Punjab-Haryana High Court
Makhan Singh And Another vs State Of Punjab on 21 October, 2011
Author: Rajive Bhalla
Bench: Rajive Bhalla, Naresh Kumar Sanghi
CRA No.123-DB of 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.123-DB of 2006
Date of decision:21.10.2011
Makhan Singh and another ..... Appellants
Versus
State of Punjab ..... Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.G.S.Sidhu, Advocate for the appellants.
Ms.Ritu Punj, Addl.A.G., Punjab for the State.
*****
RAJIVE BHALLA, J.
The appellants challenge judgment and order dated 14.11.2005, passed by the Special Court, Patiala, convicting and sentencing them under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the 'Act'), for possession and transportation of 25 bags (each containing 30 kgs) of poppy straw to undergo rigorous imprisonment for 13 years each with a fine of rupees one lakh, each. In default of payment of fine, the appellants have been sentenced to further undergo rigorous imprisonment of two years, each.
The case as set up by the prosecution, is that on 02.03.2004, Inspector Harbhajan Singh, SHO of Police Station Sadar, Nabha, and other police officials, were present near the bridge of Chhitanwala drain. ASI Karambir Singh, Incharge Police Post, Chhitanwala was CRA No.123-DB of 2006 -2- also present. An informant gave secret information that Makhan Singh, son of Pirthi Singh, resident of village Mohala, PS Sangat, District Bathinda, Kaur Singh son of Raja Singh, resident of Faridkot Kotli, PS Sangat, District Bathinda, Kaka Singh, resident of village Mithri Suchey Wali, PS Auchan, District Sirsa (Haryana), are transporting poppy straw in a ford tractor trolly fitted with a bhoong and loaded with chaff to sell it in Nabha. Finding the information credible, a ruka Ex.PJ was sent to PS Sadar, Nabha, which led to recording of FIR No.39 dated 02.03.2004 at Police Station Sadar, Nabha, (Ex.PJ/1). The police party set up a road block. A tractor trolly, driven by Makhan Singh, with Kaka Singh sitting on the mudguard and Kaur Singh approached the road block. On seeing the police party, Kaka Singh ran away but Makhan Singh and Kaur Singh, appellants were apprehended. The appellants were informed of their right to get their personal search conducted in the presence of a gazetted officer or a magistrate. Both Makhan Singh and Kaur Singh reposed confidence in the Inspector and accordingly recorded consent memos Ex.PD and Ex.PE. The tractor trolly, loaded with wheat chaff was searched. 25 bags of poppy straw kept concealed under wheat chaff were recovered. Two samples of 100 gms each were drawn from each bag and separate numbers were assigned to each sample. The remaining bags were weighed and each bag was found to contain 29.8 kgs of poppy straw. The samples and the bags containing poppy straw were sealed by Inspector Harbhajan Singh with his seal "HS". A sample seal was also prepared. After use, CRA No.123-DB of 2006 -3- the seal was handed over to Manpreet Singh, an independent witness.
The case property was taken into possession vide recovery memo Ex.PF. The tractor trolley was taken into possession vide recovery memo Ex.PF/1. The personal search of Makhan Singh and Kaur Singh yielded Rs.750/- and Rs.540/-, respectively. A memo of personal search Ex. PF/2, was accordingly prepared. The memo of grounds of arrest Ex.PG was prepared and the appellants were arrested. Intimation regarding their arrest was sent to their relatives, vide memo Ex.PG/1. The site plan Ex.PK indicating the place of recovery and a report under Section 57 of the Act, Ex.PN, were also prepared. The case property was deposited with MHC, on return to the police station. The appellants and the case property were produced before the Illaqa Magistrate on 03.03.2004. The samples were forwarded to the chemical examiner for analysis. Upon receipt of the chemical examiner's report, Ex.PO, a final report under Section 173 of Cr.P.C. was presented. Copies of the final report alongwith all relevant documents were supplied to the appellants as per law. Charges were framed under Section 15 of the Act for possession and transportation of 25 bags of poppy straw. The appellants pleaded not guilty and claimed trial. The Special Court therefore, directed prosecution to lead its evidence.
