Criminal Appeal No.1629-SB of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Appeal No. 1629-SB of 2005 Date of Decision: January 22 , 2010 Nirmal Singh and another ...........Appellants Versus State of Punjab ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: None for the appellants Mr.J.S.Sandhu,Assistant Advocate General, Punjab Sabina, J. Accused were convicted for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`the Act' for short) vide judgment dated 10.8.2005 passed by the Special Judge, Ferozepur. Vide order dated 11.8.2005, accused were sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rupees one lakh each. In default, they were ordered to further undergo rigorous imprisonment for one year each. Hence, the present appeal by the appellants-accused-Nirmal Singh and Gurmit Singh. The case of the prosecution, as noticed by the trial Court in paras 1 and 2 of its judgment, is reproduced here in below:- “The story put forth by the prosecution before this court against Criminal Appeal No.1629-SB of 2005 2 the accused is that on 25.2.1001 ASI Harpal Singh of PS Ghali Kurd alongwith SI Gurbax Singh, ASI Kimti Lal and other police officials, under the supervision of DSP Joginder Kumar Sub Division Ferozepur, were returning from main Talwandi Chowk to PS Ghali Khurd after doing the VIP duty. The police party headed by ASI Harpal Singh was in an official vehicle mark- Canter whereas DSP Joginder Kumar alongwith his personal security guards was following the said Canter on his separate official gypsy. At about 1 PM when the police party reached at T point on Moga Ferozepur main road in the area of Village Haraaj and opposite to the Dera of Radha Swami Satsang Beas, the secret informer stopped the vehicle of ASI Harpal Singh and informed him that accused Nirmal Singh @ Fauji and Gurmit Singh alias Geeta residents of village Wadha Ghar Bagha Purana were indulging in smuggling poppy husk by truck No.RJ-13-G- 4815 from Rajasthan and were selling the same in the area of Moga and on that day they were transporting poppy husk by loading the same in the aforesaid truck underneath the other loaded material and if naka was held on the main Moga Ferozpur road, both the accused could be apprehended alongwith poppy husk. Finding the secret information to be reliable ASI Harpal Singh sent ruqa to the police station on the basis of which formal FIR u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) was registered against the accused. After sending the ruqa ASI Harpal Singh disclosed the facts to DSP Joginder Kumar. In the meantime Ranjit Singh Sarpanch Criminal Appeal No.1629-SB of 2005 3 also came there and he was joined in the police party. The naka was held. In the meanwhile aforesaid truck No. RJ-13-G-4815 came from the side of Ferozepur. It was being driven by accused Nirmal Singh and accused Gurmit Singh was sitting by the side of the driver of the truck. The truck was signalled to stop. On stopping of the truck, the accused were interrogated regarding their identity. ASI Harpal Singh told the accused that he suspected poppy husk in their truck and therefore the truck was to be searched. He also apprised the accused that they were having legal right to opt their search either in the presence of some Gazetted Officer or some Magistrate. Both the accused opted their search in the presence of some Gazetted Officer. DSP Joginder Kumar told the accused that he was the Gazetted Officer of the police and was posted as DSP Sub.Division Ferozepur. He told the accused that they could opt their search from him. Both the accused opted their search in the presence of DSP Joginder Kumar regarding which two separate consent memos were prepared which were duly signed by both the accused separately and attested by DSP Joginder Kumar, private witness Ranjit Singh Sarpanch and other police officials. Under the supervision of DSP Joginder Kumar ASI Harpal Singh conducted search of the aforesaid truck of the accused in which the wheat bags were loaded. From underneath the bags of wheat straw eight bags of poppy straw were recovered. Each of the bags of poppy straw was weighed separately. Each of the bag was found to have contained 30 Kg. of poppy husk. ASI Harpal Singh separated one Criminal Appeal No.1629-SB of 2005 4 sample of 250 grams of poppy husk from each of the recovered bags and the remaining bulk contents of 29 kg. 750 grams of each bag were put into the same bags and their separate parcels were prepared. All the parcels of the samples and parcels of the bulk contents were sealed by ASI Harpal Singh with his seal marks-HS and by DSP Joginder Kumar with his seal mark-JK. Both of them prepared separate samples of their seals. ASI Harpal Singh handed over his seal after use to SI Gurbax Singh whereas the DSP retained his seal with him. The whole of the case property alongwith 316 bags of wheat straw were taken into possession by preparing separate recovery memo. The documents of the truck and consignment were also taken into possession by preparing separate recovery memo. The truck was also taken into possession by preparing separate recovery memo. From the personal search of accused Nirmal Singh a sum of Rs.1000/- and one driving licence was recovered which was also taken into possession by preparing separate personal search memo. ASI Harpal Singh prepared site plan of the place of recovery. He formally arrested both the accused and told them the grounds of the arrest regarding which separate grounds of arrest memos were prepared. Intimation was sent to the relatives of the accused regarding their arrest regarding which separate memos were prepared. ASI Harpal Singh recorded statements of the witnesses at the spot and on coming back to the police station he kept the case property in his custody. The case property was produced before the Ld.Magistrate on 26.2.2001 and the Ld. Magistrate Criminal Appeal No.1629-SB of 2005 5 passed authentication order. Later on the sample parcel and sample of seals were sent to the office of Chemical Examiner and on receipt of report of Chemical Examiner the accused were challaned to face trial for their having committed offence punishable u/s 15 of the Act. 2.After submission of the challan copies of the documents were supplied to the accused and charge u/s 15 of the Act was framed against both the accused to which they pleaded not guilty and claimed trial." None has appeared on behalf of the appellants today. On the last date also, none had appeared on behalf of the appellants. I have gone through the record of the case carefully with the able assistance of the learned counsel for the State. In the present case, appellant-Nirmal Singh was driving the truck in question,whereas, the appellant-Gurmit Singh, was sitting in the cabin of truck, which was stopped by PW1 DSP Joginder Kumar along with his police officials, on the basis of suspicion. Both the appellants reposed confidence in PW1 and opted to get their search effected in his presence. On search 8 gunny bags of poppy husk were recovered. Each bag weighed thirty kilograms. Samples were drawn out of each gunny bag and were sealed with seal bearing impressions `HS' and `JK'. Samples and the bags were taken in police possession. PW1 DSP Joginder Kumar, PW2 SI Gurbax Singh and PW3 SI Harpal Singh have proved the factum of recovery of the contraband from the appellants. PW3 SI Harpal Singh, PW5 Constable Kewal Singh have established the link evidence. Although the independent witness-Ranjit Singh has been examined by the appellants Criminal Appeal No.1629-SB of 2005 6 in their defence but his statement fails to advance the case of the appellants. The said witness denied the alleged recovery in his presence, in his examination-in-chief, but has admitted his signatures on Ex.P1 to Ex.P8. Apparently, the said witness had been won over by the appellants during the pendency of the trial. Since the prosecution had been successful in proving its case, the trial Court had rightly convicted and sentenced the appellants under Section 15 of the Act. No ground for interference is made out. Dismissed. (Sabina) Judge January 22, 2010 arya