Jammu & Kashmir High Court
Manjit Singh vs State Of J&K on 12 November, 2021
Bench: Chief Justice, Rajnesh Oswal
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
ATJAMMU
Reserved on: 07.09.2021
Pronounced on: 12 .11.2021
Case: CrlA(D) No. 34 of 2019
Manjit Singh .....Appellant/Petitioner(s)
Through :- Sh. Muzaffar Iqbal Khan, Advocate.
v/s
State of J&K .....Respondent(s)
Through :- Sh. Vishal Bharti, Dy. AG
Coram: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
Per Oswal J
1. The present appeal is arising out of the judgment and order dated 09.05.2019 and 10.05.2019 passed by the Court of learned Principal Sessions Judge, Udhampur (hereinafter to be referred as trial Court) by virtue of which the appellant has been convicted for commission of offence punishable under Sections 8 and 15 of the Narcotic Drugs and Psychotropic Substances(NDPS) Act and has been sentenced to undergo rigorous imprisonment for a period of 12 years and has also been ordered to pay a fine of Rs. 1.00 lac and further in default of payment of fine, the appellant has been ordered to undergo further imprisonment for a period of one year.
2. The judgment has been impugned on the following grounds: 2 CrlA(D) No. 34 of 2019
a. That no independent witnesses were associated with investigation in order to inspire confidence, despite the fact the place where Naka was laid, was the busy place.
b. That PW Jeewan Singh has stated that Investigating Officer was present and managed the papers for preparing docket. c. That PW Vinod Sharma has deposed about the presence of Pardeep Kumar Executive Magistrate on spot but the same is not forthcoming from challan as well as from the statement of the witnesses as such he is not reliable witness.
d. That there was unexplained delay of 06 days in sending the samples to FSL.
e. That there is no entry in the Malkhana register with regard to the fact that the samples were taken out from the Malkhana for the purpose of resealing and deposited again on the same day.
f. That the seal used for effecting seizure was not deposited in the Malkhana.
g. That the independent witness, namely, Mukhtyar Ahmed has not supported the prosecution and was declared hostile. h. That there are violations of Sections 52, 55, 57 of the NDPS Act. Prosecution Case:
3. The brief facts as they emanate from the charge-sheet are that on 16.11.2016, one docket was sent by Head Constable Pradeep Kumar to Police Station, Kud in which it was stated that he along with Constable Kamaljeet Singh, Ramesh Kumar and Jeevan Singh, was performing naka duty at National Highway Kud and during checking, at around 1300 hours, one truck bearing registration No. PB08R-9348 coming from Srinagar towards Jammu was stopped. During checking, inside the tool box of the truck, 07 plastic bags covered by tarpaulin having Poppy Straw were found. The driver of the truck could not give satisfactorily reply. Both the persons disclosed their respective names as Manjit Singh S/o Darshan Singh, 3 CrlA(D) No. 34 of 2019 appellant herein (truck driver) and Sukhjeet Singh S/o Dilbagh Singh as such, both these persons have committed offences under sections 8 and 15 of the NDPS Act. The said docket was sent through SPO Jeevan Singh. Pursuant to this, FIR bearing No. 88/2016 dated 16.11.2016 was registered by Police Station, Kud, Udhampur for commission of offences under sections 8 and 15 of the NDPS Act. Thereafter, the investigation was conducted by Sanjay Gupta, SHO Police Station, Kud who proceeded on spot. The 07 bags were unloaded from the truck and they were weighed by electronic weighing scale brought from PW Mukhtiar Ahmed and total weight of the contraband was found to be 82 Kgs of Poppy Straw. The seizure memo was prepared on spot that was marked as Ext. 1/I and also two samples of 500 grams each of Poppy Straw were separately drawn from each of the seven bags, i.e. total 14 samples were drawn and they were marked as A1, B1, C1, D1, E1, F1, G1, A2, B2, C2, D2, E2 F2 and G2. The samples were sealed on spot. The truck and tarpaulin were also seized. The seizure memo of the truck and tarpaulin were also prepared. The supurdnama with regard to the handing over of the weighing scale was also prepared on spot. The samples were resealed on 17.11.2016 by the Executive Magistrate, 1st Class Chenani and on 21.11.2016, the same were sent to the FSL. The FSL vide report dated 09.12.2016 opined that the seized substance was Poppy Straw (Papaver Somniferum).
4. After the conclusion of the investigation, the charge sheet for the commission of offence under section 8 and 15 of the NDPS Act was filed against the appellant herein and one Sukhjeet Singh, co-accused on 29.12.2016 and thereafter the charges for commission of offence under 4 CrlA(D) No. 34 of 2019 sections 8 and 15 of the NDPS Act were framed against the appellant as well as other co-accused on 14.01.2017. Out of the 10 witnesses cited in the challan, 9 were examined by the prosecution and PW 4 was given up. After the conclusion of the prosecution evidence, the statements of both the accused under section 342 Cr.P.C. were recorded by the learned trial court on 19.01.2019. No witness was examined in defence by the accused. After hearing both the parties, the learned trial court convicted the appellant and acquitted the co-accused by virtue of judgment impugned. Submissions:
5. Sh. Muzaffar Iqbal Khan, learned counsel appearing for the appellant vehemently submitted that learned trial Court has fallen in grave error of law while convicting the appellant, as all the witnesses except Mukhtiar Ahmed have stated that the Magistrate was present at the time of seizure whereas PW-Rafiq Ahmed has specifically denied the same. Learned counsel laid much stress on the contradiction with regard to the presence of the Magistrate and the SDPO on spot. He further argued that only single independent witness that was associated with the investigation has not supported the prosecution case. He urged that no evidence was brought on record with regard to the fact that the samples were taken from the Malkhana on 17.11.2016 for resealing and were again deposited back on the same day. He also stressed that there was contradiction in the evidence with regard to the custody of the seal.
