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2003 DIGILAW 959 (PNJ)

Mahender Singh v. State of Haryana

2003-07-16

K.C.GUPTA

body2003
JUDGMENT K.C. Gupta, J. - This appeal has been filed by Mahender Singh against judgment and order dated 22.10.1990 passed by the Additional Sessions Judge, Bhiwani, whereby he was found guilty and convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) for keeping in his possession 13 Kgs. and 700 Gms. of opium without any permit and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. one lac; in default of payment of fine he was further sentenced to undergo R.I. for 2 years. 2. Briefly stated the facts are that on 25.10.1988 PW5 SI Chattar Singh, then S.H.O. of Police Station Siwani along with three Head Constables namely PW4 Nihal Singh, Suraj Bhan and Bhajan Lal and two Constables was present at Kachha passage connecting village Jhuppa of Haryana with village Gotha of Rajasthan near the Rajasthan border. PW2 Nath Pal, Sales Tax Inspector along with two constables and a Peon was also present there. In the meantime, Fiat car bearing registration No. HYF-9497 was seen coming from the side of Rajasthan. Upon suspicion, the car was stopped. It was being driven by appellant Mahender Singh and his co-accused Roop Chand (now proclaimed offender) was sitting on the front seat. In between both of them there was lying a bag. 3. PW5 SI Chattar Singh gave an offer to the appellant and his co-accused to get themselves searched before a Gazetted Officer but they declined the offer and stated that SI Chattar Singh could take the search. On search, the bag was found to contain opium. 200 Gms was taken out as sample and the remaining on weighment was found to be 13 Kgs. 500 Gsms. The sample and the remainder were separately sealed and made into two parcels. The parcel of the remaining opium Ex. P1 and the sample parcel were taken into possession vide memo Ex. PD attested by the witnesses. SI Chattar Singh sent ruqa Ex. PH to the police station upon which formal FIR Ex. PH/1 was recorded. 4. After completion of the investigation at the spot, the appellant along with co-accused and the case property was taken to Police Station Siwani. On 26.10.1988 Shri Suraj Pal Singh, DSP Loharu verified the investigation and other facts. Upon receipt of the report of Chemical Examiner Ex. PH to the police station upon which formal FIR Ex. PH/1 was recorded. 4. After completion of the investigation at the spot, the appellant along with co-accused and the case property was taken to Police Station Siwani. On 26.10.1988 Shri Suraj Pal Singh, DSP Loharu verified the investigation and other facts. Upon receipt of the report of Chemical Examiner Ex. PK challan was put up in the Court of Illaqa Magistrate who in turn committed the case to the Court of Sessions. 5. Having made out a prima facie case, the appellant and his co-accused were charged under Section 18 of the Act to which they did not plead guilty and claimed trial. 6. In order to prove the allegations, the prosecution examined 6 witnesses. The affidavits Ex. PA, PB and PC were also tendered in evidence. 7. During trial, Roop Chand co-accused absented himself and his presence could not be secured and as such, he was declared a proclaimed offender. 8. After close of the prosecution evidence, statement of the appellant was recorded under Section 313, Criminal Procedure Code, wherein he denied the allegations of the prosecution and pleaded false implication. He next stated that he was driver of the car and was going with a passenger and was caught by the police and was falsely implicated in the case. He further stated that Roop Chand was not in his company on that day. Next day, his supplementary statement was recorded with regard to ownership of the car wherein he admitted that he was owner of the car after having purchased it from PW3 Ajit Singh and had paid part payment of the car. However, no defence evidence was produced by him. 9. After hearing learned P.P. for the State and the learned defence counsel, the learned Addl. Sessions Judge, Bhiwani found the appellant guilty and convicted him under Section 18 of the Act vide his judgment dated 22.10.1990 and sentenced him vide order of even date as stated in the earlier part of the judgment. 10. Aggrieved by the said judgment and order, the accused has filed the present appeal. 11. I have heard Mr. I.S. Balhara, learned counsel for the appellant, Mr. Sudhir Nehra, learned AAG Haryana and carefully gone through the file. 12. 10. Aggrieved by the said judgment and order, the accused has filed the present appeal. 11. I have heard Mr. I.S. Balhara, learned counsel for the appellant, Mr. Sudhir Nehra, learned AAG Haryana and carefully gone through the file. 12. Learned counsel for the appellant first contended that there was non- compliance with Section 50 of the Act as no offer was given to the appellant and his co-accused to get the themselves searched in the presence of some Gazetted Officer or Magistrate. He further contended that their statements to that effect were not recorded declining the offer and expressing confidence in SI Chattar Singh. 