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The FIR (Ex.P18) has been recorded on the basis of writing (Ex.P17) sent to the police station by SI/SHO Kishori Lal, Police Station Rori (PW-10). It is stated by SI/SHO Kishori Lal (PW-10) that on 22.4.2005 at about 10.30 a.m., he along with other police officials was in a government jeep with registration No.HR24-D 6106. The jeep was being driven by EHC Dharamvir Singh. They were at the grain market of village Thiraj in connection with patrolling and detection of crime. A secret informer at that time met SI/SHO Kishori Lal (PW-10) there and informed him that Balbir Singh (appellant No.1), Lila Singh (appellant No.3) sons of Gurdev Singh and Kuldip Singh (appellant No.2) son of Balbir Singh (appellant No.1) residents of Panjmala had got unloaded large number of gunny bags and had concealed the same in the sheaves of harvested wheat in the fields which was near the village and near the metalled road leading to Jhorar Rohi. They were making preparations for supplying it in Punjab on a tractor. If a raid was conducted they could be apprehended and the gunny bags of poppy straw in huge quantity could be recovered. On the said information, SI/SHO Kishori Lal (PW-10) scribed a notice under Section 42 of the NDPS Act and sent the same to Deputy Superintendent of Police, Dabwali through Constable Pargat Singh. SI/SHO Kishori Lal (PW-10) formed a raiding party and he along with other police officials in a government vehicle proceeded to the spot in respect of which information had been received. When he along with his companions turned towards the fields of Balbir Singh (appellant No.1), three persons were seen loading gunny bags of poppy straw in their tractor-trolley make 'Eicher'. On seeing the police jeep approaching, all three at once fled away in the fields. SI/SHO Kishori Lal (PW-1 ) with the help of his accompanying officials apprehended two of them. On asking their names and addresses, one of them disclosed his name as Balbir Singh (appellant No.1) son of Gurdev Singh and the other disclosed his name as Kuldip Singh (appellant No.2) son of Balbir Singh (appellant No.1) residents of Panjmala. On interrogation, they disclosed the name of the person who had fled away as Lila Singh (appellant No.3) son of Gurdev Singh. He had succeeded in escaping despite best efforts to apprehend him. After coming near the gunny bags and the tractor-trolley, notice under Section 50 of the NDPS Act was served upon Balbir Singh and Kuldip Singh (appellants No.1 and 2). They were informed by SI/SHO Kishori Lal (PW-10) that he suspected some narcotic substance or poppy straw was in the gunny bags lying on their 'Eicher' tractor-trolley. He wanted to search the same. If they wanted to get the search of gunny bags lying in the tractor-trolley and under the sheaves of wheat to be conducted before some Gazetted Officer or Magistrate, they could be summoned at the spot. The notice was read over and explained to the accused who after hearing and understanding it replied that SI/SHO Kishori Lal (PW-10) could carry out the search of the gunny bags lying in the tractor-trolley and under the sheaves of wheat. They had full confidence in him. Notices and reply of notices were signed by the witnesses as also by Balbir Singh and Kuldip Singh (appellants No.1 and 2). On checking, ten gunny bags were found lying in the tractor-trolley. The gunny bags lying under the sheaves of wheat were counted and were found to be 90 in number. Poppy straw was found in the bags. On weighing with a spring actuated scale each gunny bag was found to contain 41 kilograms of poppy husk along with the weight of gunny bags. A couple of samples each weighing 100 grams were separated from the bags. Total 200 sample parcels and 100 gunny bags of poppy straw were sealed with seal 'KL'. The seal after use was handed over to ASI Partap Singh and a sample seal was retained. In the meantime, Sh. Ram Sarup, DSP, Dabwali (PW-9) along with his staff in his official Gypsy Jeep came at the place of the incident. Kishori Lal SI (PW-10) apprised him about the facts of the case. He checked the sample parcels of poppy straw and the residue bags. After making enquiries from the accused Balbir Singh and Kuldip Singh (appellants No.1 and 2) and the witnesses, he affixed his seal bearing impression 'RS' on all the sample parcels and the gunny bags. He retained his seal with him after use and he retained the sample seal. All the 100 gunny bags of poppy straw and 200 samples of poppy straw were taken in possession by the police vide seizure memo, which was signed by the witnesses and DSP Ram Sarup (PW-9). Balbir Singh, Kuldip Singh and Lila Singh (appellants No.1 to 3), it is alleged, by keeping in their possession 100 gunny bags of poppy straw had committed offences punishable under Sections 15 and 16 of the NDPS Act. A memo was sent to the police Station through Virender Singh Constable for registration of a FIR. After registration of the FIR its number was asked to be communicated. The copies of the FIR and special report were asked to be arranged to be sent to the higher officers and the Ilaqa Magistrate through special messenger. SI/SHO Kishori Lal (PW-10) was busy with the investigation at the spot. During the proceedings, many respectable persons of the village had arrived at the spot and they were asked to join the investigation but they all expressed their inability and went away. The writing was recorded in the area of Panjmala. It was endorsed by SI/SHO Kishori Lal (PW-10) on 22.4.2005 at 6.15 p.m. Subash Chander MHC, Police Station Sadar Rori on the basis of the writing that was received at the Police Station registered FIR and a special report was sent to the Ilaqa Magistrate through Jagmal Singh EHC vide DDR No.28 at 8.05 p.m. SI/SHO Kishori Lal, Police Station Rori (PW-10) got unloaded the gunny bags, which were loaded on the trolley of the tractor. There were 10 bags in number. Besides, 90 gunny bags were lying under the sheaves of wheat. In this manner 100 gunny bags were recovered which on search were found to contain poppy straw. A couple of samples each weighing 100 gms were separated and were sealed with seal 'KL' after converting the same into separate parcels. The remaining poppy straw after drawing the sample, on weighing was found to be 40.8 kilograms in each gunny bag along with the weight of the bag. The bags were converted into separate parcels and were sealed with the same seal 'KL'. SI/SHO Kishori Lal (PW-10) on return to the Police Station deposited the case property along with the tractor-trolley with the MHC with seals intact. The accused were put in the lock up of the Police Station.

