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2006 DIGILAW 1334 (PNJ)

Prem Singh v. State Of Haryana

2006-03-28

UMA NATH SINGH

body2006
Judgment Uma Nath Singh, J. 1. This Criminal Appeal arises out of a judgment dated 5.12.2003 passed by learned Additional Sessions Judge, Sirsa, in Sessions Case No. 23 NDPS of 2003, holding the accused-appellants guilty of offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act), and sentencing them to undergo RI for eight years with a fine of Rs. 80,000/- each, for having been found in illegal possession of 2 kgs. of opium milk, contained in a polythene bag. In default of payment of fine, the accused-appellants were directed to further undergo RI for two years. 2. Brief facts of the case, giving rise to the present criminal appeal are that on 12.12.2002, Assistant Sub Inspector of Police of CIA Staff, Dabwali, Mahabir Singh, receiving a secret information that the accused-appellants are in illegal possession of opium milk for sale. ASI Mahabir Singh along with other police officials, proceeded towards village Dabwali from Bathinda Chowk, Dabwali. When he reached near the drainage bridge, both the accused were seen coming towards that side riding a bicycle. Accused Sohan Lal was driving the bicycle, whereas, co-accused Prem was sitting on the back seat of the bicycle. Having seen the police party, both the accused-appellants tried to hide themselves by going towards kikkar trees. They were overpowered by the police. They were served with the notices offering as to whether they wanted to be searched before a Magistrate or a Gazetted Officer. Both the accused- appellants expressed their desire to be searched before a Gazetted Officer. Thereupon, DSP Chander Singh of Dabwali was called to the spot. The accused were searched in his presence and were found in possession of 2 kgs. of opium milk, contained in a polythene bag. Two samples of 10 grams each were taken from the said opium milk. The samples as well as the remainder quantity of the opium milk and the bicycle of the accused-appellants were seized vide recovery memo (Ex. PA). Statements of witnesses were recorded under Section 161 Cr.P.C. The case property and the samples were deposited by ASI Mahabir Singh with the Moharrir Head Constable of Police Station, Dabwali. The accused-appellants were lodged in police lock up. After completion of investigation, a challan was put up against the accused-appellants under Sections 17/18 of the Act and they were charge-sheeted, accordingly. 3. The accused-appellants were lodged in police lock up. After completion of investigation, a challan was put up against the accused-appellants under Sections 17/18 of the Act and they were charge-sheeted, accordingly. 3. Heard learned counsel for the parties and perused the record. 4. According to learned counsel, despite availability of independent witness, no one was associated with the recovery. Learned counsel referred to the testimonies of DSP Chander Singh (PW-1), Head Constable Satbir Singh (PW-2) and ASI Mahabir Singh (PW-3), to substantiate this point. According to learned counsel it was not a case of chance recovery but a case of prior information, therefore, association of an independent witness was necessary. Learned counsel further submitted that the seal of the I.O. remained with the police, which created a suspicion about the credibility of the prosecution case. Learned counsel further submitted that initially, there were some defects in the sample, therefore, it was returned by the FSL. That apart, the sample was initially sent in a match box but later on, it was sent in a plastic packet. Learned counsel further submitted that the recovery was effected from Prem Singh and Sohan Lal was only driving the cycle. Thus, the latter was not in conscious possession of the contraband. That apart, learned counsel also submitted that it is a case of non-commercial quantity. 5. On the other hand, learned State counsel justified the impugned judgment. The prosecution has examined as many as 6 witnesses. Chander Singh (PW-1) was posted as DSP, Dabwali. In his presence, the search of the accused was conducted and the seizure was effected. HC Satbir Singh (PW-2) was posted in the CIA Staff, Dabwali. He was a member of the police party present at Bathinda Chowk, Dabwali. ASI Mahabir Singh (PW-3) is the Investigating Officer, who effected the seizure. HC Manga Singh (PW-4) tendered his evidence on affidavit (Ex. PG). He was the Moharrir Head Constable of the Police station, with whom the case property and the seal impression were deposited. Constable Raghubir Singh (PW-5) also tendered his evidence on affidavit (Ex. PH). He had carried the samples and the sample seal to the FSL. ASI Hukam Singh (PW-6) was posted at Police Station, City, Dabwali, on 8.1.2003. He had recorded the statements of MHC Mangal Singh (Ex. DB) and Constable Raghubir Singh (Ex. Constable Raghubir Singh (PW-5) also tendered his evidence on affidavit (Ex. PH). He had carried the samples and the sample seal to the FSL. ASI Hukam Singh (PW-6) was posted at Police Station, City, Dabwali, on 8.1.2003. He had recorded the statements of MHC Mangal Singh (Ex. DB) and Constable Raghubir Singh (Ex. DC) under Section 161 Cr.P.C. The accused in his explanation under Section 313 Cr.P.C. pleaded false implication. However, he did not lead any evidence in his support. 