Budh Ram vs State of Punjab

Rameshwar Singh Malik, J.—These two appeals are directed against the judgment dated 28.11.2005, passed by the learned trial Court. The first Criminal Appeal No. 75-DB of 2006 has been filed by appellant-Budh Ram, whereas the second Criminal Appeal No. 164-DB of 2006 has been filed by Ram Niwas. Since these appeals are against the same judgment of conviction and order of sentence, both are being decided by this common judgment. However, for the facility of reference, facts are being taken from Crl. Appeal No. 75-DB of 2006. The facts, which emerge from the FIR EX. PK./1, are that on 27.4.2000, Inspector Baljit Singh, SHO Police Station, Sardulgarh, along-with police party, was holding a picket in the area of village Ahlupur, at the distance of about 1.1/2 kms. from the village. After some time, at about 5.45 AM, Ajmer Singh s/o. Sadhu Singh, Jat resident of Ahlupur came from the side of village Ahlupur. When Inspector Baljit Singh was talking with Ajmer Singh, in the meantime, a jeep came from Khiala Khurd''s side, which was being driven at a high speed. Head Constable Bharpur Singh signaled the jeep to stop. There were two occupants in the jeep, who, after stopping the jeep, tried to run away. However, they were apprehended by Inspector Baljit Singh with the help of other members of the police party. On enquiring about their name and address, driver of the jeep disclosed his name as Ram Niwas son of Krishan Kumar, Jat by caste resident of Kalu-was, Police Station Tara Nagar, Distt. Churu (Rajasthan) and the person, who was sitting on the seat by the side of the driver, disclosed his name as Budh Ram son of Gori Shankar Sharma, resident of Kalu was, Police Station Tara Nagar, Distt. Churu (Rajasthan). The Investigating Officer told the accused persons that he had suspicion that the gunny bags loaded in the jeep had some narcotic substance and were liable to be searched. He informed the accused that they had a right, to have the bags searched before a Gazetted Officer or a Magistrate on the spot or they alongwith the jeep, could be taken before any of them. Both the accused opted to get search of the jeep and the bags effected in the presence of a Gazetted Officer. Two separate memos of knowledge of right and consent were prepared and were read over to both the accused separately. Request was made to the Police Station Saddulgarh through wireless for sending any Gazetted Officer at the spot. After about one hour, D.S.P., Amarjit Singh, Sub Division Sardulgarh, reached at the spot at about 8 AM on a government vehicle alongwith his gunman. He was apprised about all the circumstances. He told accused Ram Niwas and Budh Ram turn by turn that he was Amarjit Singh, D.S.P., and posted at Sub Division Sardulgarh, being a Gazetted Officer of the Punjab Government. He suspected that some-narcotics substance was in their possession in the jeep and search thereof was to be conducted. They were further informed that they have legal right to get the search of their jeep conducted, before him or any other Gazetted Officer. Both the accused offered that the search of their jeep be got conducted before the D.S.P., Sardulgarh. As per the directions of the D.S.P., S.H.O./Inspector Baljit Singh conducted the search of the jeep bearing No. RJ-10-C-1594, of blue colour mark Commander, before the witnesses, as per rules. 15 bags of poppy straw were recovered from the jeep. Recovered bags were unloaded from the jeep and marked as mark 1 to 15. Out of each bag, 100/100 gms. of poppy straw was taken out as 2/2/samples and parcels were prepared. Remaining poppy straw in each bag was weighed, which came out 34 kg. 800 gms. in each bag. All the parcels of samples and 15. parcels of gunny bags were sealed by the S.H.O., with his seal bearing impression of ''BS''. After use, seal was handed over to witness Ajmer Singh. The jeep as well as all the samples and parcels of poppy straw were taken into police possession, vide separate recovery memos. Both the accused could not produce any permit for carrying poppy straw in their possession. Thus, a case for commission of offence under Sections 15 /61 /85 of Narcotic Drugs and Psychotropic Substances Act, 1985 (''NDPS Act'' for short) was found to be made out against both the accused, by keeping 5 quintals 25 kgs. of poppy straw in their possession. Written ruqa was sent to the Police Station through Constable Harpal Singh 626, with a direction that after registration of the case, number of the case be intimated, special reports be issued and PCR be informed through wireless. The S.H.O./I.O. started the investigation at the spot. On the basis of above said ruqa, FIR No. 62 dated 27.4.2000 was registered by MHC Parveen Kumar against accused Ram Niwas and Budh Ram. Special reports were sent to the higher officers and the Illaqa Magistrate, as per rules.

