Criminal Appeal No.1393-SB of 2001 v. State of Punjab

Present: Mr. S.P.S. Sidhu, Advocate, for the appellant. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Gurcharan Singh appellant (since deceased) had filed this appeal against the judgment of conviction dated 16.10.2001 and the sentence order dated 17.10.2001 passed by the Special Judge, Ferozepur, whereby he was convicted under Section 18 of -2- Criminal Appeal No.1393-SB of 2001. Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') for recovery of ten kilograms of contraband opium from him and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1 lac, in default whereof to undergo further rigorous imprisonment for one year. this Court:- On 21.9.2007, the following order was passed by “ On behalf of the appellant, it is stated that appellant has since died but appeal is to be argued because Rs.1.00 lacs (one lac) as fine was deposited on behalf of the appellant and in case of acquittal, that amount shall have to be paid to the heirs of the appellant. The State to verify whether appellant has died. Put up for hearing on 21.11.2007.” Since the appellant has admittedly died, these proceedings against him shall stand abated. However, since the appellant has deposited the fine amount of Rs.1,00,000/-, which, in case this appeal is allowed, would be payable to the heirs of the deceased-appellant, I proceed to decide the appeal on merits. Even otherwise, if the appellant would not have deposited this -3- Criminal Appeal No.1393-SB of 2001. amount of fine, the State, in case of dismissal of this appeal, will have right to recover the amount of fine from the estate of the deceased - appellant as envisaged under Section 70 of the Indian Penal Code. As per allegations of the prosecution, on 16.6.1999, a police party headed by Inspector Ram Singh, which included independent witness Mukhtiar Singh, had apprehended the accused-appellant on the basis of suspicion while he was carrying a bag on his head. The availability of Deputy Superintendent of Police Joginder Kumar was there with the police party. The police suspected that there was some contraband in the bag carried by the accused. The accused-appellant was apprised of his right being searched in the presence of a Gazetted Officer or a Magistrate. The accused opted for his search to be conducted in the presence of Deputy Superintendent of Police Joginder Kumar. Consent memo of the accused in this regard were prepared. Thereafter, on the direction of Deputy Superintendent of Police Joginder Kumar, Inspector Ram Singh conducted the search of the accused as a result of which opium wrapped in a glazed paper was recovered from the bag in which the accused was carrying onions. Ten grams of opium was separated to serve as sample and the remaining opium was weighed which was found to be 9 kilograms and 990 grams. After completion of investigation and on receipt of the report of the Chemical Examiner, challan against the accused- -4- Criminal Appeal No.1393-SB of 2001. appellant was presented in Court. Charge was framed against the appellant for the offence punishable under Section 18 of the Act. He did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined recovery witness Assistant Sub Inspector Harbans Singh (P.W.1), Investigating Officer Inspector Ram Singh (P.W.2), Assistant Sub Inspector Jaspal Singh (P.W.3), L.C.Pipal Singh (P.W.4), Constable Kaur Singh (P.W.5) and Deputy Superintendent of Police Joginder Kumar (P.W.6). In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded innocence. The appellant examined Constable Mohinder Singh (D.W.1) and Constable Kirpal Singh (D.W.2) 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 ten kilograms of opium was recovered from the accused- appellant. 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. 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, Mukhtiar -5- Criminal Appeal No.1393-SB of 2001. Singh 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, Mukhtiar 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 the independent witness Mukhtiar 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. To -6- Criminal Appeal No.1393-SB of 2001. cap it all, the fact of recovery of huge quantity of opium i.e ten kilograms 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 Joginder Kumar, a Gazetted Officer, had reached the spot and the recovery of opium 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 01, 2010. ( MOHINDER PAL ) JUDGE