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2007 DIGILAW 1524 (PNJ)

Artinder Singh v. State Of Punjab

2007-08-22

A.N.JINDAL, MEHTAB S.GILL

body2007
Judgment A.N.Jindal, J. 1. This judgment shall dispose of three appeals, bearing Criminal Appeal Nos. 555-DB, 1617-SB and 651-DB of 2006, by which, Artinder Singh, Sushil Kumar and Surjit Singh, appellants respectively, have appealed against the judgment dated 27.7.2006 passed by Special Court, Jalandhar, whereby, all the three appellants were convicted and sentenced as under :- Artinder Singh @ Pappu and Surjit Singh @ Jagga U/s 18 NDPS Act to undergo rigorous imprisonment for 15 years and to pay fine of Rs. 1 lac, each, in default of payment of fine, to further undergo rigorous imprisonment for one year; U/s 21 NDPS Act to undergo rigorous imprisonment for 15 years and to pay fine of Rs. 1 lac, each, in default of payment of fine, to further undergo rigorous imprisonment for one year. Sushil Kumar alias Babbu U/s 21 NDPS Act to undergo rigorous imprisonment for 10 years and to pay fine Rs. 1 lac, in default of payment of fine, to further undergo rigorous imprisonment for one year. 2. On 27.2.2003, Sub Inspector Pritam Singh along with other police officials was present at Babri Chowk, Jalandhar, where, they received a secret information that all the aforesaid three appellant and also one Rajesh Kumar a juvenile are indulging in the business of Smack and Opium at large scale and they were going to cremation ground in the area of Basti Shiv Puri for exchange of the stocks and if the raid was conducted, then they could be apprehended alongwith opium and smack. Finding this information to be reliable, Sub Inspector Pritam Singh sent ruqa to the Police Station through Constable Harjinder Singh No. 2160. He also informed the control room through a wireless message for intimating the higher officers; contacted the Station House Officer for sending the special reports and also informed Naresh Kumar DSP City-II requesting him to visit the spot. On reaching the cremation ground, he saw appellants and Rajesh alias Tilak Raj present there and apprehended them. After giving them option of search before a gazetted officer or a Magistrate, consent memos Ex. PC, PD and PE, relating to Artinder Singh, Surjit Singh and Sushil Kumar, respectively, were prepared. In the meantime, DSP Naresh Kumar arrived at the spot, who again sought consent of the appellants and consent memos Ex.PF of Artinder Singh, Ex.PG of Surjit Singh and Ex.PJ of Sushil Kumar were prepared. PC, PD and PE, relating to Artinder Singh, Surjit Singh and Sushil Kumar, respectively, were prepared. In the meantime, DSP Naresh Kumar arrived at the spot, who again sought consent of the appellants and consent memos Ex.PF of Artinder Singh, Ex.PG of Surjit Singh and Ex.PJ of Sushil Kumar were prepared. As per the directions of DSP Naresh Kumar, Artinder Singh was searched and one bag containing two packets was recovered from him. One packet was containing opium and other one was found containing smack. Two sample of smack of 5 gm, each, were separated and put in plastic containers. Remnant of opium and smack were weighed and were found to be 4 kg. 980 gms and 990 gms, respectively, which were also put in two separate plastic containers. All the containers were reduced into parcels and sealed with the seals bearing impressions PSI a and NK. An amount of Rs. 29,000/- and a scooter bearing No. DL-45-8642 were also recovered from Artinder Singh (appellant), Sample of opium Ex.P1, case property (opium) Ex.P2, sample of smack Ex.P3, case property (smack) Ex.P4, Rs. 29,000/- Ex.P5, bag Ex.P6 and scooter Ex.P7 were taken into possession vide recovery memo Ex.PK. Thereafter, following the same procedure, search Surjit Singh (appellant) was conducted and a black bag containing opium and smack in two different packets was recovered. Two samples of 10 gms, each of opium and two samples of 5 gms, each, of smack were put in different plastic containers. The remaining opium and smack were found to be 4 kg 980 gms and 990 gms, respectively, which were also put in two different plastic containers. All the containers after being reduced into parcels were sealed with the seals bearing impressions NK and PS. Rs. 4000/- and a scooter were also recovered. Sample of opium Ex.P8, sample of smack Ex.P9, case property Ex.P10 and P11, bag Ex.P12, Rs. 4000/- Ex.P13 