Jit Singh @ Gholi and Others vs State of Punjab

S.P. Bangarh, J.—The appellants have assailed the judgment of conviction dated 14.05.2007 and order of sentence dated 16.05.2007,

passed by the learned Judge, Special Court, Ludhiana, in Session Case No. 10 of 14.01.2005, emanating from FIR No. 116 dated 22.07.2004,

Police Station Focal Point, Ludhiana, whereby, they were convicted for commission of offence punishable u/s 15 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (''Act'' for short) and sentenced to undergo rigorous imprisonment for a period of twelve years each and to

pay fine of Rs. 1,00,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year each; period of

detention suffered by the appellants during investigation and trial was ordered to be set off from the sentence awarded to them. Criminal Appeal

No. 566-DB of 2007, filed by Jit Singh and Sham Singh appellants and another Criminal Appeal No. 997- DB of 2007, filed by Kuldip Ram

appellant pertain to common impugned judgment and order of sentence, these are taken up together and the judgment shall be passed in Criminal

Appeal No. 566-DB of 2007.

It is the case of the prosecution that on 21.07.2004, Surinder Mohan, SI/SHO, Police Station Focal Point, Ludhiana alongwith other police

officials was passing through PUDA Colony, Moti Nagar, Ludhiana for patrolling duty on an official vehicle. At about 06:30 p.m., when they were

passing alongside quarter No. 1172, PUDA Colony, Moti Nagar, two persons were seen standing outside the quarter and they, on seeing the

police party, went inside the quarter. On suspicion, Surinder Mohan, SHO checked the quarter and found bags stacked, therein. He found five

persons sitting on the bags, who, on seeing the police party, tried to slip away and three of them (appellants, herein) were apprehended with the

help of other police officials, who disclosed their names and two out of those five succeeded in fleeing, whose names were disclosed as Vijay

Kumar and Kulbir Singh.

In the meantime, Satnam Singh, a public witness was joined in the police party. Surinder Mohan, Investigating Officer introduced himself to all

the three appellants and informed them that he suspected some intoxicant material in the bags and their search is to be conducted and if they do not

have faith in him, then the search could be conducted in the presence of some Magistrate or a gazetted officer, who can be called at the spot.

Thereupon, the appellants opted to get their search conducted in the presence of a gazetted officer and signed memo Ex.PC in this regard,

which was thumb marked by them and attested by the witnesses. Later, Investigating Officer asked Sh. R.K. Bakshi, DSP, Industrial Area,

Ludhiana on his mobile phone at about 07:20 p.m. to reach at the spot, who reached there at about 07:40 p.m alongwith his personal staff. He

introduced himself to the appellants and also informed them that it is their legal right to get themselves searched in the presence of a Magistrate or

some other gazetted officer, then they can be called at the spot. The appellants reposed confidence in the DSP and the latter prepared consent

memo Ex.PA, which was thumb marked by them and attested by the witnesses.

Thereupon, the Investigating Officer, on the direction of DSP aforesaid conducted a search of the bags and found poppy husk in 39 bags, out of

which, the Investigating Officer took two samples, each of 250 gms from each gunny bag and prepared parcels. The remaining poppy husk of each

bag, on weighment, came to 35 kilograms. All the sample parcels, as also, the poppy husk bags Ex.P1 to Ex.P39 were separately sealed by the

Investigating Officer with his seal bearing impression ''SM'' and DSP also affixed his own seal bearing impression ''RK'' on all the samples and all

the gunny bags numbering 39. Sample seal Ex.P1 was separately prepared. Investigating Officer handed over the seal to Kulwant Singh, SI after

use and the case property was seized vide recovery memo Ex.PB.

Later, ruqa (memo) Ex.PO was sent to Police Station, where formal FIR Ex.PO/1 was registered. Grounds of arrest vide memos Ex.PG,

Ex.PH and Ex.P1 were also intimated to Kuldip Ram, Jit Ram and Sham Singh appellants respectively. Currency notes of Rs. 55/- from Jit Singh

appellant, Rs. 150/- from Kuldip Ram appellant and Rs. 55/- from Sham Singh appellant were recovered and their personal search memos Ex.PD,

Ex.PE and Ex.PF respectively drawn to this effect. Intimation of arrest of Kuldip Ram, Jit Ram and Sham Singh appellants was given to Gurjit

Singh vide memos Ex.PK, Ex.PL and Ex.PM respectively. Investigating Officer also prepared site plan Ex.PN of the place of the recovery, who

also recorded the statements of the witnesses at the spot.

