Punjab-Haryana High Court
Pippal Singh vs State Of Punjab on 14 November, 2014
Author: S.S. Saron
Bench: S.S. Saron
Crl.Appeal No.D-1039-DB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1) Crl.Appeal No.D-1039-DB of 2007
Date of decision: 14.11.2014
Pippal Singh ......Appellant(s)
Versus
State of Punjab ......Respondent(s)
(2) Crl.Appeal No.D-643-DB of 2010
Nishan Singh ......Appellant(s)
Versus
State of Punjab ......Respondent(s)
(3) Crl.Appeal No.D-1616-DB of 2013
Paramjit Singh ......Appellant(s)
Versus
State of Punjab ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE S.S. SARON
HON'BLE MR.JUSTICE DARSHAN SINGH
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
* * *
Present: Mr. N.S. Sodhi, Advocate for the appellants in
Crl.Appeal No.D-1039-DB of 2007 & Crl.Appeal No.D-
1616-DB of 2013.
PUSHPINDER SAINI
2014.11.15 13:14
I attest to the accuracy and
integrity of this document
High Court Chandigarh
Crl.Appeal No.D-1039-DB of 2007 2
Mr. L.S. Sidhu, Advocate for the appellant in Crl.Appeal
No.D-643-DB of 2010.
Mr. Manjari Nehru Kaul, Additional Advocate General,
Punjab.
Darshan Singh, J.
Vide this judgment, we are going to dispose of Criminal appeals mentioned above preferred by Appellants-Pippal Singh, Nishan Singh and Paramjit Singh @ Pamma against the judgments of conviction dated 9.10.2007, 11.5.2010 and 25.10.2013 respectively vide which they have been held guilty and convicted for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter called as "NDPS Act), and have been sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of `1,25,000/. In default of payment of fine, they have been ordered to further undergo rigorous imprisonment for a period of 1 year and 6 months.
2. The brief facts of the case giving rise to this prosecution are that on 9.2.2005, SI Bachan Singh, SHO, Police Station Dharamkot, Distt. Moga alongwith ASI Ram Singh and other police employees was present at Bus Stand Jalalabad in connection with checking of suspects. He received a secret information that appellant-Pippal Singh, Paramjit Singh @ Pamma, Sona Singh, Nishan Singh @ Shana, r/o village Daule Wala and Raju @ Lawyer, r/o village Sherpur Tekhtu had formed a gang. They used to bring poppy straw in large quantity from Madhya Pradesh in trucks and further sell the same to the smugglers in Punjab. That the said gang PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 3 had brought large quantity of poppy straw contained in bages in Truck No.PB-12B-9893, the said truck had turned turtle due to rain in a wheat field on a link road near Govt. High School and the members of the said gang were unloading the bags containing the poppy straw from the said truck and were reloading the same in Tata 407 bearing Registration No.PB-10E-9251. A Zen car bearing Registration No.PB-10G-9919 was also lying parked nearby. If a raid is conducted, they can be apprehended along with poppy straw. On receiving this information, SI Bachan Singh informed about the aforesaid facts on mobile phone to Gurjit Singh, DSP, Dharamkot and requested him to reach at the spot. In the meantime, Arur Singh son of Subeg Singh r/o Sherpur Taiba came there on a cycle and was associated in the raid party after disclosing him the facts of the case.
