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2004 DIGILAW 529 (PNJ)

Ved Parkash v. State of Punjab

2004-05-05

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Ved Parkash son of Mithan Lal resident of Sangria (Rajasthan) stands convicted by the judgment of learned Additional Sessions Judge, Bathinda dated 22.1.1991 under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 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 two years. 2. The prosecution case can be summarized as under :- 3. On 8.5.1988, SI Balbir Singh PW2 alongwith ASI Iqbal Singh PW1 and other police officials was going for patrolling in a government Jeep No. PUT-3755 towards Nathpura, Ganga etc. At the Bus Stand of Nathana, Ganga Singh was also associated with the police party and when it was going towards the side of village Ganga and was about 5 killas from that village, the appellant was seen carrying a Jhola on his head. He was coming from village Ganga side. After seeing the police party, he got nonplused and turned towards his left side in the fields. SI Balbir Singh stopped the Jeep as suspicion arose in his mind and consequently the appellant was apprehended. He was given the option of search as required under section 50 of the Act and when the appellant had reposed the faith in SI Balbir Singh, the Investigating Officer, his search was conducted. From the Jhola which he was carrying on his head, 13 kgs. of opium wrapped in a glazed paper was recovered. Out of recovered opium, 50 grams was separated as sample and was put in a small tin. The remaining opium was then put in a tin (Pipa Tin) and both were made into two separate parcels. Both the parcels were sealed with the seal impression IS. Seal impression was also prepared separately. The sample parcel and the other parcel containing the remaining opium alongwith specimen of seal were taken into possession vide recovery memo Ex. PA attested by ASI Iqbal Singh PW1 and Ganga Singh PW. The personal search of the appellant was also conducted and a sum of Rs. 300/- was taken into possession vide separate recovery memo attested by the aforesaid persons. Ruqa Ex. PC was sent to the Police Station on the basis of which formal FIR Ex. PC/1 was recorded. Rough site plan Ex. The personal search of the appellant was also conducted and a sum of Rs. 300/- was taken into possession vide separate recovery memo attested by the aforesaid persons. Ruqa Ex. PC was sent to the Police Station on the basis of which formal FIR Ex. PC/1 was recorded. Rough site plan Ex. PD was also prepared at the spot. After the report of the Chemical Examiner Ex. PE, the appellant was challaned in this case to face trial. 4. The learned trial Court framed charge against the appellant under section 18 of the Act. 5. The case of the prosecution hinges on the statement of PW1 lqbal Singh ASI and PW2 Balbir Singh SI who is the Investigating Officer of this case. ASI Iqbal Singh PW1 and SI Balbir Singh PW2 have categorically stated that on 8.5.88, the appellant was apprehended by them and on his search 13 kgs of opium was recovered from the Jhola which he was carrying on his head. There is no need of entering into detailed discussion as the recovery part has already been alluded to in brief in the preceding paras. The relevant part from their statements would be touched while meeting the arguments advanced by the learned counsel for the appellant. 6. Constable Balraj Singh PW3 has tendered his affidavit Ex. PF. The defence availed the opportunity of cross-examining this witness. 7. Ganga Singh who was joined by the police party has been given up as being won over by the appellant. He has, however, been produced by the appellant in defence. 8. Ex. PE the Chemical Examiner report reflects that the sample sent for analysis contained opium. 9. The defence taken up by the appellant as emerges from his statement recorded under section 313 Criminal Procedure Code is that the recovery of contraband has been planted upon him and in fact it was recovered from the Scooter bearing No. PCC-4351 of some other Ved Parkash who was later on let off by the police and the present appellant was implicated instead. 10. 10. He, in defence, has produced Ganga Singh as DW1 (initially joined as prosecution witness) who was stated that the police had come to the house of one Billu Singh who is smuggler and is resident of his village and someone else was apprehended in the house of Billu Singh and the said person was having opium in his Motorcycle and Rs. 3500/- with him. It is then stated by him that at that time he was passing by the side of the house and the police called him and asked him to put his thumb impressions on certain papers. At that time Thanedar had told him that opium was recovered from the Motorcycle. This witness names the person from whom the opium was recovered as Om Parkash of Sangria. Constable Gursahib Singh DW2 was also produced as one of the defence witnesses who has produced the Daily Diary Register of Police Station, Nathana with effect from 4.5.88 to 12.6.88 and has stated that there is no entry regarding the release of scooter to Ved Parkash son of Bhan Chand r/o Sangria but there was an entry No. 21 dated 17.6.88 in the Daily Diary Register regarding the arrest of one Ved Parkash son of Bhan Chand resident of Sangria in a case FIR No. 11/88. 11. After appreciating the entire evidence, the appellant has earned conviction for the charge. Hence, this appeal. 12. I have heard Mr. Salil Bali, learned counsel for the appellant and Mr. G.S. Bhandari, learned Deputy Advocate General, Punjab. With their assistance, I have also gone through the entire record. 