Crl.Appeal No. 201-DB of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision: 9.12.2010 (I) Crl.Appeal No.201-DB of 2006 Raj Singh ... Appellant versus State of Punjab ... Respondent (II) Crl.Appeal No.221-DB of 2006 Gurpreet Singh ... Appellant versus State of Punjab ... Respondentt CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.A.P.S.Deol, Sr.Advocate, with Mr.J.R.Lamba, Advocate, for the appellant in Crl.Appeal No.201-DB of 2006 Mr.T.P.S.Tung, Advocate, for the appellant in Crl.Appeal No.221-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.201-DB of 2006 filed by Raj Singh and Crl.appeal No. 221-DB of 2006 filed by Gurpreet Singh to challenge the judgment of conviction and order of sentence dated 10.2.2006 passed by Judge, Special Court, Mansa, in Sessions Case No.102 of 1.12.2000, arising out of FIR No.43 dated 22.6.2000, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, `the Act’), PS, Jhunir. By the said judgment, they were convicted under Section 15 of the Act and sentenced to undergo RI for 15 years and to pay a fine of Crl.Appeal No. 201-DB of 2006 2 Rs.1,50,000/-, in default of payment of fine, to further undergo RI for 2 years each. Prosecution story, in brief, is that on 22.6.2000, police party headed by SI Sukhdev Singh on Government Canter while on patrol duty was going towards Village Jatana Khurd, then Angrej Chand son of Roop Chand, r/o Jhunir, met the party and after joining him, police party was present near the bridge of canal in the revenue estate of Village Jatana Kalan, then sighted two persons while sitting on the gunny bags by the side of pucca road near sarkanda. They were apprehended and on enquiry, one of them disclosed his name as Raj Singh and the other as Gurpreet Singh. SI Sukhdev Singh suspected some intoxicant substance in the bags, which were three in number. Offer was given to the accused separately as to whether they wanted search of the gunny bags before a gazetted officer or a Magistrate. Both the accused replied that they wanted to be searched before a gazetted officer. Consent memos were prepared separately, duly thumb marked by the accused. As per reply of the accused, wireless message was sent to Police Station Jhunir to send any gazetted officer at the spot. After half an hour, Amarjit Singh, DSP, Sardulgarh, came at the spot along with his gunman. He disclosed his identity as gazetted officer and gave offer to the accused as to whether they wanted search of the bags to be conducted before him or any other gazetted officer or a Magistrate. Then accused reposed faith in him for the search of gunny bags. Consent memos were prepared separately, which were thumb marked by the accused and attested by the witnesses. SI Sukhdev Singh was directed to search the bags and on search of bags, same were found to be containing poppy husk. Two samples each weighing 100 grams were separated from each bag and remaining Crl.Appeal No. 201-DB of 2006 3 poppy husk in each bag was found to be 35 kgs. Six samples and remaining poppy husk in three bags were sealed separately by the seal bearing impression `SS’. Seal impression was prepared separately. Seal after its use was handed over to Angrej Chand. Case property was taken into police possession vide separate memo attested by the witnesses. Ruqa was sent to the police station, on the basis of which, formal FIR was registered. On return to the police station, case property along with accused was produced before SHO Chuhar Singh, who after verifying the investigation, affixed his own seal bearing impression `CS’ on the sealed parcels. Seal impression was prepared separately. Case property was kept by the SHO in his custody. Three sealed parcels along with seal impressions were deposited in the office of FSL, Chandigarh. As per report of FSL, contents of samples were found to be poppy straw. 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 Constable Kulwant Singh, who tendered his affidavit (Ex.PA). He has deposited three sample parcels in the office of FSL, Chandigarh, on 25.6.2000, handed over to him by Inspector Chuhar Singh, SHO, PS, Jhunir. PW2 DSP Amarjit Singh stated that as per wireless message, he had gone at the spot. Accused were found present there in the custody of police with three bags. He disclosed his identity to the accused and gave offer as to whether they wanted search of bags before him or any other gazetted officer or a Magistrate, but the accused reposed faith in him for search of bags before him. Each bag was found to be containing poppy Crl.Appeal No. 201-DB of 2006 4 husk. Two samples of 100 grams each were separated from each bag and remaining poppy husk in each bag was found to be 35 kgs. Six samples and remaining poppy husk in three bags were sealed separately by the IO with his seal bearing impression `SS’. Seal impression was prepared separately. Seal after its use was handed over to Angrej Chand. Case property was taken into police possession vide separate memo attested by the witnesses. PW3 Inspector Chuhar Singh, SHO, PS, Jhunir, stated that IO has produced before him case property along with the accused. After verifying the investigation of the case, he has affixed his own seal bearing impression `CS’ on the sealed parcels. Seal impression was prepared. Case property was kept in his possession and on 25.6.2000, he has handed over three sealed parcels along with seal impressions to Constable Kulwant Singh for depositing in the office of FSL, Chandigarh. PW4 SI Sukhdev Singh is the Investigating Officer. 