Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 633 (PNJ)

Rameshwar @ Gattu v. State Of Haryana

2005-05-23

MEHTAB S.GILL, SURYA KANT

body2005
Judgment Mehtab S.Gill, J. 1. By this common judgment, we shall be disposing of two Criminal Appeal bearing Nos. 154-DB of 2003 and 265-DB of 2003, as they arise out of the same impugned judgment dated 12/14.12.2002 passed by Additional Sessions Judge, Fatehabad. However, for the sake of convenience, facts are being extracted from Crl. Appeal No. 154-DB of 2003. 2. This is an appeal against the judgment/order dated 12/14.12.2002 of the Additional Sessions Judge, Fatehabad, whereby he convicted appellants Rameshwar @ Gattu, Dashrath and Fridi under Section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act") and sentenced them to undergo rigorous imprisonment for 12 years each and to pay a fine of Rs. one lac each. In default of payment of fine, they were ordered to undergo rigorous imprisonment for a period of one year each. 3. The case of the prosecution is that Sub-Inspector/Station House Officer Shamsher Singh (PW-7) along with Assistant Sub-Inspector Maya Ram, Head Constable Ram Pal and Constable Sanjay Kumar were present at the Bus Stand of village Prithla in their official vehicle. It was driven by Constable Ranjit Singh. Assistant Sub Inspector Jai Narain (PW-3) along with Constable Attar Singh and Constable Rajinder Singh met them. The police party was standing at the Bus Stand of village Pirthla in their official vehicle. It was driven by Constable Ranjit Singh. Assistant Sub-Inspector Jai Narain (PW-3) along with Constable Attar Singh and Constable Rajinder Singh met them. The police party was standing at the Bus Stand of village Pirthala for the purpose of checking crime. Secret information was received by Sub-Inspector/Station House Officer Shamsher Singh (PW-7) that Rameshwar @ Gattu, Dashrath and Fridi had kept Chura Post (poppy husk) in bags in the house of Dashrath. On receiving this information, Sub-Inspector Shamsher Singh sent a wireless message through wireless set fixed on the official vehicle to Police Station Sardar Tohana, requesting them to send the Deputy Superintendent of Police, Tohana. Deputy Superintendent of Police, Tohana, reached the spot, where the police party was standing. All the facts of the secret information were disclosed to him. A raiding party was organised. Five to seven passers-by were requested to join the raiding party, but they expressed their inability to do so due to personal reasons. Deputy Superintendent of Police, Tohana, reached the spot, where the police party was standing. All the facts of the secret information were disclosed to him. A raiding party was organised. Five to seven passers-by were requested to join the raiding party, but they expressed their inability to do so due to personal reasons. Dharam Pal, Chowkidar, a resident of village Pirthla, who had also come, was informed of the secret information, he agreed to associate himself with the raiding party. The raiding party then went to the house of Dashrath. The raiding party found three persons busy in stacking gunny bags. One of them, ran away from the back side of the house. The person, who ran away was known to Assistant Sub Inspector Jai Narain (PW-3). He was identified being Rameshwar @ Gattu, who could not be apprehended. The other two persons were apprehended. They disclosed their names as Dashrath son of Bagdawat Ram, resident of Pirthla and Fridi son of Waryam, resident of village Kullan. Sub-Inspector Shamsher Singh (PW-7) served notices under Section 50 of the Act separately to Dashrath and Faridi. Notices were prepared separately. Both Dashrath and Fridi gave their replies to the notices separately to the effect that they wanted to get the bags searched in the presence of some Gazetted Officer. Their replies were reduced into writing. On the directions of Deputy Superintendent of Police, Tohana, Avtar Singh Bhullar (PW-6), the gunny bags were counted. They were found 12 in number. After opening them, it was found that they contained poppy husk. Two samples of 100 gms. each of Chura Post (Poppy husk) were separately taken out from each gunny bag. After taking out the samples, each gunny bag weighed 39 kgs 800 grams. The sample parcels along with the bags having Chura Post were prepared and sealed with Seal `SSD. Avtar Singh Bhullar, Deputy Superintendent of Police, Tohana (PW-6) also fixed his own seal `ASB on all the bags and the sample parcels. Sub- Inspector/Investigating Officer Shamsher Singh (PW-7) handed over the seal to Avtar Singh Bhullar (PW-6) after using it and retained the sample seal with him. The sample parcels and Chura Post in the bags were taken into possession vide separate recovery memos. Constable Ranjit