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2006 DIGILAW 377 (PNJ)

Tarsem Singh v. State

2006-02-08

UMA NATH SINGH

body2006
Judgment UMA NATH SINGH, J. 1. This Criminal Appeal arises out of a judgment and order dated 15.5.2003 passed by learned Special Judge, Hoshiarpur, in Sessions Case no.11 of 1.8.2000, holding the accused-appellant guilty of offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act) and sentencing him to undergo RI for ten years with a fine of Rs.1,00,000/-. In default of payment of fine, the appellant has been directed to undergo further one year RI. 2. The brief facts of the case giving rise to this appeal are that a police party headed by SI Raminder Singh SHO of Police Station, Dasuya, was patrolling from the Gharna Sahib bus stop to Village Bodal via the randhawa village bus stop in an official vehicle on 16.5.2000. When they reached near the Randhawa Sugar Mill gate, they saw an scooterist coming from the direction of the Randhawa bus stop. He instantly turned back the scooter on seeing the police vehicle. They were chased and stopped by the police party. Accused Gian Singh (since deceased) was driving the scooter no. PB-07-C-9578 and accused Tarsem Singh, the pillion rider, was holding a while colour plastic bag in his hand. Accused Gian Singh died during the pendency of the trial. As such, the trial against him abated vide the order passed by the then learned Special Judge, Hoshiarpur, dated 9.4.2002. Sub inspector Raminder Singh informed the accused that he was suspecting some contraband articles in their possession. A complete offer in terms of section 50 of the Act was made. The accused were asked as to whether they wanted to be searched in the presence of a Gazetted Officer or a Magistrate. 3. The accused reposed confidence in SI Raminder Singh. Their consent memo. Ex. PA was reduced to writing. The accused signed the memo which was duly attested by the witnesses. On search, the plastic bag was found to contain 2 kg. opium without a valid permit or licence. A wireless message was sent to the DSP, Dasuya. He reached the spot and in his presence, further proceedings regarding separation of the sample were done. A sample of 20 grams was separated. It was sealed in a separate parcel in an empty match box. The residue being one kilogram and 980 grams opium, was prepared and sealed in a tin box in the same polythene bag. He reached the spot and in his presence, further proceedings regarding separation of the sample were done. A sample of 20 grams was separated. It was sealed in a separate parcel in an empty match box. The residue being one kilogram and 980 grams opium, was prepared and sealed in a tin box in the same polythene bag. These parcels were impressed with the seal `rs of the DSP. A sample impression of the seal was also prepared. A CFSL form was filled up on the spot. The case property was taken into custody vide the recovery memo. Ex. PC. The memo was also attested by the DSP. The scooter along with its registration certificate was taken into possession vide a separate recovery memo (Ex. PD ). On the basis of the ruqa (Ex. PE) sent from the spot, a formal FIR (Ex. PE/1) was registered at Police Station. A rough site plan (Ex. PF) was also prepared. On receipt of Chemical Examiners report (Ex. PG) declaring the contents of the sample to be opium, a challan was presented against the accused before the learned Special Judge, Hoshiapur. The accused was supplied with the copies of necessary documents as required under law. 4. Having found sufficient materials to prosecute the accused-appellant under crl. Appeal No.1123-SB of 2003 4 section 18 of the Act, a charge was framed. The accused pleaded not guilty and claimed trial. 5. Heard learned counsel for the parties and perused the records. The appellants main contention regarding mentioning of the FIR number on consent memo (Ex. PA) does not hold good inasmuch as no such suggestion was given to SI Raminder Singh (PW-2) in his cross-examination. The second contention that there was non-compliance of Sec.50 of the Act during the course of search and seizure also does not appear to be tenable. 6. PA) does not hold good inasmuch as no such suggestion was given to SI Raminder Singh (PW-2) in his cross-examination. The second contention that there was non-compliance of Sec.50 of the Act during the course of search and seizure also does not appear to be tenable. 