Punjab-Haryana High Court
Darshan Singh Son Of Kundan Singh Son Of ... vs State Of Punjab on 18 January, 2003
Author: Virender Singh
Bench: R.L. Anand, Virender Singh
JUDGMENT Virender Singh, J.
1. Darshan Singh on of Kundan Singh and his son Nirmal Singh son of Darshan Singh are the appellants in this appeal who have been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') by the learned Additional Sessions Judge (Special Court) Mukhtsar vide impugned judgment dated 20.11.2002 and have been sentenced to undergo RI for 15 years each and to pay a fine of Rs. 1,50,000/- each and in default of payment of fine to further undergo RI for nine months each.
2. The brief diary of the prosecution case is that on 19.10.97, a police party headed by SI Nek Singh PW2 was present in the area near bus stand of village Ruharianwali in connection with patrol duty where they also met another party headed by SI Nirbhjit Singh PW3. Darshan Singh, a chowkidar of village Ruharianwali was also joined. A joint naka was held at the drain bridge in the area of village Bhagsar when at about 12.30 p.m., a tractor Ford make bearing No. PB-04D-7969 was seen coming from the side of village Bhagsar being driven by Nirmal Singh appellant and Darshan Singh appellant was sitting on its mudguard holding an iron box on his legs. The said tractor was signalled to stop. Both the appellants were thereafter told by the police officials that they wanted to conduct their personal search as they were suspecting that the appellants were carrying some contraband article. An option was given to both the appellants as to whether they wanted their search to be conducted before a gazetted officer or a Magistrate. Both the appellants desired that their personal search be conducted in the presence of a gazetted officer. The consent memo Ex. PB was also prepared in this regard. A wireless message was consequently sent to Superintendent of Police Dharam Singh PW6 who reached the spot and disclosed his identity to both the appellants. Thereafter personal search of the appellants was conducted in the presence of Superintendent of Police and consequently 35 kgs. of opium kept in the iron box was recovered. A sample of 50 grams was separated. Sample and the remaining opium were sealed with the seal of SI Nirbhjit Singh PW3 bearing impression 'NS' and the seal of Superintendent of Police, Dharam Singh PW6 bearing impression 'DS' over the sample seal Ex. P1 as well as iron box containing bulk opium. The sample, sample seal and the iron box containing the opium alongwith the tractor were taken into possession vide recovery memo Ex. PC. A rough site plan was also prepared of the place of recovery which is exhibited as Ex. PH. The personal search memos Ex. PD and PE of both the accused were also prepared at the spot. Consequently, ruqa Ex. PG was sent to the concerned police station on the basis of which formal FIR Ex. PG/1 was recorded against the appellants under Section 18 of the Act. Both the appellants were formally arrested. The grounds of their arrest were also prepared at the spot which is Ex. PF.
3. After reaching police station, Investigator SI Nirbhjit Singh PW3 retained the case property with him and produced the same on the next day before the Ilaqa Magistrate with a request application Ex. PJ for getting orders regarding the custody of the same. The learned Sub Divisional Judicial Magistrate vide Ex. PJ/1 directed that the case property be deposited in the Malkhana Faridkot under the control and supervision of learned Chief Judicial Magistrate. Consequently, on 24.10.1997 the case property was again produced before the learned Chief Judicial Magistrate, Faridkot alongwith request Ex. PJ over which the learned Chief Judicial Magistrate, Faridkot passed his orders for depositing the case property with the Moharar Head Constable of the police station. The said order is Ex. PJ/2. The case property accordingly was deposited with Moharar Head Constable Baljit Singh who has been examined as PW1. The seal remained intact throughout. A detailed report was also sent to the Ilaqa Deputy Superintendent of Police vide Ex. PK. The sample was sent to the Chemical Examiner for its analysis and the Chemical Examiner vide his report Ex. PL opined the contents of the sample as of opium. Consequently, the challan was presented in the court for the trial of both the appellants. Learned Additional Sessions Judge (Special Court) framed a charge against both the appellants under Section 18 of the Act.
4. In order to connect the appellants with the allegations, the prosecution has examined Baljit Singh PW1, SI Nek Singh PW2, SI Nirbhjit Singh PW3, Constable Jaswant Singh PW4, Amarjit Singh Clerk PW5 and Superintendent of Police Dharam Singh PW6. However, Darshan Singh Chowkidar who was joined by the police party at the time of naka was given up by the prosecution as being won over by the appellants. We shall be discussing the evidence of the main witnesses at the relevant stage.