6. Per contra, Mr. Vishal Bharti, learned Dy. AG appearing for the Union Territory-respondent vehemently argued that the seizure of the contraband has been successfully proved by the prosecution witnesses and further that 5 CrlA(D) No. 34 of 2019 the safe custody of the seized contraband as well as samples in the Malkhana has also been proved by the prosecution.
7. Heard learned counsel for the parties and perused the record.
8. Before appreciating the contentions raised by the appellant it is necessary to have a brief resume of evidence led before the trial court.
Evidence of the Prosecution:
a. PW No. 1 Head Constable Pardeep Kumar stated that on 16.10.2016, he along with Constable Kamaljeet, SPO Jeewan Singh and SPO Ramesh Kumar was checking the vehicles at Naka point, near Guest House Kud, those were coming from Srinagar towards Jammu. They stopped one truck bearing number PB-08R-9348, that tried to dodge the police. He along with others stopped the truck by standing in front of the same. The truck driver was asked to come down but he became nervous, which made them suspicious. Constable Kuljeet Singh and SPO Jeewan Singh searched the truck and nothing was loaded in the same. There were 5/6 bags lying in the tool box covered with tarpaulin. On being asked about the same, the driver stated that it was poppy straw and he had committed mistake. Driver was accompanied by one person who disclosed his name as Sukhjeet. The driver of the truck disclosed his name as Manjit Singh. Seven bags of white colour were found in the toolbox. He prepared a docket for registration of FIR with the police station Kud. Docket is marked as ExtP-1(but marked as Ext-1 on the document). SHO came on spot at 2:45 PM and the bags were photographed. Dy.S.P Chenani and Tehsildar Chenani also came on spot. Jeewan Singh brought an electronic weighing machine from the shop of 6 CrlA(D) No. 34 of 2019 Mukhtiar Ahmed. The bags were weighed and total weight of the bags and poppy straw was found to be 82 Kgs. From each bag, 500-500 gms each of Poppy straw as samples were separately drawn and sealed. There were total fourteen samples out of which seven samples were prepared for FSL. The samples were sealed with the ring and the ring was kept on supurdnama of Jeewan Singh. The contraband and the truck were seized on spot. He signed the seizure memo as marginal witness along with Kamaljeet Singh. The seizure memo of contraband is marked as Ext - PI/1(but marked as Ext-1/I on the document). The contents of the seizure memo are correct and bears his signature. The seizure memo pertaining to truck is marked as Ext - P1/II(but marked as Ext-1/II on the document). The contents of the seizure memo are true and bears his signature. The seizure memo of tarpaulin bears his signatures and the contents are true. The seizure memo is marked as Ext-P1/III. His statement was recorded under section 164-A Cr.P.C and the same is marked as Ext-P1/IV(but marked as Ext-1/IV on the document). He identified the seized articles shown to him in the court.
In cross examination stated that they were on routine patrolling and it started at 10 AM. They were deputed to undertake patrolling and checking of vehicles. He does not remember the registration numbers of the vehicles those were checked on that day. The truck was intercepted when it tried to overtake another truck that was ahead of it. They did not have any prior information about the truck. He also mounted on the truck. They had seen the particles of contraband scattered in the toolbox. The docket was written at Naka point. The 7 CrlA(D) No. 34 of 2019 paper was brought from one shop through one civilian. He does not remember the name of that person but he works in the shop of Taj sweets. He does not remember as to whether he had written the time on the docket or not. He did not record in the docket that the truck driver attempted to flee away. Docket was prepared at 1.30 PM Taj sweets was at a distance of 10/15 feet from the Naka point. J & K Bank, State Bank and Medicine shops are 50/60 feet away from the Naka point. I.O had come on spot at 2:45 PM. Sanjay Gupta was Investigating officer. I.O was accompanied by PSI Anil Kumar and PSO Sameer. The accused were sitting in the truck till the I.O came on spot. Pursuant to the enquiry by the I.O, the accused disclosed that they had brought the contraband from Srinagar. The contraband was unloaded from the truck by him, Kamaljeet, Jeewan Singh and PSO Sameer. Thereafter Jeewan Singh brought the weighing scale from Mukhtiar Ahmed, who also came on spot. All the bags were weighed separately and thereafter 500/500 gms samples were drawn. Dy.S.P and Tehsildar came on spot at 3:30 PM. He does not know as to how they were called on spot but they remained on spot while the proceedings were being conducted. I.O had seized the contraband prior to the arrival of Dy.S.P and Tehsildar. The bags were opened and the contraband was weighed in presence of DySP and Tehsildar. He does not know as to whether the ring was made of iron or some other metal. He does not know about the impression of the seal. He does not know as to how many impressions of