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2014 DIGILAW 1232 (PNJ)

Ramesh Kumar v. State of Haryana

2014-08-27

JITENDRA CHAUHAN

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Jitendra Chauhan, J. 1. This present appeal is directed against the judgment dated 17.11.2003, and the order dated 18.11.2003, passed by the Presiding Officer, Special Court, Kurukshetra, vide which the accused-appellant has been convicted for having been found in possession of 450 grams opium, without having any valid permit or licence and sentenced to undergo rigorous imprisonment and to pay a fine as under:-- Name of accused person Under Section Sentence awarded In Default of fine Rames18 of N.D.P.S. Act R.I for six months and to pay a fine of Rs. 10,000/-Imprisonment for one month. The facts of this case are taken from para No. 2 of the judgment of the trial Court which are as under:-- On 13.04.1998, ASI Dharambir Singh along with Head Constable Om Parkash, Head Constable Surender Singh and constables Kaptan Singh, Rajbir Singh, Shamsher Singh were going towards Rattangarh on G.T. Road, in government vehicle, in connection with patrolling. When they reached near the vacant land of the Miri Piri Medical College, a person, on seeing the Police Gypsy ran towards the gate of Medical College and he was overpowered by the police party. On enquiry, he disclosed his name as Ramesh Kumar son of Dayal Chand, resident of Rattangarh. Ramesh Kumar was having a polythene of blue colour in his right hand. On having suspicion of some contraband in the polythene, notice under Section 50of the Act was served upon the accused seeking his option whether he would like the search to be conducted in the presence of a Gazetted Officer, Magistrate or the ASI himself. The accused replied that he wanted the search to be conducted by the ASI himself. In the meantime one Surinder Singh son of Surjit Singh came on scooter from the side of Shahabad and who after apprising the facts of the case was joined in the police party. On search of the polythene opium was recovered wrapped in a white colour another polythene. On weighment, the opium turned out to be 450 grams. 50 grams of opium was separated as sample and separate parcels were prepared and after sealing the same with seal bearing impressions 'DS', were taken into possession vide recovery memo which was signed by the witnesses. The seal after use was handed over to Head Constable Surinder Singh. On the basis of said recovery, Ruqa was sent to police station for registration of case. The seal after use was handed over to Head Constable Surinder Singh. On the basis of said recovery, Ruqa was sent to police station for registration of case. During investigation, statements of the witnesses were recorded and after apprising the grounds of arrest, accused was arrested. The accused was produced before Mam Chand, SI/SHO on the same day who after verifying the facts affixed his seal bearing impressions MCW on the parcels. On completion of investigation, the challan was presented against the accused in the Court for trial. The documents as relied upon by the prosecution were supplied to the accused as required under Section 207 Cr.P.C. 2. Learned Addl. Sessions Judge, after going through the record, framed charge under Section 18 of the N.D.P.S. Act against the accused, to which he pleaded not guilty and claimed trial. 3. The prosecution in order to bring home the guilt of the accused examined 9 witnesses namely Manoj Kumar PW1, ASI Hem Chander PW2, Head Constable Om Pal PW3, Head Constable Jagidsh Chand PW4, Constable Rajbir Singh PW5, SI Gulab Singh PW6, Head Constable Surender Singh PW7, ASI Dharambir PW8 and Inspector Mam Chand PW9. Report of FSL Ex. PJ was also tendered. 3A. After closure of the prosecution evidence the accused was examined under Section 313 Cr.P.C. and all the incriminating evidence was put to the accused, to which he denied and pleaded false implication. The accused has stated that on 12.04.1998, he was picked up from his house in connection with excise checking and on the next day this false case was planted upon him. He was called upon to lead evidence in defence and examined Surinder Singh as DW1. 4. The learned trial Court after appraisal of the evidence convicted and sentenced him to undergo rigorous imprisonment and to pay a fine as narrated above. 5. Feeling dis-satisfied with the aforesaid judgment dated 17.11.2013 and order dated 18.11.2013, the accused-appellant Ramesh Kumar has preferred the present appeal. 6. It is contended that no recovery was effected from the accused on the spot. It is clear from the contents of FIR that the appellant was apprehended merely on the basis of suspicion and the I.O was already aware of this fact that he was in possession of opium. 