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2005 DIGILAW 538 (PNJ)

Motia Bai v. State Of Haryana

2005-04-27

VIRENDER SINGH

body2005
Judgment Virender Singh, J. 1. Appellant Motia Bai wife of Mathura Lal resident of village Anotia (Rajasthan) was charged under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act) for allegedly carrying in her conscious possession 3 kgs. of opium. She now stands convicted by learned Additional Sessions Judge, Paniapt vide impugned judgment dated 19.3.2002 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. It is worth mentioning here that the appellant filed another appeal through Jail in this Court which was registered as Criminal Appeal No. 633-SB of 2002. However, the same stands cancelled vide order dated 17.9.2002. 3. The case of the prosecution in brief is that on 9.6.2000, the police party headed by Sub-Inspector Karan Singh (PW-6) was present at Bathak Chowk, Panipat in connection with usual patrol duty. The appellant was seen coming from the side of Railway Station. On seeing the police party, she turned back. On suspicion, she was apprehended. A notice Ex. PE under Section 50 of the Act was given to her. The same was thumb marked by her and signed by other police officials. In reply to the notice, the appellant opted to be searched in the presence of a Magistrate. Thereafter Sh. Balraj Singh Jakhar, Naib Tehsildar PW-5 was summoned at the spot. On his verbal direction, the search of the appellant was conducted. Opium weighing 3 kgs. was consequently recovered from the bag. 50 grams of opium was separated for the purpose of sample which was made into parcel. Remainder opium was put in separate parcel. Both the parcels were then sealed with the seal `KS. The same was then handed over to Constable Rajinder Singh. Both the parcels were taken into possession vide separate recovery memo attested by Naib Tehsildar. Ruqa Ex. PA was sent for the registration of the formal FIR on the basis of which formal FIR Ex. PA/1 was recorded in the concerned Police Station. Rough site plan was also prepared at the spot. The appellant was formally arrested with the help of a Lady Constable Santosh Kumari. Inspector Raghbir Singh SHO reached the spot. The appellant, the case property and the witnesses were produced before him for verification. PA/1 was recorded in the concerned Police Station. Rough site plan was also prepared at the spot. The appellant was formally arrested with the help of a Lady Constable Santosh Kumari. Inspector Raghbir Singh SHO reached the spot. The appellant, the case property and the witnesses were produced before him for verification. He verified the investigation, affixed his seal `RS on both the parcels and directed the Investigating Officer to deposit the case property with the MHC. The sample was sent to FSL Madhuban. After the receipt of the report, the appellant was challaned to face the trial. She was charged under Section 18 of the Act. As stated above, the appellant now suffered conviction. Hence, this appeal. 4. The prosecution has examined Ram Chander, PW-1, who had recorded the formal FIR after the receipt of the ruqa. He also sent the special report; HC Naresh Kumar PW-2 was the MHC who tendered affidavit Ex. PB; similarly Constable Jasmer Singh PW-3 has also tendered his affidavit Ex. PC in evidence. Inspector Raghbir Singh PW-4 was the SHO. His evidence is with regard to the compliance of Section 55 of the Act. Balraj Singh Jakhar PW-5 is the Naib Tehsildar/Executive Magistrate. Sub-Inspector Karan Singh PW-6 is the Investigating Officer. His investigation is described in the preceding paras. Constable Rajinder Singh PW-7 has also tendered his affidavit Ex. PG. 5. The plea taken by the appellant in her statement under Section 313 Cr.P.C. is that of false implication. However, she has not produced any evidence. 6. I have heard Mr. Sandeep Kotla, learned counsel for the appellant and Mr. Jatinder Dhanda, Advocate for the State of Haryana. With their assistance, I have also gone through the entire record of the case. 7. Mr. Kotla contends that there is non-compliance of Section 50 of the Act in this case inasmuch as the notice under Section 50 of the Act served upon the appellant is not in language of the appellant and therefore it amounts to non- compliance of Section 50 of the Act. 8. I do not agree with the contention raised by Mr. Kotla. Notice under Section 50 of the Act (Ex. PE) is in simple Hindi language. It is thumb marked by the appellant. The appellant is from Rajasthan State. It cannot be said that she did not know Hindi language at all. 8. I do not agree with the contention raised by Mr. Kotla. Notice under Section 50 of the Act (Ex. PE) is in simple Hindi language. It is thumb marked by the appellant. The appellant is from Rajasthan State. It cannot be said that she did not know Hindi language at all. Even otherwise it is not the case of the prosecution that the appellant was apprised of her statutory right by way of notice only. The substantive evidence now led is that when the appellant was apprehended she was told that her search was to be conducted as SI Karan Singh PW-6 had the suspicion that she was carrying some narcotic substance in the bag carried by her. She was also told that her search could be conducted in the presence of a Gazetted Officer or a Magistrate. It is only after that, the notice Ex. PE was given to her which was thumb marked by her. In view of the above, it can comfortably be concluded that there is complete compliance of Section 50 of the Act and the appellant cannot derive any benefit. 9. The other argument advanced by the learned counsel for the appellant is that the sample has been tampered with for the reason that as per the prosecution evidence, 50 grams opium was separated and put in parcel as sample whereas as per the report of the FSL, the sample was weighing 54.880 grams. I do not find any weight in this argument as well. I have seen the report of the FSL (Ex. PH) once again. Column No. 1 indicates that brownish black substance weighing 54.880 gms. with polythene was received by the FSL. From this it can very comfortably be said that about 5 grams was the weight of the polythene. The evidence on the judicial file is that 50 grams of opium was separated and the sample was made into parcel. The sample was weighed in the Laboratory as it is. For this reason, there is variation of about 5 grams. In view of above, the argument advanced by the learned counsel in this regard also merits rejection. 10. The learned counsel then contends that the Lady Constable in whose presence the search was conducted has not been examined in this case. This argument also does not gather any mass. For this reason, there is variation of about 5 grams. In view of above, the argument advanced by the learned counsel in this regard also merits rejection. 10. The learned counsel then contends that the Lady Constable in whose presence the search was conducted has not been examined in this case. This argument also does not gather any mass. The case of the prosecution is that the appellant was seen having bag in her hand while coming from the side of the Railway Station. After all the statutory formalities were completed at the spot, the formal arrest of the appellant was shown with the help of a Lady Constable Santosh Kumari. In the aforesaid factual backdrop even if Constable Santosh Kumari has not been produced being unnecessary, it is not going to adversely effect the case of the prosecution as she was a witness of formal character in whose presence only the arrest of the appellant is shown. She was not initially joined by SI Karan Singh, the Investigating Officer for the purpose of conducting the search. In my view, Santosh Kumari was an unnecessary witness and the Public Prosecutor rightly dropped her. In view of above, the argument advanced by the learned counsel in this regard merits rejection. 11. The learned counsel then submits that there is delay in sending the sample to FSL and for this reason, the appellant is entitled to acquittal. I do not agree with the argument as well. In the present case, the seizure was made on 9.6.2000 whereas the sample was sent on 28.6.2000. The affidavits produced by the prosecution with regard to the link evidence proved that the sample remained intact in the custody of the concerned police official/s and was never tampered with at any stage. The report of the FSL indicates that the seals were intact when it reached the Laboratory. In my considered view, there is no possibility of tampering with the samples in this case at any stage. 12. No other point has been urged before me. 13. In view of the aforesaid discussion, it can be safely concluded 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, affirmed. 14. 12. No other point has been urged before me. 13. In view of the aforesaid discussion, it can be safely concluded 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, affirmed. 14. Resultantly, the present appeal fails being devoid of any merit in it and the same is hereby dismissed.