Later, case property was deposited with Narinder Singh, MHC. On 22.07.2009, Investigating Officer obtained the case property from him and

produced that in the Court of learned Illaqa Magistrate and filed an application Ex.PP to this effect, whereon, latter passed order Ex.PP/1. Sample

parcels of this case were sent to Chemical Examiner, Patiala for analysis and latter vide report Ex.PQ declared the contents, thereof, to be poppy

husk.

After completion of investigation, Station House Officer of Police Station Focal Point, Ludhiana, instituted police report u/s 173 Cr.P.C. before

the learned trial Court, to the effect that it appeared that appellants had committed offence punishable u/s 15 of the NDPS Act, 1985.

The other two accused namely Vijay Kumar and Kulbir Singh could not be arrested, during investigation, and were got declared proclaimed

offenders.

On presentation of police report, copies of documents, as required u/s 207 Cr.P.C., were supplied to the appellants and charge u/s 15 of the

Narcotic Drugs and Psychotropic Substances Act, 1985, was framed against them, whereto, they pleaded not guilty and claimed trial.

Consequently, the prosecution evidence was summoned.

At the trial, prosecution examined R.K. Bakshi, DSP as PW1, Kulwant Singh, SI as PW2, Surinder Mohan, SHO as PW3, Gianjit,

Constable as PW4, Narinder Singh, HC as PW5 and Gurinder Singh, Ahlmad as PW6 and closed the evidence.

After closure of the prosecution evidence, appellants were examined u/s 313, Cr.P.C., wherein, they denied the allegations of prosecution,

pleaded innocence and false implication in this case.

Jit Singh appellant gave his own version that he is neither owner nor tenant of the quarter, wherefrom, the alleged recovery had been effected,

nor he is lessee of that quarter. He further stated that his brother-in-law Sham Singh, who is combine machine driver alongwith his helper Kuldip

Ram, had come to his house on the night of 20.07.2004, as they were doing the job of harvesting of crops at Ludhiana and they stayed for night in

his house, but in the early morning, he along with his brother Sham Singh appellant and helper Kuldip Ram appellant was picked up from his house

and taken to Police Station, where they were falsely implicated in this case, although, no recovery was effected from him. He also stated that he

does not know Vijay Kumar and Kulbir Singh (proclaimed offenders).

Sham Singh appellant also stated that he was working as driver on combine machine and was harvesting crop at village Lohara alongwith his

helper Kuldip Ram and in the night of 20.07.2004, he alongwith his helper Kuldip Ram and his brother Lal Singh stayed in the house of Jit Singh

appellant and in the early morning, they were picked up from that house by police officials and were taken to police station, where they were

involved falsely in this case, although, no recovery was effected from him and he is also neither owner nor tenant nor allottee of quarter No. 1172.

Kuldip Ram appellant also stated that he was doing the job of helper on a combine machine which was being driven by Sham Singh and was

harvesting crop at village Lohara and in the night of 20.07.2004, he alongwith Sham Singh went to the house of Jit Singh, who is the brother-in-law

of Sham Singh and stayed there for night, but in the early morning, he alongwith Sham Singh and Jit Singh was picked up by the police from there

and they were taken to Police station, where they were implicated falsely in this case. He also stated that he is neither owner nor allottee nor tenant

of the quarter No. 1172 nor any recovery of poppy husk was effected from him.

Appellants were called upon to enter in defence, and they examined Rajan T. Singh, Constable as DW1, Jaskiran Kaur Sr. Asstt. PUDA

Authority, Ludhiana as DW2 and Manmohan Singh, HC as DW3 and closed the defence evidence, later.

After hearing both sides, learned trial Court vide impugned judgment of conviction and order of sentence, convicted and sentenced the

appellants, as described in the first paragraph of this judgment. Aggrieved, there against, the appellants, who were accused before the learned trial

Court, have come up in this appeal with prayer for acceptance, thereof, and for their acquittal of the charge framed against them for the

commission of offence punishable u/s 15 of the NDPS Act, 1985.

