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2010 DIGILAW 2812 (PNJ)

Bagga Singh v. State Of Punjab

2010-10-01

RAM CHAND GUPTA

body2010
Judgment Ram Chand Gupta, J. 1. The present appeal has been filed against judgment of conviction and order of sentence dated 17.11.2006, passed by learned Special Judge, Moga, whereby it convicted the appellant-accused under Section 15(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as the `NDPS Act) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1 lac and in default of payment of fine to further undergo rigorous imprisonment for a period of one year in FIR No. 57, dated 17.4.2003, under Section 15 of the NDPS Act, Police Station Dharamkot, District Moga. 2. Briefly stated the case of prosecution is that on 17.4.2003, Gamdoor Singh SI, SHO, Police Station Dharamkot alongwith Darshan Singh ASI and other police officials was present at bus stand of village Kot Mohammad Khan. He received a secret information that accused Bagga Singh and Salwinder Singh sons of Mukhtiar Singh, residents of village Kot Mohammad Khan were sitting in the dry drain and selling poppy husk and if raid is conducted they could be nabbed with poppy straw. As the secret information was reliable, Gamdoor Singh, SI sent ruqa to the police station, on the basis of which formal FIR for offence under Section 15 of the NDPS Act was registered against the accused. 3. Gamdoor Singh, SI alongwith police officials proceeded towards the disclosed place and on the way he joined Bahal Singh, an independent witness, in the policy party. They found accused Bagga Singh and Salwinder Singh sitting on one bag each lying in the drain. However, on seeing the policy party Salwinder Singh accused succeeded in running, whereas appellant-accused Bagga Singh was nabbed at the spot. Gamdoor Singh SI, informed accused Bagga Singh that he was to be searched and that he could opt his search in the presence of a Magistrate or a gazetted officer. Accused Bagga Singh opted to be searched in the presence of a gazetted officer, regarding which a memo was prepared. The Sub Inspector called Nachhattar Singh, DSP, Dharamkot, at the spot through wireless. DSP Nachhattar Singh introduced himself to accused Bagga Singh and thereafter Gamdoor Singh, SI on direction of DSP, conducted search of the bags. Sub Inspector took out two samples of 250 grams from each of the bags of poppy husk and converted the same into separate parcels. The Sub Inspector called Nachhattar Singh, DSP, Dharamkot, at the spot through wireless. DSP Nachhattar Singh introduced himself to accused Bagga Singh and thereafter Gamdoor Singh, SI on direction of DSP, conducted search of the bags. Sub Inspector took out two samples of 250 grams from each of the bags of poppy husk and converted the same into separate parcels. The remaining poppy husk in the bags was weighed and each of the bag was found containing 29 kgs 750 gms of poppy husk. Both the sample parcels and the bags containing residue of poppy husk were sealed with the seals `GS and `NS of Gamdoor Singh and Nachhattar Singh, DSP. Separate memos of samples of seals were also prepared. Gamdoor Singh, SI handed over his seal to independent witness Bahal Singh, whereas DSP retained the seal with him. Gamdoor Singh SI had taken into possession all the sealed parcels by preparing separate recovery memo. From personal search of accused a sum of Rs.60/- was recovered and separate memo was prepared. Grounds for arrest were also disclosed to accused Bagga Singh and arrest memo was also prepared. Sub Inspector also prepared rough site plan of place of occurrence and recorded statements of witnesses. He also sent special report of the case to DSP. The accused was produced before learned Magistrate, who passed the retention order. Later on accused Salwinder Singh was also arrested. 4. On completion of investigation, challan under Section 173 Cr.P.C. was filed against both the accused for their trial for the offence punishable under Section 15(c) of the NDPS Act. 5. Learned trial Court after complying with provisions of Section 207 Cr.P.C. framed charge under Section 15(c) of the NDPS Act against both the accused, to which they did not plead guilty and claimed trial. 6. In order to substantiate the allegations against the accused, prosecution examined as many as six witnesses. 