Chuhar Singh, Jarnail Singh and Avtar Singh vs State of Punjab

Virender Singh, J.—Chuhar Singh son of Mohinder Singh, resident of village Gongon, Jarnail Singh son of Udham Singh, resident of village Iberhaimpur and Avtar Singh son of Mehar Singh, resident of village Golian have been convicted u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) vide impugned judgment dated November 18, 1995 of learned Additional Sessions Judge, Hoshiarpur and have been sentenced to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1,50,000/- each, in default of payment of fine to undergo further RI for three years. However, Shangara Singh son of Swaran Singh, resident of Bullowal, who was also booked alongwith the present three appellants, has been acquitted by the trial Court. No appeal has been filed by the State against his acquittal.

A truck bearing registration No. PCH-5497 loaded with 105 bags of poppy husk power was apprehended on October 10, 1994 at about 4-00 AM in village Panam within the jurisdiction of police station Garhshanker, District Hoshiarpur.

In brief, the case of the prosecution is that on 9-10-1994, Mukhtiar Singh DSP Garhshanker (PW3) received a secret information that Chuhar Singh and Jarnail Singh appellants were coming in a truck No. PCH-5497, loaded with poppy has, powder from Balachaur to Garhshanker. On the basis of the said information, DSP Mukhtiar Singh (PW3) gave a wireless message to Inspector/SHO Kamal Ram PW2, directing him to reach with his officials at T-point in the area of Garshanker on Nawanshahar road. Thereafter DSP Mukhtiar Singh (PW3) and Inspector Kamal Ram (PW2) reached there. DSP Mukhtiar Singh and SI Ram Kamal Ram (PW2) to hold nakabandi near a bridge of canal and thereafter DSP Mukhtiar Singh and SI Ram Singh alongwith other officials held a nakabandi on a miner canal bridge in the area of village Panam, tehsil Dasuya. At about 4-00 AM a truck came from the side of Balachaur and the same was stopped by giving signal with the torch light. The present three appellants and Shangara Singh (since acquitted) were found sitting on the front seat. Avtar Singh appellant was driving the truck. DSP Mukhtiar Singh informed the appellants that he had to search the truck as he had the suspicion that it was carrying poppy husk bags. He then made an offer to them as to whether they wanted to conduct personal search of the police officials before the truck could be searched. The accused replied that they did not want to conduct their personal search and that the police officials could search the truck. Consent memo. (Exhibit PA) was reduced into writing in this respect. which was duly signed by all the four accused and was attested by Inspector Kamal Ramand SI Ram Singh. Thereafter the truck was searched and it was found loaded with a number of bags, which were covered with a tirpal and rope. The truck was got unloaded and the bags were then counted, which were found to be 105 in number. These bags were found to contain poppy husk powder. Each bag was weighed and it contained 40 Kilograms of poppy husk, including the weight of the bag. Thereafter DSP Mukhtiar Singh extracted 250 grams of poppy husk from each bag separately and sealed all the 105 bags containing the remaining poppy husk powder. 105 samples were also sealed with the seal of SI Ram Singh having the seal impression ''RS''. All the bags (Exhibits P1 to P105) and 105 sample parcels, the truck, tirpal and rope were taken into possession vide recovery memo. (Exhibit PB). From the search of the cabin of the truck, a national permit (Exhibit P 108), three other permits (Exhibits P109 to P111), one Authorization Certificate (Ex. P112), the Insurance Policy Book (Ex. P113), Registration Certificate (Ex. 114) were recovered and the same were also taken into possession vide separate recovery memo. (Exhibit PE). Ruqqa (Ex. PJ) was sent to the police station, on the basis of which FIR (Exhibit PJ/1) was registered by Paramjit Singh MHC (PW-4). The rough site plan was also prepared at the spot. DSP Mukhtiar Singh after investigating the case partly handed over the investigation to PW2 Kamal Ram SHO. He deposited 105 bags, 105 sample parcels, truck, rope and tirpal besides other documents with MHC Paramjit Singh with all the seals intact. Inspector Kamal Ram thereafter searched the house of Chuhar Singh appellant and recovered Rs. 70,000/- in cahs, bank pass-book and the same were taken into possession vide recovery memo Exhibit PD. The samples were sent to the Chemical Examiner and after receipt of the report of chemical analysis (Ex. PG), all the four accused were challaned.

After committal proceedings, the appellants and Shangara Singh (since acquitted) were charged u/s 15 of the Act.

