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2007 DIGILAW 372 (PNJ)

Budh Ram v. State Of Punjab

2007-03-07

NIRMAL YADAV

body2007
Judgment Nirmal Yadav, J. 1. Accused-Budh Ram has filed this appeal against the judgment of conviction and order of sentence dated 7.8.2002 whereby he has been convicted under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short "the NDPS Act) and sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 1 lac and in default of payment of fine to further undergo rigorous imprisonment for 6 months. 2. As per prosecution story, on 17.9.1998 a police party comprising SI-Samman Singh, HC-Malkiat Singh and others were on patrol duty and going towards Village Innakhera in a Government gypsy. On the way they joined Dalbir Singh, Ex-Member Panchayat at Village Innakhera. When they reached the canal minor bridge in the area of Village Innakhera, the accused was seen coming from the front side carrying a bag in his right hand. On suspicion, he was apprehended. SI-Samman Singh told the accused that police party wanted to conduct his search as he was suspected to be carrying some contraband. An option was given to him that he could get his search conducted before a Magistrate or a Gazetted Officer. The accused opted for the search to be conducted in the presence of a Gazetted Officer. Consent Memo, Exhibit-PF, bearing thumb- impression of the accused was prepared to that effect. Thereafter, wireless message was sent to Shri Sajjan Singh Cheema, Deputy Superintendent of Police, Malour, whereupon he reached the spot and disclosed his identity to the accused. Personal search of the accused was conducted in the presence of Deputy Superintendent of Police, which led to recovery of contraband article weighing 3 kgs. 800 grams. A sample of 50 grams was separated from the seized contraband. The sample and the residue contraband were sealed with the seals superscripting SS and SSC of SI-Samman Singh and DSP-Sajjan Singh Cheema, respectively, and taken into possession vide Recovery Memo, Exhibit-PC. Rough site plan, Exhibit-PH of the place of recovery and Redressal search Memo; Exhibit-PD were also prepared. Ruqa Exhibit-PG was sent to the concerned Police Station on the basis of which formal FIR, Exhibit-PG/I was registered under Section 18 of the NDPS Act. The accused was formally arrested and a Memo. Exhibit-PE containing the grounds of his arrest was prepared. On reaching police station, the case property was retained by the Investigating Officer. Ruqa Exhibit-PG was sent to the concerned Police Station on the basis of which formal FIR, Exhibit-PG/I was registered under Section 18 of the NDPS Act. The accused was formally arrested and a Memo. Exhibit-PE containing the grounds of his arrest was prepared. On reaching police station, the case property was retained by the Investigating Officer. On the next day he produced the case property and the accused before the SDJM, Malout along with an application. Exhibit-PJ, for orders regarding custody of the accused. Vide order, Exhibit-PJ/I passed by SDJM, Malour, the case property was deposited with MHC. Harinder Singh with seals intact Sample was sent to Chemical Examiner for analysis who vide report, Exhibit-PK opined the contents of the seized contraband to be that of opium. 3. Learned defence counsel argued that the prosecution has miserably failed to prove the link evidence connecting the appellant with the seized contraband. It is argued that it is not proved on record that seal of the sample remained untampered with throughout. According to Investigating Officer Saman Singh the seal after use was handed over to Dalbir Singh, the alleged independent witness. However, said Dalbir Singh has not been produced as a witness. It is argued that the prosecution has intentionally withheld said Dalbir Singh as he would not have supported its case. Another circumstance pointed out by the learned for the appellant is that Central prosecution has failed to prove that General Forensic Science Laboratory Form containing specimen seal was duly filled at the spot at the time of alleged seizure of contraband and further that the sample remained untampered with till it reached the office of Chemical Examiner. It is argued that there is not even an iota of evidence as to where the CFSL Form containing specimen seal remained till the sample of the contraband was examined by the Chemical Examiner and, therefore, this vital link between the contraband seized and the report of the Chemical Examiner is missing, which creates a serious doubt in the prosecution case. In support, learned counsel referred to a Delhi High Court judgment reported as Mohd. Hashim v. State, 2000(1) RCR (Criminal) 235. 4. Learned counsel for the appellant further urged that the personal search memo, Exhibit PD Prepared in the case does not bear the thumb impression of the accused. In support, learned counsel referred to a Delhi High Court judgment reported as Mohd. Hashim v. State, 2000(1) RCR (Criminal) 235. 4. Learned counsel for the appellant further urged that the personal search memo, Exhibit PD Prepared in the case does not bear the thumb impression of the accused. In support of his argument, he referred to the report of handwriting expert which is placed on record as Exhibit DW1/A. Learned counsel contended that the Investigating Officer has forged this document. 