Kewal Singh vs State of Punjab

Naresh Kumar Sanghi, J.—By way of this appeal, the appellant has challenged the judgment of conviction and the order of sentence, dated 3.6.2005, passed by the learned Judge, Special Court, Hoshiarpur, whereby the appellant was held guilty for the commission of offence punishable u/s 15 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (for brevity, ''the NDPS Act''), and was sentenced to undergo rigorous imprisonment for a period of 21/2 years and to pay a fine of Rs. 1,000/- . In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of two months. Brief facts of the case are that on 15.9.2002, Sub Inspector Manjit Singh along with Assistant Sub Inspector Jagdish Singh, Head Constable Jasbir Silngh, Constable Baljinder Singh and Constable Avtar Singh, was patrolling in the area of Khanpur in a Gypsy, which was driven by Constable Amarjit Singh. A secret information was received that appellant, Kewal Singh, had gone to Himachal Pradesh to bring poppy husk on his scooter, bearing Registration No. PAQ-2672, and if barricade was laid, then he could be apprehended red handed. Since the said information was reliable, therefore, Sub Inspector Manjit Singh sent a memo, Ex. PJ, through Constable Avtar Singh, on the basis of which formal FIR, Ex. PJ/1, dated 15.9.2002, was recorded by Assistant Sub Inspector Gurdev Singh, who after making endorsement, Ex. PJ/2, informed the FIR number to Sub Inspector Manjit Singh. Barricade was laid at the turning of village Mali.

One scooter came from the side of Jaijon and the same was signalled to stop. On inquiry, the person driving the scooter disclosed his identity as Kewal Silngh son of Harbhajan Singh, resident of Sarhala Kalan. He was informed by Sub Inspector Manjit Singh that he suspected some intoxication in his (Kewal Singh) possession and, therefore, did he want that the search of his bag be conducted in the presence of a Gazetted Officer or a Magistrate. Consent memo, Ex. PA, was prepared, which was attested by Assistant Sub Inspector Jagdish Singh and Head Constable Jasbir Singh.

Deputy Superintendent of Police Navjot Singh, Police Station, Garshankar, was requested to arrive at the spot. He reached the spot, disclosed his identity, place of posting and asked the appellant as to whether he wanted his search to be conducted from him or from some other Gazetted Officer or Magistrate but the appellant posed confidence in the Deputy Superintendent of Police, Navjot Singh. Resultantly, consent Memo, Ex. PB, of the appellant was reduced into writing, which was signed by him and attested by Sub Inspector Manjit Singh, Assistant Sub Inspector Jagdish Singh and Deputy Superintendent of Police Navjot Singh.

On direction of the Deputy Superintendent of Police, the bag was searched and poppy husk was found. Two samples, each of 250 grams, were drawn and the remaining poppy husk on weighment was found to be 9 kilograms and 500 grams. The samples and the bag containing the residue poppy husk were sealed with the seals ''NS'' of Deputy Superintendent of Police Navjot Singh, and ''MS'' of Sub Inspector Manjit Singh. The parcels and the scooter were taken into police possession vide recovery memo Ex. PD, which was attested by Deputy Superintendent of Police Navjot Singh, Assistant Sub Inspector Jagdish Singh and Head Constable Jasbir Singh. Sub Inspector Manjit Singh handed over his seal to Assistant Sub Inspector Jagdish Singh, while Deputy Superintendent of Police Navjot Singh kept his seal with himself. Rs. 60/- were recovered from the personal search of the accused and the same were also taken into police possession, vide memo, Ex. PE. The appellant was arrested and an intimation of his arrest was given to Manjit Singh, resident of Sarhala Kalan, vide memo, Ex. PF. After completing the formalities at the spot, the appellant and the recovered material were taken into Police Station, Mahilpur. The case property was deposited with the Moharrir Head Constable of the Police Station and the appellant was lodged in the lock up.

On the next day, the appellant along with the case property were produced before the learned Area Magistrate, who verified the facts and, thereafter, the police official brought the case property to the police station and deposited the same with the Moharrir Head Constable. The appellant was sent to the jail. The sample was sent to the office of the Chemical Examiner, who after analysis found the contents of the sample to be poppy head, vide his report, Ex. PL. After receipt of the said report and completion of the investigation, the report u/s 173, Cr.P.C., was presented. The charge for the offence punishable u/s 15 of the NDPS Act, was framed against the accused to which he pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined the following witnesses:

PW 1.

ASI Jagdish Singh

PW 2.

Constable Amarjit Singh

PW 3.

HC Ashwani Kumar

PW 4.

SI Manjit Singh

PW 5.

DSP Navjot Singh

After closure of the prosecution evidence, the statement of the appellant was recorded in terms of Section 313, Cr.P.C. The appellant denied the prosecution version and pleaded innocence. No evidence in defence was led.

After hearing the arguments, the learned Trial Court convicted and sentenced the appellant as has been discussed in the opening para of this judgment.

Learned counsel for the appellant submitted that no independent witness was joined by the investigating officer, therefore, reliance could not be placed on the depositions of the official witnesses. She further argued that there was delay of four days in sending the sample to the Chemical Examiner, and that the seal after use was handed over to ASI Jagdish Singh, PW1, therefore, the possibility of tampering with the sample could not be ruled out.