5. The stand of both the appellants is that they have been falsely implicated in this case on the ground of a protracted litigation pending between Darshan Singh appellant and a Municipal Councillor who was threatening them to eject them and their family members from the disputed land. The defence of the appellants further is that on the day when this case was registered against them, both the appellants alongwith Saraj Singh (son of Darshan Singh) were taken from their house at about 10 AM in the presence of certain neighbours and thereafter both of them were falsely implicated in this case in so much so their thumb impressions/signatures on blank papers were obtained in the police station under duress and coercion. A telegram was also sent by the relatives to the Judicial Magistrate Ist Class regarding their detention. The appellants have also examined Ramjit Lal Record Keeper DW1, Hira Lal DW2, Mander Singh DW3, Avtar Singh DW4, and S.P. Sahni, Post Master DW5.
6. On consideration of entire evidence, both the appellants have been sentenced and convicted as indicated above. Hence this appeal.
7. We have heard Mr. Vikram Chaudhary learned counsel for both the appellants and Mr. G.S. Gill, Senior Deputy Advocate General representing the State of Punjab. With their assistance we have minutely scanned the evidence recorded by the trial court and the other relevant documents as well.
8. Before touching the arguments advanced by the learned counsel for the appellants, it would be necessary to mention here that the case of the prosecution mainly hinges upon the testimonies of SI Nek Singh PW, SI Nirbhjit Singh PW3 and Superintendent of Police Dharam Singh PW6 who in their testimonies have deposed about the recovery of 35 kgs. of opium having been effected from both the appellants on 19.10.97. They have also proved all the documents of the case property. Reference to those documents has already been made by us in the earlier part of our judgment while narrating prosecution story in brief. SI Nirbhjit Singh PW3 has also deposed about the retaining of the case property and thereafter being produced before the Ilaqa Magistrate on 20.10.97 for obtaining orders regarding the custody. He has also deposed about another order obtained by him on 24.10.97 from the learned Chief Judicial Magistrate, Faridkot. It has also come in his evidence that the case property was deposited with Moharar Head Constable Baljit Singh PW1 and Constable Jaswant Singh PW4. It is worth mentioning here that MHC Baljit Singh and Constable Jaswant Singh have tendered their affidavits Ex. PA and PN respectively and the same would also be the subject matter of discussion in our succeeding paras of the judgment. The tractor is shown to the registered in the name of Nirmal Singh appellant and his brother Saraj Singh and the certificate to that effect is Ex. P3.
9. Mr. Vikram Chaudhary learned counsel for the appellant, while referring to the infirmities in the prosecution case has first of all contended before us that even if the prosecution story is taken to be true as it is, the conscious possession of the contraband allegedly recovered qua Nirmal Singh appellant is not proved. Advancing his arguments on this count, Mr. Chaudhary further submitted that it is the case of the prosecution that Nirmal Singh appellant was on the steering of the tractor and Darshan Singh appellant was sitting on mudguard of the tractor and that it has also come in the statement of SI Nirbhjit Singh PW3 that after Dharam Singh, Superintendent of Police PW6 had reached the spot the key of the iron box was taken from Darshan Singh appellant for opening it and then the opium is rapped in a polythene paper was recovered. He has taken us through the statement of SI Nirbhjit Singh PW3 on internal page No. 2 is this regard. It is then contended by the learned counsel for the appellants that the prosecution agency did not make any effort to collect the evidence to come to the conclusion regarding the nexus of Nirmal Singh appellant with the opium allegedly recovered. Mr. Chaudhary, thus, developed his case by saying that there is every possibility in this case that Nirmal Singh appellant might not be knowing that his father Darshan Singh appellant was carrying opium in the iron box which was locked by him only and as such the conscious possession in respect of the contraband allegedly recovered qua Nirmal Singh appellant is not proved by the prosecution and he, thus, deserves acquittal.
10. In support of his contention, Mr. Chaudhary has relied upon a judgment of Apex Court rendered in Avtar Singh v. State of Punjab, 2002 (4) RCR (Criminal) 180.
11. Even otherwise, the contention of Mr. Chaudhary is that in totality the case of the prosecution fails because of certain inherent infirmities. The first infirmity pointed out by the learned counsel is that the link evidence in this case is missing as much as that the prosecution has not been able to prove that the sample allegedly taken on the spot was the same which was sent to the Chemical Examiner for analysis. Colouring his arguments in this regard, the learned counsel has submitted that as per report Ex. PL, the sample which reached the Chemical Examiner was having endorsement No. 387/EXB dated 27.10.87 whereas as per the affidavit of Constable Jaswant Singh PW4 tendered as Ex. PN, the endorsement No. is mentioned as 303 dated 27.10.97 and thus, according to the learned counsel, the sample allegedly drawn at the place of recovery is different than. The one which was sent to the Chemical Examiner on 27.10.97 and that the prosecution agency has not been able to prove this basic difference of two different endorsement numbers. Mr. Chaudhary, thus, submits that the link evidence in this case is missing which is fatal to the prosecution.
