IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 309-DB of 2000 Dated of Decision:- March 09, 2009 Jarnail Singh and others ....APPELLANTS VERSUS The State of Punjab ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE L.N.MITTAL Present:- Sh. Inderjit Singh Brar, Advocate for the appellants. Sh. Satinder Singh Gill, Addl. A.G. Punjab. ------ MEHTAB S.GILL, J. This is an appeal against the judgment dated 3.6.2000 of the Judge, Special Court, Mansa, whereby he convicted Jarnail Singh son of Amrik Singh, Ram Asra son of Kehar Singh, Ajit Singh alias Jit Singh son of Harnek Singh and Jagshir Singh son of Major Singh under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as “NDPS Act”) and sentenced them to undergo 12 years R.I. and to pay a fine of Rs. one lac each. In default of payment of fine to further undergo one year R.I. 2 Criminal Appeal No. 309-DB of 2000 The case of the prosecution is unfolded by the statement/ruqa Ex.PF of Inspector Bikram Singh, SHO, Police Station Sardulgarh. Inspector Bikram Singh stated, that he along with Gurcharan Singh, C. Darshan Singh, C.Kashmiri Lal, C. Harjit Singh and PHG Nazar Singh were present at Bus Stand Rorki, in connection with checking of vehicles. They were on a Govt. Canter No.PB-31-6612, which was driven by Constable Harminder Singh. Gurcharan Singh son of Mukand Singh, resident of Sardulgarh was inducted in the police party. A jeep No. J&K- 9346 came from the opposite direction from the side of Village Jhanda Kalan. The jeep was stopped. Inspector Bikram Singh suspected, that the gunny bags lying in the jeep were containing poppy husk. He asked the driver his name, who disclosed his name as Jarnail Singh son of Amrik Singh. The other persons sitting in the jeep identified themselves, namely Ram Asra son of Kehar Singh, Ajit Singh @ Jeeta son of Harnek Singh, Jagsir Singh son of Major Singh. There were two ladies in the jeep, who gave their names as Amarjit Kaur w/o Darshan Singh and Gurdev Kaur w/o Mohinder Singh. Inspector Bikram Singh told them, that he suspected that there was poppy husk in the bags and as to whether they would like to be searched in the presence of a Gazetted Officer or Magistrate. A consent memo was prepared, which was thumb marked by Jarnail Singh, Ram Asra, Ajit Singh, Jagsir Singh, Amarjit Kaur and Gurdev Kaur. A wireless message was sent to DSP Iqbal Singh, who was incharge of area Sardulgarh. After some time, DSP Iqbal Singh along with his guman reached the spot in a Govt. gypsy. In his presence, search of the jeep was done as per rules. Six gunny bags were lying in the jeep. They contained poppy husk. 3 Criminal Appeal No. 309-DB of 2000 100/100 gms. of poppy husk from each bag was taken as sample. The remaining poppy husk was weighed, which came to 20/20 Kgs. in each bag along with the gunny bags. The six gunny bags and six sample parcels were sealed by Inspector Bikram Singh with his seal bearing impression “BS”. Seal after use was handed over to HC Gurcharan Singh. The six samples and six gunny bags were taken into possession vide recovery memo. The recovery memo was attested by the witnesses. A personal search memo was prepared. On the basis of this ruqa, FIR Ex.PF/1 was registered under Sections 15/61/85 of the NDPS Act. The prosecution to prove its case brought into the witness box, Ram singh PW1, DSP Iqbal Singh PW2, Inspector Bikram Singh PW3 and Des Raj Junior Assistant, DTO Office, Bathinda PW4. Learned counsel for the appellants has argued, that the sample seal of “BS” was handed over to HC Gurcharan Singh, who has not been produced. The independent witness Gurcharan Singh son of Mukand Singh should have been given the seal and this witness was also not brought into the witness box to prove the case of the prosecution. There was likelihood of the case property being tampered with. The offer of search, which was made, was a joint offer. Sections 55 and 57 of the NDPS Act were not complied with. Learned counsel for the State has argued, that an independent witness was joined but was given up, as he was won over by the appellants. The seal was given to HC Gurcharan Singh by Inspector Bikram Singh PW3, the Investigating Officer, but nothing has been put to any of the 4 Criminal Appeal No. 309-DB of 2000 witnesses, that the case property had been tampered with. The joint offer made did not have any legal credence because this was not a case of personal search, as recovery of the poppy husk had been made from the jeep and not from the person of the appellants. Appellants were all sitting in the jeep and it cannot be said, that they did not know what was lying in the jeep, in which they were travelling. They were consciously in possession of the contraband. Sections 55 and 57 of the NDPS Act are not mandatory but are only directory. In the present case, Section 55 of the NDPS Act could not have been complied with, as Inspector Bikram Singh PW3, who himself was the SHO of Police Station Sardulgarh, made the recovery. There was no need to comply with Section 57 of the NDPS Act, as the DSP Iqbal Singh PW2, who was the immediate superior officer of Inspector Bikram Singh, was himself a party to the recovery. We have heard the learned counsel for the parties and perused the record with their assistance. Learned counsel for the appellants has forcefully argued, that the appellants were not consciously in possession of the six bags of poppy husk, which were recovered from the jeep. They were mere travelers and they could not have known what was in the bags. This argument of the learned counsel for the appellants does not cut much ice. The jeep in which the appellants were travelling was being driven by appellant Jarnail Singh and the other three persons i.e. Ram Asra, Ajit Singh alias Jit Singh and Jagshir Singh were sitting in it. The six bags of poppy husk recovered were of 20 Kgs. each. The total weight of poppy husk recovered came to 120 Kgs. and 600 grams. Such a large quantity of poppy husk was lying in jeep. 5 Criminal Appeal No. 309-DB of 2000 The bags were not small articles, which could be seen. Though it has come, that the bags were lying under the seat of the jeep, but this also was not possible, as six bags, each weighing 20 Kgs of poppy husk cannot be put under the seat. They could be put only on the back side of the driver where passengers sit in the empty portion. Section 50 of the NDPS Act does not apply in this case, as this was not a case of personal search, but the poppy husk was lying in the jeep in the open space at the back of the driver’s seat. There was no need to comply with Sections 55 and 57 of the NDPS Act, as firstly these sections are only directory and not mandatory. As per section 55 of the NDPS Act, the contraband was to be handed over to the SHO, Police Station Sardulgarh. Inspector Bikram Singh PW3 was himself the SHO of Police Station Sardulgarh, who recovered the six bags of poppy husk. Section 57 of the NDPS Act also could not be complied with, as the DSP of area Sardulgarh Iqbal Singh PW2, who was the superior officer, had himself come to the spot and the search of the jeep and the six bags was done in his presence. There is nothing on record to show, that the seal of “BS” after being handed over to HC Gurcharan Singh, any sort of tampering had taken place. The independent witness Gurcharan Singh son of Mukand Singh was not produced, as he was won over by the accused. We do not find any infirmity in the judgment of the learned trial Court. Conviction of the appellants is maintained. Sentence of the appellants seems to be on the higher side. Sentence of the appellants is modified and reduced from 12 years R.I. to 10 years R.I. Fine of Rs.one lac 6 Criminal Appeal No. 309-DB of 2000 each and in default of payment of fine to further undergo R.I. for one year shall remain intact, as already awarded by the learned trial Court. With the above modification in sentence, appeal is dismissed. (MEHTAB S.GILL) JUDGE (L.N.MITTAL) March 09, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO