Criminal Appeal No. 123-SB of 2001 1 In the High Court of Punjab and Haryana, Chandigarh. Criminal Appeal No. 123-SB of 2001 Date of Decision: 30.01.2008. Manjit Singh alias Raju. …Appellant Versus State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. P.S.Hundal, Advocate for the appellant. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. This criminal appeal has been preferred by Manjit Singh alias Raju, son of Labh Singh, resident of Village Rampur, near Nangal Dam, District Ropar. The appellant/accused has been named in the FIR No. 101 dated 28.8.1999 registered at Police Station Mahalpur, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as `the Act'). Briefly stated in the FIR that Navjot Singh, Inspector/Station Criminal Appeal No. 123-SB of 2001 2 House Officer, Police Station Mahalpur along with his companion police officials was present at 'T' point Chat Nariala in a Government vehicle for nakabandi and was checking suspected persons. Then at about 7.00 P.M. one person on a scooter came from the side of Village Jaijon towards Mahalpur. On seeing the police party, he became perplexed and after throwing his scooter he attempted to run. Inspector Navjot Singh with the aid of companion police officials apprehended him. On asking his name and particulars, he mentioned his name as Manjit Singh alias Raju son of Lab Singh, resident of village Rampur near Nangal Dam, District Ropar. It was suspected that some narcotic drug was there in his scooter. Therefore, he gave him an offer to get himself and his scooter searched from a Gazetted Officer or a Magistrate. The appellant stated that he intended to be searched in the presence of a Gazetted Officer. His statement was recorded. A message was sent to the Deputy Superintendent of Police, Garhshankar on his wireless set. It is stated that in the presence of Deputy Superintendent of Police, 1 kgm. of opium was recovered. The above said recovery was effected on 28.8.1999 at 9.05 P.M. in the revenue state of village Chak Nariala. The above said FIR was investigated and thereafter, challan was submitted. The appellant was charged by the Court of learned Special Judge, Hoshiarpur, to which he pleaded not guilty and claimed trial. The counsel for appellant has stated that appellant remained in custody from 28.8.1999 till the date of judgment i.e. 9.1.2001 and subsequently granted bail by this Court on 8.7.2002. Thereafter, the appellant has undergone about three years of his Criminal Appeal No. 123-SB of 2001 3 sentence. Mr. P.S.Hundal, Advocate, appearing for the appellant, has relied upon Ram Singh v. State of Haryana 2002 (3) R.C.R. (Criminal) 728 (P&H) and to contend that after the amendment of the Act, this recovery of 1 Kg. of opium is less than commercial and appellant has already undergone three years is entitled to be released. He, however, brought into the notice of this Court a judgment of Hon'ble the Apex Court in State of Delhi v. Jitti 2007 (4) Recent Criminal Reports 617 to contend that the question whether the amendment shall operate retrospectively or not has been kept open. I cannot accept this contention of learned counsel for the appellant. Now I have come across a judgment of Hon'ble the Apex Court in Basheer @ N.P. Basheer v. State of Kerala 2004 (1) R.C.R. (Criminal) 1008 where a specific question regarding extending benefit of amendment was formulated and it was observed as under:- “28. In the result, we are of the view that the proviso to Section 41(1) of the Amending Act 9 of 2001 is Constitutional and is not hit by Article 14. Consequently, in all cases, in which the trials had concluded and appeals were pending on 2.10.2001, when Amending Act 9 of 2001 came into force, the amendments introduced by the Amending Act 9 of 2001 would not be applicable and they would have to be disposed of in accordance with the NDPS Act, 1985, as it stood before 2nd October, 2001. Since there are other contentions of law and fact raised in Criminal Appeal No. 123-SB of 2001 4 each of these cases, they would have to be placed before the appropriate Benches for decision and disposal in accordance with the law”. A Division Bench judgment of this Court rendered in Ram Singh's case (supra) was also considered. But this contention of appellant has failed. Prosecution has examined seven witnesses in the present case. PW.1 Jiwan Kumar is a License Clerk, in the office of Licensing Authority, Una, who has proved the ownership of scooter. As per him, the scooter was transferred in the name of one Sudarshan Kumar son of Kishore Lal, resident of village Nagran, Tehsil and District Una, on 12.8.1998. No cross-examination was attracted. PW.2 Constable Surinder Pal and PW.3 Moharrir Head Constable Ashwani Kumar, of Police Station Mahalpur, have tendered their affidavits to prove link evidence. PW.4 Assistant Sub Inspector Charan Singh has stated that he was posted at Police Station Mahalpur on 28.8.1999. He along with police party was present at 'T' point on Chak Nariala in connection with nakabandi when the accused on seeing the police party attempted to run away and he was apprehended on suspicion. He has given the details of recovery effected. PW.5 Head Constable Gurdev Singh has stated that he produced Manjit Singh along with case property before the Illaqa Magistrate on 29.8.1999. PW.6 is Deputy Superintendent of Police Amarjit Singh who was called at the spot as the appellant had accepted the offer to be Criminal Appeal No. 123-SB of 2001 5 searched before a Gazetted Officer. He has reached at the spot and in his testimony, it is evident that the recovery has been got effected in his presence. PW.7 Inspector Navjot Singh has also given the details of the recovery effected. All the incriminating evidence was put to the appellant. He denied all incriminating circumstances and stated that he has been falsely implicated. Mr. Hundal appearing for the appellant has contended that it is admitted case of the prosecution that police officials were holding nakabandi. He further stated that the nakabandi was being held by them at “T” point of Chak Nariala, which is heavily frequented, yet no independent witness was associated at the time of recovery. He has stated that when the scooter and the accused were apprehended, alleged recovery was not there and summoning of PW.6 Amarjit Singh, Deputy Superintendent of Police had no relevance because it is unbelievable that till his arrival nothing would be done. He has stated that PW.6 Amarjit Singh, Deputy Superintendent of Police has admitted that on the eastern side of the place of recovery is bus stand, on western side, field of bajra, on the northern and southern side, there are roads. He stated that explanation given by the Court that he tried to join witness, then again stated that he did not join the witness but the Station House Officer has tried to join witness, on this score all the witnesses are not only discrepant but contradictory. It has been urged that no reliance be placed on these witnesses. This Court is not impressed by this argument. These small Criminal Appeal No. 123-SB of 2001 6 discrepancies are bound to occur with the passage of time. Furthermore, when nakabandi was held his scooter was apprehended. It is difficult for the police officials to associate independent witness. Joining of independent witness is not a rule of thumb. Joining or non-joining of independent witness assume significance in the facts of each case. In the present case, version of witnesses inspire confidence, hence, this Court hold that it is safe to rely upon the witnesses. Resultantly, the present appeal is dismissed. Conviction and sentence awarded by the Court below is maintained. (Kanwaljit Singh Ahluwalia) Judge January 30, 2008 “DK”