13. The learned counsel for the appellant contends that there is non- compliance of section 50 of the Act in this case as the offer given to the appellant was not strictly according to section 50 of the Act. In this regard, the learned counsel has drawn my attention to the statement of SI Balbir Singh PW2. The Investigating Officer, who has stated that the appellant was given the option of search before some gazetted officer but on the consent being given by him, the search was conducted by him. He then contends that this offer is not a complete offer as the appellant was not apprised of being searched by a Magistrate as well and technically this would amount to non- compliance of section 50 of the Act. He then contends that this offer is not a complete offer as the appellant was not apprised of being searched by a Magistrate as well and technically this would amount to non- compliance of section 50 of the Act. In support of his arguments, the learned counsel relies upon judgment of the Constitutional Bench of the Apex Court rendered in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 and submits that the protection provided in this section to an accused to be intimated that he has the right to have the search before the gazetted officer or a Magistrate, if he so requires, is sacrosanct and indefeasible and it cannot be disregarded by the prosecution. The omission would render the conviction and sentence unsustainable. The learned counsel also relies upon another judgment of Apex Court rendered in Beckodan Abdul Rahiman v. State of Kerala, 2002(2) RCR (Crl.) 385. 14. It is then contended that the recovery of contraband from the Jhola being carried on the head of the appellant would amount to a search from his person and as such the prosecution cannot give go-bye to section 50 of the Act which is attracted on the face of it in the instant case. In support of his contentions, the learned counsel relies upon the judgment of the Apex Court rendered in Namdi Francis Nwazor v.Union of India and another, (1998) 8 SCC 534. 15. It is then contended that Ganga Singh PW who was initially joined by the prosecution and is an attesting witness to all the recoveries had been given up by the prosecution and he rather supported the defence of the appellant. My attention has been drawn to the statement of Ganga Singh DW1 who has stated that the police had asked him to sign the recovery memo when the contraband was recovered from the motorcycle in the house of Billu Singh. The learned counsel contends that once the independent witness is not supporting the prosecution case and there is no cogent evidence with regard to the offer of search, it is not safe to rely upon the prosecution case. In support of his contentions, he relies upon another judgment of Honble Apex Court rendered in State of Haryana v. Vikram Singh, 2002(1) RCR (Crl.) 577. 16. In support of his contentions, he relies upon another judgment of Honble Apex Court rendered in State of Haryana v. Vikram Singh, 2002(1) RCR (Crl.) 577. 16. It is then contended that there is also non-compliance of section 55 of the Act as SI Balbir Singh PW2 on return to the Police Station had deposited the case property with MHC Beant Singh instead of handing it over to the Incharge of the Police Station for keeping it in his safe custody as required under the Act. This infirmity also knocks at the bottom of the case, the learned counsel so contends. 17. Another attack has been made on the prosecution case with regard to missing of link evidence. The learned counsel contends that the sample was initially sent to the Chemical Examiner on 18.5.88. It was returned with some objections and therafter the same was deposited in the office of SSP Bathinda on 20.5.88. Thereafter, it was taken to the Chemical Examiner by Constable Balraj Singh with whom, the same remained in between as intact, to that effect no evidence has been adduced by the prosecution. The link evidence is consequently missing in this case and the tampering with the sample cannot be ruled out. In this regard, the attention of the Court has been drawn to the affidavit Ex. PF tendered by Constable Balraj Singh and the report Ex. PE where the factum of receipt of sample on 2.6.88 is mentioned. The learned counsel has also attacked the report of the Chemical Examiner Ex. PE stating that there is overwriting in one of the columns where the reference to the impression of the sale (seal ?) is mentioned and contends that this lacuna also indicates that the sample has been tampered with. 18. While attacking the investigation, the learned counsel contends that in all the documents prepared at the spot, FIR number is mentioned whereas the ruqa was sent by SI Balbir Singh for the registration of formal FIR and as such there could not be any occasion for showing FIR number in the recovery memo Ex. PA, search memo of the appellant (Fard Jama Talashi) or rough site plan Ex. PD. This according to him, indicates that all the written work was done in the police station itself and nothing was recovered from the appellant at particular place as alleged by the prosecution. 19. PA, search memo of the appellant (Fard Jama Talashi) or rough site plan Ex. PD. This according to him, indicates that all the written work was done in the police station itself and nothing was recovered from the appellant at particular place as alleged by the prosecution. 