6. The prosecution case appears to be mainly based on the evidence of the official witnesses. DSP Chander Singh (PW-1) on 12.12.2002 had received at V.T. message from SI Mahabir Singh (PW-3) at about 3.00 p.m., to reach the site of recovery. He reached there with his staff, where the members of the police party accompanying PW-3 were present. He was told about the facts of the case. He noticed the accused with a bag in his hand. On his direction and in his presence, PW-3 conducted the search of the bag being carried by the accused. The content was found to be opium milk in the bag, which was in the hand of accused-appellant Prem Singh. Two samples of 10 grams each were taken out from the contraband. The remainder bulk quantity on weighment came to be 1 kg. and 980 grams. The sample and the remainder quantity were put into parcels separately and further sealed with the seal of PW-3 with impression `MS and also with the seal of the DSP with impression `CS. He prepared a specimen seal impression `CS and retained the seal with him. The I.O. (PW-3) also prepared a specimen seal impression and handed the seal over to HC Satbir Singh. The case property, including the seal and the bicycle of the accused were taken into possession vide recovery memo (Ex. PA). The memo was witnessed by HC Satbir Singh (PW-2) and HC Hardayal Singh (not examined). It was further attested by PW-1. He identified the case property and the sample in the Court and clarified that he (sic). Thereafter he left the place of recovery. He received a special report (Ex. PB) on 13.12.2002 under Section 57 of the Act. He initialled it vide Ex. PB/1. The writing work was done while he was sitting in the Gypsy by PW-3. He identified the case property and the sample in the Court and clarified that he (sic). Thereafter he left the place of recovery. He received a special report (Ex. PB) on 13.12.2002 under Section 57 of the Act. He initialled it vide Ex. PB/1. The writing work was done while he was sitting in the Gypsy by PW-3. As no one was seen coming on foot, hence, no public witness could be associated. The sample was drawn in a match box. The Constable, who had taken a ruqa from PW-3, did not return during his stay at the spot. The I.O. had weighed the case property, taken out the samples and had sealed the case property and the samples in his presence. The I.O. had also prepared the recovery memo, rough site plan and taken down the statements of the witnesses under Section 161 Cr.P.C in his presence. The I.O. had also sent a ruqa to the Police Station. He has denied all the defence suggestions contrary to the prosecution case. HC Satbir Singh (PW-2) was accompanying ASI Mahabir Singh (PW-3) on the date of recovery. In his presence, the I.O. had received a secret information to the effect that two persons were going to village Dabwali at a bicycle for selling the opium. If a sudden raid was conducted, they could be apprehended with the contraband red-handed. Hence, a raiding party was constituted. This witness was a member of the raiding party. They spotted the accused on a bicycle having reached near the bridge of drainage. The accused tried to slip away in the bushes and kikkar trees in the drainage, having seen the police party. Accused-appellant Sohan Lal was holding the bicycle, whereas accused-appellant Prem Singh was carrying a bag. They were apprehended by the I.O. with the help of the police party. The ASI expressed his suspicion about the substance of the article being carried in the bag by accused Prem Singh. They were served with notices. Accused Prem Singh was given a notice (Ex. PC) under Section 50 of the Act, giving him option as to whether he desired to call some Gazetted Officer. Accused Prem Singh expressed his option for a Gazetted Officer vide his reply (Ex. PC/1). A similar separate notice (Ex. PD) was served upon accused Sohan Lal. His reply was received vide Ex. PD/1. PC) under Section 50 of the Act, giving him option as to whether he desired to call some Gazetted Officer. Accused Prem Singh expressed his option for a Gazetted Officer vide his reply (Ex. PC/1). A similar separate notice (Ex. PD) was served upon accused Sohan Lal. His reply was received vide Ex. PD/1. Both the notices and the replies were signed by the accused persons. According