-1- Criminal Appeal No.1316 -SB of 2004, Criminal Appeal No.1521 -SB of 2004 and Criminal Appeal No.1917 -SB of 2004. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH -.- Criminal Appeal No.1316 -SB of 2004. Date of Decision: April 19, 2010. Nabauddin alias Mallu alias Abhimanyu ...Appellant VERSUS The State of Haryana ...Respondent Criminal Appeal No. 1521 -SB of 2004. Mohd. Anish alias Salim ...Appellant VERSUS The State of Haryana ...Respondent Criminal Appeal No.1917 -SB of 2004. Rahish @ Munna ...Appellant VERSUS The State of Haryana ...Respondent 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. -2- Criminal Appeal No.1316 -SB of 2004, Criminal Appeal No.1521 -SB of 2004 and Criminal Appeal No.1917 -SB of 2004. Present: Mr.Rahul Vats, Advocate for appellant Nababuddin alias Mallu alias Abhimanyu Mr. H.L. Bhatia, Advocate, for appellant Mohd. Anish alias Salim. None for appellant Rahish @ Munna. Ms. Sushma Chopra, Additional Advocate General, Haryana for State-respondent. -.- MOHINDER PAL, J. This judgment will dispose of Criminal Appeal No.1316 -SB of 2004, Criminal Appeal No.1521 -SB of 2004 and Criminal Appeal No.1917 -SB of 2004 as they arise out of the same First Information Report. Appellants Nabauddin alias Mallu alias Abhimanyu, Mohd. Anish alias Salim and Rahish @ Munna have filed these appeals against the judgment of conviction dated 19.04.2004 and the sentence order dated 21.04.2004 passed by the Special Judge, Ambala, whereby they were convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-, each and in default of payment of fine, the appellants were sentenced to undergo further rigorous imprisonment for two years The prayer made in these appeals is to set aside the impugned judgment and the sentence order by way of acceptance of these appeals and to acquit the appellants of the charge -3- Criminal Appeal No.1316 -SB of 2004, Criminal Appeal No.1521 -SB of 2004 and Criminal Appeal No.1917 -SB of 2004. framed against them under Section 15 of the Act. The prosecution case, in brief, is that on 22.05.2001, Assistant Sub Inspector Dhian Singh while being posted as such in GRP Ambala Cantt, accompanied by other police officials was patrolling the railway station area. At about 12.30 P.M, a secret information was received that three parcels lying at platform no. 4 and two parcels lying at platform no. 6 were suspected to be containing contraband, upon which application (Exhibit P.H/1) with regard to parcels lying at platform no. 6 and application (Exhibit P.J) with respect to parcels lying at platform no. 4 were addressed to the Chief Parcel Supervisor. In these application, suspicion that the parcels contained some contraband was expressed and a request was made to arrange inspection of those parcels. Inspector Incharge of Railway Protection Force was also summoned and parcels were shifted to the office of Chief Parcel Supervisor. On opening of those parcels 'khes' (blankets) were found in those parcels and inside of those 'Khes' (blankets) two bags were found in each of the parcel. Thus, ten bags in all were recovered in the said five parcels. Five bags were found containing 20 kgs of poppy straw each and other five bags were found containing 21 kgs of poppy straw each. Thus, in all 205 kgs poppy straw was recovered. Two samples of 100 grams each were taken out from each of the bag. The bags as well as the samples were converted into parcels and were taken into possession. Ruka was sent to the Police Station on the basis of which First Information Report was recorded by Sub Inspector -4- Criminal Appeal No.1316 -SB of 2004, Criminal Appeal No.1521 -SB of 2004 and Criminal Appeal No.1917 -SB of 2004. Ishwar Chand. Rough site plans of the places of recoveries were prepared. On return to Police Station GRP Ambala Cantt, the contraband as well as witnesses were produced before Sub Inspector Ishwar Chand, officer-in-charge of Police Station GRP, Ambala Cantt. He affixed his seal ICS on all the parcels and the case property was deposited with the Moharrir Head Constable. On 28.5.2001, Inspector Ram Phal, accompanied by Assistant Sub Inspector Dhian Singh and other police personnel visited Railway Station, Kurali, which was the destination of those parcels. Krishan Dev Joshi was Station Supervisor and was apprised of the facts of the case. In the meanwhile, accused Rahish @ Munna approached Krishan Dev Joshi, Station Supervisor along with railway receipt (Exhibit P.C) with respect to arrival of his consignment i.e parcels in question. He was asked to wait. In the meanwhile, accused Nababuddin @ Mallu @ Abhimanyu also approached Krishan Dev Joshi, Station Supervisor about the arrival of consignment. He was also asked to wait and information was given to the police party. Both the accused i.e Rahish @ Munna and Nababuddin @ Mallu @ Abhimanyu were arrested. Statements of witnesses were recorded. Thereafter, on 29.5.2001, accused were produced before the Magistrate and were remanded to police custody. On interrogation accused Nababuddin suffered disclosure statement (Exhibit PB) admitting having booked two parcels for Kurali representing the contents of the parcels to be containing 'Khes' (Blankets) and having kept concealed other railway receipt at his residential house. He further disclosed about the -5- Criminal Appeal No.1316 -SB of 2004, Criminal Appeal No.1521 -SB of 2004 and Criminal Appeal No.1917 -SB of 2004. house of 'Pehalwan' from whom he used to purchase the contraband. On 30.5.2001, the accused were taken to their village. However, no recovery could be effected. The Investigating Officer met Virender Singh, Parcel Clerk and Roshan , a Porter besides Station Supervisor Surinder Singh. Their statements were recorded. On return to the Police Station, the accused were again put up in lock up. On 31.5.2001, while the police party was present at the