IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 418-DB of 2002 DATE OF DECISION : 18.05.2010 Baljinder Kaur .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. P.S. Sekhon, Advocate, for the appellant. Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. Appellant Baljinder Kaur has filed this appeal against the judgment and order dated 16.4.2002, passed by the Special Court, Ludhiana, whereby she has been convicted under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for a period of twelve years with a fine of Rs. one lac and in default of payment of fine, to further undergo simple imprisonment for a period of one year. In the present case, as per the prosecution version, 10 Kgs. of opium was recovered from the bag, which was being carried by the appellant on her shoulder, on 9.11.1996. On that day, Inspector Karnail Crl. A. No. 418-DB of 2002 -2- Singh, Incharge Anti Gunda Staff, Ludhiana (West) along with other police officials was present on the turning of G.T. Road, Threeke, in connection with patrolling and checking of bad elements. During Nakabandi, one Pardeep Kumar came on a scooter and he was stopped for checking. In the meanwhile, at about 2.20 PM, a lady was seen coming from the side of village Threeke, who on seeing the police party tried to retreat. On suspicion, she was asked to stop. On enquiry, she disclosed her name as Baljinder Kaur wife of Lachhman Singh resident of village Banbhaur P.S. Amargarh District Sangrur (appellant). She was having a bag on her right shoulder, from which smell, like opium, was coming out. Inspector Karnail Singh told her that he is suspecting some contraband in her possession, therefore, her search is to be conducted. He asked whether she would like to be searched in the presence of some Gazetted Officer or Magistrate. She wanted her search to be conducted by some Gazetted Officer. Thereupon, Inspector Karnail Singh sent a wireless message requesting SP City (West) to send some Gazetted Officer, who deputed Gurjit Singh, DSP City (PW.10) to the spot. On reaching the spot, Gurjit Singh, DSP City again offered option to the appellant to get her search conducted before some other Gazetted Officer or a Magistrate. She gave her consent to be searched by Gurjit Singh DSP. Thereupon, search of her bag was conducted, in which 10 Kgs. of opium wrapped in a glazed paper was recovered. Out of the recovered opium, two samples of 50 Grams each were separated and were put in separate tin dabbies and the remaining opium was put in a tin Crl. A. No. 418-DB of 2002 -3- container. Separate parcels of both the samples and the tin container containing the remaining opium were prepared and were sealed with the seal of Gurjit Singh DSP, bearing the letters `GS', and were taken into police possession vide memo Ex.PB. The seal after use was handed over to ASI Lakhwinder Singh (PW.8). The ruqa (Ex.PN) was sent to the police station for registration of case at 4.40 PM, on the basis of which the formal FIR (Ex.PN/1) was recorded at 5.55 PM. Inspector Karnail Singh, on return to the Police Station, produced the duly sealed case property and the appellant before SHO Balbir Singh (PW.3), who put his own seal bearing letters `BS' on the sealed parcels and on the same day i.e. on 9.11.1996, he deposited the same with MHC Baldev Singh (PW.9) in an intact condition. On 10.11.1996, ASI Lakhwinder Singh (PW.8) produced the case property as well as the accused before the Ilaqa Magistrate, which was seen and signed by the Magistrate and was again deposited on the same day in the Malkhana. On 19.11.1996, Constable Vinod Kumar (PW.4) took out one sample parcel from MHC Baldev Singh and deposited the same in the office of the Chemical Examiner, Patiala. The Assistant Chemical Examiner, vide his report Ex.PR opined the contents of the sample to be that of opium. During investigation, Narinder Kaur daughter of the appellant, filed an application before SSP, Ludhiana, for conducting a fair enquiry in the matter, as it was alleged that her mother was falsely implicated in the case. On the said application, an enquiry was conducted by SP (D) Ludhiana and during the said enquiry, one Teja Singh was found to be the real person Crl. A. No. 418-DB of 2002 -4- involved in the present crime and appellant Baljinder Kaur was found innocent. On the basis of the said enquiry, the challan was filed only against Teja Singh, and the appellant, from whose possession