Harpal Singh @ Kala vs State of Punjab

Jora Singh, J.—Harpal Singh @ Kala, preferred this appeal to challenge the judgment of conviction and order of sentence dated 5.3.2008, rendered by the Judge, Special Court, Ludhiana, in Sessions Case No. 149 dated 30.9.2003, arising out of FIR No. 42 of 23.4.2003, registered u/s 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as ''the Act'') at Police Station, Rajkot.

By the said judgment, Appellant was convicted u/s 15 of the Act and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of `1,00,000/-and in default of payment of fine to further undergo rigorous imprisonment for a period of six months.

Prosecution story, in brief, is that on 23.4.2003, police party headed by ASI Joga Singh, in connection with patrol duty was going towards village Basrawan. When the police party was at a distance of 20 yards ahead of Aggarwal Industry, Tajpur Road, towards the side of village Bhaini Barigan then sighted one scooterist while coming from the side of village Bhaini Barigan, carrying two gunny bags on the scooter. On seeing the police party scooterist became nervous and tried to fled away from the spot but was apprehended by police party. In the meantime, Kashmir Singh @ Kaka S/o Karam Singh came at the spot and was joined by the police party. On enquiry scooterist disclosed his name as Harpal Singh @ Kala S/o Gurnam Singh. Investigating Officer, suspected some intoxicant in the gunny bags carried by the accused on scooter bearing registration No. PAL-7629. Offer was given to the accused as to whether he wanted to be searched before any Gazetted Officer or any Magistrate. Reply of the accused was that he wanted to be searched before some Gazetted Officer. Consent memo Ex. PE was prepared which was singed by the accused attested by the witnesses. Through wireless, message was sent to DSP Rajkot, to reach at the spot. DSP Harjit Singh Brar came at the spot and had disclosed his identity to the accused as Gazetted Officer. Again offer was given to the accused as to whether he wanted to be searched before any other Gazetted Officer or any Magistrate, but accused had reposed faith in the Gazetted Officer. Consent memo Ex. PA was prepared which was signed by the accused in the presence of Gazetted Officer and attested by the witnesses. On the direction of DSP Harjit Singh Brar, ASI Joga Singh searched the gunny bags and the same were found containing poppy husk. Two samples, each weighing 250 grams, were separated from each bag and the remaining poppy husk on weighment was found to be 34 Kgs 500 grams in each bag. Four samples and the remaining poppy husk in the two gunny bags were separately sealed by the Investigating Officer with the seal of DSP Harjit Singh Brar, bearing impression ''HS''. Seal impressions were also prepared separately. Seal after its use was handed over to DSP Harjit Singh Brar. On search of the scooter registration certificate was recovered from the diggy. As per registration certificate scooter was registered in the name of Daljit Singh. Sealed parcels were taken into police possession vide memo attested by the witnesses. Scooter along with registration certificate was also taken into police possession vide memo attested by the witnesses. Ruqa Ex. PF was sent to the police station on the basis of which formal FIR was Ex.PF/1 was recorded. Rough site plan Ex. PG with correct marginal notes was prepared. Statements of the witnesses were recorded.

On return to the police station accused along with the case property was produced before the officiating SHO ASI Mohd. Jamil. After checking the case property and verifying the facts of the case from the accused, he had affixed his own seal bearing impression ''MJ'' on the sealed parcels. Seal impressions of the seal were also prepared separately. Case property was deposited by the SHO with the in charge of the Malkhana. Two sample parcels were sent to the office of Chemical Examiner and as per report of the Chemical Examiner, the contents of the sample parcels 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 they pleaded not guilty and claimed trial.

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

PW-1 DSP Harjit Singh Brar, stated that he was summoned at the spot by the Investigating Officer. He further stated that after reaching at the spot he had disclosed his identity to the accused as Gazetted Officer. Offer was given to the accused as to whether he wanted to be searched before any other Gazetted Officer or any Magistrate, but accused had reposed faith in him. On his direction, ASI Joga Singh searched the gunny bags and the same were found containing poppy husk. Two samples each weighing 250 grams were separated from each bag to serve as sample and the remaining poppy husk on weighment was found to be 34 Kgs 500 grams in each bag. Four samples and the remaining poppy husk in the two gunny bags were separately sealed by the Investigating Officer with his seal bearing impression ''HS''. Seal impressions were also prepared separately. Seal after its use was returned to him. Four parcels and the remaining poppy husk in the gunny bags were taken into police possession vide memo attested by the witnesses.

