[ENTITY] Criminal Appeal No. S. 3[SECTION] SB of 2008 1 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.S. 3[SECTION] SB of 2008 Date of decision 01 .10.2013. [ENTITY] Appellant. versus The [ENTITY] Respondent. Present :- Mr. [ENTITY], Advocate and Mr. [ENTITY], Advocate for the appellant. Mr. [ENTITY], Advocate for the respondent. [CASE NUMBER] [ENTITY] Appellant. versus The [ENTITY] Respondent. CORAM :- HON'BLE MR.JUSTICE [ENTITY]. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? yes 2. To be referred to the Reporters or not? yes 3. Whether the judgment should be reported in the Digest? yes Present :- Ms. [ENTITY], Advocate for the appellant. Mr. [ENTITY], Advocate for the respondent. [ENTITY], J.
By this common judgment I intend to dispose of [ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh Appeal No.S. 3[SECTION] SB of 2008 titled as [ENTITY] versus The [ENTITY] and [CASE NUMBER] titled as [ENTITY] versus The [ENTITY], as both these appeals have arisen out of the same incident, judgment and order. For convenience facts are being taken from Criminal Appeal No.S. 3[SECTION] SB of 2008 titled as [ENTITY] versus The [ENTITY]
2. Appellants have directed the present appeals against the judgment and order dated 21.12.2007 passed by Shri [ENTITY], learned Special Judge, Rupnagar vide which accused/appellants have been convicted under [SECTION] and [SECTION] of the [ACT], (in short - the Act) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one year each under Section 21 of the Act and to further undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine to further undergo rigorous imprisonment for one year each under [SECTION] of the Act whereas acquitted them under [SECTION] and [SECTION] of the Act by giving them benefit of doubt from the charges levelled against them.
3. The brief facts of the present case are that on 7.12.2005 [ENTITY], Intelligence Officer, NCB, Chandigarh received a secret information that three persons including a Kenyan National were in the process of making a Heroin deal near the Scooter Market, Phase VIII [ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh Mohali by using Toyota [ENTITY] bearing registration No. PB-11-X-0038. [ENTITY] (PW-2) reduced the said information into writing and forwarded the same to Shri [ENTITY] (PW-4) who authorized [ENTITY] (PW-2) to search the alleged three persons. Shri [ENTITY] (PW-4) further authorized and directed [ENTITY] (PW-2) to constitute the surveillance team, which consisted of [ENTITY] (PW-2), [ENTITY], Constable [ENTITY] and PW-
1. Shri [ENTITY] (PW-4) accompanied the said team as a Supervising Officer. Inspector [ENTITY] and SI [ENTITY] were requested to remain available. The team accompanied by said two police officials/independent witnesses reached the Scooter Market Phase VII, Mohali. The team reached there at about 10.00a.m. and at about 10.[SECTION]a.m., the vehicle Toyota [ENTITY] bearing registration No. PB-11-X-0038 being driven by accused [ENTITY] was noticed. After sometime, one Fiat Palio car bearing registration No. PB-11-X-5556 occupied by one person known as [ENTITY] was also noticed. Subsequently, it was discovered that the number was fake, as the same had been allotted to a scooter. Accused [ENTITY], [ENTITY] and [ENTITY] were noticed indulging in suspicious activities and it was also noticed that all of them accused are talking to each other. At about 11.[SECTION]a.m, accused [ENTITY] was found sitting on the driving seat of [ENTITY] whereas accused [ENTITY] and the said other third person [ENTITY] went near accused [ENTITY]. The NCB team, in the presence of the said police officials/independent witnesses, immediately rushed to the said Toyota [ENTITY] to round up all the three accused. Accused [ENTITY] fled away [ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh from the scene by using the Palio Car. Accused [ENTITY] also escaped from the spot leaving behind his motor cycle bearing temporary registration No. HR-61-T-9943. The said team was however, able to nab accused [ENTITY] from the spot. On enquiry he disclosed his name and address. [ENTITY] (PW-2) then disclosed his identity of the NCB Team in the presence of the police officials/independent witnesses. [ENTITY] (PW-2) informed accused [ENTITY] that he had information that there was Heroin in his vehicle. He showed the authority letter to accused [ENTITY] and claimed that he was authorized to search his vehicle. The police official independent witnesses and accused [ENTITY] signed the authority letter. [ENTITY] (PW-2) also disclosed to the accused [ENTITY] that Shri [ENTITY] (PW-4) was a Gazetted Officer and that the vehicle was to be searched in his presence. Shri [ENTITY] (PW-4) himself also disclosed his identity to accused [ENTITY]. Before initiating search, [ENTITY] (PW-2) offered himself for his personal search to accused [ENTITY] but he declined the same. [ENTITY] (PW-2) then searched the offending vehicle. On search of the dash board, one