Singh was sent to the Police Station for registration of a First Information Report. Sub- Inspector/Investigating Officer Shamsher Singh (PW-7) handed over the seal to Avtar Singh Bhullar (PW-6) after using it and retained the sample seal with him. The sample parcels and Chura Post in the bags were taken into possession vide separate recovery memos. Constable Ranjit Singh was sent to the Police Station for registration of a First Information Report. First Information Report, Exhibit PA, was registered on 14.5.2000 at 4.30 p.m. 4. Prosecution, to prove its case, brought into the witness box Constable Jagir Singh (PW-1), Constable Om Parkash (PW-2), Assistant Sub Inspector Jai Narain (PW-3), Head Constable Attar Singh (PW-4), Assistant Sub Inspector Jai Singh (PW-5), Deputy Superintendent of Police Avtar Singh Bhullar (retired) (PW-6) and Sub-Inspector/Investigating Officer Shamsher Singh (PW-7). 5. Learned counsel for the appellants has stated that as per the Search Memo, Ex. PD, in column No. `C the place of recovery and memo for forfeiture of property, the date and time is given - 14.5.2000 at 2.30 at 2.30 p.m. respectively. FIR No. 76 dated 14.5.2000 has also been mentioned in this Search Memo Ex. PD. Learned counsel has argued that as per report of Shamsher Singh, Sub-Inspector/Station House Officer (PW-7), FIR was recorded on the basis of a ruqa sent to Police Station Tohana. Formal FIR was recorded on 14.5.2000 at 4.30 p.m. Document, Ex. PD, the Search Memo, which shows that the recovery/forfeiture was made on 14.5.2000 at 2.30 p.m. also mentions the FIR No. 76 dated 14.5.2000. It proves that FIR No. 76 dated 14.5.2000 was recorded before the contraband was seized from the appellants. 6. As per the statement of Avtar Singh Bhullar, Deputy Superintendent of Police (PW-6), Faridi and Dashrath were holding the bags, whereas Rameshwar was standing by their side. Conscious possession cannot be attributed to Rameshwar, who was just a passer-by. 7. Learned counsel has further assailed the case of the prosecution that no independent witness was joined. The place of recovery is a place, where a number of persons passed by. It was day time and joining an independent witness for the police party should not have been difficult. In fact, the police did not make any effort to join anyone. 8. The place of recovery is a place, where a number of persons passed by. It was day time and joining an independent witness for the police party should not have been difficult. In fact, the police did not make any effort to join anyone. 8. The specimen seal, though stated in the FIR, was kept by Deputy Superintendent of Police Avtar Singh Bhullar (PW-6), but in the testimony before the Court, no witness has stated, as to where and in whose custody, the specimen seal was kept. It was incumbent upon Avtar Singh Bhullar, Deputy Superintendent of Police to deposit the specimen seal with the Moharrir Head Constable, so that it could be sent to the Forensic Science Laboratory, Madhuban (Karnal). 9. Learned counsel appearing for appellant Faridi has stated that village Kullan is not less than 35 kms away from the place of occurrence. The prosecution witnesses have only stated that Fridi was helping Dashrath. Conscious possession of the contraband qua appellant Fridi, is not established. It is strange that Rameshwar ran away from the clutches of police party, which constituted not less than five in number. It has not come in evidence that anyone from the police party tried to follow and catch Rameshwar, though, at that time, it was broad day light. 10. Learned counsel for the appellants have stated that notices, Ex. PB and Ex. PC, given under Section 50 of the Act were not according to law. 11. Learned counsel for the State has stated that the defence has not been able to make any dent in the statements of Jai Narain (PW-3), Avtar Singh Bhullar, Deputy Superintendent of Police (PW-6) and Shamsher Singh, Sub- Inspector (PW-7). Notices, Ex. PB and Ex. PC under Section 50 of the Act were given in writing to appellants Dashrath and Fridi, though there was no need to give notices under Section 50 of the Act, as the recovery was from gunny bags and not from the person of the appellants. Consent memo was prepared after appellant Dashrath gave his consent vide Ex. PB/1. Consent was given voluntarily. He wanted to be searched by a Gazetted Officer. Similarly, appellant Fridi was given a notice, Ex. PC, under Section 50 of the Act, as to whether he wanted to be searched by a Gazetted Officer or a Magistrate. Appellant Fridi gave his consent, Ex. PB/1. Consent was given voluntarily. He wanted to be searched by a Gazetted Officer. Similarly, appellant Fridi was given a notice, Ex. PC, under Section 50 of the Act, as to whether he wanted to be searched by a Gazetted Officer or a Magistrate. Appellant Fridi gave his consent, Ex. PC/1, voluntarily that he does not have any objection, if he is searched by a Gazetted Officer. 