Full Judgment
CRA-S-1765-SB of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-S-1765-SB of 2010 (O&M) Date of Decision:
07. 05.2014 Inderjit Singh ...Appellant Versus State of Punjab ...Respondent CORAM: HON'BLE MR.JUSTICE R.P. NAGRATH1 Whether Reporters of the local papers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the digest?. Present: Mr. D.N. Ganeriwala, Advocate for the appellant. Mr. Mehardeep Singh, DAG Punjab for the State. R.P. Nagrath, J.
The appellant and his father faced trial under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as 'the Act') for keeping in possession 300 Kgs. poppy husk without permit or licence contained in 15 bags. §2. The appellant and his father were convicted and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine to further undergo Rigorous Imprisonment for a period of two years each.
3. The facts, in brief, are that on 16.10.2008, Inspector Satish Kumar Malhotra, SHO of Police Station Nurmahal(PW6) was present alongwith other police officials at the turning of village Kumar Suresh 2014.05.26 10:47 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1765-SB of 2010 2 Cheema Kalan in connection with patrol duty and checking. A secret information was received against the appellant and his father that they could be apprehended having loaded the bags of poppy husk in a tractor trolley near the tubewell of Gurpal Singh @ Pala. On this information, ruqa Ex.P4 was sent to the police station on the basis of which FIR Ex.P5 was registered. It was also requested to send message to DSP, Phillaur to reach the spot. Tarsem Lal, Ex. Sarpanch of the village who met them was joined in the police party. The place was raided and it was found that one sikh boy was sitting on the driver seat of the tractor and the other was sitting on the bags loaded in the tractor trolley. The boy sitting on the driver seat of tractor made good his escape whereas Bahadur Singh was apprehended at the spot.
4. It may be stated that Bahadur Singh co-accused father of appellant filed CRA-S-1893-SB of 2010 against conviction but report was received that Bahadur Singh aforesaid had died on 13.4.2012. Therefore, appeal filed by Bahadur Singh stood abated as per orders passed on 19.3.2014 in CRA-S-1893-SB of 2010.
5. Bahadur Singh co-accused was informed that police party suspected some contraband loaded in the trolley and whether he wanted the search to be made in the presence of a gazetted officer or Magistrate. Bahadur Singh desired the search to be made in the presence of some gazetted officer. Memo Ex.PD in this regard was prepared which was signed by Bahadur Singh and attested by witnesses including Tarsem Lal, Ex. Sarpanch. Kumar Suresh 2014.05.26 10:47 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1765-SB of 2010 3 6. The DSP was telephonically requested to reach the spot. PW2 Rajinder Singh Sohal DSP reached there who was apprised of the facts. The DSP introduced himself to Bahadur Singh co-accused and again asked whether he wishes the search to be made before PW2 or a Magistrate. Bahadur Singh reposed confidence in the DSP. EX.PB consent memo of Bahadur Singh co-accused was reduced into writing which was also signed by Bahadur Singh and attested by the witnesses including the DSP and Tarsem Lal, Ex. Sarpanch.
7. The trolley of tractor No.PB-37-B-1977 was loaded with 15 plastic bags of poppy husk. The entire commodity in all the 15 bags was spread at the spot for weighment and two samples out of the bulk weighing 250 gms. each were separated and the remaining poppy husk was filled in the bags, each containing 20 Kgs. except one containing 19 Kgs. 500 gms. Both the sample parcels and the bags were sealed with seal bearing impression ‘SK’ of the investigating officer and ‘RSS’ of Rajinder Singh Sohal, DSP. The case property was taken into possession by preparing memo Ex.PB. Site plan was also prepared. The contents of both the samples were sent for analysis and these were found to be coarse powder of poppyHead vide report Ex.P12 of the chemical examiner.
8. The prosecution in support of its case examined eight witnesses. Tarsem Lal, Ex. Sarpanch was given up as having been won over by the accused.
9. The appellant denied all the incriminating circumstances Kumar Suresh 2014.05.26 10:47 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1765-SB of 2010 4 appearing in evidence against him when examined under Section 313 Cr.P.C. In defence, the appellant examined DW1 MHC Gursharan Singh of the police station.
10. Learned trial Court convicted and sentenced the appellant as aforesaid.
11. PW6 Investigating Officer has testified the story of prosecution in the witness box. His testimony has been corroborated by PW2 DSP Rajinder Singh Sohal, PW3 SI Om Parkash and PW5 ASI Surinder Singh, the other members of the police party. Tarsem Lal, Ex. Sarpanch was given up as having been won over by the accused.
12. The bone of contention of the appellant is that his identity has not been established beyond suspicion. It is further contended that when the police party was comprising of so many police officials, it was not possible to believe that the appellant could run away from the spot as the recovery is stated to be made in broad daylight.
