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2003 DIGILAW 1279 (PNJ)

Parkash Kumar v. State of Punjab

2003-09-10

S.S.SARON

body2003
JUDGMENT S.S. Saron, J. - This appeal has been filed by the appellant-Parkash Kumar against the judgment and order dated 6.1.1997 passed by the learned Additional Sessions Judge, Faridkot, whereby the appellant has been convicted for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act - for short) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 1.00 lac and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. 2. The facts leading to the case are that on 24.6.1995, Sub-Inspector Darshan Singh, Incharge CIA Staff, Faridkot, along with Sub-Inspector Nek Singh and another Sub-Inspector Darshan Singh, Sub-Inspector Tehal Singh, ASI Ajmer Singh, LC Jagjit Singh, LC Nirmal Singh, Constable Harbans Singh, Constable Gurmail Singh, Constable Swaran Singh, Constable Sukhdev Singh, LC Amrik Singh, on a Government Canter No. PB 04 3054, whose driver was Constable Bhupinder Singh, were coming back after patrolling the area of Police Station Sadar, Faridkot. When the Police party reached about one Killa ahead of village Bhana, Bohar Singh son of Nidhan Singh met them and he was joined with the Police party which reached near the storm drain (Semnallah) in the area of village Bhana. There a person was coming on foot from the opposite side, carrying one white fertilizer bag slinging on his right shoulder. On seeing the Police party, he turned at once towards his left side on the southern bank of the storm drain (Semnallah) towards the west. On suspicion, he was apprehended with the help of the other officials and was asked his name and particulars. He gave his name as Parkash Kumar son of Ved Parkash resident of village Bhawani Mandi, district Jhalwad (Rajasthan). He was informed that his search was to be conducted and he was apprised of his right to be searched in the presence of a Magistrate or a Gazetted Officer. He was asked whether he wanted to be searched before a Magistrate or a Gazetted Officer. The accused stated that he would offer his search before a senior officer. Accordingly, his consent memo was prepared and reduced into writing which was attested by him and by the witnesses. Thereafter, a wireless message was flashed to Gurmail Singh, Deputy Superintendent of Police (Detective) Faridkot, who was requested to reach the spot. The accused stated that he would offer his search before a senior officer. Accordingly, his consent memo was prepared and reduced into writing which was attested by him and by the witnesses. Thereafter, a wireless message was flashed to Gurmail Singh, Deputy Superintendent of Police (Detective) Faridkot, who was requested to reach the spot. Deputy Superintendent of Police Gurmail Singh reached the spot within 20 minutes and search of the accused was conducted in the presence of Gurmail Singh, Deputy Superintendent of Police and the witness Bohar Singh. From the white fertilizer bag, which was slinging on the right shoulder of the accused, opium wrapped in a glazed paper was recovered from which, 50 grams of opium was taken out as a sample and was put into a small plastic box and the remaining opium was weighed and it was found to contain 9 kgs 450 grams, which was put in a plastic tin (Ex. P-1). After preparing the parcels, they were sealed with the seal bearing impression DS which was entrusted to SI Nek Singh. Separate impression of seal (Ex. P-2) was also prepared. The case property was taken in possession vide recovery memo (Ex. PD). The accused was searched and currency notes of Rs. 150/- were recovered from the pocket which were taken in possession vide recovery memo (Ex. PB), which was signed by the accused and attested by the witnesses. Separate seal impression was also prepared and after use, the seal was entrusted to SI Nek Singh, memo of which were attested by the witnesses. The accused after being informed of the reasons for his arrest, was arrested vide memo (Ex. PF), which was signed by the accused and attested by the witnesses. On the basis of the information sent to the Police Station vide ruqa (memo) Ex. PG, case FIR No. 49 was registered vide report No. 16 on 24.6.1995 at 4 p.m. for the offence under Section 18 of the Act. The Police carried out its investigation. The rough site plan (Ex. PH) with correct marginal notes was prepared. The statements of the witnesses were recorded. The accused along with the case property, sample and sample seal was made to appear before the SHO. The latter affixed his seal bearing impression BS. The sample of opium was sent to the Chemical Examiner. The rough site plan (Ex. PH) with correct marginal notes was prepared. The statements of the witnesses were recorded. The accused along with the case property, sample and sample seal was made to appear before the SHO. The latter affixed his seal bearing impression BS. The sample of opium was sent to the Chemical Examiner. The Chemical Examiner analysed the sample and opined that the contents of the same are opium. 