7. PW 1 is Darshan Singh ASI, one of the eye witnesses of the occurrence. He deposed that on 17.4.2003, he alongwith Pritam Singh HC, Kaur Singh HC and other police officials was present with Gamdoor Singh, SI, Police Station Dharamkot and that while they were on patrol duty, Gamdoor Singh SI received secret information that both the accused were selling poppy husk towards the eastern side of village Kot Mohammad Khan in drain and if raid is conducted they could be apprehended red handed. Further deposed that ruqa was sent by Gamdoor Singh SI for registration of the case and thereafter they started towards disclosed place and on the way Bahal Singh son of Mangal Singh was joined in the raiding party. He again deposed that both the accused found sitting on two gunny bags in the drain. He again deposed that accused Salwinder Singh managed to escape, whereas Bagga Singh was apprehended at the spot. He again deposed that both the bags were checked by Gamdoor Singh SI. He further deposed that Gamdoor Singh SI informed the accused Bagga Singh of his right for getting the bag searched in the presence of some gazetted officer and he prepared memo Ex.P1 in this regard. Further deposed that Gamdoor Singh SI called DSP Dharmakot, who reached the spot and thereafter search was conducted by Gamdoor Singh SI and on search both the bags were found containing poppy husk and 250 grams of poppy husk was separated from each bag as sample and the remaining bags were found weighing 29 kg 750 grams each. He again deposed that both the bags and samples were sealed with the seals of `GS and `NS and the separate seal impression was also prepared, which is Ex.P2. He again deposed that while DSP retained his seal with himself, however, the other seal was handed over to Bahal Singh-PW. All the sealed parcels were taken into possession vide recovery memo Ex.P3, which was attested by him, and Bahal Singh PW, Sukhjeet Singh HC and Nachhattar Singh DSP. He also deposed that on search of accused currency notes of Rs.60/- were recovered and separate memo of recovery was prepared in this regard. 8. PW 2 is Constable Devinder Singh, who was a formal witness, and who has tendered in evidence his duly sworn affidavit, Ex.P5. 9. PW 3 is Jagsir Singh MHC, who is also a formal witness and who has also tendered in evidence his duly sworn affidavit Ex.P6. 10. PW 4 is Jalour Singh SI, who had partly investigated this case. On 8.6.2003, he recorded statement of Gamdoor Singh SI, MHC Jagsir Singh, and Devinder Singh Constable. He arrested the accused Salwinder Singh on 21.7.2003 and grounds of arrest were informed to him vide memo Ex.P7. He also prepared arrest memo Ex.P8. He also recorded the statement of Anil Kumar HC on 26.7.2003. On 8.6.2003, he recorded statement of Gamdoor Singh SI, MHC Jagsir Singh, and Devinder Singh Constable. He arrested the accused Salwinder Singh on 21.7.2003 and grounds of arrest were informed to him vide memo Ex.P7. He also prepared arrest memo Ex.P8. He also recorded the statement of Anil Kumar HC on 26.7.2003. He had produced both the gunny bags duly sealed with seals bearing impressions GS and NS vide memo Ex.P9. He further deposed that two representative samples each weighing 250 gms were drawn from each of the gunny bag by the Magistrate and were sealed with the seal of the Court and the photographs were also taken by Anil Kumar, photographer. He further deposed that Judicial Magistrate Ist Class, Moga, passed the order Ex.P10. 11. PW 5 is Gamdoor Singh SI, i.e., Investigating Officer of this case, who deposed regarding the whole case of prosecution, as detailed above. 12. He further deposed that he produced accused alongwith case property before learned Magistrate vide request Ex.P15, on which learned Magistrate passed the order Ex.P15/A for depositing the case property in the police malkhana and that he had deposited the gunny bags with MHC Jagsir Singh. He also deposed that he prepared the docket Ex.P16 at the time of handing over the sample parcels and the sample seal to Devinder Singh Constable for depositing the same in the office of Chemical Analyst. 13. In the cross-examination his attention was drawn to statement Ex.DA, wherein it has been mentioned that only one sample parcel was taken from the MHC and handed over to Devinder Singh Constable. He clarified in the cross- examination that as per his investigation one bag was recovered from accused Bagga Singh and the other bag was recovered from escaped accused Salwinder Singh. He further clarified that bag No. 1 was recovered from accused Bagga Singh and bag No. 2 was recovered from escaped accused Salwinder Singh. 