We have heard learned counsel for the appellants and learned Additional Advocate General for the respondent and perused the record of the

learned trial Court with their assistance.

First of all, it is to be seen as to what the prosecution witnesses deposed against the appellants.

PW1 R.K. Bakshi, DSP, Sarabha Nagar, Ludhiana testified that on 21.07.2004, he was posted as Deputy Superintendent of Police, Industrial

Area, Ludhiana and on that day, after receipt of a telephonic message from Surinder Mohan, SI/SHO, Focal Point, Ludhiana alongwith his staff,

reached at the spot at about 07:30 a.m., where the appellants were present in the custody of the police party headed by Surinder Mohan, SI/SHO

and there was a heap of bags in non residential quarter of PUDA Colony and on arrival, he disclosed his identity to the appellants and told them

that their bags are to be searched and if they desire, some other gazetted officer or Magistrate could be called, but the appellants posed confidence

in him vide consent memo Ex.PA, which was thumb marked by them and signed by Satnam Singh and other police officials and thereafter, on his

direction, Surinder Mohan, SI conducted search of the bags recovered from the possession of the appellants.

PW1 R.K. Bakshi further testified that, on search, 39 bags of poppy husk were recovered from the possession of the appellants and two

samples of 250 gms each were taken from each bag and the remaining poppy husk of each bag, on weighment, came to 35 kgms and later all the

78 sample parcels and 39 bulk bags were sealed with his seal bearing impression ''RK'' and seal bearing impression ''SM'' of Surinder Mohan,

SI/SHO and the bags and sample parcels were seized vide memo Ex.PB and sample seal Ex.P1 was also prepared. Second sample parcels Ex.P2

to Ex.P40 were produced in the Court during deposition of this witness.

PW2 Kulwant Singh, SI also testified that on 21.07.2004, he joined the police party headed by Surinder Mohan, SI/SHO of Police Station

Focal Point, Ludhiana alongwith other police officials and they were crossing through a non residential PUDA Colony in the area of Moti Nagar

and at about 06:30 p.m., when they reached near quarter No. 1172, two persons, who were standing near the quarter, ran inside the quarter on

seeing the police party, and on suspicion, Surinder Mohan, SI/SHO checked the said quarter and saw five persons sitting on the heap of bags and

they tried to run away after seeing the police party and appellants were apprehended by the police party, their accomplices Vijay Kumar and

Kulbir Singh managed to flee and in the meantime, Satnam Singh, an independent witness, also met and was joined in the police party.

PW2 Kulwant Singh, SI also testified that Surinder Mohan, SI disclosed his identity to the appellants and told that he suspects some

contraband in the bags and search, thereof, is to be conduced and he further told the appellants that if they desire, some gazetted officer or

Magistrate could be called and the appellants made joint statement Ex.PC that they wanted the bags to be searched in the presence of some

gazetted officer and thereupon, Sh. R.K. Bakshi, DSP was informed, who reached at the spot at about 07:40 p.m. and on his arrival at the place

of occurrence, he disclosed his identity to the appellants, who posed confidence in him vide statement Ex.PA and, thereafter, on the direction of

DSP aforesaid, Surinder Mohan, SI conducted the search of bags, which came to 39 bags of poppy husk.

PW2 Kulwant Singh, SI further testified that two samples of 250 gms each were drawn from each bag and the remaining poppy husk of each

bag, on weighment, came to 35 kgs and all the 78 sample parcels and the 39 bulk bags were sealed with the seal bearing impression ''RK'' of DSP

aforesaid and of Surinder Mohan, SI bearing impression ''SM''. This witness also testified that sample seal Ex.P1 was also prepared and after use,

Surinder Mohan, SI/SHO handed over his seal to him, while DSP aforesaid retained his own seal. Case property was produced during the

deposition of this witness. He also testified that the case property was seized vide memo Ex.PB and personal search of the appellants was also

conducted and memos Ex.PD, Ex.PE and Ex.PF respectively in this regard were prepared. He also testified that arrest memos of the appellants

Ex.PG, Ex.PH and Ex.PJ respectively were also prepared by the Investigating Officer and intimation regarding grounds of arrest of the appellants

was given vide memos Ex.PK, Ex.PL and Ex.PM respectively and these were signed by him. The appellants could not produce any licence or

permit for keeping the said poppy husk in their possession. Second samples were also produced during deposition of this witness, who also

testified that his statement u/s 161 Cr.P.C. was recorded by the Investigating Officer.

