Crl.Appeal No. 192-DB of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision: 6.12.2010 (I) Crl.Appeal No.192-DB of 2006 Balbir Singh ... Appellant versus State of Punjab ... Respondent (II) Crl.Appeal No.212-DB of 2006 Jarnail Singh ... Appellant versus State of Punjab ... Respondent (III) Crl.Appeal No.503-DB of 2006 Tarsem Singh ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.C.S.Rana, Advocate, for the appellant in Crl.Appeal No.192-DB of 2006 Mr.Gorakh Nath, Advocate, for the appellant in Crl.Appeal No.212-DB of 2006. Mr.Gurinderjit Singh, Advocate, for the appellant in Crl.Appeal No.503-DB of 2006 Ms.Gurveen H.Singh, Addl.AG, Punjab. ... JORA SINGH, J. Vide this common judgment, we propose to dispose of Crl.Appeal No.192-DB of 2006, Crl.Appeal No.212-DB of 2006 and Crl.Appeal No.503-DB of 2006 filed by Balbir Singh, Jarnail Singh and Tarsem Singh, respectively, to challenge the judgment of conviction and order of sentence dated 6.2.2006 passed by Judge, Special Court, Mansa, Crl.Appeal No. 192-DB of 2006 2 arising out of FIR No. 74 dated 2.7.1999 under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short `the Act'), Police Station Boha. By the said judgment, they were convicted under Section 15 of the Act and sentenced to undergo RI for 20 years and to pay a fine of Rs.2,00,000/-, in default of payment of fine, to further undergo RI for 2 years each. Prosecution story, in brief, is that on 2.7.1999, police party headed by ASI Surjit Singh was present in the revenue estate of Village Achanak while on patrol duty. In the meantime, Balwant Singh met the party and after joining Balwant Singh, the police party was at a distance of 15/20 karams towards the revenue estate of Village Saidewala, then sighted Jeep No. HR-22-8615 on a metalled road. Two persons were seen sitting on the rear seat and one person was seen while checking its tyres. On suspicion, police party surrounded the jeep but on seeing the police party, the accused, who was checking the tyres, had fled away from the spot. He was identified by the IO as Balbir Singh. Jarnail Singh and Tarsem Singh were apprehended by the police party. IO suspected some intoxicating material in the bags loaded in the jeep. Offer was given to the accused as to whether they wanted the search of the bags in the presence of a gazetted officer or a Magistrate. Jarnail Singh and Tarsem Singh replied that they wanted to be searched in the presence of a gazetted officer. Consent memos were prepared separately. Wireless message was sent for sending any gazetted officer at the spot. At about 10.30 AM, DSP Baljit Singh came at the spot on Government jeep along with his gunman. He had introduced himself as gazetted officer. Then he gave offer to the accused as to whether Crl.Appeal No. 192-DB of 2006 3 they wanted to be searched before any other gazetted officer or a Magistrate but accused had reposed faith in the DSP for search of gunny bags. Consent memos were prepared. As per direction of the DSP, IO had searched the gunny bags and the same were found to be containing poppy husk. Two samples, weighing 100 grams each, were separated from each bag and the remaining poppy husk in each bag was found to be 35 kgs. 8 samples and remaining poppy husk in 4 bags were sealed by the seal bearing impression `SS' and the case property was taken into police possession vide separate memo attested by the witnesses. Seal impression was prepared. Seal after its use was handed over to Balwant Singh. Ruqa was sent to the concerned police station, on the basis of which, formal FIR was recorded. Rough site plan with its correct marginal notes was prepared. Statements of the witnesses were recorded. On return to the police station, case property was kept by the IO in his safe custody because he was the Station House Officer on that day. On the next day, accused along with case property were produced before the Ilaqa Magistrate. There was no space in the Judicial Malkhana, so case property was kept by the IO in his own custody. Sealed sample parcels were deposited in the office of Chemical Examiner. On 19.9.1999, accused Balbir Singh was arrested and sent to police lock up. As per report of the Chemical Examiner, contents of the sealed sample parcels were found to be poppy husk. After completion of investigation, challan was presented in Court. Accused were charged under Section 15 of the Act, to which they pleaded not guilty and claimed trial. Prosecution examined PW1 Narinder Kumar, Clerk, Office of SDM, Fatehabad. As per record, he stated that Jeep No. HR-22-8615 was Crl.Appeal No. 192-DB of 2006 4 registered in the name of Chaminder Singh son of Gamdoor Singh, r/o Sehnal, Tehsil Ratir, District Hisar. PW2 Constable Gurlal Singh tendered his affidavit (Ex.PB). He has deposited sealed sample parcels in the office of Chemical Examiner. PW3 DSP Baljit Singh is one of the recovery witnesses. PW4 HC Gurmail Singh was with the IO and is one of the recovery witnesses. PW3 and PW4 supported the prosecution story by saying that 4 bags of poppy husk were recovered from the possession of the accused being transported on Jeep No. HR-22-8615. PW5 ASI Surjit Singh (since retired) is the Investigating Officer. PW6 HC Mela Singh stated that on 19.9.1999, he was with the police party headed by ASI Surjit Singh. Balbir Singh was arrested in this case. