CRIMINAL APPEAL NO. 512-DB OF 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: September 25th , 2009 Parties Name Gurmail Singh alias Gela ...APPELLANT. VERSUS The State of Punjab ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. Amarpreet Singh Deol, Sr. Advocate, with Mr. Devinder Singh, Advocate, for the appellant. Mr. L.S.Sidhu, Advocate, for the appellant in Cr.A. No.979-SB of 2009 Mr. D.S. Brar, D.A.G., Punjab; JASBIR SINGH, J. JUDGMENT 'Drug menace in Punjab' This is heading of an article, which appeared in a newspaper 'The Tribune, Chandigarh' on June 14, 2009, in which its writer, namely, Gobind Thukral has given the extent of drug abuse in the State of Punjab. He has referred to a portion of the report, prepared by the Department of CRIMINAL APPEAL NO. 512-DB OF 2006 -2- Social Security ,Women and Child Development, regarding danger posed by the use of drugs, in this part of the country. It has also been stated therein that about 66% of School going children in the State of Punjab are consuming Gutkhas or Tobacco, every 3rd male and every 10th female student have taken drugs on one pretext or the other. It has further been stated that 7 out of 10 College going students use one or the other drug. The contributor of the Aritcle has then posed a question in the following manner: “Is it the land of the opium eaters, consumers of poppy husk or synthetic drugs or pills of all sorts?” In the above said article, by making reference to an affidavit filed in this Court, in some other case by the Secretary of the Department, named above, it was mentioned as under: “There are more candid admissions by the Punjab government when it says, “the vibrancy of Punjab is virtually a myth...many sell their blood to procure their daily dose of deadly drugs, even beg on the streets for money to continue their addiction....The entire Punjab is in the grip of drug hurricane which weakens the morale, physique and character of the youth. We are in the danger of losing the young generation. The vibrant Punjab that had ushered in the Green Revolution is today living in a dazed stupor as 67 per cent of its rural household has at least one drug addict.” Only 33 per cent of the households have escaped this menace of drug addiction. How long can they escape.” As per report prepared by the State of Punjab, following is the extent of some of the contrabands recovered during the period from 2006 to 2008: CRIMINAL APPEAL NO. 512-DB OF 2006 -3- “Year Heroin Smack Poppy-Husk Opum Charas (In Kg) (In Kg) (in Quintal) (In Kg) ( In Kg) 2006 53 32 891 502 98 2007 111 32 887 492 96 2008 269 55 588 500 110” From above said chart, we can easily presume that a large quantity of the drugs, may have escaped detection. The Courts cannot be a silent spectator to the grave situation as has been depicted in that article. Future of the young generation is in danger. In such like situation, the drug traffickers are supposed to be dealt with heavy hands, obviously of course within the parameters laid down in Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). This judgment will dispose of Criminal Appeal No. 512-DB of 2006 (Gurmail Singh alias Gela v. The State of Punjab) and Criminal Appeal No. 979-SB of 2009 (Raj Singh alias Raji v. State of Punjab) as both these appeals have arisen from common occurrence. To dictate judgment, facts are being mentioned from Criminal Appeal No. 512-DB of 2006. It was allegation against Gurmail Singh alias Gela that he along with his co-accused Raj Singh alias Raji was found in possession of opium weighing 10 kilograms, on January 7, 2005 at 11.35 PM, in the area of village Dalelwala, Police Station Boha, district Mansa. Case of the prosecution, as noticed by the trial Court in para No. 2 of the impugned judgment, reads thus: CRIMINAL APPEAL NO. 512-DB OF 2006 -4- “That SI Gurmail Singh of CIA Staff Mansa along with a few other police officials and SI Harpal Singh, Station House Officer, Police Station Boha, along with his police party were present in the revenue limits of village Dalelwala on 07.01.2005. PW Shamsher Singh was also associated with the exercise. At about 5.30 p.m., a Qualis car bearing registration No. T PB 10AW 7403 came there from the side of village Dalelwala. Besides the driver, the present accused was also riding in the Qualis car. On being so signalled the car stopped. On sight of the police posse both the occupants of the car got perplexed and after abandoning the car tried to run away. While accused Gurmail Singh was apprehended along with a black coloured bag, other occupant of the car who was