Criminal Appeal No. 70-SB of 2003 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 70-SB of 2003 Date of decision : November 01, 2011 Chand Singh ....Appellant versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Narinder Singh, Advocate, for the appellant Mr. RS Rawat, Assistant Advocate General, Punjab L.N. Mittal, J. (Oral) Accused Chand Singh by filing the instant criminal appeal has impugned his conviction and sentence ordered by learned Judge, Special Court, Bathinda vide judgment and order dated 11.12.2002 whereby appellant Chand Singh stands convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and has been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs 5000/- and in default thereof, to undergo further rigorous imprisonment for one month. Criminal Appeal No. 70-SB of 2003 -2- Prosecution case is that on 3.6.2001, police party headed by ASI Balwinder Singh was present near Canal minor in revenue estate of village Chak Ruldu Singh Wala for patrolling. Accused carrying a bag in his hand was seen coming from the opposite direction. On seeing the police party, the accused started retreating. On suspicion, he was apprehended. In the meantime, one Patangi Singh came there and was joined. Accused was informed of his right to be searched in presence of Gazetted Officer or Magistrate. The accused opted to be searched in presence of Gazetted Officer. Accordingly, by sending wireless message, DSP Jaspreet Singh was called to the spot. The accused was again asked about his right to be searched before Gazetted Officer or Magistrate. The accused opted to be searched in the presence of DSP Jaspreet Singh, a Gazetted Officer. Thereupon bag of the accused was searched and opium was found therein. Out of the opium, 20 grams opium was separated as sample. The remaining opium weighed 1 kg 480 grams. Separate parcels of the sample and the remaining opium were prepared, sealed and seized by the police. Ruqa was sent to the Police Station and on its basis, FIR was registered and investigated. Statements of witnesses were recorded. Rough site plan of the place of occurrence was prepared. Accused was arrested. On return to Police Station, accused along with case property was produced before SHO Manjit Singh who after verifying the investigation, affixed his own seal on both parcels. Special report was sent to higher officers. The sample on analysis by Chemical Examiner was found to be Criminal Appeal No. 70-SB of 2003 -3- opium. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of the accused under section 18 of the Act. Charge under section 18 of the Act was framed against the accused who pleaded not guilty and claimed trial. To prove its case, the prosecution examined four witnesses. Jaspreet Singh, DSP, PW1 and ASI Balwinder Singh, PW2 broadly stated according to the prosecution version regarding recovery of 1 kg 500 grams opium from the accused. ASI Balwinder Singh also stated about investigation of the case conducted by him. SI Manjit Singh, PW3 stated that accused along with case property was produced before him while he was posted as SHO. He verified the investigation and affixed his own seal on both parcels of sample and remaining opium. He also stated about other proceedings conducted by him. Constable Amarjit Singh, PW4 tendered his affidavit in evidence being formal witness. Patangi Singh PW was given up as won over by the accused. The accused in his examination under section 313 Cr.P.C. denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to have been implicated in a false case at the instance of ASI Ajmer Singh against whom Baljinder Kaur, daughter-in- law of the accused, had filed complaint. Criminal Appeal No. 70-SB of 2003 -4- In defence, the accused examined four witnesses. Constable Mehnga Singh, DW1 brought register no. 19 regarding deposit of case property and stated about deposit of the case property. Jaspal Kaur, Additional Ahlmad, DW2 brought judicial file of criminal complaint instituted by Baljinder Kaur against ASI Darshan Singh and ASI Ajmer Singh and proved certified copy of the complaint Ex. D2. Baljinder Kaur alias Bholi, DW3 is daughter-in-law of the accused. She broadly stated according to defence version. Patangi Singh, DW4 stated that in his presence, opium was not recovered from the accused and his thumb impressions were obtained by the police on 5/6 blank papers. Learned Judge, Special Court vide judgment and order dated 11.12.2002 convicted and sentenced the accused as already noticed hereinbefore. Feeling aggrieved, the convict has preferred the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellant contended that section 50 of the Act has not been complied with and, therefore, trial of the accused is vitiated. It was also contended that Patangi Singh the only independent witness was given up by the prosecution and has been examined in defence and has stated that in his presence, no opium was recovered from the Criminal Appeal No. 70-SB of 2003 -5- accused. It was also contended that the accused has been falsely implicated in this case because his daughter-in-law had filed criminal complaint against two police officials. On the other hand, learned State counsel contended that prosecution has led sufficient evidence to prove guilt of the accused. I have carefully considered the rival contentions. Statements of Jaspreet Singh, DSP, PW1 and ASI Balwinder Singh, PW2 are sufficient to prove the recovery of contraband opium from the possession of the accused-appellant. Their statements could not be impeached in cross- examination. They have categorically deposed that opium weighing 1 kg 500 grams was recovered from the appellant. There is no reason to discard or disbelieve their statements. They would not depose falsely merely because daughter-in-law of the accused had instituted a criminal complaint against some police officials. The said complaint was not against these witnesses. Jaspreet Singh, DSP is Gazetted Officer. He would