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. In defence, DW1 Subhash appeared and stated that he has brought OPD register. DW2. Dr.Om Partap stated that on 30.6.1999, he was serving at PHC, Danoda Kalan, District Jind. On that day, Balbir Singh was admitted in the hospital. Patient was referred to General Hospital, Tohana, on 2.7.1999. DW3 Balwant Singh stated that about 6-1/2 years back, he had gone to ASI Surjit Singh. He was having cordial relations with him. ASI Surjit Singh had obtained his signatures on blank papers. No recovery was Crl.Appeal No. 192-DB of 2006 5 effected from the accused in his presence. After hearing learned Public Prosecutor for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid. We have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on the file. Learned defence counsel for Balbir Singh, appellant, argued that Balbir Singh was not arrested at the spot. Earlier to the occurrence, he was not known to the police party. No test identification parade that the accused who had fled away from the spot was Balbir Singh. In fact, on 30.6.1999, Balbir Singh was admitted in PHC, Danoda Kalan, and was referred to General Hospital, Tohana, on 2.7.1999. He had no concern with Jeep No. HR-22-8615. Only one line in the statement of the IO that he was earlier known to him and had identified him at the spot when he had fled away from the spot. Learned defence counsel for Jarnail Singh and Tarsem Singh, appellants, argued that according to the prosecution story, Balwant Singh was joined by the IO but he was not examined by the prosecution. Balwant Singh appeared in defence and stated that his signatures were obtained on blank papers because IO was known to him. No recovery was effected in his presence from the appellants. According to the prosecution story, recovery was effected by the police party headed by ASI Surjit Singh but on return to the police station, case property along with the accused was not produced before the SHO, namely, ASI Santokh Singh, who was the Incharge of the police station. There is violation of Sections 55 and 57 of the Act. Crl.Appeal No. 192-DB of 2006 6 Learned State counsel argued that Balbir Singh, appellant, was the owner of the vehicle in question and this fact is clear from his affidavit (Ex.PR). Vehicle was purchased from Surinder Singh. His affidavit is also on record. Balbir Singh when examined under Section 313 Cr.P.C., then did not state a word that he was not the owner of Jeep No. HR-22-8615 and in case he was lying admitted in the hospital as per DW2, then to whom the vehicle was given. Simple allegation of Balbir Singh is that case is false. Balwant Singh was joined as independent witness but he was given up as won over by the appellants. He appeared in defence and admitted his signatures on all the memos prepared by the IO. If IO was known to him, then there was no idea to obtain his signatures on blank papers. If his signatures were obtained on blank papers, they why he remained silent. He should have filed complaint against the IO. Till today, no complaint against the IO. On the day of recovery, ASI Surjit Singh was the Incharge of Police Station. So, there was no idea to produce the case property along with the accused before ASI Santokh Singh. On the next day, case property along with accused was produced before the Magistrate. As per report of the Chemical Examiner, seals on the sealed parcels were found intact and tallying with the seal impression. Earlier to the recovery, police party had no enmity with the appellants. So, there was no idea to implicate the appellants. First submission of learned defence counsel for Balbir Singh was that he was not apprehended at the spot and no test identification parade was conducted. No evidence on the file that the third accused, who had fled away from the spot, was Balbir Singh. But after going through the evidence on the file, we are not in a position to agree with the submission of Crl.Appeal No. 192-DB of 2006 7 learned counsel for Balbir Singh because there are two affidavits on the file, one is of Balbir Singh and the same is exhibited as Ex.PR and the second is of Surinder Singh. According to PW1, Jeep No. HR-22-8615 was registered in the name of Chaminder