3. After concluding the investigation, challan was filed in terms of Section 173 of the Code of Criminal Procedure (Criminal Procedure Code - for short) on 5.8.1995 before the Court of learned Additional Chief Judicial Magistrate at Faridkot. The learned Additional Chief Judicial Magistrate, Faridkot, vide his order dated 14.8.1995 committed the case to the Court of Session as the offence under Section 18 of the Act was exclusively triable by the said Court. The case was assigned to the Court of Learned Additional Sessions Judge, Faridkot, who charge-sheeted the accused vide order dated 21.9.1995 on the allegations that the accused on 24.6.1995 at 3.30 p.m. in the area of village Bhana, was found in possession of 9 kg 500 grams of opium without any licence or permit and thereby committed an offence punishable under Section 18 of the Act and within the cognizance of the said Court. The prosecution, in order to prove its case, examined as many as eight witnesses. Besides, the report of the Chemical Examiner (Ex. PL) was tendered in evidence and the prosecution evidence was closed. The accused was examined in terms of Section 313 Criminal Procedure Code in which he stated that he was innocent and on 6.6.1995, ASI Ajmer Singh had arrested him at Police Station Bhana and after his transfer to Faridkot, the said ASI took him to Faridkot and after some days, he was falsely implicated in this case. As already noticed, the learned Additional Sessions Judge, vide his order dated 6.1.1997 convicted and sentenced the appellant. The said order is assailed in this appeal filed by the appellant. 4. I have heard the learned counsel for the parties and with their assistance have gone through the records of the case. 5. Mr. As already noticed, the learned Additional Sessions Judge, vide his order dated 6.1.1997 convicted and sentenced the appellant. The said order is assailed in this appeal filed by the appellant. 4. I have heard the learned counsel for the parties and with their assistance have gone through the records of the case. 5. Mr. Raman Sharma, learned counsel appearing for the appellant has contended that Bohar Singh, who was member of the Police party and was an independent witness has been given up, which renders the prosecution version as highly doubtful as no independent witness was examined. He has further contended that the writing of the log book (Ex. D-1) dated 24.6.1995 is in a different ink with respect to the entry of the place of occurrence. Even otherwise, the Deputy Superintendent of Police, who went to the place of occurrence, it is contended, has not stated that he himself conducted the search of the accused and even otherwise, his evidence is doubtful inasmuch as when the Deputy Superintendent of Police went to the spot, he saw the appellant still carrying the bag containing opium on his shoulder. This, according to the learned counsel, is highly improbable. He has further contended that Darshan Singh Sub-Inspector (PW-3) in his deposition stated that he had searched the person of the accused and this evidently shows that the Deputy Superintendent of Police Gurmel Singh was not present at the time of search of the accused. In support of his contention, the learned counsel has relied upon the case of Chand Mohd. v. The State of Punjab, 1996(2) Recent Criminal Cases 163. 6. In response, Mr. J.P. Bhatt, Learned Assistant Advocate General appearing for the State of Punjab has, however, contended that the prosecution has established its case in all respects and the minor discrepancies pointed out by the learned counsel for the appellant are not such which would warrant interference by this Court, to record a finding of acquittal against the accused. He, therefore, contends that the appeal is liable to be dismissed. 7. In order to appreciate the respective contentions of the parties, it may be noticed that Sub-Inspector Darshan Singh, CIA Staff, Faridkot (PW-3) appeared in the witness box and supported the case of the prosecution in all respects. He, therefore, contends that the appeal is liable to be dismissed. 