Punjab-Haryana High Court
Shankar Lal vs State Of Punjab on 13 March, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Appeal No.D-940-DB of 2009
.....
Date of decision:13.3.2013
Shankar Lal
...Appellant
v.
State of Punjab
...Respondent
....
(2) Criminal Appeal No.D-694-DB of 2010
.....
Soga Lal and others
...Appellants
v.
State of Punjab
...Respondent
....
Coram: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
.....
Present: Mr. K.S. Dhaliwal, Advocate for the appellant in Criminal
Appeal No.D-940-DB of 2009.
Mr. Sameer Sachdeva, Advocate for the appellants in Criminal
Appeal No.D-694-DB of 2010.
Mr. Rajesh Bhardwaj, Additional Advocate General, Punjab for
the respondent-State.
......
Inderjit Singh, J.
This judgment will dispose of above mentioned two appeals i.e. Criminal Appeal No.D-940-DB of 2009 filed by Shankar Lal and Criminal Appeal No.D-694-DB of 2010 filed by Soga Lal, Bhanwar Lal and Babu Lal as these arise out of the same judgment of conviction and order of sentence Cr. Appeal Nos.D-940-DB of 2009 etc. [2] dated 1.12.2008 passed by Special Judge, Moga.
These two criminal appeals have been filed against the judgment of conviction and order of sentence dated 1.12.2008 passed by Special Judge, Moga, whereby all the accused-appellants, namely, Soga Lal, Babu Lal, Bhanwar Lal and Shankar Lal have been held guilty for the offence under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `NDPS Act') and sentenced to undergo rigorous imprisonment for twelve years and to pay a fine of `1,25,000/- each and in default of payment of fine to further undergo rigorous imprisonment for one year and six months each for the offence under Section 18 of the NDPS Act.
The brief facts of the prosecution case are that on 19.7.2005 SI Tehal Singh, In-charge, CIA staff, Moga along with other Police officials was on patrol duty and was present at Bus Stand, Ghol Kalan. There he received a secret information that Accused Soga Lal, Shankar Lal, Bhanwar Lal and Babu Lal were supplying opium in the area of Moga by bringing it from Ferozepur and on that day all of them were coming by car No.RJ-30C- 3459 Mark Indica to Moga from Ferozepur. If a `Naka' was held, they could be nabbed. On the basis of secret information, `Ruqa' Ex.P.1 was sent to the Police Station, on the basis of which formal FIR Ex.P.2 was registered.
Then the Investigating Officer along with Police officials held a `Naka' at the Railway Crossing, Dagru. At about 4.15 p.m. all the aforesaid accused came from the side of Ferozepur in Indica car. He stopped the car and nabbed them. Soga Lal was driving the car, Babu Lal was sitting by his side. Shankar Lal and Bhanwar Lal were sitting on the back-seat of the car.
Cr. Appeal Nos.D-940-DB of 2009 etc. [3] The Investigating Officer told the accused that their search was to be conducted and they could opt to be searched in the presence of some Magistrate or some gazetted officer, as of their legal rights. All the accused opted to be searched before a gazetted officer. DSP (D) Sh. Rajinder Pal Singh Anand was called at the spot through wireless message. He introduced himself to the accused by disclosing his name and rank. He directed the Investigating Officer to conduct search of the accused and their car. The Investigating Officer SI Tehal Singh conducted search of the car on the direction of DSP. One bag was found lying in between the occupants of the front seat on the hand brake which was searched and 7 kgs. of opium was recovered. Sample of 10 Grams of opium in separate parcel was drawn. The remaining opium was put into the same glazed paper and a separate sealed parcel was prepared which was sealed with the seals of `TS' of the Investigating Officer and `RS' of DSP Rajinder Pal Singh Anand. The case property was taken into Police possession vide recovery memo Ex.P.8 along with the car. Rough site plan was prepared. On return to Police Station Sadar, Moga, the Investigating Officer handed over the custody of the accused-appellants and whole of case property to ASI Balwinder Singh. After verifying the facts, SHO Balwinder Singh also sealed both the parcels with his seal of `BS'. The Investigating Officer also sent special report under Section 57 of the NDPS Act to the senior Police Officer. The accused were arrested. After necessary investigation, the challan was filed in the Court.
On presentation of challan, the trial Court finding prima facie case against accused-appellants Soga Lal, Babu Lal, Bhanwar Lal and Cr. Appeal Nos.D-940-DB of 2009 etc. [4] Shankar Lal, framed charge for the offence under Section 18 of the NDPS Act. The accused-appellants pleaded not guilty to the above charge and claimed trial.