Singh son of Gamdoor Singh but from the original owner, jeep was purchased by Surinder Singh and Surinder Singh had further sold the same to Balbir Singh. No question was put to PW1 that at the time of recovery, Balbir Singh was not the owner in possession of Jeep No. HR-22-8615. Balbir Singh when examined under Section 313 Cr.P.C., then affidavit (Ex.PR) was put to him but no explanation that the affidavit is not correct one and he had not purchased the jeep in question from Surinder Singh. At the time of recovery, jeep was in working condition but when produced in Court, then jeep was not in working condition. Jeep is still lying in the police station. As discussed earlier, if Balbir Singh was not the owner of the jeep in question, then he could easily state that affidavit (Ex.PR) is not correct one and on the day of recovery, he was not the owner in possession of the jeep. Second allegation of learned counsel for Balbir Singh was that on 30.6.1999, Balbir Singh was lying admitted in PHC, Danoda Kalan, and was referred to General Hospital, Tohana, on 2.7.1999 and this fact is clear from the statement of DW2 Dr. Om Partap but after going through the evidence on the file, we are not in a position to agree with the submission of learned counsel for Balbir Singh because in examination-in-chief, DW2 stated that on 30.6.1999, he was serving in PHC, Danoda Kalan. Balbir Singh was admitted in the hospital. Patient was referred to General Hospital, Tohana, but no evidence on the file that patient was referred to General Hospital, Tohana. Dr. Om Partap in cross-examination stated that Crl.Appeal No. 192-DB of 2006 8 no record regarding admission of Balbir Singh in PHC, Danoda Kalan, then admitted that in the OPD register, there is over writing in the name of Balbir Singh. In the bed head ticket, no identification mark of the patient. Reference slip not on the printed format. First of all, no cogent and convincing evidence on the file that Balbir Singh was admitted in PHC, Danoda Kalan and from PHC, Danoda Kalan, he was referred to General Hospital, Tohana, and on which date, he was discharged from the hospital and what was the disease. At the time of admission, fees is also deposited but no receipt. Reference slip not on the printed format, so it is very easy to prepare a slip like the present one. Balbir Singh is the resident of Village Mehmra, PS Ratia, and when examined under Section 313 Cr.P.C., then did not state a word that on 30.6.1999, he was suffering from such and such disease and got himself admitted in PHC, Danoda Kalan. Thereafter, he was referred to General Hospital, Tohana, and on which date, he was discharged from the hospital. So, statement of Dr. Om Partap inspires no confidence to opine that Balbir Singh was actually admitted in PHC, Danoda Kalan. If we presume that on 30.6.1999, Balbir Singh was admitted in PHC, Danoda Kalan, then question is whether on 2.7.1999, he was still lying admitted in General Hospital, Tohana, or was discharged from the hospital. Record from General Hospital, Tohana, could easily be summoned to state that on 2.7.1999, Balbir Singh was lying admitted in the hospital and was unable to move. IO when appeared in Court, then stated that on seeing the police party, one of the accused, who was checking the tyres, had fled away from the spot and he was Balbir Singh present in the Court. No question was put to the IO that the accused, who had fled away from the spot on Crl.Appeal No. 192-DB of 2006 9 seeing the police party, was not Balbir Singh. IO simply stated that Balbir Singh was not personally known to him. According to documentary proof, Balbir Singh was the owner of the vehicle in question on the date of recovery. No explanation by Balbir Singh that he was not the owner of the vehicle and if he was the owner of the vehicle, then to whom the vehicle was given. Balbir Singh was arrested on 19.9.1999 but no request to arrange test identification parade. Till today, no complaint to any authority that case is false. Oral as well as documentary evidence on the file leads to this conclusion that on seeing the police party, Balbir Singh had fled away from the spot. Submission of learned counsel appearing on behalf of Jarnail Singh and Tarsem Singh, appellants, was that according to the prosecution story, Balwant Singh was joined as independent witness but was not examined for the reasons best known to the prosecution. Balwant Singh appeared in defence and stated that no recovery was effected in his presence but submission of learned defence counsel is without any force. On 2.7.1999, police party headed by ASI Surjit Singh while on patrol duty was present in the revenue estate of Village Saidewala, then noticed one jeep parked on the metalled road. One of the accused, who was checking the