During the investigation, the Investigating Officer arrested the accused after disclosing to them, the ground of their arrest. Rough site plan of the place of recovery, with correct marginal notes, was prepared. Statements of witnesses were recorded. On reaching the Police Station, case property was deposited and the accused persons were lodged in the police lock up. On conclusion of the investigation, report u/s 173 Cr.P.C., was presented to the Illaqa Magistrate.

The relevant documents were supplied to the accused. The offence having been found to be exclusively triable by the Court of Session, the case was committed to the learned trial Court. A prima facie case was found to be made out against the accused. Accordingly, charge was framed against them.

The learned trial Court issued notice to Dalip Kumar but accused Mohan Lal made an application for the release of the jeep on superdari claiming himself to be the owner thereof. Since there were sufficient grounds found against him, he was ordered to be arrayed as an accused to proceed against him u/s 25 of the NDPS Act. Thereafter, an amended charge was framed on 10.6.2003, which was further amended on 27.5.2004. The accused pleaded not guilty and claimed trial.

With a view to prove its case, the prosecution. examined five prosecution witnesses, besides tendering the documents in evidence. After closing the prosecution evidence, statements of the accused were recorded u/s 313 Cr.P.C. All the incriminating material brought on record was put to the accused, who alleged false implication and claimed complete innocence. The present appellants Budh Ram and Ram Niwas stated that they have been falsely implicated at the instance of Bhani Ram and Om Parkash son of Gugan Ram of village Dungar Singh Pura and Malsi-sir, respectively, Mohan Lal accused pleaded that he purchased the jeep from Dalip Kumar on 1.12.1995 but the jeep was yet to be registered in his name. He further stated that jeep was stolen and FIR No. 61 dated 29.4.2000 had been lodged by him, in this regard, in Police Station Tara Nagar. He also stated that he had no knowledge of the recovery effected from the jeep nor he ever gave consent for use of-the jeep in the commission of offence. However, no defence evidence was produced.

After hearing the parties and appreciating the evidence, the learned trial Court found that the prosecution could not prove its case against accused Mohan Lal. Accordingly, accused Mohan Lal was acquitted of the charge framed against him holding that the prosecution has brought home the guilt only against the present appellants. They were held guilty and convicted for the offence punishable u/s 15 of the NDPS Act, vide impugned judgment of conviction dated 28.11.2005. Accordingly, both the convicts were awarded sentence to undergo R.I. for 20 years and to pay fine of Rs. 2 lacs each for the offence punishable u/s 15 of the NDPS Act. In default of payment of fine, each of the convicts was further ordered to undergo RI for three years, vide order of sentence dated. 28.11.2005.

Feeling aggrieved against the above-said impugned judgment of conviction and order of sentence of even date i.e. 28.11.2005, the appellants have approached this Court by way of abovesaid two appeals. That is how, this Court is seized of the matter.

