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2006 DIGILAW 2789 (PNJ)

Kanwar Sain v. State Of Haryana

2006-07-17

BALDEV SINGH, MEHTAB S.GILL

body2006
Judgment MEHTAB S. GILL, J. 1. This is an appeal against the judgment/order dated 17.12.2003/ 18.12.2003 of the Additional Sessions Judge, Fatehabad whereby he convicted Kanwar Sain son of Badri Prasad under Sec.15 of the narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "ndps Act") and sentenced him to undergo 12 years rigorous imprisonment and to pay a fine of Rs. One lac, in default to further undergo rigorous imprisonment for three years. 2. The story of the prosecution is unfolded by ruqa Ex. PF, being sent to SHO Police Station Sadar, Fatehabad by ASI Prem Chand. ASI Prem chand stated that he along with Head Constable Hoshiar Singh, Constable mittar Sain, Constable Shiv Chand, Constable Ram Kumar, Constable manoj Kumar, Constable Jai Singh and Constable Sat Pal were present near the Police Post Badopal in connection with putting up a picket (Nakabandi ). ASI Prem Chand received secret information that gunny bags of poppy husk were brought in Tata 608 (Canter) bearing registration no. HR-14/0119 and its driver was Kanwar Sain son of Badri Parshad. The informant stated that the vehicle would come from Hisar side and would go towards Sirsa. ASI Prem Chand tried to join many persons in the investigation, but all of them expressed their inability to do so. Three barricades were installed to check the vehicles coming from Hisar side. Time was at about 10.00 P. M. A Tata Canter arrived, which was stopped by asi Prem Chand along with the help of other police officials. Registration no. of the vehicle was HR-14/0119. The driver disclosed his name as kanwar Sain. One young boy named Kuldeep Singh who was sitting by the side of the driver and was known to the ASI, alighted from the Tata Canter from the side of the driver, but he succeeded in escaping in the streets towards village Baropal, taking advantage of the darkness. Kanwar Sain, after he came down, was served with a notice under Sec.50 of the NDPS act, as to whether he wanted to be searched by a Gazetted Officer or a magistrate. Kanwar Sain, in reply to the notice, stated that he wanted the tata Canter to be searched by some Gazetted Officer or Magistrate. Kanwar Sain, after he came down, was served with a notice under Sec.50 of the NDPS act, as to whether he wanted to be searched by a Gazetted Officer or a magistrate. Kanwar Sain, in reply to the notice, stated that he wanted the tata Canter to be searched by some Gazetted Officer or Magistrate. ASI raj Singh of Police Station Sadar, Fatehabad was informed on telephone that the search of the Tata Canter was to be conducted and some Gazetted officer or Magistrate be sent at the spot. Shri Ashok Kumar Garg, tehsildar, Fatehabad came to the spot. On his directions, the search of the tata Canter bearing registration No. HR-14/0119 was conducted. As a result of which, 20 bags of onions were recovered and underneath the onion bags, there were 86 gunny bags. On opening the mouth of the gunny bags, it was found that they were containing poppy husk. Weights and the weighing scale were fetched from a nearby factory. Samples each weighing 100 grams were taken from each of the gunny bags and the residue poppy husk on weighing was found to be 39 Kgs.900 grams per bag. The sample parcels and the gunny bags containing residue poppy husk were sealed with seal bearing subscription "pc". The Tata Canter was taken into possession. The recovery memo was attested by the witnesses. The seal after its use and the sample of seal was handed over to Head Constable Hoshiar Singh. On the basis of the ruqa, FIR Ex. P94 was registered by ASI Dharamvir. Special report was sent to the Senior Officers and also to the S. D. J. M. , fatehabad on 13.2.2000. 3. The prosecution to prove its case brought into the witness box constable Buta Ram as PW1, Constable Tarinder Singh as PW2, ASI hoshiar Singh as PW3, ASI Prem Chand as PW4, Retired Inspector shingara Singh as PW5, Inspector Vijay Kumar as PW6, Constable Attar singh as PW7, ASI Sunder Singh as PW8, ASI Dharamvir as PW9, ASI Raj singh as PW10, Inspector Ishwar Singh as PW11, Bir Singh as PW12, SI ishwar Singh as PW13 and Mr. Ashok Kumar Garg, Tehsildar as PW14. Learned counsel for the appellant has argued that Ashok kumar PW14, Tehsildar was not present. His signatures have not been taken on the recovery memos especially, memo Ex. P5. Ashok Kumar Garg, Tehsildar as PW14. Learned counsel for the appellant has argued that Ashok kumar PW14, Tehsildar was not present. His signatures have not been taken on the recovery memos especially, memo Ex. P5. This witness has stated that no constable or any other police official was sent to the Police station to register a case. As per the statement of ASI Hoshiar Singh PW3, the bags containing the contraband produced in the Court were of different weights. Some of the bags did not have seals. The secret information received by ASI Prem Chand was not recorded and no memo was prepared which was a violation of Sec.42 of the NDPS Act. Though the police party had ample opportunity to join independent witnesses, but the investigating Officer, deliberately did not do so, as the truth would come out. The alleged contraband was recovered from the Tata Canter, the owner of which was one Mahinder Singh. Appellant Kanwar Sain could not be held consciously liable for the possession of the contraband. The case property produced in Court has been tampered with. The gunny bags are weighing less. There are no identification chits on the gunny bags and there are big holes in the bags. 4. Learned counsel for the State has argued that the case property was produced in Court after a gap of three years. This was the reason that some identification seals were not present and some of the gunny bags weighed less. The gunny bags which weighed less than 39 Kgs.900 grams, were due to the fact that while loading and unloading some bags got torn, the identification chits of some bags was also torn. Such like damage to the case property is beyond the control of the Investigating Officer. There was no need for the Investigating officer to put into black and white the secret information which he received. The information was received when the naka had already been put. On stopping the Tata canter, one of the accused ran away, which took the Investigating Officer about half an hour to try and arrest him. Arrest of the appellant was done at night time. No independent witness was ready to join, though an effort had been made by the Investigating Officer. Appellant is consciously liable for the possession of the contraband, as he was no other person than the driver of the Tata Canter. Arrest of the appellant was done at night time. No independent witness was ready to join, though an effort had been made by the Investigating Officer. Appellant is consciously liable for the possession of the contraband, as he was no other person than the driver of the Tata Canter. Driver, in fact, is the only person who knows what is in his vehicle. 