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2006 DIGILAW 256 (PNJ)

Mangat Ram v. State Of Punjab

2006-02-01

VIRENDER SINGH

body2006
Judgment Virender Singh, J. 1. Appellant Mangat Ram stands convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) 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 one year, vide impugned judgment of learned Special Judge, Ferozepur, dated 19/20.11.2001. Aggrieved by the said judgment of conviction and sentence, he has preferred the instant appeal. 2. Since the appellant had undergone substantial period of substantive sentence, an application bearing Crl. Misc. No. 65659 of 2005 was moved for suspension of substantive sentence. While disposing of the said application, it was observed that the instant appeal shall be heard on 1.02.2006. The same is being disposed of while disturbing the regular list. The aforesaid Misc. application has been rendered infructuous. 3. In brief, the case of the prosecution is that on 22.02.1998, SHO Surinderpal (died before he was examined in the Court) along with other police officials and one Rameshwar Lal son of Jhokha Ram (independent witness) was present at Hanumangarh Road crossing in the area of City Abohar when the appellant was seen coming on a scooter from the side of Hanumangarh. He was signalled to stop the scooter but on seeing the police party he left the scooter and tried to escape. He, however, was apprehended at the spot itself. SHO Surinderpal suspected some contraband in his possession and, therefore, gave an offer to him complying with the provisions of Section 50 of the Act. The appellant opted his search to be conducted in the presence of some gazetted officer. A memo in this regard was prepared which was signed by the appellant and attested by SI Gurmit Singh and ASI Mohinder Singh who were accompanying the aforesaid SHO and one Rameshwar Lal the independent witness. DSP Harbans Lal also reached the spot and disclosesd his identity to the appellant. On his directions SHO Surinderpal conducted the search of the appellant as a result of which opium wrapped in polythene envelope was recovered from the dicky of the scooter. It was 5 kgs. 10 grams of opium was taken out as sample. DSP Harbans Lal also reached the spot and disclosesd his identity to the appellant. On his directions SHO Surinderpal conducted the search of the appellant as a result of which opium wrapped in polythene envelope was recovered from the dicky of the scooter. It was 5 kgs. 10 grams of opium was taken out as sample. Both sample and the residue were reduced into two separate parcels and were sealed by SHO Surinderpal with his own seal and with the seal of DSP Harbans Lal bearing inscription `HL. Separate sample of seal impression was also prepared. SHO Surinderpal handed over his seal to SI Gurmit Singh whereas DSP Harbans Lal retained his seal with him. The entire case property was taken into possession vide recovery memo which was duly attested by the witnesses. The grounds of arrest were disclosed to the appellant vide separate memo which was also attested by the PWs. A ruqa was sent to the Police Station for the registration of the formal FIR. Rough site plan of the place of recovery was also prepared. The case property and the appellant were duly produced before the Ilaqa Magistrate. 4. On receipt of report of Chemical Examiner and after completing the investigation, challan was presented against the appellant who was charged under Section 18 of the Act. 5. The prosecution in order to strengthen his case has examined PW1 Constable Kashmir Singh who had taken the sample to the office of the Chemical Examiner, Jalandhar, PW2 Gurmit Singh SI, is a witness to the recovery, PW3 DSP Harbans Lal is another witness to the recovery, SI Gurcharan Singh PW4 had produced the appellant and the case property before the Ilaqa Magistrate, ASI Mohinder Singh PW5 is another witness to the recovery. Besides this, the report of the Chemical Examiner Ex.P11 was tendered. 6. The stand of the appellant as is clear from his statement recorded under Section 313 of the Code of Criminal Procedure is of false implication. In his defence, he produced Rameshwar Lal DW1 and Gulzar Singh Ahlmad DW2. 7. After appreciating the entire evidence, the learned trial Court has convicted and sentenced the appellant under the Act. Hence, this appeal. 8. I have heard Mr. P.K. Goklaney, learned counsel for the appellant and Mr. Ramandeep Sandhu, DAG Punjab. With their assistance, I have also gone through the entire records very minutely. 9. 