identified by Pws ASI Nachhatar Singh and Shamsher Singh as Raj Singh alias Raji son of Sukhdev Singh resident of Giana, P.S. Raman was able to make good his escape. SI Gurmail Singh told accused Gurmail Singh that he suspected him to carry some narcotic in the bag which was required to be searched and that he had a right to have search of the bag on the spot in the presence of a Gazetted officer or a Magistrate or if so wished by him could be taken before any of them. Accused Gurmail Singh opted to have search of the bag on the spot in the presence of a Gazetted Officer. Investigating Officer recorded a memo and sent a wireless message to Police Station Boha to send some Gazetted Officer to the spot. After a while DSP Balbir Singh Khaira (PW) came there. Investigating CRIMINAL APPEAL NO. 512-DB OF 2006 -5- Officer apprised said DSP Balbir Singh Khaira of the facts and circumstances of the case. Thereafter, DSP Balbir Singh Khaira revealed his identity before the accused as a Deputy Superintendent of Police and a Gazetted Officer and told him that the bag in his possession was suspected to have some intoxicating material and was required to be searched. He also asked accused Gurmail Singh if he wanted search in his presence or in the presence of any other Gazetted Officer or a Magistrate. Accused Gurmail Singh exhibited faith in said DSP Balbir Singh Khaira and preferred to have search of the bag in his presence. A memo was accordingly prepared. On the directions of DSP Balbir Singh Khaira, Investigating Officer searched the bag as per laid down procedure and found it to contain opium wrapped in a polythene paper. From the contraband so recovered Investigating Officer separated two samples of 10 grams each. Remainder weighed 9.980 Kgs. Investigating Officer made the samples and remainder into separate parcels, affixed his seal bearing impression 'GS' on the parcels so prepared, prepared sample seal separately., handed over the seal after use to PW Shamsher Singh, took the parcels of case property, the bag and Qualis car, in police possession by recording a memo to this effect, searched person of accused. On failure of accused Gurmail Singh to produce any permit or licence to keep the contraband in his possession, along with his co-accused, Investigating Officer wrote a note and sent it to the Police Station through HC Raj Kumar where a formal First CRIMINAL APPEAL NO. 512-DB OF 2006 -6- Information Report came to be recorded by ASI Avtar Singh.” Thereafter the Investigating Officer arrested the accused, got prepared rough site plan of the place of recovery, with correct marginal notes. He also recorded statements of the witnesses under Section 161 Cr.P.C. The appellant – accused and the case property were produced before SI./ SHO Harpal Singh(PW3) in the Police Station. Shri Harpal Singh questioned the accused, verified the investigation and affixed his seal bearing impression 'HS' on parcels of the case property and took the case property in his possession. He also prepared sample of his seal and sent a special report, as is required under Section 57 of the Act. On January 8, 2005, SHO concerned produced the accused and the case property before the Ilaqa Magistrate along with an application and inventory. The Magistrate concerned passed necessary orders for safe custody of the case property. There was no space in the Judicial Malkhana , so the property was brought back to the Police Station and kept in safe custody. Sample parcel was sent to the Forensic Science Laboratory, Punjab, Chandigarh, for examination, on January 17, 2005, through Constable Sukhdev Singh, who deposited the same in that Laboratory, against a receipt. SI Harpal Singh recorded statement of Gurmail Singh and on receipt of report of Forensic Science Laboratory, which confirmed the contents of the sample parcel to be opium, he prepared a final report and submitted it in Court for trial. It is necessary to mention here that in the meantime, co-accused of the appellant, namely, Raj Singh alias Raji (appellant in Criminal Appeal No. 979-SB of 2009) was declared a proclaimed offender. The appellant – accused was charge-sheeted to which he CRIMINAL APPEAL NO. 512-DB OF 2006 -7- pleaded not guilty and claimed trial. The prosecution produced four witnesses and also brought on record documentary evidence to prove its case. On conclusion of the prosecution evidence, statement of the appellant was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. He further stated that the case has falsely been registered against him, at the instance of Lakhwinder Singh, Superintendent