Punjab-Haryana High Court
Mehal Singh & Anr vs State Of Punjab on 2 December, 2014
Author: T.P.S. Mann
Bench: T.P.S. Mann, Shekher Dhawan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal S-3041-SB of 2010
Date of Decision : December 02, 2014
Mehal Singh @ Major Singh and another
.....Appellants
VERSUS
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE T.P.S. MANN
HON'BLE MR. JUSTICE DR. SHEKHER DHAWAN
Present : Mr. N.S.Bhinder, Advocate
for appellant No.1-Mehal Singh @ Major Singh.
Mr. S.S.Narula, Advocate
for appellant No.2-Gurcharan Singh @ Kala.
Mr. Rajesh Bhardwaj, Addl. A.G., Punjab.
T.P.S. MANN, J.
The appellants were tried for the offence punishable under Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985, (hereinafter referred to as 'the Act'), on the allegations that on 9.10.2008 in the area of village Jhoke Hari Har they were found in possession of 10 kgs of heroin which they were carrying in an Indica car bearing registration No. PB10AS- AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -2- 1806 without any valid licence or permit. Vide judgment and order dated 7.10.2010, the Special Judge, Ferozepur convicted them for the aforementioned offence and sentenced them to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 1,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for three months. The period already spent by them was ordered to be set off against the sentences awarded to them.
The case of the prosecution was that on 8.10.2008 when Inspector Sarabjit Singh was present in Police Station Sadar, Ferozepur, he received a secret information that after the midnight, the appellants, who were indulging in smuggling of heroin, were to deliver heroin received from Pakistan to the next party at Ferozepur. In case naka was held on Ferozepur-Muktsar road as well as on Ferozepur-Fazilka road, they could be apprehended alongwith the contraband. On receiving the information, the police of Police Station Sadar, Ferozepur and CIA/HQ/Ferozepur were directed by Shri Rajinder Singh DSP (D), Ferozepur to prepare separate parties. One party was to position itself on the drain bridge of village Jhoke Hari Har while the second near the railway crossing, Khai Pheme Ke on Ferozepur- Fazilka road. Inspector Sarabjit Singh alongwith ASI Rakesh Kumar, HC Jaspal Singh, HC Mohinder Singh, HC Pipal Singh, C- AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -3- II Jarnail Singh, HC Gurdial Singh, HC Balvir Singh, Constable Sher Singh and PHG Balwinder Singh under the supervision of Shri Rajinder Singh DSP(D), Ferozepur was directed to hold a naka at railway crossing, Khai Pheme Ke on Ferozepur-Fazilka road on the drain bridge of village Jhoke Hari Har. ASI Rachhpal Singh was directed by the DSP to station himself on the river bridge of village Jhoke Hari Har alongwith wireless set and to inform as and when the appellants would cross the bridge of the river. Inspector Sarabjit Singh alongwith the force while under the supervision of the DSP was present on the drain of village Jhoke Hari Har when at about 4.30 a.m., ASI Rachhpal Singh informed on wireless that the appellants were coming towards them on Indica car bearing No.PB-10AS-1806. On being alerted, Inspector Sarabjit Singh reached the naka and switched on the torch. He came to the centre of the road and directed the appellants to stop the car and after encircling the car apprehended them. In the meantime, HC Gurdial Singh, who had earlier been sent to call independent witnesses, returned and stated that no one was ready to join the police party. Some object was noticed lying in between the two appellants sitting in the car. On being asked, the driver disclosed that he was Gurcharan Singh @ Kala son of Mohinder Singh, caste Jat Sikh, resident of village Chak Gheruwala Dakhli Rohiwala and the person sitting AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -4- next to him disclosed that he was Mehal Singh son of Jagtar Singh, caste Jat Sikh, resident of Meenewala, Police Station Sadar, Jallalabad. Inspector Sarabjit Singh introduced himself to the appellants. The DSP told them that he was a Gazetted Officer and working as DSP (D) and posted at Ferozepur. Inspector Sarabjit Singh told the appellants that he had a suspicion that they were carrying some contraband for which they were to be searched and they had a legal right to get their search and search of the car conducted by some Gazetted Officer or Magistrate. Both the appellants apprised the DSP that they were ready to get their search and that of their car conducted in his