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2010 DIGILAW 273 (PNJ)

Kuljit Singh Alias Ruby v. State Of Punjab

2010-01-12

SABINA

body2010
Judgment SABINA, J. 1. Vide this judgment two appeals bearing No. CRA No.2293 SB of 2008 and CRA No.2458 SB of 2008 will be disposed of as these have arisen out of the same judgment. The appellants were convicted for an offence under Sec.15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act- for short) vide judgment dated 24.10.2008 by the Special Judge, Ludhiana. Vide order of the even date the appellants were sentenced to undergo rigorous imprisonment for a period of ten years and a fine of Rs.1,00,000/- each. Hence, the present appeals. 2. Prosecution case, as noticed by the trial Court in para 2 of its judgment, is reproduced herein below:- " The brief facts of the prosecution case are that on 1.1.2003, SI Bikramjit Singh along with ASI Balwinder Singh, asi Joginder Singh and other police official were on patrol duty and checking of suspected persons and were in Govt. vehicle and the police party was present in the Jalandhar Bye Pass Chowk and at about 7.30 p. m. Sucha Singh son of Pakhar Ram resident of Laddowal met them there. Then the informant informed si Bikramjit Singh that Surjit Singh son of Chand Singh resident of Dharam singh Dia Chhanna, Mehatur, Kuljit Singh son of Tarsem Singh resident of parjian Kalan, Shahkot who are dealing in selling the poppy husk in the area of Ludhiana, Jagraon, Nakodar etc. and they bring the poppy husk from Himachal and today they are brining the poppy husk in a truck bearing No. PAO-9357 which was being driven by Baljit Singh son of Mewa Singh resident of village Mander kalan, Kot Isse Khan and they had constructed a portion in the truck and they are carrying poppy husk in a large quantity and they had to supply the poppy husk in the area of Bahadur Ke kassabad etc. and that truck is now standing on the Bahadur Ke Kassabad etc. and that truck is now standing on the Bahadur Ke Road, near Grain Market and they are in preparation of supplying the poppy husk and if a raid is conducted they can be apprehended. and that truck is now standing on the Bahadur Ke Kassabad etc. and that truck is now standing on the Bahadur Ke Road, near Grain Market and they are in preparation of supplying the poppy husk and if a raid is conducted they can be apprehended. Then believing the information to be true SI Bikramjit singh along with other police official and Sucha Singh reached on the Bahadur ke Road at about 7.30 PM and after conducting the raid the truck was rounded up with the help of other police officials and the person who was sitting on driver seat on enquiry disclosed his name as Baljit Singh alias Pappu son of mewa Singh and the person sitting on the adjoining seat on enquiry disclosed his name as Surjit Singh @ Jeeta and he had also disclosed his parentage and address and the third person who was sitting on conductor seat on enquiry disclosed his name as Kuljit Singh @ Ruby son of Tarsem Singh resident of village Parjian Kalan. Then SI Bikramjit Singh told all the accused that he wanted to get the search of the truck searched and you have a legal right to get the same searched in the presence of Gazetted Officer and then SI Bikramjit Singh accorded the dissenting memo ex. PA, Ex. PB, Ex. PC of accused Surjit Singh, Kuljit Singh and Baljit Singh respectively and these memos were signed by PW Sucha Singh and ASI Joginder singh. Then SI Bikramjit Singh called DSP Manjit Singh Dhesi, DSP Rural who reached at the spot and on reaching there DSP told the accused that he is a gazetted Officer and posted as DSP Rural and also told all the accused that he is having a suspicion that you are carrying some intoxicant in the truck and your truck is to be searched and the gunny bags to be searched and had further told that whether you all having faith on him or some other Gazetted Officer or Magistrate could be called at the spot but all the accused reposed confidence on him and offered for the search. Then DSP prepared consent memos ex. PD, Ex. PE, Ex. PF of accused Kuljit Singh, Surjit Singh and Baljit Singh respectively. Then DSP prepared consent memos ex. PD, Ex. PE, Ex. PF of accused Kuljit Singh, Surjit Singh and Baljit Singh respectively. Then on the direction of DSP, SI Bikramjit Singh had conducted the search and found that the truck contains 16 bags and on opening the bags si Bikamjit Singh found that these bags contain poppy husk and on weighing the gunny bags, each bag contains 40 kgs of poppy husk out of which two samples of 250/250 grams were drawn from each bag and their parcels were prepared and the remaining 39 kgs.500 grams in each bag were also sealed by SI Bikramjit Singh with his seal bearing impression bs" and that of DSP bearing impression ms. Then SI Bikramjit Singh handed over the seal after use to ASI Joginder Singh and the DSP had retained the seal with him.32 samples and the 16 gunny bags along with the truck were taken into possession vide recovery memo Ex. PG. Then ruqa Ex. PM through Constable Rajinder kumar for registration of case was sent on the basis of which FIR Ex. PN was