Learned counsel for the appellants vehemently contended that the alleged recovery of poppy straw was not effected from the conscious possession of the appellants. Everything was done by the investigating officer while sitting at the police station. He also submits that the case property remained in the possession of the investigating officer. Number of the FIR was written in the same handwriting in all the relevant documents, which creates doubts, in the prosecution story. They concluded by submitting that there were very many discrepancies in the case of the prosecution and the impugned judgment was liable to be set aside. To substantiate their argument, learned counsel for the appellants relied upon the judgments reported as Kashmir Singh Vs. State of Punjab Raj Kumar Vs. State of Punjab, ) Dayal Singh and Another Vs. State of Punjab, Bhola Singh Vs. State of Punjab, Mohan Singh Vs. State of Punjab, (Mohan Singh v. State of Punjab), 2006 (1) RCR (Crl.) 835 (P & H) Rajesh Jagdamba Avasthi Vs. State of Goa, Naushad Vs. State of Kerala, Ritesh Chakravarti Vs. State of M.P. Ajay Malik and Ors Vs. State of U.T., Chandigarh

Per contra, learned counsel for the State submitted that the recovery was effected at the place of occurrence, after meticulously following the procedure established by law. The contraband was recovered from the conscious possession of the appellants. The case property remained in the proper custody. A bare perusal of the relevant documents would show that the number of FIR was not in the same handwriting. He further contended that there was no serious contradiction in the case of prosecution. Whatever minor discrepancies were there, these were natural and do not go to the root of the case causing any dent in the prosecution story. She further submitted that the judgments relied upon by the counsel for the appellants were not applicable in the present case, as the same were distinguishable on facts.

We have heard the learned counsel for the parties and with their able assistance, have gone through the record of the case.

After giving our thoughtful consideration to the rival contentions raised and also keeping in the view the peculiar fact situation of the present case, this Court is of the considered opinion that so far as the conviction of the appellants is concerned, the same is justified on facts as well as on law. However, keeping in view the totality of facts and circumstances of the case, we are of the view that sentence awarded to the appellants is on higher side and the same is liable to be reduced. So far as the evidence led by the prosecution is concerned, it is plausible, natural and. trustworthy, besides being convincing as well.

P W-1 was ASI Bharpur Singh, who duly sup-. ported the prosecution version. He stated that on 27.4.2000, he was posted as Head Constable Police Station Sardulgarh. On that day, he joined the police party headed by SHO Baljit Singh. The police party was present in connection with nakabandi and checking of suspected persons in the revenue limits of village Ahlupur. A jeep was seen coming from the side of Khera Khurd. He signaled the jeep to stop. The accused were present in the jeep and they tried to run away. Accused Ram Niwas was driving the jeep and Budh Ram was sitting on the seat by the side of the driver. SHO apprehended the accused with the help of other members of the police party. They were duly informed about their rights to get the search conducted in the presence of gazetted officer or Magistrate and they could be taken be-. fore either of the gazetted officer or the magistrate. The accused opted to get the search conducted in the presence of gazetted officer. Separate memos were prepared in this regard as Ex. PA qua accused Ram Niwas and Ex. PB qua accused Budh Ram. The search was conducted in the presence of DSP Amarjit Singh of Sardulgarh, who disclosed his identity to the accused and informed them about their right to get the search conducted before any other gazetted officer or the magistrate. Thus, he concluded that search was conducted and recovery was effected after following the due procedure. This witness was examined at length but nothing could be extracted from him which might cause any kind of doubt in the story of the prosecution.

PW-2 was Amarjit Singh, DSP. He also supported the prosecution story. He duly proved that the search of the appellants and recovery effected from them was strictly, in accordance with law. In his cross-examination, nothing objectionable could be extracted from this witness also. Perusal of the record of the learned trial Court shows that HC Baldev Singh (Retd.), who was a formal witness, was also produced as PW-2. The record of the learned trial Court further shows that DSP Amarjit Singh seems to have been examined again but on the same lines on 19.4.2004, as PW-3.

