Full Judgment
Crl.A.No.S3036SB of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.A.No.S3036SB of 2009 (O&M) Date of decision : 20.1.2014 ..Gurcharan Singh and others ................Appellants versus State of Punjab .................Respondent Coram: Hon'ble Mr.Justice K.C.Puri Present: Sh.
Narinder Singh, Advocate for the appellants.
Sh.
S.S.Chandumajra, Senior Deputy Advocate General, Punjab..K.C.Puri, J.
This is an appeal directed by the accused-appellants against the judgment and order dated 22/26.10.2009 passed by Sh.
S.K.Aggarwal, Special Judge, Moga, vide which they have been convicted under Section 15 (c) of the NDPS Act, for having been found in conscious possession of 175 kgs of poppy husk without any licence or permit and were sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine to further undergo rigorous imprisonment Chugh Banita 2014.02.13 16:10 I attest to the accuracy and integrity of this document Crl.A.No.S3036SB of 2009 -2- for a period of 2 ½ years each.
Accused appellants namely, Gurcharan Singh, Balvir Singh and Manpreet Singh were sent by the police of Police Station Kot Ise Khan to face trial in FIR No.86 dated 23.5.2008 under Section 15 of the NDPS Act.
The case of the prosecution in brief is that on 23.5.2008 in the area of village Maste Wala, accused Gurcharan Singh, Balvir Singh and Manpreet Singh were found in conscious possession of 5 bags each containing 35 kgs of poppy husk, without any lifence or permit by the police party headed by SI Jaspal Singh, Incharge CIA Staff Moga.
On completion of the entire investigation and on receipt of report of Chemical Examiner, challan was presented against all the accused.
Charge under Section 15 of the NDPS Act was framed against all the accused, to which they pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, examined PW-1 Jagjit Singh Saroa, DSP Dharamkot, PW-2 Ashok Kumar Photographer, PW-3 Munish Tomal, Clerk, DTO Office, PW-4 Constable Pritam Singh, PW-5 SI Nachhattar Singh, PW-6 HC Surinder Kumar, MHC, PW-7 SI Jaspal Singh, Investigating Officer, PW-8 ASI Gurbhej Singh and closed the prosecution evidence.
After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C.and all the incriminating evidence was put to them, to which the denied and pleaded innocence Chugh Banita 2014.02.13 16:10 I attest to the accuracy and integrity of this document Crl.A.No.S3036SB of 2009 -3- and false implication.
The accused were called upon to lead their defence evidence and they examined DW-1 HC Bhupinder Singh, DW-2 Paramjit Singh and closed the defence evidence.
The learned Special Judge after appraisal of the evidence, found the accused guilty for offence under Section 15 (c ) of the NDPS Act and convicted and sentenced them to undergo imprisonment and fine as narrated above.
Feeling dissatisfied with the judgment and order dated 22/26.10.2009 passed by Sh.
S.K.Aggarwal, Special Judge, Moga, the accused appellants have preferred the present appeal.
Learned counsel for the appellants has submitted that Paramjit Singh, independent witness has not been examined by the prosecution and he has been examined by the accused.
This witness has stated in his statement that his signatures were taken on blank papeRs.So, the prosecution story is doubtful.
I have carefully considered the said submission, but do not find any force in that submission.
Normally, independent witness do not come forward as they do not want to buy any enmity with the accused.
Mere fact that Paramjit Singh has been examined by the accused goes a long way to prove the fact that apprehension of the prosecution that Paramjit Singh has been won over by the accused was found correct.
Counsel for the appellants has further submitted that there is a delay of 11 days in sending the sample.
That delay has not been Chugh Banita 2014.02.13 16:10 I attest to the accuracy and integrity of this document Crl.A.No.S3036SB of 2009 -4- explained.
I have carefully considered the said submission and have also gone through the record of the case.
Learned trial Court has rightly observed that accused have failed to prove that sample was tampered with at any stage of trial.
The office of chemical examiner found the seal intact.
There was no reason for the prosecution to falsely implicate the accused and to allow the actual culprit to go sCo.free in a recovery of 175 kgs of poppy husk.
Counsel for the appellants has further submitted that only one sample was drawn from each bag.
So, it makes the prosecution story doubtful.
I have considered the said submission but do not find any force in that submission.
The second sample is drawn so as to sent the second sample for analysis in case the fiRs.sample is found to be not proper.
There is nothing on the file that the sample sent for analysis was in any way tampered with.
So, the abovesaid argument is without any substance.
Learned counsel for the appellants has further submitted that in para No.24 of the judgment of the trial Court, various contradictions were pointed out, whereas the learned trial Court has ignored the same mentioning them as minor contradictions.
It is submitted that the said contradictions are major contradictions and goes to the root of the case.
I have carefully considered the said submission, but do not find any force in that submission.
The contradictions pointed in para Chugh Banita 2014.02.13 16:10 I attest to the accuracy and integrity of this document Crl.A.No.S3036SB of 2009 -5- No.24 of the judgment of the trial Court are not such which goes to the root of the case.
Learned trial Court has rightly held that with the passage of time small contradictions are bound to occur due to lapse of memory.
Learned counsel for the appellants has further submitted that prosecution has failed to prove the conscious possession of the appellants of the contraband in question.
The poppy husk was stated to be recovered from the cabin of the truck.
Balvir Singh was stated to be the driver of the said truck, whereas Gurcharan Singh was stated to be the owner of the truck.
It cannot be stated that driver of the truck and the other accused Manpreet Singh are in conscious possession of the contraband.
Learned trial Court has wrongly drawn the presumption of Section 35 and 54 of the NDPS Act.
I have carefully considered the said submission but do not find any force in that submission.
It cannot be said that driver Balvir Singh and Manpreet Singh the other person were not in conscious possession.
The poppy husk was in the same cabin in which they were travelling alongwith owner Gurcharan Singh.
Gurcharan Singh is otherwise accused in two other cases under the NDPS Act.
The defence version has rightly been ignored by the trial Court.
There was no enmity against the appellants to falsely implicate them in respect of recovery of such a huge quantity of contraband.
The authority reported as Jaswinder Singh and another versus State of Punjab 2013 (1) RCR (Criminal) 257, relied upon by counsel for the appellants is distinguishable to the facts of the present Chugh Banita 2014.02.13 16:10 I attest to the accuracy and integrity of this document Crl.A.No.S3036SB of 2009 -6- case.
In the said case this Court came to the conclusion that there is tampering of the sample and the offer given to the accused was joint.
All these facts are missing in the present case.
No other point has been urged before me.
In view of the above discussion the appeal is without any merit and the same stands dismissed.
Gurcharan Singh accused is stated to be in custody, whereas the other two accused namely, Balvir and Manpreet Singh are stated to be on bail.
Balvir and Manpreet Singh be taken into custody to undergo their remaining part of sentence awarded to them.
However, the period of their detention during investigation, trial and after conviction is ordered to be taken into account while considering the total sentence.
A copy of the judgment be sent to the trial Court for strict compliance.
( K.C.Puri ) 20.1.2014 Judge chugh Chugh Banita 2014.02.13 16:10 I attest to the accuracy and integrity of this document