Full Judgment
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (i) Crl.
Appeal not S-1244-SB of 2006 Date of Decision: July 04, 2013 Abbas ...Appellant VERSUS State of Haryana ...Respondent (ii) Crl.
Appeal not S-1284-SB of 2006 Akhil ...Appellant VERSUS State of Haryana ...Respondent (iii) Crl.
Appeal not S-1869-SB of 2011 Arshad ...Appellant VERSUS State of Haryana ...Respondent CORAM: HON'BLE Mr.JUSTICE INDERJIT SINGH Present: Mr.R.S.Mamli, Advocate Amicus Curiae for the appellant.
(in CRA not S-1244-SB of 2006) Mr.Amandeep Saini, Advocate for the appellant (in CRA not S-1284-SB of 2006) Mr.R.S.Mamli, Advocate for the appellant (in CRA not S-1869-SB of 2011) Mr.Subhash Godara, Addl.
Advocate General, Haryana for the respondent-State.
**** INDERJIT SINGH, J.
This judgment shall dispose of three connected criminal appeals i.e.CRA not S-1244-SB of 2006, CRA not S-1284-SB of 2006 arising out of the same judgment of conviction and order of sentence dated 13.06.2006 passed by Addl.
Sessions Judge, Rohtak and CRA Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal not S-1244-SB of 2006 and connected appeals -2- not S-1869-SB of 2011 arising out of judgment of conviction dated 24.08.2010 and order of sentence dated 26.08.2010 passed by Special Judge, Rohtak.
Accused-appellants Abbas and Akhil were held guilty and convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ` 1,00,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of two years each, under Section 15 of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.
Appellant Arshad was held guilty and convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of `1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year, under Section 15 of NDPS Act.
In the present case, a supplementary challan was presented against accused-appellant Arshad in the same FIR in which challan against accused-appellants Abbas and Akhil was presented.
The facts, being arisen out of the same FIR, are taken from CRA not S-1244-SB of 2006.
The brief facts of the prosecution case are that on 10.02.2005 SI Rohtash Singh, SHO along with other police officials was present near police post Ghillaur.
In the meantime, a truck came from Rohtak side and on signal, it was stopped at a distance of 15-20 paces from them.
Two persons alighted from that truck and went towards the fields.
One of them was clean shaven and other was a sikh gentleman.
On suspicion, SI Rohtash Singh along with police party immediately surrounded the truck.
ASI Om Parkash and HC Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal not S-1244-SB of 2006 and connected appeals -3- Shyam Lal chased the persons who ran from the spot but they could not apprehend them.
Accused Abbas was found sitting on the driver seat and accused Akhil was sitting by his side.
Notice under Section 50 of the NDPS Act was served upon both the accused and asked for their option and both the accused opted to get their search in the presence of Gazetted officer.
Information was given on telephone to DSP M.I.Khan, who arrived at the spot.
He also disclosed his identity.
On direction of DSP, the articles from the truck were unloaded.
On the upper side of the truck, there were bags of onion and beneath the onion bags, there were 150 bags of poppy husk.
Two samples each of 1 kg.
were separated from each bag and the remaining poppy husk on weighment came to be 38 kgs.
in each bag.
Samples and bags were sealed with the seal of Investigating Officer SI Rohtash Singh and also seal of DSP M.I.Khan and the case property was taken into police possession vide recovery memo Ex.PC.
Ruqa was sent to the police station, on the basis of which FIR was registered.
Rough site plan of the place of recovery was prepared.
Accused were arrested.
On return to the police station, accused were put in the lock-up and the case property was deposited in the malkhana.
Report under Section 57 of the NDPS Act was prepared and sent, which is Ex.PD.
Samples were sent to FSL, Madhuban on 14.02.2005.
There was an objection to send the samples weighing 100 gMs.each.
On 15.02.2005, DSP M.I.Khan came to the police station.
Again 100 gMs.samples were separated from each of the sample already taken from the bags and the residue and their Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal not S-1244-SB of 2006 and connected appeals -4- samples were again sealed with the seal of Investigating Officer and DSP.
Statements of witnesses were recorded.
After necessary investigation challan was presented against the accused-appellants Abbas and Akhil and supplementary challan against accused- appellant Arshad.
On presentation of challan against accused-appellants Abbas and Akhil and supplementary challan against accused- appellant Arshad, copies of challan and other documents were supplied to them under Section 207 Cr.P.C.Finding prima facie case, the accused-appellants Abbas and Akhil were charge-sheeted under Section 15 (C) of the NDPS Act, 1985 and accused-appellant Arshad was charge-sheeted on 07.09.2007 under Section 15 of the NDPS Act, 1985, to which they pleaded not guilty and claimed trial.
In support of its case, prosecution examined in Sessions case No.4/2005 PW-1 ASI Phool Kumar, who mainly deposed regarding recording of the FIR after the receipt of the ruqa.
PW-2 Head Constable Jai Dev Singh, is a formal witness, who tendered into evidence his affidavit Ex.PB.
PW-3 DSP M.I.Khan mainly deposed as per prosecution version and regarding recovery of 150 bags of poppy husk from the truck.
PW-4 ASI Surat Singh, who was with the police party of Investigating Officer, also deposed as per prosecution version.
PW-5 SI Rohtash Kumar, Investigating Officer deposed regarding investigation conducted by him in the present case and recovery from the accused-appellants.
At the close of prosecution evidence, the accused- Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal not S-1244-SB of 2006 and connected appeals -5- appellants were examined under Section 313 Cr.P.C.and they denied the correctness of the evidence and pleaded themselves as innocent.
Accused Akhil pleaded that he is working as labourer with Ranbir Singh Fauji.
On 10.02.2005, he had come to village Jasia in search of work.
When no work was found, he was going to village Butana.
The police lifted him from the road and falsely implicated him in this case.
No recovery was effected from him.
Accused Abbas pleaded that on 09.02.2005, he came from U.P.to see Mahmood but he was not available.
Then he went to Sukhpura chowk to board a bus to go to his native village.
In the meantime, a truck came there and stopped in front of P.S.Sadar Rohtak.
He asked whether they were going towards Panipat side.
When they had gone to take tea, SI Rohtash came out of P.S.Sadar Rohtak and asked him about the truck.
He told him that the persons who had alighted from the truck had gone to take tea.
On seeing the police, those persons slipped away from the spot.
He was falsely implicated in this case.
In defence accused-appellants examined DW-1 Mehraj, who mainly deposed regarding Akhil to the effect that accused had gone on 10.02.2005 at about 8.00 A.M.After about 15-20 days, he was involved in this case.
DW-2 Sunil also stated that accused Akhil was a labourer.
On the basis of the evidence produced by the prosecution, accused-appellants Abbas and Akhil were convicted and sentenced as stated above by the Addl.
Sessions Judge, Rohtak.
In supplementary challan against accused-appellant Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal not S-1244-SB of 2006 and connected appeals -6- Arshad, prosecution examined PW-1 DSP M.I.Khan, who deposed as per prosecution version.
PW-2 Head Constable Parveen Kumar mainly deposed regarding disclosure statement Ex.P4.
PW-3 EHC Raghbir Singh also deposed regarding disclosure statement of Arshad demarcating the place of occurrence.
PW-4 ASI Phul Kumar deposed regarding recording of FIR after receiving ruqa.
PW-5 Sub-Inspector Gurdial Singh, who interrogated Arshad, also deposed regarding the disclosure statement made by the accused.
PW-6 Head Constable Tejpal Singh deposed regarding delivery of Special Report.
PW-7 Sub-Inspector Samunder Singh mainly deposed regarding preparing of report under Section 173 Cr.P.C.PW-8 M ASI Baljit Singh mainly brought register No.19 showing depositing of the case property etc.and also regarding sending the case property.
PW-9 SI Sanjeev Kumar deposed that accused Arshad was arrested in some another case and during investigation he made disclosure statement regarding the present case.
PW-10 SI Surat Singh is the recovery witness, who deposed as per prosecution version.
PW-11 Inspector Rohtash Singh is the Investigating Officer and deposed as per prosecution version.
Learned Public Prosecutor tendered into evidence report of FSL Ex.PL and closed the prosecution evidence.
In the statement under Section 313 Cr.P.C., accused- appellant Arshad pleaded innocence and stated that he has no connection with the occurrence and other accused in this case.
In defence, DW-1 Ved Pal Singh, DW-2 K.K.Mishra and DW-3 Santer Pal were examined.
Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal not S-1244-SB of 2006 and connected appeals -7- On the basis of the evidence produced by the prosecution, accused-appellant Arshad was convicted and sentenced as stated above by the Special Judge, Rohtak.
At the time of arguments, learned counsel for the appellants argued that the fact regarding conscious possession has not been proved by the prosecution by leading cogent evidence.
Reliance has been placed on judgment passed by this Court in Sukhdev Singh and another versus State of Punjab 2006(4) RCR (Crl.) 263 regarding conscious possession.
Learned counsel for the appellants further argued that no proper compliance of Section 50 of the NDPS Act has been made because the Investigating Officer has nowhere stated that he gave option to the accused to get the truck searched from a Magistrate also.
Learned counsel for the appellants next argued that in the present case link evidence is missing.
Samples were taken in the police station and again separate samples were taken from those samples, which creates doubt in the prosecution version.
There is delay of 72 hours in sending the samples.
No independent witness was joined.
Accused have been falsely implicated in the present case.
Learned counsel for the appellant Arshad further argued that the appellant was arrested on 10.02.2005 in another case.
Any disclosure statement made in that case is inadmissible in evidence being confession of the accused before the police.
He next argued that no value can be attached to demarcation memo which is after about 2½ years of the occurrence.
At that time, everybody was knowing regarding the place of recovery.
Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal not S-1244-SB of 2006 and connected appeals -8- Learned counsel for the appellant Arshad further argued that identification of accused-appellant Arshad in the Court is also of no value.
Therefore, he argued that identity of Arshad has also not been proved.
On the other hand, learned Addl.
Advocate General, Haryana for the respondent-State argued that case of prosecution has been duly proved by the PWs by bringing cogent evidence.
The identity of accused Arshad has been also duly proved.
There was no need of compliance of Section 50 of the NDPS Act as the recovery is from the truck.
Conscious possession of the accused-appellants has been proved.
There is no unnecessary delay in sending the samples.
He further argued that link evidence is complete.
There is no enmity or motive of police officials to falsely implicate the accused-appellants.
Learned State counsel, therefore, argued that appeals having no merits should be dismissed.
I have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellants and learned Addl.
Advocate General, Haryana for the respondent-State.
From the evidence on record, I find that conscious possession of appellant Akhil and Abbas has been duly proved in the present case.
Abbas was driving the truck and when the truck was surrounded, he was sitting on the driver seat and Akhil was sitting by his side.
If they were not knowing regarding poppy husk in the truck, then why they stopped the truck at a distance of 15-20 paces from the police party where the police had laid the naka for checking.
This fact Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal not S-1244-SB of 2006 and connected appeals -9- itself shows that there were incriminating articles in the truck and proves their conscious possession.
Otherwise also, only 100 bags of onion were lying over 150 bags of poppy husk.
It cannot be believed that they were not knowing about the incriminating articles.
As regarding the judgment cited regarding conscious possession, I find that this citation having distinguished facts will not apply in the present case.
As already discussed, the accused-appellants had stopped the truck at a distance of 15-20 paces from the naka, which shows that they were knowing about the incriminating articles in the truck and further, this has been put to the accused that contraband articles are found in the truck in the statement under Section 313 Cr.P.C.Therefore, this argument of the learned counsel for the appellants has no merit.
As regarding the non-compliance of Section 50 of the NDPS Act in this case, I find that recovery of 150 bags of poppy husk was made from the truck.
Therefore, Section 50 of the NDPS Act will not apply in the present case.
Section 50 of the NPDS Act applies only where personal search of an accused is made.
Therefore, this argument of learned counsel for the appellants has also no merit.
The prosecution has produced PWs to show that no sample was tampered with.
The samples were sent to FSL within four days of the recovery.
The samples were returned by FSL with objection that sample should be of 100 gms only and not of 1 kg.
Therefore, these samples were sealed with the seal of the Investigating Officer Rohtash Singh and DSP M.I.Khan.
DSP M.I.Khan, as per evidence, was called in the Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal not S-1244-SB of 2006 and connected appeals -10- police station and again samples of 100 gMs.each were separated from already taken 150 samples of 1 kg.
each and these samples and the remaining parcel of samples already taken were again sealed with the seals of the Investigating Officer Rohtash Singh and DSP M.I.Khan.
There is no evidence on the record that these samples were tampered with.
The report of FSL also shows that seals were compared with the sample seal, which tallied and found intact.
Therefore, in the present case, it cannot be held that link evidence is missing or the samples were tampered with.
The samples were sent at the earliest to the FSL as recovery was effected on 10.02.2005 and samples were sent to FSL on 14.02.2005.
Therefore, on this ground, no doubt of any type is created in the prosecution version.
As regarding the argument that no independent witness was joined, I find that it is settled law that testimony of police official is as good as of any other witness unless some enmity or motive is alleged and proved.
There is no such evidence produced by the accused-appellants in this case.
Therefore, this argument of learned counsel for the appellants has also no merit.
There is no evidence on record regarding false implication of the accused-appellants Akhil and Abbas.
Both of them were apprehended on the spot while sitting in the truck having 150 bags of poppy husk.
Such a huge recovery cannot be falsely planted upon the accused-appellants.
As already discussed, police officials have no enmity or motive to falsely implicate the accused-appellants in the present case.
The Investigating Officer, DSP M.I.Khan and recovery witness have consistently deposed Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal not S-1244-SB of 2006 and connected appeals -11- regarding recovery from the accused-appellants Akhil and Abbas.
There are no material improvements or material contradictions in their statements which may make their statements unreliable.
From their cross-examination, there is nothing which may make their statements not believable.
Therefore, these PWs have duly proved the prosecution case against appellants Akhil and Abbas by leading cogent evidence beyond reasonable doubt.
Appellants Akhil and Abbas have been rightly convicted and sentenced by the trial Court and the judgment of the trial Court qua both these appellants is upheld and finding no merit in the appeal, the same is dismissed.
As regarding the appeal regarding Arshad, I find that neither in the ruqa not in the evidence of Investigating Officer or any witness, there is any description of the persons who ran away after stopping the truck.
It is simply written that one person was sikh gentleman and other was clean shaven.
There is also nothing in the ruqa or in the statement of Investigating Officer or any member of the police party including him that they were knowing appellant Arshad earlier to the occurrence or they can identify him if brought before them.
Therefore, in the facts and circumstances of this case, identification of appellant Arshad in the Court is of no value.
As regarding demarcation memo, no reliance can be placed.
Occurrence is of 10.02.2005, whereas this demarcation memo was made in the month of July, 2007 i.e.after about 2½ yeaRs.Till then, everybody was knowing that the recovery was made from that truck at the place of occurrence.
So, this demarcation memo is Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal not S-1244-SB of 2006 and connected appeals -12- also insufficient to connect appellant Arshad with the crime not it proves his identity in the present case.
The disclosure statement made by appellant Arshad in another case before the police regarding his involvement means to confession before police and hit by Section 25 of the Evidence Act and is inadmissible in the law.
Therefore, from the above discussion, the identity of appellant Arshad has not been proved beyond reasonable doubt by the prosecution.
Therefore, benefit of doubt is to go to the appellant Arshad and by giving him benefit of doubt, he is acquitted of the charges framed as against him.
The judgment of conviction and order of sentence recorded by the trial Court are set aside.
He be set at liberty forthwith, if his custody is not required in connection with any other case.
In view of the above, CRA not S-1244-SB of 2006 and CRA not S-1284-SB of 2006 stands dismissed and CRA not S-1869-SB of 2011 stands allowed.
As accused-appellants Abbas and Akhil are on bail, their bail bonds stand annulled and they are directed to surrender themselves before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against them in accordance with law.
(INDERJIT SINGH) JUDGE July 04, 2013 Vgulati Gulati Vineet 2013.07.29 13:30 I attest to the accuracy and integrity of this document Chandigarh