PW 4 was Inspector Baljit Singh, Investigating Officer, who was produced as PW-4. He has proved the case of the prosecution on all the material aspects of the matter. He stated that on 27.4.2000, he was posted as SHO Police Station, Sardulgarh. On that day. he alongwith HC Bharpur Singh and other police officials, was holding a nakabandi in the area of village Ahlupur on the kacha path which leads to village Khaila Khurd at about 1-1/2 kms from Ahlupur. PW Ajmer Singh came there at about 5.45 a.m. When he was talking with Ajmer Singh, in the meantime, a jeep came from the side of village Khiala Khurd at a high speed. HC Bharpur Singh signaled to stop. Two persons tried to run away by stopping the jeep. Accused Ram Niwas was the driver of the jeep and Budh Ram was sitting with him. He apprehended both the accused. Both the accused were told one by one that he suspected some intoxicating articles in the gunny bags in their possession carried by them in the jeep. They were informed that they had a right to get the search conducted in the presence of gazetted officer or magistrate and they could be taken before either of them.

Both the accused opted to get the search conducted in the presence of gazetted officer. Two separate memos were prepared in this regard, Ex. PA of Ram Niwas and Ex. PB of Budh Ram, which were read over to the respective accused, who signed the same in token of their correctness. HC Bharpur Singh and Ajmer Singh witnessed the same. Thereafter, he sent a wireless message to call a gazetted officer at the spot at about 8.00 a.m. DSP Amarjit Singh came at the spot alongwith his gunmen. He disclosed his identity to both the accused one by one that he was posted DSP Sardulgarh and was a gazetted officer. He further informed the accused that he suspected some intoxicating article in their possession. They had a right to get the search of the jeep conducted before either any other gazetted officer or magistrate or before him. Both the accused one by one opted to get the search conducted in the presence of DSP. Memo Ex. PC qua Ram Niwas and memo Ex. PD qua accused Budh Ram, were prepared in this regard. These were read over to respective accused, who signed the same in token of their correctness. DSP Amarjit Singh, PW Ajmer and HC Bharpur Singh witnessed the same.

Thereafter, on the direction of DSP, he conducted the search of jeep. 15 bags of poppy straw were recovered from the said jeep and they were marked as 1 to 15. Two samples of 100 gms each were taken out and parcels were prepared. The remaining poppy straw, on weighment came out to be 34 kg 800 gms in each bag. Separate parcels were prepared. All the sample parcels were sealed by him with seal impress ''BS'' and the samples seal was prepared at the spot. The seal after use was handed over to PW Ajmer Singh.

The entire case property alongwith jeep was taken into police possession vide memo Ex. PE, which was witnessed by PW Ajmer, HC Bharpur Singh and DSP Amarjit Singh. Thereafter, ruqa Ex. PK was sent to the police station, on the basis of which, formal FIR Ex. PK/1 was recorded by MHC Parveen Kumar. He arrested the accused Ram Niwas and Budh Ram, after disclosing them the grounds of (sic) Memo Ex.PG of Ram Niwas and men (sic) of Budh Ram were prepared in this regard Personal search of both the accused was conducted by him. Memo Ex. PH of Ram Niwas and memo Ex. P1 of Budh Ram were prepared, which were signed by the respective accused and witnessed by PW Ajmer Singh, HC Bharpur Singh and DSP Amarjit Singh. Rough site plan Ex. PL with correct marginal notes was prepared by him. He recorded the statements of prosecution witnesses. On return to the police station, he kept the case property in his custody and confined the accused in police lock up.

On the next day, both the accused were produced before the Illaqa Magistrate vide application Ex. PM and inventory report Ex. PN. The learned Magistrate passed order Ex. PM/1. Since sufficient space was not available in the malkhana, he kept the case property in his custody. On 2.5.2000, Chet Ram produced before him the registration certificate of the jeep Ex. PO and the same was taken into possession vide memo Ex. PQ. It was witnessed by C-1 Harpal Singh. Statement of constable Harpal Singh was recorded. On 7.5.2000, he handed over 15 sample parcels alongwith sample seal and form No. 29 Ex. PR through C. Baldev Singh for depositing the same in the office of FSL Chandigarh. Said constable, after preparing docket, deposited the same on 8.5.2000 and produced the receipt before him. So long, the case property remained in his custody and none has tampered with it. On 28.4.2000, special report Ex. PS was sent by him to the higher authorities, which was received by DSP on the same day and he made endorsement Ex. PS/1. Statements of other witnesses were also recorded Jeep had been released on superdari in favour of accused Mohan La). On receipt of report of FSL, Ex. PR/1 and completion of investigation, report u/s 173 Cr.P.C. was prepared, which bears his signatures. This witness was put to a very lengthy cross-examination but nothing substantial could come out from him which might be said to be a serious contradiction, causing any doubt in the prosecution story. Thus, we have no hesitation to conclude that this witness had successfully stood the acid test of cross-examination.

