acquittal of Sarja Singh and another by accused Sandeep Kumar against the judgment of conviction and order of sentence.
Learned counsel for appellant Sandeep Kumar has vehemently argued that the appellant is a young boy of 20 years. He has been prosecuted only for the reason that he alighted from the driver's side, but there is nothing on record to show that he knows driving. No driving licence has been recovered from his person or from the vehicle at the time of his search or of vehicle. It is also argued that Madal Lal is the real king- pin, but the Police has sought his discharge. It is also argued that 50 bags of poppy straw have been recovered from the factory premises of Rakesh Kumar, but he has not been prosecuted. Rent deed (Ex.PW-3/A) produced is a forged document, just to help the factory owner, even though 50 bags of Crl. Appeal No.550-DB of 2007 & 7 Crl. Appeal No.323-DB of 2008 poppy-straw were recovered from his factory premises. It is also argued that the prosecution has failed to prove that the appellant was in the conscious possession of the contraband and that information as contemplated under Section 42 of the Act was not given to the higher police officials before acting on the secret information and that there is delay of 7 days in sending the samples to the Forensic Science Laboratory for the purpose of test and that the seals on the sample parcels were defective, which raises a doubt about the contents of the samples. Lastly, it is also argued that no independent witness has been associated in the recovery process and all the witnesses are of the police department, which throws serious doubt on the correctness of the prosecution case.
We do not find any merit in the contentions raised by the learned counsel for appellant Sandeep Kumar. Though at one stage, the DSP, CIA Staff, Sirsa has sought discharge of Madan Lal @ Maddi, but the fact remains that the request of discharge of Madan Lal @ Maddi was not accepted by the learned trial Court. Madan Lal @ Maddi is a proclaimed offender. Therefore, filing of an application for the discharge of Madan Lal @ Maddi, the prosecution case against the appellant cannot be said to be knocked down in any manner.
Though the driving licence has not been recovered at the time of personal search of the appellant or from the truck, but the fact remains that the appellant was arrested, when he alighted from the driver seat. The appellant is a young boy of 20 years. Holding of a driving licence is not a condition precedent for driving of a truck. Driving of a truck without driving licence may be another violation of driving a motor vehicle without Crl. Appeal No.550-DB of 2007 & 8 Crl. Appeal No.323-DB of 2008 licence, but that does not lead to any inference that the appellant did know driving or was not driving the truck at the relevant time.
From the statement of PW-3 Rakesh Kumar, it is evident that he has let out his factory premises, in which manufacturing process has been stopped, for use as godown to Madan Lal @ Maddi. It is the said premises, which was used by Madan Lal @ Maddi for storage of contraband. Therefore, we do not find any illegality in the prosecution case as giving of a factory premises on lease to a tenant cannot lead to a presumption of use of the building for dealing with narcotics. The prosecution case does not stand demolished only for the reason that there is discrepancy in respect of extent of tenanted premises. The fact remains that as per testimony of PW-3 Rakesh Kumar, his building was taken on rent by Madan Lal @ Maddi.
There is no merit in the argument raised by the learned counsel that notice under Section 42 of the Act was not given to the higher police officials before acting on the secret information. In the present case, notice Ex.PW-6/A was sent to the DSP, City, Sirsa through Constable Chander Pal. It was, thereafter, the search operations were carried out after apprehending the truck and by associating a Gazetted Officer.
The argument that delay of 7 days in sending the samples to the Forensic Science Laboratory is fatal to the prosecution case, is again not tenable. It has come on record that the samples were sent earlier, but were returned for the reason that some of the seals are not legible. The samples were resubmitted after proper fixation of seals. None of the prosecution witness has been cross-examined to the fact that lack of proper seal has led Crl. Appeal No.550-DB of 2007 & 9 Crl. Appeal No.323-DB of 2008 to the tampering of contents of the samples. The statements of the prosecution witnesses are categorical that the samples were in the same condition, in which they were drawn and sent to the Forensic Science Laboratory. The melting of seal from the sample parcels is an irregularity not affecting the contents of the samples. Therefore, we do not find that delay of 7 days is of such nature and kind, which vitiates the prosecution case.
The argument that no independent witness has been associated is again not tenable. The truck was apprehended during the night hours i.e. at about 10.30 PM. The process of recovery and preparing of samples was completed during the night. Therefore, it cannot be said that independent witnesses were available, but not joined by the prosecution agency intentionally.
However, we find some merit in the argument that the appellant is a young boy of 20 years and the punishment of 12 years and to pay a fine of Rs.1 lac and in default of payment of fine to further undergo simple imprisonment for a period of two years, is excessive. From the prosecution case, it appears that the appellant was the driver of the truck used in transportation of narcotics. He was party to the transporting contraband, which is evident from his conduct. But the ownership of such contraband was that of Madan Lal @ Maddi. Keeping in view the age of the appellant and the role attributed to him, we modify the sentence imposed by the learned trial Court to that of rigorous imprisonment for 10 years and to pay a fine of Rs.1 lac and in default of payment of fine, Sandeep-appellant shall further undergo simple imprisonment for a period of six months. Crl. Appeal No.550-DB of 2007 & 10 Crl. Appeal No.323-DB of 2008 Coming to the appeal against the order of acquittal in respect of Sarja Singh, he was charge-sheeted being an owner of truck bearing No.RJ 13-G-0712. There is no evidence to show that Sarja Singh was aware of the fact that his truck is being used by the hirer for the transportation of the contraband. Therefore, we do not find any illegality or irregularity in the findings recorded by the learned trial Court in acquitting Sarja Singh that the prosecution has not proved knowledge of Sarja singh in the use of truck for the transportation of narcotics.
With the said modifications and observations, both the appeals are disposed of.
(HEMANT GUPTA)
JUDGE
March 29, 2010 (JASWANT SINGH)
Vimal JUDGE