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2004 DIGILAW 465 (PNJ)

Gauri Shankar v. State of Haryana

2004-04-21

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Gauri Shankar alias Gauru son of Daulat Ram was charged under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (for brevity the Act) for allegedly carrying 10 kilograms of opium in his possession without any permit or licence. He stands convicted by the impugned judgment of learned Additional Sessions Judge, Ambala dated 5.2.1988 and has been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac, in default to suffer further RI for two years. Aggrieved by the impugned judgment of conviction and sentence, he has preferred the present appeal. 2. In short the case of the prosecution is that on 24.1.1987 Raghbir Singh (PW2), the Inspector/SHO, police station Ambala Cantt with police officials and one Nasib Singh Sarpanch son of Mehma Singh (PW-1) had apprehended one Bikram Singh alias Vicky and had recovered opium from him. After completing investigation of the said case. When the police party reached near Microscope Chowk, Gauri Shankar the present appellant was seen coming from the side of Prince Hotel. He was carrying a bag (Ex. P1) on his left shoulder. On the pointing out of the said Bikram Singh accused, the present appellant was apprehended. On search 10 Kilograms of opium was recovered from his bag. He could not produce any permit or licence for keeping the said contraband in his possession. 250 grams of the opium out of the aforesaid 10 Kgs. was separated as sample. The sample and the remaining bulk were sealed in separate parcels with the seal NR and were taken into possession vide recovery memo. Ex. PA, attested by ASI Jaimal Singh, ASI Norata Ram and Nasib Singh Sarpanch. Ruqqa Ex. PB was sent to the police station on the basis of which formal FIR Ex. PB/1 was registered in the concerned police station. Rough site plan Ex. PC was also prepared at the spot. All the other legal formalities were completed at the spot. On return to the police station, the sealed parcels were deposited with MHC Som Nath. The report of the Chemical Examiner indicated that the substance of the sample was opium. Consequently, the appellant was challaned in this case. 3. As indicated above, the appellant was charged under section 18 of the Act and was convicted and sentenced by the learned trial Court. 4. I have heard Mr. The report of the Chemical Examiner indicated that the substance of the sample was opium. Consequently, the appellant was challaned in this case. 3. As indicated above, the appellant was charged under section 18 of the Act and was convicted and sentenced by the learned trial Court. 4. I have heard Mr. P.S. Sullar, learned counsel for the appellant and Mr. Sanjeev Sheokand, AAG, Haryana. With their assistance I have perused the entire record minutely. 5. The relevant evidence adduced in the case would be discussed by me while meeting the arguments of the learned counsel for the parties. 6. The main attack on the prosecution case from the side of the appellant is that there is non-compliance of mandatory provisions of Section 50 of the Act. The learned counsel contends that the alleged bag containing contraband was hanging on the shoulder of the appellant and as such compliance of Section 50 of the Act was mandatory, but no such compliance is done in the present case. This factual lacuna in itself is enough to reject the prosecution case in its totality. He has also drawn my attention to the statement of Raghbir Singh Inspector (PW2) in this regard. 7. The other argument advanced by the learned counsel is that in spite of the fact that the independent witnesses were available, as the appellant, was apprehended near a hotel, no person was asked to join the investigation and this infirmity also casts doubt upon the prosecution story. Dwelling upon the arguments, it is contended that Nasib Singh PW1 is a witness in another case against Bikram Singh alias Vicky and he has been shown as a witness to recovery in this case as well. From this, it can be comfortably said that Nasib Singh PW was at the beck and call of the police, being most convenient witness. Learned counsel further contends that giving up of all other official witnesses as unnecessary and basing conviction of the appellant on the statements of Inspector Raghbir Singh and Nasib Singh PW is not free from doubt. 8. Learned counsel further contends that giving up of all other official witnesses as unnecessary and basing conviction of the appellant on the statements of Inspector Raghbir Singh and Nasib Singh PW is not free from doubt. 8. The learned counsel while pointing out certain discrepancies in the statements of the witnesses has drawn my attention to the statement of Nand Lal, DW1 and employee of Prince Hotel Ambala and submits that whole of the investigation in this case is tainted one from the start and the prosecution fails to bring home guilt to the accused. 9. Refuting the arguments, the leaned State counsel submits that a huge quantity of contraband (10 Kilograms of opium) was recovered from the appellant and the same cannot be planted. It is then contended that even if some discrepancies have crept up in the statements of the prosecution witnesses, the same are immaterial and would not adversely affect the case of the prosecution. 