to this witness, thereafter, the bag of accused Prem Singh was searched. The bag was found to contain a polythene bag, containing opium milk. Necessary formalities as regards drawing of samples, preparation of parcels, search and seizure etc. were made in the presence of this witness. He has clarified that the I.O. and the DSP affixed their seal impressions `MS and `CS on the case property. The sample parcels and the case property were taken into possession vide recovery memo (Ex. PA), which was signed by this witness and HC Hardayal Singh (not examined). However, the DSP attested the same. A ruqa was sent in his presence to the Police Station. The case property was deposited with the MHC having reached the Police Station and the accused were lodged in the lock up. In his cross-examination, this witness has clarified that his departure and that of the police party was duly mentioned in the daily diary of the CIA Staff, indicating that they were going on patrolling duty in the area of Sadar Dabwali. The number of the Government vehicle used by them was noted as HR-24-E-876 and an entry was also made in the log book of the said vehicle. He has clarified that Bathinda Chowk is a busy locality but recovery was effected at a place situated at a distance of 2 kms. from the chowk. The bicycle was being driven by accused Sohan Lal, while accused Prem Singh was sitting on its carrier seat. Accused Prem Singh was holding the bag. The accused had run away for 10-15 paces, having seen the police, hence, they were apprehended. The Ruqa Carrier, who had gone to the Police Station for lodging a formal FIR, returned after the departure of the DSP from the spot. It took about 1 hour in completing the entire proceedings of search and seizure. One Constable Bhoop Singh had gone to bring the weighing scales from Village Dabwali. He brought the weighing scales with weights of various seizes. It took about 1 hour in completing the entire proceedings of search and seizure. One Constable Bhoop Singh had gone to bring the weighing scales from Village Dabwali. He brought the weighing scales with weights of various seizes. The match boxes, in which the samples were taken, were being carried by the I.O. in his bag. The seal of the I.O. remained with him for about 22 days. ASI Mahabir Singh (PW-3) is the Investigating Officer of the case. He has supported the prosecution case in toto. According to him, accused Sohan Lal was driving the bicycle, whereas accused Prem Singh was sitting on the carrier and carrying a bag in his hand. Having seen the police party, both the accused had tried to enter into kikkar bushes in the drain. He overpowered them with the help of the police party. He gave offer to the accused as to whether they wanted to be searched before a Gazetted Officer. DSP Chander Singh (PW-3), therefore, had been requested to reach the spot. He reached there with his staff and under his direction, this witness conducted the search and seizure. He affixed his seal with impression `MS so did the DSP with his seal impression `CS. He had sent a ruqa (Ex. PE) to the Police Station, on the basis of which a formal FIR (Ex. PE-1) was registered. A site plan (Ex. PF) was also prepared by this witness. He also recorded the statements of the witnesses under Section 161 Cr.P.C. He had deposited the case property with the MHC and put the accused in the lock up. He also deposited the report Ex. PB with the MHC. After investigation, a report under Section 173 Cr.P.C. was submitted by Inspector Ram Rattan, SHO, whose signature he identified. He proved the case property (Ex. P-1), second sample parcel (Ex. P-2) and bicycle (Ex. P-3) in the Court. In his cross- examination, he has pointed out that on 12.12.2002 at about 12.40 PM, he had started from CIA Staff. Necessary entry had been made by the Moharrir Head Constable. He had signed the same and set out for patrolling in the illaqa. He had requested many public persons to join investigation but they showed their unwillingness, however, he had not served any legal notice on them. Necessary entry had been made by the Moharrir Head Constable. He had signed the same and set out for patrolling in the illaqa. He had requested many public persons to join investigation but they showed their unwillingness, however, he had not served any legal notice on them. He has reiterated that he had effected the seizure of the samples and the remainder bulk of opium milk, as per the procedure prescribed under the law, after affixing requisite seals. He had sent a ruqa for registration of an FIR to the Police Station, City, Dabwali. He had completed all the proceedings in writing in the presence of the DSP. Manga Singh (PW-4), MHC of the Police Station, had tendered his evidence on affidavit (Ex. PG). He stated that on the date of recovery, i.e. 12.12.2002, the IO