[CASE NUMBER] and [CASE NUMBER] -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Date of Decision: 22.11.2013 [ENTITY] s/o Amrik Singh Appellant Versus [ENTITY] Respondent [CASE NUMBER] Date of Decision: 22.11.2013 [ENTITY] s/o Sarwan Kumar Appellant Versus [ENTITY] Respondent CORAM:HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate for the appellant. (in [CASE NUMBER]). Mr. [ENTITY], Advocate for the appellant. (in [CASE NUMBER]). Mr. [ENTITY], Additional Advocate General, Punjab. [ENTITY], J.
Both the present appeals by virtue of which the appellants have impugned the judgment and order of sentence dated 10th October, 2008 of the Court of learned Special Judge, Amritsar having arisen out of same very FIR and an outcome of a common judgment are being disposed off conjointly by this common judgment for the sake of prolixity.
[CASE NUMBER] and [CASE NUMBER] -2- The brief facts emancipating into this prosecution are that on 16th May, 2006 [ENTITY] from Special Narcotic Cell, Amritsar who received information that [ENTITY] and [ENTITY] present appellants were carrying on smuggling activities of heroin through Indo-Pak border and happened to be present near Gill Farm, Marriage Palace, G.T. Road along with contraband. Acting on this information, police party headed by him went in a mini bus make Swaraj Mazda (for short, mini bus) and on seeing the police party both the accused tried to slip away but were apprehended. They disclosed their names as [ENTITY] and [ENTITY]. After usual formalities of introduction, the Investigating Officer expressed his suspicion and his intention to search accused and after explaining accused of their rights under law sought their option of being searched. Both the accused showed their desire to be searched in the presence of Gazetted Officer regarding which consent memos Ex.PA and Ex.PA/1 were prepared. As per this option PW3 [ENTITY], DSP (now Retd.) was called, who after arriving at the spot disclosed his identity and apprised accused of their rights of search on the basis of which accused [ENTITY] and [ENTITY] gave their consent by way of memos Ex.PB and Ex.PB/1. All these memos were attested by the witnesses and signed by accused. As per this option of search in the presence of the DSP, Investigating Officer searched accused [ENTITY] and from the bag of brown colour being held by him in his right hand, heroin wrapped in a cloth piece with seal affixed carrying inscription in Urdu and [CASE NUMBER] and [CASE NUMBER] -3- emblem of 'Star' and '777' scribed on the seal was recovered. 5 grams of heroin was drawn as sample and remaining 495 grams of residual Ex.P1 was prepared into separate parcel and both these parcels were sealed with the seals HS and MS of Investigating Officer. Separate sample seal impressions were also prepared. Similarly, from the search of accused [ENTITY] from the black colour bag held by him heroin wrapped in polythene carrying a sticker of 'Manisha' was recovered which also bore triangular seal blue in colour with inscription in Urdu bearing emblem of 'Star' and '777'. 5 grams of heroin was drawn as sample and remaining 495 grams of residual Ex.P2 was prepared into separate parcel and both the parcels were sealed with the same very seals and separate seal impressions were prepared. The articles were thereafter, taken into possession through memos Ex.[ACT] and Ex.[ACT]/1 respectively.
From the personal search of accused [ENTITY] through memo Ex.PD `330/- were recovered and from the personal search of [ENTITY] through memo Ex.PD/1 `220/- were recovered. The hand bags from which the contrabands were recovered were also taken into police possession through memos Ex.PE and Ex.PE/1 respectively. All the memos were signed by accused and attested by the witnesses. Thereafter, ruqa Ex.PF was prepared and the same was sent to Police Station, Sultanwind through [ENTITY] leading to registration of FIR Ex.PF/1.
The Investigating Officer prepared rough site plan of this place of recovery Ex.PG and arrested accused through arrest [CASE NUMBER] and [CASE NUMBER] -4- memos Ex.[ENTITY] and Ex.[ENTITY]/1. The Investigating Officer handed over articles to S.I/SHO [ENTITY], Police Station Sultanwind through memo Ex.PI and seizure report under [SECTION] of the [ACT] (in short, the Act) Ex.PJ was sent to higher authorities. On receipt of report of Forensic Science Laboratory Ex.PK opining contents of parcel to be of heroin and after completion of investigations, recording of statements of witnesses and on presentation of challan, accused were put to trial, who refuted the charges so framed against them and claimed trial.
The prosecution in order to prove its case examined PW1 SI [ENTITY]; PW2 [ENTITY], who tendered in evidence his affidavit Ex.PL, PW3 [ENTITY], D.S.P (Retd.), Inspector [ENTITY] (since retired) as PW4. PW5 [ENTITY], Clerk Judicial Malkhana, detailed the deposit of articles in the Malkhana. PW6 [ENTITY], Superintendent Sub Jail, Fazilka proved FIR No.51 dated 15.2.1994 under [SECTION], [SECTION] of [ACT] registered at Police Station, Ferozepur against accused [ENTITY], his sentence and the fact that he was released on parole on 19.4.2002 and, thereafter, absconded. [ENTITY] PW7 proved the registration of FIR No.51 dated 15.2.1994 under [SECTION] of [ACT] and FIR No.55 dated 25.2.1994 under [SECTION] of the [ACT] both with Police Station Sadar, Ferozepur proving copies Ex.PE and Ex.PF and brought about fact of conviction of accused [CASE NUMBER] and [CASE NUMBER] -5- [ENTITY] in the said cases. He also proved index of FIR No.51 as Ex.PG and index of FIR No.55 as Ex.[ENTITY] and thereafter, the prosecution closed its evidence.