presence. Separate consent memos of the appellants were prepared whereupon they appended their respective signatures, which were attested by Inspector Sarabjit Singh, ASI Rakesh Kumar and HC Jaspal Singh. The DSP also attested the memos. On the directions of the DSP, Inspector Sarabjit Singh searched the plastic gunny bag as per rules which was lying in the car in possession of the appellants. After opening the mouth of the bag, ten packets of heroin were recovered from the same. The heroin was wrapped in glazed envelope and put in white colour cloth bag. There were some stamps and writing on them which appeared to be in Arabic language. On weighing, each packet was found to contain 1 kg of heroin. Two samples of 10 grams AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -5- each were taken out from each of the packets. The remaining recovered heroin in ten packets each containing 980 grams was put in the same envelope which was placed in the plastic diba. Inspector Sarabjit Singh sealed the sample parcels with his seal bearing inscription 'SS'. Separate impression of the seal was prepared. The DSP also sealed the aforesaid parcels with his own seal bearing inscription 'RS'. Separate impression of seal was also prepared. Inspector Sarabjit Singh handed over his seal to ASI Rakesh Kumar after its use whereas the DSP kept his seal with himself. All the parcels alongwith the sample impression of the seals and the Indica car were taken into possession vide separate memos. On personal search of Mehal Singh, one mobile phone and one purse containing Rs.1,500/- were recovered whereas on the personal search of Gurcharan Singh @ Kala, Rs.300/- and one driving licence were recovered. Separate memos regarding personal search were prepared. Both the appellants were formally arrested. Ruqa Ex. P8 was prepared by Inspector Sarabjit Singh and sent to Police Station Sadar, Ferozepur where FIR No. 272 ( Ex. P9 ) dated 9.10.2008 was registered at 7.15 a.m. against the appellants under Section 21 of the Act.
During the investigation of the case, grounds of arrest were intimated to the appellants vide memos Exs. P10 and P11. AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -6- The Investigating Officer prepared rough site-plan Ex. P12 and recorded the statements of the witnesses. Intimations regarding the arrest of the appellants were sent to the relatives vide memos Exs. P13 and P.14. On 10.10.2008, the Investigating Officer produced both the appellants and the case property before the Illaqa Magistrate and moved applications Exs. P15 to P17 upon which the Illaqa Magistrate passed orders Exs. P18 to P20 respectively. The Investigating Officer also sent special report Ex.P21 under Section 57 of the Act to the DSP, Sub Division, Ferozepur. On 10.10.2008, the Investigating Officer completed form No. 21 Ex. P22 and handed over the same alongwith samples and sample seal to HC Gurdial Singh for depositing the same in the office of the Chemical Examiner, Amritsar. The Chemical Examiner vide his report Ex. P23 opined that the samples were that of heroin. Accordingly, after completion of the investigation, final report under Section 173 Cr.P.C. was submitted against the appellants. Charge under Section 21 of the Act was, thereafter, framed against the appellants to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 HC Gurdial Singh, who deposed regarding taking of the samples and the sample seal to the office of the Chemical Examiner. PW2 Inspector Sarabjit Singh, PW3 ASI Rakesh Kumar and PW4 DSP AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -7- Rajinder Singh testified about the various steps taken by them during the investigation of the case subsequent to recovery of the contraband from the car in which the appellants were found present at the relevant time.
When examined under Section 313 Cr.P.C., both the appellants denied the incriminating circumstances appearing against them. They claimed to be innocent. According to them, they were taken from their houses earlier to 8.10.2008 in the presence of their family members and respectables of their respective villages. After illegal detention and torture, they were falsely involved in this case. No heroin was recovered from them. Inspector Sarabjit Singh was in the habit of arranging contraband from Pakistan through his men and later on planting the same upon innocent persons. A case at Police Station Mamdot was got registered by BSF authorities against him, his subordinates and notorious persons of district Ferozepur. In their defence, they examined DW1 HC Prabh Dayal.