the opium was recovered at the spot, was kept in column No.2. During trial, vide order dated 31.1.1998, the appellant was summoned under Section 319 Cr.P.C., as additional accused. Thereafter, charge was framed against both the accused for the offence under Section 18 of the Act, to which they did not plead guilty and claimed trial. In support of its case, the prosecution examined eleven witnesses. PW.1 HC Amarjit Kaur is the lady police official, who was present at the time of the alleged recovery of opium from the conscious possession of the appellant. PW.2 ASI Rulda Singh is the witness to the recovery of car of Teja Singh on 24.11.2006. PW.3 SI Balbir Singh, who was posted as SHO, Police Station Sadar, Ludhiana, on the day of recovery, stated that Inspector Karnail Singh produced the appellant and the case property before him, upon which after putting his seals, he deposited the case property with MHC Baldev Singh in an intact condition. PW.4 Constable Vinod Kumar, who had taken one sample parcel from MHC Baldev Singh and deposited the same in the office of the Chemical Examiner, Patiala, tendered into evidence his affidavit Ex.PE. Crl. A. No. 418-DB of 2002 -5- PW.5 HC Baldev Singh, PW.6 HC Shingara Singh and PW.7 HC Karnail Singh were examined by the prosecution to prove the criminal back-ground of Teja Singh. PW.8 ASI Lakhwinder Singh supported the case of the prosecution regarding the recovery of opium from the conscious possession of the appellant on 9.11.1996, taking of two samples from the recovered opium, sealing of the same by DSP Gurjit Singh, sending of ruqa to the police station and production of the case property and the appellant before SI/SHO Balbir Singh. He further stated that on 10.11.1996, he took the sealed parcels and produced the same before the Duty Magistrate, Ludhiana, which was seen and signed by the Magistrate. PW.9 HC Baldev Singh tendered into evidence his affidavit Ex.PS, wherein he stated that on 9.11.1996, he was posted as MHC in Police Station Sadar Ludhiana. On that day, the case property was deposited with him in the Malkhana. On 10.11.1996, ASI Lakhwinder Singh (PW.8) took the case property from the Malkhana and after producing the same before the Ilaqa Magistrate, it was re-deposited in the Malkhana on the same day. Thereafter, on 19.11.1996, Constable Vinod Kumar (PW.4) took out one sample parcel from the Malkhana and deposited the same in the office of the Chemical Examiner, Patiala. PW.10 Gurjit Singh, DSP, is the witness, in whose presence the recovery of opium was effected from the conscious possession of the appellant. He has fully supported the case of the prosecution. Crl. A. No. 418-DB of 2002 -6- PW.11 Pardeep Kumar is the independent witness, in whose presence 10 Kgs. of opium was recovered. He has also supported the case of the prosecution. After the closure of the prosecution evidence, since no incriminating material was found against accused Teja Singh, therefore, the recording of his statement under Section 313 Cr.P.C., was dispensed with and vide order dated 13.11.2001, he was acquitted of the charge framed against him. However, the appellant, in her statement under Section 313 Cr.P.C., denied all the allegations appearing against her in the prosecution evidence and pleaded innocence. She stated that she was a leader of B.S.P of District Sangrur. Shri Kuldeep Singh was posted as ASP, Malerkotla. During his tenure, she had arranged a demonstration of protest against him and he was transferred to Ludhiana. At his instance, she was picked up from her house and was falsely implicated in this case. On an application, the matter was got enquired into by SSP, Ludhiana through SP (D) and in that inquiry, she was found innocent. In defence, the appellant examined three witnesses and thereafter, she herself also appeared as her own witness. DW.1 Hartej Singh Sekhon, SP, who proved that an inquiry in this case was conducted by him, in which the appellant was found innocent. DW.2 Dev Raj Constable, Police Station Sadar Ludhiana, stated that the Radio log book of the year 1996 was destroyed after one year. DW.3 Constable Ashwani Kumar stated that as per instructions Crl. A. No. 418-DB of 2002 -7- of the department, record pertaining to the wireless was to be destroyed after the expiry of one year. The appellant herself appeared as DW.4. She stated that she was a leader of Bahujan Samaj Party of District Sangrur. In the