CRIMINAL APPEAL NO. 293-DB OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: January 30, 2009 Parties Name Jagir Singh and another ...APPELLANTS. VERSUS State of Punjab ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. Ranjan Lakhanpal, Advocate, for the appellant. Ms. Manjari Nehra, D.A.G., Punjab, for the respondent. JASBIR SINGH, J. JUDGMENT It was allegation of the prosecution that in the intervening night of 7th / 8th January, 2000, in the area of BOP Burj, under Police Station Lopoke, Jagir Singh, appellant No. 1, was found in possession of 5 Kgs. of heroin and Sukhwant Singh, appellant No. 2, was also found in possession of 1 Kg. of heroin and 1 Kg. of opium, both without any permit or licence. It was further allegation against them that they were sharing common intention with their co-accused Abad Ali and in furtherance thereof Abad Ali fired upon BSF party with an intention to cause death of members of that party. A complaint was filed against the above named three accused by CRIMINAL APPEAL NO. 293-DB OF 2007 -2- Intelligence Officer, Narcotics Control Bureau, Ministry of Finance, Department of Revenue, Government of India, Chandigarh, for commission of offences under Sections 18, 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act). Another FIR No. 7 of 2000 was also recorded against them for commission of offence under Section 307/34 IPC and Section 3 of the Passport Act. Trial in both the cases was consolidated and disposed of vide judgment under challenge. Appellants were convicted and following sentence was ordered against them: Name of the convict Under Sec. Sentence Jagir Singh 21 NDPS Act To undergo RI for 15 years and to pay a fine of Rs. One lac and in default whereof, to undergo further RI for one year. 23 NDPS Act To undergo RI for 15 years and to pay a fine of Rs. One lac and in default whereof, to undergo, further RI for one year. 29 NDPS Act To undergo RI for 15 years and to pay a fine of Rs. One lac and in default whereof, to undergo further RI for one year. 307/34 IPC To undergo RI for 5 years and to pay a fine of Rs. 1000/- and in default whereof, to undergo further RI for one month. Sukhwant Singh 21 NDPS Act To undergo RI for 15 years and to pay a fine of Rs. One lac and in default whereof, to undergo further RI for one year. 23 NDPS Act To undergo RI for 15 years and to pay a fine of Rs. One lac and in default whereof, to undergo, further RI for one year. 29 NDPS Act To undergo RI for 15 years and CRIMINAL APPEAL NO. 293-DB OF 2007 -3- to pay a fine of Rs. One lac and in default whereof, to undergo further RI for one year. 18 NDPS Act To undergo RI for 5 years and to pay a fine of Rs. 1000/- and in default whereof, to undergo further RI for one month. 307/34 IPC To undergo RI for 5 years and to pay a fine of Rs. 1000/- and in default whereof, to undergo further RI for one month.” Sentences of imprisonment were ordered to run concurrently. The entire prosecution case as noticed by the trial Court in its judgment in paras No. 1 to 3, reads thus: “The present complaint under sections 18, 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) has been instituted by the Intelligence Officer, Narcotics Control Bureau, Chandigarh, on the allegations that a specific information was received by the officials of the Narcotics Control Bureau, Chandigarh, which was reduced into writing and sent to the Senior Officers. The officials of the Narcotic Control Bureau along with the officials of the Border Security Force held naka in the area of BOP Burj, Tehsil Ajnala, District Amritsar on the intervening night of 7/8.1.2000 and at about 0025 hours, Jagir Singh and Sukhwant Singh accused came towards the barbed fencing from the Indian side of the fence to reach near the barbed fencing on the Indo-Pak Border. Jagir Singh gave signals by blinking a laser gun(toy) torch with red light to call the persons from Pakistan side of the fence and immediately after blinking of red light, Abadi Ali CRIMINAL APPEAL NO. 293-DB OF 2007 -4- along with another person came from Pakistan side near the barbed fencing from the side of Pillar Number 83/6 situated in between the gates numbers 83 and 84 towards Pakistan. After a brief interaction, the persons coming from the Pakistan side started throwing packets one by one which were picked up by Jagir Singh and Sukhwant Singh. After they had thrown 7 packets from over the fence, one of the two persons from the Pakistan side of fence namely Abad Ali noticed the movement of the Naka party and opened fire from his pistol on the Naka party. Jagir Singh and Sukhwant Singh accused who took the delivery of the packets, rushed back along with the said packets tucked inside their jackets and shirts worn by them. On officials of the NCB and BSF returning fire in self-defence, the intruders from Pakistan side started running towards Pakistan. During the exchange of fire, one of the intruders namely Abad Ali fell down while the other person managed to escape under the cover of darkness. Gate No. 84 situated on the Katcha Bandh, i.e. Dhussi Bandh was immediately opened and the personnels of the NCB and BSF went towards Pakistan side of the fence, evacuated Abad Ali who was carrying one packet hiden inside his shift on left hand side and holding pistol in his right hand, which was found loaded with four live cartridges. Jagir Singh and Sukhwant Singh accused were also over-powered . All the apprehended persons namely Jagir Singh, Sukhwant Singh and Abad Ali were taken to BOP Burj, Tehsil Ajnala, District Amritsar and two independent witnesses namely Daljit Singh CRIMINAL APPEAL NO. 293-DB OF 2007 -5- and Jagir Singh were summoned. As