14. PW 6 is Nachhattar Singh DSP, in whose presence the bags were searched and poppy husk was recovered from both the accused. In the cross-examination he has clarified that in the recovery memo it was written that one bag was recovered from Bagga Singh and another bag was recovered from escaped accused Salwinder Singh. He also clarified that bag recovered from Bagga Singh was given serial No. 1 and whereas bag recovered from escaped accused was given serial No. 2. 15. In the cross-examination he has clarified that in the recovery memo it was written that one bag was recovered from Bagga Singh and another bag was recovered from escaped accused Salwinder Singh. He also clarified that bag recovered from Bagga Singh was given serial No. 1 and whereas bag recovered from escaped accused was given serial No. 2. 15. Statements of both the accused in terms of Section 313 Cr.P.C. were recorded, in which they denied the incriminating evidence coming against them and pleaded innocence. 16. Plea has been taken by appellant-accused Bagga Singh that police had taken him from his house and he has been falsely implicated in this case. Accused Salwinder Singh had also taken the plea that he has been falsely implicated in this case and that the witnesses of prosecution are the official witnesses and hence they are the interested witnesses. However, no evidence was led in defence by any of the accused. 17. After hearing learned Public prosecutor for the State and learned counsel for the accused, learned Special Judge, Moga convicted the appellant-accused Bagga Singh for offence under Section 15(c) of the NDPS Act and sentenced as aforementioned. However, accused Salwinder Singh was acquitted of the charge framed against him by giving the benefit of doubt on the plea that prosecution has failed to prove the case against him beyond any reasonable doubt. 18. I have heard learned counsel for the parties and have gone through the whole record carefully. 19. It has been argued by learned counsel for the appellant-accused that as per case of prosecution one sample each was drawn from both the bags and that Gamdoor Singh SI handed over two sample parcels to Constable Devinder Singh for depositing the same in the office of Chemical Analyst. However, in statement Ex.DA, made before Jalour Singh, SI, he stated that only one sample parcel was handed over by him to Constable Devinder Singh for depositing the same in the office of Chemical Examiner. However, this discrepancy in the case of prosecution has been duly considered by learned trial Court and discussed. There seems to be a clerical error in recording statement Ex.DA. There is other evidence also in this case to prove the fact that two samples were handed over by Gamdoor Singh, SI to Devinder Singh Constable for depositing the same in the office of Chemical Examiner. There seems to be a clerical error in recording statement Ex.DA. There is other evidence also in this case to prove the fact that two samples were handed over by Gamdoor Singh, SI to Devinder Singh Constable for depositing the same in the office of Chemical Examiner. PW 3 Jagsir Singh MHC had also deposed that on 21.4.2003, two sample parcels bearing seal marks GS and NS were handed over to Constable Devinder Singh for depositing the same in the office of Chemical Examiner and that he had taken out two sample parcels on that day from the Malkhana and handed over the same to Gamdoor Singh SI. Statement of PW 3 Jagsir Singh MHC is further corroborated by statement of PW 2 Constable Devinder Singh, who has also deposed that he was handed over two sample parcels duly sealed with seals of GS and NS by SHO. Their depositions further find corroboration from documentary evidence, i.e., CFSL form, Ex.P16, which was also prepared on 21.4.2003, under the signatures of Gamdoor Singh SI, wherein as well it was mentioned that two sample parcels each containing 250 grams of poppy straw bearing seals of GS and NS were handed over by the SHO to Constable Devinder Singh. 20. Even Gamdoor Singh SI had deposed that he had handed over two sample parcels to Constable Devinder Singh, after taking the same from Jagsir Singh MHC. Perusal of Chemical Examiner Report Ex.P17 also shows that two sample parcels were deposited by Devinder Sigh Constable in the office of Chemical Examiner alongwith sample of seals chit and the seals were found tallying with the sample of seals chit and hence, there is no force in the argument of learned counsel for the appellant-accused that link evidence in this case is not complete. 