3. The raid was conducted at the disclosed place at about 7.30 p.m. In the lights of the vehicle, the Investigating Officer saw appellant Paramjit Singh @ Pamma, appellant-Nishan Singh and non-appellant Sona Singh and Raju carrying the bags on their heads and throwing the same in the canter whereas appellant-Pippal Singh was setting the bags in Tata-407. They were already known to ASI Ram Singh. On seeing the police vehicle, appellant Paramjit Singh, Sona Singh, Nishan Singh and Raju fled away in their Zen car standing nearby. The Investigating Officer with the help of his fellow police officials apprehended appellant-Pippal Singh at the spot. ASI Ram Singh and other police officials chased the said car but they could not succeed in apprehending the fleeing accused. The Investigating Officer asked appellant-Pippal Singh that he suspected PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 4 some intoxicant substance contained in the truck and if he so desires, the search of the said vehicle can be taken in the presence of a Magistrate or a Gazetted Officer. Appellant-Pippal Singh desired the search to be taken in the presence of some Gazetted Officer for which a non-consent memo was prepared. In the meanwhile, Gurjit Singh Romana, DSP Dharamkot reached at the spot. The search of the bags was conducted on the direction of the DSP. 50 bags from Tata-407 and 20 bags from the truck containing poppy straw were recovered. Farshi Kanda (weighing machine) for weighing the material was arranged. 250 gram of poppy straw was drawn separately from each bag as a sample. The remaining poppy straw came out to be 35 Kg. The samples of gunny bags were sealed by the Investigating Officer with his seal bearing impression BS and Gurjit Singh Romana, DSP also affixed his seal bearing impression GS. The specimen impression of the seals were also prepared separately. The entire case property along with vehicles were taken into possession. The Investigating Officer sent the Ruqa to the police station on the basis of which the present case was registered.
4. Accused appellant-Pippal Singh along with case property was produced in the Court of Illaqa Magistrate, Moga. The Investigating Officer moved an application to the Court for deposit of the case property in the malkhana. The Inventory report was also submitted before the learned Magistrate by the Investigating Officer. The representative samples were separated from all the bags in the presence of learned Magistrate on 10.3.2005. The necessary order was passed by the learned Magistrate in compliance of the PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 5 provisions of Section 52-A of the NDPS Act. The samples were sent to the Chemical Examiner for examination which was found to be of poppy straw and on completion of the necessary formalities of investigation, the report under Section 173 Cr.P.C was prepared against appellant-Pippal Singh and filed in the Court. Remaining accused were declared proclaimed offencers.
5. Appellant-Pippal Singh was charged for the offence punishable under Section 15 of the NDPS Act to which he pleaded not guilty and claimed trial.
6. In order to substantiate its case, prosecution examined as many as 11 witnesses.
7. On completion of the evidence of the prosecution, the statement of appellant-Pippal Singh under Section 313 Cr.P.C. was recorded wherein he pleaded his false implication as the local police was bent upon to implicate him in false cases of Narcotics. He further raised the plea that he had brought bags of pulses from the State of Madya Pradesh but the local police in connivance with Baldev Singh, the owner of Tata 407, bearing registration No.PB- 10E-9251 falsely implicated him in this case in order to protect said Baldev Singh.
8. Accused appellant-Nishan Singh who had run away from the spot on the date of occurrence was arrested on 25.3.2008 and the supplementary report under Section 173 Cr.P.C was presented against him. He was also charge-sheeted for the offence punishable under Section 15 of the NDPS Act to which he pleaded not guilty.
9. PUSHPINDER SAINI In order to substantiate the charges against him also, the 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 6 prosecution examined 11 witnesses. In his statement under Section 313 Cr.P.C, he also raised the plea of false implication.
10. Appellant-Paramjit Singh @ Pamma another accused, who had fled away from the spot on the date of occurrence was produced in the Cout of Judicial Magistrate, 1st Class, Moga on 29.10.2009 and was formally arrested in this case. The supplementary report under Section 173 Cr.P.C was also presented against him. He was also charge-sheeted for the offence punishable under Section 15 (c) of the NDPS Act which he pleaded not guilty and claimed trial. In order to substantiate his case, prosecution examined as many as 8 witnesses. In his statement under Section 313 Cr.P.C, he putforward the plea that his name has been falsely added in the FIR and no recovery was effected from his possession.
11. None of the appellant led any evidence in their defence in spite of the opportunities granted by the learned trial Court.