7. In order to appreciate the respective contentions of the parties, it may be noticed that Sub-Inspector Darshan Singh, CIA Staff, Faridkot (PW-3) appeared in the witness box and supported the case of the prosecution in all respects. He reiterates the version as given in the FIR and stated that the appellant was having one white fertilizer bag which was slinging on his right shoulder. On seeing the Police party, he turned towards his left side and on suspicion, he was apprehended. The consent of the appellant was taken vide memo (Ex. PC) and reduced into writing and signed by him. The seal was attested by the other Police officials. After about 20 minutes, Deputy Superintendent of Police Gurel Singh (PW-4) reached the place of occurrence, who was in uniform and disclosed his identity to the accused that he is Deputy Superintendent of Police and is a Gazetted Officer. Accordingly, the search of the appellant was conducted in the presence of Deputy Superintendent of Police (PW-4) and other Police Officials and Bohar Singh. From the white gunny bag, opium was recovered which was wrapped in a glazed paper. From the recovered opium, 50 grams of opium was taken out as sample whereas remaining 9 kg 450 grams was put in a plastic tin (Ex. P-1). The seal, after use, was entrusted to Sub Inspector Nek Singh. Separate seal impression was prepared which is Ex. P-2. The rough site plan of the place of place of recovery was prepared which is Ex. PH with correct marginal notes. The statements of the PWs were recorded. On reaching Police Station, the accused along with the case property was produced before Inspector Baldev Singh, Station House Officer, Police Station Sadar Faridkot and he was also appraised of the facts of the case. He also verified the seals and sample seal and affixed his seal bearing impressions BS on the sample, case property and the sample seal and the case property were kept with him. 8. Sub-Inspector Nek Singh (PW-8) has also stated that Gurmel Singh DSP reached the place of occurrence within 20 minutes and in his presence, personal search of the appellant was conducted by Sub-Inspector Darshan Singh (PW-3) and from the gunny bag that the appellant was carrying, opium was recovered which was wrapped in a glazed paper. 9. 8. Sub-Inspector Nek Singh (PW-8) has also stated that Gurmel Singh DSP reached the place of occurrence within 20 minutes and in his presence, personal search of the appellant was conducted by Sub-Inspector Darshan Singh (PW-3) and from the gunny bag that the appellant was carrying, opium was recovered which was wrapped in a glazed paper. 9. Deputy Superintendent of Police Gurmel Singh (PW-4) deposed that on 24.6.1995 at about 12.40 p.m. he received a wireless message of Darshan Singh Sub-Inspector (PW-3) requesting him to reach the bridge of the storm water drain (Semnallah) in the area of village Bhana. He accordingly reached there and Darshan Singh Sub-Inspector along with 13 officials, the accused and PW Bohar Singh were present there. He disclosed to the accused that he was a DSP and a Gazetted Officer. The accused had one gunny bag on his right shoulder, from which opium was recovered which was wrapped in a glazed paper. From the recovered opium, 50 grams of opium was taken out as sample and the remaining 9 kg 450 grams was transferred into a plastic tin. In his cross-examination, DSP Gurmel Singh (PW-4) has stated that first of all the accused conducted his search and then he conducted his (accuseds) search. The learned counsel for the appellant, in these circumstances, wishes to draw an inference that the prosecution has not been able to establish as to who conducted the search on the person of Parkash Kumar appellant inasmuch as PW-3 Sub-Inspector Darshan Singh and PW-8 Nek Singh have stated that the search was conducted by SI Darshan Singh, whereas Gurmel Singh Deputy Superintendent of Police has stated that he had searched the person of the accused. 10. It is appropriate to note that in terms of Section 50 of the Act, it is provided that when any officer duly authorised under Section 42 of the Act is about to search any person under the provisions of Section 41, 42 or 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Magistrate. The requirement of Section 50 of the Act is in respect of the search of "a person of the accused" and it is only when "person of the accused" is to be searched then he is to be informed of his right to be searched before a Gazetted Officer or a Magistrate. The requirement of Section 50 of the Act is in respect of the search of "a person of the accused" and it is only when "person of the accused" is to be searched then he is to be informed of his right to be searched before a Gazetted Officer or a Magistrate. However, the opium in the case in hand was found from the bag belonging to the accused and not from his person. It was, therefore, in the circumstances, not necessary to make an offer of search in the presence of a Gazetted Officer or a Magistrate. In Kalema Tumba v. State of