10. After hearing both the sides at length and perusing the record, I am of the view that the case of the prosecution is proved beyond reasonable shadow of doubt and conviction of the appellant as recorded by the learned trial Court deserves to be upheld. 11. The case of the prosecution mainly hinges on the testimony of Nasib Singh PW1, the independent witness and Inspector Raghbir Singh, PW2, the Investigating Officer. The other evidence is of formal nature by way of affidavits in order to prove the link evidence. 12. The case of the prosecution is that Inspector Raghbir Singh had initially apprehended one Bikram Singh on 24.1.1987 in the presence of Nasib Singh Sarpanch (PW1) and other police officials and recovered opium from him. He was thereafter going towards Prince Hotel alongwith Nasib Singh when on the pointing out of Bikram Singh accused, the present appellant was also apprehended and contraband was recovered from him. No doubt, in the statement of Inspector Raghbir Singh (PW2) there is no reference to the compliance of Section 50 of the Act, but in my considered view the same was not required as the appellant was carrying the contraband in a bag, which was hanging on his shoulder. It cannot, thus, be equated with the recovery made from the person of the accused. In this eventuality, provisions of Section 50 of the Act would not apply. It cannot, thus, be equated with the recovery made from the person of the accused. In this eventuality, provisions of Section 50 of the Act would not apply. In Saikou Jabbi v. State of Maharashtra, 2004(1) RCR(Crl.) 96 (SC), the Honble Apex Court while relying upon the decisions rendered in Kalema Tumba v. State of Maharashtra and another, JT 1999(8) SC 293, The State of Punjab v. Baldev Singh, JT 1999(4) SC 595 and Gurbax Singh v. State of Haryana, 2001(3) SCC 28, has observed that Section 50 of the Act does not extend to search of a vehicle or a container or a bag, or premises. The contention of the learned counsel in this regard is thus repelled having no force in it. 13. The next contention regarding non-joining of independent witnesses is equally without any substance as in my view, Nasib Singh PW1, who was earlier joined as a witness in Bikram Singhs case is an independent witness. There is no reason to disbelieve him. Recovery from Bikram Singh was effected at a bus stand where persons come to board the buses. The presence of Nasib Singh at the bus stand cannot be said to be unnatural. He has categorically stated that he had come to Ambala City in order to go to the office of B.D.P.O. to enquire about his grant. Maybe that he was known to Inspector Raghbir Singh (PW2) earlier, but it cannot be said that he was a most convenient witness of the prosecution especially when no evidence has been brought on record to show that this witness was at the beck and call of the police. He has categorically stated that he has not appeared as a witness in any other case. He is otherwise not inimical towards the appellant, on account of which he would have come forward to depose against him. The appellant is from Rajasthan whereas Nasib Singh is from Haryana. I, thus, feel no difficulty in holding that Nasib Singh is an independent witness of recovery. 14. So far as giving up of three official witnesses is concerned, it could not affect the case of the prosecution at all. Multiplicity of the witnesses cannot strengthen the case of the prosecution at all. It is the quality of evidence which is to be appreciated. The statements of Inspector Raghbir Singh and Nasib Singh do not suffer from any infirmity. 15. Multiplicity of the witnesses cannot strengthen the case of the prosecution at all. It is the quality of evidence which is to be appreciated. The statements of Inspector Raghbir Singh and Nasib Singh do not suffer from any infirmity. 15. I do not find any material discrepancy in the statements of the prosecution witnesses so as to doubt the case of the prosecution in its entirety. From the statement of Nand Lal DW1, the learned counsel for the appellant has attempted to dent the prosecution story. His deposition is regarding stay of Vikram Singh accused in Prince Hotel, Ambala Cantt. This evidence has no nexus with the prosecution case. The recovery from the appellant was not effected from the Prince Hotel. Maybe Nand Lal (PW1) has stated that Vikram Singh had checked out from the said hotel on 23.1.1987, but so far as the present appellant is concerned, he did not stay in the said hotel at all. The evidence adduced by the appellant is most fragile and weak and cannot be taken into account. 16. No other point has been raised before me from either side. 17. As a sequel to the aforesaid discussion, I am of the considered view that the prosecution has been able to prove that the appellant was found in conscious possession of 10 kilograms of opium without any permit or licence and as such his conviction under section 18 of the Act as recorded by the trial Court is upheld. 18. Resultantly, the present appeal stands dismissed. 19. Since the substantive sentence of the appellant was suspended by this Court in 1988, he shall now surrender to custody to serve out his remaining part of sentence. Necessary steps be taken in this regard. Appeal dismissed.