PW-2 ASI Joga Singh, was the Investigating Officer. He has reiterated the prosecution story as to how the recovery was effected.

PW-3 HC Jagrup Singh, was with the police party headed by ASI Joga Singh. He has supported version of the Investigating Officer by saying that accused was apprehended with poppy husk carrying on his scooter.

10 PW-4 Constable Balvir Singh and PW-5 HC Sukhdev Singh, have tendered their affidavits Ex. PW-4/A and Ex. PW-5/A, respectively.

PW-6 ASI Mohd. Jamil, was the officiating SHO of Police Station Rajkot. On 23.4.2003, ASI Joga Singh, had produced the case property along with the accused. After checking the case property and verifying the facts of the case from the accused he had affixed his own seal bearing impression ''MJ'' on the sealed parcels. Case property was deposited by him with AMHC Sukhdev Singh in charge of the Malkhana.

PW-7 Paramjit Kaur Clerk in the office of DTO, Ludhiana, stated that scooter No. PAL 7629, initially was registered in the name of Smt. Sushila Gupta and later on it was transferred in the name of Daljit Singh. Ex. P-2 is the photocopy of the registration certificate.

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.

Defence version of the accused was that he was brought from his house by the police party and later on this false case.

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

After hearing learned Additional Public Prosecutor for the State, the learned defence counsel and from the perusal of the 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 case property was sealed with the seal of the Gazetted Officer but the seal was not entrusted to the independent witness. Case property was not sealed by the Investigating Officer with his own seal. Independent witness was not examined by the prosecution. u/s 42 of the Act, special report was not sent to the Higher Officers. Recovery was on 23.4.2003, whereas sample parcels were sent to the office of Chemical Examiner on 20.5.2003. There is delay in sending the sample parcels in the office of the Chemical Examiner. After recovery Appellant along with the case property was not produced before the SHO. Case property was not produced in the Court so tampering with the case property cannot be ruled out. Lastly, argued that Appellant is in custody for the last about 81/2 years. He belongs to a poor family. Requested to take lenient view.

Learned State counsel argued that independent witness was with the police party but he was not examined as won over by the Appellant. Case property was sealed with the seal of the Gazetted Officer. No provision that case property was also required to be sealed with the seal of the Investigating Officer. On the same day, after recovery case property along with the accused was produced before the SHO Mohd. Jamil, who was the officiating SHO in the concerned Police Station. Officiating SHO had also sealed the case property with his own seal bearing impression ''MJ'' and had deposited the case property with the in charge of the Malkhana. Two sample parcels were sent to the office of the Chemical Examiner, on 20.5.2003. Seals on the sample parcels were found intact and tallied with the seal impressions. No prejudice was caused to the Appellant. There was no secret information, so u/s 42 of the Act, there was no requirement of sending the special report to the Higher Officers.

First submission of the learned defence counsel for the Appellant was that seal of the Gazetted Officer after its use was not handed over to the independent witness, secondly case property was not sealed with the seal of the Investigating Officer but after going through the evidence on file this submission of the learned defence counsel for the Appellant is without any force. As per prosecution story, on 23.4.2003, police party headed by ASI Joga Singh, in connection with patrol duty was going towards village Basrawan. When the police party was at a distance of 20 yards ahead of Aggarwal Industry, Tajpur Road towards the side of village Bhaini Barigan then sighted the Appellant while coming on a scooter from the side of Bhaini Barigan, carrying two gunny bags on the scooter. On seeing the police party Appellant tried to fled away from the spot but was apprehend by police party. In the meantime, Kashmir Singh @ Kaka S/o Karam Singh came at the spot and was joined by the police party. Investigating Officer, suspected some intoxicant in the gunny bags carried by the Appellant on scooter bearing registration No. PAL-7629. Offer u/s 50 of the Act, was given to the Appellant as to whether he wanted to be searched before any Gazetted Officer or any Magistrate. As per reply of the Appellant Gazetted Officer was summoned at the spot. DSP Harjit Singh Brar came at the spot and had disclosed his identity to the Appellant as Gazetted Officer. Again offer was given to the accused as to whether he wanted to be searched before any other Gazetted Officer or any Magistrate, but Appellant had reposed faith in the Gazetted Officer. On the direction of DSP, Investigating Officer, had searched the gunny bags and the same were found containing poppy husk.