After hearing learned counsel for the parties and on going through the evidence brought on the record, the trial Court believed the prosecution case and, accordingly, convicted and sentenced the appellants, as mentioned above. Hence, the present appeal.
Having heard learned counsel for the parties and on AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -8- perusal of the evidence with their able assistance, this Court finds that though the physical features of the appellants were not available with the police yet it was the prosecution case itself that both the appellants were duly named as such by the secret informer to be indulging in the smuggling of heroin and even on the relevant day, they were to hand over the consignment of heroin which they have already received from Pakistan to the next party in Ferozepur. Accordingly, both of them, when they were found riding Indica car bearing registration No. PB-10AS-1806, were spotted by Inspector Sarabjit Singh and when some object was seen lying in between them, they were duly stopped and apprehended. The search of the bag placed in between them led to recovery of 10 packets, each containing one kg of heroin. In such a situation, no benefit of the physical features of the two appellants not being disclosed by the secret informer can be extended to the appellants. Further, merely because some police officials stationed themselves at a distance of about 500 yards from the naka party and in that stretch of 500 yards, no attempt had been made by the appellants to avoid apprehension by the naka party by turning towards the different direction, it cannot be said that they were innocent travellers on the road and falsely implicated by the police. It was around midnight that the appellants while passing the area were AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -9- apprehended. There is no evidence on the record that on the said stretch of 500 yards, there was some link road to either of the two sides i.e. to the left or the right. Apparently, the appellants were noticed by HC Gurdial Singh at a distance of 500 yards from where the naka was set up and once they were identified, information was conveyed on the wireless to the naka party. On being alerted, the naka party headed by Inspector Sarabjit Singh and under the supervision of DSP Rajinder Singh, had stopped their car by switching on the torch and giving a signal. Number of police officials present at the naka would have deterred the appellants from making any attempt to escape. The registration number of the car in which the appellants were stated by the secret informer to be coming at the relevant time was also helpful to the police party in identifying the appellants, who were carrying 10 kgs of heroin by placing the same in between them in the car.
Much stress has been laid that Inspector Sarabjit Singh did not reduce into writing the secret information received by him. However, the defence has lost sight of the fact that once the secret information was received, Inspector Sarabjit Singh apprised his seniors and no time was, thereafter, lost in arranging adequate number of police personnel so as to station themselves at different places in order to nab the appellants. It has come in AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -10- the evidence that the secret information was received in Police Station Sadar, Ferozepur at about 11.30 p.m./12.00 midnight on the intervening night 8/9.10.2008. The naka was to be set up at the drain bridge in the village of Jhoke Hari Har which was at a distance of six miles from the Police Station. In case, Inspector Sarabjit Singh was to start with the paper work first and, thereafter, make necessary arrangements for setting up the naka, he would have lost valuable time. In the process, the assailants could have passed that place and succeeding in avoiding detection/apprehension. It is also the prosecution case that the appellants were apprehended at about 4.30 a.m. Therefore, no benefit can be extended to the appellants on account of Inspector Sarabjit Singh not reducing into writing the secret information received by him.
In the ruqa Ex. P8 as well as in his testimony before the trial Court as PW2, Inspector Sarabjit Singh stated that after taking out two samples of 10 grams each from each of the 10 packets and preparing seal impression, he had handed over his seal to ASI Rakesh Kumar whereas DSP Rajinder Singh retained his seal with himself. Further, under the orders of the Duty Magistrate, he had deposited the case property i.e. 10 parcels and 10 samples in the Judicial Malkhana while keeping the remaining 10 sample parcels with him in safe custody. In his AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -11- cross-examination, he stated that the seal was returned to him by ASI Rakesh Kumar after he deposited the case property in the Malkhana of Police Station Sadar, Ferozepur. The sample parcels and the seal impressions were handed over by Inspector Sarabjit Singh to PW1 HC Gurdial Singh, who deposed that on 16.10.2008 Inspector Sarabjit Singh had handed over the parcels for depositing them in the office of the Assistant Chemical Examiner in an intact condition. Accordingly, after obtaining necessary dockets from the office of the Senior Superintendent of Police, he deposited the parcels on 17.10.2008. The defence did not challenge the testimony of PW2 Inspector Sarabjit Singh when he stated that so long the sample parcels remained with him, no one tampered with the same. Therefore, no fault can be found with the link evidence produced by the prosecution.
