CRIMINAL APPEAL NO. 367-DB OF 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: January 15, 2009 Parties Name Bhura Khan ...APPELLANT. VERSUS The State of Punjab ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. S.K. Rana, Advocate, for the appellant. Mr. Yogesh Goyal, Advocate, for the appellant in Cr. A. No. 815-DB of 2005. Ms. Manjhri Nehru Kaul, D.A.G., Punjab JASBIR SINGH, J. JUDGMENT This judgment will dispose of Criminal Appeal No. 367-DB of 2005 titled as 'Bhura Khan v. The State of Punjab' and Criminal Appeal No. 815-SB of 2005 titled as 'Puran Ram v. The State of Punjab' arising out of common judgment and order dated February 15, 2005. It is accusation against the appellant and his co-accused Puran Ram (appellant in the connected appeal) that on July 25, 2003, they, without any permit or licence, kept in their possession 120 Kgs. of poppy husk. As per case of the prosecution, on the above said date, Sub CRIMINAL APPEAL NO. 367-DB OF 2005 -2- Inspector Mela Singh (PW6) along with others was on patrol duty. When the police party reached near village Bras, one Gurjant Singh, an independent witness, met them. When SI Mela Singh was talking with him, a Maruti car bearing registration No. PB 31C 7741 came from the side of village Bras. It was made to stop by the police officials. Puran Ram co- accused was on the steering wheel , whereas the appellant was sitting by his side in the front seat of the car. Four gunny bags were found lying on the back seat of the car. It was suspected that those bags contain some contraband. Both the accused were apprised of their legal right to get their search conducted in the presence of a gazetted officer or a Magistrate. However, they reposed full faith in SI Mela Singh (PW6) in that regard. Their consent Memo. Ex. PD was also recorded. On search, each of the four bags were found containing 30 Kgs. of poppy husk. Two samples of 25 grams each were separated from each of the four bags. The remaining poppy husk was put back in the bags mentioned above. Eight sample parcels and the four gunny bags were sealed with a seal bearing impression 'MS'. The seal after use was handed over to Gurjant Singh. On personal search of Puran Ram accused, Rs. 250/- were recovered, whereas from personal search of the appellant currency notes of Rs. 150/- were recovered. Currency notes were taken in possession through separate memos. On receipt of information, FIR was recorded. On return to the Police Station, the accused, the case property and other documents etc. were produced before S.H.O. concerned , who verified the factum of recovery, compared the seals of case property with sample seal chit. He also put his own seal bearing impression 'GS' on sample parcels and parcels of case property. The case property was kept in CRIMINAL APPEAL NO. 367-DB OF 2005 -3- Malkhana and on July 26, 2003, it was produced before the Ilaqa Magistrate by filing an application. The concerned Magistrate found seals on the case property intact and ordered it to be redeposited with the MHC. Eight samples were sent to the office of the Chemical Examiner for analysis. On receipt of report and completing other formalities, final report was put in Court for trial. Charge for commission of an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act was framed against both the accused. They pleaded not guilty and claimed trial. Prosecution produced seven witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statements of the appellant and his co-accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them. They refuted it, claimed innocence and pleaded false implication. They also led evidence in defence. The trial Court, on analysis of evidence on record, came to a conclusion that the prosecution was successful in proving guilt of the appellant and his co-accused beyond a shadow of reasonable doubt and accordingly convicted and sentenced them vide impugned judgment and order. Hence these appeals. Counsel for the appellant has vehemently contended that independent witness, though joined, was not produced in Court to support case of the prosecution. Counsel for the appellant has further stated that the appellant was only a passenger, he had taken lift in the car. He had no concern so far as the contraband is concerned. By referring to some minor contradictions here and there in the statements of the prosecution witnesses, counsel for the appellant prayed that this appeal be allowed and the CRIMINAL APPEAL NO. 367-DB OF 2005 -4- judgment and order under challenge be set aside. He further argued that the prosecution version, has not been supported by the independent witness Gurjant Singh, and as such the trial Court was not justified in convicting and sentencing the appellant – accused. Shri Yogesh Goyal, Advocate, who has put in appearance for Puran Ram, appellant, in the connected appeal, by referring to the contents of statements made by the defence witnesses, argued that the case property was the ownership of his co-accused Bhura Khan, who had hired his taxi against rent. Under threat, contraband was put in the car. Counsel further argued that immediately after his arrest, Puran Ram made a complaint stating above allegations, which was enquired into by the SSP, Patiala, and allegations were found to be correct. By claiming false implication, counsel prayed that the appeal be allowed and the conviction and sentence qua Puran Ram accused be set aside. After hearing counsel for the parties, we are not inclined to interfere in the judgment and order under challenge. SI Mela Singh, (PW6) Investigating Officer, and Head Constable Manjit Singh (PW7) have given a vivid description as to how the accused were nabbed. They were made aware of their right to get their search conducted in the presence of a gazetted officer or a Magistrate. However, they reposed full faith in the Investigating Officer. After recording their consent, four gunny bags, which were found lying on the back seat of the car were searched and 120 Kgs. of poppy husk was recovered. It is an admitted fact that appellant Bhura Khan is a previous convict and his conviction was upheld upto this Court. Counsel for the appellants have failed to indicate any discrepancy