13. To prove identity of appellant, PW6 stated that appellant Inderjit Singh was found sitting on the driver seat of tractor. In cross-examination, PW6 stated that he did not know both the accused persons before recovery. He further stated that Banarsi Dass, driver of his official vehicle knew the appellant but his statement was not recorded.
14. PW5 ASI Surinder Singh also categorically stated that appellant Inderjit Singh was sitting on the driver seat of the tractor when he made good his escape on seeing the police party. In cross- Kumar Suresh 2014.05.26 10:47 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1765-SB of 2010 5 examination, PW5 stated that he spotted the accused from a distance of about 12 yards. Therefore, it was not difficult to identify the appellant from such a short distance. PW5 further stated that HC Amarjit Singh and PHG Banarsi Dass were deputed to chase appellant Inderjit Singh. On return these officials stated that they also challenged Inderjit Singh to stop failing which they would shoot him.
15. PW3 SI Om Parkash another member of the police party also identified the appellant who ran away from the spot. In cross- examination, PW3 stated that only HC Amarjit Singh and Banarsi Dass of Punjab Home Guards (PHG) identified the appellant. PW3, however, stated that statement of these two officials were not recorded under Section 161 Cr.P.C. nor they have been cited as witnesses. PW3 was also confronted with portion A to A1 of statement Ex.DA recorded under Section 161 Cr.P.C. where the name of the accused who fled away was mentioned as Inderjit Singh son of Sadhu Singh. This seems to be insignificant factor as in the initial part of the statement Ex.DA, the name of appellant is mentioned as Inderjit Singh son of Bahadur Singh. The correct parentage of appellant in fact was also mentioned in the ruqa sent on secret information.
16. In view of the overwhelming evidence in the testimony of so many of the witnesses, the identity of appellant stood established beyond any suspicion.
17. Learned counsel for the appellant further contended that Kumar Suresh 2014.05.26 10:47 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1765-SB of 2010 6 appellant was not arraigned as accused in terms of Section 25 of the Act which makes owner of the vehicle liable under the Act. It is further submitted that even there is no cogent evidence to prove that appellant was owner of the said vehicle.
18. The evidence on record, however, rules out the above contention. It has rather appeared in cross-examination of PW5 ASI Surinder Singh that name of appellant Inderjit Singh Taggar was written on the front of tractor. It may be noticed that name of the appellant also figured in the secret information on the basis of which FIR was registered. Learned counsel for the appellant, however, referred to further cross-examination of PW5 that parentage of Inderjit Singh was not mentioned on the tractor and even the photographs of the tractor were not clicked on the spot. I am, however, of the view that the appellant cannot wriggle out of the above factor which appeared in cross-examination of PW5.
19. In that regard, the prosecution examined PW8 Satpal, Motor Transport Clerk, office of SDM, Phillaur with regard to registration of tractor bearing No.PB-37B-1997 mark Ford. As per record, this tractor was registered in the name of Gurmit Singh son of Gurbachan Singh but later on transferred in the name of Surjit Singh son of Bahadur Singh resident of village Taggar, Tehsil Phillaur, who is none other than the real brother of appellant Inderjit Singh. The relevant entry of the register is Ex.P11. This transfer was made in the name of Surjit Singh brother of appellant Inderjit Singh on 26.12.2008. Kumar Suresh 2014.05.26 10:47 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1765-SB of 2010 7 20. PW7 ASI Kuldeep Singh received information on 29.10.2008 that appellant Inderjit Singh was being produced in the Court of Judicial Magistrate, Phillaur in some other case. After obtaining permission of the Magistrate, he formally arrested appellant Inderjit Singh and prepared memo of arrest Ex.P7 dated 29.10.2008.
21. PW7 ASI Kuldeep Singh had also filed application Ex.P9 on 10.11.2008 in the office of Registering Authority. Vide Ex.PW9/A, it was reported that till that time the tractor was registered in the name of Gurmit Singh son of Gurbachan Singh.
22. It is very strange that the vehicle which was involved in the heinous crime in FIR No.173 dated 16.10.2008 was got transferred in the name of brother of appellant on 26.12.2008. As per record, Surjit Singh aforesaid applied for release of the vehicle on Spurdari by moving an application on 27.1.2009 and release order dated 02.02.2009 was passed by the Judge Special Court, which is on record. The prosecution story about identity of the appellant who fled from the spot could thus be not successfully assailed.
23. The above factor was elaborately dealt with by learned trial Court in its judgement, but there was no response to it in the grounds of appeal. There was no explanation offered by the appellant about ownership of the vehicle transferred in the name of his brother on 26.12.2008, as per endorsement made in the record Ex.P-11 proved by PW8.
24. One of the culprits having fled from the spot also appeared in the examination of PW2 DSP Rajinder Singh Sohal. Kumar Suresh 2014.05.26 10:47 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1765-SB of 2010 8 PW2 stated that he, however, did not know the name of the person who had run away nor he asked from the investigating officer as to who identified that person. PW2 even testified about the presence of Ex. Sarpanch at the spot during the proceedings. Therefore, non- examination of independent witness on the ground of his being won over would not bring suspicion to the story in view of the overwhelming evidence led in the case.
