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Punjab High Court · body

2007 DIGILAW 1150 (PNJ)

Paramjit v. State Of Punjab

2007-05-16

T.P.S.MANN

body2007
Judgment T.P.S.Mann, J. 1. By a common judgment, the present appeal filed by Paramjit and Criminal Appeal No. 1928-88 of 2005 filed by Gurmej Ram, are being disposed of as both arise out of one judgment and order passed by Judge, Special Court, Jalandhar on 26.7.2005 vide which they were convicted under Section 15 of NDPS Act and sentenced to undergo RI for ten years and to pay a fine of Rs. One lac each. In default of payment of fine, the defaulting convict was further required to undergo RI for three years. 2-3 The case of the prosecution is that Inspector Harpreet Singh along with some police officials was holding naka at Satluj bridge on G.T. Road at Phillaur on 15.1.2002. He received a secret information that a four wheeler Tata-407 bearing registration No. HP-39-4385 carrying huge quantity of poppy husk was coming from the side of Ludhiana. Accordingly, one Pargan Ram was associated by the police party as a public witness. Soon thereafter the four wheeler having aforementioned registration number was seen coming from the side of Ludhiana. The same was stopped by giving signal. On being asked, the driver disclosed his name as Gurmej Ram, while the person sitting by his side stated that he was Paramjit. Inspector Harpreet Singh told both of them that he suspected that some contraband was being carried by them in their vehicle and he wanted to check the same. He further told them that they had a right to get the search conducted from some gazetted officer or a Magistrate. At this, both the accused replied that the search be got conducted from a gazetted officer. Their separate consents were obtained. A wireless message was then sent to DSP Satinder Singh, who reached the spot. After disclosing his identity as DSP Sub Division Phillaur, said Satinder Singh told the accused that they had a right to be searched in the presence of a gazetted officer or a Magistrate. But they reposed confidence in him. Once again their separate consents were recorded. On this, Inspector Harpreet Singh conducted the search of the four wheeler as instructed by DSP Satinder Singh. He found that 18 bags containing poppy husk were loaded in the vehicle, which were covered with a tarpaulin. From each bag, a sample of 250 gms. was taken out and made into parcel. Once again their separate consents were recorded. On this, Inspector Harpreet Singh conducted the search of the four wheeler as instructed by DSP Satinder Singh. He found that 18 bags containing poppy husk were loaded in the vehicle, which were covered with a tarpaulin. From each bag, a sample of 250 gms. was taken out and made into parcel. Remaining poppy husk in each bag, on being weighed, came to be 39 kgs. 750 gms. The samples and the gunny bags were then sealed with seals bearing mark `HS of Inspector Harpreet Singh and SS of DSP Satinder Singh. Separate impressions of the seals were prepared. The samples along with the recovered contraband and seal impressions were taken into possession by the police and so also the four wheeler and the tarpaulin. Ruqa was then sent by Inspector Harpreet Singh to the Police Station on the basis of which FIR No. 6 dated 15.1.2002 was registered at Police Station, Phillaur under Section 15 of NDPS Act. During the investigation of the case, the accused were formally arrested. Statements of the witnesses were recorded. Rough site plan of the place of recovery was prepared, The samples were sent to the Chemical Examiner and after receipt of the report in that regard, final report under Section 173 Cr.P.C. was submitted. 4. Both the appellants were charged for the offence under Section 15 of NDPS Act but they pleaded not guilty and claimed trial. 5. In support of its case, the prosecution examined ASI Gopal Singh as PW1, Constable Vijay Kumar as PW2, Inspector Harpreet Singh as PW3, HC Palwinder Singh as PW4, DSP Satinder Singh as PW5 and SI Amrik Singh as PW6. 6. When examined under Section 313 CrPC., both the appellants denied the correctness of the prosecution allegations. They stated that they were innocent and had committed no offence. No recovery was effected from them. They were falsely implicated in the case at the instance of inimical persons. However, none of the appellants produced any witness in support of their respective pleas. 7. I have heard learned counsel, for the parties and gone through the evidence with their able assistance. 8. It is the case of the prosecution, that Inspector Harpreet Singh was holding a Naka on the bridge of Satluj river within the jurisdiction of Police Station, Phillaur. 7. I have heard learned counsel, for the parties and gone through the evidence with their able assistance. 