Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 958 (PNJ)

Kashmir Singh v. Inspector Customs, Fazilka

2004-08-25

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Kashmir Singh son of Gurdit Singh, resident of village Pucca Chisti, District Ferozepur was charged under Section 8(c) read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act (in short to be referred to as the Act) for keeping in his conscious possession one kilogram of heroin on 22.4.1990. He stands convicted of the said charge vide impugned judgment dated August 4, 1993 of learned Sessions Judge, Ferozepur and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac, in default of payment thereof to further suffer RI for three years. 2. Briefly, the prosecution story runs thus : On receipt of a secret information in Custom Staff Fazilka, J.M. Bhatia, Superintendent of Customs (PW1), P.K. Yadav, Inspector Customs (PW2) and other custom officials besides M.I. Khan, Commandant Border Security Force (PW3), Nirmal Singh and Ajit Singh Inspectors B.S.F. raided the residence of the appellant on 22.4.1990. The search was conducted in the presence of Balbir Singh member panchayat and Dial Singh, both residents of the same village. One nylon bag containing two white bags, marked with Urdu script as Afghan-707 National was recovered from the vicinity of the appellants house, hidden in the Sarkana bundles tree wood. The said bags on opening were found to contain brown powder (heroin). On weighing each packet was found to contain 500 Grams of powder. Five samples of 5 grams each were taken from both the bags separately. One of the samples was sent to Chemical Examiner, Delhi, which on analysis was found to be light brown coloured powder with presence of Diacetyl morphine, which is covered under the Act. The report in this regard in Ex.PA. Another sample was handed over to BSF Commandant under proper receipt. P.K. Yadav (PW2) also recorded the statement (Ex.PC) of the appellant on the same day i.e. 22.4.1990, wherein he admitted the recovery of aforesaid 1 Kg of heroin from him and further admitted that one Ashu resident of village Kirianwali, Tehsil Dialpur, District Okara Pakistan had sent the same to him two days prior thereto and he had to sell the same in Delhi. He also admitted that he had earlier also been arrested by the BSF Staff and was facing trial in a case in Ferozepur Court for recovery of 6 Kgs of heroin. He also admitted that he had earlier also been arrested by the BSF Staff and was facing trial in a case in Ferozepur Court for recovery of 6 Kgs of heroin. After completion of investigation, the complaint Ex.PH was filed against the present appellant. 3. The appellant was consequently charged under Section 8(c) read with Section 21 of the Act. 4. In order prove the charge, the prosecution examined J.M. Bhatia, Superintendent Custom as PW1, who has reiterated the facts as mentioned above. P.K. Yadav (PW2) and M.I. Khan (PW3) corroborate his testimony. The prosecution has given up certain witnesses as unnecessary including Balbir Singh and Dial Singh, as having been won over. 5. The defence of the appellant as emerges from the statement recorded in terms of Section 313 of the Code of Criminal Procedure is that in fact he was taken from his village on 20.4.1990 and thereafter falsely implicated in this case. 6. In his defence the appellant has produced Dyal Singh and Balbir Singh DW1 and DW2 respectively (the witnesses, who were give up by the prosecution as having been won over). Both these witnesses have deposed that they had never joined the Custom Officials and nothing was recovered from the house of the appellant in their presence. 7. The learned trial Court after appreciating the entire evidence has convicted and sentenced the appellant as already indicated above. Hence this appeal. 8. I have heard Mr. Bipan Ghai, learned counsel for the appellant and Mr. G.S. Bhandari, DAG, Punjab. With their assistance I have perused the entire record minutely. 9. The first argument advanced by learned counsel for the appellant is that as per prosecution version recovery was not effected at the instance of the appellant but, in fact, the recovery is shown from outside his house and as such the conscious possession over the contraband of the present appellant is not established. 9. The first argument advanced by learned counsel for the appellant is that as per prosecution version recovery was not effected at the instance of the appellant but, in fact, the recovery is shown from outside his house and as such the conscious possession over the contraband of the present appellant is not established. Dwelling upon his arguments, the learned counsel further contends that from the statement of the witnesses it has come that the recovery of two small bags containing brown coloured powder was effected from a distance of 10-15 yards from the appellants house; that no rough-site plan is prepared in this case; that the ownership is not proved; that all these lacunae when taken collectively go to show that the prosecution has miserably failed to prove the conscious possession of the appellant and for this basic infirmity the appellant deserves acquittal. 