Accused when confronted with oral as well as documentary evidence in their statements under [SECTION] [ACT] denied the allegations taking the plea of false implication, but did not lead any evidence in defence leading to their conviction which is as follows:-
Under [SECTION] [ACT] Accused [ENTITY] was sentenced to undergo rigorous imprisonment for 14 years and to pay fine of `1 lac and in default of payment of fine to further undergo rigorous imprisonment for one year.
Under [SECTION] [ACT] Accused [ENTITY] was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of `1 lac and in default of payment of fine to further undergo rigorous imprisonment for one year.
That is how both these appellants are before this Court in these two separate appeals.
Heard Mr. [ENTITY], Advocate and Mr. [ENTITY] Advocate for the appellants and Mr. [ENTITY], learned State counsel.
The first and foremost argument raised by the appellant's counsel by placing reliance on judgments in [PRECEDENT] and Gurnam Kaur and others vs. [ENTITY] 2006 (3) RCR (Criminal) 984 that since the Investigating Officer has received secret information prior to the apprehension [CASE NUMBER] and [CASE NUMBER] -6- of accused, it was mandatory for him to have reduced the same into writing and since in the present case there has been gross violation of this provision entails acquittal of the appellants. The argument has been refuted on behalf of State that firstly recovery has been effected from a public place and that too in the presence of Gazetted Officer does not calls for such a requirement. Appreciating these submissions the very wording of [SECTION] and [SECTION] of the Act makes it sufficiently clear that [SECTION] is applicable in cases of recovery as a consequence of search of a building, conveyance and enclosed place, whereas, [SECTION] deals with arrest and seizure in any public place while narcotic is under transit. It needs to be emphasised here that as an explanation to [SECTION] the expression 'public place' includes any public conveyance, hotel, shop or other place intended for use by or accessible to the public. In this case the plain reading of testimonies of PW1 [ENTITY] and PW3 [ENTITY], DSP (Retd.) make it sufficiently clear that after the receipt of secret information, accused were apprehended while standing near Gill Farm, a marriage palace on the G.T. Road, Jalandhar, thus, by all means a public place. It has been clearly laid down in [PRECEDENT] where reliance has been placed on [PRECEDENT] that in such a situation provisions of [SECTION] of the Act are inapplicable. Even otherwise on oral information of Investigating Officer, his immediate officer superior DSP PW3 had arrived before the search and recovery.
The next round of arguments by the appellant's counsel [CASE NUMBER] and [CASE NUMBER] -7- revolves around the applicability of [SECTION] of the Act and it is stressed that since the recovery has been effected from the person of the accused it was mandatory for the Investigating Officer to have conducted search in the presence of Gazetted Officer or a Magistrate, and which argument has been rightly controverted by the State counsel. It needs to be stressed here that plain reading of [SECTION] of the Act makes it abundantly clear that it is applicable only to recoveries effected from person of a person. By now such a controversy has been laid to rest by Hon'ble Apex Court's view in case [ENTITY] vs. Baldev Singh 1999 (3) RCR (Criminal) 533 SC.
More so, PW3 [ENTITY] D.S.P (Retd.) being a Gazetted Officer was present at the time of this search and recovery and by that score as has been contended by Mr. [ENTITY] learned State counsel suffices the purpose of [SECTION] of the Act, even if it is accepted to be applicable.
The mere premise that there has been non-examination of independent witness does not cast its affect on the outcome of the prosecution story. No doubt, it is well elaborated by the Investigating Officer as well as PW3 [ENTITY] DSP (Retd.) as to the presence of [ENTITY], an independent witness whose non-examination cannot be taken as fatal for the prosecution. It is the quality of the evidence that matters and not the quantity and therefore, keeping in view the present trend in the society, people are reluctant to come forth to testify and being mere rule of prudence cannot be taken as a rule of mandate and, therefore, this argument of the appellant's counsel falls to the ground. [CASE NUMBER] and [CASE NUMBER] -8- Learned counsel could not pinpoint any material contradiction in the testimonies of the witnesses. After the recovery, the articles have been duly handed over to Inspector [ENTITY] PW4, who produced the same before the learned Magistrate and after appropriate procedure having been adopted were deposited in a safe and intact state in the judicial Malkhana which is corroborated by none other than [ENTITY] PW5 Clerk of the learned Chief Judicial Magistrate.
The depositions of PW6 [ENTITY], Superintendent Jail and PW7 [ENTITY] where they have proved Ex.PE, Ex.PF, Ex.PG and Ex.[ENTITY] rather suggests the conduct of accused appellant [ENTITY] being a previous convict under similar offences and having absconded.
Learned counsel for the appellants could not pinpoint what explanation is forth coming from the side of the defence to explain for these circumstances proved at the trial oral as well as documentary. It is well elicited in the testimony of PW1 [ENTITY] that they have filled the NCP-1 form at the spot. The formal witness PW2 [ENTITY] through his affidavit Ex.PL has brought about safe deposit of the parcels in the Laboratory.
Thus, from this overall evidence it clearly stands established that from each of accused-appellants heroin weighing 500 grams each was recovered from their conscious possession and, therefore, a natural presumption arises in terms of [SECTION] of the Act, which accused have failed to rebut by any means.
Thus, from this evidence detailed and discussed above, [CASE NUMBER] and [CASE NUMBER] -9- we do not find any illegality in the findings so recorded by the trial Court, and, thus we are not inclined to show any indulgence in the same. Therefore, both the appeals stand dismissed.
([ENTITY]) JUDGE ([ENTITY]) JUDGE 22.11.2013 aarti