Punjab-Haryana High Court
Balraj Singh vs State Of Punjab on 11 February, 2009
Author: Jora Singh
Bench: Jasbir Singh
Crl. Appeal No. 1059-DB of 2007. 1
Crl.Appeal No. 2483-SB of 2007
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No. 1059-DB of 2007.
DECIDED ON : 11.2.2009
Balraj Singh
Appellant.
VERSUS
State of Punjab
Respondent.
Crl. Appeal No 2483-SB of 2007.
DECIDED ON : 11.2.2009
Karamjit Singh and others
Appellants.
VERSUS
State of Punjab
Respondent.
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH.
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Ashok Arora, Advocate, for
appellants 1 and 3 in
Crl.A.No. 2483-SB of 2007.
Mr. K.D.Dadwal, Advocate, for
respondent No.2 in
Crl. A.No. 2483-SB of 2007.
Mr. S.S.Sullar, Advocate, for
the appellant In Appeal No. 1059-DB
of 2007.
Ms. Manjari Nehru Kaul,
Deputy Advocate General, Punjab.
Crl. Appeal No. 1059-DB of 2007. 2
Crl.Appeal No. 2483-SB of 2007
JORA SINGH,J.
Balraj Singh son of Sher Singh, resident of village Umrewal, District Jalandhar has filed Criminal Appeal No. 1059-DB of 2007 and Karamjit Singh son of Shri Piara Singh resident of village Tarfkotli, District Ludhiana; Harnek Singh son of Shri Karnail Singh resident of village Kishanpura, District Moga; and Surjit Singh alias Pappu son of Shri Mohinder Singh resident of village Bagian, District Ludhiana have filed Criminal Appeal No. 2483-SB of 2007 to impugn the judgment/order dated 21.11.2007 passed by Special Judge, Ludhiana in Sessions Case No. 20 dated 10.2.2003, RBT No. 13 dated 5.3.2007 under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 wherein they were convicted and sentenced as under:-
" Accused Karamjit Singh, Harnek Singh and Surjit Singh were sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- or in default of payment of fine to further undergo rigorous imprisonment for six months each. Accused Balraj Singh was ordered to undergo rigorous imprisonment for twelve years and to pay a fine of Rs.1,00,000/-; in default of payment of fine to further undergo rigorous imprisonment for six months."Crl. Appeal No. 1059-DB of 2007. 3
Crl.Appeal No. 2483-SB of 2007 Prosecution story, in brief, is that on 5.9.2002, police party headed by Sub Inspector Pawanjit was present near the bridge of canal minor falling in the revenue estate of village Sidhwan Kalan then sighted one Tata Sumo bearing registration No. PB-11H0786 coming from the side of village Sidhwan Kalan. Tala Sumo was signalled to spot. After applying brake driver tried to reiterate. But, with the help of police officials, Tala sumo was stopped. Three persons were sitting by the side of driver. There were gunny bags in the Tata sumo. One person was sitting on the gunny bag. On enquiry, driver of Tata Sumo had disclosed his name as Harnek Singh and three other persons who were sitting along with the driver disclosed their names as Rajdeep Singh, Karamjit Singh alias Kala and Surjit Singh. Person sitting on the bags disclosed his name as Balraj Singh. Investigating Officer suspected that there is some incriminating article in the bag and the bags are to be searched. Offer was given to the accused separately as to whether they want to be searched in the presence of a Gazetted Officer or Magistrate. Accused replied that they want to be searched before any Gazetted Officer. Consent memos were recorded separately. Accused had signed/thumb marked the memos respectively in token of their correctness. On telephone, DSP Gurjinder Singh, Jagraon was requested to reach the spot. At 7.30 A.M. DSP Gurjinder Singh came to the spot. He had disclosed his identity to the accused as DSP Crl. Appeal No. 1059-DB of 2007. 4 Crl.Appeal No. 2483-SB of 2007 Jagraon and a Gazetted Officer and told that he wants to search the bags being carried in the Tata sumo. D.S.P. gave offer to the accused as to whether they want to be searched before any Magistrate or Gazetted Officer. Accused reposed faith in the DSP and agreed to be searched. Consent memo was prepared which was signed and thumb marked by the accused. On checking, bags were found to be 12 in number. Out of each bag, 2 samples each weighing 250 grams were separated and the remaining poppy husk was found to be 35 kg in each bag. Samples and remaining husk in 12 bags were separately sealed with the seal bearing impression 'PJ'. Seal impression was prepared separately. Seal after its use was handed over to Sub Inspector Nek Singh. 24 samples and 12 bags containing remaining poppy husk were sealed by DSP with his seal bearing impression "GS". Sample parcels and the remaining poppy husk in the bags were taken into police possession vide separate recovery memos attested by the witnesses. Tata sumo along with R.C., was also taken into police possession vide separate memo.