PW-5 Constable Rohtash was again a formal witness. Accused Mohan Lal stated in his statement recorded u/s 313 Cr.P.C. that he purchased the jeep from his previous owner Dalip Kumar son of Chet Ramon 1.12.1995 but the jeep was yet to be transferred in his name by the competent registering authority. He had lodged FIR No. 61 dated 29.4.2000 in Police Station Tara Nagar regarding the theft of jeep. He further stated that he had no knowledge regarding the alleged recovery effected from the jeep nor he had given any consent for this alleged act.

Accused Ram Niwas and Budh Ram alleged false implication at the instance of Suresh Kumar and Om Parkash residents of village Dungar Singh Pura and Malsi-sir, respectively, due to previous enmity.

After a careful perusal of the evidence brought on record by the prosecution and also the impugned judgment of the learned trial Court, this Court is of the considered view that the learned trial Court has rightly extended the benefit of doubt to accused Mohan Lal and he was acquitted of the charge framed against him. The learned trial Court has recorded cogent findings against both the appellants while recording their conviction and the same read as under:

P. W. 2 Baldev Singh a retired Head Constable is the same person to whom the sample parcels were handed over by P.W. 4 Inspector Baljit Singh for being deposited in Forensic Science Laboratory, Punjab Chandigarh. He has placed on record his affidavit Exh. PJ to the effect that on 7.5.2000 Inspector Baljit Singh had handed over to him 15 parcels of poppy husk carrying seals ''BS'' alongwith Form No. 29 for being deposited. in Forensic Science Laboratory, Punjab Chandigarh. He got a docket prepared and deposited said samples in the above said Laboratory on 8.5.2000 with all seals intact and during transit neither he himself tampered with the same nor allowed anybody else to do it. This witness has not been cross-examined on behalf of the defence. This means that defence has nothing to dispute the correctness of the statement made by this witness in his affidavit Exh. PJ. To put otherwise, version of the prosecution as put forth by this witness in the affidavit Exh. PJ to the effect that the sample parcels when handed over to him were having all the seals intact and were delivered by him in Forensic Science Laboratory with all seals intact and without allowing anybody or himself to tamper with the same during transit.

Report received from the Forensic Science Laboratory, Punjab, Chandigarh has been placed on record of this case as Exh. PR/1. It also confirms that 15 parcels No. 1 to 15 were received in the laboratory with all seals intact and agreeing with the sample seal. It has also been recorded in this report that on chemical analysis, the sample parcels were found to contain poppy husk.