12. All the appellants were held guilty and convicted for the offence punishable under Section 15/15(c) of the NDPS Act, vide separate judgments and were ordered to undergo the sentences mentioned in the upper part of the judgment.
13. Aggrieved from the aforesaid judgments of conviction and orders of sentence, all the three appellants have preferred the present appeals.
14. We have learned counsel for the appellants, learned State counsel and have meticulously examined the records of the cases.
15. PUSHPINDER SAINI Initiating the arguments, learned counsel for the 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 7 appellants contended that it is the admitted case of the prosecution that the recovery is alleged to have been effected on the basis of the secret information received by SI Bachan Singh, the Investigating Officer of the case but he has not reduced into writing the said secret information and has not forwarded the same to the Senior Police Officer which is a total violation of Section 42 of the NDPS Act. The recovery is also alleged to have been effected between sunset and sunrise. Due to violation of the mandatory provisions of Section 42 of the NDPS Act, entire proceedings are vitiated. To support their contentions, they relied upon cases "Kishan Chand versus State of Haryana" 2013(2) RCR (Criminal) 67 and "Sukhdev Singh versus State of Haryana" 2013(2) RCR (Criminal) 232.
16. They further contended that the link evidence in this case is also missing as Rajinder Singh, Head Constable, has stated that the seal was affixed by the MHC whereas as per the prosecution case, the seals were affixed at the spot. It was not the function of MHC to affix the seals on the samples and the case property. The case property has not been deposited by the Investigating Officer with the Malkhana rather he retained the same with him.
17. The CFSL form has also not prepared at the spot which is also fatal to the prosecution case. To support their contentions, they relied upon cases Kuldip Singh versus State of Punjab 2013(3) RCR (Criminal) 510, Jaswinder Singh versus State of Punjab 2009(1) RCR (Criminal) 425 and Gurcharan Singh versus State of Punjab 2005 (4) RCR (Criminal) 681.
18. PUSHPINDER SAINI 2014.11.15 13:14 They further contended that presence of ASI Ram Singh I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 8 is not established at the spot. ASI Ram Singh has stated that he had gone to chase accused Nishan Singh and others and when he returned, the DSP was already present there then how he could have witnessed the consent memo. It shows that the documents have been fabricated later on. They further contended that the private witness Arur Singh has not been examined nor the seal used, has been handed over to him which makes his presence at the spot doubtful and is fatal to the prosecution case.
19. They further contended that even the presence of DSP Gurjit Singh Romana at the place of occurrence is not established. In Pippal Singh's case, DSP has stated that all the bags were lying in the truck which is even against the basic story of the prosecution.
20. As per the prosecution story, 50 bags were already loaded in Tata-407 and 20 bags were in the truck. Even in his examination-in-chief, he has given the contradictory version to the prosecution story and stated that 50 bags were in the truck and 20 bags were in the canter. Thus, they contended that the testimony of the DSP Gurjit Singh Romana is also not reliable. If he would have visited the spot, he must have had the knowledge about the true state of affairs at the place of occurrence.
21. An additional plea has been raised with respect to appellant-Nishan Singh and Paramjit Singh that their identity is not established. They had fled away from the spot as per the prosecution version but their identification parade was held after their arrest. Thus, they pleaded that the conviction of the appellants recorded by the trial Court is not sustainable in the eye of law and PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 9 they have been falsely implicated.
22. On the other hand, learned State counsel contended that the provisions of Section 42 of the NDPS Act were not applicable in this case. As per the secret information received by the Investigating Officer, the truck had turned turtle and bags were lying scattered. So, the bags were not kept sealed in the vehicle or any enclosed place. She further contended that the goods were being transported at the public place. So, the provisions of Section 43 of the NDPS Act shall be applicable and not that of Section 42 of the NDPS Act.
