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Punjab High Court · body

2010 DIGILAW 530 (PNJ)

Subhash v. State Of Haryana

2010-01-21

SABINA

body2010
Judgment SABINA, J. 1. The appellant was convicted for an offence under Sec.18 of the narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act- for short) vide judgment dated 12.12.2002 by the Additional Sessions Judge, Fatehabad. Vide order of the even date the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and a fine of Rs.1,00,000/-. Hence, the present appeal. 2. Prosecution case, as noticed by the trial Court in para Nos.2 and 3 of its judgment, is reproduced herein below:- "2. In short, the case of the prosecution is that on 16.4.1997 a police party consisting of SI Rajinder Kumar (PW-4), ASI Madal Lal, ASI Shiv Kumar, HC Ramesh chander, HC Kirori Mal, HC Rambhaj, HC Ramphal, HC Braham Parkash, C. Karan singh, C. Om Parkash and C. Virender Singh alongwith Mr. Bhup Singh, Naib tehsildar (PW-3) was present at Kaccha passage on Jandli Khurd-Jandli Kalan in connection with investigation of a case against one Prem son of Ram Sarup, Jat, resident of village Jandli Khurd, under Sec.18 of the Act. The present accused who was also nabbed by the police had disclosed his name and address. He was carrying a tin container. The police suspected him to be carrying some narcotic substance in it. Accordingly, a notice (Ex. PC) under Sec.50 of the act was served upon him. It was disclosed to him that search of the tin container was to be effected in the presence of Sh. Bhup Singh, Mali Tehsildar or in the presence of any other Magistrate or a Gazetted Officer as may so desired by the accused. Vide reply (Ex. PD) the accused had offered the tin container to be searched by Sh. Bhup Singh Godara, Naib Tehsildar. Accordingly, the tin container was opened. Opium wrapped in a polythene sheet was packed in it.50 grams of opium was taken out as sample. The remaining weighed 9 kg 950 grams. The sample was packed in a small tin box. The residue put back in the tin container. The sample and the residue were converted into separate sealed packets using the seal of BS and taken into possession vide memo (Ex. PE ). After use, the seal was handed over to Sh. Bhup Singh, Naib tehsildar (PW-3 ). 3. A ruqqa (Ex. PF) was sent to police station on the basis of which formal FIR (Ex. The sample and the residue were converted into separate sealed packets using the seal of BS and taken into possession vide memo (Ex. PE ). After use, the seal was handed over to Sh. Bhup Singh, Naib tehsildar (PW-3 ). 3. A ruqqa (Ex. PF) was sent to police station on the basis of which formal FIR (Ex. PF/1) was registered against the accused. A site plan (Ex. PG) of the place of recovery was prepared. The accused was arrested and subsequently released on bail. A report (Ex. PH) under Sec.57 of the Act was prepared and forwarded to DSP, Fatehabad. The sample was sent to the FSL and according to its report (Ex. PJ), the contents were found to be those of opium. A few statements under Sec.161, Cr. P. C. were recorded and after completion of usual investigations, challan was put in and a copy thereof was supplied to the accused. " 3. None has appeared on behalf of the appellant. On the three previous dates also nobody had appeared on behalf of the appellant. 4. I have gone through the record of the case carefully with the able assistance of the learned State counsel and of the opinion that the present appeal deserves to be dismissed. On 16.4.1997 SI Rajinder Kumar (PW-4) was present at the spot along with other police officials and PW-3 Bhup Singh Naib Tehsildar. Appellant came from village Jandli Khurd side carrying a tin container. The appellant was given an option (Ex. PC) to get his search conducted in the presence of the Naib Tehsildar or any Gazetted officer or Magistrate. The appellant opted to get his search conducted in the presence of the Naib Tehsildar Bhup Singh. On search opium was recovered from the tin container carried by the appellant.50 grams of opium was taken as a sample and the remaining opium on weighment came to 9 kg 950 gms. The articles were made into sealed parcels with seal bearing impression BS of Naib Tehsildar bhup Singh. The sample as well as remaining case property were taken into possession. The official witnesses were acting in discharge of their official duty and had no reason to falsely involve the appellant in this case. The appellant had not examined any witness in his defence. The sample as well as remaining case property were taken into possession. The official witnesses were acting in discharge of their official duty and had no reason to falsely involve the appellant in this case. The appellant had not examined any witness in his defence. Moreover, in the present case, the recovery was effected in the presence of the Naib Tehsildar and the sample and the case property were sealed with his seal. The Investigating officer, in his cross-examination, has deposed that he had tried to join independent witness but none had prepared to join. In these circumstances, the fact that no independent witness was joined at the time of alleged recovery is not fatal to the prosecution case. However, the quantity of opium recovered from the appellant falls under the category of commercial quantity. The prosecution had been successful in proving its case by examining the Investigating Officer and Naib Tehsildar Bhup Singh. The other witnesses examined by the prosecution had completed the chain of link evidence. The trial Court has, thus, rightly convicted and sentenced the appellant under section 18 of the Act. No ground for interference is made out. Accordingly, this appeal is dismissed.