year 1994, Kuldip Singh, IPS, was posted as ASP, Malerkotla. He illegally picked up one Karnail Singh, regarding which a complaint was made by them to SSP, Sangrur, with regard to illegal detention of said Karnail Singh. They also staged a Dharna and protest against Kuldip Singh, the then ASP, Malerkotla, who was later on transferred as SP City, Ludhiana. Since he was having a grudge against her, therefore, she has been falsely implicated in the case, at his instance. Later on, in an enquiry, she was found innocent. The trial court, after considering the evidence led by both the parties, while relying upon the prosecution evidence, convicted and sentenced the appellant, as indicted above. In the present case, on 9.11.1996, on the turning of village Threeke, in the presence of PW.1 HC Amarjit Kaur, PW.8 ASI Lakhwinder Singh, PW.10 DSP Gurjit Singh and PW.11 Pardeep Kumar, 10 Kgs. of opium, contained in a bag, carried by the appellant on her shoulder, was recovered. All these witnesses, in whose presence the recovery of opium was effected, have fully supported the prosecution version. After recovery of the opium, two samples of 50 Grams each were taken in accordance with law. Separate parcels of both the samples and the remaining opium were prepared, which were duly sealed with he seal of DSP Gurjit Singh. On the Crl. A. No. 418-DB of 2002 -8- same day, both the sample parcels as well as the parcel containing the remaining opium were deposited with SHO of the Police Station, who in turn put his seal and deposited the same in the Malkhana. On the very next day i.e. on 10.11.1996, the recovered contraband along with the appellant were produced before the Ilaqa Magistrate. The case property was seen and signed by the Magistrate and on the same day, it was re-deposited in the Malkhana, from where on 19.11.1996, Constable Vinod Kumar took one sample parcel and in the office of the Chemical Examiner, Patiala. the Assistant Chemical Examiner, vide his report Ex.PR, opined the contents of the sample to be that of opium. PW.3 SI Balbir Singh and PW.9 HC Baldev Singh have stated that during the period the case property remained in their possession, it was kept in intact condition and was not tampered with by any one. At the time of the aforesaid recovery, PW.11 Pardeep Kumar, an independent witness, was also present, who has also proved that in his presence, 10 Kgs. of opium was recovered from the conscious possession of the appellant. Learned counsel for the appellant could not point out any thing, which creates any doubt regarding the reliability of the testimonies of the aforesaid prosecution witnesses. However, learned counsel made two fold submissions. Firstly, that the personal search of the appellant was conducted by PW.10 DSP Gurjit Singh himself and it was not being conducted by a lady Constable, therefore, it was a clear violation of Section 50 (4) of the Act, which provides that no female shall be searched by anyone excepting a Crl. A. No. 418-DB of 2002 -9- female. In this regard, learned counsel referred to the statement of PW.1 HC Amarjit Kaur, wherein she stated that search was conducted by DSP Gurjit Singh in her presence. Secondly, learned counsel argued that during the enquiry, conducted by DW.1 Hartej Singh Sekhon, SP, the appellant was found innocent and Teja Singh was found to be the real culprit in the case. According to the learned counsel, actually Teja Singh was a habitual offender and he had handed over the recovered contraband to the appellant to hand over to his relative, but the appellant was not aware that the contraband given to her was opium. Therefore, the trial court has committed grave illegality while convicting the appellant for the alleged offence, while acquitting Teja Singh, who according to the learned counsel was the real culprit. After hearing learned counsel for the parties, we do not find any substance in any of the contentions raised by learned counsel for the appellant. In the present case, recovery of 10 Kgs. of opium from the conscious possession of the appellant has been proved. The recovery was made from a bag, which the appellant was carrying on her shoulder. In case of the said recovery, Section 50 of the Act is not applicable. DSP Gurjit Singh did not conduct the personal search of the appellant, but he only conducted search of the bag, from which 10 Kgs. of opium was recovered. PW.1 HC Amarjit Kaur has not stated that the