CRIMINAL APPEAL NO. 112-DB OF 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: April 28, 2009 Parties Name Babloo ...APPELLANT. VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. Pankaj Nanhera, Advocate, for the appellant. Mr. S.S.Randhawa, Addl. A.G., Haryana, for the respondent. JASBIR SINGH, J. JUDGMENT Appellant Babloo son of Ram Lal has filed this appeal to lay challenge to judgment and order dated December 10, 2005, and December 14, 2005, respectively, vide which he was convicted for commission of an offence under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 2,00,000/- with a default clause. It was allegation against him that on September 9, 2004, in the CRIMINAL APPEAL NO. 112-DB OF 2006 -2- area of Police Station Samalkha, district Panipat, he was found in possession of 500 grams of smack without any permit/ licence. Case of the prosecution, as noticed by the trial Court in para No. 2 of the impugned judgment, reads thus: “The factual matrix comprising the case of the prosecution shorn of details is that on 9.9.2004, ASI Jai Kishan along with other police employees was present near the gate of new Bus Stand Samalkha while on patrolling and checking of crime and in the meantime a young boy was seen coming from the side of bus stand and on seeing the police party he took a back turn and started walking briskly but was stopped on the basis of suspicion. His antecedents were enquired about. Since the Investigating Officer was suspecting some narcotic in possession of the accused he served notice under Section 50 of the Act upon the accused about his option to give his personal search either in presence of a gazetted officer or a magistrate upon which the accused opted to give search to the investigating officer having faith in him and then on personal search of accused from the right pocket of his pent a polythene made small bag was recovered which on checking was found to be containing smack. On weighing the said contraband was found to be 500 grams, out of which five grams of smack was separated as sample. Sample and the remaining contraband were sealed separately and the entire case property was taken into possession vide a memo duly attested by the witness.” CRIMINAL APPEAL NO. 112-DB OF 2006 -3- Thereafter, intimation was sent to the Police Station, on the basis of which FIR No. 234 was registered against the appellant on September 9, 2004. The Investigating Officer in the meantime got prepared site plan of the place of recovery. He also recorded statements of the prosecution witnesses. On return to the Police Station, case property was deposited with Mohrir Head Constable. In due course, sample was sent to the Forensic Science Laboratory, Madhuban, for analysis. On receipt of report and completing other formalities final report was put in Court for trial. The appellant was charge-sheeted to which he pleaded not guilty and claimed trial. The prosecution produced six witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the appellant – accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was to put to him. He denied the same, claimed innocence and false implication. He also led evidence in defence. The trial Court, on appraisal of evidence led by both the parties, came to a conclusion that the prosecution was successful in bringing home guilt of the appellant – accused and accordingly convicted and sentenced him as found mentioned in earlier part of this order. Counsel for the appellant by taking us through the contents of the paper book argued that in view of large number of discrepancies existing in the statements of the prosecution witnesses, the trial Court was not justified in convicting the appellant – accused. He referred to some discrepancies existing in the statement made by PW1 ASI Bijender Singh , PW2 ASI Jai Kishan and PW6 Sub Inspector Rajinder Singh regarding the time at which the police party left the Police Station, when accused was CRIMINAL APPEAL NO. 112-DB OF 2006 -4- arrested, at what time PW6 reached the place of recovery and how and in what manner sample of the contraband was extracted and it was weighed. He also argued that sample of the contraband was sent for examination to the Forensic Science Laboratory after four days and there is nothing on record to prove that during the intervening period, the sample remained intact and was not tampered with. In the alternative, he argued that the appellant was not a previous convict. As such the trial Court was not justified in awarding harsher punishment to him. He prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant be acquitted of the charge framed against him. Prayer made has been opposed by the State counsel. By making reference to the statement made by ASI Bijender Singh, ASI Jai Kishan and Sub Inspector Rajinder Singh, he argued that the prosecution was successful in proving commission of offence by the appellant. Proper procedure in effecting recovery from the appellant was adopted. Notice for search and option to search before a Magistrate or a gazetted officer was given to the accused. However, he reposed faith in the Investigating Officer and as per his consent, search was conducted. By stating that the discrepancies indicated by the counsel for the appellant were minor, on account of which no benefit can be given to the defence, he prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, we feel that so far as conviction of the appellant is concerned, there is no scope to interfere in the same. It has come on record that the appellant was spotted by the police party headed by Jai Kishan PW2. On the sight of the police party, the appellant – accused became frightened and tried to retrace his steps. On CRIMINAL APPEAL NO. 112-DB OF 2006 -5- suspicion, he was apprehended. Notice Ex. PA was served upon him giving him option of personal search either in the presence of a gazetted officer or a Magistrate. Vide consent memo Ex. PA/1 , the appellant – accused reposed faith in the Investigating Officer, whereupon his search was conducted and from right pocket of his pants, 500 grams of smack was recovered. Sample was separated and sealed. The remaining contraband was also sealed. SHO/ Sub Inspector Rajender Singh also reached at the spot. He also put his seal on the sample parcel and main parcel of the remaining contraband. Minor discrepancies as to when police party left the Police Station, when SHO reached at the spot and for how much time he remained there do not go to the root of the case. The official witnesses have stood test of the cross-examination. The defence could not shatter their testimony by putting them to rigorous cross-examination. Sample was sent to the Forensic Science Laboratory within a period of four days. As such above said fact is not fatal to the case of the prosecution. There is sufficient evidence on record to show that the sample parcel of the contraband remained intact till it reached Forensic Science Laboratory at Madhuban. Sufficient evidence in the shape of affidavits of the police officials is on record. In view of evidence, this Court is satisfied that before effecting recovery, compliance was made with the provisions of Section 50 of the NDPS Act. Recovery was effected on September 9, 2004. The witnesses have deposed in Court after a gap of about 1/ 1-1/2 year. In such like situation, minor discrepancies regarding mode, manner etc. of the recovery are bound to occur, which in our opinion will not go to the benefit the accused. It has also come on record that in this case, compliance with the provisions of Sections 52 and 57 of the NDPS Act was also made by the CRIMINAL APPEAL NO. 112-DB OF 2006 -6- Investigating Officer. After recovery, case property and other record were produced before the Station House Officer. S.I. Rajinder Singh (PW6) verified facts of the case from the accused and the witnesses and thereafter affixed his seal on the sample. He also directed the Investigating Officer to deposit the case property with MHC. Special report was also sent to the concerned Ilaqa Magistrate. The trial Court has rightly discarded defence evidence brought on record by the appellant – accused. In view of above, we are not inclined to interfere in order convicting the appellant – accused for the offence with which he was charged. So far as quantum of sentence is concerned, we feel that it is on the higher side. Appellant was not a previous convict. Quantity of contraband recovered though commercial in nature is not very heavy. Appellant is married and he has old aged parents. Taking note of above said facts, we reduce the sentence of the appellant from 12 years' RI to RI for a period of ten years. Fine is also reduced from Rs. 2,00,000/- to Rs. 1,00,000/-. In case of default, the appellant – accused shall further undergo RI for a period of one year. In view of above, appeal stands dismissed with modification in sentence as mentioned above. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE April 28, 2009. DKC