23. She further contended that the Investigating Officer had immediately informed DSP Gurjit Singh Romana, his immediate Senior Police Officer about the secret information on mobile phone. The DSP had arrived at the spot. On his direction and supervision, the search was conducted. So, there is no question of any violation of Section 42 of the NDPS Act. She further contended that the testimonies of the prosecution witnesses are consistent. Some minor discrepancies are bound to occur with the passage of time. The non- examination of the independent witness Arur Singh, who was won over by the accused-appellant, is also no ground to discard the testimonies of the official witnesses which also carries the same evidentiary value. She further contended that there is no evidence on record to establish that the case property was tampered with. So, the plea raised by the learned counsel for the appellants that the link evidence is missing, is without any substance. She further pleaded that there is no reason for the false implication of the accused. Huge quantity of poppy straw has been recovered from PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 10 them which cannot be planted.
24. We have given thoughtful consideration to the aforesaid contentions raised by the learned counsel for the parties.
25. It is pertinent to mention that the same documents have been produced in all the three cases but as all the three cases were tried separately, so, the different exhibits have been marked. We will refer the exhibit numbers as marked in a case "State versus Pippal Singh" i.e. the original challan.
26. In Ruqa Ex.P-1, it has been categorically mentioned that truck bearing Registration No.PB-12 9893 in which poppy straw was being transported has turned turtle in a wheat field due to rain and the accused were loading the bags containing poppy straw in Tata- 407 bearing registration No.PB-10E-9251. The requirement of the secret information being reduced into writing and then to forward the same to the Senior Police Officer is governed by the provisions of Section 42 sub-section (2) of the NDPS Act. Provisions of Section 42 Sub-Section (2) shall be applicable if the contraband is kept or concealed in any building, conveyance or enclosed place but here in this case, as per the substance of the secret information, the truck in which the bags containing poppy straw was being transported had over turned. The bags were being unloaded from the truck and were being reloaded in Tata-407. So, the secret information was about the process of unloading and loading the bags containing poppy straw from one vehicle to another vehicle. Thus, it cannot be stated that the said bags were kept or concealed in any conveyance and will not attract Section 42 of the NDPS Act.
PUSHPINDER SAINI2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 11
27. Moreover, it has been categorically mentioned in the Ruqa Ex.P1 that on receiving the secret information, PW-4 SI Bachan Singh gave the information on mobile phone to PW-10 Gurjit Singh Romana, the then DSP Dharamkot, his immediate senior Police Officer. In the Ruqa Ex.P1, it is clearly mentioned that SI Bachan Singh narrated all the facts to the DSP and requested him to come present at the spot. In his testimony also, SI Bachan Singh has clearly mentioned that he sent the intimation to DSP Dharamkot through his cell phone. PW-10 Gurjit Singh Romana, the then DSP Dharamkot, has also corroborated his version and deposed that he received a message through his cell phone from SI Bachan Singh to reach in the area of Jalalabad West. This type of evidence has come on record in all the three cases. So, it is established that on receipt of secret information, SI Bachan Singh, the Investigating Officer of the case immediately narrated entire facts on mobile phone to his immediate Senior Police Officer DSP Gurjit Singh Romana. DSP Gurjit Singh Romana has also reached at the spot. Accused appellant-Pippal Singh has given consent vide memo Ex.P-6 for his search in the presence of the DPS. The seizure memo Ex.P-4 shows that search and seizure was conducted directly under the supervision and direction of DSP Gurjit Singh Romana who had come present at the spot. So, the Gazetted/Senior Police Officer was himself present at the spot and supervised the search and seizure of the poppy straw . The Hon'ble Apex Court in Union of India versus Satrohan 2008(3) RCR (Criminal) 803 has observed that where a Gazetted officer has himself conducted the search, PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 12 arrested the accused and seized the contraband, it was not necessary to comply with the provisions of Section 42 of the NDPS Act.
