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2013 DIGILAW 1191 (PNJ)

Jagdish v. State of Haryana

2013-09-04

ANITA CHAUDHRY, MUTTACI JEYAPAUL

body2013
JUDGMENT Anita Chaudhry, J. 1. The present appeal is directed against the judgment of conviction dated 24.01.2009 and order of sentence dated 29.01.2009 passed by Additional Sessions Judge, Sirsa in F.I.R. No. 57 dated 18.03.2006 registered under Section 15/16 of Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred as NDPS Act) registered at police station Sadar Dabwali, District Sirsa. Accused Jagdish was convicted for having in his possession 777 kgs of poppy straw. He was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1 lac under Section 15 of the NDPS Act. In default of payment of fine, he was to further undergo simple imprisonment for a period of one year. Accused Sewak Singh was convicted for having in his possession 1110 kgs of poppy straw and was sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 1 lac under Section 15 of the NDPS Act. In default of payment of fine, he was to further undergo simple imprisonment for a period of one year. The prosecution story as unfolded by the prosecution is that Inspector Shish Ram along with ASI Krishan Chander and other police officials were on patrol duty on Rajasthan Canal Bridge in the official vehicle when secret information was received that Dhanraj Bishnoi, Manjeet Singh, Gurpreet Singh, Jagdish Meghwal and Sewak Majhabi, residents of Abubshahar, were habitual in the illegal trade of poppy straw. The secret informer informed the officer that in the intervening night Dhanraj, Manjeet and Gurpreet had brought bags of poppy straw in a pickup van from Rajasthan and those had been unloaded in the houses of Sewak Majhabi and Jagdish Meghwal and the bags were still in their houses and if raid was conducted, the bags could be recovered. Believing the information to be true, a notice under Section 42 of the Act was prepared, which was sent by the Inspector to Raj Kumar, DSP through EHC Hanuman Singh. The Inspector formed a raiding party. Meanwhile, Daya Nand, Inspector CIA (II), Sirsa along with Inspector Jagat Singh and ASI Sita Ram who were called, reached in another vehicle, they were also apprised of the same information. The Inspector formed a raiding party. Meanwhile, Daya Nand, Inspector CIA (II), Sirsa along with Inspector Jagat Singh and ASI Sita Ram who were called, reached in another vehicle, they were also apprised of the same information. One party headed by Inspector Daya Nand was deputed to go towards Sewak's house while the other party headed by Inspector Shish Ram proceeded towards Jagdish's house. 2. The police party reached the house of Jagdish and it was noticed that one person was arranging the bags in a room. He was apprehended and he disclosed his name as Jagdish. The Inspector suspected that the bags contained contraband and notice Ex. PJ was served upon him. He was apprised of his right of getting the search effected before a gazetted officer or a Magistrate. Jagdish in his reply Ex. PJ/1 desired that the search be carried out in the presence of a gazetted officer. The DSP Raj Kumar was called. 3. DSP Raj Kumar along with his staff reached the spot. In his presence, 21 bags were checked and the bags were found to contain poppy straw. Two samples of 100 grams each were taken from every bag. The remaining poppy straw in each bag was found to be weighing 36 kgs 800 gms. The samples and the residue bags were sealed with the seal impressions 'SR' as well as with seal 'RK' of the DSP. The seal having impression 'SR' after its use it was handed over to ASI Krishan Chander by the Inspector while the DSP retained his seal. The recovery memo. Ex. PG was prepared, which was attested by Raj Kumar, DSP. ASI Krishan Chander along with constable were left on the spot and Inspector Shish Ram along with other police officials reached the house of accused Sewak. Inspector Daya Nand and other members of the party were already present there. One person was found sitting on the bags, who revealed his name as Sewak. Suspecting some contraband in the bags, notice Ex. PK was served upon him and he was apprised to his right of getting the search effected in the presence of a gazetted officer or Magistrate. Accused Sewak gave his reply Ex. PK/1 and desired that the search be carried out in the presence of a gazette officer. Notice and the reply were signed by the accused. PK was served upon him and he was apprised to his right of getting the search effected in the presence of a gazetted officer or Magistrate. Accused Sewak gave his reply Ex. PK/1 and desired that the search be carried out in the presence of a gazette officer. Notice and the reply were signed by the accused. DSP Raj Kumar was called at the spot and the bags were counted, which were 30 in numbers. Two samples of 100 gms each