12. The other infirmity pointed out by the learned counsel for the appellant is that there was delay in sending the sample. It is contended that the recovery was effected on 19.10.97 whereas the sample was sent on 27.10.97 and there is every possibility that in between this period, it might have been tampered with. According to Mr. Chaudhary this delay also shatters the case of the prosecution to a great extent.
13. Another lacuna which Mr. Chaudhary takes as very serious infirmity is that the case property was produced first of all before the learned Judicial Magistrate on 20.10.97 for getting orders regarding its deposit and thereafter it was again produced on 24.10.97 before the learned Chief Judicial Magistrate who had ordered for the deposit of the same in the Malkhana. According to Mr. Chaudhary for these four days i.e. from 20.10.97 to 24.10.97 the prosecution has not brought any evidence to the effect that the case property remained intact throughout. Developing his arguments on this score, the learned counsel further contended that even the order passed by Sub Divisional Judicial Magistrate on 20.10.97 (Ex. PJ/1) goes to show that both the parcels as well as sample seals were attested by the Magistrate whereas according to the report of the Chemical Examiner Ex. PL, there is no attestation of the Magistrate on seal impression and thus, it can be doubted that the sample had changed hands or could have been tampered with before reaching the Chemical Examiner.
14. Mr. Chaudhary has also argued that the defence of the appellants is most probable but the same has been ignored by the learned trial court without any cogent reasons.
15. Mr. Chaudhary mainly stressing upon the above said lacuna has also pointed out certain other minor contradictions in the statements of SI Nek Singh PW2, SI Nirbhjit Singh PW3 and Dharam Singh Superintendent of Police PW6 half-heartedly and we would not like to refer to those discrepancies in this appeal.
16. Lastly on quantum of sentence, Mr. Chaudhary prayed for the reduction in the substantive sentence of 15 years awarded to both the appellants as well as reduction in the sentence of fine of Rs. 1,50,000/- to be deposited by each of the appellants.
17. On the other hand Mr. G.S. Gill, learned Senior Deputy Advocate General representing the State of Punjab has strenuously argued that the case against both the appellants is proved to the hilt and they have no escape. It is further submitted by Mr. Gill that there is no reason to disbelieve the three officials in which one was Superintendent of Police in whose presence, the recovery was effected. Meeting the arguments of learned counsel for the appellants qua Nirmal Singh appellant, it is contended by the learned counsel for the State that the conscious possession of the contraband qua both the appellants is proved as Nirmal Singh appellant who was on the steering of the tractor is nobody else but the son of Darshan Singh appellant and it cannot be said that he was not aware as to what was being carried by his father in the locked iron box which Darshan Singh appellant was keeping on thighs while sitting on the mudguard of the tractor. Mr. Gill, thus, contends that the conviction as recorded by the trial court of both the appellants is liable to be maintained.
18. After minutely scanning the entire evidence and the other relevant documents, we are of the view that all the submissions raised by the learned counsel for the appellants have to be repelled although we are hereby meeting all the contentions individually.
19. So far as conscious possession qua Nirmal Singh appellant in respect of contraband allegedly recovered from the iron box, in our opinion, is proved beyond any shadow of doubt by the prosecution. It is initially the case set up by the prosecution and has also been projected from the testimonies of SI Nek Singh PW2 and SI Nirbhjit Singh PW3 respectively that the tractor was being driven by Nirmal Singh appellant and his father Darshan Singh appellant was sitting on the mudguard by his side keeping the iron box on his thighs and they were signalled to stop. In this context the reference to the testimony of SI Nirbhjit Singh PW3 is very relevant in which he has categorically stated when examined on oath that after noticing police party, Nirmal Singh appellant had tried to reverse the tractor and then on suspicion the accused were apprehended. Relevant portion of his statement is reproduced as under:-
"xx xxx xxx xxx At about 12.30 PM a Ford make tractor of Blue colour bearing No. PB-04D-7969 came from the Bhagsar side which was being driven by Nirmal Singh accused present to day in the court. Darshan Singh accused was sitting on the left mudguard of the tractor. He was holding an iron box on his thighs (leg). On noticing the police party, Nirmal Singh tried to reverse the tractor. On suspicion the accused were apprehended."
