Criminal Appeal No. 13-SB of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Appeal No. 13-SB of 2004 Date of Decision: September 16, 2010 Harvail Singh ...........Appellant Versus State of Haryana ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.K.S.Dhaliwal,Advocate for the appellant Mr.Satyavir Singh Yadav, Deputy Advocate General,Haryana Sabina, J. Accused-Harvail Singh was convicted for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`the Act' for short) vide judgment dated 25.11.2003 passed by the Judge Special Court, Kaithal. Vide order dated 27.11.2003, accused was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-. Hence, the present appeal by the appellant-accused. The case of the prosecution, as noticed by the trial Court in para 2 of its judgment, is reproduced here in below:- “Briefly stated, the facts of the prosecution case are that on 5.11.2000, police party headed by Sub Inspector, Shamsher Singh (PW6), the then SHO of the Police Station, Guhla was present at Criminal Appeal No. 13-SB of 2004 2 Bus stand,Sarola. Roop Singh, ASI alongwith Constable Surinder Kumar also came there . Sub Inspector Shamsher Singh was just talking with him, in the meantime a secret information was received that Harvail Singh is carrying the poppy husk loaded contained in the bags, in the tractor trolly. He is driving the tractor and Gurnam Singh, Surinder alias Chindra, Baldev alias Balla are also smuggling the poppy husk alongwith him in the said tractor-trolly on a motor-cycle and all of them are carrying the poppy husk for supplying the same to the Punjab. If some nakabandi is made, then all the five can be apprehended alongwith the poppy husk in a tractor-trolly. At this information, DSP Guhla was informed through wireless message and requested to reach on the spot. Sub Inspector Shamsher Singh alongwith the officials made a nakabandi at Sarola bus stand, in the meantime Dass Ram son of Ralla Ram, Resham Singh, Panch and Mehal Singh, residents of Sarola also reached on the spot. Sub Inspector was just talking with them, in the meantime, one tractor trolley marka Swaraz 735 green in colour bearing registration No. PBY- 6148 being driven by Harvail Singh was seen coming. In the said tractor-trolley, Gurnam Singh, Surinder Singh @ Chinda and Baldev Singh were sitting. Jasbir Singh was following the said tractor trolley on the motor-cycle. On coming close, the said tractor-trolley was signalled to stop. All the three persons sitting in the tractor-trolley jumped from the tractor-trolley and escaped towards the fields. Jasbir Singh reversed his motor cycle and escaped towards the village Daba. The persons who escaped were Criminal Appeal No. 13-SB of 2004 3 known to the IO Shamsher Singh. Harvail Singh, who was driving the tractor was apprehended on the spot. Suspecting some intoxicant in the gunny bags loaded in the tractor-trolley, a notice under Section 50 of the NDPS Act Ex.PE was served to accused Harvel Singh and offer was given to him to give the search in the presence of a Magistrate, Gazetted Officer or to the IO himself. In reply to the notice, accused opted to give search in the presence of a Gazetted Officer. Notice Ex.PE and consent memo Ex.PE/1 were thumb marked by accused Harvail Singh and signed by ASI Prem Singh ASI Roop Singh. The witnesses Resham Singh, Mehal Singh etc. who were present on the spot were asked to join the investigation, but they expressed their inability and went away from the spot. Thereafter, DSP Guhla Om Parkash (PW7) reached on the spot and he was apprised about the facts of the case. The DSP Om Parkash directed Sub Inspector Shamsher to count and check the gunny bags loaded in the trolley. As per direction of the DSP, the checking of the trolley made. Out of the same, 33 gunny bags containing the poppy husk were recovered. Out of each gunny bag, one sample of 200 grams poppy husk each was separated and converted into separate parcels. On weighing, the 32 gunny bags were found containing 40 kilograms 800 gram poppy husk each and one gunny bag was containing 23 kilograms 800 grams. The gunny bags were also converted into separate parcels. Thereafter, all the 33 parcels and all the 33 residue parcels were sealed with seal O.P. Of the DSP and SS of the IO. The sample seals were retained and DSP retained his seal himself, Criminal Appeal No. 13-SB of 2004 4 whereas the IO Shamsher Singh handed over his seal to ASI Prem Singh after use. Thereafter, sample parcels, residue parcels alongwith the tractor trolley were taken into possession vide recovery memo Ex.PF which was attested by the DSP and signed by ASI Prem Singh and ASI Roop Singh. A ruqqa Ex.PB was sent to the polcie station, where on the basis of the same, a formal FIR Ex.PB/1 was recorded." After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. In the present case, as per the prosecution story, appellant was driving tractor trolly in question on 5.11.2000. PW6 Shamsher Singh was present at the spot along with the police party and he received a secret information that the appellant along with four others had loaded poppy husk in the tractor trolley and were coming from the side of Village Dhaba. On the basis of the said secret information, the tractor trolley driven by the appellant was stopped . All the persons travelling in the tractor trolley were already known to PW6. Appellant was apprehended at the spot. Appellants Baldev Singh, Surinder Singh and Gurnam Singh were sitting in the trolley. Jasbir Singh was following the tractor trolley on a motor cycle. Jasbir Singh managed to escape from the spot by reversing his motor cycle. Appellant was given option to get the search of the tractor trolly effected from PW6 either in the presence of a Gazetted Officer or a Magistrate. Appellant opted to get the search effected in the presence of a Gazetted Officer. Thereafter, Om Parkash DSP Guhla came to the spot and the tractor trolley was searched. On search of the tractor trolley 33 gunny bags of poppy husk were recovered. 