The prosecution examined MHC Nirmal Singh, as PW1, Mahesh Kumar, Clerk, DTO Office, Faridkot, as PW2, Constable Ranjit Singh, as PW3, ASI Karambir Singh, as PW4, and Inspector CRA No.123-DB of 2006 -4- Harbhajan Singh, IO, as PW5, in its oral evidence. In addition to the oral evidence, the prosecution produced, Ex.PA, affidavit of MHC Nirmal Singh, Ex.PA/1, affidavit of HC Nirmal Singh, Ex.PC affidavit of Constable Ranjit Singh, consent memos of Makhan Singh and Kaur Singh appellants Ex.PD and Ex.PE, FIR, Ex.PD/1, recovery memo of poppy straw Ex.PF, recovery memo of ford tractor/trolley Ex.PF/1, personal search memo of appellants Makhan Singh and Kaur Singh, Ex.PF/2, memo of cause of arrest of the appellants Ex.PG, Ex.PG/1 memo regarding intimation of arrest of Makhan Singh appellant, Ex.PH personal search memo of Thana Singh (the owner of the tractor, who was arrested but eventually discharged), memo of cause of arrest and intimating regarding arrest of Thana Singh, Ex.PH/2 seizure memo of photostat copy of registration certificate of ford tractor, Ex.PJ ruka whereby information was sent to police station Sadar, Nabha, Ex.PK rough site plan, Ex.PL report under Section 57 of the Act, Ex.PM application for police remand, Ex.PN application for production of case property, Ex. P1 sample of seals and Form M.29 giving details regarding weighment of the sealed articles.
Upon conclusion of prosecution evidence, the statements of the appellants were recorded under Section 313 Cr.P.C. The appellants denied allegations levelled against them and pleaded false implication. The appellants, however, did not lead any evidence in defence.
After due consideration of the evidence on record and the arguments addressed by counsel for the parties, the Special Judge, CRA No.123-DB of 2006 -5- Patiala, held the appellants guilty of possessing and transporting 25 bags of poppy straw. The appellants were consequently convicted and sentenced as recorded in the first para of this judgment.
Counsel for the appellants submits that the case set up by the prosecution is inherently unreliable and improbable. The mere fact that Makhan Singh was driving the tractor and Kaur Singh was sitting on the mudguard, does not raise an inference of conscious possession or of transporting poppy straw. The appellants are an innocent driver and a passenger. The poppy straw belonged to Kaka Singh who ran away. The appellants are innocent victims of Kaka Singh's crime. The police have not established, by any cogent evidence, that the appellants were in conscious possession of poppy straw. The prosecution has failed to adduce any evidence to link the appellants with the poppy straw. It is further submitted that Section 50 of the Act, requires that personal search should be carried out in the presence of a magistrate or a gazetted officer. The search conducted by Inspector, who is neither a Magistrate nor a gazetted officer, renders the alleged recovery null and void. It is further submitted that the recovery is doubtful as the memo regarding recovery of poppy straw, Ex.PF/1, is signed by Manpreet Singh, the independent witness whereas the recovery memo of the tractor, Ex.PF, is not signed by him.
It is further argued that recovery memos, relating to recovery of the tractor and the trolley, do not refer to the registration number of the tractor. It is further argued that as Manpreet Singh, the so-called CRA No.123-DB of 2006 -6- independent witness, has not been examined, the recovery is rendered doubtful. It is further submitted that there are material contradictions in the statements of the prosecution witnesses. PW3, ASI Karambir Singh, has deposed, during his cross-examination that the appellants were apprehended at 07:05 PM and writing work was completed before sun set whereas PW4, Inspector Harbhajan Singh, has deposed that writing work was completed in the light of an electric bulb, near the water tank. The appellants were allegedly apprehended in the month of March, when the sun usually sets before 07:05 PM. It is further argued that the tractor trolley admittedly belongs to one Thana Singh, who though arrested, was later discharged. As the owner of the tractor has been discharged, the appellants should also be acquitted. It is also argued that delay in forwarding samples to the Forensic Science Laboratory shows that samples were tampered. The contradictions and other circumstances clearly establish that the alleged recovery of narcotics has been foisted upon the appellants.
Counsel for the State of Punjab submits that prosecution has adduced clear and cogent evidence to bring home the appellants' guilt. The appellants were transporting 25 bags of poppy straw kept concealed in a tractor trolley. The tractor did not bear any registration number and the trolley did not bear any identification mark. The tractor was being driven by appellant No.1-Makhan Singh whereas appellant No.2-Kaur Singh was sitting on the mudguard of the tractor. The appellants agreed to get the search conducted in the presence of the CRA No.123-DB of 2006 -7- Inspector and waived their right to be searched in the presence of a gazetted officer or a Magistrate. The search led to recovery of 25 bags of poppy straw. The large quantity of poppy straw rules out any possibility of any false implication. The independent witness Manpreet Singh was given up as having been won over. The fact that the recovery memo of the tractor trolley, Ex.PF/1, is not signed by the independent witness is irrelevant as he has signed the memo regarding recovery of poppy straw. It is further submitted that as appellant No.1- Makhan Singh was driving the tractor and appellant No.2-Kaur Singh was sitting on the mudguard, the offence of possession and transportation of poppy straw has been fully established. The onus thereafter to explain that in what manner they were in possession of poppy straw shifts to the appellants. The appellants have not led any evidence to discharge their onus. It is prayed that in the absence of any illegality or infirmity pointed out in the prosecution case or in the impugned judgment and order as well, the appeal should be dismissed.
We have heard counsel for the parties, carefully perused the record, and judgment and order passed by the trial court.
