Amrik Singh vs State of Punjab

A.N. Jindal, J.—Accused-appellants Babu Singh, Jasbir Singh @ Kala and Amrik Singh were indicted for having 420 kgs (14 bags) of

poppy husk in their possession. Consequently, they were tried, convicted and sentenced to undergo rigorous imprisonment for twenty years and to

pay fine of Rs. 2,00,000/- each u/s 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein referred as, the Act) and accused-

appellant Babu Singh has been further awarded rigorous imprisonment for ten years and to pay fine of Rs. 1.00 lac u/s 25 of the Act. Brief resume

of facts is that on 8.7.2004, SI Bhupinder Singh along with other police officials was going for patrolling from Budhlada to village Ralli, on a

government gypsy. When they reached near Guru Nanak Collage, Budhlada, the accused were found shifting the bags from the truck bearing

registration No. HR-26-3445 to tractor-trolley bearing registration No. PBV 1898. In the meanwhile, SI Bhupinder Singh joined Jagmohan Singh.

One of the accused who was sitting on the driver seat of the truck, on seeing the police party escaped by getting benefit of the darkness, whereas,

two persons, who were shifting the bags were arrested and found to be Babu Singh (owner of the truck) and Amrik Singh. On suspecting that

there was some contraband in the bags, the Investigating Officer flashed the wireless message to requisite the presence of Gazetted Officer at the

spot, in response to which DSP Balbir Singh Khaira reached there. In the presence and as directed by the latter, the accused were given option to

be searched in the presence of the Gazetted Officer or a Magistrate, however, both the accused opted to be searched before DSP Balbir Singh

Khaira consequently, two memorandums were recorded in that respect. On search of the vehicles, 10 bags were recovered from the truck and

four bags were found in the trolley attached to the tractor, which were found to be containing poppy straw. All the 14 bags were marked as Sr.

No. 1 to 14. Thereafter two samples weighing 100 grams from each bag were taken out and the remainder bags came to be 29.800 kilograms

each. The Investigating Officer sealed the bags as well as the sample parcels with his seal bearing impression ""JUS"" and the seal after use was

handed over to PW Jagmohan Singh. The sample parcels were also numbered as 1-S to 14-S and 1 -SD to 14-SD. The sample parcels, bulk

poppy husk as well as the truck and the tractor trolley were taken into possession while recording a memo. The accused failed to produce any

permit or licence for keeping such huge poppy husk in their possession. The Investigating Officer also prepared a rough site plan of the place of

occurrence, recorded statements of the witnesses and on return to the police station deposited the case property in the malkhana. SI Bhupinder

Singh then dispatched the special report in terms of Section 57 of the Act and the case property along with accused were produced before Illaqa

Magistrate on the next day i.e. 9.7.2004. After verifying and affixing his signatures, the Illaqa Magistrate passed the necessary orders and there

being no space in the judicial malkhana, the case property was ordered to be deposited with the police malkhana.

The Investigating Officer on 21.7.2004, completed the FSL form and sent the sample parcels to the Chemical Examiner through C. Dilbagh

Sigh on 22.7.2004. Ultimately challan was presented and the accused were charge sheeted.

The accused Jasbir Singh alias Kala, who escaped from the spot was arrested on 8.3.2005. Consequently, supplementary challan was

presented against him.

During trial, the prosecution examined C. Dilbagh Singh (PW 1), DSP Balbir Singh Khaira (PW 2), SI Bhupinder Singh (PW 3), Gurtej Singh

(PW 4) and HC Visakha Singh (PW 5).

When examined u/s 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false

implication in the case. In defence, the accused examined Jagmohan Singh (DW 1), Narata Singh (DW 2) and Gurchran Singh (DW 3).

The trial resulted into conviction.

Arguments heard. Record perused.

S/Shri Satnam Singh, K.S. Sandhu and Surya Parkash, Advocates have assailed the impugned judgment while raising multi fold contentions viz-

a-viz, conscious possession of the accused over the contra band has not been proved; recovery of the poppy husk has not been proved beyond

doubt; provisions of Section 50, 52 and 57 of the Act stand violated, consequently, the recovery is vitiated; the case property was kept in police

malkhana in violation of the order passed by the Illaqa Magistrate over the inventory Ex. PS.

As regards the contention that the provisions of Section 50 of the Act were not complied with. It is observed that the Investigating Officer has

specifically stated that he had asked the accused in the presence of DSP Balbir Singh if they wanted to get themselves searched before a

Magistrate or a Gazetted Officer, but the accused reposed confidence upon DSP Balbir Singh, as such, search was effected in his presence. All

the formalities regarding search were effected in the presence of DSP Balbir Singh. In any case, even non compliance of Section 50 of the Act did

not in any way vitiate the recovery as Section 50 of the Act is not attracted in cases of the recovery from dwelling unit, animal, vehicle or other

conveyance, but it is only attracted in case of personal search. Here in this case, the recovery was effected from the tractor trolley as well as truck

therefore, Section 50 of the Act are not attracted.

As regards the appreciation of evidence, we have the evidence of two witnesses namely, DSP Balbir Singh (PW 2) and SI Bhupinder Singh

(PW 3). Both are quite consistent in their statements regarding time, place and the manner in which the occurrence had taken place. Both have

stated that the accused were seen shifting the poppy husk from the truck to the tractor trolley. The minor discrepancies, which are bound to occur

in the statements of the truthful witnesses due to loss of memory on account of passage of time, they have withstood the test of cross examination.

Minor variations in their statements not effecting the substratum of the prosecution case are hardly sufficient to vitiate the recovery. Some times,

minor discrepancies occur due to the strenuous cross examination subjected upon the witnesses. No parrot like version could be expected from

truthful witnesses.

As regards the argument with regard to lacking of the evidence of conscious possession, we do not countenance the same. It was night time

and there was no occasion for the accused to park their truck and the tractor trolley while joining their backs. The accused were actually shifting

the bags and they have failed to give any plausible explanation for their presence at the place of occurrence at that hour of night. Both the witnesses

have stated that Babu Singh and Amrik Singh were present at the spot. Though the case of Jasbir Singh alias Kala is quite different. Neither he was

arrested at the spot nor he was even participating in the commission of the crime. The only allegations against him is that he was sitting in the cabin

of the driver. He was actually not driving the vehicle at that time, therefore, he cannot be said to be transporting the contraband. However, even if

the presence of Jasbir Singh alias Kala is doubted, yet the case against Babu Singh, and Amrik Singh, who were shifting the bags from the truck to

the tractor trolley stands established. No amount of evidence has been led to establish that they were not present at the time of occurrence. In the

absence of any plausible explanation about their presence at the spot, it would be treated as established that they were in conscious possession of

the contraband.

However, regarding Jasbir Singh alias Kala, it has been stated by SI Bhupinder Singh that it was Jagmohan Singh, who had identified Jasbir

Singh @ Kala, but during cross examination he has stated that he had seen the accused in the process of shifting the poppy husk. This improved

version appears to have come out for the reason that Jagmohan Singh (the alleged identifier) has not been examined. Therefore, we are unable to

believe the testimony of SI Bhupinder Singh for two reasons viz he has made material improvement while stating that he had seen Jasbir Singh

while lifting the bags or his statement is based on hearsay. It is not the case of the prosecution that he was driving the tractor. It is also no where

mentioned that he was driving the vehicle or had any control over the contraband. Though HC Visakha Singh (PW 5) has stated that he had

identified the accused Jasbir Singh alias Kala. The Investigating Officer has not stated in the ruqa that HC Visakha Singh (PW 5) had identified

him, rather it was specific case of prosecution that Jagmohan Singh had identified the accused. As such, non examination of Jagmohan Singh

seriously effects the prosecution case regarding the complicity of Jasbir Singh alias Kala. The fact that Jasbir Singh alias Kala was not arrested at

the spot and nothing was recovered from him also goes a long way to prove his innocence.