28. SI Bachan Singh, the Investigating Officer of the case had sent Ruqa Ex.P-1 to the Police Officer wherein the secret information received by him was incorporated in detail. On the basis of this Ruqa Ex.P1, FIR Ex.P-1/A was registered and the copies of the FIR were sent to the Illaqa Magistrate and the Senior Police Officer. The Investigating Officer has also submitted Special Report under Section 57 of the NDPS Act to DSP Gurjit Singh Romana on the next date i.e. 10.2.2005.
29. PW-6 Kuldip Singh, Head Constable has categorically stated that he went to the DSP at about 12.30 a.m in the night of 10.2.2005 and the Special report was received by the Reader of the DSP.
30. From the aforesaid evidence on record, it comes out that SI Bachan Singh had communicated the secret information received by him to Gurjit Singh Romana DSP Dharamkot on his mobile phone. The detail of the secret information was incorporated in the Ruqa Ex.P1 on the basis of which the FIR has been registered. The copies of the FIR has been sent to the Senior Police Officer and in addition to that a Special Report under Section 57 of the NDPS Act has also been submitted by SI Bachan Singh, the Investigating Officer of the case to DSP Gurjit Singh Romana on the next day.
31. In case Bahadur Singh versus State of Haryana, 2010 (2) RCR (Criminal) 586, the secret information was received by the PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 13 Inspector of the Police that the accused was selling poppyhusk in his house. On receiving this information, the raid was conducted at the house of the petitioner. The inspector of the Police had sent a wireless message to the DSP who rushed to the spot and in his presence, the search and seizure was conducted. In that case also, the contentions were raised on behalf of the petitioner that the provisions of Section 42 of the NDPS Act, have been violated. In this background of the facts, the Hon'ble Apex Court laid down as under:
"12. It cannot but be noticed that with the advancement of technology and the availability of high speed exchange of information, some of the provisions of the Narcotic Drugs And Psychotropic Substances Act, including Section 42, have to be read in the changed context. Apart from the views expressed in Sajan Abraham's case (supra) that the delay caused in complying with the provisions of Section 42 could result in the escape of the offender or even removal of the contraband, there would be substantial compliance, if the information received were subsequently sent to the superior officer. In the instant case, as soon as the investigating officer reached the spot, he sent a wireless message to the Deputy Superintendent of Police, Kurukshetra, who was his immediate PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 14 higher officer and subsequent to recovery of the contraband, a Ruqa containing all the facts and circumstances of the case was also sent to the Police Station from the spot from where the recovery was made on the basis whereof the First Information Report was registered and copies thereof were sent to the Ilaqa Magistrate and also to the higher police officers. As was held by the High Court, there was, therefore, substantial compliance with the provisions of Section 42 of the Narcotic Drugs And Psychotropic Substances Act and no prejudice was shown to have been caused to the accused on account of non-reduction of secret information into writing and non- sending of the same to the higher officer immediately thereafter.
13. Apart from the decision in Sajan Abraham's case (supra), the decision of the Constitution Bench in Karnail Singh's case (supra), has also made it clear that non-
compliance with the provisions of Section 42 may not vitiate the trial if it did not cause any prejudice to the accused. Furthermore, whether there is adequate compliance of Section 42 or not is a question of fact to be PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 15 decided in each case."
32. The facts of the case cited above are exactly similar to the cases in hand and as per the aforesaid ratio of law, the contentions raised by the learned counsel for the appellants that provisions of Section 42 of the NDPS Act have been violated, carry no substance. Moreover, as per the information received by the Investigating Officer, the accused were in the process of loading the bags in a vehicle and there was every possibility that if the Investigating Officer would have indulged in reducing the secret information into writing, the accused along with contraband could have escaped from the spot. So, it was a state of emergency that the Investigating Officer had to rush to the spot by giving the intimation of the secret information to his immediate Senior Police Officer Gurjit Singh Romana, DSP Dharamkot on his mobile phone and also making him request to reach at the spot.