of Police (Detective), for extraneous reasons. He further stated that before the institution of the case, he was called by the above said officer in his office, at Mansa through a special messenger. He was questioned for about half an hour. An offer was given to him to start sale and purchase of opium and poppy husk. The appellant refused the said offer, on account of which false case has been planted upon him. It was also stated by the appellant – accused that he had filed a writ petition, in this Court, against Assistant Sub Inspector and Superintendent of Police, Mansa, for release of detenus, namely, Albel Singh and Baljinder Singh. Both the above named persons were got released with the intervention of a Warrant Officer, appointed by this Court. Enquiry regarding that incident was still pending. It was case of the appellant that in view of above said fact, the police officials have falsely implicated him in this case. Appellant – accused further stated that at the time of alleged arrest on January 7, 2005, he was present at a different place, in a function organised by Gram Panchayat of village Burj Dhilwan. Thereafter he had gone to Truck Union, Mour, at about 6/6.30 PM, where he was arrested by the police in the presence of Gurbachan Singh son of Kartar Singh, Member of the Truck Union, and Jagroop Singh son of Dalel Singh, Munshi of Truck Union at Mour Mandi and others. It was also CRIMINAL APPEAL NO. 512-DB OF 2006 -8- stated by the appellant that Raj Singh alias Raji was a witness, when detenus Albel Singh and Baljinder Singh were got released from illegal custody as stated above. On account of that, Raj Singh was also falsely involved in this case. The appellant also led evidence in defence. The Court below after analysing evidence as led by the parties, came to a conclusion that the prosecution was successful in proving its case. The appellant was accordingly convicted for commission of an offence punishable under Section 18 of the Act and sentenced to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs. 2,00,000/- with a default clause. Hence this appeal. Shri Amarpreet Singh Deol, Senior Advocate, counsel for the appellant assailed the impugned judgment and order, passed by the trial Court, by making reference to some discrepancies here and there in the statements made by the prosecution witnesses. He further argued that the presence of DSP Balbir Singh Khaira (PW2), at the spot, was doubtful. Counsel has further argued that the recovery was alleged to have been effected on January 7, 2005. Sample of opium was sent for chemical examination on January 17, 2005. No explanation for delay has been given, benefit of which must go to the appellant – accused. In the alternative, counsel for the appellant has vehemently contended that the Court below has wrongly held the appellant – accused in possession of 10 kilograms of opium. By making reference to the report of Forensic Science Laboratory (Ex. PQ), he contended that in the sample sent for examination, contents of morphine were only 5.1 % , In view of that, he argued that the Court should have calculated quantity of the contraband by applying above said ratio to CRIMINAL APPEAL NO. 512-DB OF 2006 -9- the alleged bulk recovery from the appellant. If the weight had been calculated by taking note of morphine contents in the sample, quantity of opium would come to about 500 grams only and it would be less than the commercial quantity and as such sentence awarded to the appellant could not have been awarded. To support his contention, he has placed reliance upon a judgment of the Hon'ble Supreme Court in E.Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, (2008) 2 Supreme Court Cases (Criminal) 558. He prayed that the appeal be allowed and the judgment and order under challenge be set aside. Prayer made has vehemently been opposed by the State counsel. He, by making reference to the statements, made by the prosecution witnesses, argued that all of them have stood test of the cross- examination. The circumstances, under which contraband was recovered, were vividly narrated by SI Gurmail Singh (PW1). He further stated that the recovery was effected after making necessary compliance with the statutory requirements under the Act. Minor discrepancies, as to how message was received by DSP Balbir Singh Khaira, time of recovery etc. do not go to the root of the case, being routine mistakes, having been committed due to lapse of time, in between when the witnesses deposed in the Court. He further argued that the case property was produced before the Magistrate