Crl. Appeal No. 1390-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 1390-SB of 2004 Date of Decision : November 04, 2009 Gulzar Singh .... Appellant Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. K. S. Dhaliwal, Advocate with Mr. Baljinder Singh, Advocate for the appellant. Mr. Gaurav Garg Dhuriwala, AAG, Punjab. * * * L. N. MITTAL, J. (Oral) : By preferring this appeal, Gulzar Singh has assailed his conviction and sentence ordered by learned Judge, Special Court, Patiala, vide judgment and order dated 21.04.2004. The appellant stands convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short – the Act) in FIR No.260 dated 06.10.1997, registered at Police Station Samana, District Patiala and has been sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months. Mehal Singh and Balkar Singh, who were also tried along with the appellant Gulzar Singh, have however been acquitted by the trial Judge. Crl. Appeal No. 1390-SB of 2004 2 Prosecution case, in nut-shell, is as under :- On 06.10.1997, police party headed by Inspector Devinder Singh – Incharge CIA Staff, Samana and comprised of ASI Mohinder Singh and other police officials, was present at Sehajpura Chowk, Samana in government vehicle (TATA 407) driven by Constable Nathu Ram, for crime detection. ASI Bir Singh and two other police officials of Police Station Samana joined the aforesaid party. Meanwhile, Didar Singh Sarpanch of Village Acharal Khurd also came there. A little while thereafter, secret information was received that Gulzar Singh appellant, Mehal Singh and Balkar Singh were shifting poppy husk to the dera of Gulzar Singh and on raid, poppy husk in large quantity could be recovered. On this information, Ruqa (Ex.P-M) was sent to Police Station Samana, where on its basis, FIR Ex.P-M/1 was recorded. The police party along with Didar Singh proceeded to the dera of Gulzar Singh. Intimation was also sent to Pritpal Singh Thind – Deputy Superintendent of Police (DSP), Samana, who also reached the spot. All the three accused were found digging a pit in the field of Gulzar Singh to conceal poppy husk. Accused Balkar Singh and Mehal Singh fled away, whereas Gulzar Singh appellant was apprehended at the spot. Vide Memo Ex.P-C, Gulzar Singh agreed to search being conducted in the presence of DSP Pritpal Singh Thind. There were lying 15 jute bags at the spot in the field of Gulzar Singh. On search, the bags were found to contain poppy husk. All the bags were emptied to make heap of poppy husk. After mixing the same, sample of poppy husk weighing 250 grams was drawn and sealed into parcel. Remaining poppy husk was put in the same 15 bags. Poppy husk in each bag weighed 35 kilograms. The sample parcel and the bags were sealed with seal bearing impression `PPS' of DSP Pritpal Singh Thind. Chit of specimen seal impression was also prepared. Case property was seized by the police vide memo Ex.P-D. On interrogation, the appellant made disclosure statement Ex.P-E that he had concealed five bags of poppy husk in his paddy field and could get the same Crl. Appeal No. 1390-SB of 2004 3 recovered and nobody else was aware of it. Pursuant to disclosure statement, the appellant got recovered five bags of poppy husk. Same procedure was repeated. Sample of poppy husk weighing 250 grams was seized from the heap of poppy husk of these five bags. Remaining poppy husk was put in the same bags. Poppy husk in each bag weighed 35 kilograms. The sample and the bags were sealed with same seal impression and were seized vide memo Ex.P-F. Separate chit of specimen seal impression was also prepared. Seal after use was retained by Inspector Devinder Singh. All the aforesaid documents were attested by Sarpanch Didar Singh, ASI Mohinder Singh, ASI Bir Singh and DSP Pritpal Singh Thind. Statements of witnesses were recorded. Rough site plan Ex.P-N depicting both the places of recovery was prepared. Gulzar Singh appellant was arrested. On reaching Police Station, case property was deposited with MHC Gurdev Singh. On the next day, case property was produced before Sub Divisional Judicial Magistrate, Samana along with application Ex.P-O. Learned Magistrate, after checking the case property with seals intact, himself signed the sample parcels and returned the case property for being deposited in Malkhana, which was accordingly deposited. On 09.10.1997, Balkar Singh and Mehal Singh were arrested, on being produced by Labh Singh and Gian Singh respectively. Mehal Singh, after making disclosure statement (Ex.P-H), got recovered one bag of poppy husk. On completion of investigation, Samana police presented report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) for prosecution of all the three accused. Charge under Section 15 of the Act was framed against all the three accused. They pleaded not guilty and claimed trial. To prove its case, the prosecution examined five witnesses. Constable Raghbir Singh (PW-1) and MHC Gurdev Singh (PW-2) being formal witnesses, tendered their respective affidavits Ex.P-A and Ex.P-B to Crl. Appeal No. 1390-SB of 2004 4 prove that the case property was not tampered