The prosecution in order to substantiate its allegations against the accused examined as many as 5 witnesses:

PW-1 is SI Ram singh, whose statement is to the effect that on 10-10-1994 he was posted as Additional SHO, police station Garhshanker. On that day at about 3-00AM he had received a wireless message from the DSP for reaching the T-point in the area of village Garshanker and then he a alongwith Kamal Ram Inspector and other police officials reached the said T-point at about 3-15 AM, where DSP Mukhtiar Singh alongwith some other police officials was present. His statement is further to the effect that they were instructed by the DSP to hold a nakabandi as a truck No. PCH-5497 suspected to be carrying contraband articles was to be intercepted; that at about 4-00 AM, the said truck came from Balachaur side and was stopped by giving a signal; that Avtar Singh appellant was driving the truck whereas the present two appellants and Shangara Singh (since acquitted) were sitting alongwith the driver; that thereafter the accused were given an offer of conducting the personal search of the DSP before the truck could be searched, but they did not want to conduct the personal search of the police officials and gave their consent for conducting the search of the truck; that their consent was reduced into writing and thereafter the truck was searched; that 105 bags of poppy husk powder, each bag weighing 40 Kgs, were recovered from the truck. This witness also talks of taking the other documents into possession, viz. the permits, driving licence and registration certificate etc. He has further stated that 105 bags, 105 sample-parcels, the truck, tirpal, rope and other articles were deposited with MHC Paramjit Singh in the police station and thereafter he alongwith SHO Kamal Ram (PW2) had gone to the house of Chuhar Singh appellant alongwith public witnesses and searched his house and that from the Godrej Almirah a sum of Rs. 70,000/-, a bank pass-book in the name of Chuhar Singh were recovered and the same were taken into possession vide recovery memo. Exhibit PD attested by Charan Singh and Babu Ram, members panchayat including himself. He has also stated that the separate haveli of Chuhar Singh appellant was searched but nothing was recovered from there.

PW2 is Inspector Kamal Ram, SHO police station Garhshanker, who has reiterated the prosecution story as narrated by PW1 SI Ram singh

PW 3 is DSP Mukhtiar Singh, who had initially investigated the present case. He has deposed that on the night of 9-10-1994 he had received a secret information to the effect that Chuhar Singh and Jarnail Singh appellants were coming in a truck from Balachur to Garhshanker and that they were carrying huge quantity of poppy husk powder in the said truck; that thereafter he gave a wireless message to Inspector Kamal Ram (PW2) for reaching T-point Balachaur road at Garshanker; that thereafter Inspector Kamal Ram and SI Ram Singh alongwith other police officials reached there and held a nakabandi; that at about 4-00 AM truck No. PCHJ-5497 being driven by Avtar Singh appellant was intercepted; that Chuhar Singh and Jarnail Singh appellants besides Shangara Singh (since acquitted) were also sitting on the front seat of truck; that after giving them the requisite offer, the truck was searched, upon which 105 bags of poppy husk powder were recovered; that 250 grams of sample was separated from each of the bags; that the sample parces and the bags were duly sealed with seal impression of ''RS''; that a search of the cabin of the truck was also conducted from which the national permit, three other permits, one Authorization Certificate, Insurance Policy, Registration Certificate in the name of Jarnail Singh were recovered and the same were also taken into possession; that ruqqa Exhibit PJ was sent on the basis of which the formal FIR was recorded in the police station and that thereafter he had handed over the investigation to Inspector Kamal Ram (PW2).

PW 4 is MHC Paramjit Singh. His statement is to the effect that on 10-10-1994, as many as 105 bags of poppy husk powder and 105 sample parcels duly sealed were deposited with him in the police station and thereafter on 19-10-1994, the said sample parcels were sent to the Chemical Examiner through Constable Ram Parakash (PW5).

PW5 is Constable Ram Parkash, whose statement is to the effect that on 29-10-1994, he had taken 105 sample parcels duly sealed to the office of the Chemical Examiner for depositing the same.

The stand of Chuhar Singh appellant was that he was taken away by the police from his village on 10-10-1994 and was brought to police station Garhshanker where he was falsely implicated in this case. His further plea is that the police had recovered a sum of Rs. 70,000/- and a pass-book from his house. He then pleaded that he being a member of the communist Party of India was taking leading part in holding demonstration against misdeeds of the local police and due to this reason the local police was not happy with him.

The stand taken by Jarnail Singh appellant is that he had employed a driver on his truck; that his truck was intercepted by the police party and he was not aware of any contraband being carried in it although the truck was owned by him; that the truck was brought to police station Garhshanker; that on 10-10-1994 he was arrested from his house in village Iberahimpur and was brought to the police station Garhshanker and merely because the registration certificate was in his name, he was falsely involved in this case.