8. It is the case of the prosecution, that Inspector Harpreet Singh was holding a Naka on the bridge of Satluj river within the jurisdiction of Police Station, Phillaur. At that point of time, he received a secret information about a four wheeler bearing registration No. HP-394385 coming from the side of Ludhiana and carrying poppy husk. The police party was also apprised that the vehicle in question was being driven by a clean shaven person who was accompanied by another person sitting by his side. In the meantime, one Pargan Ram, resident of Nurmahal Road Phillaur came present there by chance and he was associated with the police party. The checking of the vehicles thereafter started and about 30 minutes later, the four wheeler in question came from the side of Ludhiana. Vehicle was made to stop by giving a signal. At that time two persons were sitting in the vehicle. The driver of the vehicle disclosed his name as Gurmej Ram alias Kaka, while one young man was sitting on the cleaner side, who disclosed his name as Paramjit @ Pammi. On this, both the appellants were told that the four wheeler was suspected to be carrying some contraband and was therefore required to be searched. They were then asked as to whether the search be conducted in the presence of a gazetted officer or a Magistrate. Upon this, both the appellants made their separate statements that they wanted the search to be effected in the presence of a gazetted officer. The consent of Gurmej Ram was recorded which he thumb-marked. The said statement EX.PB is on the record. It was witnessed by Pargan Ram MC and 81 Amrik Singh. Similar consent Ex. PC of Paramjit @ Pammi was also recorded. 9. After learning that the appellants wanted the presence of a gazetted officer for effecting the search of foul wheeler, Inspector Harpreet Singh informed Deputy Superintendent of Police, Phillaur on wireless, requesting him to reach the spot. In about 20 minutes time, DSP Satinder Singh reached the spot. He also asked from both the accused that whether the search of the vehicle be conducted by a gazetted Officer or a Magistrate and both the appellants replied that the search be effected in the presence of the said officer. In about 20 minutes time, DSP Satinder Singh reached the spot. He also asked from both the accused that whether the search of the vehicle be conducted by a gazetted Officer or a Magistrate and both the appellants replied that the search be effected in the presence of the said officer. Consent memos, Ex. PO and PE in that regard are on the record. It was at that point of time when the search was conducted under the instructions of DSP Satinder Singh that 18 bags of poppy husk were found lying in the four wheeler under a tarpaulin. On opening the said bags, they were found to contain poppy husk. From each of the 18 bags, 250 gms was taken as sample. The remaining poppy husk was weighed and came to be 39 kgs. 750 gms. per bag. Thus, in all, 720 kgs. of poppy husk was recovered from the four wheeler in which the two appellants were travelling and no one else. There was specific secret information against both the appellants of carrying a huge quantity of contraband with them in the four wheeler. It was immaterial that the names of the accused were not told to Inspector Harpreet Singh by the secret informer. However, it was specifically stated that the two persons would be transporting the contraband in the four wheeler bearing registration No. HP39-4385. 10. After effecting the recovery, memo Ex. PF was prepared by Inspector Harpreet Singh, which was attested by Pargan Ram MC and SI Amrik Singh. The same was also verified by DSP Satinder Singh. 11. During the investigation of the case both the accused were formally arrested. They were apprised of the grounds of detention. Their personal searches were also effected. The memo regarding furnishing of grounds of detention was served upon both the appellants and they thumb-marked the same. The same are available on the file as EX. PJ and PI. 12. As per affidavit Ex.PM of HC Palwinder Singh PW4, who was posted as MHC in the Police Station, the case property was handed over by Inspector Harpreet Singh to him for e depositing in the Malkhana on 15.1.2002. On the following day i.e., 16.1.2002 vide Rapat No. 12 the case property was handed over to ASI Gopal Singh for producing the same along with the accused in the Court. On the following day i.e., 16.1.2002 vide Rapat No. 12 the case property was handed over to ASI Gopal Singh for producing the same along with the accused in the Court. On the same day after the said production, the case property bearing the seal of the Court and signatures of the Judicial Officer was deposited in the Malkhana vide Rapat No. 20. On 17.1.2002, a docket was