Crl.A. No.805-DB of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.805-DB of 2006 DATE OF DECISION: November 6, 2009 MOHD. NADIM ETC. ...APPELLANTS VERSUS STATE OF HARYANA ...RESPONDENT CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE JITENDRA CHAUHAN. PRESENT: MR. AMAN CHAUDHARY, ADVOCATE AND MR. SAURABH BAJAJ, ADVOCATE FOR THE APPELLANTS. MR. S.S. GORIPURIA, SR.DAG, HARYANA. ASHUTOSH MOHUNTA, J. The challenge in this appeal is to the judgement and order of sentenced dated 14.8.2006, passed by the Judge, Special Court, Karnal vide which the appellants Mohd. Nadim and Mohd. Najim have been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as 'NDPS Act') and have been sentenced to undergo R.I. for a period of 15 years and to a pay a fine of Rs.1,50,000/- each and in default of payment of fine, the convicts were further ordered to undergo R.I. for a period of 1½ years. Briefly the facts of the case are that on 2.1.2005, ASI Rattan Singh alongwith some other Police officials was present at Namaste Chowk, G.T. Road, Karnal in connection with crime detection. There a secret informant met them and informed that Mohd. Shokin resident of Chosana Crl.A. No.805-DB of 2006 -2- and Mohd. Liyakat resident of Taprana, Police Station Jhijana, District Muzaffar Nagar were selling poppy husk. They were also informed that Mohd. Liyakat had a truck bearing No.HR38E-0797 on which Mohd. Najim son of Mohd. Rasid resident of Tanda, Police Station Chaproli, District Baghpat (U.P.) is driver and Mohd. Nadim S/o Mohd. Abbas, resident of village Taparana, Police Station Jhijana, District Muzaffar Nagar was cleaner. These persons were indulging in the illegal trade of bringing poppy husk from Rajasthan and they took the same to Chosana, Police Station Jhijana via Manglore Barrier. The secret informant informed ASI Rattan Singh that all the aforementioned persons had gone to Rajasthan on 31.12.2004, for bringing bags of poppy husk and they would be coming back alongwith bags of poppy husk and would be passing through Sector 4 and 5, Urban Estate, Karnal and if a nakabandi was laid at any place at Sector 4 and 5, then all the aforementioned four persons could be apprehended with the aforementioned truck which would be loaded with bags of poppy husk. Finding the information to be reliable, ASI Rattan Singh sent a ruqqa to Police Station City Karnal through Constable Vijender Singh for registration of a case, as a prima facie under Section 15 of the NDPS Act was made out. Thereafter ASI Rattan Singh prepared a raiding party and tried to join Narender Batra resident of Krishna Nagar, Karnal, Sudershan Kumar, M.C., Ward No.18, Karnal, Jaswant Singh, Lambardar of village Ranwar and Om Parkash resident of Moti Nagar, Karnal. These persons expressed their inability to become witnesses and hence they were freed. Thereafter a nakabandi was laid in Sector 4 & 5, Urban Estate, Karnal on the bridge of Ganda Naala. Crl.A. No.805-DB of 2006 -3- At about 1.40p.m. on 2.1.2005, the aforesaid truck was spotted and it was signalled to stop. On seeing the Police party two persons, whose names were later on came to be known as Mohd. Shokin and Mohd. Riyasat, jumped out from the truck and managed to flee from the spot. However, Mohd. Najim who was sitting on the driver seat of the truck and Mohd. Najim who was sitting by the side of the driver seat were apprehended. As the Investigating Officer suspected that they may have some narcotic in the truck, so he served notice (Ex.P8) to both the accused for their option to give search of the truck either in the presence of a Gazetted Officer or a Magistrate. Both the accused opted to give search of the truck in the presence of a Gazetted Officer. Accordingly DSP Surender Pal Singh was informed of the facts of the case and was requested to come at the spot. He arrived at the spot and gave directions to the Investigating Officer to conduct the search of the truck. On search 52 bags were found in the truck which contained poppy husk. From each bag 2 samples of 100 gms. each were separated and thereafter the bags were weighed. On weighment of each bag, the same were found containing 39 kgs. 800 gms of poppy husk. The samples and the remaining contraband in the bags were sealed separately and were taken into possession vide memo duly attested by the witnesses. Site plan of the place of recovery was also prepared. On return to the Police Station, the sealed parcels were produced before the Station House Officer who verified the facts of the case from the accused and the witnesses and affixed his seal on the samples and the case property was deposited. Thereafter, in due course, the samples were sent to the Forensic Science Laboratory, Madhuban and after completion of the investigation, the challan was presented in the Court. Crl.A. No.805-DB of 2006 -4- After complying with the provisions of Section 207 of Cr.P.C. both the accused were charge-sheeted for commission of offence punishable under Section 15 of the NDPS Act to which they pleaded not guilty and claimed trial. In order to prove its case against the accused, the prosecution examined as many as 7 witnesses. PW2 S.I. Sarif Singh deposed that on 3.1.2005, while he was working as SI/SHO, Police Station City Karnal, ASI Rattan Singh produced before him both the accused, namely Mohd. Najim and Mohd. Nadim alongwith