Avtar Singh appellant has taken the plea of false implication in this case on the ground that on the day of occurrence, he was returning to his village after seeing relatives at Ropar. Since he had missed the last evening bus for Chandigarh, he was waiting for some conveyance for his village; that at about 9-00 PM, he took a lift in the truck; that at about 11-00 PM, when they were passing on Balachaur-Garhshanker road and were nearing Garhshanker, the truck was stopped by a police petrol party, it was brought to the police station; that on account of darkness the driver had slipped away; that Chuhar Singh and Jarnail Singh appellants were also brought to the police station in the morning and a false case was set up after due deliberation at the police station; that he never knew that the truck in question was carrying poppy husk powder, as he was sitting in the cabin of the truck.

The stand of Shangara Singh appellant was that he had taken a lift in the said truck and was falsely implicated.

However, no defence evidence was adduced on behalf of the appellants.

On a consideration of the entire evidence, the learned trial Court has convicted and sentenced the present three appellants as indicated above. However, accepting the plea of Shangara Singh accused, he was acquitted of the charge by extending benefit of doubt. Aggrieved by the impugned judgment of conviction and sentence, the present three appellants have come up in appeal before us.

We have heard Mr. HS Mattewal, learned Senior Advocate for the appellants assisted by Mr. RS Riar Advocate and Mr. GS Gill, learned Senior Deputy Advocate General representing the State of Punjab. With their assistance, we have also gone through the entire record of the trial Court.

Mr. Mattewal has assailed the impugned judgment mainly on the following points :

Non-compliance of Section 42(1) of the Act.

Non-joining of independent witnesses :

Case of Chuhar Singh appellant is distinguishable from the remaining two appellants namely Jarnail Singh and Avtar Singh.

So far as the first contention is concerned, Mr. Mattewal has strenuously argued that there is non-compliance of Section 42(1) of the Act as the secret information was not reduced into writing and this non-compliance by itself is enough to discard the prosecution case in its entirety. Developing his arguments, Mr. Mattewal has further submitted that the reqqa (Ex. PJ), which is basis of the formal FIR, cannot be termed as compliance of Section 42(1) of the Act as DSP Mukhtiar Singh was only to reduce the secret information into writing for the purpose ft sending the ruqqa to his immediate superior official, which has not been done in this case. The learned counsel has taken us through the cross-examination of DSP Mukhtiar Singh (PW3), in which he has categorically admitted that he did not reduce into writing the secret information received by him. According to Mr. Mattewal, the ruqqa was sent after effecting the recovery and completing the other required formalities, as is clear from Exhibit PJ, which goes to show that after effecting recovery, DSP Mukhtiar Singh has even gone to the extent of stating in the said document that the appellants have committed an offence u/s 15 of the Act. The ruqqa which is the basis of the FIR cannot be said to be the compliance of Section 42(1) of the Act, Mr. Mattewal so contends.

The next arguments advanced by Mr Mattwal is that DSP Mukhtiar Singh has not made an attempt to join any independent witnesses in this case. Colouring his arguments, he had contended that the stringent punishment is provided under the Act and as such a strict measure of proof is required in such type of cases and non-joining of independent witnesses would certainly dent the prosecution case to a great extent. The learned counsel has taken us through the statement of DSP Mukhtiar Singh once again, wherein the witness has admitted that there is a Municipal Committee in Garhshanker; there are Lamberdars in Garhshanker town; there are 3/4 Executive Magistrates at Garhshanker in addition to Judicial Magistrate and that he had not contacted any Executive magistrate for joining the raid or that he had not tried to join independent person from Garshanker before going to the place of nakabandi. This lacuna, according to the learned counsel, goes deep for uprooting the prosecution case.

Although Mr. Mattewal has canvassed his criticism on whole of the prosecution case, yet he has made an endeavour to segregate the case of Chuhar Singh appellant from Jarnail Singh and Avtar Singh appellants. It is contended that the case of Chuhar Singh is at par with that of Shangara Singh, who has been extended the benefit of doubt on the ground that he had taken lift in the said truck and had no connection with the contraband being carried in the said truck. Mr Mattewal has argued with full force that the prosecution has not been able to connect Chuhar Singh with the conscious possession of the contraband as neither the truck allegedly intercepted did belong to him nor was he driver of the said truck at least knowing as to what was being carried in the said truck. According to the learned counsel, simply that Chuhar Singh was found sitting on the front seat of truck, would not be a ground to import conscious possession qua him of the contraband in question.

