Crl.A No.625-DB of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A No.625-DB of 2007 DATE OF DECISION: August 12, 2009 BAGGAR SINGH @ GAGGI ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT Crl.A No.641-DB of 2007 DATE OF DECISION: August 12, 2009 MAKHAN SINGH S/O SH. PARTAP SINGH ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE MOHINDER PAL. PRESENT: MR. VIVEK SURI, ADVOCATE FOR THE APPELLANT- BAGGAR SINGH @ GAGGI . MR. G.S. SIDHU, ADVOCATE FOR THE APPELLANT- MAKHAN SINGH MR. PRADEEP SINGH PUNIA, ADDL.A.G., HARYANA. ASHUTOSH MOHUNTA, J. This judgement shall dispose of Crl.A. No.625-DB of 2007 and Crl.A. No.641-DB of 2007, as both these appeal arise out of a common judgement of conviction dated 14.06.2007 and order of sentence dated 15.06.2007, passed by Addl. Sessions Judge, Sirsa. The accused-appellants Baggar Singh @ Gaggi and Makhan Singh have filed these appeals against the judgement of the Addl. Sessions Crl.A No.625-DB of 2007 -2- Judge, Sirsa dated 14.6.2007, and order of sentence dated 15.6.2007 vide which they have been convicted under Section 15 of the NDPS Act and were sentenced to undergo rigorous imprisonment for 10 years and 6 months and to pay a fine of Rs.1 lac each and in default of payment of fine to undergo further S.I. for 2 years. Briefly the facts of the prosecution are that on 7.2.2004, SI/SHO Jagdish Kumar alongwith ASI Om Parkash, Constable Wazir and Constable Poonam was present on the bridge of Bhakra Canal on the road leading from Dadu to Dharampura in the area of village Dadu in connection with patrolling and checking of crime. Constable Malook Singh, came there per chance. While they were talking, a Maruti Car of White colour was seen coming from the side of village Dadu. The SI/SHO signalled with hand to stop the car. On seeing the Police party, the driver of the vehicle applied brakes. The driver and one other person who was sitting by his side opened the window of car ,registration of which was later on revealed as DNC-1248 and tried to run away. However the SI/SHO, with the help of other Police officials, followed to nab them. The driver of the car managed to escape but person sitting by the side of the driver was apprehended at the spot. On interrogation, he disclosed his name as Makhan Singh (appellant) and he also disclosed the name of the driver who had fled away, as Baggar Singh @ Gaggi (appellant.). Constable Malook Singh identified that person as Baggar Singh @ Gaggi at the spot. On suspicion of poppy straw in the gunny bags placed on the rear seat of the Maruti Car, a notice in writing under Section 15 of the NDPS Act was served upon Makhan Singh, (appellant) to the effect that he could get the search of his Maruti Car conducted from some Gazetted officer or the Magistrate. However, Makhan Crl.A No.625-DB of 2007 -3- Singh reposed his confidence on SHO Jagdish Kumar. Thereupon, SHO opened the dikky of the Maruti car and after checking on the rear seat of the car, 7 gunny bags were found lying there. On checking the same those bags were found to have contained poppy straw. Two samples from each bag were taken out and the same were made into sealed parcels. On weighment each gunny bag had 39 kgs.800 gms. of poppy straw. The 7 gunny bags were also made into sealed parcels. The samples and the gunny were taken into possession. The seal after use was handed over to ASI Om Parkash. On checking the car, registration certificate was recovered and the same was taken into possession. The person passing through the spot were asked to become witness but they showed their inability to witness the recovery. Since Makhan Singh, appellant was found to be in possession of 280 Kgs. of poppy straw which was lying on the seat of the Maruti car, he was found to have committed an offence punishable under Section 15 of the NDPS Act. Therefore, ruqa (Ex.PW9/B) was sent to the Police Station through Contable Wazir Singh for registration of the case, on the basis of which formal FIR( Ex.PW9/E) was recorded by ASI Devinder Singh. During the investigation Baggar Singh who was produced before ASI Rattan Singh, (P.W.4) by Jagroop Singh and Mukhtair Singh, was also arrested. He also made a confessional statement regarding the aforesaid recovery of gunny bags containing popy husk. After completion of the formal investigation and formalities both the accused were challaned. Charge against the accused under Section 15 of the NDPS Act was framed to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 10 witnesses. PW1 MHC Lal Chand, PW2 HC Bhoop Singh and Constable Crl.A No.625-DB of 2007 -4- Jai Singh tendered their affidavits into evidence Ex.PW1/A, Ex.PW2/A and Ex.PW3/A respectively. PW4 stated that on 14.6.2004, he alongwith other police officials was present at Bus Stand near Dadu where Jagroop singh son of Karnal Singh and Mukhtiar singh son of Amar Singh, residents of village Dadu produced before accused Baggar Singh and also made confession before the said person that on 7.2.2004, he alongwith Makhan Singh had brought 7 bags of poppy straw in Maruti Car No.DNC-1248 from Rajasthan. PW5 Avtar Singh stated regarding the sale of car to Pinderpal. PW6 Pinderpal Singh also made statement regarding purchase of the said car from PW5 Avtar Singh. PW7 Wazir Singh further stated that he had purchased the said Maruti car from Bhinderpal Singh PW6. PW8 Constable Malook Singh had witnessed the recovery proceedings and he had also identified Baggar Singh accused who had ran away from the spot. PW9 Inspector Jagdish Kumar is the investigating officer and he has given the details of recovery and other formalities completed at the spot. PW10 ASI Om Parkash is the witness of recovery of the 7 bags from the accused. On closure of the prosecution statements of the accused under Section 313 Cr.P.C. had been recorded and all the incriminating evidence appearing against them in evidence was put to them, they denied the allegation in toto and pleaded innocence. The accused Baggar Singh staed that a false case has been foisted upon him by the Investigating Officer as his mother had filed an application against him some days prior to this case. In his defence, he examined DW1 Jagroop Singh. Counsel for the appellants has contended that the prosecution has not been able to prove the conscious possession of the poppy