Grounds of arrest were disclosed to the accused vide separate memo which were signed/ thumb marked by the accused and attested by the witnesses. Then Pawanjit had interrogated accused Balraj Singh who made disclosure statement that he has kept concealed eight bags of poppy husk in the Sarkanda of khatans of canal towards village Crl. Appeal No. 1059-DB of 2007. 5 Crl.Appeal No. 2483-SB of 2007 Malsian Bajan . He knew about the same and could get the same recovered. Disclosure statement of Balraj Singh was recorded and the same was signed by the accused in token of its correctness attested by the witnesses. As per disclosure statement, Balraj Singh got recovered eight bags of poppy husk from the specified place. Two samples each weighing 250 grams were separated from each bag and remaining poppy husk was found to be 35 Kg in each bag. Sample parcels and remaining poppy husk in bags were sealed with the same seals bearing impressions 'PJ" and "GS" Case property was taken into police possession vide recovery memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. Ruqa was sent to the police station on the basis of which case was registered. On return to the police station, case property was deposited with AMHC Jugraj Singh. On the next day, case property was obtained from the in-charge of mal-khana for production in Court. Case property was produced before the SDJM, Jagraon, who after inspecting the case property, returned the same to the Investigating Officer. Case property was again deposited with the MHC.
After completion of investigating, challan was presented against the accused. Rajdip Singh accused was juvenile. Challan against Rajdip Singh, juvenile was separated vide order dated 14.5.2003.
After hearing learned Public Prosecutor for the Crl. Appeal No. 1059-DB of 2007. 6 Crl.Appeal No. 2483-SB of 2007 State and defence counsel for the accused and from the perusal of the documents on the file, learned Judge Special Court, Ludhiana found a prima facie case under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 is made out against the accused and they were charge sheeted accordingly to which they pleaded not guilty and claimed trial.
In order to substantiate the charges, the
prosecution examined as many as six witnesses and
tendered certain documents.
PW-1 Constable Avtar Singh had tendered his
affidavit Ex.PA. He had deposited the sample parcels in the office of Chemical Examiner.
PW-2 MHC Jugraj Singh had tendered his affidavit Ex.PB. After recovery case property was deposited with him by the Investigating Officer.
PW-3 Sub Inspector Nek Singh was with the police party of Pawanjit Sub Inspector. Pawanjit Sub Inspector was the Investigating Officer and appeared as PW-5. Sub Inspector Nek Singh and Sub Inspector Pawanjit stated that police party had held the naka bandi in the area of village Sidhwan Kalan, then sighted Tata sumo coming from the side of village and was signalled to stop. Three persons were sitting by the side of driver. One person was sitting on the bags. 12 bags of poppy husk were recovered from Tata sumo. Both the witnesses further stated how eight bags of poppy Crl. Appeal No. 1059-DB of 2007. 7 Crl.Appeal No. 2483-SB of 2007 husk were recovered as per the disclosure statement suffered by Balraj.
PW-6 DSP Baljinder Singh was summoned to the spot . He has also supported the version of SI Nek Singh and SI Pawanjit by saying as to how 20 bags of poppy husk were recovered from the possession of the accused.
After the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the allegations, levelled against them. Accused denied all the allegations and claimed to be innocent.
Defence version of Balraj Singh accused was that he is innocent. He was brought from his house in the presence of Wazir Singh. Defence version of other accused was that they are innocent and that nothing was recovered from their possession. Harnek Singh was not the driver.
In defence DW1 Wazir Singh appeared and stated that his wife was Sarpanch of the village. Balraj Singh was brought from his house on 4.9.2002. No incriminating article was recovered from him. Police party assured that Balraj Singh is to be released after investigation but on the next day, he came to know from the local newspaper that Balraj Singh was implicated.