packet covered with a brown coloured adhesive was recovered. On searching the vehicle further, a dark blue coloured polythene packet bearing impression [ENTITY] was also recovered from beneath the driver's seat of [ENTITY]'s vehicle. The said packet contained two small packets covered with brownish colour adhesive tape. [ENTITY] (PW-2) then asked accused [ENTITY] about the contents of the said packets. Accused [ENTITY] informed that these packets contained Heroine. He further [ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh disclosed that he and [ENTITY] i.e., the person who had fled away from the spot in his car had purchased the said 3kgs heroin and that they were to sell the same to a Negro. He also disclosed that the Toyota [ENTITY] was registered in the name of [ENTITY] wife of [ENTITY] resident of 17, Century Enclave, Phase III, Nabha Road, Patiala. [ENTITY] (PW-
2) then weighed these three packets independently and found that each packet weighed 1kg. [ENTITY] (PW-2) then took small quantities of the suspected substances from each of the packets and tested them with the help of Drug-field detection kit. It showed that all the packets contained Heroin. A large crowd gathered at the spot. Shri [ENTITY] (PW-
4) suspected that peace might be broken, therefore, he directed [ENTITY] (PW-2) to take accused [ENTITY] to the Police Station Phase VIII, Mohali for further proceedings. [ENTITY] (PW-2) complied with the same and took accused [ENTITY] and the case property, [ENTITY]'s vehicle to the said Police Station. Shri [ENTITY] (PW-4) and another official of the NCB remained at the spot and kept a vigil on the Hero Honda motor cycle belonging to [ENTITY]. After about 45 minutes, when the crowd had dispersed from the spot, accused [ENTITY] came to the spot and went to his motor cycle. While he was trying to pick up the said motor cycle, Shri [ENTITY] (PW-4) and his companions nabbed him at the spot. On enquiry he disclosed his name and address. When asked why he earlier fled away from the scene, he disclosed that he had come to collect three packets of heroin from the accused and also disclosed that the said three packets of heroin were lying in the Toyota [ENTITY] occupied by accused [ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh [ENTITY]. He further disclosed that he had to further deliver the same to one [ENTITY]. [ENTITY] (PW-4) then detained accused [ENTITY] and took him to Police Station Phase VIII Mohali and handed him over to [ENTITY] (PW-2). Two samples of 5grams each from the packets were taken. [ENTITY] (PW-2) mixed up the contents of the remaining two packets recovered from beneath the driver's seat of accused. The accused were arrested. Statements of the prosecution witnesses were recovered. After completion of necessary investigation, complaint against the accused was presented for trial of the accused.
4. On presentation of the complaint, copies of documents as relied upon by the prosecution were supplied to the accused as per [SECTION] of the [ACT] Finding a prima facie case, accused were charge-sheeted under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the Act. The accused did not plead guilty to the charges and claimed trial.
5. To substantiate its case, prosecution has examined Constable [ENTITY] (PW-1), Investigating Officer [ENTITY] (PW-2), Assistant Chemical Examiner [ENTITY] (PW-3), [ENTITY] (PW-4) and closed the prosecution evidence.
6. Statements of accused as envisaged under [SECTION] [ACT] were recorded, wherein all the incriminating material appearing against them was put to them, but they have denied all the allegations levelled against them. Accused [ENTITY] alleged that police of the area had wanted his vehicle for some time, as he denied to oblige, the police got annoyed and implicated him in this case. In the process, the police permitted the [ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh real culprit to escape. Accused [ENTITY] has also pleaded that he has been implicated in this false case. He had no role to play. He has no concern with the principal accused and the contraband. No recovery has been effected from him. The documents prepared against him are concocted and false. There is no cogent evidence to connect him with the crime. The NCB officials in connivance with the Mohali Police took him from his house on the pretext that some routine verification was to be done under the [ACT]. His signatures were taken on blank papers under threats and duress and therefore, false documents were prepared to implicate him in this case. The accused were called upon to lead their defence evidence but they did not lead any evidence in defence.
7. The trial Court after hearing the learned counsel for the parties convicted and sentenced the accused appellants vide judgment and order dated 21.12.2007, as aforesaid.
8. Feeling dissatisfied with the aforesaid judgment and order dated 21.12.2007, the present appeals have been directed by the accused/appellants.
9. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
10. Learned counsel for the appellant-[ENTITY] has submitted that so far as accused [ENTITY] is concerned, the prosecution has failed to prove the ingredients of offence complained off. It is submitted that [ENTITY] was not arrested at the spot. No contraband was recovered from him. The recovery has taken place from a busy place. No site plan was prepared at the spot. No sample was taken at [ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh the spot. All the proceedings were conducted while sitting in police station phase VIII, Mohali. The letter for providing police has been addressed to the Station House Officer, Police Station Phase-I, Mohali and police officials have been stated to be provided by Police Post Phase VIII. Key of motor cycle was not recovered. No document showing the ownership of said motor cycle by [ENTITY] has been produced. The notice under [SECTION] of the Act is not served upon the appellant in proper manner.
11. It is further submitted that FSL form was not filled at the spot. specific seal was not sent to the FSL Laboratory. The panchnama was prepared in Hindi. The accused/appellant-[ENTITY] is a Kenyan national and does not know the Hindi language. It is further submitted that no letter was made in the police station. Form No.[SECTION] was also not prepared at the spot.
12. It is further submitted that according to the prosecution [ENTITY] was dealing with the contraband on the basis of commission, no money was recovered from him.
13. It is further submitted that statement of [ENTITY] under [SECTION] of the Act cannot be the basis of conviction without any corroboration. No independent witness was joined and even no police official has been examined. The link evidence is missing.
14. It is further submitted that according to the prosecution there was a third person named [ENTITY]. He has neither been arrested nor challan has been presented against him.
15. Learned counsel for the appellants have further submitted that [ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh sample of only 5grams was taken. So, in these circumstances, it cannot be said that sample was analyzed properly.
16. Learned counsel for the appellants have further submitted that retracted confession of the accused before the Custom Officer is in admissible in view of [SECTION] of the [ACT]. To support this contention they have relied upon authority [PRECEDENT] .
17. Learned counsel for the appellants have relied upon the following authorities in support of their arguments -
1. [PRECEDENT] ;
2. [ENTITY] and another vs. State of Punjab reported 2007(2) R.C.R. (Criminal) page 596 ;
3. [PRECEDENT] reported in 2005(1) R.C.R. (Criminal) page 406 ;
4. [PRECEDENT] vs. State of Punjab reported in 2002 (4) R.C.R. (Criminal) page [SECTION]8 ;
5. Ramaswamy vs. State of M.P. reported in 2005 (3) R.C.R. (Criminal) page 7[SECTION] ;
6. [ENTITY] vs. State of Haryana reported in 2005 (3) R.C.R. (Criminal) page 321 ;
7. [PRECEDENT] ;
8. [PRECEDENT] page 2[SECTION] ;
9. [PRECEDENT] page 52 ; and
10. [PRECEDENT] page 335 ;
[ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh
18. Counsel for the [ENTITY] has supported the judgment and the order of the trial court. It is submitted that huge quantity of heroine weighing 3kgs having international price in crores of rupees cannot be planted upon the appellants. There was no reason for the prosecution to falsely implicate both the accused/appellants. The statement made under [SECTION] of the [ACT] is admissible in evidence in view of the Constitutional Bench authority in case [PRECEDENT]. In this case statement of [ENTITY]-accused- appellant was recorded in English which language is known to him. [ENTITY]-accused-appellant has got the education from India as per his statement under [SECTION] of the Act and as such was well conversant with the English language. He has voluntarily made statement under [SECTION] of the Act and as such was well conversant with the English language. He has voluntarily made statement under [SECTION] of the Act and that can be the basis of conviction. Previously also he was convicted under the [ACT]. Learned counsel for the State has also relied upon the following authorities :-
1. [PRECEDENT] ;
2. [PRECEDENT] page 499 ;
3. M. Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence reported in 2004(1) R.C.R. (Criminal ) page 1[SECTION] ;
[ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh
4. [PRECEDENT] ;
5. [PRECEDENT] ;
6. [PRECEDENT] ;
19. I have given my thoughtful consideration to the respective submissions made by both the sides and have gone through the records of the case with their able assistance.
20. It is a case of recovery of 3kgs of heroine without any licence and permit. According to the case of the prosecution secret information was received regarding transportation of contraband in the vehicle in question. Written information was sent by the investigating officer in this regard and gazetted officer was joined. [ENTITY] accused was found in possession of 3kgs of heroine out of which one kg was in the dais board opened by [ENTITY] with his key in respect of Toyota Quails vehicle bearing registration No. PB-11- X-0038. [ENTITY] was stated to be present there but he slipped away but his motor cycle remained there. Later on, he came to bring his motor cycle and was apprehended. Thereafter, statement under [SECTION] of the Act of [ENTITY]-accused-appellant was recorded in which he has given the details of the heroine procured and stored by them.