xxx xxxx xxx xxx"
20. The statement of SI Nek Singh PW2 is also to the same effect and the relevant portion in this regard is reproduced as under:-
"xxx xxxx xxxx xxx An iron box had been held by Darshan Singh on his leg. On noticing the police party, Nirmal Singh accused tried to go back xxx xxxx xxxx xxxx"
21. From this set of evidence, there appears no doubt that Nirmal Singh appellant was aware of the fact as to what was being carried by his father in the locked iron box kept by him on his thighs. Had he not been aware of this fact, there was no need of reversing tractor or to run away after seeing the police party. He could very well stop the tractor on the signal without any other activity and then Darshan Singh appellant could be searched by the police. The tractor which was apprehended also belongs to Nirmal Singh as is clear from the registration certificates Ex. P3 which is in the name of Nirmal Singh appellant and his real brother Sarja Singh. Knowing very well the legal proposition that the conscious knowledge is not synonymous to conscious possession but keeping in view the facts and circumstances of the present case, we hold that Nirmal Singh appellant had the conscious knowledge of the fact that a contraband belonging to them was being carried in their tractor in a iron box being handled by his father Darshan Singh appellant and as such, the conscious possession of the contraband qua Nirmal Singh appellant is also proved. There cannot be any dispute that Nirmal Singh appellant who was on the steering of the tractor could not hold the iron box carrying the contraband as well. Assuming for the sake of argument that even if the iron box was not being carried by Darshan Singh appellant on his thighs and he would have kept it at some other place in the tractor, still in that eventuality it could also be safely said that both the appellants had the conscious possession of the contraband being the father and son. In the present case, the father is handling the iron box while sitting on one side of Nirmal Singh appellant on the mudguard. The contention raised by the learned counsel for the appellant in this regard qua Nirmal Singh is, thus, repelled.
22. The learned counsel for the appellants cannot derive any benefit from the decision of the Apex Court rendered in Avtar Singh v. State of Punjab (supra) as the same is distinguishable on the facts and circumstances of the present case.
23. The other argument raised by the learned counsel for the appellants that the link evidence is missing in this case does not hold water also. We have minutely scanned the affidavits of Constable Jaswant Singh Ex. PN and the affidavit of Moharar Head Constable Baljit Singh Ex. PA. The case property was infact deposited in the Malkhana and MHC Baljit Singh was the incharge of the same. In this affidavit Ex. PA he states that the case property was deposited with him and ultimately on 27.10.97 it was handed over to Constable Jaswant Singh No. 572 of Police Station Sadar Muktsar in correct conditions vide Rode No. 303 dated 27.10.97 and he was further directed to deposit the same in the office of Chemical Examiner, Punjab and its receipt was to be obtained. He was further directed to get a docket issued with its number from the office of Senior Superintendent of Police, Muktsar before proceeding to Chemical Examiner alongwith sample. Affidavit of Constable Jaswant Singh which has been exhibited as Ex. PN is also to the same effect in which he has submitted in para No. 3 that on 27.10.97 as per directions of MHC Baljit Singh he had got issued docket with number from the office of Senior Superintendent of Police, Muktsar and on 28.10.97 he had deposited the same with the Chemical Examiner Punjab, Chandigarh alongwith seal impression with 'NS' and 'DS'. He has further stated that the case property remained intact with him till it was delivered to the Chemical Examiner. The relevant portion of the affidavit of Constable Jaswant Singh is reproduced as under:-
"xx xxx xxx xxx
1. I, Jaswant Singh No. 572 do solemnly affirm and declare that on 27.10.97 MHC Baljit Singh No. 84, P.S. Sadar, Muktsar, taken out the parcel of opium weighing 50 grams sealed with seal NS, DS alongwith sample seal from the Malkhana of the above said case and handed over to me in correct condition vide Rode No. 303 dated 27.10.97. He directed me that the sample may be deposited in the office of Chemical Examiner, Punjab, Chandigarh and to get receipt of deposited case property. He further directed me to get issued a docket with number from the office of SSP, Muktsar, before proceeding to the office of Chemical Examiner, Punjab, Chandigarh, alongwith sample.
