Gurcharan Singh vs State of Punjab

Jora Singh, J.—Gurcharan Singh, preferred this appeal to challenge the judgment of conviction and order of sentence dated 5.2.2010, rendered by the learned Special Judge, Ferozepur, in Sessions Case No. 73 of 18.8.2005/23.1.2009, arising out of FIR No. 59 dated 8.6.2005, registered u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ''the Act'') at Police Station Khui Khera.

By the said judgment, he was convicted u/s 15 of the Act and sentenced to undergo Rigorous Imprisonment for a period of 3 years and to pay a fine of ` 15,000/- and in default of payment to further undergo Rigorous Imprisonment for a period for nine months.

Prosecution story, in brief, is that on 8.6.2005, Sub Inspector Jagroop Singh, while on patrol duty was present on the berm of the Gang Canal towards Azamwala. When the police party was present near the Bhairon temple adjacent to the fields of Raja Singh then sighted the accused while sitting on a gunny bag. On seeing the police party accused ran away towards the side of village Azamwala but he was apprehended. On enquiry, accused had disclosed his name as Gurcharan Singh. Investigating Officer suspected some intoxicant in the gunny bag. Offer was given to the accused as to whether he wanted to be searched before any Gazetted Officer or any Magistrate but the accused had reposed faith in the Investigating Officer. Consent memo Ex. P1 was prepared which was thumb marked by the accused and attested by the witnesses. In the meantime, Mohinder Singh came at the spot and joined by the police party. On search of the gunny bag the same was found containing poppy husk. Two samples each weighing 250 grams were separated to serve as sample and the remaining poppy husk on weighment was found to be 34 Kgs 500 grams. Samples and the remaining poppy husk in the same bag were sealed by the Investigating Officer with the seal bearing impression ''JS''. Seal impression of the seal used was also prepared separately. Case property was taken into police possession vide memo attested by the witnesses. On return to the police station case property was kept by the Investigating Officer with him. On the next day Investigating Officer had produced the case property alongwith the Appellant before the Illaqa Magistrate. One sample weighing 250 grams was separated from the gunny bag when produced in Court. Sample was sealed by the seal of the Investigating Officer bearing impression ''JS''. One sample parcel was deposited in the office of the Chemical Examiner and as per report of the Chemical Examiner, the contents of the sample were found to be of poppy husk. After completion of investigation challan was presented in the Court.

Accused was charge-sheeted u/s 15 of the Act, to which he pleaded not guilty and claimed trial.

In order to substantiate its case prosecution examined number of witnesses.

PW-1 HC Krishan Lal, was with the police party headed by SI Jagroop Singh and stated as to how recovery was effected from the Appellant.

PW-2 SI Jagroop Singh, was the Investigating Officer.

PW-3 HC Kahna Ram, tendered his affidavit Ex. P-20.

After close of the prosecution evidence, statement of accused u/s 313 Code of Criminal Procedure was recorded. He denied all the allegations of the prosecution and pleaded to be innocent.

Opportunity was given to lead defence but no defence evidence was led.

After hearing learned Additional Public Prosecutor for the State, the learned defence counsel and from the perusal of evidence available on the file, the Appellant was convicted and sentenced as stated aforesaid.

I have heard learned Counsel for the Appellant, learned State counsel and carefully gone through the evidence available on the file.

Learned defence counsel for the Appellant argued that Mohinder Singh, was joined as independent witness but seal after its use was not handed over to the independent witness. Independent witness was not examined for the reasons best known to the prosecution. After recovery case property was not produced before the SHO or the Illaqa Magistrate. Lastly argued that recovery is noncommercial. Out of the actual sentence of three years, Appellant has already undergone about 1 year and 3 months. Requested to take lenient view.

Learned State counsel argued that police party was on patrol duty then apprehended the accused while sitting on a gunny bag. In the meantime, Mohinder Singh, came at the spot and was joined by the police party. In case there was no recovery then Mohinder Singh could easily be produced in defence. No prejudice was caused to the Appellant with the non-examination of Mohinder Singh because there is a witness of recovery and the statement of the Investigating Officer. On return to the police station, case property was kept by the Investigating Officer because he was the incharge of the police station. On the next day Appellant alongwith the case property was produced in the Court. As per direction of the Court, 250 grams was separated to serve as sample from the gunny bag and the same was sealed with the seal bearing impression ''JS''. As per report of the laboratory seal was found intact and tallied with the seal impression.

First submission of the learned defence counsel for the Appellant was that Mohinder Singh was joined as independent witness but seal after its use was not handed over to him and he was not examined for the reasons best known to the prosecution but after going through the evidence on the file, I am of the opinion that this submission of the learned defence counsel for the Appellant is without any force. No doubt police party was on patrol duty then sighted the Appellant while sitting on a gunny bag near the fields of Raja Singh. Investigating Officer, suspected some intoxicant in the gunny bag. In the meantime, Mohinder Singh, came at the spot and was joined in the investigation of the case. Offer was given to the accused as to whether he wanted to be searched before any Gazetted Officer or any Magistrate but the accused had reposed faith in the Investigating Officer. As per reply of the Appellant gunny bag was searched and the same was found containing poppy husk. Two samples each weighing 250 grams were separated to serve as sample and the remaining poppy husk on weighment was found to be 34 Kgs 500 grams. Samples and the remaining poppy husk were sealed by the Investigating Officer with the seal bearing impression ''JS''. Seal impression of the seal used was also prepared separately. Mohinder Singh, was not examined as won over by the Appellant and in case Appellant was sure that there was no recovery of intoxicant then Mohinder Singh, could easily be produced in defence. Earlier to recovery, police party had no enmity with the Appellant. In case seal after its use was not handed over to the independent witness and the independent witness was not examined by the prosecution as won over by the Appellant then prosecution story is not to be brushed aside. Question is why the Appellant was chosen to implicate in this case.

Next submission of the learned defence counsel for the Appellant was that on return to the police station Appellant alongwith the case property was not produced before the SHO but in view of the evidence on file, I am not in a position to agree with this submission of the learned defence counsel for the Appellant because the Investigating Officer, was the SHO of the concerned Police Station. On return to the police station case property was kept by the Investigating Officer in his custody. On the next day Appellant along with the case property was produced before the Illaqa Magistrate. As per direction of the Illaqa Magistrate, third sample weighing 250 grams was separated from the gunny bag containing poppy husk. Sample was sealed with the seal bearing impression ''JS''. As per report of the laboratory seals on the sample were found intact and tallied with the seal impression. Position would have been otherwise if the Investigating Officer, was not the SHO at the relevant time but when the recovery was by the SHO, then learned defence counsel for the Appellant was not right to argue that the case property was not produced before the SHO.

Last submission of the learned defence counsel for the Appellant was that Appellant is a poor man and out of the actual sentence of 3 years, he has already undergone 1 year and 3 months. No doubt, Appellant belongs to a poor family and is the only working member in his family and has minor children to support. Recovery is non-commercial. Recovery was effected on 8.6.2005 and at that time Appellant was 25 years old. He has already undergone 1 year and 3 months out of the actual sentence of three years. Ends of justice would be fully met if lenient view is taken.

Keeping in view the quantity of the poppy husk recovered and antecedents of the Appellant, I take lenient view and order the Appellant to undergo imprisonment already undergone (1 year and 3 months). Fine maintaine```d.

For the reasons recorded above, appeal without merits is dismissed with modification on the point of sentence.