were separated from every bag and the remaining poppy straw in the bags were weighed, which were found to contain 36 kgs 800 gms. All the samples and residue bags were sealed with the seal of Shish Ram having impression 'SR' and with the sale of DSP Raj Kumar. A crowd had gathered outside, who were asked to join the investigation but they were unwilling to join the investigation. Ruqqa Ex. PL was sent to the police for registration of the case and the formal F.I.R. Ex. PL/1 was registered. Meanwhile, SI Dalip Singh, SHO, Police Station Sadar Dabwali reached the spot and both the accused and the case property was produced before him, who verified the facts and affixed his seal 'DS' on each parcel. A canter was arranged and case property was loaded and it was taken to the Court and produced before the Magistrate along with an application Ex. PO in terms of Section 52-A of the Act. 4. The case property was checked and the photographs were taken. Thereafter the case property was deposited in the malkhana along with the sample parcels and the specimen seal impressions. On receipt of the report of Forensic Science Laboratory (hereinafter referred as FSL) the accused were sent up to face trial. 5. Charge under Section 15 of the NDPS Act was framed against both the accused to which they pleaded not guilty and claimed trial. The prosecution examined eight witnesses. 6. The accused in their statements recorded under Section 313 Cr. P.C. pleaded false implication. 5. Charge under Section 15 of the NDPS Act was framed against both the accused to which they pleaded not guilty and claimed trial. The prosecution examined eight witnesses. 6. The accused in their statements recorded under Section 313 Cr. P.C. pleaded false implication. Both of them took the stand that they were taken into illegal custody by the police on 16.03.2006 from the bus stand and the pick-up van was brought by the police, which was in possession of three persons namely Manjit Singh, Dhanraj Bishnoi and Gurpreet Singh of their village and those people were let off under political pressure and they were falsely implicated and the police planted the recovery on them. In defence the accused had examined four witnesses. 7. The trial Court had convicted both the accused and sentenced them to the imprisonment mentioned hereinbefore. 8. We have heard the submissions made by learned counsel for the parties and perused the record carefully with their assistance. 9. The first contention made on behalf of the appellant was that it was a case of non-compliance of Section 42 as the raid had been effected after sun set and before sun rise and in the month of March, 2006 the sun rise is after 7.00 am and no warrant had been obtained to conduct the raid and it has come in the statement of police officials that the raid was conducted between 6.00 am to 6.30 am. It was urged that the accused were not in conscious possession and there is no evidence that the houses from where the recovery was allegedly effected were owned by them and the panch and Lamberdar of the village have deposed that they did not own any property in the said village. It was urged that the samples were taken to the FSL on 20.03.2006 but they were brought back on 27.03.2006 and there is a discrepancy in the statement made by the prosecution witnesses. Reference was made to the statement of EHC Mahinder Singh and it was pointed out that the witnesses had stated that HC Kailash Chander had taken the sample on 20.03.2006 and he brought the same back on 27.03.2006 and the same were sent back again on the same day whereas HC Kailash Chand in his statement Ex. DB had given different dates. DB had given different dates. It was urged that these two witnesses were examined by the Court after the defence had completed its evidence and were called by Court orders. It was contended that no independent witness was joined nor any effort was made by the police as public persons are respectables of the village were available at the spot. It was contended that the official witnesses have deposed that the accused were arrested on 16.03.2006, which supports their defence and recovery was effected from some other accused and it was planted upon them by framing another story. 10. On the other hand, learned counsel representing the State has submitted that the recovery is so heavy, which cannot be planted and the case of prosecution has been duly proved and the judgment and sentence passed by the trial Court was well reasoned and the appeal be dismissed. 