Criminal Appeal No. 846-SB of 2005 v. State of Haryana

Mr. A. S.Virk, Advocate for the appellant. Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, for respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This appeal is directed against the judgment dated

5.4.2005/order of sentence dated 7.4.2005 rendered by the Court of learned Additional Sessions Judge, Jind, whereby he convicted and sentenced the accused-appellant to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year under Section 15 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). Tersely put, facts of the prosecution case are that on 24.8.2004, Prem Singh Sub Inspector, among other police officials, happened to be present at Old Bus Stand, Uchana, in connection with patrolling. Meanwhile, the aforesaid Sub Inspector received a secret information that the accused will be coming from Rajasthan along with poppy husk in his Criminal Appeal No. 846-SB of 2005 2 Canter. The Sub Inspector set up Naka on the turning of Village Karsindhu. In the meantime, a Canter was spotted approaching from the side of New Bus Stand, Uchana. The Canter bearing registration no. HR-56-2347 was signalled to stop with torch light. The same was being driven by the accused. He alighted from the Canter. The Sub Inspector served notice, Exh.PC upon the accused making him aware of his right to be searched before a Gazetted Officer or a Magistrate. Vide Exh. PC/1, he opted to be searched in the presence of a Gazetted Officer or a Magistrate. Thereafter, the Sub Inspector called Kuldip Singh, DSP, Narwana, who came at the spot. In his presence, the Sub Inspector carried out search of the accused as well as of the Canter. On search, 8 bags of poppy husk were recovered from the Canter. 100 Grams of poppy husk was drawn from each bag to serve as sample. The same were converted into parcels. The residue of each bag, when weighed, came to 24 Kg.900 Grams. The sample parcels as well as the remainder were sealed with seal bearing impression PC and seized vide Memo., Exh. PD. The seal, after its use, was handed over to ASI Bhim Singh. The above mentioned Sub Inspector sent Ruqa, Exh.PA to the Police Station. On its basis, formal FIR, Exh. PA/1 was recorded. The Sub Inspector prepared the rough site plan,Exh.PE showing the place of recovery and on return to the Police Station, deposited the case property with seals intact with MHC. He also sent the report, Exh. PF, in compliance with the provisions of Section 57 of the Act, to D.S.P Narwana. On receipt of Forensic Science Laboratory's Report and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused was charged under Section 15 of the Act to which he did not plead guilty and claimed trial. Criminal Appeal No. 846-SB of 2005 3 To bring home guilt against the accused, the prosecution has examined PW-1 Shri Niwas,ASI, PW-2 Basheshar Dutt, EASI , PW-3 Prem Singh Sub Inspector (Investigator), PW-4 Bhim Singh ASI, PW-5 Kuldeep Singh, DSP, PW-6 Constable Surinder Singh and closed its evidence by tendering the Forensic Science Laboratory's Report, Exh.PJ and giving up Head constable Ram Avtar, PW, being unnecessary. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication at the instance of liquor contractor, who pressurized him to sell his liquor in his Canter, to which he refused. In defence, he examined Mukesh Kumar, DW-1, Head Constable Gulab Singh, DW-2 and Ishwar Singh Sarpanch, DW-3. After hearing the learned Public Prosecutor for the State, learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with the same, he has preferred this appeal. I have heard Mr. A.S.Virk, Advocate, counsel for the appellant and Mr.Tarunveer Vashisht, Additional Advocate General, Haryana, for the State of Haryana, besides going through the record with due care and circumspection. Mr. A.S.Virk, Advocate counsel for the appellant urged with a good deal of force that the alleged recovery is shown to have been made on receipt of secret information and if it was so, the Investigator was obligated to comply with the mandatory provisions of Section 42(2) of the Act, whereas it transpires from his evidence that he did not reduce the alleged Criminal Appeal No. 846-SB of 2005 4 secret information into writing nor sent the same to the immediate official superior and, thus, he has violated this mandatory provision of law. To controvert these submissions, Mr.Tarunveer Vashisht, Additional Advocate General, Haryana, maintained that as would be apparent from Exh.PF, the information was sent to the immediate superior officer and