In support of its case, the prosecution examined PW-1 SI Tehal Singh, Investigating Officer, who mainly deposed as per prosecution version. PW-2 ASI Gurcharan Singh was also with the Police party of SI Tehal Singh. He also deposed as per prosecution version and he is also witness of recovery. He deposed regarding the recovery of opium. PW-3 SI Ajay Pal Singh mainly deposed that on 29.8.2005 he was posted as SHO, Police Station Sadar, Moga. On that day, he prepared inventory Ex.P.21 of the case property of present case. He submitted the same along with one parcel of bulk contents of opium in the Court of JMIC, Moga. The learned Magistrate took out one representative sample and converted it into a parcel and sealed the said sample parcel. Photographs of the case property were also taken. The learned Magistrate passed orders regarding the aforesaid proceedings and authenticating the case property. The case property was brought back to the Police Station and deposited with the MHC. PW-4 Bhupinder Singh, Clerk, DTO Office mainly deposed regarding registration certificate Ex.P.15 of car No.RJ-30C-3459, which was registered in the name of Smt. Jai Sri Thakur wife of Tribhuwan Singh Chanderawadh. PW- 5 HC Gurdev Singh is a formal witness, who tendered in evidence his affidavit Ex.P.23. PW-6 HC Vir Singh, Reader to DSP mainly deposed regarding receiving of special report Ex.P.20 by the DSP. PW-7 HC Gurmail Singh, Police Station, City-I, Moga mainly deposed that on 20.7.2005 he was posted as MHC, Police Station Sadar, Moga. On that day, Cr. Appeal Nos.D-940-DB of 2009 etc. [5] ASI Balwinder Singh deposited with him two parcels, one containing 10 Grams of opium and the second containing 6 Kgs. 990 Grams opium. He also handed over to him sample of seal chit Ex.P.7 along with CFSL form. He handed over the sample parcel on 25.7.2005 to Constable Tarsem Singh along with sample of seal chit and CFSL form for depositing the same in the office of Chemical Examiner. PW-8 HC Tarsem Singh mainly deposed that on 25.7.2005, MHC Gurmail Singh handed over to him one sample parcel of 10 grams of opium along with sample of seal etc. for depositing the same in the office of Chemical Examiner. He also deposed that till the sample remained in his possession, he neither tampered himself nor allowed anybody to tamper with the same. PW-9 Diwar Singh, Photographer deposed regarding the photographs of the inventory. PW-10 Rajinder Pal Singh Anand deposed regarding the recovery of opium from the accused as per prosecution version. PW-11 Subhash Chander, Reader in the Court of Judicial Magistrate Ist Class, Moga proved the order Ex.P.34.
At the close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and were confronted with the evidence of the prosecution. They denied the correctness of the evidence and pleaded themselves as innocent. They mainly deposed that they were dealing in marble. They used to visit cities of Punjab much prior to the present occurrence for the sale and collection of marble. Two days prior to the alleged recovery, they were returning to Ganga Nagar from Ludhiana after collection of marble amount. When they reached at Bughipura Chowk along with `3,50,000/- of marble amount, their car was stopped by the Police party. On their search, currency notes of `3,50,000/- were recovered Cr. Appeal Nos.D-940-DB of 2009 etc. [6] by the Police. In order to grab that amount, the Police of District Moga implicated them in the present case and whole amount was grabbed by them. Their family members reported to the higher authorities but nobody heard them.
In defence, the accused-appellants examined DW-1 Sukhjeet Singh, who stated that Bhanwar Lal stayed in their hotel from 18.7.2005 7.00p.m. to 19.7.2005 till 9.00 a.m. They were two persons. He also proved the bill issued to the customer.
After going through the evidence and material produced on record, the learned Special Judge, Moga convicted and sentenced the accused-appellants for the offence as mentioned above.
At the time of arguments, learned counsel for the appellants have not contested the conviction seriously and argued mainly for reducing the sentence imposed upon the appellants. They argued that the appellants are first offenders and poor persons and only bread earners of their families and they are in custody since long. Learned counsel for the appellants argued that the sentence awarded to the appellants is excessive and it may be reduced.
On the other hand, learned Additional Advocate General, Punjab appearing for the respondent-State argued that the case of the prosecution has been duly proved in view of the search made before the gazetted officer and the recoveries made in view of the secret information received by the Investigating Officer. He argued that there being no merit in the appeals, these should be dismissed.
We have heard learned counsel for the appellants and learned Cr. Appeal Nos.D-940-DB of 2009 etc. [7] Additional Advocate General, Punjab appearing for the respondent-State and with their assistance have gone through the evidence on record minutely and carefully.
From the evidence on record, we find that in the present case, the prosecution has examined PW-1 Tehal Singh, who is the Investigating Officer. He has deposed consistently as per prosecution version regarding the recovery of 7 Kgs. of opium from the Indica car in which the accused- appellants were travelling. The accused-appellants were apprehended on the spot and the recovery was effected in the presence of DSP Rajinder Pal Singh Anand. The statement of PW-1 Tehal Singh has been duly supported by PW-2 ASI Gurbachan Singh, who is also witness of recovery and further by PW-10 DSP Rajinder Pal Singh Anand. No material contradictions or improvements have been pointed out. There is nothing in their cross- examination which may make their statements unreliable. Further the compliance of mandatory provisions of the NDPS Act have been made. Link evidence in the present case is complete. There is nothing on the record to disbelieve the statements of these PWs. Keeping in view the evidence on record, we uphold the conviction of the appellants passed by the learned trial Court.
As regards the contention of the learned counsel for the appellants for reducing the sentence, we find that all the appellants are first offenders. There is nothing on the record to show that they were earlier indulged in the smuggling of narcotics nor they had been convicted earlier to the present recovery. They are poor persons as argued by their counsel and are only bread earners of their families to maintain them and they are in Cr. Appeal Nos.D-940-DB of 2009 etc. [8] custody since long.
Keeping in view all these facts and circumstances, the appeals of the appellants are partly allowed with modification in the sentence that all the appellants shall undergo rigorous imprisonment for ten years instead of 12 years and to pay a fine of `1 Lac instead of `1,25,000/- each and in default thereof to further undergo rigorous imprisonment for six months each.
(Jasbir Singh) (Inderjit Singh)
Judge Judge
March 13, 2013.
*hsp*