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 HC Sukhpal Singh stated that sample parcel of this case was handed over to Constable Bhagwant Singh on 25.6.2000 but in cross-examination admitted that he was not present when sample parcel was handed over to the Constable. DW2 Angrej Chand stated that he was cited as witness in 40 cases. His shop is in front of Police Station, Jhunir. No recovery was effected in his presence but in cross-examination admitted his signatures on all documents, i.e., Ex.PB, Ex.PC, Ex.PD, Ex.PJ, Ex.PK, Ex.PM and Ex.PN, prepared by the IO at the spot. Crl.Appeal No. 201-DB of 2006 5 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 file. Learned defence counsel for the appellants argued that appellants were not in conscious possession of the poppy husk alleged to be recovered as per prosecution story. Independent witness was joined. Seal after its use was handed to independent witness but IO admitted that on the next day, seal was returned to him. Sample parcels were sent to the laboratory on 25.6.2000 when seal was with the IO on 23.6.2000. Possibility of tampering with the case property cannot be ruled out. Independent witness was not examined by the prosecution but he appeared in defence as DW2 and stated that no recovery was effected in his presence. Argued that both the appellants are very poor. They are in custody for the last about six years. Requested to take lenient view. Learned State counsel argued that police party headed by SI Sukhdev Singh was on patrol duty. Appellants were seen while sitting on the gunny bags containing poppy husk. Appellants are from different villages and had no enmity with the IO. That means, appellants were in conscious possession of poppy husk. Independent witness was with the police party but he was not examined because he was won over by the appellants. Independent witness when appeared as DW2, then admitted his signatures on all the documents but no complaint till today to any authority that his signatures were obtained on blank papers or by force. Appearance of independent witness in defence rather shows that he was rightly given up Crl.Appeal No. 201-DB of 2006 6 as won over by the appellants. IO admitted that on the next day, seal was returned to him, but on return to the police station, case property was produced before the SHO, who after verifying the investigation of the case had affixed his own seal on sealed parcels. Case property remained in the custody of the SHO, who had handed over sealed parcels to Constable Kulwant Singh for depositing in the laboratory. Seals were found intact and tallying with the seal impressions. When case property was in the custody of SHO, then with the return of seal on the next day to the IO nothing to presume that case property was tampered with. First submission of learned counsel for the appellants was that appellants were not in conscious possession of poppy husk alleged to be recovered as per prosecution story, but after going through the evidence on the file, we are of the view that submission of learned counsel for the appellants is not correct one. Appellants are from different villages and they were seen while sitting on the gunny bags. Before recovery, they had no enmity with the IO. Without enmity, there was no idea to choose the appellants to implicate in the present case. No explanation by the appellants as to why they were sitting on the gunny bags containing poppy husk. Appellants when examined under Section 313 Cr.P.C., then simply stated that no recovery was effected. Case is false. But till today, no complaint to any authority regarding false implication. Appellants kept gunny bags containing poppy husk by the side of the road near the bridge of canal. No explanation from the side of the appellants for what purpose they were sitting on the gunny bags. Apprehension of the appellants while sitting on the gunny bags containing poppy husk shows that appellants were in conscious possession of the recovered poppy husk. Crl.Appeal No. 201-DB of 2006 7 Next submission of learned counsel for the appellants was that independent witness was joined. Seal after its use was handed over to independent witness but on the next day, seal was returned to the IO. Three sealed