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2008 DIGILAW 1130 (PNJ)

Angrej Singh v. State Of Haryana

2008-05-30

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction dated 10.9.2005 and the order of sentence dated 14.9.2005 rendered by the Court of Additional Sessions Judge, Karnal, vide which it convicted the accused/appellant for the offence, punishable under Sections 15C, 25 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as the Act only) and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs. 1 lac, and in default of payment of the same, to undergo rigorous imprisonment for a further period of one year, for the offence Punishable under Section 15C, of the Act; further sentenced him to undergo R1 for a period of ten years; and to pay a fine of Rs. 1 lac, and in default of payment of the same, to undergo rigorous imprisonment for a further period of one year for the offence punishable under Section 25 of the Act and further sentenced him to undergo RI for a period of ten years, and to pay a fine of Rs. 1 lac, and in default of payment of the same, to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 29 of the Act. All the substantive sentences were however, ordered to run concurrently. 2. The facts, in brief, are that on 14.7.2003 SI Shamsher Singh, SHO, Police Station Gharaunda and other police officials were going towards the area of Gharaunda, in Western lane of G.T. Road in Govt. jeep, and when the police party reached near Chandigarh Dhaba, in the area of Gharaunda, on the night intervening 13/14.7.2003, it noticed that one canter bearing No. HR-05A-3887 was found parked there, and its face was towards Karnal side. SI Shamsher Singh got his jeep stopped. Jai Pal owner of the Dhaba was also found there. On seeing the police jeep Hardeep Singh (who is facing enquiry before the Juvenile Justice Board) tried to run away, from the cabin of the canter, but was apprehended. On checking the canter, the police found one inner cabin in the same. A message was sent to the DSP, who reached the spot. On search of the canter 14 gunny bags of poppy husk, were recovered. Each bag was found containing 39 Kgs. And 400 grams poppy husk. On checking the canter, the police found one inner cabin in the same. A message was sent to the DSP, who reached the spot. On search of the canter 14 gunny bags of poppy husk, were recovered. Each bag was found containing 39 Kgs. And 400 grams poppy husk. Two samples of 200 grams, from each of the bags, were separated, and the remaining poppy husk was kept into the same bags. The samples and the bags were converted into parcels, duly sealed with the seal, and taken into possession vide a separate recovery memo. The registration certificate of the Canter, permit book, insurance policy, other documents and the Canter were also taken into possession vide a separate recovery memo. Ruqa was sent to the Police Station on the basis whereof, the FIR was registered. Site plan was prepared. 3. On 11.8.2003, accused, Angrez Singh was joined in the investigation by ASI Ranbir Singh, who was investigating this case. He arrested him and released him on bail in pursuance of the order passed by this Court. 4. Hardeep Singh, accused, was declared as Juvenile vide order dated 22.10.2003 and the prosecution was directed to produce him on 4.11.2003, before the Juvenile Justice Board, Sonepat. The prosecution was also directed to submit a separate challan against Hardeep Singh, before the Juvenile Board, Sonepat. After the completion of investigation, accused Angrez Singh was challaned. 5. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused Charge under Sections 15(c), 25 and 29 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial. 6. The prosecution, in support of its case, examined Roop Singh, ASI, Krishan Kumar, PW-2, Dilbagh Singh, waiter, of Rajindera Dhaba, PW-3, who saw accused Angrez Singh and Hardeep Singh taking tea biscuits etc., Subhash Chand, ASI, PW-4, Rajesh Kumar, Constable, PW-5, Ranbir Singh, PW-6, Shamsher Singh, SI, PW-7 and K.V. Ramna, IPS Officer, PW-8. 7. The Public Prosecutor for the State gave up Jai Pal, independent witness, as having won over by the accused, vide his statement dated 18.3.2005 on the basis of the application of the Police, mark C-1. Thereafter, he tendered into evidence affidavit of the Police, mark C-1. Thereafter, he tendered into evidence affidavit Ex.P-58, report of the Forensic Science Laboratory and closed the prosecution evidence. 8. Thereafter, he tendered into evidence affidavit of the Police, mark C-1. Thereafter, he tendered into evidence affidavit Ex.P-58, report of the Forensic Science Laboratory and closed the prosecution evidence. 8. The statement of the accused under Section 313 Cr.P.C. was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that he had no knowledge about the recovery of any contraband from the possession of Hardeep Singh. He further stated that his canter had gone to Rajasthan on 12.7.2003 being driven by driver Hardeep Singh. He further stated that he was also searching his canter as it did not reach his residence in time. He further stated that he came to know about the registration of the case, when the police party raided his residence and he was out of station, in search of his vehicle. He examined Jai Pal, DW-1, and Rajinder Kumar, DW-2, in his defence. Thereafter he closed the defence evidence. 9. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 10. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 11. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 12. Learned Counsel for the appellant, at the very outset contended, that the trial court was wrong, in recording conviction and awarding sentence, on the basis of untrustworthy evidence of the prosecution witnesses. He further contended that the appellant was not present at the time of the alleged recovery, but was falsely involved, in this case. He further contended that Dilbagh Singh, PW-3, a waiter in the eating place (dhaba) at the relevant time could not be said to be a reliable witness as his presence in the said eating place, was most unnatural and improbable. The submission of the Counsel for the appellant does not appear to be correct. The accused admitted his ownership in respect of the canter in question. The submission of the Counsel for the appellant does not appear to be correct. The accused admitted his ownership in respect of the canter in question. He however, took up the plea, in his statement under Section 313 Cr.P.C. that the Canter had gone to Rajasthan on 12.7.2003, being driven by Hardeep Singh-driver, but had not returned, in time, and he was searching the same when he came to know that the police had arrested him (Hardeep Singh). From the registration certificate Ex.P-3, the ownership of the accused in respect of the Canter is proved. Ex.P-5 is the insurance policy of the Canter in question. It is also in the name of Angrej Singh s/o Joginder Singh, accused. The public carrier permit Ex.P-4, is also in the name of Angrej Singh, accused. For constituting the offence, punishable under Section 25 of the Act, the prosecution was required to. prove that the owner of the Canter knowingly permitted the same, to be used, for commission, by any other person of an offence, punishable under the provisions of the Act. Dilbagh Singh, PW-3, was examined by the prosecution. He was employed as waiter, at Rajendera Dhaba. It was stated by him that on 13.7.2003 at about 10.00 P.M. the canter bearing No. HR-05A-3887 arrived at the said Dhaba. He further stated that two persons were there in the Canter, whose names: were Angrez Singh and Hardeep Singh. Both these persons used to take tea and biscuits at the aforesaid Dhaba and thus, they were known to him. He further stated that they took tea and biscuits on that date and they paid Rs. 30/-. It was further stated by him that when he had given the balance amount to Angrez Singh, he told him to keep the same with him. It was further stated by him that he had served them tea. Angrez Singh, who was identified by him in the Court told his driver Hardeep Singh, that the police was standing in front of P.S. Gharaunda and he (Hardeep Singh) should take away the Canter and further told him that he (Angrez Singh) would meet him at Namaste Chowk, Karnal. Thereafter Hardeep Singh had taken away the Canter and Angrez Singh had also gone from the Dhaba while sitting in one truck. Thereafter Hardeep Singh had taken away the Canter and Angrez Singh had also gone from the Dhaba while sitting in one truck. It was this Canter which was apprehended by the Police on the night intervening 13/14.7.2003 at about 12.00 midnight, and, on search thereof, 14 gunny bags each containing poppy husk, were recovered. This witness was thoroughly cross-examined, but nothing of consequence could not get elicited from his mouth, which may go to discredit his evidence. He stood the test of touch-stone of all probabilities, during the course of his cross-examination. From the evidence of Dilbagh Singh, it was proved beyond doubt that Angrez Singh, accused, knowingly permitted Hardeep Singh to carry the aforesaid bags containing poppy husk, lying in the Canter, which was his ownership. Dilbagh Singh, PW, had no ill will, grudge or enmity against the accused to falsely implicate him. In these circumstances, the accused committed the offence punishable under Section 25 of the Act. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 13. The Counsel for the appellant placid reliance on the evidence of Jaipal, DW-1 and Rajinder Kumar DW-2. Jai Pal, DW-1, owner of Rajdhani eating place (Dhaba) stated that he did not know anything about the case and no recovery was effected in his presence. Jaipal, DW-1 was joined, as an independent witness by the investigating officer, but he sided with the accused during trial of the case. He was given up as won over by the Public Prosecutor, on the basis of application mark C-l moved by the police. From the statement made by him as DW-1, the factum stood strengthened that he had actually been won over by the accused. Since he had already been given up as won over by the accused his statement as DW-1, was hardly of any consequence. No reliance therefore, on the said statement could be placed. His evidence, therefore, was rightly discarded by the trial Court. After having held him to be completely unreliable witness. No help therefore, from his statement could be taken by the Counsel for the appellant. 14. No reliance therefore, on the said statement could be placed. His evidence, therefore, was rightly discarded by the trial Court. After having held him to be completely unreliable witness. No help therefore, from his statement could be taken by the Counsel for the appellant. 14. Coming to the statement of Rajinder Kumar, DW-2, who claimed himself to be the owner of Rajindera Dhaba, where the accused and Hardeep Singh took tea and biscuits on 13.7.2003 at about 10.00 P.M., it may be stated here that the same is also unreliable. He stated that he did not know that the accused ever came his Dhaba. He further stated that Dilbagh Singh s/o Ganpat Singh, PW-3, never worked, as waiter, at his Dhaba. He further stated that the police had never enquired anything from Dilbagh Singh. During the course of his cross-examination, it was stated by him that Dilbagh Singh, PW-3, used to work, at his eating place prior to the incident. He, however, could not tell as to when Dilbagh Singh left the Dhaba. He could not produce any document, on record, that on the date of occurrence, Dilbagh Singh, was not a waiter in his Dhaba. It was for him to prove as to when he left that Dhaba. It appears that he made a statement that Dilbagh Singh, at the relevant time, was not working as a waiter at his Dhaba, just with a view to save the accused. The statement of this witness in the face of the evidence of Dilbagh Singh. PW-3 and other official witnesses, which is cogent, convincing, reliable and trustworthy pales into insignificance. The trial Court was right in discarding the statement of DW-2 holding him to be wholly unreliable. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 15. The next question that arises for consideration is, as to whether, any offence under Section 29 of the Act, was committed by the accused or not. According to Section 29 of the Act whoever, abets or is a party to a criminal conspiracy to commit an offence, punishable under this chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence. From the statement of Dilbagh Singh, PW-3 it was proved that Angrez Singh along with Hardeep Singh came to their Dhaba at 10/10.30 P.M. on 13.7.2003 and took tea and biscuits. Angrez Singh told Hardeep Singh that the police was standing near Gharaunda and he should take the Canter. He further stated that Angrez Singh told Hardeep Singh that he would meet him at Namstey Chowk, Karnal. It means that Angrez Singh, abetted the commission of offence punishable under Section 15 of the Act by Hardeep Singh, his co-accused being juvenile in conflict with law, and whose case was sent to the Juvenile Justice Board. There can hardly be any direct evidence in respect of abetment and conspiracy. In the instant case, there is direct evidence, in the shape of the statement of Dilbagh Singh, PW-3 regarding abetment, which has been discussed above. Angrez Singh very well knew that there was poppy husk, in the truck, which was being transported with his connivance. In order to escape his arrest, he told Hardeep Singh to take the Canter and assured him that he would meet him at Namstey Chowk, Karnal. The ingredients required for constituting the offence punishable under Section 29 of the Act, therefore, stood proved. 16. It was, however, contended by the Counsel for the appellant that no offence punishable under Section 15C of the Act was constituted against the accused and the trial Court was wrong in holding so. The submission of the Counsel for the appellant to this extent appears to be correct. The accused was not found in the Canter. It was apprehended by the Police being driven by Hardeep Singh. He remained behind and Hardeep Singh was allowed to go with the Canter carrying the poppy husk. He had no physical control over the poppy husk. He also could not be said to be in constructive control of poppy husk. Once, it was proved from the evidence on record that the accused abetted the commission of offence, under Section 15C of the Act, by Hardeep Singh, accused, he could only be said to be the abettor and not the actual offender. The actual offender in this case was Hardeep Singh and not the accused. No doubt, the trial Court, held that the accused only temporarily disassociated himself from Hardeep Singh and he was having legal control over the contraband in the Canter. The actual offender in this case was Hardeep Singh and not the accused. No doubt, the trial Court, held that the accused only temporarily disassociated himself from Hardeep Singh and he was having legal control over the contraband in the Canter. He being the owner of the Canter, knowingly permitted the use thereof, for transport of poppy husk by Hardeep Singh, accused, and abetted the commission of offence under Section 25 and 29 of the Act, as stated above. He could either be the abettor or the principal offender. Once he has been held to be the abettor, he cannot be held to be the principal offender. The trial Court, however, placed reliance on Gurinder Singh v. Union Territory, Chandigarh 2005(1) R.C.R. (Crl.) 486 to come to the conclusion, that the accused was in conscious possession of the contraband, in the truck, as he only temporarily disassociated with the same, at the eating place, referred to above. The facts of the aforesaid case are clearly distinguishable from the facts of the instant case. In the aforesaid case, all the accused was found traveling in the car, wherefrom, the contraband was recovered. It was under these circumstances, that he (owner) was found to be in conscious possession of the same. The trial Court was, thus, wrong in holding that the accused committed the offence punishable under Section 15(C) of the Act. The finding of the trial Court to this extent, deserves to be set aside. 