Maharashtra, AIR 2000 Supreme Court 402, it was held that requirement of informing the accused about his right to be examined in the presence of a Gazetted Officer or a Magistrate need not be complied with when the baggage of the accused is to be searched. The search of baggage of the person, it was held, not the same thing as search of the person of the accused. Therefore, the search, which was conducted on the person of the accused is hardly of any significance as the recovery was effected from the baggage that he was carrying. The same was conducted to see whether any incriminating article or Narcotic or Psychotropic substance was being carried by the accused in the bag that was slung on his shoulder. No incriminating article was found on his person. Therefore, the search which was carried in the case in the presence of the Deputy Superintendent of Police was quite inconsequential and was in fact not required in terms of Section 50 of the Act. Even otherwise, the discrepancy that has been pointed out is not so glaring which would in any manner nullify or vitiate the case of the prosecution. The occurrence regarding recovery of the opium had taken place on 24.6.1995 and the evidence of DSP Gurmel Singh (PW-4) was received in Court on 20.5.1996 i.e. almost a year after the occurrence. A Deputy Superintendent of Police performs various duties and has public dealings. The possibility as to who actually conducted the search a year earlier must have been forgotten by him. This is more so for the reason that a Police Officer carries out numerous investigations. In some cases searches of the accused are carried out by the DSP himself and in some cases by his subordinates. The possibility as to who actually conducted the search a year earlier must have been forgotten by him. This is more so for the reason that a Police Officer carries out numerous investigations. In some cases searches of the accused are carried out by the DSP himself and in some cases by his subordinates. As such, it is not possible for him to always remember as to in which case the search of an accused was conducted by the Officer himself and in which case by his subordinates. Besides, it is the consistent case of the prosecution that search of the gunny bag being carried by the appellant was conducted by Darshan Singh Sub-Inspector (PW-3) who has deposed that the search of the accused was conducted in the presence of the DSP, other officials and Bohar Singh. Besides, SI Nek Singh (PW-8) has also stated that personal search of the accused was conducted by SI Darshan Singh (PW-3) in the presence of DSP Gurmel Singh (PW-4) and from the gunny bag which the accused was carrying, opium was recovered which was wrapped in a glazed paper. In the circumstances, I am inclined to agree with the observations of the learned trial Court that the DSP (PW-4) has stated regarding the search due to some misunderstanding, otherwise the personal search of the accused was conducted by SI Darshan Singh (PW-3) who is the investigating officer in the case. 11. The other contention of the learned counsel for the appellant is that Bohar Singh, who was the eye-witness of the case was given up and he being an independent witness his non-examination has rendered the entire prosecution story unworthy of any credence as the case is not supported by any independent corroboration. However, I find no merit in the said contention of the learned counsel for the appellant. Shri Rupinder Singh Brar, Additional Public Prosecutor for the State made a statement before the trial Court on 20.5.1996 to the effect that he gives up PW Bohar Singh, as having been won over by the accused as he had seen him talking outside the Court room. Therefore, this statement of the learned Additional Public Prosecutor, which is based on his satisfaction after seeing the accused talking outside the Court room, would show that the said witness had been won over by the accused. Therefore, this statement of the learned Additional Public Prosecutor, which is based on his satisfaction after seeing the accused talking outside the Court room, would show that the said witness had been won over by the accused. As such, his non-examination does not in any manner vitiate the finding of guilt recorded by the trial Court. It is appropriate to note that the police official conducting the search of the appellant had joined Bohar Singh an independent witness. It is after the search was carried out that the Additional Public Prosecutor conducting the case during trial made a statement that Bohar Singh has been won over by the accused. Such eventualities do happen and after a person has been a witness to a search, he turns hostile. Therefore, it is not a case where no