Punjab-Haryana High Court
Sukhdev Singh Alias Sukha vs State Of Haryana on 30 June, 1998
Equivalent citations: 1998CRILJ4727
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT V.K. Bali, J.
1. By this common order, we propose to decide Criminal Appeal No. 408-DB of 1997 as also Criminal Appeal No. 325-SB of 1997 as all these appeals have been filed against order dated 17th of March, 1997 passed by the Additional Sessions Judge, Bhiwani. The appellant Sukhdev Singh in Criminal Appeal 408-DB of 1997 and Jagar Singh appellant in Criminal Appeal No. 502 of 1997 were tried for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act. After recording a finding of guilt the learned Additional Sessions Judge convicted and sentenced the appellants to undergo R.I. for twenty years and to pay a fine of Rs. 2,00,000/- each and in default of payment of fine to further undergo R.I. for five years each. Manoj Kumar owner of the vehicle involved in the commission of offence has filed Criminal Appeal bearing No. 325-SB of 1997 as the same was confiscated to State vide same order passed by the learned Additional Sessions Judge while convicting the appellants referred to above.
2. Brief facts of the case reveal that on 4th of January 1995, Sub-Inspector Med Singh of Police station, Loharu, who was present along with four Constable, held Naka Bandi on Singhini Chowk with official jeep. At about 6.00 a.m. one Ram Kishan met them. In the meanwhile truck No. HR-24/2851 came from the side of Loharu. The police party signalled the driver to stop the truck. Truck accordingly stopped. One person opened the door from the side normally occupied by conductor and ran away from the truck. The driver of the truck was, however, questioned as the police party suspected that some narcotic material was in the truck and a choice was given to the driver Jagar Singh as to whether he would like to be searched by a gazetted officer. After obtaining the reply in affirmative presence of D.S.P. Loharu was secured and on his arrival the truck checked. It was found to contain 90 bags of poppy husk each bag containing 40 Kgs. of poppy husk. Besides 125 bags of salt were also found in the truck. The sample of 100 grams was separated from each bag of poppy husk and the samples were sealed with the seal of D.S.P. The seal was handed over to Ram Kishan PW. The truck, salt bags poppy husk bags and simples drawn from the poppy husk were taken into possession by recovery memo which was attested by Raj Gopal DSP. Ram Kishan PW and ASI Ami Lal. Intimation was also sent to the police station on the basis of which formal FIR was recorded. Rough site plan of the place of recovery was prepared. The driver of the truck was arrested and was brought to the police station. The case property was deposited with M.H.C. During the course of investigation it was found that the person who had jumped from the other window of the truck was Sukhdev Singh. He was arrested on 20th of February, 1995. The samples drawn were sent to the Forensic Science Laboratory and after investigation the appellants were challaned.
3. The prosecution to bring home the offence against the appellant examined Head Constable Jagphul Singh as PW-1 and Raghbir Singh Constable as PW-2. The Head Constable and the Constable tendered their affidavits. Raj Gopal DSP was examined as PW-3. In his presence it is proved by his deposition in Court that the contents of the truck were checked and it was found that there were 90 bags of poppy husk in it. Med Singh Investigating Officer was examined as PW-4. SI Rameshwar Dayal who partly investigated the case was examined as PW 5. Witnesses fully supported prosecution version.
4. When examined under Section 313 of the Code of Criminal Procedure, Jagar Singh stated that the police party had stopped him saying that they wanted the truck for 'begar'. He refused to oblige them. He was having empty truck as he wanted to chain another truck standing out of order in Rajasthan. He was beaten and taken to police station and was implicated in this case falsely. He was kept in illegal custody for one day before being implicated in the false case. Next day he came to know that the police had seized a Maruti car and a truck. He was again beaten and compelled to confess about the possession of poppy husk. He was innocent and had no connection with the poppy husk. Appellant Sukhdev Singh while denying the incriminating material put to him further stated that a person by the name of Harbhajan Singh, resident of place near Fatehabad was inimical to him because of this he was had been falsely implicated in this case.
