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2014 DIGILAW 1789 (PNJ)

Jaswinder Singh v. State of Punjab

2014-12-22

DARSHAN SINGH

body2014
Darshan Singh, J. 1. The present appeal has been preferred against the judgment dated 27.10.2003 vide which accused-appellant Jaswinder Singh has been held guilty and convicted for the offence punishable under Section 18 Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter to be referred as 'Act') and order of sentence of the same date, vide which he has been sentenced to undergo rigorous imprisonment for a period of one and half year and to pay a fine of Rs. 3000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months. The brief facts of the prosecution case are that on 20.05.1999, SI Gurdeep Singh of CIA Staff, Jalandhar along with police party was present at bus stand, Lambra. He received a secret information that the present appellant and one Anwar Khan were selling opium at tubewell of Jaswinder Singh-appellant and they have brought huge quantity of opium from Madhya Pradesh. If raid is conducted, opium in large quantity can be recovered. On receiving the secret information, SI Gurdeep Singh along with police party proceeded for conducting raid. He associated Gurdev Singh Lambardar in the raiding party. The police party raided tubewell of Jaswinder Singh. On seeing the police party, two persons holding the plastic bags in their hands tried to slip away from the tubewell room. They were apprehended by SI Gurdeep Singh with the help of his fellow police officials. One of them was present appellant namely Jaswinder Singh. SI Gurdeep Singh suspected narcotic substance in his possession and he gave option to accused for conducting his search by some Magistrate or by some Gazetted Officer. Accused reposed confidence in SI Gurdeep Singh. The Investigating Officer prepared the consent memo Ex. PB in this respect. He, then sent a message to Deputy Superintendent of Police, Ajit Singh to reach at the spot, who reached there and disclosed his identity to the accused. DSP, Ajit Singh directed SI Gurdeep Singh to conduct the search of accused. On his search, opium wrapped in a glazed paper was recovered from the right hand of accused Jaswinder Singh, out of which 10 gms. was separated as sample and remaining opium came to 1 kg. 990 gms. The sample and the remainder were separately sealed with the seal bearing impression 'ASB'. The specimen seal impression was prepared. On his search, opium wrapped in a glazed paper was recovered from the right hand of accused Jaswinder Singh, out of which 10 gms. was separated as sample and remaining opium came to 1 kg. 990 gms. The sample and the remainder were separately sealed with the seal bearing impression 'ASB'. The specimen seal impression was prepared. The case property was taken into pos session vide memo Ex. PA. The Investigating Officer sent ruqa Ex. PC to the police station. On the basis of which, formal F.I.R. Ex. PC/1 was registered. The Investigating Officer also prepared the rough site plan Ex. PC. Thereafter, SI Gurdeep Singh has produced the case property before SHO, Surjit Singh, who affixed his seal on sample and the remainder parcel and entrusted the same to SI Gurdeep Singh, who deposited the case property with MHC in intact condition. Sample parcel was sent to Chemical Examiner for examination and on completion of the investigation, the report under Section 173 Code of Criminal Procedure (for short 'Cr.P.C') was presented. 2. The appellant was charge sheeted for the offence punishable under Section 18 of the Act, to which he pleaded not guilty and claimed trial. 3. In order to substantiate its case, the prosecution examined as many as six witnesses. 4. When accused-appellant examined under Section 313 Cr.P.C., he pleaded that the prosecution witnesses are interested with the success of the case and he has been falsely implicated. 5. In defence evidence, accused-appellant examined Raj Kumar, Patwari, Halka Kang Sabu, Tehsil Nakodar as DW-1, Gurdev Singh Lambardar, who was cited as a witness of recovery by the prosecution and was given up as having been won over, appeared as DW-2, Vishwa Nath, Assistant Line Man, Punjab State Electricity Board, Sub-Division Lambra was examined as DW-3. 6. On appreciating the evidence on record and the contentions raised by learned counsel for the parties, the learned Judge, Special Court, Jalandhar held guilty and convicted the appellant for offence punishable under Section 18 of the Act and was awarded the sentence as mentioned in the upper part of the judgment. 7. Aggrieved with the aforesaid judgment of conviction and order of sentence, the present appeal has been preferred. 