effort was made by the Police to join any independent witness. As such, in the circumstances, the evidence of the Police Officers who conducted the search is not liable to be disbelieved solely because no independent witness was examined to prove the search. Besides, it is not the case of the appellant that the Police was inimical towards him, which may have affected their evidence. In fact, nothing has been brought on record to show that the Police would falsely implicate the appellant. The only allegation of the appellant as made in his statement under Section 313 Criminal Procedure Code is that on 6.6.1995 Ajmer Singh ASI arrested him at PS Badhni and after his transfer to Faridkot, he took the appellant with him. After some days the appellant was falsely implicated. In this respect, it may be noticed that ASI Ajmer Singh is a junior official to that of Sub-Inspector Darshan Singh (PW-3) who is the Investigating Officer in the case. Therefore, it does not stand to reason that the appellant would be falsely implicated on the asking of a junior official. Even otherwise, there is no reason forthcoming as to why the appellant would be falsely implicated. In the circumstances, the evidence of the Police Officials who conducted the search is reliable and is not to be disbelieved for mere failure to examine the independent witness. 12. Learned counsel for the appellant has next pointed out that the writing of the document (Ex. In the circumstances, the evidence of the Police Officials who conducted the search is reliable and is not to be disbelieved for mere failure to examine the independent witness. 12. Learned counsel for the appellant has next pointed out that the writing of the document (Ex. D-1) is with a different ink than that recorded on the same day above the recording of the visit of the Deputy Superintendent of Police to the place of occurrence. Ex. D-1 is photostat copy of the Log Book Register. From a bare perusal of the same, it cannot be said to be with a different ink. However, even if it is with different ink, would in my view be of no consequence in view of the fact that on different visits, different persons had recorded the log book and this, to my mind, would not in any manner vitiate the visit of the Deputy Superintendent of Police to the place of occurrence, which even otherwise has been found to be not much significance in view of the recovery being effected on the search conducted by SI Darshan Singh (PW-3) and it being effected from the gunny bag that the accused was carrying on his shoulder. 13. It is also contended by the learned counsel for the appellant that Deputy Superintendent of Police has recorded his arrival only at 12.30 p.m. and, thereafter, he has not shown any further visit during the day. To my mind, this contention is also without any force as the occurrence is of 24.6.1995. In the month of June and during scorching heat nobody normally goes out in afternoon. Therefore, the contention as raised would not in any manner show that the visit of the Deputy Superintendent of Police to the place of occurrence, is under doubt. 14. The learned counsel for the appellant has also contended that the sample seal of the contraband was not handed over to the witness rather the same was handed over to Sub-Inspector Nek Singh (PW-8) who is a Police official. Learned counsel for the appellant has however, not shown any provision of law in terms of which the seal is to be handed over to an independent witness. The sample seal is only for the purpose of further corroboration in respect of the recovered articles in order to show that they have not been tempered with. Learned counsel for the appellant has however, not shown any provision of law in terms of which the seal is to be handed over to an independent witness. The sample seal is only for the purpose of further corroboration in respect of the recovered articles in order to show that they have not been tempered with. The learned trial Court has recorded that the report of the Chemical Examiner was very much clear and according to which when the sample was received in the Forensic Science Laboratory, the seals were intact. Therefore, this aspect and contention of the learned counsel for the appellant also is not of much consequence. 15. No other point has been raised by the learned counsel for the appellant. The case has been proved by the prosecution against the accused in all material aspects. The learned trial Court has found the appellant guilty of the offence attributed to him. The said finding calls for no interference in this respect. 16. Keeping in view the above facts and circumstances, there is no merit in this appeal, therefore, the same is dismissed. Appeal dismissed.