personal search of the appellant was conducted by DSP Gurjit Singh. She has only stated that he conducted the search of the appellant, which means `search of the bag'. Crl. A. No. 418-DB of 2002 -10- Therefore, in that situation, Section 50 (4) of the Act is not applicable. Hence, we do not find that in the present case, there was any violation of Section 50 (4) of theAct. Secondly, though a stand has been taken by the appellant that at the instance of ASP Kuldeep Singh, she has been falsely implicated, but it is the stand of the appellant that the bag containing 10 Kgs. of opium was handed over to her by Teja Singh and she brought the same under a bonafide belief. No such suggestion was put to any of the witnesses. On the other hand, by leading cogent and sufficient evidence, the prosecution has proved beyond a reasonable doubt that the recovery of 10 Kgs. of opium was made from the conscious possession of the appellant. The said recovery was effected in the presence of PW.1 HC Amarjit Kaur, PW.8 ASI Lakhwinder Singh, PW.10 DSP Gurjit Singh and PW.11 Pardeep Kumar, who have fully supported the prosecution case. Therefore, as far as Teja Singh is concerned, when no evidence was found against him, the trial court has rightly acquitted him, before recording his statement under Section 313 Cr.P.C. Against the said order of acquittal, no appeal has been filed by the State. On perusal of the evidence led by the prosecution, we do not find any illegality or perversity in the conviction of the appellant under Section 18 of the Act, recorded by the trial court. Therefore, conviction of the appellant is hereby upheld. In the last, learned counsel for the appellant argued that in the facts and circumstances of the case, a lenient view be taken against the Crl. A. No. 418-DB of 2002 -11- appellant with regard to the sentence awarded to her. He argued that the appellant is more than 50 years old, having four daughters and two sons, and she is the first offender. In support of his submission, learned counsel has relied upon a decision of the Hon'ble Supreme Court in Balwinder Singh and others v. Asstt. Commr., Custom and Central Excise, AIR 2005 Supreme Court 2917, wherein while taking into consideration the fact that the accused (who was convicted under Sections 18, 21, 22, 23, 25, 29 and 30 of the Act and 120-B of the IPC) in that case was the first offender, the sentence of imprisonment for a period of 14 years was reduced to 10 years. We have considered the aforesaid submission of learned counsel for the appellant and find force in the same. In Balwinder Singh's case (supra), 175 Kg. of heroin and 39 Kg. of opium of foreign origin was recovered, and the Hon'ble Supreme Court by taking into account the fact that the accused in that case was the first offender, reduced the sentence of imprisonment for a period of 14 years to 10 years. In Passing Lama v. U.T. Chandigarh, (Crl. Appeal No. 541-DB of 2007, decided on 19.3.2010), where 35 Kgs. of charas was recovered, this Court while considering the fact that the accused was the first offender, having four daughters of marriageable age, and was the only bread earner in the family, reduced the sentence of imprisonment from 12 years to 10 years. In a similar situation, in Atma Ram v. State of Haryana, (Criminal Appeal No. 555-DB of 2005, decided on 31.3.2010), wherein 9.500 Kgs. of opium was recovered, this Crl. A. No. 418-DB of 2002 -12- Court by considering the fact that the appellant in that case was first offender and was having small children to support, reduced the sentence of imprisonment from 14 years to 10 years. In the present case, 10 Kgs. of opium has been recovered from the appellant. It is not disputed that she is a first offender and is more than 50 years old lady, having four daughters and two sons. In these facts and circumstances, we are of the opinion that the ends of justice will be met if the sentence of imprisonment for a period of 12 years is reduced to 10 years. In view of the above, conviction of the appellant under Section 18 of the Act is upheld and sentence of imprisonment of 12 years awarded to the appellant by the trial court is reduced to 10 years. However, the sentence of fine and the imprisonment in default of payment of fine is maintained. Accordingly, with the aforesaid modification in the sentence, the instant appeal is dismissed. ( SATISH KUMAR MITTAL ) JUDGE May 18, 2010 ( JORA SINGH ) ndj JUDGE