Crl.Appeal No.1799-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1799-SB of 2002 Date of decision: 15.10.2010 Karnail Singh … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.Rahul Vats, Advocate, for the appellant. Mr.Amit Goyal, AAG, Haryana. … JORA SINGH, J. Karnail Singh directed this appeal against the judgment of conviction and order of sentence dated 26.10.2002 passed by Special Judge, Bathinda, in NDPSA File No.63 of 18.4.2001, arising out of FIR No.6 dated 22.1.2001 under Section 18 of Narcotic Drugs and Psychotropic Substances Act,1985 (for short `the Act’), PS, Balianwali. By the said judgment, he was convicted under Section 18 of the Act and sentenced to undergo RI for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for two years. Prosecution story, in brief, is that police party headed by SI Joginder Singh, SHO, Police Station, Balianwali, in connection with patrol duty was going towards Village Mandi Khurd. When the party was present near the turning point of village Ramanwas, then Darshan Singh, Ex- Sarpanch of Village Ramanwas, had met the party and was joined by the Crl.Appeal No.1799-SB of 2002 2 party. When police party was at a distance of 2.00 KM from Village Rmanwas, then sighted one maruti car No. PCR-7879 while coming from the side of village Mandi Khurd. Car was signalled to stop. After stopping the car, driver tried to run away from the spot. On suspicion, driver was apprehended by the police party. On enquiry, he disclosed his name as Karnail Singh. IO suspected intoxicant with the accused. Offer was given to the accused as to whether he wanted his search and search of the car before any Gazetted Officer or a Magistrate. Reply of the accused was that he wanted his and search of car before a Gazetted Magistrate. Consent memo was prepared and the same was signed by the accused in token of its correctness. On walky-talky information was sent to Police Station, Balianwali, to send any Gazetted Officer at the spot. After half an hour, DSP Amrik Singh came at the spot. He had disclosed his identity to the accused. Then offer was given to the accused as to whether he wanted to be searched himself and the car before him or any other Gazetted Officer. Accused agreed to be searched before him. Consent memo was prepared, which was signed by the accused. As per direction of the Gazetted Officer, accused was searched and on search, opium wrapped in a glazed paper in a parna tied with the waist of the accused was recovered. Two samples, each weighing 20 grams, were separated to serve as sample and remaining opium on weighment was found to be 2.960 kgs. Samples and the remaining opium were separately sealed by the IO with his own seal bearing impression `JS’. Seal impression of the seal used was prepared separately. Seal after its use was handed over to ASI Rajinder Singh. Case property was taken into police possession vide memo (Ex.PF) attested by the witnesses. Ruqa was sent to the police station, on the basis of which, formal Crl.Appeal No.1799-SB of 2002 3 FIR (Ex.PJ/1) was recorded. Accused was arrested. Arrest memo was prepared. Rough site plan with correct marginal notes was prepared. Maruti car was also searched but no incriminating article was recovered from the car. Car along with its RC was taken into police possession vide memo (Ex.PG) attested by the witnesses. On return to the police station, case property was kept by the IO in his safe custody. On 23.1.2001, accused along with case property was produced before Ilaqa Magistrate. Magistrate passed order (Ex.PN/1). Inventory report (Ex.PO) was presented before the Magistrate along with application (Ex.PN). Parcel of remaining case property was deposited with the MHC (Judicial). Sample parcel along with seal impression was kept by the IO in his safe custody. On 24.1.2001, sample parcel along with sample seal and Form No.29 was handed over to Constable Harjinder Singh for depositing in the office of FSL, Chandigarh. As per report of the laboratory, contents of sample parcel were found to be opium. During investigation, affidavit produced by Bhola Singh was taken into police possession vide memo (Ex.PQ). On receipt of report (Ex.PR) of FSL and after completion of investigation, challan was presented in the Court. Accused was charged under Section 18 of the Act, to which he pleaded not guilty and claimed trial. Prosecution examined PW1 Constable Harjinder Singh, who tendered his affidavit (Ex.PA). He deposited sample parcel along with seal impression in the office of FSL, Chandigarh, on 25.1.2001. PW2 SI Joginder Singh is the Investigating Officer. Crl.Appeal No.1799-SB of 2002 4 PW3 DSP Amrik Singh (now SP) deposed as to how 3 kgs. opium was recovered from the possession of the accused. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellant was that recovery was effected from Bhola Singh and Ashwani Kumar, who were owners of car. False case was registered against him at the instance of Bhola Singh and Ashwani Kumar. He was the resident of Village Jandawala and was brought from his house. In defence, DW1 Ashwani Kumar appeared and stated that affidavit (Ex.P4) was tendered by him. Car bearing No.PCR-7897 was sold to Tej Pal Jaura son of Amarjit Singh. Ex.D1 is the photostat copy of receipt. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellant argued that according to the story, police party was headed by SI Joginder Singh. Police party was on patrol duty and near turning point of village Ramanwas, Darshan Singh, Ex-Sarpanch of Village Ramanwas, had met the party and he was joined by the party. When police party was at a distance of 2.00 KM from Village Ramanwas, then sighted one maruti car No. PCR-7879 while coming from the side of village Mandi Khurd. On search of the appellant, Crl.Appeal No.1799-SB of 2002 5 parna was found tied around the waist and from that parna, opium weighing 3.00 kgs. was recovered. When appellant was driving the car, then there was no idea to carry opium in a parna tied around the waist. Opium could easily be concealed under the seat or in the dicky. Darshan Singh, independent witness, was with the party, but seal after its use was not handed over to Darshan Singh. Seal after its use was handed over to ASI Rajinder Singh. He was also not examined by the prosecution. Recovery was effected on 22.1.2001, whereas sample parcel was handed over to Constable Harjinder Singh. There was a delay in sending the sample parcel to the office of FSL. Before search, IO or Gazetted Officer did not offer their personal search to the appellant. Police party was on a private jeep. Driver of the jeep or its owner was not joined in the investigation of the case. In fact, opium was recovered from Bhola Singh and Ashwani Kumar, who were owners of the car. Appellant was implicated at their instance. DW1 Ashwani Kumar stated that car was sold to one Tej Pal Jaura vide receipt (Ex.D1). Evidence on file was not rightly scrutinized by the trial Court. Learned State counsel argued that appellant when examined under Section 313 Cr.P.C., then stated that recovery of opium was from Bhola Singh and Ashwani Kumar and at their instance, he was falsely implicated in this case. That means, recovery was effected by the police party. Now dispute is whether appellant was falsely implicated in this case at the instance of Bhola Singh and Ashwani Kumar. Appellant had no enmity with the aforesaid persons. If recovery was effected from Bhola Singh or Ashwani Kumar, then there was no idea to leave them and implicate the appellant. Independent witness was with the party but he was Crl.Appeal No.1799-SB of 2002 6 not examined as won over by the appellant. IO was the SHO of Police Station Balianwali. On 23.1.2001, appellant along with case property was produced before the Magistrate. Remaining opium was deposited with the MHC of Judicial Malkhana. Sample parcel and seal impression were kept by the IO in his safe custody. On 24.1.2001, sample parcel was handed over to Constable Harjinder Singh for depositing in the office of FSL. Report of the laboratory was that seals were intact and were tallying with the seal impression. When appellant had no enmity with Bhola Singh and Ashwani Kumar, then there was no idea to implicate him. Ashwani Kumar, DW, in examination-in-chief, stated that car was sold to Tej Pal Jaura but regarding transfer of car, RC was not produced. Ex.P4 is affidavit of Ashwani Kumar. Vide this affidavit, car was sold to the appellant. First allegation of learned counsel for the appellant was that independent witness was with the police party but he was not examined for the reasons best known to the prosecution. Case property was sealed by the IO with his own seal bearing impression `JS’ but seal after its use was not handed over to independent witness. Seal was handed over to ASI Rajinder Singh, who remained posted with the IO in the same police station. After going through the evidence, I am of the opinion that submission of learned defence counsel carries some weight. Police party headed by SI Joginder Singh was on patrol duty. Party was at a distance of 2 kms from Village Ramanwas, when car was sighted driven by the appellant. Darshan Singh, Ex.Sarpanch, was with the party. Car was signalled to stop but after stopping car, appellant tried to run away from the spot. Appellant was apprehended by the police party. IO suspected some intoxicant with the appellant. Then offer was given to the appellant as to whether he wanted to Crl.Appeal No.1799-SB of 2002 7 be searched before any Gazetted Officer or a Magistrate. Reply of the appellant was that he wanted to be searched before a Gazetted Officer. Message was sent to the concerned police station to send any Gazetted Officer. DSP Amrik Singh came at the spot. After disclosing his identity as Gazetted Officer, offer was given to the appellant as to whether he wanted to be searched before any other Gazetted Officer but he reposed faith in him. As per direction of Gazetted Officer, IO searched the appellant and on search, 3 kgs. opium was recovered from the person of appellant. Darshan Singh had attested the recovery memo but he was not examined as won over by the appellant. If there was no recovery, then Darshan Singh could easily be produced in defence. Before recovery, police party had no enmity with the appellant. Bhola Singh and Ashwani Kumar had no friendship with the police party. So, there was no idea to leave Bhola Singh and Ashwani Kumar and implicate the appellant. When there are number of recovery witnesses, then all are not required to be examined. Quality of evidence is to be seen and not quantity of evidence. Seal after its use was not handed over to Darshan Singh but was handed over to ASI Rajinder Singh. ASI Rajinder Singh was also not examined but due to non-examination of Darshan Singh and ASI Rajinder Singh, no prejudice has been caused to the appellant because after recovery on 22.1.2001, on return to the police station, case property was kept by the IO in his safe custody. On the next day, appellant along with case property was produced before the Magistarate. Remaining bulk was deposited with the MHC