Railway Station, Ambala Cantt, a secret information was received that accused Mohd. Anish alias Salim, who had got the parcels booked, would be visiting Railway Station. Accused Mohd. Anish alias Salim visited the Railway Station and was apprehended. Upon personal search of Mohd. Anish alias Salim, railway receipt (Exhibit P.G) vide which two parcels containing contraband were booked from Railway Station Khatauli, was recovered. The same was taken into possession vide memo Exhibit P.M. Besides, railway receipt (Exhibit P.G), octroi receipts (Exhibits P.26 to P.30) were also recovered from Mohd. Anish alias Salim. After completion of investigation and on receipt of the report of Chemical Examiner, report under Section 173 of the Code of Criminal Procedure was presented in Court against the accused- appellants. Charge under Section 15 of the Act was framed against the accused, to which they did not plead guilty and -6- Criminal Appeal No.1316 -SB of 2004, Criminal Appeal No.1521 -SB of 2004 and Criminal Appeal No.1917 -SB of 2004. claimed trial. In support of its case, the prosecution examined Satnam Kashyap (P.W.1), Krishan Dev Joshi (P.W.2), Inspector D.J. Singh (P.W.3), Moharrir Head Constable Padam Singh (P.W.4), Constable Om Parkash (P.W.5), Sub Inspector Ishwar Chand (P.W.6), Inspector Bagicha Singh (P.W.7), Virender Singh (P.W.8), Roshan (P.W.9), Assistant Sub Inspector Dhian Singh (P.W.10) and Inspector Ram Phal (P.W.11). On closure of the prosecution evidence, statements of the accused-appellants were recorded under Section 313 of the Code of Criminal Procedure in which they denied the prosecution allegations and pleaded innocence. In their defence, the accused-appellants examined Suresh Kumar (D.W.1), who deposed that after the railway receipt is issued, the Marker Clerk mentions RR number on the consignment including the station of booking and station of destination. He further stated that identity of consignee is verified at the time of delivery. I have heard Mr.Rahul Vats, Advocate, appearing for appellant Nababuddin alias Mallu alias Abhimanyu, Mr. H.L. Bhatia, Advocate, appearing for appellant Mohd. Anish alias Salim and Ms. Sushma Chopra, Additional Advocate General, Haryana appearing for the State-respondent and have gone through the records of the case. Learned counsel for appellant Rahish @ Munna did not -7- Criminal Appeal No.1316 -SB of 2004, Criminal Appeal No.1521 -SB of 2004 and Criminal Appeal No.1917 -SB of 2004. appear in Court when the matter was taken up for hearing in spite of the fact that his presence was requisitioned by the Reader of this Court by displaying his name in the notice board through the Computer installed in the Court. The above detailed narration of facts reveals that the accused-appellants in this case had tried to transport clandestinely 205 Kgs of poppy straw, contained in ten bags, through the Railway Department. It was only through the documents issued by the officials of the Railway Department in the discharge of their official duties that the accused could be apprehended. In this case, the official witnesses of the Railway Police have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements. The accused-appellants have also not alleged any enmity with the police officials. Even no suggestion to any of the prosecution witnesses was put on behalf of the defence counsel before the trial Court about their having any oblique motive to falsely implicate the accused. No discrepancy worth the name could be pointed out in the statements of the prosecution witnesses. There was, thus, no reason for the police to falsely implicate the accused in such a case where stringent punishment has been provided by the Legislature. It may also be mentioned here that both Satnam Kashyap (P.W.1), Krishan Dev Joshi (P.W.2) are railway officials and have no connection with the police. They, under the circumstances, have to be -8- Criminal Appeal No.1316 -SB of 2004, Criminal Appeal No.1521 -SB of 2004 and Criminal Appeal No.1917 -SB of 2004. treated as independent witnesses. The entire case of the prosecution is based on probabilities. In this case, the significant fact which deserves mentioning is that appellants Nababuddin alias Mallu alias Abhimanyu and Salim and Rahish @ Munna, in their statements recorded under Sections 313 of the Code of Criminal Procedure pleaded that they had gone to inquire about the consignment on behalf of the owner. They did not mention the name of the owner on whose behalf they had gone to inquire about the consignment and to collect the contraband. However, the fact remains that appellants Nababuddin alias Mallu alias Abhimanyu and Salim and Rahish @ Munna do not dispute that they had gone to inquire about the consignment and had produced the railway receipt. The possession of the railway receipt (Exhibit P.C) leads to the conclusion that appellants Nababuddin alias Mallu alias Abhimanyu and Salim and Rahish @ Munna were quite conscious about the contents of the consignment which contained contraband. Similarly, appellant Mohd. Anish alias Salim was found possession of railway receipt (Exhibit P.G). He also cannot dispute about his conscious possession over the contraband. This fact clinches the issue that the prosecution has been able to prove successfully that the contraband was booked by the accused and they were the consignee also; meaning thereby they (accused-appellants) have to be considered in conscious possession of 205 Kgs of poppy straw. -9- Criminal Appeal No.1316 -SB of 2004, Criminal Appeal No.1521 -SB of 2004 and Criminal Appeal No.1917 -SB of 2004. It is a valid presumption to be drawn against the accused keeping in view the facts and circumstances of the case. For the aforesaid reasons, I do not find any merit in these appeals. The same are hereby dismissed. ( MOHINDER PAL ) April 19, 2010. JUDGE ak