Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 1210 (PNJ)

Avtar Singh v. State Of Punjab

2004-11-01

HARJIT SINGH BEDI, NIRMAL SINGH

body2004
Judgment Nirmal Singh, J. 1. This appeal has been filed by the appellant against the judgment and order dated 23.8.2002 passed by learned Judge, Special Court, Bathinda, vide which he was sentenced to undergo RI for 12 years and to pay a fine of rupees one lac under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the Act"). In default of payment of fine, he was further sentenced to undergo RI for two years. 2. The prosecution case, in brief, is that on 7.10.1999, SI Janak Singh along with ASI Malkiat Singh and other police officials was going from V. Dhapali to V. Ghandabana on a private jeep for patrolling. When they crossed about 200 karams from Village Dhapali, they saw the accused coming on Peter Rehra carrying gunny bags on it. On suspicion, they stopped the Peter Rehra and SI Janak Singh asked the accused that he had suspicion of some contraband in the bags and wanted to search the same. SI Janak Singh also told the accused that he has a right to get the search conducted in the presence of some Gazetted Officer or a Magistrate. The accused preferred to get the search conducted from a Gazetted Officer, on which, SI Janak Singh sent a wireless message to PS Phul, and after sometime DSP Surjit Singh Khosa reached at the spot and disclosed his identity to the accused. On the direction of DSP, SI Janak Singh searched the bags, 24 in number, loaded on the Peter Rehra and the same were found to contain poppy husk. 250 grams of poppy husk from each bag was taken as a sample and the remaining bags on weighment came to 34 Kgs. 750 Grams each. All the samples and the residue were separately sealed by the Investigating Officer. The accused was arrested vide memo Ex. PD and ruqa, Ex. PF, was sent to the police station for registration of the case, on the basis of which formal FIR, Ex. PF/1 was recorded. On completion of investigation, challan against the accused was presented in the Court. 3. The accused was charged under Section 15 of the Act, to which he pleaded not guilty and claimed trial. 4. To prove the case, the prosecution examined PW-1 Surjit Singh Khosa, DSP, PW-2 SI Janak Singh and PW-3 Constable Jagjit Singh. 5. PF/1 was recorded. On completion of investigation, challan against the accused was presented in the Court. 3. The accused was charged under Section 15 of the Act, to which he pleaded not guilty and claimed trial. 4. To prove the case, the prosecution examined PW-1 Surjit Singh Khosa, DSP, PW-2 SI Janak Singh and PW-3 Constable Jagjit Singh. 5. The accused was examined under Section 313 Cr.P.C to explain the incriminating circumstance appearing in the prosecution evidence. He pleaded innocence and alleged false implication. He stated that he had been implicated due to enmity and party faction in the village. He took up the plea that he was taken from his village by the police and was falsely involved in this case. In defence, he examined DW-1 Buta Singh and DW-2 Jit Singh. 6. The learned trial Court, after hearing the defence counsel and learned PP for the State convicted and sentenced the appellant vide judgment and order dated 23.8.2002 as stated in Paragraph 1 of the judgment, against which the present appeal has been filed. 7. We have heard the learned counsel for the State and carefully gone through the record. However, nobody put in appearance on behalf of the appellant. 8. The provisions of Section 50 of the Act are not to be complied with in this case as the recovery in this case was effected by SI Janak Singh from an engine driven cart of the appellant and not from his person. Though there was no requirement to effect the search in the presence of Gazetted Officer or a Magistrate, yet, SI Janak Singh, as a precautionary measure, called PW-1 DSP Surjit Singh Khosa at the spot and effected the recovery in his presence. This legal proposition of law has already been settled by the Constitution Bench of the Honble Apex Court in State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 (SC). 9. The case of the prosecution hinges upon the statements of official witnesses i.e. PW-1 Surjit Singh Khosa, DSP and PW-2 SI Janak Singh. They have given the minute detail regarding the manner in which the recovery was effected from the appellant. We have scanned their statements carefully. There is not even a single discrepancy worth the name, on the basis of which their evidence can be discarded. They have given the minute detail regarding the manner in which the recovery was effected from the appellant. We have scanned their statements carefully. There is not even a single discrepancy worth the name, on the basis of which their evidence can be discarded. No doubt, the learned trial Court has taken note of some discrepancies in the statements of the official witnesses but the same were minor in nature and are bound to occur with the lapse of time as human memory is not a photographic memory. 10. The defence has examined Jit Singh as DW-2, who was joined as an independent witness. He has deposed that in his presence no poppy husk or any other incriminate substance was recovered from the possession of the appellant. The police had falsely made him a witness and got his signature on various blank papers, when he visited the police station in connection with some dispute with his neighbour. When DW-2 Jit Singh was cross-examined by the prosecution, he admitted that the appellant belonged to his village. Therefore, being a co-villager, he has not supported the case of the prosecution and was given up as won over by the accused. It is common knowledge that the persons who are dealing in the trade of narcotics, the witnesses are either being won over or they do not support the case of the prosecution against the accused due to fear. Furthermore, Jit Singh had admitted the signatures on some papers but he tried to give his explanation that those signatures were obtained on blank papers. However, no sane person would sign on the blank papers. Even if it is presumed that signatures of Jit Singh were obtained on some blank papers by the police, he has not made any complaint against the police officials in this regard. He had not made any complaint against SI Janak Singh, PW-2, who was the Investigator of this case, that the appellant, Avtar Singh of his village, had been falsely implicated in this case. Under these circumstances, no reliance can be placed on the statement of DW-2 Jit Singh. 11. Similarly no reliance can be placed on the statement of DW-1 Buta Singh, Sarpanch of Village Dhapali as he has also supported the case of the appellant, being co-villager. Under these circumstances, no reliance can be placed on the statement of DW-2 Jit Singh. 11. Similarly no reliance can be placed on the statement of DW-1 Buta Singh, Sarpanch of Village Dhapali as he has also supported the case of the appellant, being co-villager. Though he was the Sarpanch of the Village, yet he had not moved any written complaint to the higher authorities regarding false implication of the appellant in this case. Even he had not recorded in the Panchayat proceedings that the appellant had been falsely implicated. It is also relevant to mention here that 24 bags of poppy husk weighing 35 Kgs. each were recovered from the possession of the appellant and such a huge quantity cannot be planted just to falsely involved the appellant in the case. Otherwise also, the appellant had not alleged or proved any animus against SI Janak Singh and DSP Surjit Singh Khosa. Therefore, from the evidence on record, it is established beyond shadow of reasonable doubt that PW-2 SI Janak Singh had recovered 24 bags of poppy husk weighing 35 Kgs. each from the appellant in the presence of PW-1 DSP Surjit Singh Khosa, for which he was not having any valid permit or licence. Therefore, the learned trial Court has rightly convicted the appellant. However, the sentence awarded to the appellant is on the higher side. Therefore, in view the facts and circumstances of the case, we reduce the sentence of the appellant to 10 years from 12 years under Section 15 of the Act. However, sentence of fine is ordered to be maintained. 12. With this modification in the sentence, the appeal is dismissed.