10. The learned counsel then contends that since the prosecution was on slippery footing with regard to conscious possession, in a very clever move the statement of the confessional appellant was recorded under Section 108 of the Customs Act in order to implicate him in instant case as the said statement becomes admissible in evidence. 11. The learned counsel further contends that the prosecution has not produced Nirmal Singh, who was Joint Assistant Director of BSF and had allegedly received the secret information, and this lacuna also knocks at the bottom of the prosecution for the reason that the secret information is not reduced into writing and was sent to the senior officials. He further contends that in case Nirmal Singh had been produced as a witness, he would have been the best witness to explain as to why the compliance of the provisions of Section 42 of the Act was not carried out in this case. According to the learned counsel, this infirmity also on the face of it has caused prejudice to the appellant. 12. The learned counsel then contends that no evidence has been produced by the prosecution to establish the link evidence in this case right from the taking of samples till one of the samples reached the hands of the Chemical Examiner at Delhi, which is also a material infirmity in the case of the prosecution. 13. 12. The learned counsel then contends that no evidence has been produced by the prosecution to establish the link evidence in this case right from the taking of samples till one of the samples reached the hands of the Chemical Examiner at Delhi, which is also a material infirmity in the case of the prosecution. 13. The learned counsel next contends that Balbir Singh and Dyal Singh, who had allegedly joined the raiding party were given up by the prosecution and subsequently produced by the appellant in his defence, which weakness also dents the case of the prosecution and it can thus be safely said that in fact nothing was recovered from nearby the house of the appellant as alleged and he is falsely implicated. 14. Lastly, the learned counsel has pointed out certain discrepancies in the statements of the prosecution witnesses with regard to the manner of recovery. 15. Relying heavily on the aforesaid submissions, the learned counsel contends that the prosecution has not been able to establish the conscious possession of the appellant over the alleged recovery of heroin beyond shadow of reasonable doubt and as such the impugned judgment of conviction cannot sustain. 16. Repudiating the submissions made on behalf of the appellant, the learned State counsel contends that even if the independent witnesses have not come forward to depose in favour of the prosecution and have rather appeared as defence witnesses, there is no reason to discard the testimony of the official witnesses of Custom Department and even the senior official of the B.S.F. He then contends that there is no reason to disbelieve the investigation conducted in this case including the statement of the accused/appellant recorded under Section 108 of the Customs Act, which is admissible in evidence. The appellant, thus, has no escape from the liability of the charge and his conviction thus deserves to be upheld. 17. After giving my thoughtful consideration to the respective submissions of both sides and scrutinizing the entire evidence minutely, I am of the considered view that the prosecution has been able to prove its case to the hilt against the appellant. 18. Conscious possession of the appellant over the contraband is established in this case. The case of the prosecution is that two packets of heroin were recovered from the vicinity of the house of the appellant, which was lying hidden in the reeds. 18. Conscious possession of the appellant over the contraband is established in this case. The case of the prosecution is that two packets of heroin were recovered from the vicinity of the house of the appellant, which was lying hidden in the reeds. It has come in cross-examination of J.M. Bhatia PW that the approximate distance of the place of recovery from the gate of the appellants house is 3/4 yards. The recovery from the close by distance of his house indicates that the appellant was having conscious possession of the contraband. No doubt, rough site-plan is not prepared in this case and it had also come in the statement of J.M. Bhatia PW that the place of recovery was accessible to all but it does not mean that the outsiders had the access to the contraband. At the same time, the statement of the appellant recorded under Section 108 of the Customs Act cannot be just ignored. According to the statement of P.K. Yadav (PW2), it is clear that before the statement of the appellant (Ex.PC) was recorded under Section 108, it was explained to him that the same could be used against him in any Court. The appellant has also admitted in this statement that the contraband recovered from his house belonged to him and that he was also facing trial in another case of recovery of 6 Kgs of heroin at Ferozepore. Another fact which assumes importance in this case is that M.I. Khan (PW3), who had received the information through Nirmal Singh was also present when the confessional statement of