on January 8, 2005. It was verified and requisite order was passed to keep it in safe custody. Space was not available in the Judicial Malkhana, due to which the case property was kept in safe custody in the Police Station. Sample was sent for chemical examination on January 17, 2005 through Constable Sukhdev Singh. Seals on the sample remained intact till it reached the Forensic Science Laboratory at Chandigarh. To say so, CRIMINAL APPEAL NO. 512-DB OF 2006 -10- reference has been made to the contents of the report of the Forensic Science Laboratory (Ex. PQ). State counsel further argued that the total bulk of contraband recovered was rightly taken into consideration while awarding punishment to the appellant – accused. In the case of opium, besides morphine and other alkaloids, even purest form of the opium is bound to have neutral material in it. The said material being part of the opium cannot be segregated and the weighment cannot be made by taking contents of morphine alone in sample of the opium. He argued that ratio of the judgment in E. Micheal Raj's case (supra) is not applicable to the facts of the present case because that judgment was passed in a case in which heroin was recovered, which is a derivative of opium. He prayed that the appeal having no substance be dismissed. Perusal of record indicates that on January 7, 2005, at about 5.30 PM, a Qualis car was stopped by the police party, near the canal distributory in village Dalelwala. The said car was being driven by the appellant -accused and one more person was sitting in the car. When signaled to stop, both the occupants tried to run away after abandoning the car. The appellant accused was arrested at the spot along with a black coloured bag in his hand. His co-accused escaped from the spot. However, he was also identified by ASI Nachhattar Singh and PW Shamsher Singh as Raj Singh alias Raji son of Sukhdev Singh, resident of village Giana. On suspicion, SI Gurmail Singh (PW1) gave an option to the appellant to get his search conducted, in the presence of a Magistrate or a gazetted officer. The appellant opted for a gazetted officer. Balbir Singh Khaira, DSP, was called to the spot. He, after disclosing his identity, conducted search of the bag, recovered from the appellant, out of which 10 kilograms of opium was CRIMINAL APPEAL NO. 512-DB OF 2006 -11- recovered. Two samples of 10 grams each were separated from the bulk and sealed with the seal bearing impression 'GS'. Sample of the seal Ex. P1 was also prepared. The car bearing No. TPB 10AW 7403 was taken into possession. Seal after use was handed over to PW Shamsher Singh. It has also come on record that thereafter the accused and the case property were produced before SI Harpal Singh (PW3), who verified the case property, put his seal bearing impression 'HS' on it. Sample of the seal was also prepared. The appellant – accused and the case property were produced before the Ilaqa Magistrate on January 8, 2005, who verified the same and ordered that the case property be kept in safe custody. The sample was sent for examination on January 17, 2005. As per report of the Forensic Science Laboratory, Punjab, Chandigarh, (Ex. PQ), morphine and other alkaloids of opium were found present in the sample. Percentage of morphine was assessed at 5.1%. Despite lengthy cross-examination, the prosecution has failed to shatter testimony of the prosecution witnesses. The prosecution story was further authenticated by DSP Balbir Singh Khaira(PW2), SI Harpal Singh (PW3) and constable Sukhdev Singh (PW4). Shamsher Singh, an independent witness, was not examined by the prosecution, as having been won over by the accused. It is not in dispute that Qualis car, in question, was in the ownership of the appellant – accused. This fact stands proved when we peruse documents - Ex. P7( Certificate of Temporary Registration) and Ex. P8 (sale certificate). The case of the prosecution is further strengthened when we analyse deposition made by DSP Balbir Singh Khaira (PW2) and SI Harpal Singh (PW3). Both have deposed as to how recovery was effected and case property was verified, seals were put on it and accused and the case property were produced before the concerned CRIMINAL APPEAL NO. 512-DB OF 2006 -12- Magistrate. As per facts of this case, though there was no need to comply with the provisions of Section 50 of the Act, yet, the prosecution has successfully proved that it complied with the above said statutory requirement by effecting recovery in the presence of a gazetted officer. Constable Sukhdev Singh (PW4) by filing his