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2006 DIGILAW 239 (PNJ)

Harbans Singh v. State Of Punjab

2006-01-31

UMA NATH SINGH

body2006
Judgment Uma Nath Singh, J. 1. This criminal appeal arises out of a judgment dated 27.8.1990 passed by learned Additional Sessions Judge, Ludhiana, in Sessions case No. 35 of 6.11.1989, holding the accused-appellants quilty of offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and sentencing them to undergo RI for ten years and to pay a fine of Rs. 1,00,000/-, each. In default of payment of fine, they were directed to undergo further RI for two years, each. 2. As per prosecution case, on 1.7.1989 at 6.30 AM, ASI Darshan Singh accompanied by HC Hakam Singh, Constables Gurdial Singh, Kuldip Singh, Bishan Singh and Gurcharan Singh, was present at the canal minor in the area of Village Kalaran. ASI Darshan Singh was talking to Gurdial Singh. A tractor bearing the No. PJS 6470 (Escort make) came from the Burj Kalan side, which was being driven by Harbans Singh accused. Accused Surjit Singh was sitting on the gunny bags lying in the trolley. Seeing the police party, the accused became nervous. Trolley was also bearing the same registration No. PJS 6470. ASI Darshan Singh warned accused Harbans Singh to stop. Tractor trolley was accordingly stopped. Both the accused who came down from the vehicle were told about their right of being searched before a Magistrate or a Gazatted Officer. They were also told that if they so desired, they could be taken to a Gazetted Officer or a Magistrate for search. Both the accused reposed their faith in ASI Darshan Singh. On conduction of search, the trolley was found loaded with 30 bags of poppy husk. On weighment, each gunny bag was found to contain 40 kgs of poppy husk. Two samples of 250 grams each were taken out from each of the gunny bags. ASI Darshan Singh prepared the sample seal impression (Ext.P1) on the spot itself. Each sample parcel was put in a separate piece of cloth and it was sealed with the seal impression DS of ASI Darshan Singh. Gunny bags (Ext.P-2 to P-31) were also sealed with the seal of DS. The Seal was handed over to HC Hakam Singh. Tractor Trolley registration certificate, 60 samples and gunny bags (Ext.P-2 to P-31) were taken into possession vide memo. Ex.PA which was attested by prosecution witnesses Gurdial Singh and HC Hakam Singh on the spot itself. Gunny bags (Ext.P-2 to P-31) were also sealed with the seal of DS. The Seal was handed over to HC Hakam Singh. Tractor Trolley registration certificate, 60 samples and gunny bags (Ext.P-2 to P-31) were taken into possession vide memo. Ex.PA which was attested by prosecution witnesses Gurdial Singh and HC Hakam Singh on the spot itself. Registration certificate of the vehicle is Ex.P-32. Ruqa (Ext.PC) was sent to the Police Station for the registration of the case against the accused. On that basis, a formal FIR (Ext.PC/1) was recorded by SI Kirpal Singh at P.S. Jagraon. The seal was handed over to HC Hakam Singh. A rough site plan (Ext.PD) was prepared at the spot with correct marginal notes. On return to the Police Station, ASI Darshan Singh produced the accused, the samples, the gunny bags, the tractor-trolley and the registration certificate before SI Kirpal Singh, SHO, P.S. Jagraon. SI Kirpal Singh interrogated the accused and affixed his own seal on the samples and the gunny bags. He deposited the samples, the gunny bags etc. with MHC Jasbir Singh. SI Kirpal Singh affixed his own seal bearing impression KS on seal impression chit Ex.P1 at P.S. Jagraon. 30 samples, i.e., one sample each drawn out from each of the gunny bags were sent to the Chemical Examiner for chemical examination. The Chemical Examiner gave a report (Ext.PE) that the samples contents are poppy straw powder. After investigation, a challan was put up against accused Harbans Singh and Surjit Singh and they were tried upon a charge under Section 15 of the Act. 3. The main contentions of learned counsel for the appellants relate to non- compliance of Section 57 of the Act and that the accused were not asked to explain under Section 313 Cr.P.C. as to whether they were in conscious possession of the contraband item. 4. On the other hand, learned State counsel submitted that this is a case of recovery of a huge quantity of contraband, being 30 bags (40 kgs. each), which could not have been foisted by the police. He also argued that the provisions of Section 57 of the Act being directory in nature would not cause any prejudice to the right of the accused-appellants. 5. The prosecution has examined 5 witnesses. each), which could not have been foisted by the police. He also argued that the provisions of Section 57 of the Act being directory in nature would not cause any prejudice to the right of the accused-appellants. 5. The prosecution has examined 5 witnesses. Constable Gurmel Singh (PW1) was entrusted with all the thirty samples on 3.7.1987 at 8.00 AM for being deposited in the FSL, Chandigarh, for test. Seals were intact. He deposited the samples with dockets of the SSP. He received the receipts of the FSL and the same day submitted them to MHC Jasbir Singh. His affidavit (Ext.DA) was sworn before a Magistrate. He himself had scribed it. He has withstood the test of cross-examination. 