and scooter Ex.P14 were taken into possession vide memo Ex.PL. Similarly, Sushil Kumar (appellant) was searched and a water bottle, was recovered from him, which contained smack. Two samples of 5 gms each and remaining 240 gms were put in different small containers. All the three parcels were sealed with seals bearing impressions NK. and PS and taken into possession vide recovery memo Ex.PN. Similarly, Sushil Kumar (appellant) was searched and a water bottle, was recovered from him, which contained smack. Two samples of 5 gms each and remaining 240 gms were put in different small containers. All the three parcels were sealed with seals bearing impressions NK. and PS and taken into possession vide recovery memo Ex.PN. Rajesh alias Tilak Raj (accused/non-appellant) was also searched and he was also found in possession of one attachie (suitcase), which also contained packets of opium and smack. Two samples of 10 gms each of opium and two samples of 5 gms each of smack were put in different plastic containers. The remaining opium and smack were found to be 4 kg 980 gms and 2 kg 740 gms, respectively, which were also put in two different plastic containers. All the containers after being reduced into parcels were sealed with the seal NK and PS. Sample of opium, sample of smack, attachie, scooter and case property are Ex.P15 to P20, respectively. From the personal search of Artinder Singh, Surjit Singh and Rajesh alias Tilak, Rs. 500/-, Rs. 100/- and Rs. 450/-, respectively were recovered and taken into possession vide Ex.PT, Ex.PU and Ex.PV. Case property, samples, sample seals, were deposited with the MHC in the Police Station. The accused were arrested. The case property was produced before the Ilaqa Magistrate on the next day. Investigating Officer recorded statements of the witnesses. On receipt of the report of the Chemical Examiner, challan was presented against the appellants. However, challan against accused Rajesh alias Tilak Raj was presented before the Juvenile Justice Board, Ludhiana. 3. Finding a prima facie case against the appellants, they were accordingly Charged, to which they pleaded not guilty and claimed trial. 4. To prove its case, the prosecution examined SI Pritam Singh (PW1), SI Raj Kumar (PW2), Amarjit Kaur, clerk of DTO office (PW3), SI Bhupinder Singh (PW4), HC Daljinder Singh (PW5), HC Vijay Kumar (PW6) and DSP Naresh Kumar (PW7). 5. When examined under Section 313 of the Code of Criminal Procedure, the appellants denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. In defence, they examined Lucky (DW1). The trial ended in conviction. Hence, this appeal. 6. We have heard learned counsel for the appellants and Additional Advocate General, appearing for the respondent-State of Punjab and have also perused the record. 7. In defence, they examined Lucky (DW1). The trial ended in conviction. Hence, this appeal. 6. We have heard learned counsel for the appellants and Additional Advocate General, appearing for the respondent-State of Punjab and have also perused the record. 7. The usual argument, by which the counsel for the appellants has tried to build up their case that no independent witness was joined and the witness so joined did not support the prosecution case and, rather, he has appeared on the side of defence. Therefore, the benefit should go to the accused. It may be observed that Sukhdev Singh was joined from the way, therefore, there was no need to join any other independent witness on the spot. Even the said witness, namely Sukhdev Singh was also not examined. While dealing with the status of the witnesses, it may be observed that there is no hard and fast rule that official witnesses are not fair witnesses. They being functionaries of the State are supposed to disclose the events in the manner as happened at the spot. They are as good witnesses as the public witnesses are, unless any hostility, enmity or stigma is attached to them. Though before placing reliance on the official witnesses, the court should scrutinize their testimonies with greater care and, caution, so as to rule out any false implication. Having closely scrutinized the deposition, we observe that they are quite consistent in their statements with regard to the time, place and the manner, in which the recovery was effected from the accused. The recovery, so effected from the accused, is quite heavy, which could not be planted by the prosecution from their own source. No such defence that this recovery was foisted upon them has been set up by the accused. Despite the lengthy cross- examination conducted on the prosecution witnesses, no material could be elicited which could be used by the court in favour of the accused. As such, we have no reason to disbelieve the witnesses merely on the ground of their official status. 