PW3 Surinder Mohan, SI/SHO, who is the Investigating Officer, also testified on the lines of investigation, as has been reproduced in the

earlier parts of this judgment and, thereby, corroborated the testimony of PW2 Kulwant Singh, SI, who happened to be present with him at the

time of recovery of poppy husk from the appellants.

PW4 Gianjit, Constable tendered in evidence his affidavit Ex.PR. This witness also testified that his statement was recorded, during

investigation.

PW5 HC Narinder Singh, also testified that on 22.07.2004, he was posted as MHC at Police Station Focal Point, Ludhiana and on that date,

at about 10:45 a.m., the case property of this case was deposited with him by Surinder Mohan, SI/SHO and on the same date, latter obtained the

case property from him and produced that in the Court. He tendered in evidence his affidavit Ex.PS. He further stated that in para No. 3 of the

affidavit, date 23.07.2004 was written inadvertently and infact, the same is 22.07.2004. He also testified that his statement was recorded.

PW6 Gurinder Singh, Ahlmad also testified that he identifies the signatures of Sh. S.S. Dhaliwal, CJM, Ludhiana on order dated 13.01.2005

(copy Ex.PT).

DW1 Rajan T. Singh, Constable No. 1471 proved the photocopy of DDR Ex.D1. He testified that as per DDR No. 42 dated 22.07.2004,

SI/SHO returned to the Police Station and he proved the photocopy of entry Ex.D2. He also testified that as per rapat No. 18 dated 22.07.2004,

SI/SHO left police station at 04:20 p.m. and returned vide DDR No. 28 dated 22.07.2004 at 09:15 p.m. He also proved the photocopies of

entries Ex.D3 and Ex.D4 and testified that as per DDR No. 18 dated 23.07.2004, Surinder Mohan, SI/SHO left the Police Station at 03:50 p.m

for nakabandi at T point Jamalpur and before that, he remained in police station since 08:00 a.m on 23.07.2004. He proved the photocopy of the

entry Ex.D5. He further testified that Surinder Mohan, SI/SHO returned from T point, Jamalpur at 06:15 p.m vide DDR No. 24 dated

23.07.2004 and proved the photocopy of the entry Ex.D6. He further testified that no case property of this case was taken from malkhana by

Surinder Mohan, SI/SHO on 23.07.2004, as per DDR register. He also testified that as per DDR No. 26 dated 23.07.2004, SI/SHO left police

station at 07:00 p.m for D.P.O. Ludhiana and as per DDR No. 33 dated 23.07.2004, Surinder Mohan, SI/SHO returned to Police Station at

08:55 p.m from D.P.O. Ludhiana and he remained in police station, as per DDR dated 23.07.2004 uptill 08:00 a.m. on 24.07.2004.

DW1 Rajan T. Singh, Constable further testified that as per DDR No. 12 dated 27.07.2004, Gianjit, Constable left police station and he

proved the photocopy of the entry Ex.D7. He also testified that vide DDR No. 42 dated 27.07.2004, he returned police station and proved

photocopy of the entry Ex.D8. He also testified that as per DDR No. 45 dated 03.08.2004 Gianjit, Constable left Police Station for FSL, Patiala

and he proved photocopy of the entry Ex.D9. He further testified that Gianjit, Constable returned to Police Station vide DDR No. 24 dated

03.08.2004. He proved photocopy of this entry Ex.D10. He also testified that, as per rapat No. 401 dated 22.07.2004 in register No. 19, case

property was deposited with MHC and he proved the photocopy of the entry Ex.D11. He also testified that he has not produced the log book of

vehicles mentioned in summons, as the same are lying with MTO Police Lines, Ludhiana.