5. On the other hand, learned State counsel contended that the Investigating Officer had duly joined the independent witness at the spot. However, he was not examined being won over by the accused. It is argued that the prosecution case is fully supported by PW4-Samman Singh and HC-Malkiat Singh, the recovery witnesses and their testimonies are further corroborated by DSP-Sajjan Singh. They have categorically deposed about the recovery of 3 kgs. 800 grams of opium having been effected from the accused. The Investigating Officer, after effecting recovery of contraband, produced the case property and sample duly made into parcel, before the Illaqa Magistrate on the next day. He moved an application, Exhibit PJ, on which Illaqa Magistrate passed orders Exhibit PJ/I directing the case property to be deposited in the police Malkhana. MHC- Harinder Singh, while appearing as PW2, categorically stated that sample was deposited with him with its seals intact. Chanan Ram, PW1 also categorically stated that sample was carried by him to the Chemical Examiner, and its seals remained intact. He further referred to the report of the Chemical Examiner, Exhibit-PK. The sample seals were also affixed at the top of Form No. 29, which was duly attested by the Sub Divisional Judicial Magistrate, Malout. It is pointed out that there is nothing to suggest that this form was not prepared at the spot. Learned State counsel further argued that personal search memo was duly signed by Dalbir Singh, the independent witness. HC- Malkiat Singh, SI-Samman Singh as well as DSP-Sajjan Singh and was also thumb-marked by the accused. 6. On careful consideration of the rival submissions and documents on record, do not find any merit in the arguments raised by learned counsel for the appellant. Admittedly, the search of the accused was conducted in the presence of Gazetted Officer i.e. DSP-Sajjan Singh. 6. On careful consideration of the rival submissions and documents on record, do not find any merit in the arguments raised by learned counsel for the appellant. Admittedly, the search of the accused was conducted in the presence of Gazetted Officer i.e. DSP-Sajjan Singh. The Investigating Officer had, of course, joined an independent witness, but he is stated to have been won over by the accused. The prosecution case is fully supported by the police officers/officials i.e. DSP-Sajjan Singh, PW3; SI-"Samman Singh, PW4 and HC- Malkiat Singh" PW5. There is nothing to suggest that the police officer/officials were, in any manner, biased or inimically disposed towards the accused. Learned counsel for the appellant could not point out any discrepancy or contradiction in the statements of the prosecution witnesses. The argument of learned counsel for the appellant with regard to missing link evidence and non-preparation of Form No. 29 at the spot are without any basis. The prosecution has sufficiently proved that two sealed parcels, one of sample and the other containing remaining case property, with their seal impressions "SS" and "SSC" intact were produced before the Sub Divisional Judicial Magistrate, Malout. These parcels were ordered to be deposited with MHC- Harinder Singh. A perusal of Form No. 29 clearly shows that specimen seals were affixed on the top of Form No. 29, which was duly attested by the Sub Divisional Judicial Magistrate, Malour. As per report of the Chemical Examiner, the seals of the Exhibits were intact on arrival and agreed with the specimen seals sent. There is no delay in sending the samples to the Chemical Examiner. The defence taken by the appellant sending the samples to the Chemical Examiner. The defence taken by the appellant that search Memo, Exhibit-PD has been forged by the Investigating Officer and it does not bear the thumb-impression of the accused, is also without any merit. Even if it is taken for the sake of argument that personal search memo does not bear the thumb-impression of the accused as per report of a private Handwriting Expert, then also it does not vitiate the recovery of contraband in this case. There was no previous enmity between the accused and police officials, therefore, there was no necessity of forging the search memo by the Investigating Officer. There was no previous enmity between the accused and police officials, therefore, there was no necessity of forging the search memo by the Investigating Officer. Moreover, the personal search memo is simply with regard to other articles recovered from the accused, as the incriminating article had already been recovered. The accused was given an option to be searched either before a Gazetted Officer or Magistrate. On an option given by him, the Deputy Superintendent of Police was called at the spot who conducted the search and thereupon recovery of 3 kgs. 800 grams was effected from the accused. As per statement of the Investigating Officer, after completing necessary formalities, sample was drawn and made into a sealed parcel. Ruqa was then sent to the Police Station and only thereafter the personal search memo was prepared. Even if it is proved that personal search memo does not bear the thump-impression of the accused, still the other documents viz. Consent Memo, Exhibit-PF, Recovery Memo, Exhibit-PC having been duly proved on record, fully support the prosecution case, and thereby recovery of contraband from the accused. The judgment cited by learned counsel for the Mohd. Hashims case (supra) is not appellant in applicable to the facts of the present case. In view of the above discussion, find no merit in this appeal and the same is hereby dismissed.