6. The contraband item was recovered from a plastic bag held by accusedappellant tarsem Singh, who was the pillion rider on the scooter and, thus, in terms of the ratio of law laid down by HON BLE the Apex Court, the provisions of Sec.50 of the Act would not apply ( Please see (i) (2005)5 scc 151 : State of Rajasthan versus Ram Chandra, (ii) (2004)5 SCC 188 : State of Haryana versus Jarnail Singh and others, (iii) (1999) 6 scc 172 : State of Punjab versus Baldev Singh, and (iv) (2005)4 SCC 350 : State of H. P. Versus Pawan Kumar. . . .) As regards the registration number of the scooter (being the vehicle involved in the offence), it has been clarified that in all the documents prepared at the spot, including the ruqa (Ex. PE) on the basis of which the FIR was registered, the scooter number was given correctly. The appellant has also not proved any ulterior motive or prior enmity for false implication (Please see: (2002) 4 SCC 380: khet Singh vs. Union of India ). As regards discrepancy in preparation of the documents, SI Raminder Singh (PW-2) has deposed that the said documents were not reduced to writing by him. He was also not put any question as to who was the author of these documents. That apart, ASI rajinder Singh (PW-3) has mentioned in his cross-examination that some of the writing work was done by him and the others by Constable Tajinder singh under the instructions of the Investigating Officer. As regards the submission on behalf of the appellant that an independent witness should have been joined at the time of search and seizure, it is explained in his cross-examinations by SI Raminder Singh (PW-2) that no person from the public had come forward. Besides, as per the procedures, SI Raminder singh (PW-2), on his return to the Police Station, deposited the case property with seals intact with MHC of the Police Station. This witness is supported by the testimony of HC Prem Singh (PW-4), who was then posted as MHC of the Police Station. Besides, as per the procedures, SI Raminder singh (PW-2), on his return to the Police Station, deposited the case property with seals intact with MHC of the Police Station. This witness is supported by the testimony of HC Prem Singh (PW-4), who was then posted as MHC of the Police Station. PW4 has stated that on 17.5.2000, the case property was sent to the Illaqa Magistrate at the time of production of the accused. It appears from his evidence that the CFSL forms prepared on the spot were also deposited with him. The sample was entrusted by him to constable Sham Lal (PW-1) for delivery at the office of Chemical examiner. He has stated in his examination-in-chief that he did not allow any body to tamper with the seal, nor did he do so. This statement has remained intact in his cross-examinations. The prosecution case inspires confidence also for the reason that PW2 has stated that the DSP (PW6) had taken out one sample after stirring the opium with a stick. Nevertheless, the dsp is also a witness of recoveries. He affixed his seal on the parcels. He has substantially supported the prosecution case. In the statement under section 313 Cr. P. C. , the appellant has pleaded false implication. He has also stated that no recovery was effected from him. 7. From the aforesaid analysis of the evidence on record, it is established that the prosecution is successful in proving its case. There is no infirmity of any sort in following the prescribed procedures under the ndps Rules (for short `the Rules), which can be said to have caused any prejudice to the accused. However, quantity of contraband being the opium is admittedly only 2 kg. Its nature is also established by the Chemical examiners report (Ex. PG ). As per the table under the Rules prescribing the small quantity and the commercial quantity, the commercial quantity for opium (item 92) is 2.5 kg. Admittedly the quantity of contraband in the instant case is only a non-commercial one. The impugned judgment is dated 15.5.2003. Therefore, the instant case is covered by the Sentencing structure of the Amending Act 9 of 2001 (Please see: JT 2004 (2) SC 299 (Basheer @ N. P. Basheer versus State of Kerala) ). The accusedappellant, who is said to be aged about 85 years, has remained in jail for 3 years. The impugned judgment is dated 15.5.2003. Therefore, the instant case is covered by the Sentencing structure of the Amending Act 9 of 2001 (Please see: JT 2004 (2) SC 299 (Basheer @ N. P. Basheer versus State of Kerala) ). The accusedappellant, who is said to be aged about 85 years, has remained in jail for 3 years. The offence in respect of non-commercial quantity is punishable upto 10 years with fine extendable upto one lack rupees. The quantity of impugned contraband is though a non-commercial one, yet it is short of only 50 grams to be covered under the commercial quantity. Hence, taking into account the totality of circumstances, the sentence of 10 years RI with a fine of Rs.1,00,000/- is reduced to a period of 5 (five) years RI and a fine of rs.50,000/- (fifty thousand ). In default of payment of fine, the accusedappellant shall undergo a further one year RI. 8. With the aforesaid modifications on the quantum of sentence, this appeal is hereby dismissed.