25. In fact, there is no scope of contending that any member of police party had any ulterior motive to implicate the appellant and his co-accused falsely. PW6 rather stated in cross-examination that he was not having any prior acquaintance with any of the accused. The effect of non-examination of the independent witness has also been extensively discussed by the trial Court and it has rightly been found insignificant.
26. In Ram Swaroop vs. State (Govt. of NCT of Delhi), AIR 2013 SC2068and Sumit Tomar vs. State of Punjab, (2013) 1 SCC395it was held by Hon'ble Supreme Court that non-examination of independent witness cannot have affect on the prosecution case. The said principle was elaborately discussed by the Full Bench of this Court in Piara Singh vs. State of Punjab, 1982 Cri. L.J.
1176, and it was held that there is neither a statutory requirement nor precedential mandate for handing over the seal used by the police officer in the course of an investigation to a third witness forthwith. It was further held that it necessarily follows therefrom that even where it has been so done, the non-production of such a witness cannot by Kumar Suresh 2014.05.26 10:47 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1765-SB of 2010 9 itself affect the merits of the trial.
27. There is also overwhelming evidence with regard to compliance of Section 50 of the Act by calling DSP, Phillaur at the spot, who recorded consent memo of the appellant and then search of bags was conducted. PW2 in cross-examination also stated that Form 29 was filled at the spot. All the recovery witnesses have been extensively cross-examined and withstood the test of scrutiny. Even otherwise the recovery having not been made from the person of Bahadur Singh (deceased) father of appellant, but from the tractor trolley, the provisions of Section 50 of the Act would not be attracted.
28. There is also meticulous compliance of Section 52 of the Act. PW6 stated that on return to the police station he deposited the case property with MHC Gursharan Singh. PW6 then produced case property before Area Magistrate, Phillaur on 17.10.2008 by submitting an application/inventory report. The application moved before Area Magistrate is Ex.P10. PW6 further stated that the Magistrate took out the representative samples of 250 gms. from each of the bag and made their separates parcels. The Magistrate sealed the sample parcels and bulk of poppy husk with his own seal and passed the order Ex.P10/A on the said application. It is recorded in the order Ex.P10/A that the two sample parcels and bags were produced before the Magistrate bearing seal impression ‘SK’ and ‘RSS’.
29. Even the entire case property was produced during the evidence. The duplicate sample parcel prepared at the spot MO-1 Kumar Suresh 2014.05.26 10:47 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1765-SB of 2010 10 and 15 bags of poppy husk MO-2 to MO-16 were produced during the examination of PW5 - ASI Surinder Singh. It was contended that there was serious defects in case property. PW5 stated in cross- examination that some of the seals affixed on MO-2 to MO-16 are legible and on others these are not legible. Seal of the Investigating Officer on MO-1 was legible but the second seal was not legible. Some seals on MO-2 to MO-16 were in broken condition.
30. The above are minor defects which are bound to happen when the case property of this nature is produced after a gap of one year of the recovery. No question was put to PW5 in respect of slips pasted over case property, bearing the particulars of the case and names of accused etc. It is also not clarified as to on how many bags the seals were damaged. This all pales into insignificance as the report of chemical examiner certified that the seals on the exhibits when received were intact and agreed with the sample seals sent. The sample seals as per Form 29 were 'SK' and 'RSS'.
31. The representative sample drawn before the Magistrate were produced during examination of PW6(IO) as MO-17 to MO-31. Even the duplicate sample prepared at the spot MO-1 was again produced. Nothing was put to PW6 to suggest any defect in the case property produced.
32. There is also substantial compliance of Sections 55 and 57 of the Act in the case. PW6 in cross-examination stated that he had not forwarded written report of secret information to any senior officer but clarified that ruqa was meant for that purpose. Moreover, Kumar Suresh 2014.05.26 10:47 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1765-SB of 2010 11 the information was sent to the DSP who reached the spot. Even otherwise, these provisions are only directory and not mandatory as held by Hon'ble Apex Court in Gurbax Singh Vs. State of Haryana, 2001(3) SCC28 33. In view of the discussion made above, I find that learned trial Court rightly held the charge against the appellant to be duly established. There is no scope of interference in the judgement of conviction passed by trial Court, which is affirmed. It deserves to be noticed that the appellant has been sentenced to undergo Rigorous Imprisonment for a period of two years in default of payment of fine of Rs.1,00,000/-. In find that it would be sufficient if the period of sentence in default of payment of fine is reduced from two years to one year's Rigorous Imprisonment. It is ordered accordingly. With the aforesaid modification in the sentence relating to the default clause for non-payment of fine, the appeal on merits is dismissed. (R.P. Nagrath) 07.05.2014 Judge sk Kumar Suresh 2014.05.26 10:47 I attest to the accuracy and integrity of this document Chandigarh