As is apparent from the narrative of facts, 25 bags of poppy straw was being transported in a tractor trolley concealed under wheat chaff. The tractor was being driven by appellant No.1-Makhan Singh whereas appellant No.2-Kaur Singh was sitting on the mudguard. Kaka Singh was also travelling with them but ran away when he saw the police party. Kaka Singh has not been apprehended so far. Section CRA No.123-DB of 2006 -8- 50 of the Act requires that before a person suspected of possessing narcotics is personally searched, he shall be informed of his right to be searched in the presence of a gazetted officer or a magistrate. The search in the present case is of a tractor trolley and of the persons of the appellants. The appellants were informed of their right to be searched in the presence of a magistrate or a gazetted officer. The appellants waived their right, reposed confidence in the Inspector and gave their consent to be searched by the Inspector, vide consent memos Ex.PD and Ex.PE. The argument that recovery is vitiated for failure to comply with Section 50 of the Act, therefore, does not warrant consideration.
The plea that mere driving of a tractor or sitting on its mudguard does not establish the conscious possession of poppy straw or its transportation, may have been valid but for the facts of the present case. The tractor trolley, a private vehicle, was being driven by appellant No.1-Makhan Singh. Appellant No.2-Kaur Singh was sitting besides him, on the mudguard. The poppy straw was concealed under wheat chaff in the trolley, attached to the tractor. The appellants have not pleaded or proved that they were a mere driver or a gratuitous passenger and were not aware of the contents of the trolley. The appellants, in our considered opinion, were in conscious possession of poppy straw and are, therefore, required to account for the possession of poppy straw, as provided under Section 54 of the Act, which reads as follows: -
"[54. Presumption from possession of illicit articles.-CRA No.123-DB of 2006 -9-
In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of -
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opinion poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.] The appellants have failed to rebut the presumption that arises under Section 54 of the Act and have merely pleaded false implication without setting out any reason for their false implication. The appellants have not proved that they are a mere driver and a passenger or accounted for the possession of this huge quantity of poppy straw.
The recovery of a large quantity of poppy straw renders the plea of false implication, improbable.
Another argument is that Manpreet Singh (independent witness) has not been examined and that the recovery memo Ex.PF/1 relating to recovery of the tractor trolly is not signed by him. The independent witness was given up as won over. It is true that Ex.PF/1 does not bear the signatures of the independent witness but this oversight does not cast a doubt upon the huge quantity of narcotics CRA No.123-DB of 2006 -10- recovered. Even otherwise, memo Ex.PF, relating to recovery of poppy straw, is duly signed by the independent witness, Manpreet Singh. An argument that the seal after use should have been handed over to the independent witness but has instead been retained by the police itself would have been significant, if the appellants had pointed out or established any tampering of seals affixed on samples. The appellants have failed to put any question to prosecution witnesses that the seals were either tampered or the samples were replaced, thereby negating challenge to the recovery. In addition, the report prepared by the Forensic Science Laboratory, clearly states that seals, affixed upon the sample packets, were received intact. The next argument is that as the tractor is not owned by any of the appellants and as the owner of the tractor namely Thana Singh has been discharged, the appellants should be acquitted. This argument may have been of some help to the appellants, had recovery not been effected from their possession. The fact that the appellants were apprehended with 25 bags of poppy straw, renders the question of ownership of the tractor totally irrelevant. It would also be necessary to point out that the tractor did not bear any registration number thereof indicating criminal intent. The delay of 20 days in forwarding samples to the Forensic Science Laboratory is immaterial as delay per se cannot be a circumstance to doubt recovery or to hold that police has tampered with the samples. Delay in forwarding samples, requires a court to consider the evidence with a great degree of caution so as to rule out possibility of tampering or CRA No.123-DB of 2006 -11- replacement of samples. In the absence of any evidence to infer that samples were replaced or tampered, delay per se in forwarding samples to the forensic science laboratory cannot be pressed into service to reject the prosecution version.
We, find no reason, whether in fact or in law to hold that the prosecution has failed to establish that the appellants were in possession of 25 bags (weighing 30 kgs in each) of poppy straw and transporting it for sale. As regards the sentence, both appellants have been sentenced to undergo 13 years rigorous imprisonment each alongwith a fine of Rupees One Lac each. Kaur Singh, appellant No.2 is a previous convict under the Act and is, therefore, not entitled to any consideration. Makhan Singh, appellant No.1, does not have any previous criminal record, under the Act. Consequently, while affirming the conviction of the appellants, we reduce the substantive sentence of imprisonment of Makhan Singh from 13 years to 10 years.
The appeal stands partly allowed qua Makhan Singh, appellant No.1 and is dismissed qua Kaur Singh, appellant No.2. The judgment and order passed by the Special Court, Patiala, is affirmed with the above modification.
[RAJIVE BHALLA]
JUDGE
21.10.2011 [NARESH KUMAR SANGHI]
shamsher JUDGE