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2006 DIGILAW 2547 (PNJ)

Faquiria v. State Of Punjab

2006-07-06

BALDEV SINGH, MEHTAB S.GILL

body2006
Judgment Mehtab S.Gill, J. 1. Two separate criminal appeals have been filed i.e. Cr. A. No. 354-DB of 2000 by Faquiria and Cr.A. No. 400-DB of 2000 by Ved Parkash. We will be deciding both these appeals by this common judgment as they arise out of the same order/judgment dated 28.7.2000 of the Special Judge, Sangrur. 2. Special Judge, Sangrur vide his order dated 28.7.2000 convicted both the appellants Faquiria and Ved Parkash under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act) and sentenced them to undergo RI for 12 years and to pay a fine of Rs. 1,50,000/- each and in default, to further undergo RI for 1-1/2 years. 3. The prosecution case is unfolded by a Ruqa Ex.PE sent by Harpreet Singh SI/SHO, P.S. Kotwali, Sangrur on the basis of which F.I.R. Ex.PF was recorded. Harpreet Singh stated in the FIR that he along with ASI Gurdeep Singh, ASI Gurjit Singh, ASI Chamkaur Singh, ASI Gursewak Singh, HC Kashmir Singh, HC Major Singh, HC Avtar Singh, HC Mewa Singh, Constable Gurbachan Singh and S.P.O. Baljinder Singh were going in Govt. Gypsy Jeep No. PIS-1006 which was being driven by Constable Suresh Kumar and in Govt. vehicle Swaraj Mazda No. PB-13E-1939, being driven by Constable Gurmit Singh. They were patrolling and checking the area of Village Bhindran. Shri Gurdeep Singh Pannu, S.P., Sangrur came on a Govt. Gypsy for checking of the Naka and gave them necessary instructions to be present on the Bhindran Bridge Canal. After some time one tempo came from the side of Village Ghabdan. Harpreet Singh gave a signal to the tempo to stop. The tempo stopped, but the Driver of the tempo after opening the window of his side, jumped and ran towards the fields, another person also ran away with him. One other person who was sitting on the cabin of the tempo and another person sitting in the rear portion of the tempo were apprehended by the SSI/SHO from the tempo which bore registration No. HNL- 3015. One of the persons told his name as Ved Parkash son of Darshan Lal and the other person who was sitting in the rear side of the tempo, gave his name as Faquiria son of Niranjan Singh. One of the persons told his name as Ved Parkash son of Darshan Lal and the other person who was sitting in the rear side of the tempo, gave his name as Faquiria son of Niranjan Singh. Ved Parkash further stated that the Driver of the tempo was Sudesh Kumar son of Jaga Sansi and Faquiria gave the name of the other person who ran away as Gurmail Singh son of Niranjan Singh. Harpreet Singh SI/SHO asked Ved Parkash that he had a suspicion that he had some contraband in his tempo and he wanted to search it. If Ved Parkash wanted, the search could be made in the presence of a Magistrate or a Gazetted Officer. Ved Parkashs consent statement Ex.PC was recorded in writing. He signed the same which was attested by the witnesses. Faquiria was also asked as to whether he wanted to be searched by a Magistrate or a Gazetted Officer. Faquiria also stated that the search of the tempo be done in the presence of a Gazetted Officer. A consent memo Ex.PB was prepared. Faquiria signed the consent memo. It was attested by witnesses. During that time, Dharamvir son of Banwari Lal who was coming from the side of Bhindran on a cycle, stopped. He was told of the facts of search and he was also joined by the police party as a witness. Since Shri Gurdeep Singh Pannu, S.P. Sangrur was already present, Harpreet Singh SI/SHO, under the instructions of the S.P. conducted the search of the tempo. Bags were lying in the tempo under a tarpaulin cover. They contained poppy husk. The number of bags recovered were 30. Two samples of poppy husk were taken and parcels of 250 grams each were made. The remaining poppy husk which had been put on the tarpaulin sheet, was put into 30 bags. 29 bags weighed 35 kgs. and one bag weighed 34 kgs. 500 grams. Seal of Shri Gurdeep Singh, S.P. "GS" was put on the bags, as well as on the sample. The tempo No. HNL 3015 was taken into possession. The seal after its use was handed back to the S.P., Sangrur. All the bags were attested by the S.P. On the basis of the ruqa sent to the police station, F.I.R. Ex.PF was recorded. 4. The tempo No. HNL 3015 was taken into possession. The seal after its use was handed back to the S.P., Sangrur. All the bags were attested by the S.P. On the basis of the ruqa sent to the police station, F.I.R. Ex.PF was recorded. 4. Prosecution to prove its case, brought into the witness box Joginder Singh PW-1, SI Harpreet Singh PW-2, Suresh Kumar PW-3 and Gurdeep Singh Pannu PW-4. 