Non-joining of independent witness has also been highlighted by the defence. However, according to PW1 HC Gurdial Singh, he was accompanying Inspector Sarabjit Singh on 9.10.2008 at the time of nakabandi. Though he did not remember when he left for village Jhoke Hari Har to call independent witnesses yet he had contacted 4/5 persons but none of them agreed to join him. Merely because, he did not note down their particulars and their refusal to join the police party made them liable for punishment is no AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -12- ground to reject the prosecution case. The raiding party had set up a naka soon after the midnight and only at 4.30 a.m. that the appellants were seen coming in a car and they were stopped and apprehended. It being dead of night, HC Gurdial Singh was not expected to knock the doors of the villagers and after awakening them asking them to join the police party. Even otherwise, there is no material on the record that any of the police officials was inimical towards the appellants and for that reason they were falsely implicated in the case. Their only plea was that Inspector Sarabjit Singh was booked by BSF authorities by getting an FIR registered against him at Police Station Mamdot for planting contraband on innocent persons. When Inspector Sarabjit Singh was in the witness box, he was not asked that a case stood registered against him and his subordinates at Police Station Mamdot. The only suggestion put to him was that unclaimed heroin was lying with him in the Police Station or that the same was planted upon the appellants which suggestion was denied by him. By examining DW1 HC Prabh Dayal, the defence brought on record FIR No. 12 dated 2.2.2009 (Ex.D1) registered at Police Station Mamdot under Sections 489-C/188/511 IPC, Sections 23/28/29 of the Narcotic Drugs & Psychotropic Substances Act, 1985, Section 3 of the Indian Passport Act and Section 14 of the Foreigners Act at the instance of Jai Chand Sanand, officiating AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -13- Company Commander of 43 Battalion, BSF, Mamdot. However, it stands mentioned therein that there was no involvement of Inspector Sarabjit Singh and his fellow officials. Only two persons, namely, Subeg Singh and Satnam Singh were arrested but no heroin or counterfeit currency were recovered. Therefore, no benefit of the registration of the said FIR can be extended to the appellants. Even otherwise the factum of registration of FIR No. 12 dated 2.2.2009 at Police Station Mamdot cannot be used against the prosecution as Inspector Sarabjit Singh was not confronted with the same nor with its contents.
In his testimony as PW2, Inspector Sarabjit Singh stated that he had sent the special report under Section 57 of the Act to the DSP, Sub Division, Ferozepur. The special report is available on the record as Ex. P21 and had been sent on 12.10.2008.
In view of the above, no fault can be found with the impugned judgment passed by the trial Court whereby the appellants were convicted under Section 21 of the Act. However, at the same time, it may be noticed that both the appellants had pleaded before the trial Court that they were the first offenders and the only earning members of their respective families. They are in custody for the last more than six years.
Taking into consideration the totality of the AJAY KUMAR 2015.04.24 10:21 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-3041-SB of 2010 -14- circumstances, this Court is of the considered view that the sentence of imprisonment of 12 years imposed upon the appellants is on the higher side. Ends of justice would be amply met if their substantive sentences of imprisonment are reduced to 10 years.
Resultantly, the conviction of the appellants under Section 21 of the Narcotic Drugs and Psychotropic Substances Act is upheld. However, their sentences of imprisonment of 12 years are reduced to rigorous imprisonment for 10 years. The sentences of fine alongwith their default clauses are maintained.
The appeal is allowed to the extent, indicated above.
( T.P.S. MANN )
JUDGE
December 02, 2014 ( SHEKHER DHAWAN )
ajay-1 JUDGE
AJAY KUMAR
2015.04.24 10:21
I attest to the accuracy and
authenticity of this document
Chandigarh