Nachhattar Singh vs State of Punjab

Paramjeet Singh, J.—This appeal is directed against the judgment of conviction and order of sentence dated 16.09.2004 passed by the learned Judge, Special Court, Mansa, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lac for the offence punishable u/s 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act"). In default, to further undergo rigorous imprisonment for six months. Brief facts of the case are that SI/SHO Baljit Singh along with ASI Ajmer Singh, C-II Kewsar Singh, C-II Harpal Singh, SPO Daljit Singh, PHG Major Singh in Government canter driven by Constable Ajaib Singh in connection with patrol duty, reached on the bridge of canal situated in the revenue estate of village Kotli Kalan. There Surjit Singh son of Ganga Singh met him and joined with the police party. When the police party have gone just 1/4 kilometer from railway line towards Village Bhai Desa, they saw one person sitting on the bags on the right side in the ditches of the canal. He was apprehended with the help of police officials. He disclosed his name to be Nachhattar Singh son of Mukhtiar Singh resident of Village Kotli Kalan. Since the Investigating Officer suspected some intoxicant in four gunny bags, he asked the accused whether he want to search his bags in the presence of a Gazetted Officer or Magistrate. The accused gave option that search be effected in the presence of a Gazetted Officer. Consent memo was separately prepared. Thereafter, jagjit Singh Gill, DSP(D), Mansa was called through wireless message, who reached at the spot. On the direction of the DSP, SI Baljit Singh opened the mouths of all the four bags weighing 40 kg each which were in possession of the accused - Nachhattar Singh, which led to the recovery of total 160 kgs poppy straw. A sample of 100 gram each was taken out from each bag and marked from 1 to 4. Samples and remaining poppy straw were sealed separately. Seal after use was handed over to Surjit Singh and the case property was taken into possession of the police. The personal search of accused resulting into recovery of Rs.10/-currency note. Accused was detained in police lockup. On the next day i.e. 06.12.1998, SI Baljit Singh produced the accused and the case property in the Court. The learned Magistrate directed to deposit the case property in the malkhana. On 09.12.1998, samples were sent for chemical examination. After receipt of report of Chemical Examiner and completion of investigation of the case, challan was presented against the accused in the Court. Finding a prima facie case against the accused, he was charge-sheeted to which he pleaded not guilty and claimed trial.

The prosecution, in order to prove its case, examined PW1 Constable Yadwinder Singh, PW2 Jagjit Singh Gill, DSP, PW3 Baljit Singh Inspector. After tendering report of Chemical Examiner (Ex.PM/1) and giving up PW Surjit Singh, being won over by the accused, the prosecution closed its evidence.

Thereafter, statement of the accused was recorded u/s 313 Cr.P.C. all incriminating circumstances were put to him. He denied the same and pleaded false implication. However, in his defence, he has examined DW1 Surjit Singh, DW2 Jaggar Singh, DW3 HC Lakhbir Singh, DW4 HC Gurnam Singh and DW-5 Muchra Singh @ Kaka.

The learned Trial Court, after trial, convicted and sentenced the accused appellant. Hence, this appeal.

I have heard learned counsel for the appellant, as well as, the learned State Counsel.

Learned counsel for the appellant contended that prosecution is solely based on the uncorroborated testimony of PW3-Baljit Singh. The presence of PW2 Jagjit Singh Gill, DSP, is not supported from the circumstances so much so that the seal after use was not handed over to Jagjit Singh Gill PW2, but was handed over to Surjit Singh an independent witness. It is further contended that Jagjit Singh Gill has not appended the seal on any of the samples of the case property. Mere attestation of recovery memo would not establish that the entire recovery was effected in the presence of Jagjit Singh Gill, DSP. Learned counsel for the appellant further contended that there is non-compliance of Section 50 of the Act which goes to the root of the case. For non-compliance of the same, entire proceedings stands vitiated. Learned counsel for the appellant further contended that investigation is tainted and appellant was not in conscious possession of the contraband. There are cuttings in the number of FIR, overwriting in Form No.29. The case property was never deposited with the Malkhana Incharge as per entry in register No.19 as proved by DW-4 HC Gurnam Singh. Learned counsel further contended that Surjit Singh, an independent witness has not supported the prosecution version, rather has deposed in favour of the appellant along with other defence witnesses, the defence is to be believed. Learned counsel further contended that affidavit of Constable Yadwinder Singh (PW1), who deposited the samples with the chemical examiner is also defective and cannot be relied.

The aforesaid contentions of the learned counsel for the appellant have been vehemently opposed by the learned State counsel. Learned State counsel has contended that the prosecution case is solely based on the testimony of Baljit Singh which has not been corroborated by any person. Learned State counsel further contended that non-handing over of seal to Jagjit Singh Gill, DSP, does not affect the merit of the case, rather, the case is strengthened from the fact that the seal was handed over to Surjit Singh, an independent witness.