DW2 Jaskiran Kaur, Sr. Asstt, PUDA Authority, Ludhiana testified that there is no PUDA Colony at Moti Nagar, Ludhiana and due to this

reason, she has not brought any record and no colony was constructed by PUDA in the area of Moti Nagar, Ludhiana and she also testified that

Shaheed Bhagat Singh Colony is a private area and this colony was not constructed by PUDA.

DW3 Manmohan Singh, HC brought the log book of official Allwyn Nissan No. PB-10G-9983 and proved the photocopies of entries dated

21.07.2004 and 22.07.21004 Ex. DW3/3 and Ex.DW3/4. This witness also proved the photocopies of entries dated 21.07.2004 and

22.07.2004 Ex.DW1/3 and Ex.DW3/1 and Ex. DW3/2 respectively.

Learned counsel for the appellants contended that the alleged recovery was effected after the sunset on secret information and, therefore,

search warrant was required to be obtained by the Investigating Officer before entering into the premises, where the alleged poppy husk bags were

stacked. She also contended that if the Investigating Officer had reason to believe that the search warrant or authorization could not be obtained

without affording opportunity for concealment of evidence or facility for escape of the appellants, in that event, he should have recorded reasons in

writing and then, of course, he could enter into the premises without obtaining search warrant. But in this case, Investigating Officer and other

police officials entered into the premises in question without the aid of the search warrant and therefore, the entire alleged recovery stands vitiated

in this case making the appellants entitled for grant of benefit of doubt and the learned trial Court gravely erred in denying benefit of doubt to the

appellants due to non compliance of Section 42 of the Act by the Investigating Officer.

Learned counsel for the appellants also contended that the premises, from where alleged recovery was effected, did not belong to the

appellants, who were neither its owner nor occupiers, thereof, in any capacity, and therefore, they have been wrongly fastened with the liability of

possession of the alleged poppy husk. She also contended that the owner of the premises, where-from, the alleged recovery of poppy husk was

made, has been left out for the reasons best known to the Investigating Officer and only the occupier or owner of the place in question, could be

held liable for the possession of the alleged poppy husk lying, therein.

Learned counsel for the appellants also contended that there is no PUDA Colony at Moti Nagar, Ludhiana and, therefore, no alleged place of

recovery exists in Ludhiana and in view of the testimony of DW2 Jaskiran Kaur, Sr. Asstt, PUDA Authority, Ludhiana, the entire prosecution

version becomes doubtful. So, learned counsel for the appellants further contended that the benefit of doubt is required to be given to the latter in

this case, as no independent witness was examined in this case. She also contended that since the present case was a case of house search, two

persons from the vicinity, where the premises in question was located, were required to be associated and examined, as per requirement of Section

100(4) of the Act and due to non compliance of this provision, the alleged recovery becomes highly doubtful and that becomes a ground for

according benefit of doubt to the appellants.

On the other hand, learned Additional Advocate General for the respondent contended that no animus or hostility against the prosecution

witnesses has been alleged by the appellants, therefore, no motive can be ascribed to them to testify falsely against them. He also contended that

the police party had not visited the place of recovery on the basis of secret information and, therefore, the search warrant was not required to be

obtained. He also contended that the police party was on patrol duty and two persons, on seeing the police party, fled away towards the place of

recovery of poppy husk and were chased and then the police party landed on the place of recovery.

So, he contended that it was a case of chance recovery and, therefore, obtaining of search warrant before the recovery was not sine qua non,

although, as an abundant caution, a gazetted officer of the police i.e. PW1 Sh. R.K. Bakshi, DSP, Sarabha Nagar, Ludhiana was asked to come

at the place of recovery. He also contended that even the presence of PW1 Sh.R.K. Bakshi, DSP, Sarabha Nagar, Ludhiana at the place of

recovery was not required, as the poppy husk bags were not recovered from the personal search of the appellants, which was visible to the naked

eye, so he contended that the appellants have been rightly convicted and sentenced vide impugned judgment and order of sentence, which may be

upheld and affirmed.

We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellants, but find no merit, therein.

Perusal of Section 42 of the Act would reveal that it provides for power of entry, search, seizure and arrest without warrant or authorization to the

officers specified, therein, if such officer has reason to believe from personal knowledge or information given by any person and taken down in

writing that any narcotic drugs or psychotropic substance or controlled substance, in respect, whereof, offence punishable under the Act has been

committed or any document or other article which may furnish evidence of commission of such offence or any illegally acquired property 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 VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, carry out any

of the acts as specified in clauses (a) to (d) of sub section 1 of Section 42 of the Act. The said acts, in terms of clauses (a) to (d) of sub section 1

of Section 42 may be done within between sunrise and sunset.

