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2003 DIGILAW 1117 (PNJ)

Makhan Singh v. State of Punjab

2003-08-13

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Makhan Singh son of Gulab Singh the appellant herein stands convicted by learned Additional Sessions Judge, Ludhiana vide impugned judgment dated 19.1.1990 under section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short to be referred as the Act) and has been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac, in default of payment of fine to further undergo RI for six months. 2. Briefly the case of the prosecution is that on 1.2.1989, ASI Shiv Dayal Singh PW2 who was posted at Police Station Saddar, Ludhiana alongwith other police officials was present in connection with routine patrolling duty when he received secret information against the appellant and believing the same to be true a ruqa was sent for the registration of the formal FIR and consequently the formal FIR Ex. PA/1 was recorded in Police Station Saddar Ludhiana. The police party then reached the hut of the appellant in his village and he was found present there. He was throughly interrogated. The case of the prosecution further is that the appellant suffered disclosure statement that he had kept concealed five bags of contraband poppy husk underneath the heap of dry fodder on the right side of his hut and that he could get the same recovered. The disclosure statement was reduced into writing and pursuant to the said disclosure statement he led the police party to the place of concealment and got recovered five bags. One sample each weighing 250 grams of poppy husk was separated from each bag and the remaining contents were then weighed. Each bag was containing 35 kgs of poppy husk. Other legal formalities were also done at the spot. The case property was taken into possession vide recovery memo and the same was then deposited with SHO of the concerned Police Station in compliance of section 55 of the Act. The SHO had also put his seal bearing letters KSS alongwith other seal impression of ASI Shiv Dayal bearing letters SD already put at the spot. As per the Chemical Examiners report Ex. PF, sample was shown containing poppy heads. After the completion of the investigation, the appellant was challaned in this case. He was charged under section 15 of the Act by the learned trial Court. 3. As per the Chemical Examiners report Ex. PF, sample was shown containing poppy heads. After the completion of the investigation, the appellant was challaned in this case. He was charged under section 15 of the Act by the learned trial Court. 3. After appreciating the entire evidence, the appellant stands convicted and sentenced as indicated above. Hence, this appeal. 4. I have heard Mr. A.S. Kalra, learned counsel for the appellant and Mr. G.S. Hooda, learned Assistant Advocate General, Punjab. With their assistance I have also gone through the entire record. 5. The prosecution in support of its case has mainly examined HC Makhan Singh PW1 and ASI Shiv Dayal PW2 two main witnesses of the recovery. Inspector Kanwarjit Singh PW3 has been produced by the prosecution to show the compliance of section 55 of the Act. He has also prepared report under section 173 Criminal Procedure Code HC Jagdish Singh was not produced by the prosecution being unnecessary. Ex. PG and PH are the affidavits to proves link evidence whereas Ex. PF is the Chemical Examiner report. 6. The defence as emerges from the statement of the present appellant is that he has been falsely implicated in this case. He then alleges that he alongwith his relative Jarnail Singh was brought to the police station from the village and later on he was implicated alongwith Jarnail Singh. Malkiat Singh Reader has been produced as DW1. Ex. DB is the application and Ex. DC is telegram brought by the appellant in his defence. 7. Mr. Kalra has vehemently contended that Ex. DC telegram shows that the present appellant alongwith his relative was detained on 9.12.1988 and that the telegram was given on 12.12.1988 to Senior Superintendent of Police, Ludhiana. The learned counsel then contends that this shows that the appellant was illegally confined in police station for a considerably long time and subsequently he was falsely implicated in this case. The learned counsel also relies upon Ex. DB an application moved by the appellant regarding his false implication. 8. So far as the compliance of mandatory provisions of the Act are concerned, Mr. Kalra has argued half-heartedly and said that provisions have not been complied with in this case. The learned counsel also relies upon Ex. DB an application moved by the appellant regarding his false implication. 