recorded by ASI Massa Singh. Then SI Bikramjit Singh prepared the rough site plan Ex. PO. Then on further search of accused Surjit Singh Rs.250/- were recovered and memo to this effect Ex. PP was prepared. On personal search of accused Baljit Singh, Rs.250/- and one driving license were recovered and taken into possession vide memo Ex. PQ and nothing was recovered from accused kuljit Singh. Memo to this effect Ex. PR was prepared and same was attested by above said witnesses. Arrest memo of accused Ex. PH was prepared which was signed by the accused and attested by the above said witnesses. SI Bikramjit recorded the statement of witnesses. Then statements of the witnesses were recorded. Then SI Bikramjit Singh took the accused and case property to Police station Salem Tabri where ASI Massa Singh who was working as acting SHO at that time and produced the accused and the case property before him who had verified the facts and interrogated the accused and affixed his seal bearing impression ms and again handed over the truck, case property and accused and specimen of seal and deposited the case property with MHC Puran Singh. Sample was sent to the office of Chemical examiner and after receipt of the same and completion of investigation the challan was presented in the court for trial. " Learned counsel for the appellants have submitted that the appellants had been falsely involved in this case. There was no material on record to substantiate the fact that the appellants were in conscious possession of the contraband. Since the recovery of the contraband was effected after sun set, the recovery could not be effected without procuring search warrants. While recording statements of the appellants under Sec.313 Cr. P. C. it had not been specifically put to them that whether they were in conscious possession of the contraband. Learned counsel further submits that no independent witness had been examined by the prosecution. Learned State counsel, on the other hand, has submitted that the impugned judgment and order of conviction and sentence were liable to be upheld. 3 There is no force in the argument raised by learned counsel for the appellants that the accused were not specifically asked as to whether they were in conscious possession of the contraband when their statements under Sec.313 Cr. P. C. were recorded. A perusal of the statements of the accused recorded under Sec.313 Cr. P. C. reveals that it was specifically put to all the accused that on 1.1.2003, they along with their co-accused were apprehended in the area of village Bahadur Ke road and 16 bags, each containing 40 kgs of poppy husk, were recovered from their conscious possession which they were carrying in a truck bearing No. PAO 9357. 4. There is also no force in the argument raised by learned counsel for the appellants that the vehicle in question had been searched without any search warrant or authorisation. In the present case, admittedly, the search was effected at 7.30 p. m. i. e. after sun set. The search was conducted on the basis of a secret information. The appellants were found present in a truck in question along with the contraband. In case the Investigating Agency had started seeking search warrants, the appellants would have escaped. In the present case, admittedly, the search was effected at 7.30 p. m. i. e. after sun set. The search was conducted on the basis of a secret information. The appellants were found present in a truck in question along with the contraband. In case the Investigating Agency had started seeking search warrants, the appellants would have escaped. As per proviso to Sec.42 of the Act, if an officer has a reason to believe that a search warrant cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise. In the present case, if the Investigating Officer had gone for getting the search warrants of the accused, they would have escaped. Moreover, learned counsel for the appellants have failed to point out as to what prejudice had been caused to the accused. 5. In the present case the prosecution, in order to prove its case, examined PW-1 ASI Joginder Singh, PW-5 SI Bikramjit Singh and PW-6 DSP Manjit singh. The said witnesses have duly supported the prosecution case with regard to the recovery of contraband from the truck in which the appellants were found present. There is nothing on record to suggest that the link evidence in the present case was missing. The fact that independent witness has not been examined by the prosecution is not fatal to the prosecution case as the official witnesses, who were acting in discharge of their official duty, have duly supported the prosecution case. There is nothing on record to suggest that the official witnesses had any enmity against the appellants to have falsely involved them in this case. All the accused were apprehended at the spot along with the contraband, which was lying in the truck. Hence, they were in conscious possession of the contraband. The appellants were not in possession of any permit or licence which authorise them to carry the contraband in the truck. Hence, no ground for interference is made out. Accordingly, these appeals are dismissed.