33. Cases Kishan Chand versus State of Haryana and Sukhdev Singh versus State of Haryana (supra) relied upon by the learned counsel for the appellants are quite distinguishable on facts as in those cases there was total non-compliance of the provisions of Section 42 of the NDPS Act as no intimation in any manner of the secret information was communicated by the Investigating Officer to the senior/superior officer but that is not so in the present cases.
34. We do not find any substance in the plea of learned counsel for the appellants that the link evidence in this case is missing. Rajinder Singh, Head Constable, who had carried the sample parcels to the Chemical Examiner, has been examined in all PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 16 the three cases and has filed his affidavit mentioning therein that the case property remained intact. However, in Nishan Singh's case in the cross-examination, he has stated that the parcels were already with the MHC and seals were already there and again said that seals were affixed in his presence on the samples. This version in the cross-examination of PW-1 Rajinder Singh, Head Constable, in Nishan Singh's case, appears to be under some misconception of the facts as from the testimonies of SI Bachan Singh, ASI Ram Singh and DSP Gurjit Singh Romana, it is established that the separate parcels were prepared at the spot and were sealed at the spot itself with the seal of SI Bachan Singh bearing impression BS and that of DSP Gurjit Singh Romana, bearing impression GS. The DSP had retained his seal with him. There was no possibility that the seal of DSP will be available with the MHC. The report of the Chemical Examiner Ex.P-18 shows that the seals on the sample parcels were found intact on arrival in the laboratory and agreed with the specimen seals impressions sent to the Laboratory. So, there is no material on record to infer that the sample parcels were tampered with at any stage. MHC Gurpreet Singh has appeared as PW-11 and has filed his affidavit Ex.P-26 wherein he has also categorically mentioned that the sample parcels remained intact during the period those remained in his possession in the malkhana.
35. Mere this fact that the CFSL form has not been prepared at the spot is no ground to throw away the prosecution's case. Learned counsel for the appellants have not been able to show us any statutory provisions/rules under the NDPS Act or the Code of PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 17 Criminal Procedure that it is mandatory to prepare the CFSL form at the spot itself. Moreover, in view of the statement of MHC Gurpreet Singh, Head Constable Rajinder Singh and the report of the Chemical Examiner, the samples remained intact so the non- preparation of the CFSL form at the spot has not resulted into any prejudice to the accused and cannot throw any doubt about the intactness of the sample parcels/the case property. In the cases Kuldip Singh versus State of Punjab, Jaswinder Singh versus State of Punjab and Gurcharan Singh versus State of Punjab (supra) mere non preparation of the CFSL form at the spot was not the sole ground for acquittal.
36. On receipt of the secret information, Arur Singh, son of Subeg Singh, was associated in the raiding party but he he has not been examined by the prosecution and was given up having been won over by the accused. The seal after use was also not handed over to him. The non entrustment of the seal to Arur Singh is also no ground to conclude that the case property was tampered with as the case property was not only with the seal of the Investigating Officer but the same was also sealed with the seal of DSP Gurjit Singh Romana and he had retained his seal with him. So, the seal of the DSP was never available to the Investigating Officer or the MHC of the Police Station. Thus, there is no question of the case property being tampered with and consequently, the non entrustment of the seal to Arur Singh, the independent witness, will not adversely affect the veracity of the prosecution's case.