tyres, had fled away from the spot and he was Balbir Singh. Other accused, namely, Jarnail Singh and Tarsem Singh, were arrested from the spot. Balwant Singh was with the police party but he was given up as won over by the appellants. Balwant Singh appeared in defence as DW3 and in examination-in-chief stated that about 6-1/2 years back, he was having cordial relations with ASI Surjit Singh, who had obtained his signatures on blank papers. Firstly, no explanation for what purpose he had gone to the Crl.Appeal No. 192-DB of 2006 10 police station and in case he was having cordial relations with ASI Surjit Singh, then there was no idea to obtain his signatures on blank papers. If Balwant Singh had gone to police station and his signatures were obtained on blank papers, then he should have raised hue and cry. Immediately, he should have filed complaints to different authorities that his signatures were obtained on blank papers by ASI Surjit Singh. Till today, no complaint to any authority. Earlier to the recovery, police party had no enmity with the appellants. So, without any enmity, there was no idea to choose the appellants. Balwant Singh was joined as independent witness. Seal after its use was handed over to him but he was given up as won over by the appellants. He appeared in defence. Common experience shows that when there is a request by the police to join the party, then no one agrees to join the party and if any one agrees to join the party, then fails to support the prosecution story. To avoid enmity with the appellants, Balwant Singh appeared in defence. Once Balwant Singh has admitted his signatures on all the papers prepared by the IO at the spot at the time of investigation, then it is very easy to appear in defence and state that his signatures were obtained on blank papers. So, with the appearance of Balwant Singh in defence, prosecution story is not to be ignored. Next submission of learned defence counsel for the appellants was that on return to the police station, case property along with the appellants was not produced before the SHO and there is violation of Sections 55 and 57 of the Act. But submission of learned defence counsel is without any force because on the date of recovery, ASI Surjit Singh, IO, was the Incharge of the Police Station. There was no reason to produce the case property along with the appellants before any other officer. On the next Crl.Appeal No. 192-DB of 2006 11 day, case property along with the appellants was produced before the Ilaqa Magistrate. Recovery was effected on 2.7.1999. Two samples, each weighing 100 grams, were separated from each bag. 8 samples and the remaining poppy husk in 4 bags were sealed with the seal bearing impression `SS’. Seal impression was prepared separately. Sealed sample parcels were deposited in the office of Chemical Examiner on 8.7.1999. Seals on the sealed sample parcels were found intact and tallying with the seal impression. Moreover, provisions of Sections 55 and 57 of the Act are not mandatory but are only directory. No other submission was put forward. In view of all discussed above, we are of the opinion that evidence on the file was rightly scrutinized by the trial Court. No reason to differ. There is no infirmity or illegality in the impugned judgment and the same is ordered to be upheld. Recovery is of 4 bags of poppy husk. After separating 2 samples, each weighing 100 grams from each bag, remaining poppy husk was found to be 35 kgs in each bag. 140 kgs. Poppy husk was recovered from three appellants. Appellants are the first offenders and they belong to poor families. In AIR 2005 SC 2917, Balwiner Singh and others vs. Assistant Commissioner Custom and Central Excise, 175 kgs of heroin and 39 kgs of opium of foreign origin was recovered and Hon'ble Supreme Court by taking into account the fact that the accused in that case was the first offender, reduced the sentence of imprisonment for a period of 14 years to 10 years. In view of above, we take lenient view and direct the appellants Crl.Appeal No. 192-DB of 2006 12 to undergo RI for 10 years instead of 20 years and to pay a fine of Rs.1,00,000/- instead of 2,00,000/-, in default of payment of fine, to further undergo RI for 6 months instead of 2 years each. For the reasons recorded above, Crl.Appeal No.192-DB of 2006, Crl.Appeal No.212-DB of 2006 and Crl.Appeal No.503-DB of 2006 without merit are dismissed with modification on the point of sentence. Appellant Tarsem Singh in Crl.Appeal No.503-DB of 2006 is on bail. He is directed to surrender before the jail authorities concerned, failing which the concerned authorities/CJM, Mansa, to issue re-arrest warrants for undergoing the remaining period of sentence awarded to him. ( JORA SINGH ) JUDGE 6.12.2010 ( SATISH KUMAR MITTAL ) pk JUDGE