11. The prosecution version has been unfolded by Shish Ram Inspector - PW-7, who in his statement, had deposed that he along with ASI Krishan Chander No. 440-H, ASI Krishan Chander, HC Raja Ram and other police officials were on patrol duty near the Rajasthan Canal Bridge situated on Chetak Road when secret information was received by name, which included the name of Jagdish and Sewak resident of Abuhshahar that they used to indulge in the sale of poppy straw and contraband had been brought in the intervening night of 17/18.03.2006 at about 1.00 am. He had stated that they had specific information that the contraband had been brought in a pick-up van and the bags had been unloaded in the houses of Sewak and Jagdish. The investigating officer in his statement had deposed that compliance of Section 42 of NDPS Act was made and information was sent through EHC Hanuman Singh to the senior officer and two parties were prepared and one party headed by Inspector Daya Nand went to guard the house of Sewak Singh while rest of them reached the house of Jagdish. The witnesses have spoken about the notices that were served under Section 50 of the NDPS Act and about the recovery and drawing of samples. The samples and the residue were sealed in the presence of Raj Kumar, DSP. The witnesses have also spoken about the visit made to the house of Sewak after completing the formalities. The witnesses have spoken about the notices that were served under Section 50 of the NDPS Act and about the recovery and drawing of samples. The samples and the residue were sealed in the presence of Raj Kumar, DSP. The witnesses have also spoken about the visit made to the house of Sewak after completing the formalities. They stated that they had gone to the house of Sewak and suspecting contraband in the kotha. Notice was served and accused was apprised of his right to the search to be effected before a gazetted officer and as the accused had desired his search in the presence of a gazetted officer, his consent was taken and Raj Kumar, DSP who was standing in the crowd, was called and in his presence bags were checked and samples were drawn and were sealed. Sample seals were also retained. 12. The statement made by Shish Ram, Inspector - PW-7 gets support from the statement made by Dalip Singh, SI-PW-3, Raj Kumar, DSP - PW-6 and Krishan Chander, ASI - PW-8. The prosecution had also examined Kailash Chand, HC - PW-4 and tender his affidavit Ex. PD in the evidence. 13. Since there was a discrepancy in the affidavit, therefore the Court had summoned Mahinder Singh, ASI and specific question was put to him about the dates on which the samples were handed over by him to the MHC and the date on which the samples were deposited. Sh. Atma Ram, ASI was also summoned to clarify the dates. It becomes clear from the statements made by CW-1 and CW-2 that the samples had been deposited on 18.03.2006 and they were sent to the FSL, Madhuban on 20.03.2006 but they were returned and deposited with MHC on 21.03.2006 and they were again sent to FSL, Madhuban on 27.03.2006. There was also an error in the statement made by Atma Ram, ASI with respect to the belt number of EHC Mahinder Singh. The witness has explained in his statement made on 18.11.2008 that the number was wrongly typed as 1193 and the correct number of EHC was 1171. 14. The accused in his defence had examined Om Parkash, Lamberdar of village Abubshahar, who proved his certificate Ex. The witness has explained in his statement made on 18.11.2008 that the number was wrongly typed as 1193 and the correct number of EHC was 1171. 14. The accused in his defence had examined Om Parkash, Lamberdar of village Abubshahar, who proved his certificate Ex. DB & DE given by him to the effect that accused Jagdish and Sewak did not have any house or plot in the revenue estate of village Abubshahar but his statement gets totally demolished when in the cross-examination he admitted that both the accused used to live in village Abubshahar. This witness had spoken about the quarrel between Jagdish and Sewak Singh on 16.03.2006 and the witness had stated that both of them were taken into the police station and thereafter a false case was lodged. Similar statement was made by Jagsir Singh - DW-3 and Gurdev Singh - DW-4 but they admit that they did not make any complaint to the senior police officials to get the matter enquired regarding their false implication. 15. The main contention raised on behalf of the appellants was that it was a case of non-compliance of Section 50 of the NDPS Act as raid was effected after sun-set and before sun-rise and no warrant had been obtained, which is the requirement of law. The counsel for the appellants had referred to the statement made by Shish Ram, Inspector - PW-7 but on perusal of the statement made by Shish Ram, Inspector shows that he had reached the house of Jagdish between 6.00 am to 6.30 am. He stated that the DSP Raj Kumar came at about 7.15 am and notice under Section 50 of the NDPS Act had been given prior thereto and thereafter the raid was effected. The raid was conducted after sun-rise and therefore, this plea is not available and argument is rejected. 