6. Jasbir Singh (PW2) is the MHC. He was posted at Police Station Jagraon on 1.7.1989. SI Kirpal Singh, Addl.SHO, vide DD No. 15 dated 1.7.1989 deposited the case property, the sample and the seal impression (Ext.P1) with him at 4.30 PM. On 3.7.1989, he had handed over the seals intact to Gurmel Singh (PW1) for depositing in the FSL, after getting dockets of the SSP. The case property and the accused were produced before the concerned Magistrate on 2.7.1989 by ASI Darshan Singh. The witness has sworn affidavit (Ext.DC) before a Magistrate to tender his evidence. 7. Head Constable Hakam Singh (PW3) was also posted at Police Station Jagraon on the date of seizure on 1.7.1987. He was a member of the police patrolling party. He has stated that accused Harbans Singh was driving the tractor- trolley and accused Surjit Singh was sitting on the bags. Both were apprehended on the spot. A complete offer in terms of Section 50 of the Act to be searched before a Gazetted Officer or a Magistrate was given to them. A ruqa of the offence was sent through Constable Bishan Singh at 10.10 AM. He is an attesting witness of seizures. He drove the tractor with case property to the Police Station. He has withstood the test of rigorous cross-examinations. 8. Darshan Singh (PW4) is the officer, who effected seizures. He was on patrol duty at 6.30 AM with other police personnel. At about 7.00 AM a tractor- trolley came from Burj Kalaran side. Accused Harbans Singh was driving the tractor. Accused Surjit Singh was sitting on bags in the trolley. He has withstood the test of rigorous cross-examinations. 8. Darshan Singh (PW4) is the officer, who effected seizures. He was on patrol duty at 6.30 AM with other police personnel. At about 7.00 AM a tractor- trolley came from Burj Kalaran side. Accused Harbans Singh was driving the tractor. Accused Surjit Singh was sitting on bags in the trolley. He gave a complete officer in terms of Section 50 of the Act before starting the search. He conducted search after the accused reposed faith in him. He followed and completed necessary proceedings during the search and seizure. Moreover, he has also mentioned that SI Kirpal Singh, SHO, interrogated the accused, impressed his seal KS on the samples and the bags. SI Kirpal Singh deposited the case property with MHC Jasbir Singh. He clarified the entry No.9 dated 1.7.1989. Its photocopy was Ext.DE wherein it was mentioned that accused Surjit Singh was driving a tractor while accused Harbans Singh was sitting over the gunny bags in the trolley. He stated that this document was prepared by Constable Gurdial Singh, who worked with him. Thus, he was not the author of the document. According to him, he left the spot at 2.30 PM and reached the Police Station along with the accused at 4.30 PM, albeit SI Kirpal Singh has recorded at 4.40 PM, causing a little variance. Moreover, according to him, it was a chance recovery. He stated "the police party had not smelt the bulk of the case property before putting the question with regard to suspicion". He stated that vide DDR No. 1 dated 1.7.1989 to entry No. 10, there was no other entry regarding the registration of any cognizable offence. He has admitted that the higher authorities were not apprised of arrest of the accused and the grounds of their arrest. Nevertheless, it is noticed in the evidence of Jasbir Singh (PW2) that the case property with accused was produced before the concerned Magistrate on 2.7.1989. 9. SI Kirpal Singh (PW5) has admitted in the cross-examination that the case was registered by him and the corresponding entry was made in the DDR at his instance. In their statements under Section 313 Cr.P.C., both the accused- appellants have pleaded false implications. 10. Thus, on a careful analysis of the evidence on record, it appears that the points raised by learned counsel for the appellants stand answered. In their statements under Section 313 Cr.P.C., both the accused- appellants have pleaded false implications. 10. Thus, on a careful analysis of the evidence on record, it appears that the points raised by learned counsel for the appellants stand answered. ASI Darshan Singh (PW4) on reaching the Police Station produced the accused and the case property before SI Kirpal Singh, SHO (PW5). On the next date, i.e., 2.7.1989, he produced the accused with the case property before the concerned Magistrate. 11. As regards conscious possession, there was no other article in the vehicle. It is a chance recovery of a huge quantity of contraband. Except the two accused-appellants, there was none else in the vehicle, a private one in nature. Hence, the argument of not being in the conscious possession is also not tenable. 12. Further, notwithstanding the fact that it was not a search of persons of the accused, they were given a complete offer in terms of Section 50 of the Act. 13. Thus, looking to the nature and quality of evidence as discussed herein- above, I do not find any merit in the appeal. Hence, the impugned judgment is affirmed and the appeal is dismissed.