the case property, i.e.104 samples and 52 bags alongwith truck bearing No.HR38E-0797, duly sealed with the seal of ‘RS’ and ‘RSPS’ alongwith sample seals. He verified the investigation from the accused and the witnesses and affixed his seal on the parcels and residue bags and directed ASI Rattan Singh to deposit the case property with MHC. PW-4 Constable Lakhwant Singh tendered in evidence his affidavit (Ex.P4) and also deposed that he deposited the samples in Forensic Science Laboratory, Madhuban. PW5 Surender Pal Singh stated that on 2.1.2005, he was posted as DSP (HQ), Karnal and on that day he received a V.T. Message from ASI Rattan Singh regarding the case. He went to the place of recovery at bridge over Ganda Nala situated on Sectors 4 & 5, Urban Estate, Karnal and on reaching there, ASI Rattan Singh met and made aware of the facts of the case. This witness disclosed his identify to both the accused. He also made an enquiry from the accused and on enquiry the accused disclosed that the owner of the truck is Mohd. Rifakat and that poppy straw lying in the truck belongs to Mohd. Rafeek who has ran away from the spot. On his Crl.A. No.805-DB of 2006 -5- directions the truck was searched and after removing the Tarpolene, 52 bags of jute containing poppy husk were recovered from the back of the truck. All the bags were stitched. The bags were removed from the truck on the ground and while opening the same were found to contain poppy straw. After arranging the weighing material, ASI Rattan Singh separated 2 samples weighing 100 gms. each from each of the 52 bags and they were made into sealed parcels. This witness has further stated that ASI Rattan Singh took the entire case property detailed above alongwith the truck and the samples seals were also taken into possession vide memo (Ex.PL) which was signed by ASI Virender Singh and HC Shiv Kumar. The prosecution examined Virender Singh, ASI, CIA Staff, Karnal as PW6. He stated that on 2.1.2005, ASI Rattan Singh received a secret information that Mohd. Shokin and Mohd. Rifakat and the two accused Mohd. Najim and Mohd. Nadim had gone to Rajasthan on 31.12.2004 and they would be returning back alongwith poppy straw and if a trap was laid, then they could be apprehended. On finding the information to be reliable, a trap was laid between Sectors 4 & 5, Urban Estate, Karnal. After sometime of the laying of the trap, a truck No.HR38E-0797 came from the side of Section 4 and two persons jumped out of the truck and ran away. Later on he came to know the names of those persons as Mohd. Shokin and Mohd. Rifakat. The other two persons, namely, Mohd. Najim and Mohd. Nadim were apprehended. A message was sent to Surender Pal Singh, DSP (HQ), Karnal and after his arrival the truck was searched from which 52 bags, weighing 40 kgs. each, containing poppy husk, were recovered. ASI Rattan Singh, CIA Staff, Karnal deposed as PW7. He Crl.A. No.805-DB of 2006 -6- stated that on 2.1.2005, he received a secret information that Mohd. Shokin, resident of Chosana and Mohd. Liyakat resident of Taprana, Police Station Jhijana were dealing in selling of poppy husk and they had gone to Rajssthan for bringing poppy husk and they would be coming back on 2.1.2005, in truck No.HR28E-0797 which would be driven by Mohd. Najim son of Mohd. Abbas, resident of Tanda, Police Station Chapra, and Mohd. Nadim would be accompanying him as cleaner and if a trap was laid, then poppy straw could be recovered from the truck. He alongwith Police officials laid nakabandi at the bridge of Ganda Nala in Sectors 4 & 5, Urban Estate, Karnal and at about 1.40 p.m., the aforementioned truck was spotted coming from the side of Sector 4. The driver of the truck stopped the same at about 30/35 paces from the nakabandi point and within his sight two persons, whose names were later on known as Mohd. Shokin and Mohd. Rifakat, jumped from the truck and succeeded in running away. This witness alongwith Police officials apprehended the truck and found that the accused Mohd. Najim was sitting on the driver seat and Mohd. Nadim was sitting by his side on the conductor’s seat. Thereafter, both the apprehended persons were given notice (Ex.P8) stating therein that he had credible information that the truck in question was having the bags of poppy straw and the truck could be searched in the presence of a Magistrate or a Gazetted Officer. The accused desired to have the search conducted by a Gazetted Officer. Accordingly, a V.T. Message was sent. DSP Surender Pal Singh reached the spot after some time and got conducted the search in his presence. From the truck, 52 bags containing poppy straw were recovered. Two samples from each bag were drawn and the same were sealed. After completing the formalities, the accused were formally arrested Crl.A. No.805-DB of 2006 -7- and the challan was submitted in the Court. Thereafter, the prosecution evidence was closed. Both the accused were examined under Section 313 Cr.P.C. wherein they denied the allegations of the prosecution. They also examined DW1 Mohd. Abbas, father of the accused Mohd. Nadim, who stated that both the accused have been falsely implicated in the case. The trial Court after going through the entire evidence held that both the accused were apprehended on the spot and 52 bags containing poppy straw were recovered from the truck in which