Hans Raj ASI (PW-11) took over the investigation from Kishori Lal SI/SHO (PW-10). He was also part of the raiding party with Kishori Lal SI (PW-10) which had apprehended Balbir Singh and Kuldip Singh (appellants No.1 and 2). On 23.4.2005, he conducted the investigation of this case along with Kishori Lal SI/SHO (PW-10). Balbir Singh and Kuldip Singh (appellants No.1 and 2) on that day were taken out from the lock up of the police station and they were interrogated in his presence and in the presence of Vijay Singh Head Constable. On interrogation Balbir Singh (appellant No.1) suffered a disclosure statement (Ex.P21). It was objected to. The same was to the effect that the recovered 100 bags of poppy straw were brought by his brother Lila Singh (appellant No.3) and Farida Singh (since acquitted) from the State of Rajasthan. The same were concealed at the place of recovery by them. They along with Farida Singh and Kuldip Singh (appellant No.2) had equal shares in the recovered 100 bags of poppy straw. The disclosure statement was signed by Balbir Singh (appellant No.1) and was attested by him (PW-11) and Vijay Singh Head Constable. Thereafter, Kuldip Singh (appellant No.2) on interrogation made a disclosure statement (Ex.P-22) to the effect that 100 gunny bags of recovered poppy straw were brought by his uncle Lila Singh (appellant No.3) and Farida Singh (since acquitted) in a truck on the night intervening 21/22.04.2005 and he (Kuldip Singh appellant No.2), Balbir Singh Singh (appellant No.1), Lila Singh (appellant No.3) and Farida Singh (since acquitted) had equal shares in the said 100 bags of poppy straw. The disclosure statement was signed by Kuldip Singh (appellant No.2) and was attested by Hans Raj (PW-11) and Head Constable Vijay Singh. At the time of inventory in the Court campus at Sirsa, he (Hans Raj ASI PW-11) was present with Kishori Lal SI (PW-10). Thereafter, on 1.5.2005, the investigation of the case was handed over to Hans Raj ASI (PW-11) as Kishori Lal (PW-10) had been transferred from Police Station Rori. Hans Raj ASI (PW-11) recorded the statements of Subhash Chander MHC and Raj Kumar Constable under Section 161 Cr.P.C. On 10.5.2005 Avtar Singh (PW-4) and Leela Singh, Sarpanch of village Surtia (PW-5) were joined in the investigation by Hans Raj ASI (PW-11). Statement (Ex.P6) of Avtar Singh (PW-4) and statement (Ex.P7) of Leela Singh (PW-5) were recorded by Hans Raj ASI (PW-11). He (PW-11) also recorded statement of Mahavir Parshad, Patwari (PW-3) and obtained Akshijra (Ex.P4) and copy of Jamabandi (Ex.P5) from him. In cross- examination it is stated by Hans Raj ASI (PW-11) that his statement was recorded by I.O. at the spot at 8.00 pm. He had got recorded in his statement that the tractor trolley was also taken in police possession. He was confronted with his statement (Ex.D3) wherein the fact of taking in possession the tractor trolley was not recorded. In the report under Section 57 of the NDPS Act, there was no reference to seizing the tractor trolley at the spot. It was incorrect that entry No.3 in the recovery memo (Ex.P12) was added later on. They had checked the engine number and chassis number of the tractor in question. It is stated that many villagers had come to the spot and they remained throughout the proceedings of the case till they left the place of recovery. Many respectable persons were asked to become witness but they refused to do so. He could not tell their names and addresses etc. Their names were not recorded in the case diary. He could not tell the registration number, name of driver, make of the tractor and name of the owner of the tractor.