From the above stated evidence, it becomes evident that the samples were drawn on the spot, were put into separate parcels and were sealed. These were kept by P.W. 4 Inspector Baljit Singh in his own custody till these were handed over to P.W. 2 Baldev Singh and as noticed herein-above statement of fact made by P.W. 2 Baldev Singh that the sample parcels when handed over to him had seals intact, has remained undisputed., Similarly, a statements made by P.W. 4 Inspector Baljit Singh and P.W. 2 HC Baldev Singh that the sample parcels 3 not allowed to be'' tampered with by anybody when these were in their respective custody, have also remained unchallenged in so far as the witnesses have not been cross-examined in respect of such statements made by then nor any of the witnesses of the prosecution, particularly P.W. 4 Inspector Baljit Singh and P.W. 2 HC Baldev Singh, was confronted with the plea that the parcels when sealed had some substance other than poppy husk and these were re-filled by changing/substituting their contents with poppy husk either in the Police Station during the transit. It also needs to be pointed out here that evidence of P.W. 4 Inspector Baljit Singh to the effect that the case property was kept by him in his custody has also remained unquestioned. At the same time, the defence has not been able to bring any thing either in the cross-examination of this witness or by bringing any evidence in defence from which it could be inferred or concluded that the bags when recovered contained something other than poppy husk and the contents of the bags and the samples parcels were substituted by this witness or by anybody else at his instance at a subsequent stage or either of the witnesses of the prosecution was inimical towards the accused or had his own axe to grind by implicating the accused persons falsely in this case. Even otherwise, the quantity of poppy husk involved in the matter is 15 bags of 35 kgs each and such a huge quantity cannot be believed to have been planned by the police officer/official upon the accused, more so when no enmity between the accused and the police personnel has been established or suggested. That being so, the contentions raised on behalf of the defence with respect to non-examination of independent witness with respect to the time of handing over of the seal to the Investigating Officer, non-production of malkhana register, non-explanation of delay in sending the sample parcels to Forensic Science Laboratory, Punjab Chandigarh, and admission on P.W. 1 Asstt. Sub Inspector Bharpur Singh to the effect that some of the bags when shown to him at the time of his deposition before the Court were torn, are found to be of no assistance and the judgments relied upon by the defence in support of its plea of little avail to it.

Learned counsel for the appellants could not point out any patent illegality in the impugned judgment persuading this Court to take a different view than the one taken by the learned trial Court. The evidence led by the prosecution was reliable and convincing. No serious contradiction or discrepancy has been pointed out which may create any doubt in the prosecution version. Much stress was laid down by the counsel for the appellants on conscious possession emphasising that since the word conscious was not specifically stated, word possession alone was not sufficient to prove the recovery. Considering this star argument raised by the counsel for the appellants in the context of the present case and also keeping in view the peculiar fact situation of this case, the same has been found without any substance. We say so because the prosecution has'' successfully brought home the guilt against the convicts-appellants by leading cogent evidence. Recovery stands duly proved. Having said that, it is unhesitatingly held that although there is no dispute about the law laid down in the judgments relied upon by the counsel for the appellants yet the same are not applicable in the present case, being distinguishable on facts. It is the settled proposition of law that peculiar facts and circumstances of each case is to be seen and appreciated first, before applying any codified or judge maid law thereto.

In the present case, prosecution witnesses have deposed before the Court in natural manner and successfully facing the test of cross-examination without leaving any room for doubt. FSL report Ex. PR/1 has also been duly proved. Despite the lengthy cross-examination, nothing could be extracted from the statements of prosecution witnesses, which might have caused a dent in the prosecution version. Thus, it is held that the learned trial Court has not committed any illegality while recording the conviction of the appellants.

Considering the totality of facts and circumstances of the present case noted above, coupled with the reasons aforementioned, conviction of the appellants is upheld. However, in view of the peculiar fact situation of the present case, we are of the view that sentence of 20 years and fine of Rs. 2 lacs each awarded to the appellants, is unduly harsh. Thus, it is just and expedient that the sentence awarded to the appellants is ordered to be suitably reduced.

Keeping in view the peculiar facts and circumstances of the case, we are of the view that ends of justice would be adequately met if the'' sentence of the appellants is reduced to undergo RI for 12 years and to pay fine of Rs. 1 lack each. Accordingly, the sentence of the appellants is reduced to undergo R1 for 12 years and to pay fine of Rs. 1 lack each. However, the default clause remained the same. The sentence of imprisonment of appellant Budh Ram was suspended by this Court vide order dated 7.12.2011 passed in CRM No. 59505 of 2011 in CRA D-75-DB of 2006. His bail bonds are cancelled. He be taken into custody to serve his remaining sentence.

Resultantly, both the appeals are partly allowed.