Punjab-Haryana High Court
Dalip Singh @ Pappu vs Union Of India on 16 February, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeal No. D-45-DB of 2008 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Criminal Appeal No. D-45-DB of 2008
Date of Decision: 16.2.2012.
Dalip Singh @ Pappu .......Appellant
Vs.
Union of India ......Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. P.S.Brar, Advocate
for the appellant.
Mr. Heman Aggarwal, Standing Counsel for UOI.
.....
SABINA, J.
Appellant Dalip Singh has preferred this appeal challenging his conviction and sentence as ordered by the trial court vide judgment/order dated 20.11.2007/22.11.2007 under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('Act' for short).
The case of the complainant, in brief, as per the complaint (Ex. PGG) is that acting on a specific information which was reduced in writing and sent to senior officer, the officials of Narcotics Control Bureau, Zonal Unit, Chandigarh camped at Amritsar along with officials of the Border Security Force and two independent witnesses namely Bal Kishan and Vishal Sharma had held a naka in the area of Attari-Lopoke road in the evening on 7.4.2004. At about 5.30 P.M., a person was seen coming towards the naka party i.e. towards Amritsar side Crl. Appeal No. D-45-DB of 2008 - 2- on scooter bearing No. PB02-AA-7914. The said person was signaled to stop. The said person was carrying a blue coloured polythene packet in the basket attached with the handle of the scooter. Ravi Kant Pawar went near the said person and disclosed his identity and the said person disclosed his name as Dalip Singh. Dalip Singh was informed that he had got a right to be searched before any gazetted officer or a Magistrate as it was suspected that he was carrying some narcotic drug. Dalip Singh reposed faith in the naka party and in this regard a consent memo was prepared. Three packets, wrapped with brown coloured self adhesive tape, were recovered from the blue coloured polythene packet. When the contents of the said packet were inquired from Dalip Singh, he got scared and tried to run away and fell on the ground. Dalip Singh was apprehended by the naka party and sustained some injuries. Three brown packets recovered from Dalip Singh were opened. In each packet there were two packets. On opening the smaller packet, it was found that it contained a white coloured cloth bag bearing seals impression 777/ITTEFAQ and something was written in Urdu language. The small quantity of white powder recovered from each small packet was tested with the help of UN drug testing kit and each tested positive for heroin. On weighing the packets it was found that Dalip Singh was carrying three kilograms heroin. Two packets recovered from first big brown packet were marked as Lot A. Two packets recovered from second brown packet were marked as Lot B and two packets recovered from third brown packet were marked as Lot C. Two representative samples weighing 5 grams each were taken out from each lot after making it a homogenous substance. Thereafter, the samples as well as Crl. Appeal No. D-45-DB of 2008 - 3- the residue heroin were made into sealed parcels and were sealed with seal bearing impression 'Narcotics Control Bureau- 06' and were taken in possession. Seal after use was handed over to O.P. Sharma, Superintendent NCB. Dalip Singh then informed that Tasveer had given him the said heroin to deliver the same to a Nigerian named Polly at Chandigarh against payment of ` 15 lacs. Dalip Singh was to receive an amount of ` 50,000/- per kilogram for the said act. Statement of Dalip Singh qua factum of recovery was recorded in pursuance to notice under Section 67 of the Act. Dalip Singh was got medically examined and was produced before Sub Divisional Judicial Magistrate, Ajnala on 8.4.2004 along with papers and case property and was remanded to judicial custody. Information qua his arrest was sent to higher authorities. Tasveer Singh accused was arrested on 8.4.2004 and his statement, in response to summons issued under Section 67 of the Act, was recorded. Accused Tasveer Singh stated that he had received the heroin from Suba Singh. On 9.9.2004 Suba Singh was taken in custody in response to production warrants issued by Sub Divisional Judicial Magistrate Ajnala. In response to summons issued under Section 67 of the Act, Suba Singh tendered a voluntary statement which was reduced into writing. The case property was deposited with malkhana of Custom House at Amritsar for safe custody by O.P.Sharma, Superintendent, NCB Chandigarh, Camp at Amritsar. As per the report of the chemical examiner, CRCL, New Delhi dated 3.6.2004, the samples tested positive qua diacetyl morphine also known as heroin on the basis of chemical and chromatographic Crl. Appeal No. D-45-DB of 2008 - 4- examination.