37. PUSHPINDER SAINI As already mentioned, Arur Singh has not been examined 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 18 and has been given up as having been won over by the accused. It is a fact of common knowledge that the independent witnesses generally avoid to depose in favour of the prosecution obviously due to various reasons. They do not want to take the trouble of attending the Courts and to invite the wrath of the accused, who generally belong to their area, by deposing against them. Thus, it is suffice to say that the independent witness, who generally averse to depose in favour of the prosecution, in such type of cases as they are afraid of the fact that deposing in favour of the prosecution may expose them to serious consequences, their non-examination particularly on the plea that they have been won over and sided with the accused is no ground to discard the testimonies of the other prosecution witnesses. There is no material on record to show that the official witnesses examined by the prosecution have any enemity or hostility against the appellants. It is settled principle of law that the testimonies of the official witnesses carries the same evidentiary value as that of any other witness. Their official designation ipso facto is no ground to discard their testimonies. The official witnesses examined by the prosecution have given the cogent and reliable testimonies which do not suffer from any infirmity. Thus, the non- examination of Arur Singh as having been won over by the accused cannot adversely affects the merits of the prosecution's case. To support this view, reference can be made to case Jit Singh Gholi and others versus State of Punjab 2013(3) RCR (Criminal) 204 (DB).
38. PUSHPINDER SAINI
We do not find any substance in the plea that the 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 19 presence of ASI Ram Singh, the witness of recovery, is not established. No doubt in Pippal Singh' case, he has stated that he along with other police employees chased the accused who had fled away from the spot in police vehicle and when he returned at the spot, DSP Gurjit Singh Romana was already present there. Learned counsel for the appellants have contended that if that was so, then how he can be a witness to a non-consent memo Ex.P-5 but PW5- ASI Ram Singh has categorically stated that they chased the Zen car only upto the distance of about 5-7 Kms which will not take longtime while travelling in a vehicle. Moreover, the preparation of the non-consent memo as well as consent memo Ex.P-5 and P-6 was the superfluous exercise on the part of the Investigating Officer. These memos are required to be prepared in compliance of Section 50 of the NDPS Act. The provisions of Section 50 of the NDPS Act are only applicable if the personal search is to be carried out but here in this case, the recovery of the poppystraw has been effected from the gunny bags being loaded in the vehicles. So, the recovery in this case was not out of the personal search of the accused- appellants and the provisions of Section 50 of the NDPS Act were not applicable. So, even if the presence of ASI Ram Singh may not be possible at the time of preparation the non-consent memo Ex.P-5, that cannot be a ground to conclude his presence doubtful at the time of raid, search and seizure. ASI Ram Singh has given the detailed version of the occurrence and has faced the pointed out cross-examination of the learned defence counsel. If he would not have been present at the spot and witnessed the recovery, he may PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 20 have not been able to answer these questions in the cross- examination. So, there is nothing to doubt the presence of ASI Ram Singh at the place of occurrence.
39. There is also no doubt about the presence of DSP Gurjit Singh Romana at the place of occurrence. Learned counsel for the appellants have pointed out that in Pippal Singh's case, DSP Gurjit Singh Romana has stated that 50 bags were recovered from the truck and 20 bags were recovered from the canter which is contradictory to the story of the prosecution, but in the next sentence, in his testimony he has corrected himself and stated that 50 bags were recovered from the canter and 20 bags were recovered from the truck so, it cannot be said that the statement of DSP Gurjit Singh Romana is contradictory to the basic story of the prosecution. In the cross-examination, he has stated that the bags were not scattered on the ground. It cannot be said that this version of DSP is contradictory to the story of the prosecution as the truck, in which originally bags were being transported, had over-turned and the bags were being reloaded in the canter. It may be possible that before his arrival at the spot, the bags which had scattered on the ground as a result of the truck being turned turtle might have already been lifted and loaded in the canter as 50 bags were already loaded in the canter. So, the version of DSP that he did not found the bags scattered on the ground can in no way render his presence doubtful at the spot. DSP Gurjit Singh Romana has attested the documents prepared by the Investigating Officer at the spot. He even sealed the case property. Even the inventory of the case property bearing PUSHPINDER SAINI 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 21 the seal of the DSP having impression GS has been attested by the Judicial Magistrate during the proceedings under Section 52-A of the NDPS Act. The signatures of the DSP on the documents in Punjabi is also no ground to render his presence doubtful. The accused- appellants have not led any evidence in their defence to show that the signatures of the DSP have been forged on the documents by the Investigating Officer. Rather in the cross-examination, he has categorically denied the suggestion that some other police official signed in Punjabi language on his behalf. He further deposed that consent memo bears his signatures in Punjabi language. Thus, in the absence of any evidence from the side of the accused that the signatures of the DSP have been forged by the Investigating Officer mere this fact that he has signed the documents prepared at the spot in Punjabi and signed the report under Section 57 of the NDPS Act in English is also no ground to render his presence doubtful at the spot.
