Punjab-Haryana High Court
Sukhdev Singh @ Sukha vs Inspector Customs on 1 May, 2013
Author: L. N. Mittal
Bench: L. N. Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRIMINAL APPEAL -S- No.782-SB OF 2001
DATE OF DECISION : 1st MAY, 2013
Sukhdev Singh @ Sukha
.... Appellant
Versus
Inspector Customs, Ferozepur
.... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. S.P.S. Sidhu, Advocate for the appellant.
Mr. D. D. Sharma, Advocate for the respondent.
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L. N. MITTAL, J. (ORAL)
Convict-Sukhdev Singh @ Sukha has filed this appeal assailing judgment and order dated 10.07.2001 passed by learned Special Judge, Ferozepur, thereby convicting the appellant under Section 22 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (in short, the Act) and sentencing him to undergo rigorous imprisonment for ten years and to pay fine of `1,00,000/- and in default thereof, to undergo further rigorous imprisonment for one year.
Respondent-Inspector Customs, Ferozepur instituted criminal complaint against appellant-accused under Sections 22 and 23 of the Act alleging that on 27.02.1989, Nachhattar Singh, Station House Officer of Police Station Jalalabad was having secret information that the accused was indulging in smuggling activities. Accordingly, joint party of police officials and customs officials held nakabandi. At about 12.30am on the Crl. Appeal -S- No.782-SB OF 2001 -2- night intervening 27/28.02.1989, the accused was seen coming with a bag on his shoulder. The accused on seeing the naka party tried to slip away. However, he was overpowered. On search, five packets containing heroine weighing 4 kilograms 865 grams in all was recovered, besides a country made pistol, three live cartridges and two tablets. Samples were drawn from the packets of heroine. The samples and the remaining heroine were sealed in separate parcels and the same were seized by officials of the Customs department. Sample on analysis was found to be of heroine. Consequently, respondent Inspector, Customs instituted complaint against the accused under Section 22 and 23 of the Act. Pistol and the cartridges were separately seized by the police for which separate FIR was registered against the accused.
Charge under Sections 22 and 23 of the Act was framed against the accused-appellant who pleaded not guilty and claimed trial.
In support of its case, the prosecution has examined Nachhattar Singh, Deputy Superintendent of Police (previously SHO) PW-1, B.K. Mahajan, Customs Inspector PW-2 and K.D. Sharma, Inspector, Customs PW-3. All of them broadly stated according to prosecution version about recovery of heroine from the possession of the appellant.
The appellant-accused in his examination under Section 313 of the Code of Criminal Procedure (in short, Cr.P.C.) denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. In defence, he tendered copy of judgment dated 14.12.1990 whereby he was acquitted in the case under the Arms Act, pertaining to recovery of pistol and cartridges. Crl. Appeal -S- No.782-SB OF 2001 -3- Learned Special Judge vide impugned judgment and order convicted and sentenced the appellant as already noticed hereinbefore. Feeling aggrieved, the convict has filed this appeal.
I have heard learned counsel for the parties and perused the case file.
Counsel for the appellant raised threefold contention. It was argued that although there was secret information with the police, the same was not reduced into writing nor sent to immediate official superior and, therefore, there has been total non-compliance with Section 42 of the Act entitling the appellant to acquittal. It was also argued that no independent witness was joined although nakabandi was held on the basis of secret information. Lastly, it was argued that the appellant has been acquitted in the case under the Arms Act relating to alleged recovery of pistol and cartridges at the same time.
I have carefully considered the aforesaid contentions but the same cannot be accepted. Section 42 of the Act empowers officers of Police, Customs etc. to conduct search of any building, conveyance or enclosed place on satisfaction of the conditions specified in the said Section i.e. secret information is received and taken down in writing and in that event, the secret information has also to be sent to immediate official superior. In the instant case, however, there was no search of any building, conveyance or enclosed place and consequently Section 42 of the Act has no applicability to the instant case. Therefore, the secret information was neither required to be reduced in writing nor it was required to be sent to immediate official superior. Consequently, contention of counsel for the appellant based on non-compliance with Section 42 of the Act, cannot be accepted.
Crl. Appeal -S- No.782-SB OF 2001 -4- The appellant cannot also be acquitted merely because no independent witness was joined. It has to be noticed that there has been recovery of very huge quantity of heroine from the appellant. Prosecution version has been deposed to by Nachhattar Singh, Deputy Superintendent of Police who was SHO at the relevant time and also by two Inspectors of Customs. The said witnesses had no enmity whatsoever with the accused- appellant so as to implicate him in a false case. Even the accused in his statement under Section 313 Cr.P.C. has not alleged any ground whatsoever for his alleged false implication. Even otherwise, such large quantity of heroine of very high value would not have been planted on the accused to implicate him in a false case and that too without any rhyme or reason. Thus the three official witnesses who have deposed about recovery of the heroine from the appellant had no reason to depose falsely against the appellant. They were not hostile or inimical to the appellant in any manner. Consequently their statements are as much credible as those of so called independent or non-official witnesses. Statements of these three witnesses cannot be discarded merely because of their official status.
In the aforesaid context, it is also significant to notice that the appellant also made statement before Customs Inspector, admitting the recovery of the heroine from him. The said statement further corroborates the prosecution case. However, even independently and irrespective of the said statement also, the prosecution evidence is sufficient to bring home the charge against the appellant beyond reasonable doubt. Veracity of the prosecution witnesses could not be impeached in their cross-examination. Consequently, accused is not entitled to acquittal merely because some independent witness was not associated.
Crl. Appeal -S- No.782-SB OF 2001 -5- Acquittal of the appellant in the case under the Arms Act would also have no bearing on the instant case. In that case, substantive witnesses on behalf of prosecution were not examined and the prosecution evidence was closed by Court order and consequently for want of sufficient evidence, the appellant was acquitted in that case. Consequently, the said acquittal was not on the basis of appreciation or unreliability of the evidence. The acquittal was rather due to non-production of the evidence. On the other hand, the instant case has to be decided on the basis of the evidence led in the instant case. Evidence of this case is sufficient to prove the guilt of the accused beyond reasonable doubt.
Learned trial Judge has analyzed the evidence in detail and recorded sufficient reasons to hold the appellant guilty under Section 22 of the Act. The said finding of the learned trial Judge is based on proper appreciation of the evidence on record and is not shown to be suffering from infirmity, much less perversity or illegality or misreading or misappreciation of the evidence.
For the reasons aforesaid, I find that conviction of the appellant is well founded and is accordingly upheld.
As regards quantum of sentence, the appellant has been sentenced to the minimum sentence prescribed for the offence although in view of huge quantity of the contraband substance, several times the commercial quantity, even higher than the minimum sentence could have been imposed. There is, therefore, no scope for reduction in quantum of sentence also because minimum sentence has been imposed on the appellant.
Crl. Appeal -S- No.782-SB OF 2001 -6- Resultantly, I find no merit in this appeal, which is accordingly dismissed. The appellant, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence.
1st May, 2013 (L. N. MITTAL)
'raj' JUDGE