Criminal Appeal No. 1523-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 1523-SB of 2005 Date of decision : September 12, 2011 Sultan Singh ....Appellant versus State of Haryana ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Raman B. Garg, Advocate as Amicus-curiae for the appellant Mr. Anil Kumar, Deputy Advocate General, Haryana L.N. Mittal, J. (Oral) This is criminal appeal by convict Sultan Singh who stands convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) vide judgment dated 17.8.2005 and has been sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs 2000/- and in default thereof, to undergo further simple imprisonment for two months vide order dated 18.8.2005 by learned Judge, Special Court, Kaithal. Prosecution case in brief is that on 7.11.2003, ASI Balbir Singh, Incharge, Police Post, Anaj Mandi, Kaithal along with Head Criminal Appeal No. 1523-SB of 2005 -2- Constable Dharampal and Constables Sadhu Ram and Shamsher Singh was present at Shila Khera turning in City Kaithal. He received information that accused Sultan Singh was selling opium in retail at Kutub Pur Road, Hari Nagar, City Kaithal. The police party left for the said place. On the way, many pubic persons were asked to join the raiding party, but they refused to join expressing their inability to join. The police party reached the aforesaid place where the accused was found present alongwith a polythene bag in his left hand. Mouth of the bag was open and its contents were visible. The accused was apprehended. On seeing the polythene bag, it was found that it contained opium. Two samples opium weighing 20 grams each were taken out and remaining opium was found to be weighing 660 grams. Separate parcels of the samples and the remaining opium were prepared and sealed and were seized by the police. Ruqa was sent to Police Station, City Kaithal where on its basis, FIR was registered. Rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded. The accused was arrested. On reaching the Police Station, the accused along with case property and witnesses was produced before Inspector/SHO, Karnail Chand who verified the case and affixed his own seal on parcels of the case property including samples. One sample parcel was sent to Forensic Science Laboratory, Madhuban. On analysis, the sample was found to be of opium. Report under section 57 of the Act was sent to the higher authorities. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of accused Sultan Singh under section 18 of Criminal Appeal No. 1523-SB of 2005 -3- the Act. Charge under section 18 of the Act was framed against the accused. He pleaded not guilty and claimed trial. In support of its case, the prosecution examined six witnesses. ASI Attar Singh, PW1 stated that he recorded formal FIR in this case and sent special reports of the FIR to different authorities. HC Dharam Pal, PW2 and ASI Balbir Singh, PW3 broadly stated according to the prosecution version. Inspector Karnail Chand, PW4 stated that case property, accused and witnesses were produced before him. He verified the case and affixed his own seal on the parcels and got the same deposited in malkhana. He also forwarded report under section 57 of the Act to higher officers. Head Constable Jai Lal, PW5 and Constable Dev Dutt, PW6 being formal witnesses tendered their affidavits in evidence to depict that the case property was not tampered with. FSL report was also tendered in evidence. 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 be innocent. No evidence was led by the accused in his defence. Learned Judge, Special Court, Kaithal vide impugned judgment dated 17.8.2005 and order dated 18.8.2005 convicted and sentenced the accused as already noticed in the opening part of this judgment. Feeling aggrieved, the convict has preferred the instant criminal appeal. Criminal Appeal No. 1523-SB of 2005 -4- I have heard learned counsel for the parties and perused the case file with their assistance. All the prosecution witnesses have fully supported the prosecution case. Their statements could not be impeached in their cross- examination. Prosecution witnesses had no enmity with the accused so as to implicate him in false case or to depose falsely against him. Even the accused in his statement under section 313 Cr.P.C. has not alleged any ground for his false implication. There is, therefore, no reason to doubt or discard the statements of the prosecution witnesses. Their statements inspire confidence and are sufficient to prove guilt of the accused beyond reasonable doubt. Statements of HC Dharam Pal, PW2 and ASI Balbir Singh, PW3 prove recovery of 700 grams of opium from the accused. Other necessary evidence including link evidence has been produced by the prosecution. Evidence regarding compliance with sections 55 and 57 of the Act has also been adduced. The prosecution evidence is cogent and credible and is sufficient to bring home the charge against the accused beyond reasonable doubt. Learned counsel for the appellant contended that no independent witness was joined in the raiding party. However, it has been stated in the FIR itself that public persons on the way were asked to join the raining party but they declined expressing their helplessness. It is, thus, apparent that effort was made to join independent witnesses but nobody was ready to join. It was also so stated in the witness box by HC Dharam Pal, PW2 and ASI Balbir Singh, PW3. Moreover, statements of these witnesses Criminal Appeal No. 1523-SB of 2005 -5- are also as much reliable as those of independent witnesses. Their statements cannot be suspected or disbelieved merely because of their official garb. They had no malice or illwill against the accused so as to implicate him in a false case or to depose falsely against him. Consequently, their statements are at par with statements of independent witnesses. Learned counsel for the appellant also contended that section 50 of the Act which is mandatory, was not complied with. The contention cannot be accepted. It is correct that section 50 of the Act, wherever applicable, is mandatory in nature. However, section 50 of the Act is not applicable to the instant case because section 50 of the Act applies to personal search of the accused i.e. search of the body or wearing apparels of the accused. However, in the instant case, contraband opium was recovered from the polythene bag which the accused was having in his hand. Section 50 of the Act is not applicable to search of bag, brief case etc. being carried by an accused person, as is well settled by various judgments of Hon'ble Supreme Court as well as of this Court. In the instant case, the opium was recovered from polythene bag and not on personal search of the accused. Consequently, section 50 of the Act is not applicable to the instant case. In addition to it, even mouth of the polythene bag was open and its contents were visible. For this added reason as well, compliance with section 50 of the Act was not required. In any event, section 50 of the Act is not applicable to search of bag etc. In the instant case, since opium was recovered from polythene bag, section 50 of the Act is not applicable. Criminal Appeal No. 1523-SB of 2005 -6- Prosecution has led evidence regarding compliance with sections 55 and 57 of the Act. For the reasons aforesaid, I conclude that prosecution has successfully proved the guilt of the accused beyond reasonable doubt. Accordingly, impugned judgment of conviction is affirmed. Learned counsel for the appellant prayed for reduction in sentence. The occurrence took place almost 8 years ago. Keeping in view all the circumstances, I am of the considered opinion that ends of justice would be met if the substantive sentence of rigorous imprisonment is reduced to one and half years while maintaining the sentence of fine. It is ordered accordingly. Fine already stands paid in the trial court. With reduction in sentence as aforesaid, the instant appeal stands disposed of accordingly. Before parting with the judgment, it has to be noticed that the learned trial court after convicting and sentencing the accused granted him interim bail till 17.9.2005 vide order dated 18.8.2005 to enable the convict to prefer appeal. The convict was directed to appear before the trial court on 18.9.2005 and file was also ordered to be put up on that date. However, from the trial court file, it appears that the file was not put up before the learned trial Judge on 18.9.2005 nor the convict appeared before the trial Court on 18.9.2005 nor the convict obtained any bail order from this Court in the instant criminal appeal. District & Sessions Judge, Kaithal is, therefore, directed to hold inquiry into the matter and to take necessary action in accordance with law against the guilty official. File of the trial Criminal Appeal No. 1523-SB of 2005 -7- Court be sent back. The accused appellant shall be arrested immediately to undergo remaining part of sentence. ( L.N. Mittal ) September 12, 2011 Judge 'dalbir'