8. Another point argued by learned counsel for the appellants, with great vehemence, is that though Investigating Officer had informed DSP Naresh Kumar (PW7) on mobile phone, but he has failed to disclose the number of the mobile phone. Similarly, DSP Naresh Kumar has also not disclosed as to which mobile number he was holding at that time. 8. Another point argued by learned counsel for the appellants, with great vehemence, is that though Investigating Officer had informed DSP Naresh Kumar (PW7) on mobile phone, but he has failed to disclose the number of the mobile phone. Similarly, DSP Naresh Kumar has also not disclosed as to which mobile number he was holding at that time. This circumstance by itself creates a dent in the prosecution case. Having pondered over the aforesaid argument, we do not find any substance in the same. Both the witnesses were examined for a considerable time, altogether. As stated by the DSP Naresh Kumar (PW7), the people normally change their mobile numbers after short time. It may further be observed that due to phonebook memory of the mobile phones, people do not remember the number/s of their colleagues or superiors even, as in case of need they only search out the name from the mobile memory and press it. As such, mere non-disclosing of the mobile numbers by SI Pritam Singh (PW1) or DSP Naresh Kumar (PW7), does in no way, affect the substratum of the prosecution case. 9. As regards the next contention that SI Bhupinder Singh (PW4), who stated that on 27.2.2003, he had recorded the FIR as SHO was out of station, but this factum has not been established from any record, it is worth mentioning that in any case, recording the FIR by SI Bhupinder Singh (PW4) does not add anything to strengthen the defence of the appellants. The learned counsel for the appellants has also referred to the statement of Lucky (DW1), who is a person, working in the cremation ground. He informed that no police officer came to the cremation ground on that day. Having given thoughtful consideration to his statement, no reliance could be placed on the same as this witness was supposed to record the names of only those persons, who were brought on cremation ground for the purpose of cremation and, thus, it was not his business to make entry regarding the persons whosoever visit the cremation ground, in that register. His examination in the court does not land the case of the appellants anywhere. His examination in the court does not land the case of the appellants anywhere. On perusal of the impugned judgment and the other records of the case, we are of the consistent opinion that the prosecution has led sufficient evidence on the file to prove the possession of the contraband from all the three appellants, whereas, they have failed to explain as to how they came into possession of such a heavy and costly intoxicating material. No cogent evidence for proving their innocence has been brought to the fore. Thus, the findings returned by the Trial Court convicting the accused are bound to be maintained. 10. Now coming to the quantum of sentence, keeping in view the longevity of the trial and the agony, which the appellants have already suffered, we are of the view that ends of justice will be met if sentence is reduced to the minimum prescribed. Consequently, it is ordered that the sentence passed against appellants Artinder Singh and Surjit Singh under Sections 18 and 21 of the NDPS Act is reduced from 15 years to 10 years, each. However, the sentence of fine will remain intact with a modification in the default clause that in case of non-payment of fine, the appellants will undergo further rigorous imprisonment for six months. Since the recovery effected from appellant Sushil Kumar is non-commercial, therefore, the sentence awarded against him is reduced to six years without alteration in fine. However, in default of payment of fine, he will undergo further rigorous imprisonment for six months. However, all the sentences shall run concurrently.