8. I have heard Mr. Amardeep Singh Gill, learned counsel for the appellant and Mr. Jashanpreet Singh, learned Assistant Advocate General, Punjab and have carefully gone through the record of the case. 9. 7. Aggrieved with the aforesaid judgment of conviction and order of sentence, the present appeal has been preferred. 8. I have heard Mr. Amardeep Singh Gill, learned counsel for the appellant and Mr. Jashanpreet Singh, learned Assistant Advocate General, Punjab and have carefully gone through the record of the case. 9. Initiating the arguments, learned counsel for the appellant contended that it is the admitted case of the prosecution that recovery has been effected on the basis of the secret information. But, the Investigating Officer has not reduced into writing the contents of the said secret information nor the same was sent to the superior police officer. So, there is a total violation of Section 42 of the Act. The provisions of Section 42 of the Act are mandatory in nature. The total non-compliance thereof renders the entire prosecution vitiated. To support his contentions, he has relied upon cases Karnail Singh v. State of Haryana 2009 (5) R.C.R. (Criminal) 515, Beckodan Abdul Rahiman v. State of Kerala 2002 (2) R.C.R. (Criminal) 385, Gurnam Kaur and others v. State of Punjab, 2006 (3) R.C.R. (Criminal) 984, State of Haryana v. Baljinder Singh, 2007 (3) R.C.R. (Criminal) 893. 10. He further contended that the mandatory provisions of Section 50 of the Act have also been violated. The option given to the accused-appellant was only a partial option, which is again the violation of the mandatory provisions of the Act. 11. He further contended that Gurdev Singh, the independent witness allegedly joined by the Investigating Officer at the time of recovery has not been examined. Rather he has appeared in the defence evidence and has totally falsified the prosecution version. In these circumstances, the testimonies of the official witnesses can not be relied upon. 12. He further contended that the Investigating Officer has not collected any evidence about the ownership of the tubewell from which the accused was apprehended. The prosecution has alleged that appellant Jaswinder Singh was the owner of the said tubewell room. The said version of the prosecution is falsified from the statements of DW-1 Raj Kumar, Patwari and DW-3 Vishwa Nath, Assistant Line Man, PSEB. From their statements, it is established that appellant or his father does not own any land in this village nor any tubewell connection stands in their name. He contended that consequently the conscious possession of appellant over the contraband is not established. 13. From their statements, it is established that appellant or his father does not own any land in this village nor any tubewell connection stands in their name. He contended that consequently the conscious possession of appellant over the contraband is not established. 13. He further contended that there are certain material contradictions in the statements of the prosecution witnesses. 14. In the alternative, he contended that appellant has already undergone six months and twenty days in jail, which is quite sufficient period and the lenient view be taken in the matter of sentence. 15. On the other hand, learned State counsel contended that the provisions of Section 42 of the Act were not attracted in this case, as the recovery was not effected from any enclosure, building or vehicle. He further contended that as the recovery has been effected from the glazed paper packet, which was in the hand of the appellant. So, the recovery was not from the personal search of the accused. Hence, Section 50 of the Act was also not applicable. Moreover, in the instant case, the Investigating Officer has called PW-1, DSP Ajit Singh, a Gazetted police official. So, there is no question of any violation of the provisions of Section 50 of the Act. 16. He further contended that as the recovery of the opium has been effected from the packet, which was in hand of the present appellant, so he is proved to be in the conscious possession of the contraband. He further contended that there is no material contradiction in the statements of the prosecution witnesses. Thus, he contended that the conviction of the appellant has been rightly recorded by the learned Special Court. 17. I have duly considered the aforesaid contentions. 18. PW-2, SI Gurdeep Singh, the Investigating Officer of the case has stated on oath that on receiving the secret information against appellant and one Anwar Khan indulging in selling the opium at the tubewell of appellant Jaswinder Singh, conducted the raid and apprehended both of them, when, they tried to slip away from the room of tubewell. After giving an option to the accused-appellant, PW-1, DSP Ajit Singh, was called at the spot and the search of appellant was conducted in his presence and on his directions. 