Crl.Appeal No. 2115-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.2115-SB of 2004 Date of decision: 12.1.2011 Baltej Singh … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.Naveen Sharma, Advocate, with Mr.Kuldeep V. Singh, Advocate, for the appellant. Mr.R.S.Sidhu, AAG, Punjab. … JORA SINGH, J. Baltej Singh preferred this criminal appeal to challenge the judgment of conviction and order of sentence dated 23.9.2004 passed by Judge, Special Court, Mansa, in Sessions Case No. 6 of 7.1.2004, arising out of FIR No. 125 dated 19.7.2003 under Sections 15 and 25 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act’), P.S. Sadar, Mansa. By the said judgment, he was convicted under Section 15 of the Act and sentenced to undergo RI for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for one year. Amrik Singh, co-accused, was acquitted of the charges levelled against him. Against acquittal, no appeal has been preferred by the State. Prosecution story, in brief, is that on 19.7.2003, police party headed by SI Lal Singh in connection with patrol duty was going towards Crl.Appeal No. 2115-SB of 2004 2 Village Khokhar Kalan from Village Bhaini Bagha, then sighted one Maruti Car No. HR-05-4566 on the bridge of canal minor and was signalled to stop. On enquiry, driver of the car disclosed his name as Baltej singh @ Balwinder singh son of Hardev Singh, r/o Village Ghukan Kalan. In the meantime, Baldev Singh son of Natha Singh came at the spot and was joined by the police party. IO suspected some narcotic substance in two bags lying on the back seat of the car. Offer was given to the accused as to whether he wanted search of the bags before a Gazetted Officer or a Magistrate. As per reply of the accused, Gazetted Officer was summoned at the spot. DSP Teja Singh along with his gunman came. He disclosed his identity to the accused and gave offer as to whether he wanted search of the bags to be conducted in his presence or not. Then accused agreed to be searched in his presence. As per instructions of DSP, IO had searched the bags and on search of bags, same were found to be containing poppy straw. Two samples of 100 grams each were separated from each bag and remaining poppy straw in each bag was found to be 32.800 kgs. Four samples and remaining poppy straw in two bags were sealed separately by the IO with seal bearing impression `LSC’. Case property was taken into police possession vide separate memo attested by the witnesses. No document from the car was recovered. Car was also taken into police possession. Ruqa was sent to the police station, on the basis of which, formal FIR was registered. On return to the police station, case property along with accused was produced before SI/SHO Amarjit Singh, who after verifying the investigation, affixed his own seal bearing impression `AS’ on the sealed parcels. Seal impression was prepared separately. Case property was Crl.Appeal No. 2115-SB of 2004 3 kept by the SHO in his custody. Two sealed parcels were deposited in the office of FSL, Punjab, Chandigarh, for analysis. As per report of FSL, contents of samples were found to be poppy straw. After completion of investigation, challan was presented in Court. Accused Baltej Singh was charged under Sections 15 of the Act whereas Amrik Singh was charged under Section 25 read with Section 15 of the Act, to which they pleaded not guilty and claimed trial. Prosecution examined number of witnesses. PW1 SI Amarjit Singh was serving as SHO and stated that accused along with case property was produced before him by the IO. After verifying the investigation and enquiry from the accused, he had affixed his own seal on the sealed parcels bearing impression `AS’. Case property was kept by him in his custody. On the next day, he had produced the accused along with case property before the Ilaqa Magistrate. Two sealed parcels were handed over to Constable Jasbir Singh for depositing in the laboratory. PW2 Constable Jasbir Singh tendered his affidavit (Ex.PF). PW3 Jatinder Singh, Clerk, DTO, Bathinda, stated that as per record, Car No. HR-05-4566 was in the name of Amrik Singh. PW4 SI Lal Singh is the Investigating Officer. PW5 ASI Jagdish Kumar was with the police party headed by SI Lal Singh and deposed how two bags containing poppy straw were recovered from the car driven by the accused. PW6 DSP Teja Singh has also supported the version of IO and recovery witness. Crl.Appeal No. 2115-SB of 2004 4 PW7 HC Hardev Singh stated that he was with the police party headed by ASI Gurdarshan Singh. Raid was conducted to apprehend Amrik Singh. He was arrested in this case on 26.12.2003. PW8 ASI Gurdarshan Singh stated that on 21.12.2003, he had raided the house of Amrik Singh but he was not available. On 26.12.2003, Amrik Singh was arrested. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of Baltej Singh was that he was brought from the house of Gurditta Singh on 18.7.2003 at 11.30 AM. Nothing was recovered from him. Defence version of Amrik Singh, who was acquitted by the trial Court, was that car was sold by him to Jaswinder Kaur daughter of Gurbax Singh. He was not the owner of the car at the time of alleged occurrence. In defence, DW1 Hardev Singh stated that he was Clerk of Sukhdev Singh Sidhu. Amrik singh was known to him. On 24.11.2002, Amrik Singh had sold his Car No. HR-05-4566 to Jaswinder Kaur daughter of Gurbax Singh. Affidavit of Amrik Singh regarding sale of car was in his hand, copy of which is Mark `A’. DW2 Gurdip Singh stated that he was the Lambardar of Village Bhagi Bander. Two years back, Amrik Singh sold his Car No. HR-05-4566. DW3 Paramjit singh stated that he along with Baltej Singh came to the house of Gurditta Singh, Mistri, to construct a shed. Mother of Baltej Singh was residing with Gurtej Singh, tenant of Gurditta Singh. She was having illicit relations with Gurtej Singh. On seeing his mother, Baltej Crl.Appeal No. 2115-SB of 2004 5 Singh started quarrelling there. When they were coming back, then police had caught hold Baltej Singh. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellant argued that independent witness was with the police party but he was not produced. Seal after its use was not handed over to independent witness. Secondly, there is a delay of 7 days in sending the sealed parcels to the office of Chemical Examiner. Car No. HR-05-4566 used to transport poppy straw was not produced at the time of trial. In fact, appellant was brought from the house of Gurditta Singh and later on, false implication. Evidence on the file was not properly scrutinized by the trial Court. Learned State counsel argued that no doubt, independent witness was with the police party but he was given up as won over by the appellant. In case, story was not genuine, then independent witness could easily be produced in defence. After recovery, case property was sealed by the IO with his own seal bearing impression `LSC’. On return to the police station, case property was produced before the SHO, who after verifying the investigation, also affixed his own seal on the sealed parcels bearing impression `AS’. Seal impression was also prepared separately. On the next day, case property along with appellant was produced before the Ilaqa Magistrate. Seals on the sealed parcels were found intact and tallying with the seal impression. No question of tampering with the case property. Crl.Appeal No. 2115-SB of 2004 6 Vehicle used to transport the contraband was owned by Amrik Singh but he had sold the same. No prejudice was caused to the appellant in case Car No. HR-05-4566 was not produced by the prosecution at the time of trial. First submission of learned defence counsel for the appellant was that independent witness, namely, Baldev Singh was joined but he was not examined by the prosecution. Seal after its use was not handed over to him. But after going through the evidence on file, I am of the opinion that with non-examination of Baldev Singh, no prejudice was caused to the appellant. Baldev Singh was on his bicycle when requested to join the police party. Seal after its use was handed over to him. When police party is on patrol duty and there is a request to join independent witness, then no body agrees to join the party. If some body agrees to join, then fails to appear in Court to support the prosecution story and if appears in Court, then rarely supported the prosecution story. If Baldev Singh was not with the police party, then he could easily be produced in defence. Before recovery, police officials had no enmity with the appellant. So, without any enmity, there was no idea to implicate the appellant. Appellant when examined under Section 313 Cr.P.C., then failed to explain how he was in possession of Car No. HR-05-4566. With non-examination of Baldev Singh, no prejudice was caused to the appellant. In Balbir Kaur vs. State of Punjab, 2009(4) Recent Apex Judgments 330, it was held as under: “Independent witness- Recovery of two bags of poppy straw- Only one independent witness was present- This witness won over and accused examined him in defence- Cannot be said that the search and recovery are in any manner vitiated.” Crl.Appeal No. 2115-SB of 2004 7 Recovery was effected on 19.7.2003 by the police party headed by SI Lal Singh. Two samples weighing 100 grams each were separated from each bag and the remaining poppy straw in each bag was found to be 32.800 kgs. Recovery was effected in the presence of Gazetted Officer. Two bags containing poppy straw were being carried by the appellant in Car No. HR-05-4566. Recovery was from the bags. Section 50 of the Act was not applicable. Even then, offer was given to the appellant by the IO as to whether he wanted the search of the bags before a Gazetted Officer or a Magistrate. As per reply of the accused, Gazetted Officer was summoned at the spot. Gazetted Officer disclosed his identity to the appellant and gave offer as to whether he wanted search of the bags to be conducted in his presence or not. Then appellant agreed the bags to be searched in his presence. As per instructions of DSP, IO had searched the bags and on search of bags, same were found to be containing poppy straw. Two samples of 100 grams each were separated from each of the bag and remaining poppy straw in each bag was found to be 32.800 kgs. Four samples and remaining poppy straw in two bags were sealed separately by the IO with seal bearing impression `LSC’. Case property was taken into police possession vide separate memo attested by the witnesses. Seal impression was prepared separately. Seal after its use was handed over to independent witness. On return to the police station, case property along with appellant was produced before SI/SHO Amarjit Singh, who after verifying the investigation, affixed his own seal bearing impression `AS’ on the sealed parcels. Seal impression was prepared separately. Case property was kept by the SHO in his custody. On the next day, case property along with appellant was produced before the Ilaqa Magistrate. Inventory was Crl.Appeal No. 2115-SB of 2004 8 prepared. After production of case property before the Ilaqa Magistrate, case property was kept by the SHO in his custody. On 24.7.2003, two sealed parcels were sent to the office of FSL, Punjab, Chandigarh, for analysis. As per report of FSL, seals on the sealed parcels were found intact and tallying with the seal impression and contents of samples were found to be poppy straw. As discussed earlier, police officials had no enmity with the appellant. So, delay of 7 days in sending the sealed parcels in the laboratory is not fatal and nothing to presume that case property was tampered with. Last submission of learned defence counsel for the appellant was that Car No. HR-05-4566 from which recovery was effected was not produced at the time of trial. But submission of learned defence counsel for the appellant is without any force. Car was not the incriminating article. Two bags, each weighing 33 kgs. poppy straw, were recovered. Case property was produced in Court when witnesses appeared. When car was not the incriminating article, then with the non-production of car at the time of trial, no reason to ignore the statement of recovery witness when no prejudice was caused to the appellant. Defence version of the appellant was that he was brought from the house of Gurditta Singh and later on, was implicated. But Gurditta Singh was not examined in defence. In case, appellant was brought from the house of Gurditta Singh, then he should have sent complaints to different authorities but till today, no complaint to any authority. No suggestion to the recovery witness or the IO that appellant was brought from the house of Gurditta Singh, Mistri. That means, defence version is an after thought. Crl.Appeal No. 2115-SB of 2004 9 In the light of above discussion, I am of the opinion that evidence on file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is ordered to be upheld. For the reasons recorded above, appeal without merit is dismissed. Appellant is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which, concerned authority/CJM, Mansa, to issue re-arrest warrants to undergo the remaining period of sentence. 12.1.2011 ( JORA SINGH ) pk JUDGE