seal were fixed on the samples. During the proceedings, the vehicles were not checked. He does not know about the forms those were filled by the I.O. He signed the 8 CrlA(D) No. 34 of 2019 seizure memos. During the proceedings, there was no movement of civilians. There was movement of vehicles but very few people were moving. Mukhtiar Ahmed remained on spot while the proceedings were being conducted. He does not remember the clothes those were worn by the accused. In his statement under section 164-A Cr.P.C, it is not mentioned that the driver of the truck tried to fled away and he as well as Kamaljeet stopped the truck by standing in front of the truck. It is also not mentioned in the statement that the driver of the truck got nervous and admitted the mistake because he had kept the contraband. Both of his statements made in the court as well as recorded under sec 164-A are correct. Bags containing contraband were white in colour but he does not remember as to what was written on those bags. It took 4 to 4 ½ hours to complete the proceedings on spot. I.O had not called Lamberdar and Chowkidar on spot. I.O had not called shopkeepers in his presence. He denied the suggestion that nothing was done in his presence. b. PW No. 2 Constable Kamaljeet Singh stated that on 16.11. 2016 he along with Havaldar Pardeep Kumar, who was Naka Incharge, SPO Jeewan, SPO Ramesh Kumar proceeded for laying Naka at Naka point Kud at 8 AM in the morning for checking. At 1 PM one truck bearing number PB-08R-9348 that was coming from Srinagar was signaled to stop and the said truck stopped at the Naka. Truck was being driven by accused Manjit and another accused was also in the truck. When they asked the accused about their names, they got nervous. We got suspicious and he and Jeewan saw inside the truck but the truck was empty. Thereafter they checked the toolbox and found that one tarpaulin 9 CrlA(D) No. 34 of 2019 was placed on it and after lifting the tarpaulin, they found seven bags and also found poppy straw scattered in the toolbox. They disclosed the same to Naka Incharge. He too mounted on the truck and found the seven bags and scattered particles of poppy straw in the toolbox. In-charge Naka prepared docket for registration of a FIR and sent the same through SPO Jeewan to police station Kud. SHO came on spot after sometime and clicked the photographs of the truck and poppy straw. Poppy straw was unloaded from the truck by Sameer and Jeewan. Sameer had come on spot along with SHO. Poppy straw was weighed on spot and weighing scale was brought from shopkeeper Mukhtiar. Poppy straw was found to be 82 Kgs. Fourteen samples of 500 g each were prepared from the poppy straw, drawn from each bag. They were sealed. The rest of the poppy straw was also seized and sealed on spot with impression of ring. Ring was kept on supurdnama of SPO Jeevan Singh. He identified his signatures on the seven samples those were received from FSL and the other seven reserve samples.
In cross-examination stated that he does not remember as to whether any entry with regard to their departure was made in the Roznamcha or not. There were 2 Munshis in the Police Station at that time. One was Hafeez and another was Hakam. All police personnel had reached Naka at 8:15 AM. They started checking vehicles at 8:30 AM. He does not know whether In-charge Naka had any register in which entries with regard to checking of the vehicles were made. The accused had reached on spot in the vehicle at 1-1:15 PM. This is not correct that the vehicle was not stopped by the accused at Naka point but tried to run 10 CrlA(D) No. 34 of 2019 away and truck was stopped after Naka point. SPO Jeewan Singh went to the police station at 1.30-1.45 PM. SHO had come on spot at 3 PM and was accompanied by PSO Sameer and his driver. First of all, SHO clicked the photographs of the truck and the poppy straw. The accused were in the truck when SHO came on spot. Jeewan and Sameer unloaded the truck. He also assisted them in unloading poppy straw. SHO and PSI Anil Kumar jointly weighed the seized articles. Electronic weighing scale was brought from Mukhtiar, Sweet shop owner and he was present on spot. The bags were white in colour but he does not know what was written on them. He does not know who was preparing the papers on spot. He does not know as to who prepared the papers which he signed. Tehsildar and SDPO had reached on spot after some time of the arrival of SHO. He and Pardeep signed on the samples but he does not remember whether Mukhtiar too had signed the same or not. His statement was recorded in the court. This is correct that SHO was assisted by PSI Anil Kumar while preparing samples. No other vehicle was stopped while the proceedings were being conducted. People were moving at that time. Vehicles were also moving. There are branches of SBI and J and K Bank adjoining Naka point. He does not know whether any civilian was called on spot or not. No civilian was present on spot when the proceedings were conducted. It took 3 to 4 hours to complete the proceedings. The proceedings ended at 6 PM. He denied the suggestion that he was not present on spot.
