Criminal Appeal No.1068-SB of 2004 v. State of Punjab

Present: Mr.Madan Sandhu, Advocate, for the appellants. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Balbir Singh and Gurmit Singh (appellants) have filed this appeal against the judgment of conviction and the sentence order dated 7.5.2004 passed by the Judge, Special Court, Mansa, whereby they were convicted under Section 15 of the -2- Criminal Appeal No.1068-SB of 2004. 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, each as fine, in default whereof to undergo further rigorous imprisonment for one year. Gurdev Singh (co-accused of the appellants) was acquitted of the charge framed against him by the trial Court. As per allegations of the prosecution, on 30.4.2000, a police party comprising Assistant Sub Inspector Karnail Singh, Head Constable Jaswant Singh and other police officials was going towards Villages Sher Khan Wala, Saide Wala, Achanak etc. in a private jeep to hold `nakabandi' in Village Sher Khan Wala.

When the police party reached near Grain Market of Village Boha, Karnail Singh son of Buta Singh, resident of Gadar Patti, Boha, met the police party. He was joined with the police party. At about 9.30 P.M, one Maruti Car of white colour bearing registration No.HR-04-0097 was seen coming towards the police party. It was caused to sop by the police party for the purpose of checking by putting barricade of the Jeep in the middle of the bridge. It was being driven by appellant Balbir Singh and appellant Gurmit Singh was sitting on the back seat of the car. Three bags were found in the car. Both the accused were told by the police that they wanted to conduct search of the bags contained in the car as some contraband article was suspected therein. The accused were given an option that they could get -3- Criminal Appeal No.1068-SB of 2004. their search conducted before a Magistrate or a Gazetted Officer.

Both the accused opted for their search to be conducted in the presence of a Gazetted Officer. Separate consent memos of the accused in this regard were prepared. The presence of Deputy Superintendent of Police (D), Mansa, namely, Amrik Singh was secured at the spot. On reaching the spot, the Deputy Superintendent of Police disclosed his identity to the accused and search of the car was conducted in his presence. Upon search, three bags, each containing 30 Kgs of poppy husk were recovered from the car. Two samples of 100 grams each were separated from each bag. The samples and the remaining poppy husk contained in three 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 against the accused under Section 15 of the Act. After registration of the case against the accused, they were formally arrested and memos containing grounds of their arrest were prepared.

On 1.5.2000, the accused and the case property were produced before the Ilaqa Magistrate. The Magistrate authenticated the intactness of the seals on the parcels of the samples and the parcels of bulk contents. Thereafter, the case property was re-deposited in the `Malkhana'. On receipt of the report of the Chemical Examiner and completion of the investigation, challan against the accused was -4- Criminal Appeal No.1068-SB of 2004. put in Court. Charge was framed against the accused for the offence punishable under Section 15 of the Act. They did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined Parminder Pal Singh of the D.T.O Office, Sangrur (P.W.1), Sub Inspector Karnail Singh (P.W.2), Inspector Kesar Singh (P.W.3), Constable Major Singh (P.W.4), Head Constable Jaswant Singh (P.W.5) and Deputy Superintendent of Police Amrik Singh (P.W.6). Karnail Singh, an independent witness, was given up by the prosecution as having been won over by the accused.

In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded false implication. Both appellants Balbir Singh and Gurmit Singh took the plea that the police had planted a false case upon them as the police officials were in drunken condition and demanded money from them for liquor. Head Constable Pala Singh (D.W.1) and Karnail Singh (D.W.2) were examined by the accused in their defence. The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case against the appellants beyond reasonable doubt and that three bags, each containing 30 Kgs of poppy husk were recovered from the accused. The trial Court convicted and sentenced the appellants, as mentioned above. -5- Criminal Appeal No.1068-SB of 2004. I have heard Mr. Madan Sandhu, Advocate, appearing for the appellants and Mr.

Vishal Munjal, Additional Advocate General, Punjab, appearing for the State 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- appellants were in conscious possession of the quantity of poppy husk recovered from his possession. Learned counsel for the appellants argued that the case of the prosecution is based only on the statements of the official witnesses and the independent person, namely, Karnail was not examined by the police party and was given up as having been won over by the accused. 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, Karnail 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 -6- Criminal Appeal No.1068-SB of 2004. 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-appellants have also not alleged any enmity with them (police officials). In this background, merely the fact that the independent witness Karnail Singh was not examined in this case, 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. In fact, the apprehension of the prosecution that independent witness Karnail Singh had been won over by the accused proved to be correct as he (Karnail Singh) appeared in defence of the accused as D.W.2. To cap it all, the fact of recovery of three bags of poppy husk, each containing 30 kilograms 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. It has further been argued by the learned counsel for the appellant that the samples were sent to the Chemical Examiner after delay of a few days and, according to the learned counsel, it casts a doubt upon the veracity of the prosecution version. -7- Criminal Appeal No.1068-SB of 2004. Again, I do not find any merit in this argument of the learned counsel. As mentioned while narrating the facts of the prosecution case, the link evidence in this case is complete. On

1.5.2000, the accused and the case property were produced before the Ilaqa Magistrate by the police. The Magistrate authenticated the intactness of the seals on the parcels of the samples and the parcels of bulk contents. Thereafter, the case property was re-deposited in the `Malkhana'. When the case property was intact as had been authenticated by the Ilaqa Magistrate, it hardly matters if the samples were sent to the Chemical Examiner after a delay of some days. In this case, there was complete compliance of the mandatory provisions of Section 50 of the Act as Deputy Superintendent of Police Amrik Singh, a Gazetted Officer, was called to the spot and the recovery of poppy husk was effected from the accused in his presence. For the aforesaid reasons, I do not find any merit in this appeal. The same is hereby dismissed. April 05, 2010. ( MOHINDER PAL ) JUDGE