7. After appreciating the entire evidence, the learned trial Court has convicted and sentenced the appellant under the Act. Hence, this appeal. 8. I have heard Mr. P.K. Goklaney, learned counsel for the appellant and Mr. Ramandeep Sandhu, DAG Punjab. With their assistance, I have also gone through the entire records very minutely. 9. In order to shatter the case of the prosecution, the first argument of the learned counsel for the appellant is on the point of link evidence stating that it is missing in this case and this weakness alone is enough to discard the case of the prosecution in its entirety. He contends that the recovery was effected on 22.02.1998. The case property was deposited in the Police Station on the same day which was again produced before the Ilaqa Magistrate on 23.02.1998. The sample was sent to the Chemical Examiner through Constable Kashmir Singh PW1 on 9.03.1998 which otherwise reached the office of the Chemical Examiner on 10.03.1998 whereas there is no evidence of MHC of Malkhana of the concerned Police Station indicating that the case property was deposited with him on 22.02.1998 and he had handed over the same to aforesaid Constable Kashmir Singh on 9.03.1998. The prosecution in order to fill up this gap is relying upon the statement of SI Gurcharan Singh who was Additional SHO of Police Station Abohar on the date of the alleged recovery but his name does not figure in the list of witnesses and, therefore, his statement is to be discarded out rightly. Dwelling upon his arguments, the learned counsel then submits that SHO Surinderpal the Investigating Officer was not produced, may be on account of his death, but the fact remains that the vital link remains un-proved by the prosecution and this basic infirmity up-roots the case of the prosecution. 10. The learned counsel then submits that the independent witness Rameshwar Lal has not been produced by the prosecution and even otherwise there are discrepancies in the statements of the official witnesses which dent the prosecution case. 11. On the basis of the aforesaid submissions, the learned counsel for the appellants prays for acquittal. 12. While controverting the submissions advanced by Mr. Goklaney, the learned State counsel submits that the recovery allegedly effected from the appellant is very heavy and there could not be any reason for the official witnesses to falsely implicate him in this case. 11. On the basis of the aforesaid submissions, the learned counsel for the appellants prays for acquittal. 12. While controverting the submissions advanced by Mr. Goklaney, the learned State counsel submits that the recovery allegedly effected from the appellant is very heavy and there could not be any reason for the official witnesses to falsely implicate him in this case. Even otherwise no animosity has been projected by the appellant for his false implication. Therefore, his conviction as recorded by the learned trial Court deserves to be upheld. 13. After hearing the rival contentions of either side and going through the entire record carefully, I am of the view that the prosecution case does not suffer from any infirmity, entitling the appellant to acquittal. 14. It appears that the learned counsel for the appellant has not minutely perused the trial Court records. The admitted position is that SHO Surinderpal the Investigating Officer could not step into witness box as he had died in between. Even SI Gurcharan Singh PW4 who was posted as Additional SHO, Police Station Abohar and had complied with the provisions of Section 55 of the Act is not shown in the list of witnesses supplied at the time of filing of the challan against the appellant but it is clear from trial Court records that an application was moved by the State under Section 311 of the Code of Criminal Procedure for summoning him in order to prove the compliance of Section 55 of the Act. A reply was also filed to the said application by the appellant opposing the prayer and ultimately the said application was allowed by the learned trial Court vide order dated 9.06.2001. The said order is reproduced as under :- "Addl. P.P. for the State filed application under Section 311 Cr.P.C. for summoning and examination of SI Gurcharan Singh in which he submitted that on 23.02.98 SHO Surinder Pal handed over the case property as well as accused to SI Gurcharan Singh. On 23.02.98 SI Gurcharan Singh produced the accused as well as case property before the Illaqa Magistrate and on 24.02.98 on arrival of SHO Surinder Pal from Chandigarh, he handed over the case property to SI Surinder Pal