2 kg opium wrapped in a glazed paper was recovered from his possession. After giving an option to the accused-appellant, PW-1, DSP Ajit Singh, was called at the spot and the search of appellant was conducted in his presence and on his directions. 2 kg opium wrapped in a glazed paper was recovered from his possession. This version of SI Gurdeep Singh is fully corroborated from the testimony of PW-1 DSP Ajit Singh and PW-6 ASI Jagdish Singh, the witness of recovery. PW-3, SI Surjit Singh, the then SHO P.S. Nakodar has also fully corroborated the prosecution version before whom the accused along with the case property was produced by SI Gurdeep Singh immediately on return to the police station. He also affixed his seal bearing impression 'ASP' on the parcels of the case property and verified the investigation. 19. Learned counsel for the appellant has assailed the conviction of the appellant by the learned trial Court on the grounds that the mandatory provisions of Section 42 and 50 of the Act have been violated, the conscious possession of the appellant with respect to the contraband is not proved and there are certain discrepancies in the statements of the prosecution witnesses. But, I do not find any substance in these contentions. 20. Section 42 of the Act, is attracted when any empowered officer has reason to believe from persons knowledge or information given by any person and taken down in writing that any Narcotic Drug or Psychotropic Substance or controlled substance in respect of which an offence punishable under the act has been committed is kept concealed in any building, conveyance or enclosed place. The applicability of Section 42 of the Act is to be determined from the substance of the information received by the empowered officer. In the instant case, SI Gurdeep Singh, the Investigating Officer of the case has received the information that the present appellant is selling the opium at his tubewell. Generally the tubewell is installed in open to irrigate the fields and not in any enclosed place. The said tubewell was stated to be installed in the fields. So, from this sub-stance of the secret information received by the Investigating Officer, it can not be stated that the information received by him was that the opium was kept concealed in any building, conveyance or enclosed place. So, the provisions of Section 42 of the Act were not applicable. So, from this sub-stance of the secret information received by the Investigating Officer, it can not be stated that the information received by him was that the opium was kept concealed in any building, conveyance or enclosed place. So, the provisions of Section 42 of the Act were not applicable. Moreover, the recovery in this case has been effected not from the tubewell room, rather from the glazed paper, which was in the hand of the accused-appellant. Thus, there can be no question of the provisions of Section 42 of the Act being violated as the same were not applicable to the case in hand. 21. Cases relied upon by learned counsel for the appellant are quite distinguishable on facts. In case Karnail Singh v. State of Haryana (Supra), the principle of law has been laid down that the total non compliance of Section 42 of the Act is impermissible. However, the delay in compliance with satisfactory explanation will be acceptable. But, in view of aforesaid discussion as the secret information was not to the effect that appellant has kept concealed the opium in any building, conveyance or enclosed place. So, the provisions of Section 42 of the Act itself were not applicable and question of its non compliance does not arise. In case Beckodan Abdul Rahiman v. State of Kerala (Supra), the secret information was received that the appellant was selling the narcotic drug at the T.C. Junction. So, the secret information in that case was with respect to the selling of narcotic drug in a building or enclosed place. In case Gurnam Kaur and others v. State of Punjab (Supra) the recovery was effected from the house i.e. building on the basis of the secret information. In case State of Haryana v. Baljinder Singh (Supra), the secret information was that he is in the habit of selling opium at his farm house. So, all these authorities can not advance the case of the prosecution being not applicable on facts. 22. There is also no violation of the provisions of Section 50 of the Act. Immediately, after the apprehension of accused-appellant, the Investigating Officer informed him whether he wants his search by any Magistrate or any Gazetted Officer vide memo Ex. PB. So, all these authorities can not advance the case of the prosecution being not applicable on facts. 22. There is also no violation of the provisions of Section 50 of the Act. Immediately, after the apprehension of accused-appellant, the Investigating Officer informed him whether he wants his search by any Magistrate or any Gazetted Officer vide memo Ex. PB. But, the accused reposed faith in Investigating Officer, but even then the Investigating Officer gave the message through wireless to PW-1 DSP Ajit Singh and requested him to reach at the spot. PW-1 DSP Ajit Singh arrived at the spot and disclosed his identity to the accused. The search of the appellant was taken in his presence. Thus the provisions of Section 50 of the Act stand complied with. Moreover, the opium wrapped in glazed paper was recovered from the hand of the accused without any search of his person, which will not attract Section 50 of the Act. 23. From the statements of PW-2 SI Gurdeep Singh, the Investigating Officer of the case, PW-1 DSP Ajit Singh and PW-6 ASI, Jagdish Singh the witness of recovery, it comes out that the opium wrapped in glazed paper was recovered from the hand of the accused. It is not the case of the prosecution, where the recovery was effected from the room of the tubewell, rather accused-appellant was holding the opium in his hand wrapped in a glazed paper, when he was spotted by the police and the recovery was effected. The defence evidence adduced by the appellant in the shape of the statement of DW-1 Raj Kumar, Patwari and DW-3 Vishwa Nath, Assistant Line Man, PSEB-sub-division-Lambra, is also of no help to the appellant. DW-1 Raj Kumar, Patwari has merely deposed that the appellant-Jaswinder Singh @ Jassa and his father Harjit Singh do not own any land in the Revenue State of village Kang Sabu. The statement of DW-3, Vishwa Nath, Assistant Line Man, PSEB, leads us nowhere and stated that without any account number, this fact can not be verified if there is any tubewell connection in the name of a person or not. They do not maintain any general record of a particular village regarding the number of the tubewell connections functioning therein. The statement of DW-3, Vishwa Nath, Assistant Line Man, PSEB, leads us nowhere and stated that without any account number, this fact can not be verified if there is any tubewell connection in the name of a person or not. They do not maintain any general record of a particular village regarding the number of the tubewell connections functioning therein. He further said that he does not know if there is any tubewell connection in the name of Jaswinder Singh son of Harjit Singh or in the name of Harjit Singh of village Kang Sabu. Even if for the sake of arguments, it is accepted that there was no tubewell electric connection in the name of appellant or that he and his father does own any land in village Kang Sabu will not make any difference, because the recovery in this case has not been effected from the tubewell or the tubewell room, rather from the hand of accused-appellant. This fact alone is sufficient to establish his conscious possession of the opium recovered from him. Thus, the conscious possession of accused-appellant is also fully established. 24. The learned defence counsel has pointed out that PW-1, DSP Ajit Singh has stated that he has received the wireless message from SI Gurdeep Singh and reached at the spot, but PW-2 SI Gurdeep Singh has stated that he has sent the message to CIA Staff and from where the DSP was informed. He further pointed out that PW-4 HC Parminder Singh has stated that form No. M. 29 was got typed by him on 01.06.1999, whereas PW-5 Constable Bakhshish Singh stated that he signed Form No. M. 29 at mark 'A' on 08.06.1999. PW-6 ASI Jagdish Singh stated that form No. M. 29 was prepared at the spot. These types of discrepancies can not be considered to be material. The discrepancy with respect to the preparation of form No. M. 29 is a post recovery issue and does not go to the root of the recovery. Similarly, in which manner the information was sent to PW-1 DSP Ajit Singh is also wholly immaterial when his presence at the spot is established as he has attested the seizure memo and the search was conducted in his presence which is established from the substantive evidence available on record. Similarly, in which manner the information was sent to PW-1 DSP Ajit Singh is also wholly immaterial when his presence at the spot is established as he has attested the seizure memo and the search was conducted in his presence which is established from the substantive evidence available on