Two samples each weighing 250 grams were separated from each bag to serve as sample and the remaining poppy husk on weighment was found to be 34 Kgs 500 grams in each bag. Four samples and the remaining poppy husk in the two gunny bags were separately sealed by the Investigating Officer with the seal of the DSP bearing impression ''HS''. Seal impressions were also prepared separately. Seal after its use was returned to the Gazetted Officer. There is no provision under the Act that case property is to be sealed by the Investigating Officer, with his own seal.

On return to the police station, accused along with the case property was produced before the officiating SHO ASI Mohd. Jamil. After checking the case property and verifying the facts of the case from the accused, officiating SHO had affixed his own seal bearing impression ''MJ'' on the sealed parcels. Seal impressions of the seal used were also prepared separately. Case property was deposited by the SHO with the in charge of the Malkhana. Independent witness was with the police party but if seal after its use was not handed over to the independent witness then prosecution story was not to be brushed aside. No mandatory provision under the Act that seal after its use was to be handed over to the independent witness. Seal after its use is handed over to the independent witness to rule out the possibility of tampering with the case property. Recovery was effected by the police party of Police Station Rajkot whereas at the spot case property was sealed with the seal of the Gazetted Officer i.e. DSP, Rajkot. In the police station again case property was sealed with the seal of officiating SHO. As per report of the Chemical Examiner seals were found intact and were found tallying with the seal impressions. Failure to hand over seal of the Gazetted Officer to the independent witness, no reason to ignore the prosecution story.

Next submission of the learned defence counsel for the Appellant was that u/s 42 of the Act no special report was sent to the Higher Officers but there was no secret information. Appellant was apprehended per chance while coming on a scooter carrying two bags containing poppy husk. After recovery case property was sealed with the seal of the Gazetted Officer. Case property was taken into police possession. Then ruqa was sent to the police station on the basis of which formal FIR was recorded. No authority was cited by the learned defence counsel for the Appellant that when the recovery is per chance then after recovery special report was to be sent to the Higher Officers. When the police party had a secret information and as per secret information, was holding Nakabandi, then had apprehended the accused then in that case something could be said if no explanation to reduce the secret information into writing and send the same to the Higher Officer. When there was no secret information and the recovery was per chance then Section 42 was not applicable and prosecution story was not to be ignored when no special report to the Higher Officers before sending the ruqa to the police station.

Next submission of the learned defence counsel for the Appellant was that recovery was on 23.4.2005 whereas sample parcels were deposited in the laboratory on 20.5.2003, possibility of tampering with the case property cannot be ruled out but after going through the evidence on file I am of the opinion that no prejudice was caused to the Appellant when the sample parcels were not deposited in the office of Chemical Examiner, immediately after recovery. Firstly, on the spot case property was sealed with the seal of the Gazetted Officer. Seal impressions were also prepared separately. In the police station officiating SHO had also affixed his own seal on the sealed parcels bearing impression ''MJ''. Seal impressions were also prepared separately. Officiating SHO had deposited the case property with the in charge of the Malkhana namely AMHC Sukdev Singh. Two sample parcels were handed over to Constable Balvir Singh for depositing the same in the office of Chemical Examiner. As per report of the Chemical Examiner, seals were found intact and tallied with the seal impressions. When the case property was sealed with the seals of the Gazetted Officer and the officiating SHO, then Investigating Officer, had no occasion to tamper with the case property when the same was deposited with the in charge of the Malkhana. So delay in depositing the sample parcels in the office of Chemical Examiner, is not fatal.

Learned defence counsel for the Appellant, lastly, argued that Appellant belongs to a poor family. He is in custody for the last 81/2 years and in default of payment of fine was directed to undergo RI for six months. Requested to reduce the period of sentence in default of payment of fine.

Learned State counsel stated that Appellant is a poor man so no objection if period of sentence in default of payment of fine is reduced.

Admittedly, Appellant is the first offender. He was 39 years old and is the sole bread winner of his family. Till today Appellant has already undergone about 81/2 years of the actual sentence. Being poor Appellant failed to file appeal within limitation. Appellant second time applied for bail when he had undergone more than 6 years. While dismissing the bail application direction was given to list the main appeal for hearing within three months.

In view of all discussed above, there is no infirmity or illegality in the impugned judgment and the same is upheld but keeping in view the antecedents of the Appellant, in default of payment of fine, Appellant is directed to undergo RI for three months instead of six months.

For the reasons recorded above, appeal without merits is dismissed with the aforesaid modification.