5. Learned counsel for appellant Faquiria Mr. Vinod Ghai, Advocate has argued that appellant was not in conscious possession of the contraband. The tempo from which the alleged contraband was recovered, was a public vehicle like a car which can be used as a private vehicle and as a Taxi. Similarly, a tempo can also be used as a public vehicle and also as a private vehicle. Though the tempo was owned by a private person who was not arrayed as an accused, but it was being used for the purpose of transporting goods. For all intents and purposes the tempo was a public vehicle. The open space behind the cabin was covered by a tarpaulin and thus, the appellant did not know what had been kept under the tarpaulin. The Driver of the tempo and another person sitting on the rear were not arrested, nor did the Investigating Officer make any effort to do so. The Investigating Officer SI Harpreet Singh PW-2 in his testimony has stated that tempo is a goods carrier. The case property produced in Court has been tampered with. Slips are missing. Bags in which the contraband was allegedly recovered, has holes. The contraband cannot be linked with the appellant. The sole independent witness Dharamvir DW-2 who appeared not as a prosecution witness, but as a defence witness, has in fact, told the truth and demolished the prosecution case. 6. Learned counsel for appellant Ved Parkash, Mr. Balram Singh, Advocate has adopted the arguments put forward by Mr. Vinod Ghai, Advocate. 7. Learned counsel for the State has argued that tempos are used as private goods carriers. They are not used for commercial purposes. The Investigating Officer SI Harpreet Singh PW-2 has clarified, that the tempo in which the contraband was seized was a private goods carrier. The statements of official witnesses have corroborated each other inter se. Offer of search was made. They are not used for commercial purposes. The Investigating Officer SI Harpreet Singh PW-2 has clarified, that the tempo in which the contraband was seized was a private goods carrier. The statements of official witnesses have corroborated each other inter se. Offer of search was made. It was on the asking of the appellants that a Gazetted Officer Gurdeep Singh Pannu, S.P. PW-4 was called and it was in his presence that search of the tempo and of the appellants was made. 8. We have heard the learned counsel for the parties and perused the record with their assistance. 9. The main thrust of the arguments of the learned counsel for the appellants was that the tempo in which the contraband was seized, was a public vehicle and thus, appellants could not be held liable, as they did not know anything regarding the contraband. It has come in the evidence of SI Harpreet Singh PW-2 that when the tempo was stopped, the Driver after opening the door and another person who was also sitting in the cabin, ran away. The number of the tempo was HNL-3015. One of the persons who was also sitting in the cabin and was apprehended, told his name as Ved Parkash son of Darshan Lal and the other person apprehended told his name as Faquiria son of Niranjan Singh. SI Harpreet Singh PW-2 on being cross-examined, stated that the tempo was a private goods carrier. He has further stated that the consent memo Ex.PB of appellant Faquiria and the consent memo Ex.PC of Ved Parkash was prepared. Both of them wanted to be searched by a Gazetted Officer and the personal search Exs. PH and PJ of the appellants and of the tempo was done in the presence of Gurdeep Singh Pannu, S.P., Sangrur PW4. Gurdeep Singh Pannu PW-4 has fully corroborated the statement of SI Harpreet Singh PW-2. It is amply clear from the statements of both Gurdeep Singh Pannu PW-4 and SI Harpreet Singh PW-2 that tempo bearing registration No. HNL-3015 in which the contraband was being carried, was a private vehicle. Appellants knew that poppy husk was being carried for the purpose of sale or to be taken to another destination for the purpose of sale. It is amply clear from the statements of both Gurdeep Singh Pannu PW-4 and SI Harpreet Singh PW-2 that tempo bearing registration No. HNL-3015 in which the contraband was being carried, was a private vehicle. Appellants knew that poppy husk was being carried for the purpose of sale or to be taken to another destination for the purpose of sale. Appellants covered the bags of poppy husk as they were 30 in number, with tarpaulin sheet, so that nobody could see as to what was in the tempo. 10. Learned counsel has vehemently argued that the case property cannot be linked with the appellants. SI Harpreet Singh PW-2 has in his testimony before the Court stated that some of the bags seals were broken and the letters were also not legible. There was some leakage in some bags because of holes. This argument of the counsel does not cut much ice. SI Harpreet Singh PW-2 has stated that it is only in the case of one or two bags where the particulars of the case are not legible. The bags seized from the appellants were 30 in number weighing 35 kgs. each. The letters being not legible and the holes in one or two bags is due to the case property being produced after a long gap and some damage is possible. We are of the considered opinion that the damage to the bags was due to transportation, when the case property was brought from the Malkhana to the Court. 11. The testimony of Dharamvir DW-2 will not have any bearing on the case, as this witness who was joined by the Investigating Officer was won over by the accused. In his testimony before the Court he has stated that the police did not join him in the investigation and his signatures on blank papers were obtained by the police at his residence. No complaint has been filed by him to any authority that his signatures were taken on blank papers by the police. 12. We do not find any infirmity in the judgment of the trial Court. 13. Both the appeals are dismissed.