straw by the accused persons. It is submitted by the learned counsel that no question Crl.A No.625-DB of 2007 -5- regarding conscious possession of the contraband was put to the accused while they were deposing under Section 313 Cr.P.C. It is further contended that mere presence of the accused persons near the narcotic substance or mere traveling of the accused persons in a vehicle in which the contraband was being transported would not mean that the accused persons had been in conscious possession of the narcotic substance and hence they are entitled to be acquitted on this count alone. The arguments raised by the counsel for the appellants has been controverted by the counsel for the State who has submitted that the accused Makhan Singh was apprehended at the spot alongwith 7 bags containing 280 kgs. of poppy straw and that the accused Baggar Singh was also identified by PW8 Malook Singh and was apprehended subsequently. It has been contended that the oral and documentary evidence adduced by the prosecution shows that the prosecution has been able to prove beyond doubt that the accused had possessed 280 kgs. of poppy straw and hence the appeals filed by the accused are liable to be dismissed. We have heard the learned counsel for both the sides at length and have perused the record. A perusal of the statement under Section 313 Cr.P.C. of Baggar Singh clearly shows that the accused was asked by the Public Prosecutor that he while running away from the Police party by leaving the car at the spot, 7 bags were found containing contraband regarding which notice Ex.PW9/A under Section 50 of the NDPS Act had been issued to him. The accused was also specifically asked that the bags recovered from the car contained poppy straw. Similarly, the accused Makhan Singh was also asked that he was in conscious possession of the contraband which was Crl.A No.625-DB of 2007 -6- contained in 7 bags which had been recovered from the Maruti car No.DNC-1248. In the present case, both the accused were travelling in a car in which 7 bags of poppy straw were loaded weighing 280 kgs. Both the accused had the power and control over the car and the articles contained therein and hence it cannot be said that they were not aware of the contents of the bags. Since 7 bags were loaded in a Maruti car, therefore, the entire car must have been full with bags and the only inference that can be drawn is that the accused Baggar Singh and Makhan Singh were in conscious possession of the narcotics which were recovered from the bags. It has been next contended by the counsel for the appellants that the accused Baggar Singh was not apprehended at the spot. It has been argued that it was not possible for Baggar Singh to escape from the spot, specially, when there were several Police officials present. Learned counsel contends that the prosecution has not established the identity of the accused Baggar Singh and hence he is entitled to be acquitted. This argument also is without merit, as a perusal of the statement of PW8 Malook Singh shows that the SHO had given a signal to the accused to stop their car. The car was stopped at some distance from the Police party and thereafter both the accused, Baggar Singh and Makhan Singh, tried to run away. While Makhan Singh was apprehended at the spot, but Baggar Singh managed to escape. He was chased and identified by PW Malook Singh who knew him from before also. Malook Singh had categorically stated that “I knew Baggar Singh earlier because he indulges in activities of selling of poppy straw and being a security agent of the Police Station I was directed to have a surveillance upon him”. This witness disclosed the name of accused Baggar Singh to the SHO at the spot. Crl.A No.625-DB of 2007 -7- Apart from the above, the accused Baggar Singh was also identified in Court by PW9 Jagdish Kumar, Inspector Traffic, Rewari, Investigating Officer and also by PW-10 Om Parkash, ASI. From the aforementioned evidence, it is clear that the accused Baggar Singh who had managed to escape had been identified by PW8 Malook Singh and subsequently by PW9 Jagdish Kumar and P-10 Om Parkash in Court. The identity of Baggar Singh was also disclosed by his co-accused Makhan Singh and thus, we are of the considered opinion that that the poppy straw was recovered from Baggar Singh and Makhan Singh. As far as the accused Makhan Singh is concerned, he was apprehended by the Police officials on the day of occurrence, i.e. 7.2.2004. This accused had also tried to run away, but was nabbed at the spot. Poppy straw contained in 7 bags were recovered from the Maruti car in which Makhan Singh was travelling alongwith Baggar Singh. It has lastly been contended that there was a delay of 18 days in sending the sample of contraband to the FSL Madhuhan for analysis and hence the present case has become doubful and the accused are entitled to be given benefit on this ground. This argument is also without merit as FSL Report Ex.PE clearly shows that seals of the sample were found intact and were tallying with the specimen seal as per forwarding authority's letter. There is nothing on record to show that either the sample or the seals were tampered with. Therefore, this argument raised by the counsel for the appellants is also rejected. In view of the above, the prosecution has been successful in proving that both the accused persons were in possession of 280 kgs. of Crl.A No.625-DB of 2007 -8- poppy straw in 7 bags which were loaded in a Maruti car. Both the accused have rightly been convicted under Section 15 of the NDPS Act. The accused was sentenced by the trial Court to undergo R.I. for 10 years and 6 months and also to pay a fine of Rs.1 lac each. While upholding the conviction of the appellants under Section 15 of the NDPS Act, we reduce the sentence of the appellants from R.I. for 10 years and 6 months to R.I. for a period of 10 years. The fine of Rs.1 lac each on both the accused, as imposed by the trial Court, and the default clause of fine are, however, maintained. In case, the appellants are on bail, their bail bonds stand cancelled and they be taken into custody forthwith to serve out the remaining portion of their sentence. The appeals are disposed of in the aforementioned terms. (ASHUTOSH MOHUNTA) JUDGE August 12, 2009 (MOHINDER PAL) Gulati JUDGE