3. I, C. Jaswant Singh No. 572 do solemnly affirm and declare that on 27.10.97 as per directions of MHC Baljit Singh No. 84, P.S. Sadar, Muktsar, I had got issued docket with number of the above said case from the office of the SSP, Muktsar, on 28.10.97, I deposited the parcel of opium weighing 50 grams sealed with seal NS, DS alongwith sample of the said case, in the office of Chemical Examiner, Punjab, Chandigarh, intact and receipt of deposited case property was obtained.
xxx xxx xxxx xxx"
24. Affidavits of Constable Jaswant Singh and MHC Baljit Singh show that infact there is a reference to two endorsements one is Rode No. 303 dated 27.10.97 when the sample was handed over to Constable Jaswant Singh by MHC Baljit Singh and the other is the docket prepared by the office of Senior Superintendent of Police, Muktsar with its number of sending the sample through Constable Jaswant Singh to the Chemical Examiner, Punjab, Chandigarh. No doubt, there is infact no reference to the second number. This appears to be an in-affidavit and we are of the view that F.S.L. report Ex. PL talks of the second endorsement No. as 387/EXB dated 27.10.97. This endorsement is certainly by Senior Superintendent of Police, Muktsar. Even the report indicates as under:-
"Report on the analysis of the sample of opium, forwarded by S.S.P. Muktsar referred to in his endst. No. 387/EXB dated 27.10.97."
25. From this it can safely be concluded that there is no change in the sample and it was the same which was drawn from the contraband allegedly recovered on 19.10.97 from the appellants and thereafter kept intact throughout till it was delivered to Chemical Examiner. Argument on this count of learned counsel for the appellant is, thus, rejected being devoid of any merit.
26. The other attempt made by the learned counsel for the appellants in respect of delay in sending the sample is also devoid of any force. We have seen all the relevant documents in this respect. The case property and the samples were initially produced on 20.10.97 and the orders of learned Sub Divisional Judicial Magistrate vide Ex. PJ/1 were obtained. Thereafter, the case property once again produced on 24.10.97 before the learned Chief Judicial Magistrate and on his orders it was deposited in the Malkhana. From 24.10.97 to 27.10.97, the case property remained intact with Moharar Head Constable Baljit Singh as is evident from his affidavit Ex. PA discussed above and thereafter it was sent to the Chemical Examiner on 27.10.97. All these legal formalities, in our view take their own time in routine and we feel that at no point of time any delay has occurred in this case till the sample reached the Chemical Examiner.
27. In our view there is no delay at all which can be seen with an eye of suspicion against the prosecution. We would also like to meet the other arguments of the learned counsel for the appellant at this juncture regarding the attestation of the Magistrate on the slip bearing seal impression and thereafter sent to the Chemical Examiner with the sample. Mr. Chaudhary learned counsel for the appellants has made an attempt to derive capital out of it saying that it has come in the order of learned Divisional Judicial Magistrate on 20.10.97 that he had attested both parcels as well as sample seals and that the sample seal sent to the Chemical Examiner is infact not attested one. We have once again perused the report of the Chemical Examiner Ex. PL and the slip having seal impression Ex. PI attached to it. Although it does not bear any attestation by the Magistrate, but it would not make any difference because it is duly signed by the Superintendent of Police Dharam Singh who has been examined as PW6. His seal impression is 'DS' whereas the other seal impression is 'NS', certainly of SI Nirbhjit Singh PW3. Once we have held that the case property remained intact till it reached the Chemical Examiner, this argument advanced by the learned counsel for the appellant would be of no help to him. The perusal of the report of Chemical Examiner also indicates that when he received the sample on 28.10.97 for analysis the seals of exhibits were intact on arrival and were also agreeing with the specimen seal sent. We, thus, observe that there is no infirmity in this regard and as such, the sample was not at all tampered with till it reached the Analyst.
28. We have also seen the defence evidence adduced by both the appellants in their favour and the same would not render any help to the case of the appellant in the light of the evidence adduced by the prosecution in support of its case.
29. As a sequel to the above said discussion, we are of the considered view that there is no infirmity in the impugned judgment of conviction as recorded by the trial court and we consequently maintain the conviction of both the appellants under Section 18 of the Act.
30. So far as quantum of sentence is concerned, we are of the view that the present case calls for interference. Both the appellants are stated to be in custody since their date of arrest in this case. They have already faced agony of protracted trial of more than five years. When the appellants were heard on the quantum of sentence after their conviction before the trial court it was stated on behalf of the Darshan Singh appellant that besides the fact that he is an old man of the age of 70 years, he is also suffering from paralysis and cannot walk properly. Keeping in view all the facts and circumstances into consideration, we are of the view that the ends of justice would be adequately met if the substantive sentence of 15 years awarded to both the appellants is reduced to 12 years each and the fine from Rs. 1,50,000/- each to Rs. One lakh each. In default of payment of fine, the appellants would, however, undergo further RI for nine months as already awarded by the trial court. Consequently, the present appeal filed by both the appellants namely Darshan Singh son of Kundan Singh and Nirmal Singh son of Darshan Singh stands dismissed with the modification in the quantum of sentence as indicated above. Intimation of this judgment be sent to the learned trial court and learned Chief Judicial Magistrate without any delay for taking necessary legal action.