19. The learned counsel then submits that the defence in the present case is most probable which is strengthened by the defence witnesses. Drawing my attention to the statement of Constable Gursahib Singh DW2, he contends that in fact the recovery was effected from one other Ved Parkash son of Bhan Chand who was let off by the police and the present appellant was implicated in this case. He has taken me through the cross-examination of SI Balbir Singh where he has stated that one Ved Parkash son of Bhan Chand was apprehended in this case and an inquiry was also held by DSP on the directions of SP Headquarters. He further contends that the investigation in this case was not honest and fair and in fact the recovery effected from another person has been falsely foisted upon the appellant. 20. Relying on the aforesaid contentions, the learned counsel prays for acquittal of the appellant. 21. Refuting the arguments advanced on behalf of the appellant, the learned State counsel submits that there is no reason to disbelieve the official witnesses in this case who had no animosity against the appellant who is also from a different State (Rajasthan). It is then contended that even if Ganga Singh was not produced by the prosecution as having been won over, his statement as DW2 does not render any help to the appellant. The learned State counsel further contends that so far as the involvement of one Ved Parkash son of Bhan Chand is concerned, he was interrogated after the present appellant was apprehended as he had stated that he had purchased the opium from him and in case no action has been taken against said Ved Parkash by the Investigating Agency, it would at the most be termed as a minor lapse on the part of the Investigating Officer but the present appellant cannot escape his liability at all and the judgment of conviction as recorded by the learned trial Court deserves to be upheld. 22. 22. After hearing the rival contentions of both sides and perusing the entire record minutely, I am of the view that the prosecution has been able to prove the conscious possession of the contraband (13 kgs. of opium) from the appellant beyond shadow of any reasonable doubt. 23. The main attack of the learned counsel for the appellant is on non- compliance of section 50 of the Act on the ground that the recovery of contraband from the Jhola being carried on the head amounts to a search from the person for which the compliance of section 50 of the Act is a must and in the instant case the provisions of section 50 of the Act have not been complied with strictly according to the Act. This contention of the learned counsel has to be repelled in the light of a very recent judgment of Honble Apex Court rendered in State of Punjab v. Makhan Chand, (2004)3 SCC 453, in which their Lordships have held that in a situation where the contraband is carried in the hands of the accused, section 50 of the Act would not apply. In the aforesaid case the contraband was being carried in tin box by the accused when he had alighted from the Bus. The accused (appellant) was acquitted by the High Court on the ground of non-compliance of section 50 of the Act. The appeal filed by the State was allowed by the Honble Apex Court and the acquittal was set aside. In Makhan Chands case (supra) their Lordships have also relied upon Baldev Singhs case (supra), Gurbax Singh v. State of Haryana, 2001 SCC (Cri) 426 and Kalema Tumba v. State of Maharashtra, 1999 SCC (Cri) 1422. 24. Reference can also be made to another latest judgment of Honble Apex Court rendered in Saikou Jabbi v. State of Maharashtra, 2004(1) RCR(Crl.) 96, wherein their Lordships have held that section 50 of the Act does not extend to search of a vehicle or a container or a bag, or premises. 24. Reference can also be made to another latest judgment of Honble Apex Court rendered in Saikou Jabbi v. State of Maharashtra, 2004(1) RCR(Crl.) 96, wherein their Lordships have held that section 50 of the Act does not extend to search of a vehicle or a container or a bag, or premises. In the aforesaid judgment besides relying upon Kalema Tumba, Baldev Singh and Gurbax Singhs cases (supra), their Lordships have also relied upon another judgment of Honble Apex Court rendered in Birakishore Kar v. State of Orissa, (2001) 9 SCC 541, in which there was a recovery from a plastic bag belonging to the accused on which he was found sitting in a Railway compartment. In that eventuality section 50 of the Act was held not applicable. The position of section 50 of the Act has also been highlighted recently by the Honble Apex Court in Madan Lal & Anr. v. State of Himachal Pradesh, 2003 AIR SCW 3969. 25. Beckodan Abdul Rahimans case (supra) relied upon by the learned counsel for appellant would not be applicable to the facts of the present case as in the said case the search offered to the accused was held to be incomplete. 26. In Namdi Francis Nwazors case (supra), the question of section 50 of the Act was tested in the backdrop of the facts of that particular case. In the said case, the team of Narcotic Bureau which was present at the Airport suspected the accused of carrying some contraband in the baggage and after the offer regarding the search was given to him his luggage was searched. Their Lordships on the facts of that case held that compliance of section 50 of the Act was not required and the accused was rightly convicted by the High Court. In the backdrop of facts of that particular case, their Lordships, however, observed in para No. 3 of the judgment that when a person is carrying hand bag or the like and the incriminating article is found therefrom, it would be a search of the person of accused. However, following the ratio of the aforesaid judgments especially the law laid down in a latest judgment in Makhan Chands case (supra), the compliance of section 50 of the Act was not at all required and as such the contention of the learned counsel in this regard merits rejection. 