c. PW No. 3 SPO Jeewan Singh stated that on 16.11.2016 he, along with Hawaldar Pardeeep Kumar, Constable Kamaljeet Singh and SPO 11 CrlA(D) No. 34 of 2019 Ramesh Kumar proceeded from police station Kud at 9-9.30 AM for laying Naka and Naka was laid for checking the vehicles coming from Srinagar. At around 1.30, one truck of Jammu number was stopped for checking and that truck was followed by another truck bearing number PB-08R-9348 and the truck tried to overtake. On the asking of Pardeep Kumar, he and Kamaljeet stopped the truck. Accused Manjit Singh was driving the truck and on seeing the police party, he became nervous. Another accused was also in the truck. He and Kamaljit mounted on the toolbox. There was yellow coloured tarpaulin and underneath it, they found seven bags and poppy straw was scattered there. Nothing was loaded in the truck. Naka Incharge also saw it and asked the driver about the same, who got nervous and stated that he had brought the truck from Srinagar and had committed mistake and further he be pardoned. Naka Incharge prepared the docket and sent the same through him to police station. After registration of FIR, SHO along with Anil Kumar, PSO Sameer proceeded for spot. SHO sent him for bringing weighing scale from Taj Sweets shop. He brought electronic weighing scale from the shop. He was accompanied by Mukhtiar Ahmed on spot. Poppy straw was unloaded from the truck by the police personnel. It was weighed and was found to be 82 kg of poppy straw. Bags were of plastic and white in colour. Fourteen samples of 500 g each of poppy straw were drawn from each of the seven bags. They were sealed and ring was kept on his supurdnama. He produced the ring in the court. SDPO Chenani and Tehsildar Chenani also came on spot. Weighing scale was handed over on spot to Mukhtiar Ahmed. Supurdnama Ring (Ext-P-3) and 12 CrlA(D) No. 34 of 2019 Supurdnama Weighing Scale (Ext-P-3/I) bear his signatures and the contents are true. He identified the seized articles in the court.
In cross-examination stated that he does not know as to whether entry with regard to his departure was made in Roznamcha or not. He was asked by Munshi to proceed for Naka at 9-9:30 AM. Before checking the truck, they checked around 30-35 vehicles. He does not remember the numbers of those vehicles. One vehicle was stopped when the truck tried to overtake it. He does not remember whether it was mentioned in his statement recorded under section 161Cr.P.C. or not. He mounted on the truck from the side of the conductor. Kamaljeet Singh lifted the tarpaulin and below the tarpaulin, there were bags of poppy straw. Docket was prepared by the In charge Naka party. The papers were brought by IO through civilian. He has not seen the docket today. He had handed over the docket to the Munshi of the police station for registration of a FIR. He had come on spot at 2:45 along with SHO and other police personnel. He does not know as to how many photographs were clicked by SHO, after he mounted on the truck and also how many photographs were clicked by SHO after unloading the poppy straw. All the bags were weighed separately. Tehsildar Chenani and SPDO Chenani were also present at the time of weighing the poppy straw. After weighing, the samples and the poppy straw were sealed in a cloth. Cloth was brought from the market but he does not remember as to who brought the cloth. He did not notice the impression of the ring. He had kept the ring in his trunk and brought the same today. He does not remember whether any civilian was present on spot at that time or not 13 CrlA(D) No. 34 of 2019 but normal movement remains there as there is National Highway. He does not know whether SHO called Sarpanch or Numberdar on spot. Tehsildar did not conduct any proceedings in his presence. They did not stop any other vehicle while the proceedings were being conducted. The proceedings ended at 6 pm. After conclusion of the proceedings, the seized articles were taken to the police station and handed over to Munshi of police Station. He denied the suggestion that no proceedings were conducted in his presence.
d. PW 5 Mukhtiyar Ahmed stated that he does not know the accused. He runs the sweet shop in Kud under the banner of M/s Taj Sweets. About 2-3 months ago one, policeman had come to his shop and demanded weighing scale from him. He had electronic weighing scale and that weighing scale was taken at around 9.30 AM by that policeman. Thereafter, he was called on 12.30 PM and was asked to take back his weighing scale. He went inside the PWD Gate and weighing scale was lying on road. Hafiz-Munshi was also there. His signature was taken on one paper and he does not know what was done with the weighing scale. The witness was declared hostile and was cross examined by the Public Prosecutor and during cross examination, he stated that he does not remember that on 16.11.2016 weighing scale was taken from him as mentioned in his statement recorded earlier. In his statement recorded under section 161-Cr.P.C. time is not mentioned with regard to taking of the weighing scale. As per his memory, the weighing scale was taken by Sameer and not by SPO Jeevan. He denied his presence on the spot when the Poppy Straw was recovered from the truck. He denied that the poppy 14 CrlA(D) No. 34 of 2019 straw was weighed in his presence as well as in the presence of SDPO, Tehsildar and other police personnel. He identified his signature on the supurdnama, that is marked as Ext-P3. In the cross examination he stated that he went inside PW Guest House, Kud and Hafiz-Munshi was standing there and he was handed over his electronic weighing scale. At that time PSI Anil Kumar and Sameer were also standing at the Guest House. Hafiz Munshi had obtained his signature on supurdnama. e. PW 6- Rafiq Ahmed stated that in November, 2016, he was posted as Executive Magistrate(Naib-Tehsildar),Chenani. On 17.11.2016, ASI Subash Chander of Police Station, Kud brought 14 packets for the purpose of resealing. He got 14 packets resealed in his office from his clerk under his supervision. Seal used for the purpose of resealing was lying in his office. He also issued one authority letter in the name of Director, FSL for breaking the seal for the purpose of the examination of samples. He had also affixed the impression of seal on that authority letter for the purpose of comparison. The letter dated 17.11.2016 bears his signature and same is marked as ExtP-6. He has seen those 14 packets today in the court and those were resealed by him.