Making an attempt to protect the false implication of Chuhar Singh appellant from another angle, Mr Mattewal has contended that the house search of Chuhar Singh by the police officials and thereafter effecting the recovery of Rs. 70,0000/- besides a bank pass-book is also an indicative of the fact that the police was nursing a grudge against him because he was openly demonstrating against the misdeeds of the local police being member of the Communist Party of India.

Lastly in the alternative, the learned counsel has submitted that the appellants deserve some leniency towards the quantum of sentence because the present case relates to the year 1994; that the appellants have already faced the rigor of protracted trial for over 8 years and that the sentence imposed upon them is too harsh.

Mr. Gill, learned Senior Deputy Advocate General, Punjab, refuting the submissions of Mr. Mattewal contends that none of the appellants does deserve acquittal as all of them were apprehended at the spot in the truck carrying huge quantity of contraband; that the case of Shangara Singh was distinguishable from the present appellants, who was rightly given benefit of doubt by the trial Court; that the case against the present appellants stands proved to the hilt and therefore, their conviction and sentence deserves to be upheld.

After scanning the entire evidence minutely, we are of the view that the prosecution has been able to prove its case against the present three appellants beyond any shadow of doubt. The reasoning is set out as below;

So far as the first contention regarding non-compliance of Section 42(1) of the Act is concerned, in our view the seizure in the present case is u/s 43 and not u/s 42 of the Act. The present seizure is not from any building or conveyance of enclosed place,which is the intention of Section 42. It is a seizure from a public place and thus it was not obligatory on the part of DSP Mukhtiar Singh, the Investigating Officer to have reduced the secret information into writing.

Powers of entry, search and seizure are contained in Chapter V of the Act. The scheme of the Act contemplates two categories of situation i.e. where the contraband are found in "any building, conveyance or enclosed place" and "any public place or in transit". For the first contingency, Section 42 of the Act is applicable whereas if any seizure is required to be made from any public place then it is Section 43 of the Act which would be applicable. Section 42 of the Act requires writing down of information if empowered officials have reason to believe from personal knowledge or information that any illegal acquired property is kept or concealed in a building, conveyance or enclosed place. The true and correct application of legislative intent in matter of engrafting of Sections 42 and 43 in the Statute Book, one needs to have a look into the provisions and as such Sections 42 and 43 of the Act are reproduced as under:

"Power of entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property of any document or other article which may furnish evidence of holding any illegality acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed "in any building, conveyance or enclosed place," may between sunrise and sunset,-

(a) enter into and search any such building conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article an any animal or conveyance which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acqired property which is liable for seizure or freezing or forfeiture under chapter V-A of this Act; and

(d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act;

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

Power of seizure and arrest in public place.--Any officer of any of the department mentioned in Section 42 may-

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation.- For the purpose of this section, the expression "Public Place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public."

Section 42 of the Act empowers the officers of the specified department to carry out search, seizure and arrest in any building, conveyance or enclosed place, Section 43 of the Act also deals with the similar power of seizure and arrest but in the public places. The Legislature in its wisdom has drawn the subtle distinction between building, conveyance or enclosed place on one side and public place or in transit on the other side. This demarcating line has to be kept in mind while appreciating the case on facts. A conveyance in a public place would certainly fall within Section 43 of the Act and Section 49 then gives powers to the empowered officer to stop any conveyance for the purposes of the search. As stated above, in the present case, the conveyance (truck) was intercepted in a public place and as such, Section 42 of the Act would not at all be attracted. This proposition has already been settled by their Lordships of the Apex Court in Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence 2002(4) RCR (Cri) 470. This point came up for consideration before this Court recently in Dharminder Kumar v. State of Punjab 2002 (4) RCR (Cri) 278 and in another judgment rendered by this Court in Satnam Singh v. Union of India, Criminal Appeal No. 303-SB of 2000, decided on January 16, 2003.

In the light of the aforesaid discussion and settled proposition, the first contention of Mr. Mattewal is repelled.

The second limb of argument of learned counsel for the appellants regarding non-joining of independent witnesses also does not hold water.