DW-2 Kashmir Singh stated that he was Sarpanch of village Baggian. On 4.9.2002 Surjit Singh was brought from his house by the police. On enquiry, police officials replied that Surjit Singh was wanted in some enquiry and Crl. Appeal No. 1059-DB of 2007. 8 Crl.Appeal No. 2483-SB of 2007 after enquiry, he is to be released. Next day, he along with some respectables had gone to the police station and then came to know about the present case. No incriminating article was recovered from Surjit Singh.
After hearing learned Public Prosecutor for the State and defence counsel for the accused and also from the perusal of the evidence, learned Judge Special Court, Ludhiana opined that accused committed an offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and were sentenced as aforesaid.
We have heard learned counsel for the appellants and Ms. Manjuri Nehru Kaul, Deputy Advocate General, Punjab for the respondents.
Learned counsel for the appellants-accused argued that as per story, recovery was affected on 5.2.2002. There is delay in depositing the samples in the office of Chemical Examiner. Delay was not explained. Possibility of tampering with the case property cannot be ruled out. No explanation why available witnesses were not joined. According to the story, three persons were sitting by the side of driver. One was seen while sitting on the gunny bags. In fact, Harnek Singh was not the driver. Evidence is not clear as to who was in conscious possession of the gunny bags.
Learned Public Prosecutor for the State argued that appellants-accused are from different villages. Owner of the vehicle had failed to appear and explain as to who was the Crl. Appeal No. 1059-DB of 2007. 9 Crl.Appeal No. 2483-SB of 2007 driver of the vehicle or that the vehicle was not being driven by Harnek Singh. No allegation of the other accused that they had taken lift in the Tata sumo. Statements of Wazir Singh and Kashmir Singh are of no evidentiary value because no complaint was made to any authority that case is false. Before the present occurrence, police officials had no enmity with the appellants-accused. So, there was no idea to implicate the appellants-accused.
Submission of the learned defence counsel is that there is delay in depositing the samples in the office of Chemical Examiner. Delay is fatal. Possibility of tampering with the case property cannot be ruled out but we are not in a position to agree with this submission of the learned defence counsel. Evidence on the file shows that police party was holding a naka bandi near the bridge of canal minor falling in the revenue estate of village Sidhwan Kalan. At 11.40 A.M. Tata sumo was sighted while coming from the side of Sidhwan Kalan . Tweleve bags of poppy husk were recovered from the Tata sumo. Two samples each weighing 250 grams were separated from each bag. Balraj Singh was also interrogated and on interrogation, he had suffered disclosure statement that he has kept concealed eight bags of poppy husk. As per statement, eight bags of poppy husk were recovered. Two samples each weighing 250 grams were separated. Samples and the remaining poppy husk in bags was sealed with the seal bearing impressions "PJ" and "BS". Crl. Appeal No. 1059-DB of 2007. 10 Crl.Appeal No. 2483-SB of 2007 After recovery, the case property was deposited with MHC Jagraj Singh who had tendered his affidavit Ex.PB. In cross examination, MHC Jagraj Singh, stated that case property was deposited with him on 5.9.2002 at 5.30 P.M. No suggestion to the witness as to why samples were not sent to the office of Chemical Examiner immediately. Constable Avtar Singh had deposited samples in the office of Chemical Examiner. Constable Avtar Singh when appeared as PW1 was not cross examined by the defence counsel. On 6.9.2002 case property was produced before the SDJM, Jagraon. Case property was checked by the Magistrate. Case property was found sealed with the seals bearing impression PJ and GS. One seal used was of the Investigating Officer and the second seal was of the DSP. Office of the DSP was separate from the office of Investigating Officer. There is no provision that after recovery of the contraband, samples are to be deposited in the laboratory on the same day. No prejudice was caused to the appellants-accused by not depositing the sample on the next day in the office of Chemical Examiner. Seal impression was also prepared at the spot. When the case property was sealed with the seal bearing impressions "PJ" and "BS" then it was very difficult for the Investigating Officer to tamper with the case property because D.S.P. had retained his seal with him after using the same to seal the case property. Instructions to deposit sample within 72 hours are only directory and not Crl. Appeal No. 1059-DB of 2007. 11 Crl.Appeal No. 2483-SB of 2007 mandatory. Learned defence counsel failed to cite any provision of the Narcotic Drugs and Psychotropic Substances Act that after recovery of poppy husk, sample is to be deposited immediately on the same day or next day in the office of Chemical Examiner. Question is whether case property was tampered with or not.