had deposited the samples with the case property bearing impression of his seal `MS and that of the DSP `CS. He had sent one sample and one seal on 30.12.2002 through Constable Raghubir Singh (PW-5) to be deposited in the Forensic Science Laboratory. The receipt had been deposited intact. He has denied any tampering with the seal. However, in his cross-examination, he has clarified that as per entry No. 1184 in Register No. 19, sample parcel of the case was sent to the FSL on 17.12.2002 but it was received back with some objection. The objection was removed and thereafter the sample was again sent on 30.12.2002. Constable Raghubir Singh (PW-5) has also given his evidence on affidavit (Ex. PH). He has also clarified in his cross-examination that he had taken the sample of this case prior to 30.12.2002, which had been returned with some objection. After removing the objection, he had been again given the sample on 30.12.2002 for depositing in the FSL. Both the witnesses have denied any tampering with the seals of the sample. In the FSL report (Ex. PJ) dated 20.3.2003, it is mentioned that the seals were intact and tallied with the specimen seal as per forwarding letter. The sample was identified as opium. 7. Thus, from the aforesaid analysis, it appears that on receipt of a secret information, the police party reached the spot. On seeing the police party, the accused tried to slip away inside the bushes and kikkar trees in the drainage. Hence, they cannot be said to be not in conscious possession of the contraband. 7. Thus, from the aforesaid analysis, it appears that on receipt of a secret information, the police party reached the spot. On seeing the police party, the accused tried to slip away inside the bushes and kikkar trees in the drainage. Hence, they cannot be said to be not in conscious possession of the contraband. For the same reason, it can be safely held that the accused had control and custody of the bag containing the contraband. The bag of the accused was searched and the search and seizure were effected in presence of the DSP (PW-1). This was not a search of the person of the accused, hence, in terms of the judgments of Honble the Apex Court in (i) 2004(2) RCR(Crl.) 960 : 2004(3) Apex Criminal 163 : 2004(5) SCC 188 (State of Haryana v. Jarnail Singh and others); (ii) 2005(2) RCR(Crl.) 622 : 2005(2) Apex Criminal 1 : 2005(4) SCC 350 (State of H.P. v. Pawan Kumar; and (iii) 2005(2) RCR(Crl.) 586 : 2005(2) Apex Criminal 248 : AIR 2005 SCW 2133 (State of Rajasthan v. Ram Chandra), it was not necessary to give an offer to the accused to be searched before a Gazetted Officer or a Magistrate. Even then, it was completed in presence of a Gazetted Officer. The recovery of the parcels and the case property were done vide a recovery memo, which was duly attested by the DSP. The I.O. and the DSP put their seals separately. The seals were found to be intact at the Police Station and also in the FSL, as is evident from the testimonies of the MHC (PW-4) and Constable Raghubir Singh (PW-5) and also the FSL report (Ex. PJ). That apart, HC Satbir Singh (PW-2) has categorically stated that he retained the seal of the I.O. for 22 days. There was no inordinate delay in sending the sample for the reason that it had earlier been sent to the FSL but the same was returned with certain objections. After removing the objections, it was again sent to the FSL. In the cross- examinations of the I.O. (PW-3), HC Manga Singh (PW-4) and Constable Raghubir Singh (PW-5), the defence has not extracted anything to impeach the credibility of the prosecution case. As such, I do not find any reason to interfere with the judgment of conviction. After removing the objections, it was again sent to the FSL. In the cross- examinations of the I.O. (PW-3), HC Manga Singh (PW-4) and Constable Raghubir Singh (PW-5), the defence has not extracted anything to impeach the credibility of the prosecution case. As such, I do not find any reason to interfere with the judgment of conviction. However, coming to the quantum of sentence, the contraband is an opium derivative being opium milk. The quantity falls in the category of non-commercial quantity. Further, it appears to be the first offence of the accused-appellants. That apart, they have been facing the prosecution for the last four years. Hence, I think that interest of justice would be served if their sentences are reduced to five years RI and the fine amount of Rs. 80,000/- is reduced to Rs. 50,000/- each. Accordingly, the accused are sentenced to undergo five years RI with a fine of Rs. 50,000/- each. In default of payment of fine, they shall each further undergo RI for two years. 8. With this modification, the Criminal Appeal No. 46-SB of 2004, being devoid of merits, is hereby dismissed and, resultantly, the impugned judgment/ order is affirmed.