200 grams of poppy husk was separated from each bag as a Criminal Appeal No. 13-SB of 2004 5 sample. The residue poppy husk in 32 bags on weighment came to 40 kilograms 800 grams in each bag and in one bag, residue poppy husk weighed 23 kilograms 800 grams . The samples were made into sealed parcels. The residue poppy husk were also made into two sealed parcels. Samples as well as the bags containing remaining poppy husk were taken in possession . PW7 Om Parkash has corroborated the statement of PW6. The prosecution witnesses were acting in discharge of their official duty and had no reason to falsely involve the appellant in this case. The recovery of 33 bags of poppy husk from tractor trolley driven by the appellant has been duly established by the prosecution witnesses PW6 and PW7. Since the appellant was driving the tractor trolley in question, it is evident that the appellant was in conscious possession of the contraband. Link evidence has been duly established by the prosecution in this case. PW1 S.K.Nagpal deposed that on 7.11.2000, 33 parcels duly sealed had been received in the Laboratory through HC Balwan Singh. Seals were found in tact. On analysis in the Laboratory, it was found that the samples contained poppy straw. PW3 Balwan Singh has corroborated the statement of PW1 to the effect that he had deposited the samples with the Laboratory. PW4 MHC Jaipal has deposed that on 5.11.2000, 33 samples as well as 33 bags of poppy husk had been deposited with him by SI Shamsher Singh. On 7.11.2000, he had handed over the samples to Constable EHC Balwan Singh for depositing the same with the Laboratory. After depositing the same with the laboratory, the said official had handed over the receipt to him. Thus, the said witnesses have duly established the Criminal Appeal No. 13-SB of 2004 6 link evidence in this case. DW1 Ashwani Kumar deposed that a complaint had been filed by Sukha Singh and appellant Harvail Singh Ex-sarpach was examined as witness in that inquiry. In his cross-examination, he deposed that the complaint moved by Sukha Singh was found to be false. During inquiry, DW2 Diwan Singh Sarpanch deposed that Harvail Singh had remained a Panch of village for three years and Sarpanch of Village for five years. Harvail Singh was having his own tractor for the last five years. He had gone to Police Station Guhla along with Gurmukh Singh Ex-Sarpanch to inquire as to why the appellant had been detained in this case but no reply was given by the Police . DW3 Darshan Singh deposed that the appellant was Ex- sarpanch of their village and that he had gone to Police Station Ghula in connection with some personal work about three years ago and he found that the appellant was present in the Police Station. He informed Diwan Singh Sarpanch and Gurmukh Singh, Ex Sarpanch and Puran Singh brother of the appellant qua his detention in the Police Station. DW4 Gurmukh Singh has deposed that about three years back, he had gone to the police station with Diwan Singh, Kartar Singh Puran Singh and Darshan Singh and inquired as to why Harvel Singh has been detained. Police informed them that they will be told qua detention on the next day. Appellant-Harvel Singh had been illegally arrested in this case and due to fear of their own arrest, they had returned back to the village. The witnesses examined by the appellant in his defence fail to advance the case of the appellant as the said witnesses are co-villagers / Criminal Appeal No. 13-SB of 2004 7 brother of the appellant and might have deposed in favour of the appellant to help him. The appellant was apprehended with 33 bags of poppy husk. Since a huge quantity of poppy husk has been recovered from the appellant, the possibility that he has been falsely involved in this case does not arise. The argument raised by the learned counsel for the appellant that since the appellant had appeared as a witness in the complaint moved by Sukha Singh and due to this reason he has been falsely involved in this case also fails to inspire confidence. The complaint moved by Sukha Singh after inquiry was found to be false. Rather in this case prosecution has been successful in proving its case against the appellant. In these circumstances, the learned trial Court had,thus, rightly convicted and sentenced the appellant under Section 15 of the Act. As per the custody certificate available on record, the appellant is also involved in another case under the Act. Hence, no ground for interference is made out. Dismissed. ( Sabina ) Judge September 16, 2010 arya