with. DSP Pritpal Singh Thind (PW-3), Inspector Devinder Singh (PW-4) and ASI Mohinder Singh (PW-5) broadly stated according to the prosecution version about recovery of contraband poppy husk from the accused. Reports of Chemical Examiner Ex.P-R, Ex.P-S and Ex.P-T were also tendered in evidence to prove that the samples were of poppy husk. PW Didar Singh was given up as won over by the accused . Other witnesses were given up as unnecessary. Accused in their statements under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. Appellant Gulzar Singh alleged that he is resident of Village Dhanori and has Ration Card, Voter Identity Card and land in that village. He was picked up by the police from there in the presence of Sarpanch Gurdeep Singh and other respectables. In defence, the accused examined two witnesses. Gurdeep Singh Sarpanch (DW-1) broadly supported the version pleaded by the appellant. Head Constable Dharam Pal (DW-2) proved entries Ex.D-3 and Ex.D-4 of Register No.19 i.e. Malkhana Register. Copy of Jamabandi Ex.D-1 and copy of Voter Identity Card Ex.D-2 were also tendered in evidence. Learned trial Judge, vide impugned judgment dated 21.04.2004, convicted Gulzar Singh under Section 15 of the Act, but acquitted Mehal Singh and Balkar Singh. Vide order of even date, the trial Judge sentenced the appellant as already noticed in the opening part of this judgment. Feeling aggrieved, Gulzar Singh has preferred this appeal. I have heard learned counsel for the parties and perused the case file. Huge quantity of contraband poppy husk has been recovered in the case. The appellant was apprehended at the spot. All the prosecution witnesses have broadly supported the prosecution case. There is no reason why the police would implicate the appellant in a false case by planting Crl. Appeal No. 1390-SB of 2004 5 such huge quantity of poppy husk. Even the appellant in his statement under Section 313 Cr.P.C., or in cross-examination of prosecution witnesses, has not stated or suggested any reason for his false implication. Statements of prosecution witnesses inspire confidence. Material witnesses DSP Pritpal Singh Thind (PW-3), Inspector Devinder Singh (PW-4) and ASI Mohinder Singh (PW-5) were subjected to very lengthy and searching cross-examination, but they have stood the test of cross-examination. The prosecution evidence is thus sufficient to prove the guilt of the appellant. Learned counsel for the appellant contended that according to Inspector Devinder Singh (PW-4), they first went to the dera of the appellant and then to the field, from where 15 bags of poppy husk were recovered, but perusal of site plan Ex.P-N reveals that the only way to dera was from near the place of said recovery and the police party would not have, therefore, gone to the dera and would have stopped at the place of alleged recovery on way to dera. The contention cannot be accepted being devoid of any substance. No question was put to Inspector Devinder Singh or any other prosecution witness in cross-examination that the only way to the dera of the appellant was from near the place of aforesaid recovery, nor the witnesses were put any question as to why they did not stop at the place of recovery on way to the dera of the appellant. In this view of the matter, the aforesaid contention raised by learned counsel for the appellant is untenable. On the other hand, learned State counsel pointed out that secret information was to the effect that poppy husk was being shifted to the dera of the appellant and for this reason, the police party went to the dera of the appellant and on learning from there that the appellant was in the field, the police party went to the field. Consequently, it cannot be said that there was any unnatural conduct of the police party in firstly going to the dera of the appellant and then going to the field, from where the recovery was effected and there is no discrepancy in the prosecution case on this account. Learned counsel for the appellant next argued that there is no Crl. Appeal No. 1390-SB of 2004 6 evidence to depict that the appellant was owner or in possession of the land, from where recovery was effected and consequently, appellant could not be said to be in conscious possession of the contraband poppy husk. To strengthen this argument, it was contended that no statement of owner of the land or of Patwari was recorded to the effect that the field, from where 15 bags of poppy husk were recovered, was on lease with the appellant, as alleged by the prosecution, nor any revenue record has been produced in evidence to establish this fact. The contention, although apparently attractive, cannot be accepted. The appellant was digging a pit in the field. Fifteen bags of poppy husk were lying there. Appellant's two companions, who were present with him at the spot, fled away on arrival of the police party, but the police was successful in apprehending the appellant at the spot. There is statement of Inspector Devinder Singh (PW-4) that the field, from which 15 bags of poppy husk were recovered, was on lease with the appellant. There is