21. It has been further contended by learned counsel for the appellant-accused that case of prosecution is based on deposition of official witnesses only and that though an independent witness was joined in the investigation and however, he has not been examined by the prosecution and hence, no reliance should be placed upon testimony of official witnesses alone. 22. However, there is no force in this argument of learned counsel for the appellant-accused. 22. However, there is no force in this argument of learned counsel for the appellant-accused. The Investigating Officer had joined an independent witness before conducting the search and however, he was given up as having been won over by the accused by learned public prosecutor for the State and hence not examined. Hence, merely on the ground that independent witness has been won over by the accused and hence he did not appear in the witness box to depose regarding case of prosecution, it cannot said that no reliance can be placed upon deposition of official witnesses alone. 23. It is settled law that in case of deposition of official witnesses, the Court is put on guard to scrutinize the same carefully and cautiously and after careful scrutiny if it comes to the conclusion that the same does not suffer from any serious infirmity, the same can be believed. In Akmal Ahmed v. State of Delhi, 1999 (2) RCR (Criminal) 265, it was held that it is now well settled that the evidence of search or seizure made by the police, will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi v. Sunil, 2001(1) RCR (Criminal) 56, it was observed as under :- "It is an archaic notion that actions of the police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The officials acts of the Police have been regularly performed is a wise principle of presumption and recognised even by the Legislature." 24. In Appa Bai and another v. State of Gujarat, AIR 1988 SC 696, it was observed that the prosecution story cannot be thrown out, on the ground that an independent witness has not been examined by the prosecution as the civil people are generally insensitive when a crime is committed even in their presence and they keep themselves away from the court unless it is inevitable. 25. In this case deposition of police officials is consistent on all the material points. 25. In this case deposition of police officials is consistent on all the material points. No material discrepancy has come in the deposition of the witnesses on the basis of which any doubt is created on the veracity of the prosecution story. Hence, there is nothing as to why sworn testimony of police officials, who were acting in discharge of their official duties be disbelieved. 26. Learned counsel for the appellant-accused has vehemently argued that as per case of prosecution appellant-accused and co-accused were sitting on one bag each. It is further contended that this fact has also been clarified by Gamdoor Singh SI as well as by the DSP. It has further been contended by learned counsel for the appellant -accused that even as per case of prosecution one bag each containing 30 kg of poppy husk was recovered from the possession of accused Bagga Singh and Salwinder Singh. He has also referred to cross-examination of PW 5 Gamdoor Singh SI, in which he specifically deposed that one bag was recovered from accused Bagga Singh and the other was recovered from escaped accused Salwinder Singh. He also clarified that bag recovered from Bagga Singh was given serial No. 1 and bag recovered from accused Salwinder Singh was given serial No. 2. He has further contended that even Nachhattar Singh,DSP has also clarified in the cross-examination that as per recovery memo one bag was recovered from accused Bagga Singh and another was recovered from escaped accused Salwinder Singh and that bag recovered from Bagga Singh was given serial No. 1, whereas bag recovered from Salwinder Singh was given as serial No. 2. Hence it is contended that trial Court has committed illegality in coming to the conclusion that 60 kg of poppy husk was recovered from the possession of appellant-accused, while acquitting co- accused Salwinder Singh on the plea that his identity could not be established. It is contended that the identity of escaped accused could not be identified and Salwinder Singh was acquitted, and hence the recovery alleged to have been effected from appellant-accused -Bagga Singh comes to only 30 kg of poppy husk, which is non-commercial. 