6. It is contended that no recovery was effected from the accused on the spot. It is clear from the contents of FIR that the appellant was apprehended merely on the basis of suspicion and the I.O was already aware of this fact that he was in possession of opium. It is further asserted that only independent witness Surinder Singh, who was not examined as having been won over by the accused-appellant later on appeared as a defence witness and stated that he was not present at the place of occurrence and nothing was recovered from the accused-appellant. The I.O. had not complied with the provision of Section 50 of the N.D.P.S. Act. As per the provision of Section 50 of the N.D.P.S. Act, search was to be made in the presence of a Gazetted officer or a Magistrate, which has not been done in the instant case. Furthermore, the consent memo, reply, jamatalashi, notice under Section 52 was not signed by Surinder Singh only the recovery memo was signed by him. 7. On the other hand, the learned Deputy Advocate General, Haryana appearing for the respondent-State argued that the case of the prosecution has been duly proved by the PWs. The accused-appellant was apprehended at the spot and the recovery of opium was effected from his possession. Therefore, he argued that there is no merit in the appeal and it should be dismissed. 8. I have heard learned counsel for the parties and perused the record. 9. The testimony of Police an official is as good, as that of an independent witness. They have no enmity or motive against the appellant to falsely implicate him. In the present case, the appellant has not alleged any malafide or proved any enmity or motive of the Police officials to falsely implicate him. The Court cannot start with the presumption of mistrust against the Police officials especially when there is no enmity or motive of the Police officials against the appellant. A perusal of the evidence on record also does not show that the appellant is innocent or has been falsely implicated in the present case. As already discussed, there is no enmity or motive of the Police officials, therefore, the question of false implication does not arise. 10. A perusal of the evidence on record also does not show that the appellant is innocent or has been falsely implicated in the present case. As already discussed, there is no enmity or motive of the Police officials, therefore, the question of false implication does not arise. 10. From the perusal of the evidence it reveals that PW 7, H.C. Surender Singh and PW8, ASI Dharambir had apprehended the accused on the basis of suspicion. During investigation his identity was set up. A notice under Section 50 of the Act was served and the accused-appellant himself opted that his search might be conducted in the presence of Investigating Officer and 450 grams of opium wrapped in a polythene bag was recovered from the right hand of the accused. 11. The learned trial Court framed three questions for determination which are as under:-- "1. Whether the provisions of Section 50 of the Act are attracted? 2. As to whether the accused was apprehended on the basis of prior information so as to attract the provisions of Section 42 of the Act or it was a chance recovery? 3. As to whether the defence version is probabilise?" While deciding point No. 1 learned trial Court referred the law laid down by Hon'ble Apex Court in State of Punjab v. Baldev Singh, 1993(3) RCR (Criminal) 533, wherein, it has been held that when the recovery of contraband was not effected from the person of accused then the provisions of Section 50 of the Act were not attracted. Therefore, in the instant case also the provisions of Section 50 of the Act were not attracted and as such, the compliance thereof would not affect the prosecution case in any way. With regard to point No. 2 the trial Court found that no prior secret information was received but the accused was apprehended on the basis of suspicion and on checking the contents of polythene bag 450 grams of opium was recovered from the accused-appellant without having any permit or licence. With regard to point No. 3, the trial Court found that it is admitted fact that independent witness Surinder Singh was given up before the trial Court, but, he admitted the fact of appending signature on recovery memo Ex. PG. 12. With regard to point No. 3, the trial Court found that it is admitted fact that independent witness Surinder Singh was given up before the trial Court, but, he admitted the fact of appending signature on recovery memo Ex. PG. 12. The recovery effected from the appellant is 450 grams of opium, which is a small quantity and the PWs, the Investigating Officer along with the other witness have consistently deposed regarding the prosecution evidence. It has been proved on record that the mandatory provisions of the Act have also been complied with. Therefore, from the evidence on record, this Court finds that the prosecution has duly proved its case by leading cogent evidence against the appellant. The learned trial Court has rightly convicted the appellant. 13. So far as quantum of sentence is concerned it has been pointed out by the learned State counsel that the appellant had already undergone the sentence awarded by the learned trial Court, therefore, the learned counsel for the appellant does not press on the point of quantum of sentence. Dismissed.