Criminal Appeal No. 1930-SB of 2005 and Criminal Appeal No. 1992-SB v. State of Punjab

CORAM : HON'BLE MR.JUSTICE MOHINDER PAL.

1. Whether Reporters of Local papers may be allowed to see the judgment ? To be referred to the Reporters or not ?

2. 3. Whether the judgment should be reported in the Digest ? Present: Mr. Paramjeet Singh Dhaliwal, Advocate, for the appellant Bhola Singh s/o Sajjan Singh. Mr. Preetwinder Singh, Advocate, for appellant Bhola Singh s/o Harnek Singh. Mr. P.S. Bajwa, Deputy Advocate General, Punjab for the State-respondent. -.- MOHINDER PAL, J. This judgment will dispose of the afore-stated two -2- Criminal Appeal No. 1930-SB of 2005 and Criminal Appeal No. 1992-SB of 2005 appeals as they arise out of the same First Information Report. Bhola Singh (s/o Sajjan Singh) has filed Criminal Appeal No. 1930-SB of 2005 and Bhola Singh (s/o Harnek Singh) has filed Criminal Appeal No. 1930-SB of 2005 against the judgment of conviction and the sentence order dated 9.9.2005 passed by the Judge, Special Court, Barnala, whereby they were 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, each as fine, in default whereof to undergo further rigorous imprisonment for two years. The prayer made in these appeals is to set aside the impugned judgment of conviction and the sentence order by acceptance of these appeals and to acquit the appellants of the charge framed against them under Section 15 of the Act. As per allegations of the prosecution, on 24.11.1998, Assistant Sub Inspector Malkiat Singh along with Assistant Sub Inspector Kaur Singh, Assistant Sub Inspector Gurnam Singh and other police officials of C.I. A Staff, Barnala was present on the bridge of the canal minor on Barnala- Sekha Road. Swaran Singh, an independent witness, who came there, was joined in the police party. When Assistant Sub Inspector Malkiat Singh was talking with Swaran Singh, he saw a tractor-trolley coming from the side of village Farvahi. One person was driving the tractor and the other was sitting in the trolley. The police party signalled the tractor-trolley to stop. A heap -3- Criminal Appeal No. 1930-SB of 2005 and Criminal Appeal No. 1992-SB of 2005 of bags covered with a 'palli' was noticed by the police party in the trolley. Assistant Sub Inspector Malkiat Singh told the accused that he suspected some contraband substance in the bags loaded in the trolley and that search of the same was to be conducted. The accused were given an option that they could get the search conducted before a Magistrate or a Gazetted Officer. Both the accused opted that the search be conducted in the presence of a Gazetted officer. Consent memo on which both the accused signed was prepared in this regard. A wireless message was sent to Deputy Superintendent of Police S.S. Gill, who reached the spot and disclosed his identity to the accused-appellants. On the directions of Deputy Superintendent of Police S.S. Gill, search of eight bags loaded in the trolley was conducted which were found to contain poppy husk. Two samples of poppy husk weighing 250 grams were separated from each of the bag. The remaining poppy husk, on weighment, was found to be 34 kgs and 500 gms in each bag. The samples and the bulk poppy husk contained in eight bags were separately sealed and taken into possession by the police. The tractor in question was also taken into possession by the police. On personal search of Bhola Singh s/o Harnek Singh , Rs.110/- were recovered and Rs.50/- were recovered on personal search of Bhola Singh s/o Sajjan Singh, which were taken into possession by the police. Ruqa was sent to the Police Station and on its basis formal F.I.R was registered against the accused. Rough site plan of the place of recovery was prepared. After registration of the case -4- Criminal Appeal No. 1930-SB of 2005 and Criminal Appeal No. 1992-SB of 2005 against the accused, they were formally arrested. Sample parcels were sent for analysis and vide report of the Chemical Examiner, their contents were found to be of poppy husk. After completion of investigation and due formalities, challan was put in Court against the accused-appellants. Charge was framed against the appellants for the offence punishable under Section 15 of the Act. They did not plead guilty to the charge and claimed a trial. At the trial, the prosecution examined Moharrir Head Constable Ajaib Singh (P.W.1), Assistant Sub Inspector Kaur Singh (P.W.2), Assistant Sub Inspector Malkiat Singh (P.W.3), Harjinder Singh (P.W.4), Head Constable Ajaib Singh (P.W.5), Assistant Sub Inspector Harbhajan Singh (P.W.6), Deputy Superintendent of Police S.S. Gill (P.W.7), Sub Inspector Nachhatar Singh (P.W.8) and Deputy Superintendent of Police Jagmohan Singh (P.W.9). In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded false implication. Appellant Bhola Singh s/o Harnek Singh further stated that he came to Barnala to sell the paddy of his employer. After selling the paddy, he stopped his tractor-trolley in the house of Bhola Singh s/o Sajjan Singh (appellant) from where their tractor trolley was taken away by the police and they were falsely implicated in this case. Similar stand was taken by appellant Bhola Singh s/o Sajjan Singh. In defence, the accused had summoned C.II Surinder Singh but gave him up -5- Criminal Appeal No. 1930-SB of 2005 and Criminal Appeal No. 1992-SB of 2005 being unnecessary. The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case beyond reasonable doubt and that eight bags, each containing 35 Kgs of poppy husk were recovered from the accused-appellants. The trial Court convicted and sentenced the appellants, as mentioned above. I have heard Mr. Paramjeet Singh Dhaliwal, Advocate, appearing for appellant Bhola Singh s/o Sajjan Singh, Mr.Preetwinder Singh, Advocate, appearing for appellant Bhola Singh s/o Harnek Singh and Mr. P.S. Bajwa, Deputy Advocate General, Punjab, appearing for the State-respondent and have gone through 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, Swaran 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, Swaran Singh, has upset the balance of the prosecution case, -6- Criminal Appeal No. 1930-SB of 2005 and Criminal Appeal No. 1992-SB of 2005 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-appellants have also not alleged any enmity with them (police officials). In this background, merely the fact that the independent witness Swaran 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. To cap it all, the fact of recovery of eight bags of poppy husk, each containing 35 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. In this case, there was complete compliance of the mandatory provisions of Section 50 of the Act as Deputy -7- Criminal Appeal No. 1930-SB of 2005 and Criminal Appeal No. 1992-SB of 2005 Superintendent of Police S.S. Gill, 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 these appeals. The same are hereby dismissed. May 20, 2010. ( MOHINDER PAL ) JUDGE