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2010 DIGILAW 1275 (PNJ)

Bal Krishan v. State of Punjab

2010-03-23

HEMANT GUPTA, JASWANT SINGH

body2010
JUDGMENT Hemant Gupta, J.:- The present appeal has been filed by Bal Krishan, Ranbir Singh and Gobind Ram aggrieved against the judgment dated 16.03.2004 passed by the learned Special Judge, Amritsar, convicting the appellants for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as “the Act”) and sentencing them to undergo rigorous imprisonment for 20 years each and to pay a fine of Rs.2 lakhs each. The appellants have been directed to undergo further rigorous imprisonment for two years each in case of default of payment of fine. 2. The prosecution case was set in motion on the basis secret information received on 26.11.2002. The information was that Ranbir Singh s/o Harlal and Gobind Ram s/o Mela Ram have brought opium from Rajasthan. Both of them are staying with Bal Krishan s/o Dukhi Ram resident of opposite Jawala Flour Mill, Amritsar and they have to deliver opium near Kishore Hotel today. On the basis of such information, police officials led by Inspector Harvinder Singh, Station House Officer, Police Station Civil Lines, Amritsar, organized a naka near Kishore Hotel, Queens Road, Amritsar. One Bua Singh s/o Achhar Singh, who happened to be available at the spot by chance, was joined in the police party. About 20-25 minutes later from the side of Ashoka Chowk, there came a rickshaw on which two Hindu men were sitting, who had put a gunny bag on their lap and the said rickshaw was being paddled by a Hindu man who tried to turn back his rickshaw on seeing the police party. They were apprehended by the Inspector on suspicion with the help of co-officials and asked about their identity. The person who was paddling the rickshaw gave his name as Bal Krishan, whereas the persons sitting on the rickshaw disclosed their names as Ranbir Singh and Gobind Ram. Inspector told them that there is suspicion that they have opium in their possession and they are to be searched. Inspector asked them if they wished to be searched by a Magistrate or a Gazetted Officer. Bal Krishan, Ranbir Singh and Gobind Ram offered to be searched by a Gazetted Officer. Deputy Superintendent of Police (Headquarters) was requested to reach the spot. Shri Ashwani Kapoor, DSP (HQ) reached the spot on a government Gypsy. Inspector asked them if they wished to be searched by a Magistrate or a Gazetted Officer. Bal Krishan, Ranbir Singh and Gobind Ram offered to be searched by a Gazetted Officer. Deputy Superintendent of Police (Headquarters) was requested to reach the spot. Shri Ashwani Kapoor, DSP (HQ) reached the spot on a government Gypsy. Shri Ashwani Kapoor carried out the process of personal search of Gobind Ram and Ranbir Singh and from the gunny bag, on the lap of Gobind Ram and Ranbir Singh, opium wrapped in a glazed paper was recovered. Two samples of 10 grams each were separated and put into plastic Dabbi. The remaining opium weighing 7 Kg 980 grams was put into a plastic box. Two samples and the plastic box containing the seized quantity of the opium were sealed with his seal HS. Deputy Superintendent (HQ) put his signatures on it and the same were taken into possession vide separate memos. On personal search of Bal Krishan, Rs.70/- were recovered from the front pocket of his shirt, whereas Rs.340/- and 275/- were recovered from the front pocket of the shirts of Gobind Ram and Ranbir Singh respectively. The process of recording of First Information Report was completed at 09.55 p.m. 3. Non Consent Memos are Exhibits PJ, PJ/1 and PJ/2 recorded by Harvinder Singh, Inspector, Station House Officer, in respect of appellants Bal Krishan, Ranbir Singh and Gobind Ram respectively as to whether they would be liked to be searched by a Gazetted Officer or before some Magistrate. On the basis of their statements that they would like to be searched by a Gazetted Officer, Shri Ashwani Kapoor, Deputy Superintendent of Police (HQ) posted as Amritsar carried out the personal search of the accused persons. The Memo of Consent at the time of search by Gazetted Officer in respect of Ranbir, Bal Krishan and Gobind Ram are Exhibits PA, PB and PC respectively. Exhibit PD is the memo of recovery of 7 Kg. 980 Grams of opium kept in a separate plastic box after separating 10/10 grams of opium as sample. Recovery memos of personal search and of rickshaw etc are not in dispute. Therefore, detailed reference in respect of such recovery memos are not made in the present judgment. 4. Exhibit PD is the memo of recovery of 7 Kg. 980 Grams of opium kept in a separate plastic box after separating 10/10 grams of opium as sample. Recovery memos of personal search and of rickshaw etc are not in dispute. Therefore, detailed reference in respect of such recovery memos are not made in the present judgment. 4. The report of the Chemical Examiner is Exhibit PP where -in, it was found that both the samples are of opium and the seal of the exhibit was intact on arrival and agreed with the specimen seal sent. It is also reported that the exhibit remained in the safe custody after its receipt till the time its analysis was started. 