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2014 DIGILAW 1495 (PNJ)

Iqbal Singh v. State of Punjab

2014-11-05

JITENDRA CHAUHAN

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JUDGMENT Mr. Jitendra Chauhan J.: (Oral) - Appellant, namely, Iqbal Singh, has filed this appeal against the judgment dated 03.09.2009, passed by the learned Special Judge, Ferozepur, vide which the appellant was convicted under Section 15(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to ‘as the Act’) and sentenced to undergo rigorous imprisonment for a period of eight years and to pay a fine of Rs.40,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year. 2. The brief facts of the case in hand, recorded by the learned trial Court are that, on 26.04.2005, the police party headed by ASI Gurdarshan Singh was going from village Kular to canal bridge Rajasthan Border in connection with patrolling and to check the suspects on a private Gypsy. When the police party reached a little behind the canal, the accused was found sitting on a jute bag in the water course. On seeing the police party, he tried to run away. On suspicion, he was apprehended by ASI Gurdarshan Singh. In the meanwhile, Bhala Ram son of Dal Chand resident of Kular reached there. He was joined in the police party. The investigating Officer interrogated the accused and enquired about his name and address. On his interrogation, the accused disclosed his name as Iqbal Singh son of Banta Singh. He brought the accused near the bag of jute and when he opened the mouth of the bag, it was found to be poppy husk. Out of the recovered poppy husk, two samples each containing 100 grams were separated to serve as sample and converted into separate parcels and the remaining on weighment was found to be 40 Kgs. The remaining poppy husk was again put in the same jute bag and converted into bulk parcel. The samples as well as bulk parcel were separately packed and sealed and were taken into possession vide recovery memo Ex.P12. Sample seal Ex.P1 was separately prepared. From the personal search of the accused, currency notes of Rs.40/- were recovered and the same were taken into possession vide memo Ex.P13. Ruqa Ex.P15 was sent to the police station on the basis of which formal FIR Ex.P10 was registered. The accused was arrested in this case and his grounds of arrest memo Ex.P14 prepared. Rough site plan Ex.P16 was prepared showing the place of recovery. Ruqa Ex.P15 was sent to the police station on the basis of which formal FIR Ex.P10 was registered. The accused was arrested in this case and his grounds of arrest memo Ex.P14 prepared. Rough site plan Ex.P16 was prepared showing the place of recovery. Statements of witnesses were recorded. On return to the police station, ASI Gurdarshan Singh produced the case property along with the accused before SI/SHO Jaspal Singh, who affixed his seal bearing impression “JS” on the samples, bulk parcel and specimen seal chit and took the entire case property in to his possession vide recovery memo Ex.P2. Bulk parcel is MO-1. After completion of necessary investigation formalities and on receipt of the report of Asstt. Chemical Examiner, challan in hand was submitted in the court for commencement of trial against the accused. 3. On presentation of challan, copies of the same were supplied to the accused free of costs as envisaged under Section 207 Cr.P.C. 4. Thereafter, charge under Section 15(b) of Narcotic Drugs and Psychotropic Substances Act, 1985, was framed, to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined the following witnesses:- PW1, SI Jaspal Singh, deposed that on 26.04.2005, ASI Gurcharan Singh produced the accused and the case property before him. He verified the facts of the case and the fact that the case property was sealed and the same was taken in possession vide Memo Ex.P-2. The appellant-accused was produced before the learned Illaqa Magistrate on the next day and the Illaqa Magistrate passed the orders Ex.P-6 to Ex.P-8. He also identified the signatures of Narinder Pal Singh, DSP on Ex.P9. On return to the Police Station, he kept the case property in the police Malkhana under his own supervision. On 03.05.2005, he handed-over the sample parcel along with sample seal chit which was pasted on CFSL Form Ex.P11 to Constable Baljinder Singh with the direction to deposit the same in the office of Chemical Examiner and he deposited the same in the said office on 04.05.2005. He also stated that the case property and sample parcel as long as they remained in his possession were not tampered by him nor he allowed anybody to tamper the same. PW-2, HC Jalandhar Singh, recovery witness fully supported the case of the prosecution with regard to the case property and affixation of seal. He also stated that the case property and sample parcel as long as they remained in his possession were not tampered by him nor he allowed anybody to tamper the same. PW-2, HC Jalandhar Singh, recovery witness fully supported the case of the prosecution with regard to the case property and affixation of seal. PW-3, HC Baljinder Singh, has corroborated the statement of PW-2 HC Jalandhar Singh with regard to the signatures of recovery. He had deposited the case property in the office of Asstt. Chemical Examiner on 04.05.2005, and obtained a receipt from that office and he handed-over the receipt of the same to SI Jaspal Singh. PW4, ASI Gursharan Singh, Investigating Officer of the case has corroborated the statement of PW2 HC Jalandhar Singh. 6. After the conclusion of evidence of prosecution, the statement of appellant-accused was recorded under Section 313 Cr.P.C. and the entire incriminating evidence which the prosecution produced against him was put to him to tender explanation for the same. The appellant-accused pleaded his innocence and he also stated that he has been falsely implicated in the present case and no recovery was effected from him and on 26.04.2005, he was forcibly taken from his house by ASI Gurdarshan Singh and this false case was planted upon him. However, no evidence was led in defence by the appellant-accused. 7. The following questions were formulated by the learned trial Court for determination in this case:- 1. Whether 40 Kg and 200 grams of poppy husk were recovered from the accused in the area of village Kular on 26.04.2005 as alleged, if so whether the accused is liable to be convicted under Section 15(b) of ND & PS Act? 2. What is the effect of non-examination of independent witness? 