furthermore such a huge quantity of poppy husk, by no stretch of imagination, could be foisted upon the appellant by the Investigating Officer. Section 42(2) of the Act reads in the following terms :- “ Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. ” From a bare reading of the above language, it transpires that the information has to be sent to the immediate official superior within 72 hours provided the same has been reduced into writing. It is not in the evidence of Prem Singh, PW-3 Investigating Officer that he reduced the secret information into writing. That being so, he could not send the same to the immediate official superior. As emanates from the deposition of Prem Singh,PW-3, he sent the report, Ex.PF under Section 57 of the Act to the DSP Narwana. It implies that he had informed the immediate superior officer with regard to the recovery effected from the appellant in consequence of the secret information received by him. Criminal Appeal No. 846-SB of 2005 5 The learned counsel for the appellant further argued that a careful delving into the affidavit, Exh. PH of Surinder Singh Constable,PW- 6 would reveal that the same is silent as to which paragraph of the same is based on his information and which one is grounded on his knowledge. Thus, the same is abhorrent to the provisions of Section 297 of the Code of Criminal Procedure. As against this, Mr. Tarunveer Vashisht pressed into service that there is nothing wrong with this affidavit as therein it has been specifically mentioned as to which paragraph is based on information or knowledge. I have carefully perused this affidavit. At the fag end of the same, it has been mentioned that paragraphs 1 to 3 is based on his knowledge and the remaining paragraphs are founded on information and nothing has been concealed. Thus, axiomatically this affidavit fulfills the requirements of law. Coming to the defence evidence, Mukesh Kumar DW-1 has stated in nut-shell that the accused is his co-villager, that when he along with Surinder (referring to the accused ) came out of the office of D.T.O., Jind, after getting the vehicle in question released on Superdari, they were threatened by three police officials that they will be falsely implicated in the case. This witness at the fag end of his cross-examination, has admitted that before arrest of the accused in this case, he was apprehended by the Excise Department in an excise case. This witness being a co-villager, might have come to the trial Court with an avowed purpose to depose in his favour. As regards Head Constable Gulab Singh, DW-2, he has proved the relevant entries made in the log book of gypsy bearing registration No. HR-31-7831 Criminal Appeal No. 846-SB of 2005 6 which was used by Kuldeep Singh, DSP, Narwana on the day of recovery. He has categorically deposed that this vehicle was used by the above mentioned DSP and that in column no.8 of the log book, the detail regarding arrest is given. Thus, this evidence rather goes against the appellant. Ishwar Singh Sarpanch, DW-3 has deposed that the accused Surender is his co- villager and that Subhash came to his house and stated that his brother Surender has been apprehended by the police and that when he questioned the police as to why a false case has been registered against the accused, then the police told that it is not a false case. This evidence proprio-vigore does not advance the cause of the appellant. In his statutory statement, the appellant has pleaded that he has been falsely implicated in this case at the instance of a liquor contractor, whose name has not been disclosed. There is no evidence to substantiate this plea. No other material point has been urged or agitated by either counsel. On appraising the evidence tendered by PW-3 Prem Singh, SI, Bhim Singh ASI PW-4, Kuldeep Singh DSP, PW-5, it follows that the poppy husk in question was recovered from the unauthorized possession of the appellant. A meticulous perusal of their gruelling cross-examination reveal that their credibility could not be impeached in any manner. They stood like a rock. Arguendo, Mr. Virk could not pick holes in their statements. The same being credible, consistent and convincing, implicit reliance can be placed thereon. The procedural safeguards have been Criminal Appeal No. 846-SB of 2005 7 adhered to. Consequently, no interference is warranted in the findings returned by the learned trial Court. Sequelly, this appeal fails and is dismissed. 26th February, 2008 RS ( HARBANS LAL ) JUDGE Whether to be referred to the Reporter ? Yes/No