no rebuttal of this evidence. Moreover, the appellant, after making disclosure statement, got recovered another five bags of poppy husk from the nearby filed. It would show that the appellant was in possession of the fields, from which both recoveries were effected. Conduct of the appellant and his companions would also show that they were in conscious possession of the contraband poppy husk. The appellant has also not explained his presence at the spot. As already noticed herein above, there is also no reason why the police party would pick up the appellant from another Village Dhanori and would plant the poppy husk on him. Learned counsel for the appellant next contended that DSP Pritpal Singh Thind was not Gazetted Officer, as conceded by him. The witness has stated that he was ad hoc DSP and his pay was of the rank of Inspector, which was his substantive rank and no gazette notification had been issued in his name. However, this contention has no bearing on the merits of the instant case because presence of a Gazetted Officer was not required by any provision of the Act. Crl. Appeal No. 1390-SB of 2004 7 Learned counsel for the appellant contended that Section 42 of the Act has not been complied with, as secret information, which was reduced into writing in the form of Ruqa Ex.P-M sent to Police Station for registration of the case, was not sent to superior superior officer, as required by mandatory provision of Section 42 (2) of the Act. This contention is also bereft of any merit. Firstly, Section 42 of the Act is not applicable to the instant case. Section 42 of the Act applies where any search and seizure is carried out in any building, conveyance or enclosed place. In the instant case, however, search and seizure was carried out in open field and therefore, Section 42 of the Act is not applicable to the instant case. Learned counsel for the appellant submitted that the police party first went to the dera of the appellant, which is a building and therefore, Section 42 of the Act is applicable. This contention is also unsustainable because no search or seizure was carried out at the dera. The search and seizure was carried out in open field and Section 42 of the Act is, therefore, not applicable. Moreover, copy of the FIR, registered on the basis of secret information reduced into writing in the form of Ruqa Ex.P-M, was sent to Illaqa Magistrate and superior police officers. Copy of FIR Ex.P-M/1 reached Sub Divisional Judicial Magistrate, Samana on 07.10.1997 at 10:05 A.M. i.e. within less than 24 hours of the recording of secret information, whereas Section 42 allows a period of 72 days for sending the information to the superior officer. Thus, Section 42 of the Act was also complied with in the instant case. Learned counsel for the appellant also argued that disclosure statement Ex.P-E , pursuant to which five bags of poppy husk were allegedly recovered, has not been signed by the appellant. However, learned counsel for the appellant was unable to refer to any provision of law or precedent requiring that disclosure statement has to be signed by the accused making the same. Consequently, non-signing of the disclosure statement by the appellant has no adverse bearing on the prosecution case. Crl. Appeal No. 1390-SB of 2004 8 Learned counsel for the appellant pointed out that DSP Pritpal Singh Thind stated that the appellant had signed the disclosure statement, but he was confronted with disclosure statement Ex.P-E, which has not been signed by the appellant. It was also pointed out that Inspector Devinder Singh (PW-4) stated that he produced the case property before Illaqa Magistrate at Samana on 07.10.1997 by making request Ex.P-O and learned Magistrate passed order Ex.P-O/1 on the said application, but order Ex.P- O/1 reveals that the case property was produced by ASI Mohinder Singh and not by Inspector Devinder Singh. However, on the basis of these two minor discrepancies, which do not go to the root of the case, prosecution case cannot be doubted and the prosecution evidence, which is otherwise reliable, cannot be discarded. Order Ex.P-O/1 passed by learned Illaqa Magistrate reveals that the case property was actually produced before Illaqa Magistrate, who found the seals intact and also signed the sample parcels. It therefore becomes immaterial as to whether case property was produced before Illaqa Magistrate by Inspector Devinder Singh or by ASI Mohinder Singh. Moreover, some contradictions are bound to occur even in the statements of most truthful witnesses with passage of time. Parrot like statements without any contradiction would be prone to suspicion being artificial ones. In the instant case, statement of DSP Pritpal Singh Thind (PW-3) was recorded on 23.10.2001 and 04.04.2003 and statement of Inspector Devinder Singh (PW-4) was recorded on 04.04.2003 and 22.07.2003. Thus, first part of statement of DSP Pritpal Singh Thind was recorded more than four years after the recovery and second part of his statement was recorded 5½ years after the recovery. Similarly, first part of statement of Inspector Devinder Singh was