It has also been enshrined in Section 42 of the Act that if the officer concerned has a reason to believe that a search warrant or authorization

cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of 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. So, Section 42 of the

Act applies only in those cases where the competent officer/official obtains the definite opinion about the concealment of narcotic drugs or

psychotropic substances or controlled substances in any building, conveyance or enclosed place. The evidence of the witnesses examined in this

case would candidly reveal that the Investigating Officer and other members of the police party had no information about the concealment of

poppy husk at the place of recovery, thereof.

It has come in evidence of PW2 Kulwant Singh, SI and PW3 Surinder Mohan, SI/SHO that the police party was on patrol duty in the area

from where the recovery of poppy husk was made. If it would have been the case of the respondent before the learned trial Court that the

Investigating Officer or any member of the police party had a definite information about the concealment of poppy husk at the place of recovery

then, of course, it was mandatory for the Investigating Officer to obtain search warrant or in the alternative, he was to record the reasons that

search warrant or authorization could not be obtained without affording opportunity for the concealment of evidence or facility for the escape of the

appellants, in that event, he could enter the place of recovery without search warrant.

Even the recovery in this case had been effected at 07:00 p.m. on 21.07.2004. However, notice can be taken in this case that the sun had not

set at that time and, therefore, due to this reason also, the provisions of Section 42 of the Act were not attracted. The police party was on patrol

duty on the date of recovery of poppy husk. Two appellants, on spoting the police party, got perplexed and fled towards the place of recovery

and that aroused suspicion in the minds of the police party, who chased two appellants and descended on the bags of poppy husk lying in a room

and five persons were sitting on the heap of bags containing poppy husk. The number of the accused was five and two of them namely Vijay

Kumar and Kulbir Singh, who have been declared proclaimed offenders, managed to flee.

So, it was also not the case of house search. If it would have been a case of house search, obviously, the police had to associate two persons

from the vicinity, where the place of recovery was situated, as per requirement of Section 100(4) of the Act, but the compliance of this provisions

of law was not essential as it was a case of chance recovery. If two appellants, on seeing the police party had not managed to flee, in that event, no

suspicion would have arisen in the minds of the police party to rush towards the place of recovery. It is only due to fleeing of the two appellants

towards the place of recovery, the police party landed at the place of recovery of the poppy husk. So, taking the case from any angle, there was

neither transgression of Section 42 of the Act nor compliance, thereof, was essential in the case being a case of chance recovery and therefore,

provisions of Section 42(1) of the Act were not to apply in view of judgment of this Court in case of Sarabjit Singh Vs. State of Punjab , wherein,

it was held that Section 42(1) of the NDPS Act applies where there was prior information with the police and not in case of chance recovery.

In Karnail Singh Vs. State of Rajasthan, , it was held that for attracting the applicability of Section 42 of the Act, it is necessary that the officer

empowered, thereunder, before exercise of his right, has reason to believe from personal knowledge or information regarding the movement of

narcotic drug or psychotropic substance. However, if the action is taken not upon his personal knowledge or information, the requirements of

Section 42 would not be applicable.

Even, it was not required of the learned trial Court to use word ""conscious possession"" at the time of examination of the appellants u/s 313 Cr.

P.C., in view of Swaran Singh and Others Vs. State of Punjab and Another , rendered by this Court, wherein, it was further held that if charge and

statement u/s 313 Cr. P.C. state that the accused was found in possession of poppy husk or a contraband article and recovery of the same was

effected and samples were drawn, requirement of law is fulfilled.

Similar view was taken by this Court in Darshan Singh and Others Vs. The State of Haryana, wherein, too, it was held that in the statement u/s

313 Cr.P.C., only incriminating circumstances, appearing against the accused are required to be put to the accused. Presumption of law or

presumption operating under the provisions of law is not required to be put to him in his statement.