the appellant was recorded. There is no motive for all these officials to fabricate such a statement against the appellant. The presumption that a person acts honestly applies as much in favour of the police officials as in favour of the other persons and without any good ground, it is not proper to suspect the deposition of government officials who are acting in the discharge of their officials duties. In the instant case, there is no reason to disbelieve the testimony of the custom officials and the B.S.F. official. The officials of two different departments would not join hands to fabricate the present case against the appellant in case no recovery had been effected. In the instant case, there is no reason to disbelieve the testimony of the custom officials and the B.S.F. official. The officials of two different departments would not join hands to fabricate the present case against the appellant in case no recovery had been effected. In my considered view, the confessional statement recorded under Section 108 of the Custom Act, being otherwise admissible in evidence, is a true statement given by the appellant without any coercion or inducement. 19. No doubt, Nirmal Singh Joint Director of B.S.F., who had initially received the secret information and was also a member of the raiding party has not been produced in the witness-box, but it would not affect the case of the prosecution at all. The factum of receiving the secret information has come from the statement of M.I. Khan (PW3). Much has been said by the learned counsel on non-compliance of Section 42 of the Act. In my considered view, even if there is non-compliance in this regard, it would not prejudice the case of the appellant in any manner. Even otherwise, no prejudice is shown in this case. 20. At the same time, I do not find any force in the submission made by learned counsel for the appellant on link evidence. No doubt the prosecution has not produced any witness, who had handed over the sample to the Chemical Examiner, but non-examining of such witness would not leave any adverse impact on the prosecution case. As per prosecution version, five sample were drawn at the spot and all were handed over to the B.S.F. authorities. Out of them, one was retained by the Custom Department, another was deposited in the Malkhana and the third was sent to the Chemical Examiner under insured cover. Report Ex.PA of the Chemical Examiner indicates that all the seals were intact. From this it can be safely said that the sample was never tempered with. The argument advanced in this regard by the learned counsel merits rejection. 21. No doubt, the independent witnesses namely Dial Singh and Balbir Singh, who had initially joined in the raiding party, were given up by the prosecution have been produced as defence witnesses by the appellant. But this fact again, by itself, would not shatter the basic case of the prosecution, which is otherwise proved to the hilt. These two witnesses were given up as having been won over. But this fact again, by itself, would not shatter the basic case of the prosecution, which is otherwise proved to the hilt. These two witnesses were given up as having been won over. The prosecution was very well justified in not examining them. Since both these witnesses were from the village of the appellant and the latter was a strong man, the possibility of their being won over with the passage of time cannot be ruled out. 22. Dyal Singh DW1 had admitted his signatures on the recovery memo at mark A. If nothing was recovered in his presence from the house of the appellant, as now projected by both these defence witnesses, they should have made representations to the higher authorities against false implication of the appellant. Thus, their deposition in favour of the appellant to the effect that no recovery was effected from his house, cannot be believed. 23. Similarly the discrepancies as pointed out by the learned counsel for the appellant are not sufficient to discard the prosecution version in its entirety. Such discrepancies are bound to occur with the lapse of time as the evidence is recorded in the Court after a considerable time. The learned counsel has pointed out that according to P.K. Yadav (PW2), the raiding party had seen the appellant and others sitting near the road on the cots i.e. place of recovery, whereas according to M.I. Khan (PW3) the appellant was awake at the time of raid and was lying on the cot in the verandah of his house. In my view, this is hardly any discrepancy, which would go to the root of the case. I have otherwise seen the statements of all the witnesses and do not find any material discrepancy, which may knock at the bottom of the case. 24. In view of the aforesaid discussion, I am of the considered view that the prosecution has been able to bring home the guilt to the appellant beyond any shadow of reasonable doubt. The conviction as recorded by the trial Court is thus upheld. Consequently, the present appeal fails and is hereby dismissed. The appellant is stated to be on bail. He shall now surrender to custody to serve out the remaining period of his substantive sentence. Necessary steps shall be taken in this regard. Appeal dismissed.