The truck allegedly carrying the contraband was intercepted at 4-00 AM on 10-10-1994. The secret information was received much prior to it. To join an independent witness at such a wee hour of the morning would be a very difficult task. No doubt DSP Mukhtiar Singh (PW3) has deposed in his statement that in Garhshanker, there are Lamberdas, 3/4 Executive Magistrate besides Judicial Magistrate and that he had not contacted any Executive Magistrate for joining them in the raid, but the explanation given by him seems plausible. He has stated in so many words that because of shortage of time to apprehend the accused, he could not join the independent witnesses. Even otherwise, non-joining of the independent witness is not being taken very seriously by us in the present case because this weakness, as now projected by the learned counsel, would by itself not shatter the prosecution case in its entirety. At the most, it would put us on the guards to further scan the statements of the official witnesses very minutely. We have also done that exercise. The statements of the three star witnesses of recovery (i.e. PWs 1 to 3) have been brought to test of fine toothed-comb and we are of the considered vie that there is no basic lacuna on any count so far as the recovery of contraband is concerned. Learned counsel for the appellants has not been able to point out any material contradiction or discrepancy in their statements, which may take us to see the evidence of the official witnesses with a pinch of salt. The appellants have not been able to prove any enmity of the police officials qua them except that bald allegations have been levelled against them. We would not believe that an officer of the rank of DSP, Mukhtiar Singh (PW3), would go to the extent of planting such a huge quantity of 105 bags of poppy husk powder upon the appellants. Avtar Singh appellant was driver of the truck in question. Admittedly, the truck is in the name of Jarnail Singh appellant, as is evident from the Registration Certificate (Exhibit P114) and he was one of the occupants at the time of interception of the truck. Even otherwise, Jarnail Singh appellant has admitted in his statement u/s 313 Cr.P.C. that the truck in question belongs to him. The stand taken by Avtar Singh appellant that he had taken lift in the truck; that when the truck was intercepted, the driver slipped away due to darkness and that he was falsely involved in the case, does not appeal to reasoning. We cannot thus doubt the prosecution case.

Dealing with the third contention, we say that the case of Chuhar Singh appellant cannot be segregated from the other co-appellants. He has taken the defence that he was falsely implicated because he being an active member of the Communist Party of India and had form leading procession against high-handedness of the police. Chuhar Singh appellant has not been able to prove that he ever made any specific complaint to the higher authorities, accusing the police of their high-handedness on one side or even any complaint thereafter about his false involvement in the case. The impugned judgment shows that Chuhar Singh was on bail during trial. He could knock the doors of the higher authorities regarding his alleged false implication in the present case. Admittedly, he is an active member of a party (Communist Party of India) and it is not expected of him that in the event of being falsely involved in such like case, he would keep mum and not raise hue and cry, asking for cancellation of the case qua him. The stand of false implication taken by him now cannot thus be accepted in the absence of any documentary proof. Moreover, no personal allegation has been levelled by him against DSP Mukhtiar Singh. So far as recovery of Rs. 70,000/- from his house is concerned,in our view, it was the result of further investigation by the police with an idea that someother contraband might be recovered from his house. The secret information received by DSP Mukhtiar Singh (PW3) was that Chuhar Singh and Jarnail Singh appellants were bringing huge quantity of contraband in the truck. His defence that he was taken into illegal custody from his house, is not strengthened. He could produce some respectables of the village to depose in this behalf. In this situation, the false implication of Chuhar Singh appellant is ruled out and we feel no difficulty in observing that the prosecution has been able to prove that Chuhar Singh appellant was also transporting the contraband alongwith Jarnail Singh and Avtar Singh appellants in truck No. PCH-5497. However, the case of Shangara Singh has been rightly distinguished by the trial Court and Chuhar Singh appellant cannot derive any benefit from it.

As a sequel to the foregoing discussion, we uphold the conviction of the present three appellants as recorded by the learned trial Court.

So far as quantum of sentence is concerned, we feel that all the three appellants do deserve some leniency. The recovery was effected way back in the year 1994. Although the record shows that the appellants were on bail during trial and even after conviction, their substantive sentence was suspended by this Court in January 1996, yet we feel that they have already suffered the rigor of protracted trial for more than 8 years. In the facts and circumstances of the case, we are of the view that the ends of justice would be adequately met if the substantive sentence of fifteen years rigorous imprisonment is reduced to twelve years and the sentence of fine of Rs. 1,50,000/- each is reduced to Rs. one lac each. It is ordered accordingly. We also reduce the period of three years; R to one year, in the event of default of payment of fine.

With the modification in the quantum of sentence as indicated above, the appeal stands dismissed.

Intimation be sent to the concerned Trial Court/Chief Judicial Magistrate, Hoshiarpur for taking necessary steps to take the appellants into custody forthwith to serve their unexpired period of substantive sentence.

Jail authorities be also informed accordingly.