27. There is force in this argument of learned counsel for the appellant- accused. It is contended that the identity of escaped accused could not be identified and Salwinder Singh was acquitted, and hence the recovery alleged to have been effected from appellant-accused -Bagga Singh comes to only 30 kg of poppy husk, which is non-commercial. 27. There is force in this argument of learned counsel for the appellant- accused. This is case of prosecution that appellant -accused Bagga Singh and co-accused Salwinder Singh were sitting on one bag each and Salwinder Singh escaped, whereas Bagga Singh was apprehended at the spot. Both the witnesses, i.e. PW 5 Gamdoor Singh SI, the Investigating Officer of the case and PW 6 DSP Nachhattar Singh also clarified in their respective cross-examinations that one bag each was recovered from both the accused. They have also given separate numbers to both the bags and even as per recovery memo one bag each was recovered from the possession of appellant-accused Bagga Singh and co- accused Salwinder Singh. Hence, appellant-accused can be said to be in possession of only one bag containing 30 kg of poppy husk. On these facts, it cannot be said that accused -Bagga Singh was in possession of both the bags of poppy husk. Hence, prosecution has only been able to prove recovery of one bag of containing 30 kg of poppy husk from the possession of appellant-accused- Bagga Singh. 28. So far as factum of conscious possession of appellant-accused Bagga Singh of bag containing 30 kg of poppy husk is concerned, once it is proved that he was having in his possession bag containing 30 kg of poppy husk as he was sitting on the same, then presumption under Sections 54 and 35 of the NDPS Act operates against him and he is said to be in conscious possession of the same. In Madan Lal v. State of H.P., 2004(1) Apex Criminal 426 : 2003(4) R.C.R.(Criminal) 100 : 2003 SCC (Crl.) 1664 it was held as under:- "The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from the possession of illicit articles." 29. No other point has been urged by counsel for the appellant. In view of the above discussion, I am of the view that learned trial Court has erred in coming to the conclusion that appellant-accused was in possession of 60 kg of poppy husk, rather prosecution has been able to prove that appellant-accused Bagga Singh was in possession of only 30 kg of poppy husk. Hence judgment of conviction against appellant-accused Bagga Singh passed by learned trial Court is modified to this extent and the conviction is converted for offence under Section 15(b) of the Act instead of Section 15(c) of the Act. 30. So far as quantum of sentence is concerned, it has been contended by learned counsel for the appellant-accused that 30 kg of poppy husk under the NDPS is non commercial quantity. He further contends that appellant-accused is not a previous convict and that he has already undergone about three years and ten months of the sentence. It has further been contended that he has been facing trial in this case since the year 2003, i.e., for the last about seven years. Hence, it is contended that a lenient view in the matter of sentence may be taken. 31. I have considered all the facts of the case. 32. As already discussed above, appellant-accused was found in conscious possession of 30 kg of poppy husk only, which is noncommercial quantity. Hence, there is force in the argument of learned counsel for the appellant- Bagga Singh that he deserves some concession in so far as quantum of sentence is concerned. 33. Hence, the order of sentence passed by learned trial Court is modified to the extent that appellant-accused is sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.25,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months. 34. 33. Hence, the order of sentence passed by learned trial Court is modified to the extent that appellant-accused is sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.25,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months. 34. The present appeal is disposed of with the modification in the judgment of conviction and order of sentence passed by learned trial Court to the extent indicated above. 35. The Chief Judicial Magistrate, Faridkot, shall take necessary steps to comply with the judgment of this Court with due promptitude, keeping in view the applicability of provisions of Section 428 Cr.P.C. 1.10.2010 (Ram Chand Gupta).