In cross examination, he stated that he does not remember the time when ASI Subash Chander came to his office for the purpose of resealing. ASI had also produced one letter from SHO at the time of resealing. He has not seen the letter today in the court. He had affixed 2/3 seals but he does not know about the seals used by the police but the same has been mentioned in his letter. Police had not sent the seal used by them and also the seal impression was not sent. He had not opened 15 CrlA(D) No. 34 of 2019 the sealed packets. He does not remember the name of dealing clerk. ExtP-6 was prepared in his office. He had not gone on spot. He had signed the resealed packets and also affixed his seals but they do not bear the signature of the dealing clerk. Police had not recorded the statement of the dealing clerk. The seal that was used in the ExtP-6 remains in the custody of the dealing clerk in the office.
f. PW 7-Pawan Abrol: In chief examination, he has stated that on 21.11.2016, he had received seven sealed packets forwarded by the SDPO Chenani vide his letter dated 19.11.2016 through ASI Subash Chander. The said seven sealed packets enclosed within cloth were marked as Ext A-1, B-1, C-1, D-1, E-1, F-1 and G-1. The same were given further exhibit numbers as P-2208/16 to P-2214/16 by him and each weighed 500 grams. The seals were opened and the contents of the each exhibit were duly examined by him and they remained under his custody til the examination was completed. The exhibits were examined and the result arrived at was as under:
1. Morphine was detected in the aforesaid exhibits
2. The aforesaid exhibits were identified as Poppy Straw.
In cross-examination, he has stated that he has not mentioned the details and name of chemical examination conducted by him in his report and the same has been mentioned in his internal record register/work-sheet lying in FSL. He further stated that he has not received the NCB form along with the exhibits A-1 to G-1 which were sent to FSL for chemical examination. He has not mentioned the description of both the seal impressions forwarded by the Magistrate and police. Only the facsimile of both the seals impressions on the packets 16 CrlA(D) No. 34 of 2019 was forwarded to him for comparison but not the original seals. The exhibits were bearing the name and signature of the accused and the Magistrate only and not of SHO. He has not mentioned the percentage of Morphine in the certificate because Morphine is always present in traces in dried opium or Bhukki and traces cannot be quantified. No seal impression was found inside the packets though he had received the facsimile of both the seals impressions forwarded by both Magistrate and Police for comparison.
g. PW 8 Hukam Singh stated that in November 2016 he was posted in police station Kud. On 16.11.2016 PSI Anil Sharma presented 21 sealed packets, those included the samples and the remaining poppy straw with him for depositing in the Malkhana. He was posted as Incharge Malkhana during those days. He has brought register No. 19 along with him. As per entry No. 54, the sealed packets were deposited in the Malkhana. On 17/11/2016 ASI Subash Chander obtained fourteen packets for the purpose of resealing from the Executive Magistrate and on the same day the same were deposited back in the Malkhana and separate entry has been made in the relevant column of register. Out of these fourteen packets, seven packets were obtained by ASI Subash Chander on 21.11.2016 as they were required to be deposited with the FSL for chemical analysis. He had seen the copy of the Malkhana register No. 19 and the same was marked as ExtP-8.
In cross examination stated that in ExtP-8, the time of deposit of articles has not been mentioned but the time is mentioned in the original register. In ExtP-8,at column number 1, one has been 17 CrlA(D) No. 34 of 2019 mentioned but in original register the number of the concerned entry is
54. In column No. 2 of ExtP-8 date has not been mentioned as 16.11.2016 that has been shown in column two of the original register. In ExtP-8 in column No. 3 date is mentioned as 16.11.2016 but the same is not mentioned in column No. 3 of original register but FIR number and relevant sections have been mentioned. In column No. 5 of ExtP-8 and register, name of PSI Anil Sharma has not been mentioned but name of SHO has been mentioned. ExtP-8 does not mention about the proceedings of 17.11.2016 but has been mentioned in the original register. As per his memory ExtP-8 was issued after 21.11.2016. The packets were having the signatures and seal impression of SHO. Ring used for sealing was not handed over to him and also was not deposited in Malkhana. Entry is not made in the register No. 19, when the articles are obtained and returned back in the Malkhana but entry is made in Roznamcha and due to this reason there is no such mention in the register 19 that he has brought with him.
h. PW 9 -Vinod Sharma: stated that he knows the accused. In November, 2016 he was posted as SDPO Chenani. On 16.11.2016 while he was in his office at 2.00 PM, he received the information from the SHO Chenani that one truck has been stopped at Kud and Poppy Straw has been recovered from it. He immediately went on spot and after 30-40 minutes, he reached at Naka point, Kud. The Tehsildar, Chenani also proceeded for spot in his vehicle. They reached on spot where SHO Sanjay Gupta, PSI Anil Sharma and other personnel of naka party were present. He found the police personnel unloading the Poppy Straw from 18 CrlA(D) No. 34 of 2019 the truck. In his presence, SHO weighed the contraband and prepared the site plan and conducted the other proceedings. SHO had told him that the weight of Poppy Straw was 82 Kg. There were seven packets of Poppy Straw.