In response, Mr. Dhruv Dayal, learned DAG, Haryana appearing for the State has submitted that the prosecution has led cogent and convincing evidence and established its case against the appellants beyond shadow of doubt. The fact that no independent witness was joined when secret information was recorded, it is submitted that generally witnesses are not associated at the time of recording secret information as it would deter the secret informer to give the complete version. At the time of recovery of the contraband, efforts were made to join independent witnesses but generally in such matters it is submitted that witnesses are reluctant to join. In any case, the police had no enmity against the appellants and neither has any been alleged. Therefore, merely because all witnesses are police officials would not be a ground to discard their sworn testimonies. The fact that there is no verification as to whom the tractor-trolley belonged, it is submitted is inconsequential as it was in the possession of the appellants at the time of recovery; besides, 10 bags of poppy straw were recovered from the trolley. The tractor is mentioned as of 'Eicher' make in the prosecution case; besides, it is submitted that the learned trial Court has recorded that the tractor-trolley involved in the case are owned by Balbir Singh, Lila Singh (appellants No.1 and 3) and their brother Dharam Singh alias Bhola jointly as stated by accused Balbir Singh and Lila Singh (appellants No.1 and 3) in Court on 6.6.2007 at the time of their being sentenced. Accordingly, separate proceedings regarding confiscation of the tractor-trolley in question were ordered to be initiated against Balbir Singh, Lila Singh (appellatns No.1 and 3) and said Dharam Singh alias Bhola Singh sons of Gurdev Singh. Therefore, the ownership of the tractor-trolley is established to be that of Balbir Singh, Lila Singh (appellants No.1 and 3) and their brother Dharam Singh alias Bhola. Lila Singh (appellant No.3) it is stated though was not arrested at the spot, however, his involvement is otherwise established and he was identified as the person who had run away when the police party had conducted a raid leading to recovery of the contraband. As regards Kuldip Singh (appellant No.2), it is submitted that Kuldip Singh (appellant No.2) was found present at the time of the incident and the case against him is not in any manner different and neither is it improper. It is stated that though he was kept in the column No.2 of the police report that was filed under Section 173 Cr.P.C., however, he had appeared in the case on all dates and he was present when the charge was framed against him on 14.2.2006. Therefore, it is submitted that the Court could take cognizance of the case as against Kuldip Singh (appellant No.2) as well. It is submitted that in the trial of a case under the NDPS Act, the case is not committed to the Court of Special Judge and the police report (challan) is directly filed in terms of Section 36-A (1) (d) of the NDPS Act. It is provided therein that a special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the central Government or a State Government authorized in this behalf, take cognizance of that offence without the accused being committed to it for trial. Therefore, the learned trial Court having taken cognizance of the offence and Kuldip Singh (appellant No.2) being tried and there being evidence on record against him, the error or defect, if any, is curable under Section 465 Cr.P.C. as at the most it was a mere irregularity.

The other contention as regards the verification of tractor-trolley not being done may be considered. The same would also not affect the prosecution case. The contraband in the case was recovered from the tractor-trolley in possession of Balbir Singh (appellant No.1). It is when the police party headed by SI/SHO Kishori Lal (PW-10) had reached the place of occurrence, he apprehended Balbir Singh (appellant No.1). Contraband of poppy straw was recovered from him, which was on the tractor-trolley and under the sheaves of wheat. Therefore, Balbir Singh (appellant No.1) was in conscious possession of the contraband and the same was partly recovered from the tractor-trolley in his possession. As such the mere fact that the verification of tractor-trolley was not done is inconsequential. It is somewhat a defective investigation. However, even if there is some remissness on the part of the police officials conducting the investigation and there is defect in the investigation conducted by the police, the Court can rely upon the other evidence led by the prosecution and connect the accused with the crime, if the same is found to be reliable and trustworthy. In the present case the recovery of the contraband coupled with the evidence led by the prosecution goes to establish the recovery of the contraband from Balbir Singh (appellant No.1). Besides, in the concluding paragraph of the order dated 6.6.2007 of the learned trial Court while sentencing the accused, it has been observed that the case property i.e. poppy straw be disposed of in due course of time and due process of law if the same had not been disposed till then. The tractor-trolley, it was observed involved in the case were owned by Balbir Singh, Lila Singh (appellants No.1 and 3) and their brother Dharam Singh jointly as stated by the accused in Court on that day i.e. 6.6.2007 at the time of sentencing. Separate proceedings regarding confiscation of the tractor-trolley were ordered to be initiated against Balbir Singh, Lila Singh (appellants No.1 and 3) and Dharam Singh alias Bhola Singh sons of Gurdev Singh. Therefore, the tractor trolley was found to be owned by Balbir Singh, Lila Singh (appellatns No.1 and 3) and their brother Dharam Singh jointly. Therefore, the fact that it was not verified as to whom the tractor-trolley belonged would be inconsequential as the accused themselves have stated at the time of sentencing that it belonged to them.