prepared and after affixing the seals bearing inscription HS and SS, was sent to Deputy Superintendent of Police, Phillaur, which was thereafter forwarded and returned to the Malkhana. On 18.1,2002, the samples were then taken out and handed over to constable Vijay Kumar for the purposes of depositing the same with the Forensic Science Laboratory. As per affidavit Ex.PA of Constable Vijay Kumar PW2, he had taken the 18 sample packets, each weighing 250 gms. duly sealed and deposited them in the same condition in Forensic Science Laboratory, Chandigarh on that very day. It is also clear from both the aforementioned affidavits that till the time the samples remained with HC Palwinder Singh and Constable Vijay Kumar, no one tampered with the same. 13. Report Ex-PK of Forensic Science Laboratory, Punjab, Chandigarh is available on the file. It is stated therein that the samples were received on 18.1.2002 and the seals tallied with the seal impressions. Each of the sample was weighing 250 gms. On analysis, each sample was found to contain Meconic acid and other common alkaloids of opium. On the basis of the same, Deputy Director (Toxicology) Forensic Science Laboratory, Punjab opined that the samples were of poppy husk. 14. Learned counsel for the appellants submitted that as per the standing instructions No. 1/88 dated 15.3.1988 issued by Narcotics Control Bureau, two samples were required to be drawn on the spot of recovery from each of the bag containing the contraband. Further that samples must be dispatched to the laboratory within 72 hours of seizure to avoid any legal objection. 15. Law does not require that every time when the recovery of contraband is effected, two samples must be drawn. The aforementioned instructions are only for the convenience of the prosecuting agency. However, their violation will not amount to doubting the prosecution case. Moreover, no prejudice has been shown in the absence of taking of two samples from each of the gunny bags. The aforementioned instructions are only for the convenience of the prosecuting agency. However, their violation will not amount to doubting the prosecution case. Moreover, no prejudice has been shown in the absence of taking of two samples from each of the gunny bags. It is not the case that the samples when received in the laboratory were not intact. Even otherwise, at no point of time, any of the appellant claimed for sending another sample to the laboratory for examination. At this stage, it may be made clear that the accused has also no right to get the second sample taken and then requiring the same to be sent to the laboratory. 16. The recovery was effected on 15.1.2002. On the following day, the case property along with samples of the contraband were produced before the Court. On 17.1.2002, a docket was prepared for sending the sample to the laboratory. On 18.1.2002, the samples were entrusted to Constable Vijay Kumar, who deposited the same with the laboratory on that very day. There was, thus, depositing of the samples with the laboratory with due promptitude and that as pointed out on behalf of the appellants, within about 72 hours of the seizure. 17. Learned counsel for the appellants submitted that though the prosecution claimed the appellants to be in conscious possession of the contraband yet no question was asked from them when they were examined under Section 313 Cr.P.C. that they were having conscious possession of the same. When no such question was put to them, they could not be convicted and sentenced. Reliance in this regard has been placed upon Raj Kumar v. State of Punjab, 2005(1) RCR(Crl.) 70, Joga Singh v. State of Punjab, 2006(3) RCR(Crl.) 480 and Tarsem Singh v. State of Punjab, 2005(4) RCR(Crl.) 300. 18. I have perused the aforementioned judgments. In all those cases it was a case of sudden apprehension of the accused with the contraband. However, in the present case, there was secret information with the police that the two accused, while riding a four wheeler bearing registration No. HP-39-4385 would be coming from the side of Ludhiana and the said four wheeler was containing poppy husk. The secret information received by the police officer was found to be reliable and finally confirmed when the aforementioned four wheeler was stopped and searched. The secret information received by the police officer was found to be reliable and finally confirmed when the aforementioned four wheeler was stopped and searched. At that time, only the appellants were found sitting in the four wheeler. Apart from the contraband, there was no other material found loaded in the vehicle. Thus, the appellants were shown to be in conscious possession of the contraband. 19. In view of the above, there is no force in both the appeals, which are resultantly dismissed.