of Judicial Malkhana. Sample parcel and seal impression were kept by the IO. Due to non-examination of Darshan Singh and ASI Rajinder Singh, story is not to be ignored. Crl.Appeal No.1799-SB of 2002 8 Next allegation of learned defence counsel for the appellant was that independent witness was with the police party but seal after its use was not handed over to the independent witness. Seal was handed over to ASI Rajinder Singh but he was also not examined. So, possibility of tampering with the case property cannot be ruled out, when there was a delay in sending the sample parcel to the office of FSL. But submission of learned defence counsel seems to be not correct one. No doubt, Darshan Singh was with the party. After sealing the case property, seal should have been given to Darshan Singh but if seal was handed over to ASI Rajinder Singh, then story is not to be ignored. After recovery on 22.1.2001, on the next day, case property was produced before the Magistrate. Seals were found intact and were tallying with the seal impression. Sample parcel and seal impression were kept by the IO in his safe custody. Remaining bulk in sealed parcel was deposited with the Incharge of Judicial Malkhana. On 24.1.2001, sample parcel along with seal impression was handed over to Constable Harjinder Singh, who deposited the same in the office of FSL on 25.1.2001. Report of the laboratory is to the effect that seals were intact and were tallying with the seal impression. When IO was the SHO of Police Station Balianwali, then there was no reason to deposit the case property with the Incharge of Malkhana because on the next day, appellant was to be produced in Court along with case property. There was no delay in depositing sample parcel in the laboratory along with CFSL form No.29. Next submission of learned defence counsel for the appellant was that recovery was from Bhola Singh and Ashwani Kumar, who were the owners of the car. Due to enmity with them, he was falsely implicated. In defence, Ashwani Kumar appeared and stated that car was sold to Tej Pal Crl.Appeal No.1799-SB of 2002 9 Jaura but evidence on the file shows that submission of learned defence counsel is without any evidentiary value. According to learned defence counsel, recovery was effected but from Bhola Singh and Ashwani Kumar. Now the only dispute is whether recovery was effected from the appellant or from the above said persons. Bhola Singh and Ashwani Kumar were not inimical towards the appellant. If recovery was from Bhola Singh and Ashwani Kumar, who had no say in the police department, then there was no idea to leave them and implicate the appellant. Appellant was expected to be implicated in this case if he was inimical towards Bhola Singh and Ashwani Kumar and these two persons had a say in the police department. If there was no recovery from the appellant, then how the appellant can say that recovery was from Bhola Singh and Ashwani Kumar. As per defence version, Bhola Singh and Ashwani Kumar were owners of the car but when appeared as DW1, then Ashwani Kumar stated that car was sold to Tej Pal Jaura but no RC was produced to show that car was owned by Tej Pal Jaura. Receipt like (Ex.D1) can easily be prepared at any time. Car was sold as per Ex.D1 on 14.10.1999 but till today, no effort to get the car transferred from the name of Ashwani Kumar in the name of Tej Pal Jaura. Ex.P4 is the affidavit of Ashwani Kumar on the file but Ashwani Kumar in examination- in-chief stated that Ex.P4 was not signed by him. Ex.P4 produced by Bhola Singh was taken into police possession during investigation of the case. Ex.P4 shows that car was sold to the appellant. Presuming the statement of Ashwani Kumar as correct one that car was sold to Tej Pal Jaura, then question is whether recovery was effected from the appellant or not. As discussed earlier, police party headed by SI Joginder Singh had effected recovery but recovery was from the appellant. After registration of case Crl.Appeal No.1799-SB of 2002 10 against the appellant, no complaint to any authority regarding false implication. When witnesses appeared in Court, then it is very easy to state that recovery was from Bhola Singh and Ashwani Kumar, owner of the car. Appellant had no enmity with the police party. So, after recovery of opium as per defence version from Bhola Singh and Ashwani Kumar, there was no idea to implicate the appellant. Defence version seems to be an after thought. Last submission of learned defence counsel for the appellant was that when appellant was driving the car, then there was no idea to wrap parna around his waist to carry opium. Opium could easily be concealed under the seat or in the dicky. No doubt, while driving car, opium could easily be concealed under the seat or in the dicky, but it was for the appellant to see how he is to carry the opium. There was no bar to wrap parna around the waist and conceal opium wrapped in a glazed paper in a parna. It was for the appellant to see how and when contraband was to be transported. If recovery of opium was from the parna wrapped around the waist, then story is not be ignored. No other submission was put forward. In the light of all discussed above, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is ordered to be upheld. Appeal without merit is dismissed. Appellant is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, Crl.Appeal No.1799-SB of 2002 11 failing which, concerned authority/CJM, Bathinda, to issue re-arrest warrants to undergo remaining period of sentence. 15.10.2010 (JORA SINGH ) pk JUDGE