condition of Abad Ali was deteriorating , he was given first aid and asked whether he wants to get himself searched before a Gazetted Officer or Magistrate and he consented to be searched before Rakesh Goyal, Zonal Director, Narcotics Control Bureau, Chandigarh, a Gazetted Officer, who was present at the spot. Thereafter, personal search of Abad Ali was conducted which led to the recovery of pistol loaded with four life cartridges held by him in his right hand, a case tucked to the right side of his pant with the help of a clip, a magazine containing seven live cartridges and one packet of narcotics from inside the shirt worn by him. A personal search -cum-consent memo was drawn which was also signed by Abad Ali. Since condition of Abad Ali accused required immediate medical help, he was got admitted in Guru Nanak Dev Hospital, Amritsar, without any further delay. 2. After the arrival of public witnesses, letters dated 8.1.2000 were given to Jagir Singh and Sukhwant Singh accused to whom the contents of these letters were read over and explained and they were asked as to whether they wish to be searched in the presence of a Gazetted Officer or Magistrate. Both the said accused opted to be searched in the presence of Rakesh Goyal, Zonal Director, NCB, Chandigarh and an endorsement was made on the consent memos. Personal search of Jagir Singh accused was conducted in the presence of the witnesses which led to the recovery of 5 packets from inside his shirt under the woolen jersey and jacket i.e. 3 from CRIMINAL APPEAL NO. 293-DB OF 2007 -6- right hand side and 2 from left hand side of the shirt worn by him, besides a laser (toy) gun torch having red blinking light lying in the right hand side packet of the pant worn by Jagir Singh. Personal search of Sukhwant Singh accused was also conducted which led to the recovery of two packets, each from right and left sides inside the shirt worn by him underneath the woolen jersey and covered with shawl/Lohi. 3. The packets recovered from Jagir Singh were marked as packets No. 1 to 5 , those recovered from Sukhwant Singh were marked as No. 6 and 8 and the packet recovered from Abad Ali was marked as No. 7. Each packet was weighed and found to be weighing one Kg. All the packets were bearing identical markings, which were opened in the presence of Jagir Singh and Sukhwant Singh accused and the witnesses. Packets No. 1 to 7 were found to contain similar white granule powder material and packet No. 8 was found to contain cherry coloured material in the shape of granules. The contents were tested with the help of drug testing kit which tested positive for Heroin. Packets No. 1 to 5 were bunched together to make it a “lot A”, packet No. 6 was marked as “lot B” , packet No. 7 was marked as “lot C” and packet No. 8 was marked as “lot D”. A sample of two grams from each packet No. 1 to 5, totalling 10 grams, was drawn in order to make homogenous mixture of the contents and it was further divided into two representative samples of 5 grams each marking the same as mark A1 and A2. Two CRIMINAL APPEAL NO. 293-DB OF 2007 -7- representative samples of 5 grams each were also drawn from lots B, C and D and the said samples were marked as B1 and B2 from lot B, C1 and C2 from lot C and D1 and D2 from lot D. All the original representative samples mark A1, B1, C1 and D1 and duplicate samples mark A2, B2, C2 and D2 were put into separate small size polythene envelopes, which were stapled and sealed with the seal number “NARCOTICS CONTROL, BUREAU – 06”. Separate parcels of the residue were also prepared. The laser toy gun was also packed in a card board which was converted into a parcel and sealed with the aforesaid seal. The case property was handed over to Rakesh Goyal, Zonal Director, NCB. A panchanama giving the details of the seizure and respective seizure memos was prepared. Test memos were also prepared and the seal after use remained in the custody of the Seizing Officer. Intimation with regard to the seizure was sent to the higher authorities and intimation regarding the encounter was sent to Police Station Lopoke. The pistol recovered from Abad Ali along with the case, live cartridges and magazine were handed over to the S.H.O. of the said Police Station. Voluntary statement of Jagir Singh accused was recorded wherein he admitted the fact and mode of recovery and further admitted that he had contacted one Seema Chaudhary of Lahore on 5th, 6th and 7th of January, 2000 for sending the supply of narcotics at the instance of one Raman Pandit of New Delhi who was to smuggle the same to U.S.A. CRIMINAL APPEAL NO. 293-DB OF 2007 -8- Sukhwant Singh accused had also admitted the fact and mode of recovery from him in his statement which was recorded without any threat, inducement or pressure. The arrest of the accused was effected. Samples in original along with the covering letter were sent to the Central Revenue Control Lab., New Delhi through Rakesh Goyal, Zonal Director, NCB and the same remained in his custody till their deposit in the said Laboratory on 11.1.2000. The remaining case property and the duplicate samples were deposited in the Customs House Malkhana at Amritsar on 10.1.2000 for safe custody. As per report of the Chemical Examiner, the representative samples mark A1, B1 and D1 tested positive for diacetylmorphine called Heroin while representative sample mark C1 tested for Morphine, the contents of opium.” On completion of investigation, final report was put in Court for trial. The appellants along with Abad Ali were charge-sheeted, to which they pleaded not guilty and claimed trial. To prove its case, the complainant/ prosecution examined eight