SHO but the name of SI Gurcharan Singh could not be mentioned in the list of witnesses. He, therefore, prayed that SI Gurcharan Singh be summoned and examined in this case. He, therefore, prayed that SI Gurcharan Singh be summoned and examined in this case. (ii) Reply was filed by the accused in which he submitted that the present application has been filed by the prosecution to fill up the lacuna. So this application should not be allowed. (iii) I have heard Addl. PP for the State, counsel for the accused and have minutely gone through the record. (vi) As per the case of the prosecution, SI Gurcharan Singh after taking the case property from SHO Surinder Pal on 23.02.98 produced the same before Illaqa Magistrate on 24.02.98 when SI Surinder Pal returned from Chandigarh, and on return to the police station he handed over the case property to SHO Surinder Pal on that day i.e. 24.02.98. So in order to determine whether SI Gurcharan Singh produced the accused as well as case property before Illaqa Magistrate or not and whether case property remained intact during his possession, it is necessary that this witness be summoned and examined in this case. So in the interest of justice, allow this application and order that SI Gurcharan Singh be summoned along with other Pws for 21.09.2001. Pronounced : Dated 9.06.2001 Sd/- (Bhupinder Singh) Special Judge, Ferozepur In view of above, the argument advanced by Mr Goklaney that statement of SI Gurcharan Singh should not be read into evidence has to be repelled outrightly. 15 I have gone through the substantive statement of aforesaid SI Gurcharan Singh who has categorically stated that on 23.02.1998, SHO Surinderpal had handed over to him the parcel containing 4 kgs 900 grams of opium and 10 grams of opium duly sealed for producing the same before the Illaqa Magistrate along with accused. He then states that vide request Ex. P9 the accused along with case property and the sample seal were produced before the Illaqa Magistrate who passed order Ex. P10 on the said application and after returning from the Court he had handed over the case property, sample and the sample seal to SHO Surinderpal. 16. Constable Kashmir Singh PW1 states that on 9.03.1998, SHO Surinderpal had given him sample containing 10 grams of opium with the seal of `HL and `SB along with sample of the seal for taking it to Chemical Examiner. 16. Constable Kashmir Singh PW1 states that on 9.03.1998, SHO Surinderpal had given him sample containing 10 grams of opium with the seal of `HL and `SB along with sample of the seal for taking it to Chemical Examiner. He then states that after getting docket prepared he had deposited the same on 10.03.1998 with the Assistant Chemical Examiner to Government of Punjab at Jalandhar with all the seals intact. 17. The aforesaid facts leave no room for doubt that SHO Surinderpal being the Incharge of the Police Station kept the case property and the sample in his custody from the date of recovery, handed it over to SI Gurcharan Singh at one stage on 23.02.1998 for taking before the Illaqa Magistrate and again kept it with him till the sample reached the hands of the Chemical Examiner. The case property or the sample never remained in the custody of the MHC and therefore, there could not be any evidence in this regard. The arguments advanced by Mr. Goklaney in this respect is neither here nor there and merits dismissal. 18. The second limb of arguments advanced by Mr. Goklaney is equally weak. No doubt Rameshwar Lal, the independent witness has not been produced by the prosecution as having been won over but it by itself cannot be termed to be a weakness to the extent of demolishing the case of the prosecution in its entirety when the statements of the officials witnesses do not suffer from any material infirmity. Certain discrepancies in the statement of the official witnesses are bound to creep in on account of efflux of time but the same cannot be said to be fatal if the substratum of the prosecution case is proved to the hilt. I have very carefully rescanned the entire evidence of the official witnesses and do not find any basic infirmity in it which knocks at the bottom of the case. 19. No other point has been urged before me. 20. As a sequel to the aforesaid discussion, the net result now surfaces is that the prosecution has proved the conscious possession of the contraband (5 kgs of opium) qua the appellant to the hilt and therefore, his conviction for the said charge deserves to be upheld. Ordered accordingly. Resultantly the instant appeal is dismissed.