27. However, following the ratio of the aforesaid judgments especially the law laid down in a latest judgment in Makhan Chands case (supra), the compliance of section 50 of the Act was not at all required and as such the contention of the learned counsel in this regard merits rejection. 27. At the same time there is a complete compliance of section 55 of the Act in this case. I have once again perused the statement of SI Balbir Singh PW2 the Investigating Officer of the case. In the opening lines of his statement, he has categorically stated that on 8.5.88 he was posted as SHO Police Station Nathana. In this eventuality if he had deposited the case property with Moharrir Head Constable with all the seals intact, this would amount to compliance of section 55 of the Act as he himself was the Incharge of the said Police Station. The argument advanced in this regard, in my considered view is without any force and is hereby repelled. 28. Much has been said about link evidence. In this context I have seen the report Ex. PE once again. No doubt, initially the sample was sent to the Chemical Examiner on 18.5.88. It was sent back to SSP, Bathinda as there was some defect in the papers. PW3 Constable Balraj Singh in his cross-examination has made it clear saying that some objection was raised by the Chemical Examiner about the papers. He has also stated that the seals of the sample were intact till it remained with him. On 20.5.88 the sample was deposited in the office of SSP Bathinda. No doubt, no evidence has been produced by the prosecution with regard to period from 20.5.88 to 2.6.88 in respect of handling of the said sample till it reached the hands of Chemical Examiner but the report indicates that all the seals were intact and were agreeing with the sample seals. The sample seal impression bearing IS which was pasted over the form sent for the analysis is dated 8.5.88. I have also seen the column where there is reference to the quantity of the opium sent for analysis. There is some overwriting at 2 or 3 places but it does not create any doubt so far as the tampering of the sample is concerned. I have also seen the column where there is reference to the quantity of the opium sent for analysis. There is some overwriting at 2 or 3 places but it does not create any doubt so far as the tampering of the sample is concerned. In the flash back of the aforesaid facts, no case of tampering with the seal is made out. The contention of the learned counsel, in this regard, needs rejection. 29. In my considered view, there is no lacuna so far as the investigation is concerned. Mentioning of the FIR number in the documents prepared at the spot is on account of the fact that in routine the police official who takes the ruqa for the registration of the FIR comes back at the spot with the number of the FIR. Even in this case in ruqa Ex. PC, SI Balbir Singh, the Investigating Officer has categorically stated that he be informed of the number of the case after registration of the FIR. In Punjabi parlance it is written as "Mukadma daraj karke number mukadma ton janu keeta jave". This is the reason that subsequently the FIR number was mentioned in all the documents prepared at the spot. 30. The other argument of the learned counsel for the appellant that involvement of one Ved Parkash son of Bhan Chand reflects dishonest investigation merits rejection for the reason that even if at one stage one Ved Parkash son of Bhan Chand was apprehended in this case that would not be a ground to doubt the prosecution case so far as conscious possession of contraband qua present appellant is concerned. SI Balbir Singh has stated that after the appellant was arrested, he made a statement that the opium was purchased from said Ved Parkash. In case no action was taken against said Ved Parkash son of Bhan Chand, it may be termed as a lapse on the part of the Investigating agency but it would certainly not absolve the present appellant of his liability. An inquiry in this case was held by DSP on the directions of S.P. The involvement of the present appellant cannot be doubted as false in this case as huge recovery of contraband (13 kgs. of opium) cannot possibly be planted upon him. In my considered view, the defence as projected by the appellant is very weak. An inquiry in this case was held by DSP on the directions of S.P. The involvement of the present appellant cannot be doubted as false in this case as huge recovery of contraband (13 kgs. of opium) cannot possibly be planted upon him. In my considered view, the defence as projected by the appellant is very weak. It needs to be mentioned here that statement of Ganga Singh who was given up by the prosecution and produced by the defence does not lend any help to the appellant to strengthen his defence. 31. From the aforesaid discussion, it is proved to the hilt that the appellant was in conscious possession of 13 kgs of opium on 8.5.88 when he was apprehended by SI Balbir Singh PW2 and other police officials. The charge against him is established beyond any shadow of reasonable doubt. The conviction as recorded by the trial Court is, thus, upheld. 32. No other point has been urged before me by either side. 33. Resultantly, the present appeal is dismissed being devoid of any merit. 34. Since the appellant is on bail as his sentence was suspended by this court, he shall now surrender to custody to serve out his remaining part of substantive sentence. Necessary steps in this regard be taken promptly. Appeal dismissed.