17. It was next contended by the Counsel for the appellant that the mandatory provisions of Section 42 of the Act were not complied with. As a result whereof the investigation and the subsequent trial, stood vitiated. The submission of the Counsel for the appellant, does not appear to be correct. There was no secret information, that the accused were coming in a Canter and bringing contraband. The police party was going in connection with patrol duty, when all of a sudden on the night intervening 13/14.7.2007, the Canter aforesaid came, which was being driven by Hardeep Singh, co-accused of the accused-appellant, from which the poppy husk was recovered. Not only this, even the recovery from the Canter was effected at a open place and not from an enclosed place. As such, the provisions of Section 42 of the Act were not applicable. On the other hand, the provisions of Section 43 were applicable. Not only this, even the recovery from the Canter was effected at a open place and not from an enclosed place. As such, the provisions of Section 42 of the Act were not applicable. On the other hand, the provisions of Section 43 were applicable. There was, therefore, no need of complying with the provisions of Section 42 of the Act. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 18. The counsel for the appellant, however, placed reliance on West Bengal v. Babu Chakraborty 2004(7) J.T. 216 (S.C.) and Rajendra v. State of Madhya Pradesh, in support of his contention. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the present case. In those cases, secret information had been received against the accused and, in pursuance thereof, the search of the vehicle or the premises was conducted, as a result whereof, the contraband was recovered. It was under these circumstances, that it was held that the provisions of Section 42 of the Act were applicable and non-compliance thereof, was sufficient to vitiate the investigation and subsequent trial. In the instant case, the provisions of Section 42 were not applicable as no secret information had been received and on the other hand, the provisions of Section 43 were applicable. As such, neither the investigation nor the subsequent trial stood vitiated. No help, therefore, can be drawn, by the Counsel for the appellant from the aforesaid authorities. 19. It was next contended by the counsel for the appellant that there was a delay of 10 days, in sending the samples to the laboratory, which remained unexplained. He further contended that, on account of this reason, the possibility of tampering with the sample until the same reached the office of the Forensic Science Laboratory, could not be ruled out. The submission of the Counsel for the appellant, does not appear to be correct. The mere fact that there was delay in sending the sample to the office of the Forensic Science Laboratory, in itself, was not sufficient to come to the conclusion that the samples were tampered with in any manner. The other evidence produced by the prosecution, has been held to be cogent, convincing, reliable and trustworthy. The mere fact that there was delay in sending the sample to the office of the Forensic Science Laboratory, in itself, was not sufficient to come to the conclusion that the samples were tampered with in any manner. The other evidence produced by the prosecution, has been held to be cogent, convincing, reliable and trustworthy. From the other evidence, it was proved beyond doubt, that none tampered with the samples, until the same reached the office of the Forensic Science Laboratory. Had the other evidence been not produced, to prove this factum, the matter would have been different. In State of Orissa v. Kanduri Sahoo, it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 20. No other point was urged, by the Counsel for the parties. 21. In view of the above discussion, it is held that the judgment of conviction, and the order of sentence, rendered by trial Court, recording conviction and awarding sentence to the accused for the offences punishable under Sections 25 and 29 of the Act, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference. The judgment of conviction and the order of sentence to this extent are liable to be upheld. 22. The judgment of conviction and the order of sentence, holding the accused guilty for the offence punishable under Section 15(c) of the Act, and awarding sentence to him for the same, are not based on the correct appreciation of evidence, and law, on the point, and are liable to be set aside to that extent. For the reasons recorded, hereinabove, the appeal is partly accepted. The judgment of conviction and the order of sentence, for the offence punishable under Sections 25 and 29 of the Act are upheld. 23. The judgment of conviction and the order of sentence, in relation to the offence punishable under Section 15C of the Act are set aside. The accused is acquitted of the offence punishable under Section 15(c) of the Act. 24. 23. The judgment of conviction and the order of sentence, in relation to the offence punishable under Section 15C of the Act are set aside. The accused is acquitted of the offence punishable under Section 15(c) of the Act. 24. The Chief Judicial Magistrate, Karnal shall take necessary steps, to comply with the judgment of this Court, with due promptitude, keeping in view the applicability of the provisions of Section 428 of Cr.P.C. Compliance report be submitted within 3 months from the date of receipt of a certified copy of the judgment. 26. The Canter in question, is confiscated. The Trial Court shall ensure that the same is taken into custody, and dealt with, in accordance with the provisions of law, after the decision of the case of Hardeep Singh, by the Juvenile Justice Board, if the same has not already been decided. The compliance report shall be submitted within one month from the date of receipt of a certified copy of the judgment.