5. In order to prove its case, the prosecution examined Shri Ashwani Kapoor as PW1 and Inspector Harvinder Singh, Station House Officer, as PW2, apart from examining other formal witnesses. On the basis of the testimony of the aforesaid witnesses, learned trial Court found that the recovery of contraband is proved from the appellants and, thus, convicted the appellants under section 18 of the Act. 6. Before this Court, learned counsel for the appellants has vehemently argued that the procedure prescribed under section 42 of the Act i.e., recording of Memo of information in the police daily diary report has not been complied with before carrying out search, therefore, the process of recovery and the entire prosecution story is not sustainable. The said argument was raised before the learned trial Court as well. The learned trial Court has relied upon a judgment of the Supreme Court reported as Narayana Swamy vs. Assistant Directorate of Revenue Intelligence, AIR 2003 SC 3658 to hold that the recovery of contraband is from a public place and not from any building, conveyance or enclosed place, therefore, the provisions of Section 42 of the Act are not required to be complied with by the prosecution. 7. Though the police has set up a naka on the basis of secret information, but such naka was on a public place i.e., near Kishore Hotel on Queens Road. Section 42 of the Act requires recording of secret information if search, seizure or arrest is required to be carried out in any building, conveyance or enclosed place, between sunrise and sunset but if the seizure is from any public place, it is section 43 of the Act which comes into play. Section 42 of the Act requires recording of secret information if search, seizure or arrest is required to be carried out in any building, conveyance or enclosed place, between sunrise and sunset but if the seizure is from any public place, it is section 43 of the Act which comes into play. Therefore, reliance of learned counsel for the appellants on Section 42 of the Act is misplaced as recovery effected from the appellants is not from any enclosed place or a building. 8. Learned counsel for the appellants has then argued that no independent witness has been examined. Bua Singh who was associated in the recovery process is a stock witness but still not examined by the prosecution and, therefore, the prosecution case lacks credibility and is unbelievable. 9. We do not find any merits in the said argument. Bua Singh has been cited as a prosecution witness but has been given up for the reasons that he has been won over. The personal search has been carried out by the Deputy Superintendent of Police after the appellants have declined consent to be searched by an officer other than the Gazetted Officer. Once search has been carried out by a Gazetted Officer who has been examined as a witness and cross-examined at length by the appellants, the mere fact that Bua Singh, independent witness, has not been examined does not throw any doubt on the prosecution case. 10. Lastly, learned counsel for the appellants has argued that conscious possession of the contraband by Bal Krishan appellant, who is only a rickshawpuller, has not been proved by prosecution. We find the said contention of learned counsel for the appellant meritorious. There is nothing on record to show that the rickshawpuller was in any way participant in the crime. The mere fact that he was carrying the passengers in his rickshaw who were carrying a bag containing contraband, appellant Bal Krishan cannot be attributed any knowledge of the contents of bag carried by the passengers. That is the view taken by the Supreme Court in case reported as Sorabkhan Gandhkhan Pathan and another vs. State of Gujarat, (2004) 13 Supreme Court Cases 608. Keeping in view the aforesaid decision, we deem it appropriate to grant the benefit of doubt to appellant Bal Krishan and acquit him of the charge under section 18 of the Act. 11. Keeping in view the aforesaid decision, we deem it appropriate to grant the benefit of doubt to appellant Bal Krishan and acquit him of the charge under section 18 of the Act. 11. Still further, we find that the punishment of 20 years rigorous imprisonment and fine of Rs.2 lakhs each upon appellants Ranbir Singh and Gobind Ram is harsh and excessive. There is nothing on the record to show that the appellants are habitually indulging in the trade of narcotics. Both the appellants are married having small children. Therefore, we modify the sentence and reduce the same to 10 years rigorous imprisonment and to pay a fine of Rs.1 lakh each. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for another period of one year. 12. In view of the above, present appeal stands partly allowed. Appellant Bal Krishan is acquitted of the charge under section 18 of the Act by granting the benefit of doubt, whereas the sentence upon appellant Ranbir Singh and Gobind Ram is reduced to 10 years rigorous imprisonment and to pay a fine of Rs.1 lakh each. In default of payment of fine, the appellants shall further undergo rigorous imprisonment for another period of one year. ———————