3. What is the effect of there being cutting in the statement of Constable Baljinder Singh recorded under Section 161 Cr.P.C.? 4. What is the effect of there being no seal on the case property? 5. Whether the provisions of Section 50 of NDPS Act were not complied with in the present case and this lacuna is fatal to the prosecution case? 6. Whether the prosecution has been able to prove on file its case beyond reasonable shadow of doubt? 8. 4. What is the effect of there being no seal on the case property? 5. Whether the provisions of Section 50 of NDPS Act were not complied with in the present case and this lacuna is fatal to the prosecution case? 6. Whether the prosecution has been able to prove on file its case beyond reasonable shadow of doubt? 8. The learned trial Court, after hearing learned counsel for the parties and after appreciating the evidence on record, convicted and sentenced the appellant-accused as under:- ----------------------------------------------------------------------------------------------------------------------------------------- Name of Convict Sentenced Under Fine of In default of payment to RI Section Rs. of fine ----------------------------------------------------------------------------------------------------------------------------------------- Iqbal Singh Eight years 15(b) of 40,000/- One year rigorous ND & PS imprisonment Act ----------------------------------------------------------------------------------------------------------------------------------------- 9. Feeling dissatisfied with the judgment of conviction and order of sentence dated 03.09.2009, the accused/appellant has preferred the present appeal, which was admitted on 29.04.2010. 10. The learned amicus curiae for the appellant contends that in the instant case, the independent witness, namely, Bhala Ram, who was joined in the investigation was not examined, which depicts that there is no corroboration of the prosecution case and no reason has been cited for with-helding the independent witness. He further refers to the statement of PW3, HC Baljinder Singh, recorded under Section 161 Cr.P.C., wherein, he has admitted that there was cutting in his statement, therefore, learned amicus curiae for the appellant contends that the entire case of the prosecution is full of material illegality and contradictions. He further submits that there was no violation of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985, as in the instant case, the recovery was not effected from the personal search of the accused but the same was effected from the bag kept by the appellant-accused. It is further submitted that the appellant is not a previous convict and no other criminal case is pending against him. So, prayer has been made for taking lenient view regarding the quantum of sentence. 11. On the other hand, learned State Counsel has supported the judgment passed by learned trial Court. 12. I have heard the learned counsel for the parties and have gone through the record with their able assistance. 13. In the instant case, the prosecution to prove its case, has joined Bhala Ram, in the investigation, however, he was not examined. 11. On the other hand, learned State Counsel has supported the judgment passed by learned trial Court. 12. I have heard the learned counsel for the parties and have gone through the record with their able assistance. 13. In the instant case, the prosecution to prove its case, has joined Bhala Ram, in the investigation, however, he was not examined. The recovery was effected from the accused-appellant and he was produced before the Investigating Officer and the relevant documents pertaining to the recovery of the contraband were kept in the malkhana. It has also specifically come in the statement of Gursharan Singh that the case property remained so long in the malkhana but neither the same was tampered by him nor he allowed anybody to tamper with it and he preserved the same very well. The case property was also produced before the Magistrate and he duly authenticated the same, therefore, this Court feels that no perversity in the findings has been recorded by the trial Court in this regard. As regards the learned amicus curiae for the appellant states that the case deserve to be failed on the ground that the provisions of Section 50 of NDPS Act were not complied with, as no offer was given to the accused as provided under Section 50 of NDPS Act. In the instant case, it is noticed that the recovery was not effected from the personal search of the accused-appellant, whereas the same was recovered from the bag kept by the appellant, therefore, there was no necessity of invoking the provisions of Section 50 of NDPS Act. The statements of PW-Jalandhar Singh and Gursharan Singh corroborate on all material aspects of the case. 14. Keeping in view the above facts and circumstances, this Court is not inclined to agree with the contentions of learned counsel and finds no merit in the appeal. While maintaining the judgment of conviction under Section 15(b) of the NDPS Act, the appeal is dismissed on merits. 15. Now, reverting to the quantum of sentence, it is submitted that the appellant is a sole bread-earner of his family and is facing agony of protracted trial for the last 5 years. As per Custody Certificate, he has undergone incarceration for a period of 05 years, 09 months and 04 days and no other case is pending against him. 16. Now, reverting to the quantum of sentence, it is submitted that the appellant is a sole bread-earner of his family and is facing agony of protracted trial for the last 5 years. As per Custody Certificate, he has undergone incarceration for a period of 05 years, 09 months and 04 days and no other case is pending against him. 16. Keeping in view, all the facts and circumstances, the sentence of the appellant under Section 15(b) of Narcotic Drugs and Psychotropic Substances Act, 1985, stands reduced to the period already undergone by him. 17. However, the sentence of fine stands affirmed. The amount of fine shall be deposited by the appellant before the trial Court within two months, failing which, the appellant shall have to undergo the sentence as awarded in the default clause in respect of payment of fine. 18. Accordingly, the present appeal is partly allowed and the impugned judgment/order dated 03.09.2009, is modified to the extent indicated above. ---------0.B.S.0------------ —————————