The said complaint along with relevant record was filed before Judge, Special Court, Amritsar. Charge was framed against the accused under Section 21, 23, 29 of the Act on 4.11.2004.
In order to prove its case, prosecution examined 5 witnesses during trial.
After the close of prosecution evidence, appellant Dalip Singh when examined under Section 313 of the Code of Criminal Procedure, 1973 pleaded as under:-
"One Kalidass Head Constable of BSF who was on Intelligence duty at PS Lopoke has gone missing in the month of February 2004 and till today he has not traced. The BSF officials feared that Kali Charan has been kidnapped by some bad elements and has been killed. They lodged an FIR on 26.8.2004 against Suba Singh, Ranjit Singh and Swaran Singh alias Samma under Sections 364/34 IPC and some other unknown persons. They were interrogated who were alleged to have involved in the kidnapping and killing of Kalicharan Charan H.C. Regarding missing of Kalicharan HC police officials also lodged a FIR No. 91 of 2004 at PS Gharinda and during the investigation it has been found that Kali Charan has been killed. I was also called by Custom and BSF officials and was illegally arrested from the house of my in laws in village Bhuller 2 days earlier to the alleged arrest in this case i.e. on 7.4.2004. I was Crl. Appeal No. D-45-DB of 2008 - 5- tortured by BSF and custom authorities and during that I received injuries and my left hip was fractured and I was produced in the Court of SDJM Ajnala on 8.4.2004 at 7.30 P.M. Before producing the court these authorities got me examined from medical officer Ajnala and got a false medical report concealing the fact of fracture on my left hip and my injuries were shown by doctor due to influence of these authorities. After my production in the Court I was sent to Judicial custody and I was admitted in the jail at about 11 P.M. There I was admitted in the jail hospital. I applied through my counsel for my examination from the medical board at Amritsar and I was operated there and my fracture joint was replaced by artificial joint and doctors have given opinion that it is not possible for me to move at this stage. I did not sign any document before the custom authorities. My signatures were obtained on blank papers and no recovery was effected from me. The public witnesses and other witnesses are false witnesses. Public witnesses are alleged to be have been taken from Amritsar and they belong to Amritsar."
The appellant examined seven witnesses in his defence.
Vide the impugned judgment dated 20.11.2007, the appellant was convicted for commission of offence under Section 21 of the Act. Suba Singh and Tasveer Singh were acquitted of Crl. Appeal No. D-45-DB of 2008 - 6- the charges framed against them. Hence, the present appeal.
Learned counsel for the appellant has submitted that the prosecution had failed to prove its case. In fact, the appellant was suffering from fracture of hip joint and, hence, he was unable to drive a scooter or run. The seal after use had been handed over to the official witnesses and not the independent witnesses alleged to be present at the time of recovery. This renders the prosecution story doubtful.
Learned state counsel, on the other hand, has submitted that the prosecution witnesses were acting in discharge of their official duties and had no reason to falsely involve the appellant in this case.
PW-1 Ravi Kant Pawar deposed as per the contents of the complaint. PW-3 Balwinder Kumar and PW-4 O.P.Sharma have corroborated the statement of PW-1 qua recovery of heroin from the appellant and proceedings carried at the place of recovery.
PW-2 Ramesh Kumar deposed that on 10.4.2004, he was handed over three sealed parcels of samples and he deposited the same with CFSL, New Delhi on 12.4.2004. He submitted the receipt in the office at Chandigarh after depositing the samples. So long as the samples remained with him, he did not allow anybody to tamper the same nor he himself tampered with the same.
PW-5 Sadhu Singh deposed that on 9.4.2004, the case property pertaining to the present case had been deposited with him by Inspector Ravi Kant, NCB, Amritsar and O.P.Sharma, Superintendent, NCB, Chandigarh.