record. It is a fact that the police officials take part in several raids in the course of their duties. It is not expected that they will preserve in their memory the minute detail of each and every raid. The recovery in this case was effected on 20.05.1999, statements of the witnesses have been recorded after 2-3 years. With the lapse of time, the human memory is bound to fade and these type of discrepancies can occur. Learned counsel for the appellant has not been able to point out any material contradictions in the statements of the aforesaid witnesses on the mode of the apprehension of the accused, the search of the accused and the recovery of the contraband from his possession. The minor discrepancies pointed out by the learned counsel for the appellant is no ground to render the testimonies of the prosecution witnesses unworthy of credit. 25. No doubt, DW-2 Gurdev Singh was cited as a witness by the prosecution and was alleged to have been associated in the investigation of the case. But, he was not produced in the witness box by the prosecution and was given up as having been won over by the learned Public Prosecutor vide statement dated 27.10.1999. Said Gurdev Singh has appeared as DW-2 and supported the plea of the accused, which confirms that he had been actually won over by the accused. He has admitted his signatures on the documents Ex. PA and Ex. PB, but alleged that these were obtained by the police on blank papers. DW-2 Gurdev Singh is Lambardar of the village. In the cross examination by the learned Additional Public Prosecutor, he stated that he does not refuse to sign on the blank papers by the police and did not make any complaint about it. This is an unnatural conduct on the part of this witness. He holds a respectable position in the village being Lambardar. It is not expected that he will sign the blank papers on the asking of the police without raising any protest. This is an unnatural conduct on the part of this witness. He holds a respectable position in the village being Lambardar. It is not expected that he will sign the blank papers on the asking of the police without raising any protest. It appears that this version has been put-forward by this witness only to meet out the presence of his signatures on the documents Ex. PA and Ex. PB. DW-2 Gurdev Singh is the co-villager of the appellant. So, it is natural that he will side with the accused and disown the prosecution version. He will not gain anything by supporting the prosecution case, rather he will earn the wrath of his co-villager. Thus, the statement of DW-2 Gurdev Singh carries no evidentiary value and his appearing in the defence is also no ground to discredit the cogent, consistent and reliable testimonies of the prosecution witnesses. 26. Thus, from the evidence brought on record by the prosecution, it is established that appellant was found in conscious possession of 2 kg of opium. 27. I also do not find any substance in plea of learned counsel for the appellant for reduction of sentence. 2 kg. of opium has been recovered from the possession of the accused. The learned trial Court has already taken the lenient view in the matter of sentence and has sentenced the appellant to undergo rigorous imprisonment for a period of one and half years and to pay a fine of ` 3000/-, which can not stated to be on the higher side keeping in view the quantity of opium recovered from his possession. Thus, sentence awarded by the learned trial Court also does not call for any interference by this Court. 28. Thus, keeping in view my aforesaid discussion, conviction of the appellant is well founded and is hereby confirmed. The sentence awarded to appellant by the learned trial Court also does not call for any interference by this Court as the learned trial Court has already taken the lenient view. Resultantly, the present appeal has no merits and the same is hereby dismissed. The accused-appellant is on bail. His bail bonds stand cancelled. He shall surrender within 15 days from the date of this judgment before the learned Chief Judicial Magistrate, Jalandhar, who shall send him to jail to undergo the remaining part of his sentence. Resultantly, the present appeal has no merits and the same is hereby dismissed. The accused-appellant is on bail. His bail bonds stand cancelled. He shall surrender within 15 days from the date of this judgment before the learned Chief Judicial Magistrate, Jalandhar, who shall send him to jail to undergo the remaining part of his sentence. If, he fails to surrender, the learned Chief Judicial Magistrate, Jalandhar, shall take coercive steps to secure his presence and send him to jail to undergo the remaining part of the sentence.