On the other hand, learned counsel for the State had vehemently argued that the depositions of the police officials, could not be discarded merely on the ground that no independent witness was joined. He further argued that the recovery was effected on 15.9.2002 and thereafter the sample was sent to the Chemical Examiner on 19.9.2002. The seals affixed on the sample were found intact by the Chemical Examiner, therefore, there was no illegality or irregularity in sending the sample to the Chemical Examiner. Learned counsel for the State further argued that since no person from the public was available, therefore, the seal used by the Investigating Officer was handed over to ASI Jagdish Singh, PW 1. On the strength of his submissions, learned State counsel submitted that the learned Trial Court had rightly convicted and sentenced the appellant.

I have heard learned counsel for the parties and with their assistance meticulously examined the material available on record.

On 15.9.2002, SI Manjit Singh (PW 4) along with other police officials, was present in the area of Khanpur, on Jaijon road, in connection with patrol duty. He received a secret information that the appellant, Kewal Singh, who was dealing in sale and purchase of poppy husk, had gone to Himachal Pradesh to bring poppy husk on his scooter, bearing Registration No. PAQ-2672, and if the barricade was laid then he could be apprehended red handed. Believing the said information to be reliable, SI Manjit Singh (PW 4), sent Memo (Ex. PJ) through Constable Avtar Singh (PW 2) to the police station, on the basis of which formal FIR (Ex. PJ/1) was registered. The barricade was laid and when the appellant came on the scooter from Himachal Pradesh side, he was asked about his search to be conducted by the Gazetted Officer or a Magistrate. The appellant opted for his search to be conducted in the presence of a Gazetted Officer. Memo (Ex. PA) was prepared in that regard. DSP Navjot Singh (PW 5) was requested to arrive at the spot and after his arrival he too informed the appellant that his search could be effected before the Magistrate or in his presence. The appellant opted to be searched in the presence of DSP Navjot Singh (PW 5). On the direction of DSP Navjot Singh (PW 5), SI Manjit Singh (PW 4) searched the bag and found the poppy husk in it. After drawing samples, packets were prepared and sealed. The bag containing the residue poppy husk was also sealed. After receipt of the report (Ex. PL) from the Chemical Examiner, the report u/s 173, Cr.P.C., was presented.

The argument of the learned counsel for the appellant that no independent witness was joined in the present case to witness the recovery, would not affect the credibility of the official witnesses. The search was effected in the presence of DSP Navjot Singh (PW 5). None of the police officers had any enmity with the appellant to falsely implicate him in such a case. It is not the law that in every case where the witness from the public is not joined then the deposition of the official witnesses should be discarded. It all depends upon the facts of each case. In the present case, the deposition of all the official witnesses are above board and merely on the ground that no person from the public was joined, their deposition cannot be discarded.

So far as the submission of the learned counsel for the appellant that the sample was sent after a delay of four days to the Chemical Examiner is concerned, no benefit can be extended to the appellant. The alleged contraband was recovered on 15.9.2002 and on the very next day the samples and the residue poppy husk was produced before the learned Judicial Magistrate and thereafter the samples and residue poppy husk were deposited with the Moharrir Head Constable of the police station. On 19.9.2002, the sample was sent to the office of the Chemical Examiner, who found the seals intact. Therefore, there was no delay in sending the sample to the Chemical Examiner and no benefit can be extended to the appellant on this score.

The argument of the learned counsel for the appellant that the seal was handed over to ASI Jagdish Singh (PW 1), therefore, the appellant was prejudiced in defence, is also not tenable. Once it is the positive case of the prosecution that no independent witness was available, therefore, no one was joined to witness the recovery and, hence, as a matter of abundant caution, SI Manjit Singh (PW 4) handed over the seal, used for sealing the samples, to ASI Jagdish Singh (PW 1). Even otherwise, the samples were not only sealed with the seal of SI Manjit Singh (PW 4) but were also sealed with the seal of DSP Navjot Singh (PW 5), who after use retained his own seal. Therefore, the appellant failed to show any prejudice by handing over the seal to ASI Jagdish Singh.

After taking into consideration all the facts and circumstances of the case, there is no merit in the appeal so far as the conviction is concerned.

Keeping in view the facts and circumstances of the present case, especially the fact that recovery of 10 Kgs. Poppy husk was effected in the year 2002; the appellant was/is neither required nor involved in any other case; and that during the pendency of the appeal, he was granted the benefit of suspended sentence, but the said concession was not misused, this Court is of the considered view that the sentence awarded to the appellant is on higher side. Therefore, the substantive sentence of the appellant is reduced to rigorous imprisonment for four months. The amount of fine imposed by the learned Trial Court and in default clause thereof, shall remain undisturbed. The affidavit of Ajmer Singh, Superintendent, District Jail, Hoshiarpur, filed by learned counsel for the State, depicts that appellant Kewal Singh has undergone R.I. For 2 months and 21 days in this case, therefore, he is ordered to be re-arrested for serving the remaining part of the sentence. The appeal is partly allowed in the above terms.