witnesses and also brought on record documentary evidence. On conclusion of prosecution evidence, statement of the appellants – accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, pleaded innocence and false implication. However, they led no evidence in defence. It has come on record that during trial Abad Ali, co-accused, escaped from custody of the police and was declared a proclaimed offender. CRIMINAL APPEAL NO. 293-DB OF 2007 -9- The trial Court, on appraisal of evidence, found the appellants – accused guilty and accordingly convicted and sentence them as found mentioned in earlier part of this order. Hence this appeal. Shri Ranjan Lakhanpal, Advocate, who has put in appearance on behalf of the appellants, has made an attempt to lay challenge to the judgment under challenge on the basis of minor technicalities here and there with regard to identity of the accused, manner of investigation and recovery of the contraband. However, he has failed to show any inherent defect in the judgment, which may necessitate any interference by us. It has come on record that the recovery in question was effected by Rakesh Goel (PW1). Above said witness had given an option to the appellants to get their search conducted in the presence of a gazetted officer or a Magistrate. However, both of them opted to be searched in the presence of the above said officer. Service of notice in that regard upon the appellants was proved on record and consent given by the appellant for search was accepted by the police under their signatures. Merely because in option given to them words”legal right” was not mentioned, it cannot be said that there was non-compliance with the provisions of Section 50 of the Act. Perusal of documents/ notices Ex. PC and PD shows that option given to the appellants regarding their search was clear and unambiguous. After understanding contents of the option, both signed the same and then opted for search in the presence of Rakesh Goel (PW1). Shri Lakhanpal has made an attempt to assail judgment under challenge on the ground that it rests solely on the testimony of the official witnesses and as such cannot be sustained. After going through contents of deposition made by Rakesh Goel (PW1), Inspector Malkiat Singh (PW2), CRIMINAL APPEAL NO. 293-DB OF 2007 -10- we are satisfied that statements made by the above said witnesses inspire confidence and the trial Court was justified in relying upon their testimony. In that regard, the trial Court has observed as under: “In view of aforesaid decision, the testimony of the official witnesses has to be considered in the same manner as that of any other witness and there is no principle of law that without corroboration of independent witness, their testimony cannot be relied upon. Rakesh Goyal (PW1) and Inspector Malkiat Singh (PW2) are the witnesses to the recovery and they have deposed in a fairly satisfactory manner with regard to the sequence leading to the recovery of incriminating articles from the possession of the accused. Jagir Singh and Sukhwant Singh accused have not put forth any reason of their false implication. The version put forth by the witnesses to the recovery inspires confidence which proves and establishes the material fact of recovery of incriminating articles from the possession of the accused. Furthermore, as per the opinions of the Chemical Examiner, the contents of the parcels of the article recovered from the possession of Jagir Singh accused were found to be containing diacetylmorphine, the contents of the parcels of the articles recovered from Sukhwant Singh were found to be containing diacetylmorphine and morphine and the contents of the sample parcel of the article recovered from Abad Ali were found to be containing diacetylmorphine. In these circumstances, it is amply proved and established that during the intervening night of 7/8.1.2000, 5 Kgs. of heroin was CRIMINAL APPEAL NO. 293-DB OF 2007 -11- recovered from Jagir Singh accused, one kg. of Heroin and one Kg. of opium was recovered from Sukhwant Singh accused. The contraband was thrown by Abad Ali and one of the associate from over the fence from Pakistan side to Indian side which were lifted by Jagir Singh and Sukhwant Singh accused, who were apprehended by the Naka party. The statements of the accused under section 67 of the Act were also recorded wherein they admitted the mode and manner of the recovery effected from them. The material on record indicates that the accused were acting in league and in furtherance of pre-hatched conspiracy they had arrived at a settled point on the border for the purpose of illegally importing the narcotics within the territory of India.” As per evidence on record, view expressed by the trial Court is perfectly justified. Further contention of counsel for the appellants that the trial Court has gone wrong in convicting and sentencing the accused – appellants for commission of offence under Section 307/34 IPC, is also liable to be rejected. The trial Court in paras No. 29 to 32 of the impugned judgment has correctly held that both the appellants were sharing common intention with Abad Ali , their co-accused, who had fired at the BSF party with an intention to cause death of member(s) of that party. Opinion expressed in above said paragraphs, by the trial Court, is perfectly justified and is in consonance with the evidence on record. CRIMINAL APPEAL NO. 293-DB OF 2007 -12- Counsel for the appellants has failed to indicate any error apparent on record or misreading of evidence by the trial Court. No case is made out for interference. Dismissed. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE January 30, 2009. DKC