not have deposed falsely against the accused at the instance of Assistant Sub Inspectors of police against whom daughter-in-law of the accused had instituted a criminal complaint. Even ASI Balwinder Singh would not do so. Moreover, huge quantity of opium weighing 1 kg 500 grams would not have been planted to implicate the accused in a false case. Prosecution evidence read as a whole inspires confidence. Statements of Jaspreet Singh, DSP, PW1 and ASI Balwinder Singh, PW2 are further corroborated by statement of SI Manjit Singh, PW3 before whom the accused was Criminal Appeal No. 70-SB of 2003 -6- produced along with case property on the same day. The accused with case property was also produced by Manjit Singh SI/SHO before Illaqa Magistrate on 4.6.2001 and inventory of the case property was prepared as per section 52-A of the Act. The prosecution evidence is thus sufficient to bring home the charge against the accused beyond reasonable doubt. The contention that section 50 of the Act was not complied with cannot be accepted. There is ample evidence on record to prove that section 50 of the Act was fully complied with. Initially ASI Balwinder Singh informed the accused of his right to be searched in the presence of Gazetted Officer or Magistrate. The accused exercised the said right and opted to be searched in the presence of Gazetted Officer vide memo Ex. PD. Thereafter, Gazetted Officer Jaspreet Singh, DSP was called to the spot. He again informed the accused of his aforesaid right and the accused reiterated vide memo Ex. PA his desire to be searched in the presence of Gazetted Officer i.e. Jaspreet Singh, DSP. It is thus manifest that section 50 of the Act was fully complied with. Moreover, section 50 of the Act is not applicable because contraband opium was recovered from the bag being carried by the accused and not on his personal search. Section 50 of the Act is applicable where contraband substance is recovered on personal search of an accused i.e. on search of his body or wearing apparels. Section 50 of the act is not applicable where contraband substance is recovered from accessories like bag, briefcase etc. being carried by an accused person. In the instant case, opium was recovered from the bag being carried by the Criminal Appeal No. 70-SB of 2003 -7- accused and not from the person of the accused. Consequently, section 50 of the Act is not applicable to the case in hand. Patangi Singh PW had to be given up because he had been won over by the accused. This plea of the prosecution was proved right when Patangi Singh appeared in the defence as DW4. However, even Patangi Singh admitted his thumb impressions on various memos. Patangi Singh never complained that his thumb impressions had been obtained on blank papers in the Police Station. Consequently, prosecution case cannot be discarded merely because Patangi Singh independent witness opted to side with the accused. Statements of DSP Jaspreet Singh and ASI Balwinder Singh PWs cannot be discarded merely because of their official uniform. They had no enmity, illwill or malice against accused so as to implicate him in a false case or to depose falsely against him. Consequently, their statements are as much credible as those of non-official witnesses. It also cannot be said that the accused has been falsely implicated merely because his daughter-in-law had lodged criminal complaint against two police officials. As already discussed, merely on this ground, DSP Jaspreet Singh, PW1, ASI Balwinder Singh, PW2 and SI Manjit Singh, PW3 would not have deposed falsely against the accused. For the reasons aforesaid, I find that prosecution evidence is cogent and credible and is sufficient to prove guilt of the accused beyond reasonable doubt. Accordingly, conviction of the accused-appellant is Criminal Appeal No. 70-SB of 2003 -8- upheld. Learned counsel for the appellant prayed for reduction in sentence. It was argued that the occurrence took place more than ten years ago and during this long period, the accused has faced the agony of trial including instant appeal. It was also submitted that the accused was aged 80 years at the time of occurrence and now he is aged 90 years and he has already remained in custody for about 8/9 months. Learned State counsel opposed the prayer for reduction in sentence. I have carefully considered the matter. The accused was arrested on 3.6.2001. He was ordered to be released on interim bail on 6.12.2001 to attend the marriage of his grandson and he surrendered on 13.12.2001. He was ordered to be released on bail by this Court on 11.12.2001. However, perusal of zimini orders of the trial court reveals that the accused was produced in custody even on 16.1.2002. It appears that he furnished his bail bonds sometime after 16.1.2002. He was again taken in custody on 11.12.2002 pursuant to his conviction and sentence. He was ordered to be released on bail during pendency of the appeal vide order dated 20.2.2003 passed by this Court and must have been actually released sometime thereafter on furnishing bail bonds. Thus, he has remained in custody for over nine months. State counsel after seeking telephonic instructions from Jail Authorities also submitted that the appellant has remained in custody for 9 months 5 days. The appellant was Criminal Appeal No. 70-SB of 2003 -9- aged 80 years at the time of occurrence and therefore, he is now aged 90 years. He has already faced the agony of trial including present appeal for over ten years. Keeping in view all these circumstances, I am of the considered opinion that ends of justice would be served if sentence of imprisonment imposed on the appellant is reduced to the period already undergone by him in custody, while maintaining sentence of fine and the sentence of imprisonment in default thereof. It is ordered accordingly. With reduction in sentence as aforesaid, the appeal stands disposed of accordingly. ( L.N. Mittal ) November 01, 2011 Judge 'dalbir'