affidavit Ex. PR, has deposed as to how he deposited sample of the case property with the Forensic Science Laboratory, Punjab, at Chandigarh. The trial Court, after critically analysing evidence of the prosecution, has rightly come to the conclusion that the contraband in question was recovered from the appellant – accused on January 7, 2005. To show that at the time of alleged recovery, the appellant was available at a different place, his evidence in defence has been rightly negatived by the trial Court. It was case of the appellant that at the time of alleged recovery, he was available in village Dhilwan in connection with a Prize Distribution function. He produced Sher Singh as DW1, however, that witness failed to produce any record to show that any sports event was organized by the Gram Panchayat on that date. Testimony of Sarabjit Singh (DW2) was also discarded by taking note of the documents on record. Statements of Jaspal Singh (DW3) and Gurbachan Singh (DW4) were also rejected, as those were not inspiring confidence. The trial Court has also noticed that minor discrepancies indicated by the defence in the statements made by the prosecution witnesses are not material and do not go to the root of the case. Regarding keeping the case property in Police Malkhana, the prosecution has successfully proved that in Judicial Malkhana, sufficient space was not available. Otherwise also, above said fact does not enhance CRIMINAL APPEAL NO. 512-DB OF 2006 -13- case of the appellant accused because before the Magistrate and also when sample was delivered at the Forensic Science Laboratory, seals were found intact and tallied with the sample seal. In view of above, we can safely say that the prosecution has proved that on January 7, 2005, opium was recovered from the appellant – accused. Admittedly, there is delay of about 10 days in depositing sample of the contraband with the Forensic Science Laboratory, however, keeping in view facts of this case, we hold that no benefit can be given to the appellant – accused on account of that fact. It is not disputed before us that the appellant – accused was produced before the concerned Magistrate, along with the case property on January 8, 2005. The Magistrate passed the following order: “The case property consisting of one Dabba plastic contained 9 kilos 980 grams opium along with two sealed parcels , each containing 10 grams of opium duly sealed with the seals bearing impressions 'GS' and 'HS' along with inventory produced before the undersigned. All the seals are found to be intact. Now the case property be deposited with Judicial Malkhana.” On January 17, 2005, sample was deposited with the Forensic Science Laboratory, Punjab, at Chandigarh. In report Ex. PQ, following noting was given by the Deputy Director(Toxicology): “Seals on the parcel were intact and tallied with the specimen seal” CRIMINAL APPEAL NO. 512-DB OF 2006 -14- Once it has come on record that the seals remained intact and were not tampered with so far as the sample is concerned, the delay of 10 days in sending the parcel will not make any difference. Under similar circumstances, their lordships of the Supreme Court in Hardeep Singh v. State of Punjab, (2008) 8 Supreme Court Cases 557, has observed as under: “16. So far as the question of delay in sending the samples of opium to the Forensic Science Laboratory (FSL) is concerned, the same in our opinion has no consequence for the fact that the recovery of the said sample from the possession of the appellant stands proved and established by cogent and reliable evidence led in the trial. PW 5 has categorically stated and asserted about the recovery of opium from the possession of the appellant, which fact is also corroborated by a higher officer, namely, S.S. Mann, DSP who was also examined at length during the trial. The said recovery was effected in the presence of the said S.S. Mann, DSP, as senior police officer, who also put his seal on the said parcels of opium. 17.The then Station House Officer, Inspector Baldev Singh, who was examined as PW 1 was posted at Police Station Ajnala on the date of occurrence. He received the said samples of opium along with case material, being produced before him by PW5. It has come on evidence that Inspector Baldev Singh kept the entire case property with him till it was deposited in the office of the Chemical Examiner, Amritsar on 30-9-1997 through ASI Surinder Singh (PW 3). CRIMINAL APPEAL NO. 512-DB OF 2006 -15- It has also come on evidence that till the date the parcels of sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium