Crl.
Appeal No.D-276-DB of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.
Appeal No.D-276-DB of 2009 Date of Decision : 28.1.2014.
Kripal Singh and Jagir Singh .......Appellants Versus State of Haryana ...Respondent CORAM: HON'BLE Mr.JUSTICE SATISH KUMAR MITTAL HON'BLE Mr.JUSTICE KULDIP SINGH Present:- Mr.S.S.Antal, Advocate, for the appellants Mr.Anjum Ahmed, Addl.
A.G., Haryana, for the respondent-State.
KULDIP SINGH, J.
Kripal Singh and Jagir Singh, both real brotheRs.have challenged the judgment and order dated 10/13.3.2009, passed by learned Special Judge, Ambala, vide which they were convicted under Sections 15 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act') and sentenced to undergo rigorous imprisonment for 12 years and fine of ` 1 lac each, in default thereof, further rigorous imprisonment for 3 years under Section 15 of the NDPS Act and rigorous imprisonment for 6 months and fine of ` 10,000/- each, in default thereof, rigorous imprisonment for 3 months each under Section 20 of the NDPS Act.
Both the sentences were directed to run concurrently.
On 12.7.2007, Inspector Jaipal Singh, SHO, Police Station I.A.Saha, accompanied by his fellow officials on a government vehicle were present at Saha Chowk.
A secret information was received that accused Kripal Singh and Jagir Singh, both sons of Ujjagar Singh, sellSharma poppy husk Sanjiv Kumar 2014.02.06 10:23 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-276-DB of 2009 -2- and ganja at their house after bringing the same from Uttar Pradesh.
The inspector was further informed that for the purpose of storing poppy husk, the accused have constructed an underground room (tehkhana).If raid is conducted, poppy husk and ganja can be recovered in bulk quantity.
Immediately, a police party headed by Inspector Jaipal Singh raided the house of the accused.
Both the accused, namely, Kripal Singh and Jagir Singh were found sitting on the Co.in the courtyard of their house.
Both of them were apprehended.
They were apprised of their legal right of search before a Gazetted Officer or a Magistrate.
A notice (Ex.P5) under Section 40 of the NDPS Act was served upon them seeking their option whether they want search before a Magistrate or a Gazetted Officer.
Accused opted for search before a Gazetted Officer, vide option Ex.P6 and the same was also signed by the accused.
Then, Inspector Jaipal Singh sent a wireless message to Rajesh Kumar, Deputy Superintendent of Police, Ambala Cantt., apprising him about the facts of the case and requested him to reach the spot.
A notice (Ex.P10) under Section 42 of the NDPS Act, which was prepared before the arrival of the DSP, was also delivered to DSP on his arrival.
On the arrival of Rajesh Kumar (DSP).the accused were produced before him.
The tehkhana was also inspected, in which narcotic was suspected to have been stored.
The DSP after verifying the facts from the accused, directed Inspector Jaipal Singh to conduct the search of the underground room (tehkhana).The search of the underground room resulted in the recovery of 10 bags of jute containing poppy husk and another bag containing ganja.
2 samples of 500 gMs.each were separated from all the 10 jute bags containing poppy husk.
The remaining quantity was found to be 39 kgs.
in each bag.
Similarly, 2 Sharma Sanjiv Kumar 2014.02.06 10:23 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-276-DB of 2009 -3- samples of 100 gMs.were separated from the bag containing ganja and remaining quantity was found to be 800 gMs.The samples as well as residue were converted into parcels and sealed with seal of 'RK' and 'JP'.
Specimens of both the seals were retained.
Specimen of seal 'JP' was handed over to SI Padam Singh after use and DSP retained his own seal.
The contraband was taken into possession through recovery memo Ex.P7.
Ruqa Ex.P2 was sent to the police station, on which formal FIR Ex.P1 was registered.
Both the accused were arrested.
From the personal search of accused Jagir Singh, one Nokia 1100 mobile phone was recovered.
Photographs of the tehkhana were also clicked by calling Bhupinder Singh, Photographer, at the spot.
On return to the police station, the case property was deposited with M/ASI.
Report Ex.P12 under Section 57 of the NDPS Act was sent to Superintendent of Police, Ambala.
On the next day, i.e.on 13.7.2009, accused Kripal Singh was taken out from the police lock up and he was interrogated.
He suffered disclosure statement Ex.P11 to the effect that his brother Jagir Singh is a truck driver and had brought 15 bags of poppy husk from Alwar (Rajasthan) alongwith 1 kg.
ganja, which was kept concealed by them in the underground room.
5 other bags have been kept concealed in the tubewell kotha of their friend Avtar Singh, resident of Bhindi Bazar, Amritsar.
Accused Jagir Singh also suffered a similar statement.
Accused were then produced before the Illaqa Magistrate, where the photographs of the case property were taken.
Inventory was prepared in the Court.
Thereafter, 10 bags of jute alongwith 10 samples and one bag of ganja alongwith sample were deposited with MHC of judicial Malkhana.
The police remand of both the accused was obtained.
Again, accused Kripal Sharma Sanjiv Kumar 2014.02.06 10:23 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-276-DB of 2009 -4- Singh and Jagir Singh suffered disclosure statements Ex.P13 and Ex.P14, but nothing could be recovered.
On the completion of the investigation, the challan was presented in the Court.
Accused were chargesheeted under Sections 15 and 20 of the NDPS Act, to which they pleaded not guilty and claimed trial.
To prove its case, prosecution examined E/ASI Om Parkash (PW1).Bhupinder Sharma (PW2).HC Joginder Singh (PW3).ASI Karan Singh (PW4).Shri Lal Chand (PW5).SI Padam Singh (PW6).Inspector Jaipal Singh (PW7).DSP Rajesh (PW8) and Ashok Kumar (PW9) and closed the evidence.
In the statement under Section 313 Cr.P.C., both the accused claimed that they have been falsely involved.
They produced Ex.D1 to Ex.D7.
After hearing the learned prosecution, learned defence counsel and going through the evidence, learned Special Judge, Ambala, vide judgment and order dated 10/13.3.2009, convicted both the accused and sentenced as aforesaid, which has been challenged by way of present appeal.
We have heard the learned counsel for the accused/appellants, learned Additional Advocate General for the State and have also carefully gone through the case file.
Learned counsel for the accused/appellants has argued that in this case, secret information was received by Inspector Jaipal Singh.
However, the same was not reduced into writing.
We are of the view that on receiving the secret information, Inspector Jaipal Singh had no time.
Therefore, he immediately proceeded to the house of the accused.
Sharma Sanjiv Kumar 2014.02.06 10:23 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-276-DB of 2009 -5- Therefore, if the secret information is not recorded in writing to avoid wastage of time and Inspector Jaipal Singh decided to immediately conduct the raid, no fault can be found with the same.
Learned counsel for the accused/appellants has further argued that Inspector Jaipal Singh had given his seal 'JP' to his junior officer accompanying him, namely, S.I.Padam Singh.
Therefore, the possibility of tampering with the case property cannot be ruled out.
We are of the view that the said contention is also without any force.
In this case, Rajesh Kumar (DSP) was also called at the spot and all the samples and case property were sealed not only with the seal of Inspector Jaipal Singh, but also with the seal of Rajesh Kumar, DSP.
Rajesh Kumar, DSP, had retained his seal.
The DSP is senior officer of Inspector Jaipal Singh.
The fact that the two seals remained with different persons ensure that the case property and the samples cannot be tampered with.
Learned counsel for the accused/appellants has further argued that in this case, the conscious possession of contraband by both the accused is not proved.
In this regard, learned counsel has referred to the statement of Inspector Jaipal Singh (PW7).who has deposed that both the accused were found sitting on the Co.in the courtyard of their house.
PW7 has further conceded that there were other family members in the house.
Father of accused Ujjagar Singh was sitting in the drawing room.
