Criminal Appeal No.368-SB of 2003 v. State of Punjab

Present: Ms. Shweta Bawa, Advocate, amicus curiae, for the appellant. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Appellant Harnek Singh has filed this appeal against the judgment of conviction and the sentence order dated 6.1.2003 passed by the Special Judge, Fatehgarh Sahib, whereby he -2- Criminal Appeal No.368-SB of 2003. was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay Rs.1 lac as fine, in default whereof to undergo further rigorous imprisonment for six months. As per allegations of the prosecution, on 17.5.1998, a police party comprising Inspector Rajinder Pal Singh, Assistant Sub Inspector Bhag Singh, Constable Nirmal Singh, Constable Harjit Singh, Constable Kashmiri Lal etc. was present on canal minor Kalewal in connection with holding `nakabandi' under the direction of Deputy Superintendent of Police Khamanon. At about 8.30 P.M, Jaswant Singh, Ex – Sarpanch of Village Badeshan Kalan came there and started conversing with Inspector Rajinder Pal Singh. At that time, one truck bearing registration No.HR-26-A-6975 came there from the direction of Village Kalewal, which was being driven by appellant Harnek Singh. It was signalled to stop. The appellant stopped the truck. On checking the truck, the appellant was asked about the seven bags lying in the tool box, but the appellant could not give any satisfactory reply. The accused-appellant was told by the police that they wanted to conduct search of the gunny bags as some contraband article was suspected to be kept in the same. The accused was given an option that he could get the search conducted before a Magistrate or a Gazetted Officer. The accused opted for the search to be conducted in the presence of a -3- Criminal Appeal No.368-SB of 2003. Gazetted Officer. Consent memo of the accused in this regard was prepared. A wireless message was sent to Lakhwinderpal Singh, Deputy Superintendent of Police, Khamanon, who reached the spot. On reaching the spot, the Deputy Superintendent of Police disclosed his identity to the accused and search of the gunny bags was conducted in his presence after removing the same from underneath a Tarpaulin in the tool box of the truck. Upon search, the seven bags were found to contain 29 Kgs and 500 rams of poppy husk. Two samples of 250 grams each were separated from each bag. The samples and the remaining poppy husk contained in seven bags were separately sealed and taken into possession by the police. Rough site plan of the place of recovery was prepared. Ruqa was sent to the Police Station and on its basis formal F.I.R was registered a against the accused under Section 15 of the Act. After registration of the case against the accused, he was formally arrested and memo containing grounds of his arrest was prepared. After completion of investigation and on receipt of the report of the Chemical Examiner (Exhibit P.14) opining the contents of the samples to be “chura poppy heads”, challan against the accused-appellant was put in Court. Charge was framed against the appellant for the offence punishable under Section 15 of the Act. He did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined Assistant Sub -4- Criminal Appeal No.368-SB of 2003. Inspector Jagdev Singh (P.W.1), Constable Nirmal Singh (P.W.2), Constable Darbara Singh (P.W.3), Moharrir Head Constable Harjinder Singh (P.W.4), Deputy Superintendent of Police Rajinder Pal Singh (P.W.5), Assistant Sub Inspector Nirmal Singh (P.W.6) and Deputy Superintendent of Police Lakhwinderpal Singh (P.W.7). In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded false implication. He further stated that he did not know how to drive a heavy vehicle and did not possess any driving licence for driving heavy vehicles. However, no evidence was led by the appellant in his defence. The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case beyond reasonable doubt and that seven bags, each containing 29 Kgs and 500 grams of poppy husk were recovered from the accused. The trial Court convicted and sentenced the appellant, as mentioned above. I have heard the learned counsel for the parties and have gone through the records of the case. The facts of this case, as mentioned above, disclose that there is no doubt about the fact that the accused- appellant was in conscious possession of the quantity of poppy husk recovered from his possession. Learned counsel for the appellant argued that the case of the prosecution is based only on the statements of the official witnesses and the independent person, namely, Jaswant -5- Criminal Appeal No.368-SB of 2003. Singh was not examined by the police party. According to the learned counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. It has been submitted that non-examination of independent witness, namely, Jaswant Singh, has upset the balance of the prosecution case, making the alleged recovery doubtful. After giving a careful thought to the argument raised by the learned counsel, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the prosecution. Recovery in this case was effected per chance while the police party was patrolling the area. Otherwise also, normally the independent witnesses do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to create ill-will and enmity with criminals. In this case, the official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements. The accused-appellant has also not alleged any enmity with them (police officials). In this background, merely the fact that no independent witness was joined to witness the recovery, is not a good ground to discard the testimonies of the official witnesses. It is well-settled that the prosecution story cannot be discarded on the ground that independent witness has not been examined. To cap it all, the fact of recovery of seven bags of poppy husk, each containing -6- Criminal Appeal No.368-SB of 2003. 29 kilograms and 500 grams of poppy husk, from the accused, which cannot be planted by the police, weighs with the argument raised by the learned counsel with regard to the non- examination of any independent witness. In this case, there was complete compliance of the mandatory provisions of Section 50 of the Act as Deputy Superintendent of Police Lakhwinderpal Singh, a Gazetted Officer, was called to the spot and the recovery of poppy husk was effected from the accused in his presence. It is worth-mentioning here that when the case was fixed for defence evidence, an application was moved on behalf of the accused-appellant before the trial Court for examination of the tool box of the truck since it was alleged by the accused that tool box could not house seven bags of poppy husk. The said application was allowed by the trial Court and the Station House Officer was directed to verify the fact and to demonstrate as to whether seven bags could indeed be placed in the tool box of the truck in question. Accordingly, the defence counsel and the State counsel before the trial Court inspected the truck and Deputy Superintendent of Police Rajinder Pal Singh, Investigating Officer, demonstrated to them as to how seven bags of poppy husk could be accommodated in the tool box of the truck. In his statement before the trial Court, Deputy Superintendent of Police Rajinder Pal Singh stated that seven bags were placed horizontally in the tool box and they emerged just four inches above the tool box. He -7- Criminal Appeal No.368-SB of 2003. further stated that on the day of the said inspection on the direction of the Court, he (Deputy Superintendent of Police Rajinder Pal Singh) had found a temporary type of tool box fitted in the original tool box, which was not there at the time of recovery and that seven bags had easily been accommodated in the tool box after removing the temporary tool box. Deputy Superintendent of Police Rajinder Pal Singh was subjected to a searching cross-examination by the defence counsel, but nothing could be elicited therefrom to doubt the veracity of the prosecution version. For the aforesaid reasons, I do not find any merit in this appeal. The same is hereby dismissed. April 06, 2010. ( MOHINDER PAL ) JUDGE