5. We have heard learned counsel for the parties and perused the record with their assistance. Mr. Ashok Kumar, Tehsildar PW14 in his testimony before the court has stated that he had received a telephonic call on 12.2.2000 at 10.15 p. M. , that a vehicle has been detained at village Badopal and has to be searched. He reached the spot and under his supervision, Canter No. HR-14/0119 was searched which was being driven by appellant Kanwar Sain. Firstly, Mr. Ashok Kumar, Tehsildar PW14 disclosed his identity and thereafter the Canter was searched.20 bags of onions and 86 bags of chura post were recovered. From each bag, 100 grams of sample was taken and the remaining bags were weighed and each bag was found containing 39 kgs.900 grams. All the bags and the samples were sealed by seal mark "pc". Recovery memo Ex. P5 regarding the recovery of the 86 samples and bags, was prepared and attested by ASI Prem Chand, PW4 and attested by the other witnesses. This witness has stated that his statement was recorded after 1/ 1 hours of his reaching the spot. Meaning thereby, that some time had been taken in searching the Tata Canter and also preparing the memos. Recovery memo Ex. P5 is attested by Head Constable Hoshiar Singh PW3, constable Manoj Kumar and ASI Prem Chand PW-4. Ashok Kumar PW14 has not attested it. But we cannot ignore this fact that Ashok Kumar PW14 has stated on oath that the recovery of the contraband was done in his presence and on his instructions. Immediately after the recovery, special report was sent to the Senior Officers and the S. D. J. M. through Constable tarinder Singh PW2, whose affidavit is Ex. P2. ASI Prem Chand, PW4 after apprehending the appellant gave him an offer Ex. PE as to whether he wanted to be searched by a Gazetted Officer or a Magistrate. Immediately after the recovery, special report was sent to the Senior Officers and the S. D. J. M. through Constable tarinder Singh PW2, whose affidavit is Ex. P2. ASI Prem Chand, PW4 after apprehending the appellant gave him an offer Ex. PE as to whether he wanted to be searched by a Gazetted Officer or a Magistrate. Offer of search was accepted by the appellant and he stated that he wanted to be searched by a Gazetted Officer or a Magistrate. It is thereafter, Mr. Ashok kumar, Tehsildar PW14 was requested to reach the place of recovery. Vide affidavit Ex. P100, Constable Attar Singh PW7, has stated that on 15.2.2000 shri Raj Singh ASI/mhc, Police Station Sadar, Fatehabad handed over to him 86 sample parcels containing poppy straw sealed with seals bearing "pc"and "is"monograms, along with sample seal for depositing in the fsl. This witness deposited the samples with FSL, Madhuban on the same day and handed over the receipt regarding deposit of the parcels to mhc/asi Raj Singh PW10. ASI Raj Singh PW10, has stated in his affidavit Ex. P101 and in his testimony, that on 13.2.2000 ASI Prem Chand pw4, deposited with him 86 sample parcels containing poppy straw weighing 100 grams, sealed with seals bearing "pc"and "is". He has further stated that he handed over the samples to Constable Attar Singh pw7 on 15.2.2000. 6. The case property produced in Court as per statement of ASI hoshiar Singh PW3, after it was reweighed, some of the bags was containing 25 Kgs. , 35 Kgs. , 34 Kgs. , and 36 kg. poppy husk. Seals on several bags was missing. We cannot be oblivious of the fact that these discrepancies, in the weight and of some of the seals being missing was due to the reason, that the case property was produced in Court after a gap of three years. Nothing was put to this witness that the bags were tampered with. The bags were lying stacked in the malkhana and at the time of shifting them to the Court, some must have got torn, as the gunny bags had become old and some seals also must got damaged. As per this witness, secret information was received on 12.2.2000 at 9.00 P. M. The Tata Canter was apprehended at 10.00 P. M. Several vehicles had passed on that way, which were searched by the police party. As per this witness, secret information was received on 12.2.2000 at 9.00 P. M. The Tata Canter was apprehended at 10.00 P. M. Several vehicles had passed on that way, which were searched by the police party. As the Tata Canter finally came and it was stopped, one of the acquitted accused Kuldeep Singh ran away. ASI Prem Chand, PW4 chased Kuldeep Singh for a distance of 1/ 1 kilometres and it is thereafter, he was taken into custody. The Investigating officer did not take any time to prepare a memo of the information he received. This witness has further stated that he tried his level best to join an independent witness, but it being night time, nobody was ready to join the police party. Learned counsel for the appellant has laid a lot of stress that appellant Kanwar Sain was not liable for being consciously in possession of the contraband. This argument of the learned counsel does not cut much ice. Appellant Kanwar Sain was no other person than the driver of the Tata Canter. The driver of a vehicle is the one who knows, as to what is in his vehicle and especially, appellant Kanwar Sain had known as there were not less than 86 bags of poppy husk weighing 40 Kgs. each in his Canter, hidden under 20 bags of onions. We do not find any infirmity in the judgment of the Trial Court. Appeal is dismissed.