16. The raiding party comprised of number of officials. The investigating officer had received the secret information when he was near Chetak Road. Both the houses of the appellants were situated on the same street. Though the accused had tried to garner help of the respectables of the village who came forward to depose that both the accused did not own any house or property in the village but they have admitted the fact that they were residents of the village. Their statements are of no help. Though the accused had tried to garner help of the respectables of the village who came forward to depose that both the accused did not own any house or property in the village but they have admitted the fact that they were residents of the village. Their statements are of no help. The police officials did not have any enmity against them and the statements of the official witnesses cannot be rejected solely on account of their official status specially when nothing could be brought on record to show that there was any previous enmity. The appellants were not able to lead any evidence to show that the recovery was effected from three other persons and it had been planted upon them by the police. Had it been so and since there was support from the respectables of the village, had the recovery been effected from some other people all of them would complained to the senior police officials. In the absence of any complaint, inquiry or convincing evidence, it is impossible to accept the plea of the appellants. 17. The accused were found to be in conscious possession and Section 54 of the NDPS Act raises a presumption and it is for the accused who had to prove it. The prosecution had proved the basic facts beyond reasonable doubt that the contraband was in the exclusive and conscious possession of the appellants. The presumption contained in Section 54 of the NDPS Act would arise. The guilt of the appellants had been very well established in this case. The police had complied with the provision contained in Section 42 of the NDPS Act and it has been established on the record. Before carrying out the search compliance of Section 50of the NDPS Act had also been made. The appellants were unable even to show that there was any other family members in the house at that point of time. The accused were in exclusive possession of the property. The search was conducted in the presence of DSP Raj Kumar, who was a senior police officer, who had also put his seal on the samples and the residue parcels. The parcels were deposited with the MHC on the same evening. The MHC had deposed that the case property remained intact as long as it remained with him. The search was conducted in the presence of DSP Raj Kumar, who was a senior police officer, who had also put his seal on the samples and the residue parcels. The parcels were deposited with the MHC on the same evening. The MHC had deposed that the case property remained intact as long as it remained with him. The samples that had reached the office of chemical examiner had the seals intact and there was no tampering. 18. As regards the non-joining of independent witnesses are concerned, it had been explained by the official witnesses that no one was ready to join the raid against fellow villagers and that statement can be accepted as it has been seen that no one would like to depose against their own people on account of social pressure. The Investigating Officer had made genuine efforts to join independent witness. No material was placed on record so as to impel this Court to construe that the appellants could be falsely implicated in a serious case in the NDPS Act. The appellants tried to build a case that they were falsely implicated and their plea was that the recovery was effected from other three persons to whom the police had not challaned but they failed to lead any evidence. No complaint was made to the senior police officers in this regard nor any protest was made before SDM or Deputy Commissioner of the area. The defence raised by the appellant is not such so as to create a doubt regarding the prosecution version. We do not find any reason to disbelieve the official witnesses even in the absence of any corroboration from independent witnesses. 19. For the foregoing reasons and discussion, we do not find any infirmity in the findings recorded by the trial Court and the same are confirmed. 20. As regards the quantum of sentence, the argument put forth on behalf of the accused Sewak Singh was that sentence was on the higher side and there was a prayer for reduction of the sentence. 21. Keeping in view the facts and circumstances of the case, we confirm the conviction and reduce the sentence awarded to appellant Sewak Singh from 12 years to 10 years considering the quantum of contraband while maintaining the sentence awarded to accused Jagdish. The appeal stands dismissed with the above modifications. Lower Court records be sent back. Appeal dismissed.