Next submission of the defence counsel was that independent witnesses were available but no one was joined intentionally. Statement of the police officials without any independent corroboration inspires no confidence but submission of the defence counsel seems to be not correct one. There was no secret information with the police party. Police party was holding a naka bandi near the bridge of canal minor falling in the revenue estate of village Sidhwan Kalan when sighted the vehicle. No independent witness was available. In case, independent witness was available but not joined by the Investigating Officer then story is not to be ignored. Question is why the police officials have deposed against the appellants-accused particularly when appellants- accused had no enmity with the police officials. In case, independent witness present is not joined then evidence on the file is to be scrutinized with great care and caution. Mere non-joining of independent witness is not fatal.
Next submission of the learned defence counsel was that by the side of driver three accused were sitting. One accused was sitting on the gunny bag. Harnek Singh was not Crl. Appeal No. 1059-DB of 2007. 12 Crl.Appeal No. 2483-SB of 2007 the driver. No cogent and convincing evidence on the file as to which accused was in conscious possession of the incriminating article but submission of the learned defence counsel seems to be not genuine one because as per RC on the file Tata sumo was in the name of Abdul Wahid son of Mohd. Ramzan, partner of M/S. Plantsman Landscapes and Seeds, Rajbaha Road, Patiala. Appellants-accused are from different villages. They were to explain how they were travelling in Tata sumo bearing registration No. PB-11H0786, Owner of the Tata sumo was not produced to state that Harnek Singh was not the driver. Recovery was from the area of Sindhwan Kalan. Question is how the appellants from different villages were together in a Tata sumo in the area of Sindhwan Kalan with incriminating article. In Madan Lal and another Vs. State of Himachal Pradesh 2003 (45) RCR (Criminal) 100. Hon'ble Supreme Court held that recovery of contraband on search of car- five persons travelling in the car- one of them stated that contraband belonged to him. Held, statement was totally out of contest and no credence can at all be attached to the statement because in the statement under Section 313 Cr.P.C., he did not state that he alone was in possession- all the accused held responsible for possession. In the present case, no plea of the appellants-accused that they were not in conscious possession of the contraband. Tweleve bags of poppy husk were recovered from Tata sumo. Eight bags of poppy husk were recovered as per disclosure statement Crl. Appeal No. 1059-DB of 2007. 13 Crl.Appeal No. 2483-SB of 2007 suffered by Balraj Singh. In the absence of defence plea by any of the accused that he was not in conscious possession particularly when no defence of the appellants-accused that they were travelling in the Tata sumo by taking lift shows that all the appellants-accused were in conscious possession of the contraband. Appellant-accused had special knowledge about the contraband being carried in the Tata sumo. Eight bags of poppy husk were recovered as per disclosure statement. So, counsel for the appellants-accused cannot argue that the appellants-accused were not in conscious possession of the contraband. In Megh Singh Vs. State of Punjah, (2003) 8 SCC 666., Hon'ble Supreme Court held that accused apprehended while sitting atop gunny bags containing poppy husk and failed to show that the possession was not conscious, held, conscious possession stood proved. In this case, police party was on petrol duty then sighted three persons sitting on gunny bags two of them fled from the spot. One was apprehended. He had disclosed the name of person who had fled away from the spot. Once possession of contraband is established, then as per Section 35 and 54 of the NDPS Act, presumption is that the contraband recovered from the vehicle was in conscious possession of all the appellants-accused.
No other contention was forwarded.
The above discussion shows that there is no infirmity and illegality in the impugned judgment of the trial Crl. Appeal No. 1059-DB of 2007. 14 Crl.Appeal No. 2483-SB of 2007 Court and the same is upheld. Both the appeals i.e. Criminal Appeal No. 1059-DB of 2007 and Criminal Appeal No. 2483- SB of 2007 being without merit, are dismissed.
( JORA SINGH ) JUDGE ( JASBIR SINGH ) 11.2.2009 JUDGE Anoop