CRA No.1495-SB of 2008 1 In the High Court of Punjab and Haryana at Chandigarh CRA No.1495-SB of 2008 Date of decision: 9.3.2010 Gurmeet Singh etc. ......Appellants Versus State of Punjab .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mrs.Baljit Mann, Advocate and Mr.B.S.Kathuria, Advocate, for the appellants. Mr.J.S.Sandhu, AAG, Punjab. **** SABINA, J. The appellants were convicted for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act- for short) vide judgment dated 4.8.2008 by the Judge, Special Court, Jalandhar. Vide order of the even date the appellants were sentenced to undergo rigorous imprisonment for a period of ten years and a fine of Rs.1,00,000/- each. Hence, the present appeal. Prosecution case, as noticed by the trial Court in para No. 2 of its judgment, is reproduced herein below:- “ The prosecution story, in nutshell, is that on CRA No.1495-SB of 2008 2 4.7.2005, SI Tarlochan Singh while posted as Additional S.H.O. Police Station Nurmahal, along with other police officials was going on government vehicle for general patrolling and checking of bad elements. When they reached in the area of Kot Badal Khan, Surjit Singh Lamberdar was joined as independent witness. The raiding party received secret information that Narain Singh son of Kartar Singh and jassa were coming towards Janta Nagar. It was also informed that Gurmeet Singh, Boota Singh, Harnam Singh and jagir Singh are waiting on their motorcycles and scooters for purchase of poppy husk. Relying on the secret information, ruqa Ex. PW 2/A was sent to the police station on the basis of which formal FIR Ex.PW 2/A-1 was recorded. Thereafter, police party raided place and found Tata 407 parked there. Jassa Singh and Narain were also seen standing near Tata 407, who on seeing the police party fled away from the spot. When the police party reached near the cremation ground four persons namely Gurmeet Singh, Boota Singh, Harnam Singh and jagir Singh ran away leaving there two scooters and two motorcycles. The police party chased them but they succeeded. The accused were identified by HC Nirmal Singh and PHG Darbara Singh. Thereafter, bags tied on the motorcycle of accused Gurmeet Singh CRA No.1495-SB of 2008 3 were searched from which poppy husk was recovered. Thereafter, bag which was tied on the scooter of jagir Singh, two bags tied on the scooter of Buta Singh and one bag tied on the scooter of Harnam Singh were searched and poppy husk was recovered. Out of the six bags, two samples of 250:250 grams each were separated and the remaining on weighment came to 34 kgs. 500 gms. In each bag, which were sealed with the seal bearing impression TS. 12 samples, six bags containing remaining poppy husk, motorcycles, scooters along with cycle type and rope were taken into possession vide recovery memo Ex.PW2/B. Separate sample seal impression was also prepared. The seal after use was handed over to HC Nirmal Singh. Rough site plan Ex.PW2/C was also prepared at the spot with correct marginal notes. On return to the police station, case property, samples scooters and motorcyles were produced before SHO Sarabjit Rai, who verified the facts and put his seal bearing impression SR on six bags and 12 samples. Thereafter the case property was deposited with the MHC. The SHO retained the seal with him. On the next day, the Investigating officer produced the case property along with samples before the Ilaqa Magistrate and re-deposited the same with the MHC. Statements of CRA No.1495-SB of 2008 4 the prosecution witnesses were recorded. After completion of investigation and on receipt of reports of the Chemical Examiner Ex.PW2/D, challan was prepared by SI Satinder Kumar against accused Boota Singh Narain Singh, Harnam Singh and Gurmeet Singh. Thereafter, supplementary challan was also presented against accused Jaswant Singh and Jagir Singh.” Learned counsel for appellants Gurmeet Singh and Harnam Singh, during the course of arguments, has submitted that the sentence qua imprisonment of the said appellants be reduced to already undergone by them as they had undergone more than two years of actual sentence. As per the prosecution case, the alleged recovery from them is of 35 kgs. Poppy husk, which is non- commercial quantity. As per the prosecution case, accused Gurmeet Singh and Harnam Singh were having one bag of poppy husk each on their separate two wheelers. In these circumstances, appellants Gurmeet Singh and Harnam Singh can be said to be in conscious possession of the bag of poppy husk recovered from their two wheelers only and they cannot be held liable for the total poppy husk recovered from two scooters and two motorcycles. Since appellants Gurmeet Singh and Harnam Singh have already undergone more than two years of actual sentence, it would be just and expedient to reduce their sentence qua imprisonment to already undergone by them. CRA No.1495-SB of 2008 5 Consequently, the conviction of appellants Gurmeet Singh and Harnam Singh, under Section 15 of the Act is maintained. However, their sentence qua imprisonment is reduced to already undergone by them and sentence qua fine is reduced from Rs. 1,00,000/- each to Rs.10,000/- each. Appellants Gurmeet Singh and Harnam Singh are directed to deposit the fine within two months from today, failing which their appeal shall stand dismissed. So far as appellant Buta Singh is concerned, two bags of poppy husk were recovered from the two wheeler allegedly driven by him. Learned counsel for appellant Buta Singh has submitted that the said appellant had not been arrested at the spot and it had not been put to the said appellant during recording of his statement under Section 313 Cr.P.C. as to whether he was in conscious possession of the contraband. Hence, his conviction was liable to be set aside. I do not find any force in the contention raised by learned counsel for Buta Singh. Two bags of poppy husk were recovered from the two wheeler of Buta Singh. As per PW-4 Daljit Kaur, a scooter bearing registration No.PB-08 AM 2887 was registered in the name of Buta Singh son of Dayal Singh. As per PW2 Tarlochan Singh, on 4.7.2005 he was posted as Additional Station House Officer, police Station Nurmahal. They received a secret information that Narain Singh and Jassa were coming along with poppy husk in TATA 407 and were going on CRA No.1495-SB of 2008 6 towards Janta Nagar. It was also informed that Gurmeet Singh, Buta Singh , Jagir Singh and Harnam Singh were waiting on their motorcycles and scooters in the area of village Janta Nagar. Ruqa was sent for registration of FIR and on the basis of the same formal FIR was registered. When the police party reached Janta Nagar, Tata 407 was parked there. Jassa and Narain Singh were standing there. On seeing the police party all the accused fled away from the spot leaving their vehicles at the spot. Accused were identified by HC Nirmal Singh and PHG Darbara Singh. From the motorcycle of Gurmeet Singh, a bag of poppy husk was recovered. From the motorcycle of Jagir Singh, 2 bags of poppy husk were recovered. From the scooter of Buta Singh, two bags of poppy husk were recovered and from the scooter of Harnam Singh, one bag of poppy husk was recovered. Out of the recovered bags of poppy husk two samples of 250 grams were drawn from each bag. The remaining poppy husk on weighment came to 34 kgs. 500 gms in each bag. The bags as well as samples were sealed and were taken in possession. Thus two bags of poppy husk were recovered from the scooter owned by Buta Singh. In these circumstances, it cannot be said that Buta Singh was not in conscious possession of the poppy husk. Merely because it has not been specifically put to Buta Singh during his examination under Section 313 Cr.P.C. as to whether he was in conscious possession of the contraband, is not fatal to the prosecution case. Learned counsel for Buta Singh has failed to point CRA No.1495-SB of 2008 7 out any prejudice having been caused to appellant Buta Singh on account of the fact that while his statement was recorded under Section 313 Cr.P.C., it was not specifically put to him that he was in conscious possession of the contraband. Since the contraband was recovered from the scooter owned by appellant Buta Singh, a presumption arises that appellant Buta Singh was in conscious possession of the contraband and consequently, no prejudice has been caused to him by not putting to him specifically in his statement recorded under Section 313 Cr.P.C, that he was in conscious possession of the contraband. The prosecution witnesses were acting in discharge of their official duties and have duly proved the prosecution case. They had no enmity against appellant Buta Singh to involve him falsely in this case. Hence, the trial Court had rightly convicted and sentenced appellant Buta Singh under Section 15 of the Act. No ground for interference qua appellant Buta Singh is made out. So far as appellant Jagir Singh is concerned, he has died during the pendency of the appeal on 26.8.2009. Hence, the proceedings qua him stand abated. Appeal stands disposed of accordingly. (SABINA) JUDGE March 9, 2010 anita