12. We have heard the learned counsel for the parties and perused the record with their assistance. 13. Much stress has been laid by the learned counsel for the appellants that no independent witness was joined. This is not so. It has come in evidence of Shamsher Singh, Sub Inspector (PW-7) that 5 to 7 persons were asked to join in the raiding party, but they all refused to do so. Finally, Dharam Pal, Chowkidar, was joined, but during the course of trial, he was won over by the appellants. The Public Prosecutor made a request Mark X that PW Dharam Pal has been won over by appellants Rameshwar @ Gattu and Dashrath, as they all belong to the same village. 14. Argument put forward by the learned counsel for the appellants that no notice was given under Section 50 of the Act, is devoid of any force. Notice, Ex. PC, given to appellant Fridi, clearly states, as to whether he wanted to be searched by a Gazetted Officer or a Magistrate, Appellant Fridi gave his consent, Ex. PC/1, wherein he stated that he be searched in the presence of a Gasetted Officer instead of a Magistrate. He has further stated that as Deputy Superintendent of Police, Tohana, is with the raiding party, he has no objection, if he is searched by the Deputy Superintendent of Police, Tohana, i.e. Avtar Singh Bhullar (PW-6). Similarly, notice to appellant Dashrath under Section 50 of the Act, was served, which is Ex. PB. He was also offered to be searched by a Gazetted Officer or a Magistrate. This notice was given by Shamsher Singh, Sub Inspector, the Investigating Officer (PW-7). In his reply, Ex. PB/1, Dashrath reposed faith in Avtar Singh Bhullar (PW-6). It is thereafter that the gunny bags were searched. 15. Notices, Ex. PB and Ex. PB. He was also offered to be searched by a Gazetted Officer or a Magistrate. This notice was given by Shamsher Singh, Sub Inspector, the Investigating Officer (PW-7). In his reply, Ex. PB/1, Dashrath reposed faith in Avtar Singh Bhullar (PW-6). It is thereafter that the gunny bags were searched. 15. Notices, Ex. PB and Ex. PC under Section 50 of the Act were given by the Investigating Officer (PW-7) as it seems either he was not aware of the law laid down with regard to "Person" or that he was being over-cautious. Gunny bags had to be searched and not the person of the appellants. Even going through notices, Ex. PB and Ex. PC, we are unable to find out any legal infirmity in the notices. In fact, there was no need for the Investigating Officer to give these notices. 16. Om Parkash, Constable (PW-2) has stated that the seal impressions were handed over to him along with samples. In affidavit, Ex. PE, Head Constable Avtar Singh, who was posted as the Moharrir Head Constable of Police Station Sadar, Tohana, has stated that the specimen impressions of the seal along with 12 bags of poppy husk and 24 parcels of the samples were deposited with him by Shamsher Singh, Sub-Inspector (PW-7). Constable Om Parkash (PW-2) in his testimony, has stated that he had taken the samples and deposited them with the Forensic Science Laboratory, Madhuban, Karnal, whose report is Ex. PJ. 17. Learned counsel has laid much stress on the search memo and memo of forfeiture of property, Ex. PD, prepared under Section 165 of the Code of Criminal Procedure, where the number of the FIR has been given. The place of recovery/forfeiture has been stated on 14.5.2000 at 2.30 p.m. The time given in the search memo will not have any relevance, as the FIR had come into existence at 4.30 P.M. The FIR No. has been filled on the search memo. Ex. PD, after the FIR came into existence. This was only a technicality. 18. The ocular account of the prosecution witnesses has gone unshattered. No worthwhile discrepancy could be pointed out by the learned counsel for the appellants in the testimony of the prosecution witnesses. 19. Ex. PD, after the FIR came into existence. This was only a technicality. 18. The ocular account of the prosecution witnesses has gone unshattered. No worthwhile discrepancy could be pointed out by the learned counsel for the appellants in the testimony of the prosecution witnesses. 19. We do not find any infirmity in the judgment/order dated 12/14.12.2002 passed by Additional Sessions Judge, Fatehabad on the point of conviction of the appellants, but the sentences awarded to the appellants are on the higher side. Sentence of the appellants is reduced to 10 years each. Fine shall remain the same. 20. Consequently, both these criminal appeals bearing Nos. 154-DB and 265-DB of 2003 are dismissed with modification of the sentence imposed on the appellants.