13. Of course, from the perusal of the file it shows that there was non- compliance with section 50 of the Act, but the said Section is not applicable to the facts of the present case because it is only applicable when personal search is to be taken by any Officer duly authorised under the provisions of Sections 41, 42 and 43 of the Act. However, in the present case, only bag was searched. Thus, even if there was non-compliance of Section 50 of the Act, then no fault can be found with the conviction. 14. Counsel for the appellant next contended that independent witness was not joined in the police party and non-joining of independent witness is fatal to the prosecution case. In my opinion, the contention of learned counsel is not tenable. It is not the case that PW5 SI Chattar Singh had intercepted the appellant and his co-accused on receipt of a secret information. On that day, they were present near Rajasthan border just by chance and on suspicion, they had stopped the car. Therefore, it was a chance recovery. It is not the case that independent witnesses were available but were not intentionally joined. On the other hand, Nath Pal Sales Tax Inspector was available who was present nearby and he was joined in the police party. It is true that PW2 Nath Pal was involved in a corruption case after 2/3 days of the seizure of the opium but that fact will not effect his testimony. Moreover, PW2 Nath Pal had explained that he was not on duty when the raid was conducted and on the other hand another Sales Tax Inspector Randhir Singh was on duty and ultimately, the case did not succeed and had to be dropped. Moreover, PW2 Nath Pal had explained that he was not on duty when the raid was conducted and on the other hand another Sales Tax Inspector Randhir Singh was on duty and ultimately, the case did not succeed and had to be dropped. So, he has to be considered an independent witness and cannot be considered to be a tainted witness by any stretch of imagination. 15. Counsel for the appellant next contended that appellant was not in conscious possession of the recovered opium but was a mere taxi driver and the opium belonged to passenger Roop Chand. Again, the contention of the learned counsel is not tenable. Initially, the appellant had stated that he was mere a taxi driver but in his supplementary statement, he had to admit that he had purchased the said car from PW3 Ajit Singh and thus, he was owner-cum-driver of the car on the day of alleged recovery of opium i.e. 25.10.1988. The bag of opium was found lying on the front seat in between the appellant and Roop Chand. So, conscious possession had to be attributed to him. Moreover, the appellant in his statement stated that Roop Chand did not accompany him on that day. So, there was no question that opium belonged to Roop Chand and he was not aware of it. 16. PW5 SI Chattar Singh stated that on 25.10.1988, he was S.H.O. of Police Station Siwani and alongwith other police officials was present on the Kachha passage going from village Jhuppa towards Gothiyan. He next stated that Nath Pal Sales Tax Inspector alongwith two constables and a peon was also present at the spot. In the meantime, a car was noticed coming from the side of Gothiyan, bearing registration No. HYF-9497 and it was got stopped on suspicion. He further stated that it was being driven by appellant Mohinder Singh and Roop Chand was sitting by his side on front seat and in between them, there was lying a bag which on suspicion was searched and found to contain opium. He further stated that 200 Gms. was separated as sample and the remaining opium on weighment was found to be 13 Kgs. 500 Gms. He next stated that sample and the remainder were separately sealed into parcels with the seal CS and taken into possession vide memo attested by the witnesses. He further stated that 200 Gms. was separated as sample and the remaining opium on weighment was found to be 13 Kgs. 500 Gms. He next stated that sample and the remainder were separately sealed into parcels with the seal CS and taken into possession vide memo attested by the witnesses. His statement is corroborated by PW4 ASI Nihal Singh and PW2 Nath Pal Sales Tax Inspector of Excise and Taxation Department. There is nothing to disbelieve their sworn testimony. They have well stood the test of cross- examination. From the report of the Chemical Examiner Ex. PK, it is proved that opium was recovered from the appellant. 17. Counsel for the appellant next contended that in the police statement Ex. DA Shri Nath Pal and in Ex. DB Nihal Singh HC had stated that first Katta (gunny bag) which was tied with a rope was opened and then opium wrapped in a polythene bag was recovered, then offer was given to the appellant and his co-accused as to whether they wanted to get themselves searched from some Gazetted Officer or Magistrate. However, PW5 SI Chatter Singh has stated in his statement that first offer was given and then bag was searched. Of course, this discrepancy is there but it hardly matters because Section 50 of the Act is not applicable as it was not a personal search. No other point has been urged. For the above discussion, the appeal fails and is dismissed. Appeal dismissed.