In cross examination, he stated that he did not sign any paper on spot. The Tehsildar had not resealed the packets in his presence. When he reached on spot, the consignment was almost unloaded from the truck. He denied that he was not present on spot but was told by the SHO about the recovery. SHO had sealed the packets on spot as such, he did not know as to how many seals were affixed by him and also about the impression of the seal. SHO had weighed the bags and he only told him about the weight of the contraband. He does not know whether the weight included the contraband only or the weight of the bags as well. On 19.11.2016, he forwarded the samples to the FSL. He does not know as to when the samples were handed over to the FSL. The samples bearing A1, B1, C1, D1, E1, F1, G1 mentioned in the letter were not presented before him when the letter was issued.
i. PW No: 10 Sanjay Gupta stated that on 16.11.2016 HC Pardeep Kumar sent a docket for registration of FIR. It was written in the docket that one truck having registration number of Punjab was stopped and Poppy Straw was recovered from it. He went on spot as Investigating Officer. Truck was near naka point and there were 7 bags of Poppy Straw in the Toolbox. They were unloaded and were weighed. The weight of Poppy Straw was 82 Kg. 14 Samples of 500 grams each were drawn from them and were sealed. The Tehsildar and the Dy.SP were on spot. After 19 CrlA(D) No. 34 of 2019 recording the statement of witnesses on spot, seized material was weighed. Samples were got resealed from Naib Tehsildar and were forwarded to FSL. He proved the offences under sections 8 and 15 NDPS against the accused. 14 packets were shown to him. He identified his signatures on FIR marked as ExT-P 10/Iand also identified the photographs marked as A&B. He also admitted the contents of seizure memo marked as Ext-P1/I as true and identified his signatures. He also identified his signatures on details narcotics form (ExtP- 10/II) and admitted its contents to be true. Similarly, he admitted the contents of Ext-I/II, ExTP1/III, ExT-P-3, Ext P3/I as true. Signatures of accused were obtained on Arrest memos. He was shown the 14 samples by the PP and he identified the same. They were marked as MO I to MO 14. PP submitted that rest of the seized material including tarpaulin etc were lying in the malkahna and defence counsel did not object to it.
In cross examination stated that he received information at 1.30 PM. He received docket from HC Pardeep Kumar. Naka was at a distance of 200/300 meters away from the Police Station. He reached on spot at 2.00 PM. He had seen the 7 bags below tarpaulin and after opening, Poppy Straw was found in them. He cannot read Urdu properly. Challan was prepared by his reader namely Hafeez. There is Taj Sweet Shop near place of recovery and there are other shops also. The road is busy road. He did not issue notice to any of the civilians but they were asked orally. But none was willing to be a witness. He has not mentioned the same in CD File. Articles were seized around 2.30 PM to 3.00 PM. He had obtained the signatures of witnesses on seizure memo. Samples 20 CrlA(D) No. 34 of 2019 were drawn in presence of Dy. SP and Magistrate. He had fixed six impressions of seal on each of the samples, which were got resealed from Naib Tehsildar next day. He does not remember about the number of seals affixed by the Magistrate. Letter was obtained from Dy.S.P for sending the samples to FSL. He does not remember as to who was sent for delivery of the samples. He does not remember as to whether the remnants were received back from FSL or not. The remnants are part of the challan. During investigation it was revealed that the contraband was brought from Srinagar but neither the name of persons nor place could be found during investigation. He had already dealt with narcotic cases as such, he knew that it was Poppy Straw. He did not record the statements of DySP, Tehsildar on spot and also did not keep them as witnesses in the seizure memo. Seized articles were not resealed on spot as Tehsildar was not having the requisites for resealing. He had called DySP and Tehsildar on spot by phone and they came on spot at 3.00 PM. They stayed there for 1 to 1.30 hours. Packets were resealed by the Naib Tehsildar with his seals and the packets were not opened for resealing. Weighing machine was electronic. He cannot say about the weight of contraband from each bag individually. When samples were taken from Malkhana, entry is made in Register No. 19. He has not annexed any document with challan demonstrating that samples were brought out from the malkhana. He stated that there is certificate with regard to deposit of articles in malkhana.
21 CrlA(D) No. 34 of 2019Discussion:
9. The first contention of the appellant is that no independent witness has been associated with the investigation by IO, which affects the credibility of the prosecution story. PW Sanjay Gupta, who happens to be the Investigating Officer admitted that there were civilians on spot and he intimated them orally to be a witness but they declined and this fact is not mentioned in the case diary. So the fact remains that despite civilians witness being available on spot, they were not associated with the investigation. Now it is required to be seen as to whether the prosecution case can be rejected on this ground alone. In Rizwan Khan v. State of Chhattisgarh1, the Apex Court has held as under:
"12. It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non- corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808].
13. In the recent decision in Surinder Kumar v. State of Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563], while considering somewhat similar submission of non-examination of independent witnesses, while dealing with the offence under the NDPS Act, in paras 15 and 16, this Court observed and held as under:
"15. The judgment in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521: (2011) 1 SCC (Cri) 1191], relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The 1 (2020) 9 SCC 627 22 CrlA(D) No. 34 of 2019 evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.