In the case in hand, the plea of the appellants is that they have been falsely implicated after their arrest from the house of Jit Ram appellant, but

there is no cogent defence given by them in this case as against the testimony of the police officials, who while appearing as PW2 and PW3 in

candid words testified that the appellants were found sitting on the heap of bags of poppy husk.

In view of Darshan Singh''s case (supra), statutory presumption operates under the provisions of Sections 54 and 35 of the Act against the

appellants, until the contrary is proved. It was held in the judgment (supra) that plea of false implication by the accused is not tenable, as they failed

to explain, as to how poppy husk was found in his bullock cart. Likewise, in case in hand, the appellants were found sitting on the heap of the bags

containing poppy husk and they have failed to explain, as to how they had to sit on the heap of bags containing poppy husk.

Appellants in this case, were found sitting on the gunny bags numbering 39, each containing 35 kgs of poppy husk. It is their plea that they

were not in conscious possession. In the case of Nishan Singh v. State of Punjab 2011 (5) R.C.R. (Cri) 22, decided by this Court, such plea of

the accused that he was not in ''conscious possession'' of the poppy husk was repelled. It was further held that it was within special means of

knowledge of the accused, as to under what circumstances, the bags containing poppy husk were lying. In this judgment, the accused was found

sitting on gunny bags containing 40 kgs of poppy husk. It was held that the accused was in possession and control over the bags containing poppy

husk. It was held that moreover, once possession is proved, statutory provision starts operating and burden shifts on him to rebut such

presumption. Conviction of the accused was upheld in this case. Even, in this judgment, it was held that mere non joining of independent witness

will not prove fatal to the prosecution case.

In case in hand, even an independent witness Satnam Singh was associated, but was not examined. Regarding non examination of independent

witness in this case, suffice it to say that people are generally averse to depose in favour of prosecution, as they are afraid of the fact that deposing

in favour of prosecution may expose them to serious consequences. Moreover, prosecution, witnesses examined in this case are not alleged to

have any animus or hostility against the appellants prior to the day of recovery. It is now well settled that the evidence of police official is as good

as the evidence of any other witness and the same has to be weighed in the same scale like the evidence of any other witness.

PW1 Sh. R.K. Bakshi, DSP, PW2 Kulwant Singh, SI and PW3 Surinder Mohan, SI/SHO were subjected to searching cross examination by

the learned counsel for the appellants before the learned trial Court, but lengthy cross examination conducted upon them failed to elicit anything

worth the name, which could possibly cause any dent in their testimonies. Minor contradictions are likely to occur after lapse of time even in the

testimony of even truthful witnesses as human memory is fallible, which erodes with the passage of time.

In the case in hand, recovery indubitably was not effected from the personal search of the appellants, which was effected from the bags,

numbering 39, whereon, they were found sitting. As per Section 50 of the Act, search has to be in relation to the person and not in relation to the

premises, vehicle or articles. Even as an abundant caution, PW1 Sh. R.K. Bakshi, DSP, a gazetted officer was asked to come at the place of

recovery and in his presence, the bags containing poppy husk were searched, weighed and samples drawn, therefrom.

Section 55 of the Act mandates the officer in-charge of a police station to take charge of and keep in safe custody, al! articles seized under this

Act within the local area of that Police Station and which may be delivered to him, and shall allow any officer, who may accompany such articles to

the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples, so

taken shall also be sealed with a seal of the officer-in-charge of the police station. In the case in hand, compliance of this Section shall be deemed

to have been made as PW3 Surinder Mohan, SI, who is the investigating Officer of this case, was Station House Officer and he kept the case

property in his possession and deposited the same with PW5 Narinder Singh MHC and then produced the same before the learned Illaqa

Magistrate.

It is candid from his testimony as PW3 and the testimony of other police officials i.e. PW1 Sh. R.K. Bakshi, DSP and PW2 Kulwant Singh, SI

that 78 sample parcels and 39 bags containing poppy husk each weighing 35 kgs were sealed by PW3 Surinder Mohan, SI, with his own seal and

also with the seal of PW1 Sh. R.K. Bakshi, DSP, a gazetted police officer. Seal in this case was not handed over by PW2 to the independent

witness. This has no bearing on the case especially, when no circumstance has come on the record, that the case property was tampered with,

during investigation.