As regards non production of case property before the court during trial, the Full Bench of this Court in case Balraj Singh Vs. The State of

Punjab, has observed as under:-

It is the actual possession of the contraband property by the accused at the material time which is crucial issue to be established. Production of

case property later in court is only corroborative piece of evidence. If direct evidence is credible and unimpeachable and in view of the court is

sufficient to establish the charge and a consequent conviction if cannot be said that whole of it would lose all its value by mere non production of

the case property which is merely corroborative. It must always be borne in mind that the trial of offence is a matter of substance which turns on

the weight and credibility of direct evidence and not merely on the technicalities of procedure.

Reference in this regard could also be made to sub-section 4 of Section 52-A of the Act which reads as under:-

Not with standing anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every

court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of

samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.

In this case also, inventory Ex. PS dated 19.7.2004, was prepared which inter alia, contains the statement regarding 28 samples of 100 grams

each and 14 bags of poppy husk weighing 29.800 kilograms each. On the said Inventory, the Illaqa Magistrate passed the following order:-

Case property i.e. 28 samples of poppy husk weighing 100 grams each seals BS (each samples), 14 bags of poppy husk (each containing 29 kg.

800 gms bearing seals impression BS) produced in the court. Seals on the samples as well as bulk are found intact. Truck bearing No. HR-26-

3445, tractor bearing No. PB V 1898 along with trolley produced in the court. Seals on the case property as well as sample are seen and attested

and the same are ordered to be deposited in judicial malkhana.

As such, the argument that the case property was not produced in the court during trial is of no consequence.

So far as the question of non deposit of the case property in the judicial malkhana is concerned, the case property was duly produced before

the Illaqa Magistrate with the inventory for the purpose of disposal of the same under subsection 4 of Section 52-A of the Act, thus, it cannot be

said that the case property was not produced before the Illaqa Magistrate. In the case in hand, it has remained undisputed that the sealed parcels

of the case property were produced by the Station House Officer. Inspector Bhupinder Singh (PW 3) before the Magistrate vide inventory Ex. PS

and the application Ex. PR. On the inventory, the Illaqa Magistrate has ordered that sample parcels of the case property bearing seal impressions

''BS'' and fourteen gunny bags also carrying the same seals were produced before her. The seals were intact and the Illaqa Magistrate had

appended her signatures on the sealed parcels. In this view of the matter, the destruction of the bulk as also storage of the case property in Police

Malkhana instead of Judicial Malkhana is rendered inconsequential, more so when the correctness of the orders of the Magistrate has remained

unchallenged.

As regards the ownership of the truck bearing registration No. HR-26-3445 from where the poppy husk was transported to tractor trolley

No. PBV 1898, it may be observed that the registration certificate of the aforesaid truck, which was recovered from its toolbox and taken into

possession by the Investigating Officer vide memo Ex. PT, it transpires that the same was issued by the District Transport Officer, Fatehabad and

was transferred in the name of the accused Babu Singh son of Leelu Singh. As such we have no hesitation to hold that the accused Babu Singh

was the owner of the aforesaid truck and has rightly been convicted by the trial court for the offence u/s 25 of the Act.

Since the prosecution has failed to prove the identity of the accused Jasbir Singh alias Kala and his complicity in the commission of the crime,

therefore, he deserves to be extended benefit of doubt, whereas, the case against the remaining accused stand duly established.

Now coming to the quantum of sentence, keeping in view the nature of allegations and the recovery so effected from them, the sentence of 20

years is certainly on the higher side, therefore, we deem it appropriate and it would also be expedient in the interest of justice if the sentence is

reduced to minimum. For the foregoing reasons, this appeal qua Jasbir Singh alias-Kala is accepted and he is acquitted of the charge framed

against him, whereas the appeal qua the remaining accused is dismissed with the modification in the sentence which is reduced to 10 years and fine

to Rs. 1.00 lakh each whereas sentence u/s 25 of the Act passed against Babu Singh would remain intact. In default of payment if fine, they shall

further undergo rigorous imprisonment for six months each.