-1- Criminal Appeal No.139-SB of 2003. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.139-SB of 2003. Date of Decision: April 06, 2010. Jarmal Singh and another ... Appellants VERSUS State of Punjab ... Respondent CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.M.S.Sidhu, Advocate, for the appellants. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Jarmal Singh and Jangir Singh (appellants) have filed this appeal against the judgment of conviction and the sentence order dated 22.11.2002 passed by the Additional Sessions Judge (Judge of Special Court), Muktsar, whereby they were convicted -2- Criminal Appeal No.139-SB of 2003. under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') Act and sentenced to undergo rigorous imprisonment for ten years and to pay Rs.1 lac, each as fine, in default whereof to undergo further rigorous imprisonment for six months. (It is worth-mentioning here that the charge against the appellants was framed under Section 15 of the Act for recovery of five bags of poppy husk from them. However, the appellants were convicted and sentenced under Section 18 of the Act. The mistake appears to be inadvertent). As per allegations of the prosecution, on 13.2.1997, a police party comprising Sub Inspector/Station House Officer Jaspal Singh, Assistant Sub Inspector Kirpal Singh and other police personnel was present on the bridge of the canal minor in the revenue limits of Village Dabwali Dhab in connection with picketing. At about 4.30 P.M, a car (Maruti 800) bearing registration No.DL-7-G-9004 was noticed coming from the side of Village Sham Khera, which was being driven by appellant Jarmal Singh. It was signalled to stop. On seeing the police party, the accused tried to turn the car back. However, the car was made to stop by the police party. Accused-appellant Jangir Singh was also found sitting in the car on the adjoining seat. Both the accused were told by the police that they wanted to conduct search of the car as they were suspected to be carrying some contraband article. The accused were given an option that they could get their search conducted before a Magistrate or a Gazetted Officer. Both the -3- Criminal Appeal No.139-SB of 2003. accused opted for their search to be conducted in the presence of a Gazetted Officer. Separate consent memos of the accused in this regard were prepared. A wireless message was sent to Kashmir Singh, Deputy Superintendent of Police, Gidderbaha, who reached the spot. On reaching the spot, the Deputy Superintendent of Police disclosed his identity to the accused and search of the car was conducted in his presence. Upon search, five bags, each containing 35 Kgs of poppy husk were recovered from the back seat as well as `boot' of the car. Two samples of 250 grams each were separated from each bag. The samples and the remaining poppy husk contained in five bags were separated sealed and taken into possession by the police. Rough site plan of the place of recovery was prepared. Ruqa was sent to the Police Station Sadar, Malout, and on its basis formal F.I.R was registered a against the accused under Section 15 of the Act. After registration of the case against the accused, they were formally arrested and memos containing grounds of their arrest were prepared. On 14.2.1997, the accused and the case property were produced before the Ilaqa Magistrate by Sub Inspector Jaspal Singh. The Magistrate authenticated the intactness of the seals on the parcels of the samples and the parcels of bulk contents. Thereafter, the case property was re-deposited in the `Malkhana'. Sample parcels were sent for analysis and vide report (Exhibit P.N) of the Chemical Examiner, their contents were found to be of poppy heads. -4- Criminal Appeal No.139-SB of 2003. Challan was then put in Court against the accused- appellants. Charge was framed against the appellants for the offence punishable under Section 15 of the Act. They did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined Constable Sham Lal (P.W.1), Head Constable Gurcharan Singh (P.W.2), Moharrir Head Constable Major Singh (P.W.3), Deputy Superintendent of Police Kashmir Singh (P.W.4), Sub Inspector Kirpal Singh (P.W.5) and Sub Inspector/Station House Officer Jaspal Singh (P.W.6). In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded false implication. They stated that nothing was recovered from them and that they were taken from their villages by the police and later on implicated in this case. However, no evidence was led by the appellants in their defence. The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case beyond reasonable doubt and that five bags, each containing 35 Kgs of poppy husk were recovered from the accused. The trial Court convicted and sentenced the appellants, as mentioned above. I have heard Mr. M.S. Sidhu, Advocate, appearing for the appellants and Mr. Vishal Munjal, Additional Advocate General, Punjab, appearing for the State and have gone through the records of the case. -5- Criminal Appeal No.139-SB of 2003. The facts of this case, as mentioned above, disclose that there is no doubt about the fact that the accused- appellants were in conscious possession of the quantity of poppy husk recovered from his possession. Learned counsel for the appellant argued that the case of the prosecution is based only on the statements of the official witnesses and no independent person was joined by the police party. According to the learned counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. It has been submitted that non- examination/non-joining of any independent witnesses has upset the balance of the prosecution case, making the alleged recovery doubtful. After giving a careful thought to the argument raised by the learned counsel, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the prosecution. Recovery in this case was effected per chance while the police party was patrolling the area. Otherwise also, normally the independent witnesses do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to create ill-will and enmity with criminals. In this case, the official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements. The accused-appellants -6- Criminal Appeal No.139-SB of 2003. have also not alleged any enmity with them (police officials). In this background, merely the fact that no independent witness was joined to witness the recovery, is not a good ground to discard the testimonies of the official witnesses. It is well-settled that the prosecution story cannot be discarded on the ground that independent witness has not been examined. To cap it all, the fact of recovery of five bags of poppy husk, each containing 35 kilograms of poppy husk, from the accused, which cannot be planted by the police, weighs with the argument raised by the learned counsel with regard to the non-joining of any independent witness. In these circumstances, non-joining of any independent witness by the police in this case does not at all affect the veracity of the prosecution case. It has further been argued by the learned counsel for the appellant that the samples were sent to the Chemical Examiner after twelve days of the alleged recovery of poppy husk from the accused. According to the learned counsel, it casts a doubt upon the veracity of the prosecution version. Again, I do not find any merit in this argument of the learned counsel. As mentioned while narrating the facts of the prosecution case, the link evidence in this case is complete. On 14.2.1997, the accused and the case property were produced before the Ilaqa Magistrate by Sub Inspector Jaspal Singh. The Magistrate authenticated the intactness of the seals on the parcels of the samples and the parcels of bulk contents. Thereafter, the case -7- Criminal Appeal No.139-SB of 2003. property was re-deposited in the `Malkhana'. When the case property was intact as had been authenticated by the Ilaqa Magistrate, it hardly matters if the samples were sent to the Chemical Examiner after a delay of some days. In this case, there was complete compliance of the mandatory provisions of Section 50 of the Act as Deputy Superintendent of Police Kashmir Singh, a Gazetted Officer, was called to the spot and the recovery of poppy husk was effected from the accused in his presence. For the aforesaid reasons, I do not find any merit in this appeal. The same is hereby dismissed. April 06, 2010. ( MOHINDER PAL ) ak JUDGE