Female members were also present in the house.
Harbans Singh, another brother of the accused, was also occupying the house, but he was not present in the house.
Therefore, it cannot be said that both the accused, who were present in the house, were in conscious possession of the contraband.
We are of the view that it is not an ordinary case where the contraband was Sharma Sanjiv Kumar 2014.02.06 10:23 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-276-DB of 2009 -6- found stored.
Infact, an underground room was lying constructed in the house where the bags of poppy husk and ganja were found stored.
The photograph on the file shows that the said underground room was constructed in such a manner that it cannot be detected easily.
It is not disputed that both the brothers are living in the same house though, it is claimed that one of the accused Jagir Singh is having separate mess and ration card.
In any case, the learned counsel for the accused/appellants has conceded that the compound of the house is same.
Not only this, even accused Kripal Singh had disclosed to the police that the poppy husk was brought by accused Jagir Singh from Alwar (Rajasthan).who happens to be a truck driver.
The photographs of case property were also taken.
We have examined the said photographs and we are of the view that it is apparent that accused were indulging in the smuggling and sale of narcotics and it was only for this reason that a secret room was constructed in the house, which was not easily detectable.
In these circumstances, the conscious possession of the contraband by the accused is there.
Learned counsel for the accused/appellants has further argued that no independent witness was joined in this case.
The police party was present in Saha Chowk, which is a busy place and there are shops around the chowk.
There are Panchayat Members and Lambardar available in village Dinarpur.
We are of the view that in this case, policy party on receiving the secret information immediately raided the house of the accused.
A senior officer i.e.Deputy Superintendent of Police was also called at the spot.
Police completed all the formalities.
Notices under Sections 50 and 56 of the NDPS Act were served in this case.
The report Ex.P12 under Section 57 of the NDPS Act was also immediately sent.
Sharma Sanjiv Kumar 2014.02.06 10:23 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-276-DB of 2009 -7- Normally, it is observed that in case of police investigation against hardened criminals including smugglers of narcotics, no villager come forward to join the investigation for fear of earning the wrath of the said accused/smuggleRs.Therefore, non-joining of independent witness is also not material.
Learned counsel for the accused/appellants has further argued that in this case, no specific question under Section 313 Cr.P.C.was put to the accused as to whether they were in conscious possession of the contraband.
After examining the statement of accused recorded under Section 313 Cr.P.C., we find that a specific question was put to them regarding search of the house, finding of a secret underground room and the fact that 10 bags of poppy husk alongwith one bag of ganja were recovered from them in their presence, which was denied by them.
Therefore, this contention is also without any force.
In view of the forgoing discussion, we are of the view that from the testimony of the Investigating Officer Inspector Jaipal Singh, S.I.Padam Singh and Rajesh Kumar, Deputy Superintendent of Police, it is proved beyond all reasonable doubts that 10 bags of poppy husk each weighing 40 kgs., total 400 kgs.
poppy husk was recovered from accused.
1 kg.
ganja was also recovered from the accused.
Therefore, guilt of the accused under Sections 15 and 20 of the NDPS Act is proved beyond all reasonable doubts.
Faced with this situation, the learned counsel for the accused/appellants has argued that the sentence passed under Section 15 of the NDPS Act is quite haRs.and the same may be reduced.
After taking into consideration the fact that both the accused are real brother and that Sharma Sanjiv Kumar 2014.02.06 10:23 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-276-DB of 2009 -8- they have their own family to run, we reduce the sentence of imprisonment awarded under Section 15 of the NDPS Act from 12 years to 10 yeaRs.while maintaining the remaining part of the sentence.
The sentence passed under Section 20 of the NDPS Act is also maintained.
With this modification, the present appeal stands dismissed.
(SATISH KUMAR MITTAL) (KULDIP SINGH) JUDGE JUDGE281.2014 sjks Whether referred to the Reporter or not ?.
: Yes / No Sharma Sanjiv Kumar 2014.02.06 10:23 I attest to the accuracy and integrity of this document Chandigarh