5. The Counsel representing appellant Jagar Singh has only raised one point before this Court. He contends that the prosecution has failed to prove recovery of poppy husk in presence of DSP. In that context he has adverted to the cross-examination of Raj Gopal DSP PW-3. The said witnesses stated in this cross-examination that he remained at the spot for about half an hour. From his statement, the Counsel for the appellant has endeavoured to project that 90 bags of poppy husk could not possibly be examined within half an hour particularly when the samples were drawn from all the bags and samples were thereafter even sealed. We find no merit in the only contention raised by the Counsel for the appellant. Deputy Superintendent of Police has given all details in his cross-examination and assuming if while weighing and making samples of the poppy husk, he had taken slightly more than thirty minutes, the evidence of the DSP cannot be discarded only on the ground that he had remained on the spot only for 30 minutes. The occurrence is of 4-1-1995 and the DSP was examined after more than a year and half. He could not be expected to have given exact time of his stay at the spot when the truck was searched and 90 bags of poppy husk were found in the truck driven by the appellant. No other point at all as pointed out above has been urged by the learned Counsel for the appellant. We have however, gone through the entire evidence and are satisfied that the prosecution proved its case to the hilt and beyond shadow of doubt by leading cogent and convincing evidence involving the appellant in the commission of the crime. The next contention of the learned Counsel for the appellant is only with regard to quantum of sentence which would be dealt with in the later portion of the judgment.
6. Coming now to the appeal preferred by Sukhdev Singh i.e. Criminal Appeal No. 408-DB of 1997, we find considerable merit in the contention of the learned Counsel representing him that no proper evidence was brought on the record to prove that the person who ran away from the truck was none other than the appellant. When F.I.R. was registered on the information that was sent to the police nothing at all was mentioned therein as to what was the description of this appellant. All that is mentioned is that the driver of the truck had disclosed his name as Jagar Singh son of Bhajan Singh and on inquiry from the truck driver, it came to be known that the person who had run away was Sukha, resident of Bhima Police Station Rori. SI Med Singh PW 4 to a Court question stated that on the side from which one of the occupants ran away from the truck he was there. Two Head Constables were on the conductor side of the truck. The truck stopped between the first breaker and the second breaker and it stopped 15 yards away from them. Police officials were at a distance of 4-5 paces from the window of the conductor side when the second person ran away. He had deputed two Head Constables and two Constables on the other side of the truck but the accused ran away as they were at a distance of 4-5 paces. He also stated that they were in a jeep which could move in sand and in the Katcha path also. He had also used jeep and its lights to search for the person who had run away from the spot. He had admitted that he had not given the identification of the man or his broad features in the case diary in respect of the man who succeeded in running away from the spot. He further stated that he did not record the statement of other police officer about the identification of the man who had run away. He further stated that he could not give reason as to why he had not mentioned the identification of the person who had run away from the truck. He stated in cross-examination that according to particularly of Sukha Singh on the identification slip Ex. DD, the height of Sukha Singh is indicated as 6'-2" and stout body and round face. PW 5 Sub-Inspector Rameshwar Dayal in his examination stated that in the FIR Ex. PB in portion 'A' to 'A' it is mentioned as follows :-
"Aur driver se conductor side mein ek vayakti patla zism, darmayan Kad (When translated into English reads : From driver conductor side, there was a person with thin body and medium height.)
7. He further stated that some, particulars of the man were there in the statement Ex. DA and DC. He further stated that Sukhdev Singh was not having medium height and he was not a thin person by any stretch of imagination and he was tall man and stoutly built. It requires to be mentioned that no identification parade was ever held and it appears that only on the asking of the driver of the truck this appellant was arrested. From the evidence that has been detailed above, it is absolutely clear that the person who is said to have run away was thin built and of medium height and that the person who was ultimately arrested and tried i.e. appellant is stoutly built and very tall. This appellant has thus to be given the benefit of doubt and thus acquitted.
8. As mentioned above, Counsel representing Jagar Singh has also argued on the quantum of sentence. He contends that present is not the case where maximum sentence should have been given. He states that, if poppy husk can attract the maximum punishment, then how it shall be possible to distinguish huge quantities of dangerous drugs, hashish and other highly intoxicant narcotics. We find merit in the contention of the learned Counsel and in totality of the facts and circumstances of the case reduce the sentence imposed upon appellant Jagar Singh from 20 years to 12 years R.I. He is also ordered to pay a fine of Rs. One Lac failing which he shall further undergo R.I. for a period of one year.
9. Resultantly whereas the appeal preferred by Sukhdev Singh is allowed, the one preferred by Jagar Singh appellant is partly allowed. His sentence is reduced from 20 years to 12 years R.I. The fine imposed by the learned Additional Sessions Judge is also reduced from Rs. Two Lacs to one Lac and in default of payment of fine, he shall further undergo R.I. for one year.
10. In so far as the appeal preferred by Manoj Kumar i.e. Cri. Appeal No. 325-SB of 1997 is concerned, we remit this case to the trial Judge to give the appellant a hearing in the matter. It is established on the record of the case that before confiscating the truck neither this appellant was issued any notice nor was heard in the matter. The learned trial Judge may pass appropriate orders in accordance with law after hearing this appellant.
11. Ordered accordingly.