In the present case, the statements of the official Crl. Appeal No. D-45-DB of 2008 - 7- witnesses i.e. PW-1, PW-3 and PW-4 inspire confidence qua recovery of contraband effected from the appellant. The said witnesses were acting in discharge of their official duties and had no reason to falsely involved the appellant in this case. As per the said witnesses, the appellant came on a scooter and was carrying the contraband in the basket attached to the handle of the scooter. Three samples were drawn out of the three packets of brown colour recovered from the appellant. The samples were sent for chemical examination. As per the report of the Forensic Science Laboratory (Ex.PE), the samples were of diacetyl morphine (heroin). It is evident from the test memo (Ex.PD) that the samples were sealed with seal bearing impression 'Narcotics Control Bureau-06'. In the present case, the recovery was effected on 7.4.2004 and the samples reached the laboratory on 12.4.2004 for testing without any delay.
Learned counsel for the appellant has drawn our attention towards Ex.PD wherein the weight of the samples was found to be as under:-
A-1 - 6.1 grams
B-1 - 5.9 grams
C-1 - 6.0 grams
Learned counsel has submitted that as per the prosecution witnesses samples, weighing 5 grams each, had been drawn from each lot whereas the samples that reached the laboratory weighed more than 5 grams. Learned counsel has further submitted that this inconsistency regarding weight made the prosecution case doubtful as it could not be said with certainty that the samples which were examined by the chemical analyst were the same which were drawn by the investigating Crl. Appeal No. D-45-DB of 2008 - 8- officer. The said fact in itself cannot be stated to be fatal to the prosecution case which is otherwise duly established on record. The said minor variation might have occurred due to error in measurement at the time of taking of the samples. Hence, this argument of the learned counsel for the appellant fails to advance the case of the appellant. Further, in the present case, the appellant along with the case property was produced before the Magistrate on the day of recovery at 7.40 P.M. Hence, the possibility of any tampering with the samples is ruled out.
Learned counsel for the appellant has submitted that the appellant who had suffered a fracture of hip joint was unable to drive a scooter or run from the spot as alleged by the prosecution. However, the said version was not put up by the appellant when he was examined under Section 313 Cr.P.C. that he had already suffered a fracture of hip joint at the time of recovery. Rather, the appellant has taken the plea that he had been tortured by the BSF and custom authorities and on this account his hip was fractured. The appellant had been examined by DW-1 Dr. Surinder Singh on 8.4.2004. Ex. PM/1 is the examination report by the doctor on police request Ex. PM. A perusal of Ex. PM/1 reveals that following injuries were found on the person of the appellant:-
1. An abrasion 4 cm x 0.25 cm present on upper 1/3rd of right leg.
2. Complaint of slight pain in upper part of left thigh.
These injures are due to fall on ground/fields as alleged by the patient. However, there is no other Crl. Appeal No. D-45-DB of 2008 - 9- injury present on body of a person. He was brought by Ravi Kant Pawar.
Thus, the appellant had not stated before the said doctor that his hip joint had been fractured. DW-1 in his examination-in-chief has categorically deposed that he could not say if the patient had suffered any fracture on the day of examination by him. Further, the appellant was produced before the Magistrate on 8.4.2004 at 7.40 P.M. At that time, the appellant never raised his voice qua his torture by the BSF or by the bureau authorities. The doctor, who had examined the appellant, was an independent person and had no reason to give a false report. Further, from the statement of DW-1 it does not transpire that he had not correctly given the report Ex. PM/1. In case, the hip joint of the appellant had been fractured by the bureau authorities or BSF, the appellant should have raised his voice when he was produced before the Magistrate in his house. Although it is evident from the statement of DW-4 Dr. Iqbal Singh that on 4.6.2004, the appellant was operated and cemented bipolar modular hip arthroplasty was done, yet it is not substantiated on record that the said fracture was due to torture by the bureau authorities or BSF.
In the present case, Bal Kishan and Vishal Sharma were joined as independent witnesses at the time of recovery. However, the said witnesses were given up during trial as having been won over by the accused. The fact that the independent witnesses have not been examined during trial is not fatal to the prosecution case as the same is duly established from the statements of official witnesses.
In the present case, the seal after use was handed Crl. Appeal No. D-45-DB of 2008 - 10- over to PW-4 and the case property remained with the said witness till it was sent for chemical examination. However, the said fact in itself is not fatal to the prosecution case as there is nothing on record to suggest that the samples had been tampered with.
Thus, in the present case, the prosecution had been successful in proving its case. Hence, the learned trial court had rightly convicted and sentenced the appellant for commission of offence under Section 21 of the Act.
No ground for interference is made out.
Dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
February 16, 2012
Gurpreet