parcels were deposited in the laboratory on 25.6.2000, so possibility of tampering with the case property cannot be ruled out. But submission of learned counsel for the appellants seems to be not correct one. When appellants were apprehended while sitting on the gunny bags and the IO suspected that there seems to be some intoxicant in the gunny bags, then offer was given to the appellants as to whether they wanted search of the bags before any gazetted officer or a Magistrate. As per reply of the appellants, gazetted officer was summoned. Gazetted officer disclosed his identity to the appellants and gave offer to them as to whether they wanted search of the bags before him or any other gazetted officer or a Magistrate. Then as per reply of the appellants, IO had searched the gunny bags. Two samples each weighing 100 grams were separated from each bag and remaining poppy husk in each bag was found to be 35 kgs. Six samples and remaining poppy husk in three bags were sealed separately by the seal bearing impression `SS’. Seal impression was prepared separately. Seal after its use was handed over to independent witness. Case property was taken into police possession vide separate memo attested by the witnesses. On return to the police station, case property along with accused was produced before SHO Chuhar Singh, who after verifying the investigation, affixed his own seal bearing impression `CS’ on the sealed parcels. Seal impression was prepared separately. Case property was kept by the SHO in his custody and on 25.6.2000, he had handed over three sealed parcels along with seal impressions to Constable Kulwant Singh for depositing in the Crl.Appeal No. 201-DB of 2006 8 office of FSL, Chandigarh. Recovery was effected in the presence of gazetted officer but case property was not sealed with the seal of gazetted officer. No provision that case property was also to be sealed with the gazetted officer. As per report of FSL, seals were found intact and tallying with the seal impression. With the return of seal on the next day to the IO, no question of tampering with the case property because case property remained in the custody of SHO and not with the IO. Learned counsel for the appellants argued that Angrej Chand, independent witness, was not examined by the prosecution but he appeared in defence as DW2 and stated that no recovery was effected from the appellants. So, in view of the statement of Angrej Chand, story becomes doubtful but after going through the evidence on the file, we are not in a position to agree with the submission of learned counsel for the appellants. Angrej Chand was joined as independent witness. Seal of IO after its use was handed over to him but he was not examined by the prosecution as won over by the appellants. He appeared as DW2 and in examination-in- chief stated that he was cited as witness in 40 cases but no documentary proof that he was actually cited as witness in 40 cases. Angrej Chand in cross-examination admitted his signatures on all the documents prepared by the IO at the spot. No complaint to any authority that his signatures were obtained by force on blank papers. If signatures of Angrej Chand were obtained on blank papers or by force, then he could easily send complaints to different authorities. So, statement of Angrej Chand is not helpful to the appellants. He appeared in defence as won over by the appellants. With the appearance of Angrej Chand in defence, prosecution story is not to be Crl.Appeal No. 201-DB of 2006 9 ignored. Appellants are not in a position to explain how they were chosen from different villages when there being no enmity with the police. Last submission of learned counsel for the appellants was that appellants are very poor and they have already undergone near about six years. Recovery is 105 kgs. of poppy husk from three bags. Requested to take lenient view. Admittedly three bags, each weighing 35 kgs. poppy husk, were recovered from the appellants. Appellants are very poor and they have already undergone near about six years. Appellants are the only bread winners of their families. Recovery was on 22.6.2000 and at the time of charge, Raj Singh was 19 years old, whereas Gurpreet Singh was 18 years old. Keeping in view the quantity of poppy husk recovered from the appellants, we take lenient view and instead of directing the appellants to undergo imprisonment as ordered by the trial Court, they are directed to undergo RI for 10 years instead of 15 years and to pay a fine of Rs.1,00,000/- instead of Rs.1,50,000/-, in default of payment of fine, to further undergo RI for 3 months instead of 2 years each. For the reasons recorded above, both the appeals, i.e., Crl.Appeal No.201-DB of 2006 and Crl.Appeal No.221-DB of 2006 without merit are dismissed with modification on the point of sentence. ( JORA SINGH ) JUDGE 9.12.2010 ( SATISH KUMAR MITTAL ) pk JUDGE