16. In State (NCT of Delhi) v. Sunil [State (NCT of Delhi) v. Sunil, (2001) 1 SCC 652 : 2001 SCC (Cri) 248], it was held as under: (SCC p. 655) „It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature.‟"
14. Applying the law laid down by this Court on the evidence of police officials/police witnesses to the facts of the case in hand, referred to hereinabove, we are of the opinion as the police witnesses are found to be reliable and trustworthy, no error has been committed by both the courts below in convicting the accused relying upon the deposition of the police officials."
10. Thus the test is that where the Police witnesses examined are reliable then the prosecution case is not required to be rejected on the ground that independent witnesses were not examined. From the testimony of PW-Head Constable (HC) Pardeep Kumar, it is evident that he was on naka duty along with Constable Kamaljeet Singh, SPO-Jeewan Singh and SPO- Ramesh Kumar and during naka, a truck that was being driven by appellant was stopped and when the same was checked by PW-Jeewan Singh and PW-Kamaljeet Singh, it was found to be empty. However, in the tool box, seven boxes were found and the particles of Poppy Straw were scattered in the tool box. PW HC-Pardeep Kumar has proved the docket as EXT-1, pursuant to which, FIR bearing No. 88 of 2016 under Sections 8/15 of NDPS Act was registered at Police Station Kud. The prosecution witnesses 23 CrlA(D) No. 34 of 2019 namely PW Jeevan Singh and PW Kuljeet Singh have narrated the same story as has been mentioned in the docket. PW Pardeep Kumar has further proved the fact that SHO Police Station Kud also visited the site and contraband was weighed that was found to be 82 kgs and from each box, 02 samples of 500 grams each were separately drawn and total 14 samples of 500 grms each were prepared. He is witness to the seizure memo and he has proved the contents of the seizure memo of contraband i.e. EXT-1 and also the seizure of vehicle i.e. EXT-P1/II. The evidence of the PW HC-Pardeep has been corroborated by the statement of PW-Jeewan Singh and PW- Kuljeet Singh, who first of all mounted on the truck and found the Poppy Straw in the tool box. PW-Jeewan Singh has also proved the factum of preparation of the docket by HC-Pardeep Kumar for registration of FIR and it was PW-Jeewan Singh who had taken the said docket to Police Station for registration of FIR and he too has categorically stated that Poppy Straw was weighed and it was found to be 82 kgs. He has further proved the fact that he brought the electronic weighing machine from the shop of Taj Sweets. He has further proved the fact that the seal that was used for the purpose of sealing was kept on his Supurdari and he produced the same in the Court. PW-Kuljeet Singh has also supported the prosecution on similar lines like PW-Pardeep Kumar and PW-Jeewan Singh. All the three witness examined by the prosecution have categorically proved the fact that the vehicle in question was stopped and the same was checked and during checking, seven bags were found in the tool box those were covered with yellow Tarpaulin. The particles of the Poppy Straw were scattered in the tool box. All the three witnesses have also proved the fact that the SHO 24 CrlA(D) No. 34 of 2019 came on spot along with photographer and contraband was weighed by electronic weighing scale and the total weight of the contraband was found to be 82 kgs. Thus there is convincing evidence with regard to the recovery of contraband from the truck driven by the appellant and the appellant has not been able to demonstrate any reason for disbelieving the statement of the Police witnesses.
11. The second contention of the appellant is that there is no evidence that the Samples were withdrawn from the malkhana on 17.11.2016 for the purpose of resealing and they were deposited back in the Malkhana on the same day as such, there is no evidence that the contraband allegedly seized from the appellant was sent for resealing by the Executive Magistrate. Ext P-8 is the extract of Malkhana register in which there is entry with regard to the deposit of seized articles including samples on 16.11.2016. PW Hukam Singh, who was the In-charge Malkhana at the relevant point of time, had brought the Register No. 19 in the trial court. In the said register, the reference was made to the resealing of samples on 17.11.2016, though there was no entry with regard to taking out and depositing of the samples on 17.11.2016 in Malkhana register. But PW Hukam Singh stated that the said entry is made in Roznamcha. Further it is mentioned in the malkhana register that seven samples were withdrawn on 21.11.2016 by ASI Subash Chander for the purpose of chemical examination by FSL and it is mentioned in FSL report dated 09.12.2016 (Ext P-7) that the seven samples were sealed with the seal of Naib-Tehsildar. The factum of resealing on 17.11.2016 has been duly reflected in the original Malkhana register. So this contention too lacks any force.
25 CrlA(D) No. 34 of 2019
12. The third contention of the appellant is that there was delay of 6 days in sending the samples to FSL for chemical analysis and the said delay is fatal to the prosecution case. It requires to be noted that the samples alongwith other seized articles were deposited in malkhana on 16.11.2016 after they were duly sealed on spot by IO. Thereafter the samples were resealed by PW Rafiq Ahmed with his seals on 17.11.2016. The perusal of FSL report dated 09.12.2016 (Ext P-7) revels that the seals were intact and the impression of the seals tallied with the facsimile impression of seal on letter dated 17.11.2016 (Ext P-6) of Naib-Tehsildar.Thus there was no tempering with the seals impression upon the samples sent for chemical examination. In Hardip Singh v. State of Punjab2, the Apex Court, while dealing with the question of delay in sending the samples to the FSL, observed that it was of no consequence as the recovery of the said sample from the possession of the appellant had been proven and established by cogent and reliable evidence and that apart, it had also come in evidence that till the date of parcels of samples were received by the chemical examiner, the seal put on that parcel was intact. Under these circumstances, the Court ruled that the said facts clearly proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the possession of the appellant. The plea that there was 40 days' delay was held to be immaterial. So this plea too deserves to be rejected as there is nothing on record that the samples were tampered.