they were traveling. A search was conducted in the presence of a Gazetted Officer. Finding the evidence led by the prosecution to be credible, the trial Court convicted both the accused under Section 15 of the NDPS Act and sentenced them to undergo R.I. for 15 years and to pay a fine of Rs.1,50,000/- each. Counsel for the appellant has firstly contended that no independent witness from the public was joined while conducting the search and hence the evidence of the official witnesses cannot be relied upon. It has come in evidence that ASI Rattan Singh had requested Narender Batra, Sudershan Kumar, Jaswant Singh and Om Parkash to join the investigation, but all these persons expressed their inability. Moreover, the testimony of the official witnesses cannot be brushed aside specially, when the search was conducted in the presence of Surender Pal Singh, DSP who was a Gazetted Officer. Apart from the above, 52 bags of poppy straw was recovered from the truck which was being driven by Mohd.Najim and Mohd. Nadim was the cleaner. and each bag contained 40 kgs. of poppy straw. Such a huge quantity obviously cannot be fasely planted on any person. Both the accused persons were apprehended on the spot by the Crl.A. No.805-DB of 2006 -8- Police officials and the search was conducted in the presence of a Gazetted Officer. The raiding party was formed on receipt of secret information which turned out to be absolutely true and correct. The testimony of PW6 ASI Virender Singh, one of the witnesses of the recovery, also shows that the contraband was recovered from the possession of both the accused and the defence has failed to create any dent in his deposition. This witness was subjected to lengthy cross-examination, but nothing could be brought out to falsify the veracity of his testimony. The testimonies of PW-6 ASI Virender Singh and PW7 ASI Rattan Singh have further been supported by PW5 DSP Surender Pal Singh who has deposed that on receipt of information from ASI Rattan Singh, he went to the spot and the poppy straw was recovered from the truck in his presence. He has also stated that both the accused were present at the time of conducting the search. Counsel for the appellants has also contended that the prosecution has failed to prove the conscious possession of the contraband by both the accused. Learned counsel submits that the accused Mohd. Najim was the driver of the truck and Mohd. Nadim was the cleaner and they did not know that the bags loaded in the truck contained poppy husk. It is contended that as the owner of the truck was someone else, hence the accused cannot be said to be in conscious possession of the contraband. This argument raised by the counsel for the appellants is without merit. 52 bags, each weighing 40 kgs. containing poppy husk were recovered from the truck which was driven by Mohd. Najim and the other accused Mohd. Nadim was the cleaner. Both these accused cannot claim ignorance as to what was loaded in the truck. In the present case, a secret Crl.A. No.805-DB of 2006 -9- information had already been received which ultimately proved to be absolutely correct that the accused alongwith two other persons, namely, Mohd. Shokin and Mohd. Riyakat had gone to Rajasthan on 31.12.2004, and would be returning back in a truck which would contain poppy husk. In pursuance to the aforementioned information, a trap was laid and both the accused alongwith contraband were arrested, while transporting the contraband. This, the conscious possession of the accused with the contraband is fully established. Moreover, the testimonies of the prosecution witnesses clearly show that it was the accused who were carrying poppy husk in the truck in question. Apart from the above, the accused also suffered disclosure statement vide which they voluntarily disclosed their identity and the ownership of the truck. This disclosure statement also lends credence to the prosecution story. It has lastly been argued that even if the accused are found to be guilty under Section 15 of NDPS Act, a lenient view be taken while sentencing the accused as both the accused are first offenders and have not committed any crime earlier. In view of the aforementioned discussion, we are of the considered view that the prosecution has been able to prove its case against both the accused. The accused were apprehended on the spot while traveling in a truck which was loaded with 52 bags of poppy husk. The search was conducted in the presence of a Gazetted Officer and all the formalities regarding taking the samples, sealing them, making them into parcels and sending them to the FSL were completed in accordance with law. The accused also suffered a disclosure statement and hence we are of the considered that the accused have rightly been convicted by the trial Crl.A. No.805-DB of 2006 -10- Court under Section 15 of the NDPS Act. Accordingly, we uphold the conviction of the accused- appellants under Section 15 of the NDPS Act. However, as both the accused are first offenders, therefore, both the accused are sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1 lac each and in default of payment of fine to further undergo R.I. for a period of 6 months. With the aforementioned modification in the order of sentence, the appeal is disposed of. (ASHUTOSH MOHUNTA) JUDGE November 6, 2009 (JITENDRA CHAUHAN) Gulati JUDGE