8. So far as the compliance of mandatory provisions of the Act are concerned, Mr. Kalra has argued half-heartedly and said that provisions have not been complied with in this case. He contends that the investigating officer has not disclosed the ground of arrest to the present appellant in this case and as such there is non-compliance of section 52 of the Act. He then contended that there is non-compliance of section 55 of the Act also in this case because when the appellant was produced before Kanwarjit Singh SHO, the appellant was not interrogated by the SHO and he just put his seals on the case property in a formal manner without strictly complying with the provisions of section 55 of the Act. The learned counsel, thus prays for acquittal. 9. On the other hand, learned State counsel asserts that the case of the prosecution has been proved to the hilt against the present appellant. He then contends that in the present case all the mandatory provisions have been complied with in its letter and spirit and the appellant does not deserve acquittal. 10. After hearing the rival contentions of both the sides, I am of the considered view that the prosecution has been able to prove its case beyond reasonable doubt against the present appellant. 11. The recovery in the present case is effected in pursuance of the disclosure statement allegedly made by the appellant. Admittedly the recovery is effected from the hut of the appellant which was in his exclusive possession. Thus, there cannot be any dispute about the recovery part in this case. 12. So far as the compliance of provisions of the Act are concerned, in my view the mandatory provisions of the Act have been observed in this case regarding the arrest, search and seizure. At the time of apprehension, the appellant was apprised of his right to be searched in the presence of a Magistrate or a Gazetted Officer. This is sufficient compliance of the provisions of section 50 of the Act. Even otherwise as the recovery is effected in pursuance of the disclosure statement allegedly made by the appellant, the compliance of section 50 of the Act was not required in this case. This is sufficient compliance of the provisions of section 50 of the Act. Even otherwise as the recovery is effected in pursuance of the disclosure statement allegedly made by the appellant, the compliance of section 50 of the Act was not required in this case. So far as other provisions of the Act are concerned, in my view the same have also been complied with in its true sense. I have minutely scanned the statements of HC Makhan Singh PW1, ASI Shiv Dayal PW2 and Inspector Kanwarjit Singh PW3 and do not find any infirmity in the same so far as the compliance of the mandatory provisions of the Act are concerned. 13. I have also seen the evidence adduced by the appellant in support of his defence. It does not come to his rescue at all. The telegram Ex. DC shows that the appellant and his relative was detained by the police on 9.12.1988. Telegram was sent on 12.12.1988 to the SSP. The present case is of 1.2.1989 and as such it cannot even remotely be connected with the said documentary evidence adduced in defence. The appellant might have been released by the police before the date of recovery in this case. Even otherwise such like telegrams or defences are prepared by the accused with a views to create a hurdle or forestal attempt of his apprehension by the prosecution agency/police. The contention of the learned counsel in this regard is repelled. 14. There is no doubt that when the recovery was effected no independent witness was joined but this fact by itself would not dent the prosecution case. In the present case, the prosecution agency has not wasted any time in apprehending the appellant after the secret information was received. Moreover, the official witnesses are to be kept at par with the independent witnesses. Simply that they are from the police department, they cannot be discarded or dubbed as interested witnesses. The recovery in this case is of heavy quantity (five bags of 35 kgs. each). There is no reason to disbelieve the prosecution witnesses in this case especially when no animosity is shown or proved against them. 15. In the sequel to the above said discussion, I am of the considered view that the prosecution has been able to bring home the guilt to the appellant by proving its case beyond any shadow of doubt. There is no reason to disbelieve the prosecution witnesses in this case especially when no animosity is shown or proved against them. 15. In the sequel to the above said discussion, I am of the considered view that the prosecution has been able to bring home the guilt to the appellant by proving its case beyond any shadow of doubt. The conviction as recorded by the trial court is, thus maintained. 16. Resultantly, the present appeal is dismissed being devoid of any merit. Let intimation of this judgment be sent to the trial court and other concerned quarters so that necessary steps can be taken at once to take the present appellant into custody to serve out his remaining part of substantive sentence. Appeal dismissed.