2 (2008) 8 SCC 557 26 CrlA(D) No. 34 of 2019
13. The fourth contention of the appellant is that the seal was not kept in the malkhana and there is contradictory evidence as to the custody of the seal as PW Pardeep Kumar has stated that ring was kept on supurdnama of SHO. We find that it has come in the evidence of PW Jeewan Singh that the ring used for sealing was kept on his supurdnama and the supurdanama Ext P-3/I was proved by him and he had even produced the ring in the trial court. Even the perusal of statement of PW Pardeep Kumar reveals that he has stated that ring was kept on supurdnama of Jeewan. When the ring was kept on supurdnama of PW Jeewan Singh and seized articles were deposited in the Malkhana on 16.11.2016 so there can hardly be any chance of tampering. Even the appellant has not cross-examined the witness regarding the tempering. As such this contention also is without any substance.
14. The fifth contention raised by the appellant is with regard to the contradictions in the prosecution case. The Learned Counsel for the appellant laid stress with regard to the presence of SDPO and Executive Magistrate on spot. It deserves to be noted that the all the witnesses who were present on spot have deposed about the arrival of SDPO and Tehsildar on spot. PW Rafiq Ahmed was Naib-Tehsildar and he rightly stated that he was not present on spot. So there is no contradiction with regard to the presence of Tehsildar on spot. So far as the argument of the learned Counsel about the presence of SDPO with regard to the contradiction in his statement regarding unloading of the contraband is concerned, he has stated that while he reached on spot poppy straw was almost unloaded, so there is hardly any contradiction in his statement. So far as PW Mukhtiar Ahmed is 27 CrlA(D) No. 34 of 2019 concerned, he was not witness to the seizure memo. He admitted the signatures on the supurdnama of weighing scale (Ext P-3) and was cited as witness to the supurdnama of weighing scale only in the list of the witnesses and was never cited as eye witness. So merely his turning hostile will not have any effect on the prosecution case. The argument of the Learned counsel for the appellant that PW Jeevan Singh ahs deposed that papers were brought through civilian by IO is concerned, it needs to be noted that SHO is investigation officer and PW Jeewan Singh admitted that he came along with SHO and other police personnel at 2.45. It is PW Jeewan Singh who handed over the docket for registration of FIR. The statement of the witness is required to be read as a whole and whole statement is required to be examined and not one solitary sentence. The contradictions as pointed by the learned counsel for the appellant are trivial in nature, those have no bearing on the merits of the case and in fact are inconsequential. Reliance is placed on the decision of Apex Court in State v. Saravanan3, where Apex Court has held that as under:
"Even otherwise, it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself 3 (2008) 17 SCC 587 28 CrlA(D) No. 34 of 2019 would not prompt the court to reject the evidence on minor variations and discrepancies."
15. The last contention has been raised with regard to the compliance of sections 52, 55 and 57 of the NDPS Act. It needs to be noted that in Gurbax Singh versus State of Haryana 4, the Apex Court has held that the said provisions are not mandatory but directory. The seized articles were kept in safe custody and the appellant was informed about his arrest. Immediate superior of PW Sanjay Gupta i.e. PW Vinod Sharma SDPO was also present on spot. Assuming there is violation of abovementioned provisions, even then appellant is not entitled to be acquitted once the prosecution has proved its case beyond any shadow of doubt.
16. The judgments relied upon by the Appellant reported in 2013 AIR (SC) 357, 2018(2) SCC 305 and 2017 AIR (SC) 3751 are not applicable in the present facts and circumstances of the case.
17. We have carefully gone through the judgment of the trial court. The learned trial court has examined and appreciated the evidence led by the prosecution in its right perspective and the appellant has not been able to convince us that the learned trial court has wrongly appreciated the evidence. In light of what has been discussed above, we have not been able take a view other than that of the trial court. As such, the conviction of the appellant is upheld.
18. The appellant must be 44 years of age by now, having family to support and the prosecution has not brought anything on record that the appellant has been earlier involved in commission of such type of offences, so we have no hesitation to hold that this is the first offence of the appellant. So taking 4 2001 AIR (SC) 1002 29 CrlA(D) No. 34 of 2019 note of the judgment of the Apex Court in Balwinder Singh v Assistant Commissioner, Customs and Central Excise5, we reduce the sentence of the appellant from Rigorous imprisonment of 12 years to 10 years Rigorous imprisonment. The fine payable shall remain the same. The appeal is partly allowed. The impugned order of sentence passed by Learned Sessions Judge, Udhampur in challan titled "State vs Manjeet Singh and another"
bearing File No. 11/Spl. Challan arising out of FIR No. 88/2016 under sections 8/15 of the NDPS Act registered with Police Station Kud, is modified accordingly.
19. Record be sent back forthwith along with copy of the judgment. Jail Authorities be intimated accordingly.
(RAJNESH OSWAL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
JAMMU:
12.11.2021
Paramjeet
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
5
2005(4) SCC 146