so far as separating of sample parcels from the bulk of contraband is concerned. Seal CRIMINAL APPEAL NO. 367-DB OF 2005 -5- on the sample parcels and four gunny bags were put as per law. Seal was handed over to an independent witness, namely, Gurjant Singh. Accused and the case property were produced before the SHO concerned, who verified the same and also put his seal thereon. As per evidence on record, next day accused and the case property were produced before the Ilaqa Magistrate, who found the seals intact. Sample parcels with seals thereon were also sent to the Chemical Examiner. On examination, samples parcels were found to have contained poppy husk. Despite lengthy cross- examination, the defence has failed to shatter testimony of the above said witnesses. In his statement recorded under Section 313 Cr.P.C., appellant Bhura Khan has stated as under: “I am innocent. On 25.7.2003, I went to village Bras at 9.30/10.00 to see Gurjant Singh in connection with marriage of my daughter and was waiting for bus to go to village Munshiwala. Gurjant Singh came upto bus stand to see me off. In the meanwhile the car stopped at bus stand. I requested the driver of the car to give lift if he was to go to village Munshiwala. The driver agreed and I boarded the car. I wanted to go to village Munshiwala to see my sister Ghota Begum to discuss the matter of marriage of my daughter with her. We moved from Bras on the way to Munshiwala few steps further the officials of police stopped our car and apprehended us. They inquired about the bags lying in the car. Replied that I just took lift in the car. They did not pay any heed to my explanation and forcibly got my thumb impression on blank CRIMINAL APPEAL NO. 367-DB OF 2005 -6- papers. Nothing was recovered from my possession.” To support his above said contention, the appellant has produced Gurjant Singh as a defence witness, who was also cited by the prosecution as its witness. However, he was not produced as having been won over by the accused. Above said fact is found mentioned in the order passed by the trial Court on July 13, 2004. When we read the contents of statement made by Gurjant Singh (DW4), it comes out that he was a procured witness. In his statement, this witness has denied that there had been recovery of the contraband as alleged by the prosecution. He had tried to support version given by Bhura Khan that he was only a passenger in the car. This witness has denied that he had ever put thumb impression on any document. However, during cross-examination, he has admitted that his thumb impressions were obtained in the Police Station on July 25, 2003, in the evening. It is further admitted that regarding false implication of Bhura Khan, no complaint was made to any higher officer. Gurjant Singh has specifically stated that Bhura Khan was not related to him. As such story of settling marriage of Bhura Khan's daughter through him does not inspire confidence. The person, with whom marriage was to be settled, has not been named in the FIR. By taking above said defence, Bhura Khan has virtually admitted his presence at the spot. Co-accused Puran Ram in his statement recorded under Section 313 Cr.P.C. has deposed as under: “I am innocent. Bhura Ram hired my car and took it to his Dera by saying that he is to take his family to relatives. Three/four persons were there who said that family members will be taken CRIMINAL APPEAL NO. 367-DB OF 2005 -7- the other day and they told that bags of cattle fed are to be taken to some relative. I refused to this. Bhura Khan and his relatives had beaten me mercilessly. Thereafter they loaded the bags. Inquiry was conducted by SSP, Patiala regarding my beating by Bhura Khan and his relatives. Nothing incriminating was loaded in my car from Sunam to Dera of Bhura Khan. I have been falsely implicated in this case at the behest of accused Bhura Khan. My previous record is good. I have been falsely involved with the connivance of accused Bhura Khan.” To support his case, he has produced Mithu Singh (DW1), perusal of whose statement does not inspire any confidence. Mithu Singh has stated that the car in question was being run as a Taxi and the same was hired by Bhura Khan for a sum of Rs. 300/-. It was further stated that as per information of the witness, beatings were given to Puran Ram and under threat, contraband was put in his car. In his cross-examination, this witness has failed to produce any document to show that he was also driving a Taxi . No permit in that regard has been produced. Register of the Taxi Union was not produced in Court. To the same effect is the statement made by Sohan Singh (DW2). However, both the witnesses are contradicting each other on material points. DW1 has stated that the Taxi was hired to go to village Lakhmirwala whereas DW2 has stated that the Taxi was hired to go to village Dirba. Story of beatings to Puran Ram and threat are not proved on record. It was specifically stated by DW1 that a complaint was made in that regard to SSP, Patiala, who enquired the same. However, to prove above said fact, nothing has been brought on record. Stand taken by Puran Ram CRIMINAL APPEAL NO. 367-DB OF 2005 -8- falls on the ground when we look into the statement made by Rupinder Kaur (PW5), owner of the car in question. This witness has stated that Puran Ram was her Driver at a salary of Rs. 1830/- per month and on July 25, 2003, above said accused took the car out for its service. This witness has not stated that the car was being run as a Taxi. It is an admitted fact that on July 26, 2003, both the accused along with the case property were produced before the Ilaqa Magistrate. If they were being falsely implicated, it was expected from them to raise hue and cry before the above said officer but nothing was done, which indicates that their defence was an afterthought. With regard to injuries allegedly caused to Puran Ram by Bhura Khan, he was not medico legally examined. Admittedly, Bhura Khan appellant is a habitual offender. In view of facts, mentioned above, no case is made out for interference. Both the appeals fail and the same are dismissed. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE January 15, 2009. DKC