It may be mentioned here that the case property remained in possession of PW3 Surinder Mohan, SI, PW4 Gianjit, Constable and PW5

Narinder Singh, HC. PW3 Surinder Mohan, in candid words testified that, so long as, the case property remained in his possession, no one,

tampered, therewith. His testimony, on this point, during cross examination could not be shattered. PW4 Gianjit, Constable in his affidavit Ex.PR

adjured that, so long as, the sample parcels remained in his possession, no one tampered, therewith. His testimony, indubitably, during cross

examination, could not be shattered.

PW5 Narinder Singh, HC also in his affidavit Ex.PS adjured that, so long as the case property remained in his possession, no one tampered,

therewith. His testimony too, during cross examination, could not be shattered. So, in this view of the matter, link evidence in this case is complete,

as sample parcels of this case were deposited with the office of Chemical Examiner in an intact condition and the latter, in its report Ex.PQ opined

that the contents of sample parcels were chura poppy heads.

It is no doubt true, that the place from where the recovery of poppy husk was made from the appellants did not belong to them, but that

cannot be made a ground for their acquittal in this case. It is the negligence of the police, who should have inquired about the ownership of the

place in question and associate owner, thereof, during investigation to rule out his complicity in this case, which has not been done, but that

negligence on the part of the police in this regard is inconsequential to the appellants.

It is, no doubt true, that DW2 Jaskiran Kaur, Sr. Asstt. PUDA Authority, Ludhiana testified that there is no PUDA Colony at Moti Nagar,

Ludhiana, but during cross examination by the learned Additional Public Prosecutor for the respondent, she testified that there is PUDA Colony

adjacent to Moti Nagar, Ludhiana. During re-examination also, she testified that name of locality of House No. 1172, is PUDA Colony, Sector

40, HIG Houses, Samrala Road, Ludhiana. So, this witness clarified during her testimony that there is a PUDA Colony adjacent to Moti Nagar

and house No. 1172 from where the recovery of poppy husk has been made is located in PUDA Colony. Thus, no benefit can be derived by the

appellants from the testimony of DW2. Such benefit could be derived by them if DW2 had maintained her stand taken by her in her examination in

chief to the effect that there is no PUDA Colony at Moti Nagar, Ludhiana, in her cross examination, too.

In this view of the matter, the house No. 1172 from where the recovery of poppy husk has been made from the appellants has been identified

by DW2 Jaskiran Kaur and only negligence on the part of police was that they have not verified the ownership of this house and complicity of its

owner in this recovery of the poppy husk.

No benefit can be derived by the appellants from the testimony of DW3 Manmohan Singh, HC, as he has simply produced the log book of the

official vehicle and photocopy of the entries, therein. Also, no benefit of doubt can be derived by the appellants from the testimony of DW1 Rajan

T. Singh, Constable. Even, the learned counsel for the appellants failed to point to the relevancy of testimony of DW1 Rajan T. Singh and DW2

Jaskiran Kaur for according benefit of doubt to the appellants. Indeed, through the testimony of DW1 Rajan T. Singh, DW2 Jaskiran Kaur and

DW3 Manmohan Singh, HC, the case of the prosecution against the appellants does not become doubtful in any manner.

There is, thus, no illegality or impropriety in the impugned judgment holding the appellants guilty for commission of offence punishable u/s 15(c)

of the Act and the same is hereby upheld, and affirmed.

Learned counsel for the appellants, then contended that the impugned order of sentence may be modified and the substantive sentence may be

reduced to the minimum prescribed u/s 15(c) of the NDPS, Act, 1985. There is substance in the contention of the learned counsel for the

appellants and there is a scope for imposition of minimum sentence upon them prescribed u/s 15(c) of the NDPS Act, as they are not previous

convicts, as can be seen from their punishment slips, attached with the police report (challan). Besides, they are from the lower strata of the

society. So, in these circumstances, impugned substantive sentence imposed upon the appellants is reduced to ten years each. Appellants shall now

undergo rigorous imprisonment for a period of ten years each for the commission of offence punishable u/s 15(c) of the Narcotic Drugs and

Psychotropic Substances Act, 1985.

Resultantly, except for this modification in the impugned order of the sentence, the appeals fail and are, hereby, dismissed.