21. Mere fact that samples were drawn in the police station is not a ground to discard the prosecution story. The place of recovery was busy place and as such it is not possible to conduct the proceedings at that place. So, the explanation given by the prosecution in this regard, appeals to the reason. The reason for non-joining of independent witness has been given [ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh as nobody was ready to join the investigation. Normally, general public is reluctant to join the police proceedings as they do not want to appear in the Court. No specific question regarding keys was asked to the prosecution witnesses. Without keys the motor cycle could not be taken from the stated place. Mere fact that FSL form is not filled at the spot is not a ground to discard the prosecution story. The official of FSL have categorically stated that sample was intact and the same was not tampered with. Mere fact that no entry was made in the police station is not a ground to discard the prosecution story. The recovery has not been effected in the police station and as such there was no necessity to make any entry. The sample was drawn at the police station. Mere fact that form No.[SECTION] was not filled at the spot is also not a ground to discard the prosecution version. It is not the mandatory requirement of law that money should have been recovered from the accused.
22. The main stress of the counsel for the appellant [ENTITY] is that statement made by him under [SECTION] of the Act is inadmissible in evidence and reliance in this regard has been made on authority [PRECEDENT]' case (supra). In that case, material consisted of narcotics was to the extent of 01.68% whereas in the present case the narcotic recovered from the accused is in highly concentrated condition and as per report of the Chemical Examiner the contents are 72.8 and 56.7%.
23. In authority [PRECEDENT]'s case (supra) Hon'ble Apex Court has held that confession made by the accused to Custom Officer is [ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh admissible in evidence. It has been further laid down in the said ruling that custom officer are not a police officials within the meaning of [SECTION] of the [ACT], [SECTION] of the [ACT] is on the same analogy as that of [SECTION] of the [ACT].
24 In recent authority [PRECEDENT] decided on 26.03.2013 reported in [CASE NUMBER] after dealing with authority [PRECEDENT] reported in 2008 (3) R.C.R. (Criminal) 633 held that officer for the purpose of [SECTION] of the Act is not a police official and as such confession made before him is admissible and can be the basis of conviction.
25. Single Bench authority [PRECEDENT]'s case (supra) of this court relates to compliance of [SECTION] of the Act. It is settled law that [SECTION] of the Act would attract only if the recovery is from the personal search.
26. Authority [ENTITY] and another's case (supra) is distinguishable as in that case conscious possession was not proved and there was other attending circumstances which militates the case of the prosecution.
[SECTION]. Authority [PRECEDENT]'s case (supra) is also distinguishable as in that case, one of the panch witnesses joined at the time of recovery was a stock witness and there were other circumstances also.
28. Authority [PRECEDENT]'s case (supra) relates to [ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh [SECTION] of the Act but on the facts of the present case [SECTION] of the Act has been complied with.
[SECTION]. [PRECEDENT]'s case (supra) by Madhya Pradesh High Court is distinguishable as in that case, entire investigation was done in Hindi language whereas the accused was South Indian and was not acquainted with Hindi language. In the present case, [SECTION] of the Act of [ENTITY] was recorded in English language and it is not disputed during the course of arguments that [ENTITY] was conversant with English language. Moreover, he has done all his studies in India, so he must be conversant with English language.
[SECTION]. Authority [ENTITY]'s case (supra) is also distinguishable as in that case testimony of official witnesses was not free from doubt, whereas there is nothing such cross margin from the records. The recovery has taken place in the presence of a Gazetted Officer.
31. Authority [PRECEDENT]'s case (supra) is also distinguishable as in that case link evidence was found missing.
32. Authorities [PRECEDENT]'s case (supra) ; [PRECEDENT]'s case (supra) and [PRECEDENT]'s case (supra) relate to non-compliance of [SECTION] of the Act. As discussed above, [SECTION] of the Act is not attracted in the present case. Moreover, the recovery has been effected in the presence of a Gazettted Officer.
33. In view of the above discussion, both the appeals are without any merit and the same stand dismissed.
[ENTITY] 2013.10.10 12:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh
34. A copy of this judgment be sent to the trial Court for strict compliance.
( [ENTITY] ) October , 2013 JUDGE sv