40. There is also no doubt about the identity of the appellants Nishan Singh and Paramjit Singh. Their names are categorically mentioned in the Ruqa Ex.P-1 on the basis of which the FIR has been registered. SI Bachan Singh in his testimony has categorically stated that he was having prior acquaintance with all the aforesaid accused. He identified them at the spot in the headlight of their vehicle. He had remained posted in the area of the accused and therefore, he was knowing them. He further deposed that appellant- Pippal Singh was nabbed at the spot and remaining accused immediately boarded in the Zen car PUSHPINDER SAINI and fled away. They were 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 22 chased by ASI Ram Singh. PW-5-ASI Ram Singh has also deposed that they found in the headlight of their vehicle that accused Pippal Singh was arranging the bags while standing in the body of the Tata- 407 and the remaining accused were reloading the bags from the over turned truck in the aforesaid Tata-407. Accused Pippal Singh was nabbed at the spot. He further deposed that all the aforesaid remaining accused boarded the Zen car and escaped. He further deposed that he was having prior acquaintance with the escaped accused. SI Bachan Singh was also knowing them earlier. So both SI Bachan Singh and ASI Ram Singh were earlier known to the accused Nishan Singh and Paramjit Singh. So, there can be no doubt about the identity of the appellants Nishan Singh and Paramjit Singh @ Pamma. Moreover, as per the recovery memo as Ex.P-20, registration certificate of truck No. PB-12B-9893 in which the bags of poppystraw were being transported was taken into possession. The registration certificate Ex.P-13 shows that the said truck was owned by appellant-Paramjit Singh @ Pamma. So, even the truck used for the commission of the offence was owned by appellant- Paramjit Singh which further corroborates the prosecution case about the identity of the appellants.
41. Learned counsel for the appellants have also pointed out some discrepancies about the police officials who have conducted the writing work but these types of discrepancies are bound to occur with the lapse of time as the police officials generally take part in number of raids in performance of their duties. So, it is not expected that PUSHPINDER SAINI they will preseve in their memory the minute details of 2014.11.15 13:14 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.D-1039-DB of 2007 23 each and every case as the human memory is bound to fade with the passage of time. So, these types of minor discrepancies cannot erode the credibility of the prosecution version.
42. The sentences awarded to the appellants are also just and appropriate keeping in view the nature of the offence committed by the appellants. They have been found in possession of 70 bags of poppy straw each bag weighing 35 kg 250 gram. The narcotic substances are playing havoc with the society at large and particularly the young generation. The menace of narcotic substance is threat to the nation. So, there is no scope for interference in the sentences awarded to the appellants.
43. Thus, in view of our aforesaid discussion, there is no legal infirmity in the impugned judgments of convictions and orders on the quantum of sentence vide which the appellants have been held guilty and convicted for the offence for which they were charged and have been suitably punished. Thus, the conviction of the appellants and sentence awarded to them by the learned trial Court is hereby upheld and affirmed.
44. Consequently, the present appeals are devoid of merits and are hereby dismissed.
(S.S. SARON)
JUDGE
November 14, 2014 (DARSHAN SINGH)
ps JUDGE
PUSHPINDER SAINI
2014.11.15 13:14
I attest to the accuracy and
integrity of this document
High Court Chandigarh
Crl.Appeal No.D-1039-DB of 2007 24
PUSHPINDER SAINI
2014.11.15 13:14
I attest to the accuracy and
integrity of this document
High Court Chandigarh