recorded 5½ years after the recovery and second part of his statement was recorded after another three months. Due to lapse of such long period also, some minor contradictions were bound to occur in their statements. The said contradictions do not go to the root or substratum of the case and do not shake the foundation of the Crl. Appeal No. 1390-SB of 2004 9 prosecution case in any manner. Such minor contradictions cannot be given undue importance. Learned counsel for the appellant also submitted that five bags of poppy husk were allegedly recovered from a place near the dera, where the police had gone in the first instance, and therefore, the said recovery allegedly at the instance of the appellant by making disclosure statement is doubtful. This submission also cannot be accepted. Paddy crop was standing in the field and therefore, from outside the dera, bags of poppy husk lying in the field at some distance, could not have been visible. The recovery was got effected by the appellant by making disclosure statement including the statement that nobody else was aware of the said poppy husk. The fact that the said recovery was effected from an open field also would not show that the appellant was not in possession of the said contraband poppy husk because poppy husk had been concealed there by the appellant in the standing paddy crop and nobody else except the appellant was aware of it. The place of said recovery being at a small distance from the dera of the appellant, anybody else could not have concealed five bags of poppy husk there. Learned counsel for the appellant also argued that Didar Singh independent witness has not been examined by the prosecution. However, the said witness had to be given up because he had been won over by the appellant. It is not uncommon that independent witnesses in such cases do not support the prosecution case because they have no personal interest in the case. On the other hand, by deposing against the accused, independent witnesses apprehend incurring wrath and enmity of the accused. Moreover, there is no reason to discard or disbelieve the statements of DSP Pritpal Singh Thind, Inspector Devinder Singh and ASI Mohinder Singh. They had no animus against the appellant to implicate him in a false case. Their statements cannot be disbelieved or doubted merely because of their official uniform, particularly because there is no allegation of any malice or hostile Crl. Appeal No. 1390-SB of 2004 10 attitude on their part towards the appellant. The fact that seal after use was not given to independent witness Didar Singh would also not adversely effect the prosecution case in any manner. There is no requirement of any law or precedent that seal after use should always be handed over to independent witness only. Learned counsel for the appellant also argued that the appellant owns land in Village Dhanori, as revealed by copy of Jamabandi Ex.D-1 and is also listed as voter in the said village, as depicted by Voter Identity Card ExD-2 and as also stated by Gurdeep Singh (DW-1). This contention does not help the appellant in any manner. Copy of Jamabandi Ex.D-1 is for the year 2000-01 i.e. 3-4 years after the recovery, whereas Voter Identity Card Ex.D-2 is dated 23.08.2003 i.e. almost six years after the recovery. So, these documents do not depict that even on the date of recovery i.e. on 06.10.1997, the appellant was resident of Village Dhanori. Oral statement of Gurdeep Singh (DW-1) would not be sufficient to give a finding to this effect. Moreover, even if the appellant was resident of Village Dhanori, it would not mean that he could not be in possession of land in another village. For the reasons recorded herein above, I find that prosecution has successfully proved the guilt of the appellant beyond reasonable doubt. Acquittal of appellant's co-accused Mehal Singh and Balkar Singh has no bearing on the prosecution case against the appellant because the appellant is not on parity with Mehal Singh and Balkar Singh. The appellant was caught at the spot, whereas Mehal Singh and Balkar Singh had allegedly escaped from the spot. Head Constable Ajaib Singh, who was in the police party, had allegedly identified the two escaping persons as Mehal Singh and Balkar Singh, but Head Constable Ajaib Singh was not examined as witness and therefore, there was practically no evidence on record to prove that the two persons, who had escaped from the spot, were Mehal Singh and Balkar Singh. Consequently, acquittal of Mehal Singh and Balkar Singh does not Crl. Appeal No. 1390-SB of 2004 11 adversely effect the prosecution case against the appellant. Conviction of the appellant is well founded and is accordingly upheld. Sentence imposed on the appellant also does not warrant reduction because only minimum sentence provided for the offence has been imposed on the appellant. There is, therefore, no merit in the instant appeal, which is accordingly dismissed. The appellant, if on bail, shall surrender to his bail bonds or shall be arrested to undergo the remainder of his sentence. November 04, 2009 ( L. N. MITTAL ) monika JUDGE