Crl.A. No.509-SB of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.509-SB of 2006 DATE OF DECISION: August 12, 2011 IQBAL SINGH S/O HAZARA SINGH ...APPELLANT VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? No ---- PRESENT: MS. TANU BEDI, ADVOCATE FOR THE APPELLANT. MR. T.S. SALANA, DAG, PUNJAB. M.JEYAPAUL, J.(ORAL) 1. Accused Iqbal Singh was convicted for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and was sentenced to undergo 10 years R.I. and to pay a fine of Rs.1 lac and in default to undergo further imprisonment for 2 years. He has preferred the present appeal. 2. It is the case of the prosecution that PW5 DSP Ashish Kapoor having spotted a Gypsy of white colour overtaking his official vehicle when he was near the bus-stand Khakhrola on 30.8.2001, alerted PW3 ASI Bindu Bala to hold nakabandi to check the gypsy vehicle. PW5 also gave a chase to the white coloured gypsy vehicle which did not bear any registration number. The said vehicle was stopped by PW3 with the help of other police officials on the culvert in the area of village Dedhna. The accused was found driving the vehicle, but the person who sat close by him gave a slip to the police party. With the consent expressed by the accused under Memo Crl.A. No.509-SB of 2006 -2- Ex.PD, PW5 made a search of the vehicle. There were 14 bags containing chura poppy heads in the vehicle. Two samples of 250 gms. each from those bags were taken and converted as separate parcels. On weighment each bag weighed 34.500 gms. All the sample parcels and bulk quantity were properly sealed and seal impressions were also affixed thereon. The samples were sent for examination. The chemical examiner vide report Ex.PK returned a finding that the samples contained chura poppy heads. PW3 ASI Bindu Bala having investigated the case laid final report as against the accused. The trial Court having relied upon the testimony of PW3 and PW5 in the background of FSL report returned a finding that the accused was in conscious possession of chura poppy heads and convicted the accused under Section 15 of the NDPS Act. 3. Learned counsel appearing for the appellant would submit that the prosecution has come out with a totally improbable version. It is unbelievable that the police officials numbering about 15 could not apprehend the other person who ran away from the scene of occurrence. The gypsy could not have accommodated 14 bags. No independent witness was examined in this case. The defence that the prosecution has come out with a false implication was not adverted to by the trial Court. The evidence of DW1 Sarpanch was not considered by the trial Court. The driver of the vehicle without any registration number would not have the guts to blow horns and overtake the official vehicle of a DSP. It is her submission that the prosecution has miserably failed to establish that the accused was in conscious possession of the contraband. Therefore, she prays that the accused may be acquitted of the charge under Section 15 of Crl.A. No.509-SB of 2006 -3- the NDPS Act. 4. Mr.T.S.Salana, DAG, Punjab appearing for the State would submit that the trial Court has rightly passed the judgement of conviction based on the testimony of PW3 and PW5, in the background of the FSL report available on record. 5. PW5 was the DSP, who gave a chase to the white-coloured gypsy proceeding in front overtaking his vehicle. It is his version that said vehicle did not bear any registration number. It may be a case where the accused having spotted the official vehicle of the police would have thought of overtaking and speeding away in order to escape from the clutches of the police. Even otherwise, every individual would react to a particular situation in a different fashion. PW5 DSP had alerted PW3 ASI Bindu Bala who had intercepted the vehicle. PW3 and PW5 have cogently spoken to the fact that 14 bags of chura poppy heads were recovered from the gypsy vehicle. The FSL report would also establish that the samples sent for examination were nothing but chura poppy heads. 6. The accused was found to be a driver of the said vehicle. If at all the driver had carried any other bulk quantity of material in the vehicle driven by him and only a small quantity of some contraband was found in the vehicle, knowledge of such a small quantity cannot be attributed to him. But in the instant case, the vehicle carried only the contraband, namely, chura poppy heads. Therefore, the driver cannot contend that he was not aware of the content of the load he was carrying. The other person had given a slip to the police party. Quite probably, the police party having apprehended the appellant herein would have thought of collecting the Crl.A. No.509-SB of 2006 -4- information about the absconding accused and arresting him later in point of time. The inability of the police party in apprehending the other co-accused would not enure to the benefit of the accused-appellant against whom the case of the prosecution was established beyond reasonable doubt. Of course, the independent witness, namely, Randhir Singh who was associated by the investigating official could have been examined in this case, but unfortunately, he had not been examined by the prosecuting agency. When the testimony of PW3 and PW5 is found to be credible and trustworthy, the non-examination of independent witness does not go to the root of the case. Even otherwise, in cases like this the independent witness normally does not support the case of the prosecution. Such a reality also will have to be taken note of by the Court. The learned counsel appearing for the appellant would further argue that the owner of the vehicle was not identified by the investigating agency. Of course, the investigation agency had not investigated as to who was the owner of the vehicle and how the accused had come into possession of the said vehicle. Such a lapse would not rescue the accused from the crime, inasmuch as the accused was found driving the vehicle with such a large quantity of contraband. Therefore, the submission made by the learned counsel for the appellant stands rejected. 8. The appellant who drove the vehicle fully loaded with the contraband cannot now contend that the prosecution did not establish that he had any connection with the contraband he was carrying. DW1 the Sarpanch of the village of course would speak to the fact that the accused was secured from his village. In the face of testimony of PW3 and PW5, I Crl.A. No.509-SB of 2006 -5- do not find any substance in the evidence of DW1 who has come to bat for the defence set up by the accused. 8. In find that the appellant has not made out a case to upset the decision of the trial Court. The trial Court has rightly scanned the materials on record and arrived at a conclusion that accused did commit an offence under Section 15 of the NDPS Act. 9. In view of the above, the judgement of conviction and order of sentence passed by the trial Court is confirmed and the appeal stands dismissed. August 12, 2011 (M.JEYAPAUL) Gulati JUDGE