Learned State counsel further contended that there is complete compliance of Section 50 of the Act. The DSP was called and option regarding search was given to the appellant. Otherwise also since the recovery has not been effected from the person of the appellant, non-compliance of Section 50 of the Act will not affect the merit of the case. Learned State counsel has relied upon judgments of the Apex Court in the matter of State of Punjab Vs. Baldev Singh, etc. etc., Ajmer Singh versus State of Haryana, 2010(2) RCR (Criminal) 132 and Vijaysinh Chandubha Jadeja versus State of Gujarat, 2010(4) RCR (Criminal) 911 to contend that when the recovery is effected from open space, vehicle, bag, brief case, container, etc. and not from the person of the accused, then non-compliance of Section 50 of the Act is immaterial. Learned State counsel further contended that so far the contention that prosecution witness who was an independent witness has deposed in favour of the appellant is concerned, the co-villagers never deposed against the accused, further his evidence can be scrutinized. On that ground, the appellant is not entitled to benefit of doubt and consequential acquittal. Learned State counsel further contended that defence version does not fully exonerate the appellant. So far as the single testimony of Baljit Singh, Inspector, which is not corroborated by the other witness(es), is concerned, the learned State counsel contended that the DSP was called at the spot. He has appeared as a prosecution witness and has supported the prosecution version in the manner the recovery was effected. Baljit Singh, Inspector, (PW-3) has deposed on the similar lines and no material discrepancy has come during the cross-examination of these witnesses. The corroboration could not be possible for the reason that ASI Gurtej Singh, one of the attesting witnesses, has expired. Otherwise, it is also a settled law that it is quality of evidence which is to be seen not the quantity of evidence.

I have considered the rival contentions of the learned counsel for the parties and gone through the record with the assistance of the learned counsel for the parties.

The contention of the learned counsel for the appellant that seal was not handed over to DSP Jagjit Singh Gill (PW2), who was a Gazetted officer, but was given to the independent witness does not make any difference, rather, it is always better if the seal is handed over to independent witness. In this case, the seal was handed over to the independent witness Surjit Singh, so on this ground, the appellant cannot be granted any benefit. This contention has not much substance.

The next contention of the learned counsel for the appellant is that there is no compliance of the provisions of Section 50 of the Act, as such, the trial vitiates. This contention cannot be accepted. The reading of Section 50 of the Act, as well as, the settled position of law make it clear that where the recovery is from open space, vehicle, bag, brief case, container, etc, and no personal search of accused is done, then non-compliance as required u/s 50 of the Act is immaterial. In the present case, recovery was effected from the open space where the appellant was sitting over the four bags of poppy straw weighing 40 kgs each totalling 160 kg. In the case of State of Punjab versus Baldev Singh (supra), the Apex Court has held as under:

On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirement of Section 50 of the Act are not attracted.

The said view has been further affirmed by the Apex Court in the case of Ajmer Singh (supra) wherein it has been held that Section 50 of the NDPS Act applies only in case the personal search of the person not otherwise. Articles like bag, brief case, container, etc. cannot even remotely treated as part of the body or a human being. The same view has been affirmed in a recent Constitutional Bench judgment of the Hon''ble Apex Court in the case of Vijaysinh Chandubha Jadeja(supra).

There is, thus, no substance in the contention of the learned counsel for the appellant and the same is rejected.

The next contention of the learned counsel for the appellant is that the investigation is tainted and there was no conscious possession of the appellant over the contraband. The prosecution has not proved the ownership of space where the alleged contraband was lying and the conscious possession of the appellant. This contention has not much weight. The appellant was sitting over the contraband and he was the only person sitting over the contraband. Therefore, it is clear indicative that the appellant was in possession of the said contraband. Otherwise also, it cannot be believed that police will plant such a heavy quantity of 160 kg. of poppy straw specifically when the appellant has failed to show any enmity with the police for implicating him in this case falsely. Furthermore, u/s 35 and explanation provided therein presumption is against the appellant. He had not rebutted that. As such, this contention of the appellant is also rejected.

Learned counsel for the appellant has contended that there are cuttings in the FIR number in the forms whereby the sample was sent for chemical examination. That is not material discrepancy because generally it happens due to typographical or clerical mistake. In fact, FIR No. 120 and 129 are identical because some time, figure `9'' also appears like figure `0''. In fact, it was an FIR No.129. It appears that overwriting on figure `0'' was to clarify the exact number. As such, this contention is not of much help to the appellant.

The next contention of the learned counsel for the appellant is that the evidence of Baljit Singh is not corroborated by any other witness and even the independent witness has not supported the recovery who has been examined as a defence witness. I have considered the contention of the learned counsel for the appellant. ASI Gurjit Singh, who was other attesting witness of the recovery memo, had already expired before coming into the witness box. Statement of Baljit Singh Inspector has been supported in material aspect by the statement of PW-2 DSP Jagjit Singh Gill, who was called at the spot after recording the consent memo of the appellant. He has witnessed the recovery actually effected at the spot. It is settled principle of law that it is the quality of evidence, not the quantity of evidence which is to be seen. Since in the present case, the case is duly proved by the evidence of the DSP, as well as Baljit Singh, Investigating Officer, no benefit can be given to the appellant.

The last contention of the learned counsel for the appellant is that DW Surjit Singh who was stated as an independent witness has not supported the prosecution version, rather has deposed in favour of the appellant. His evidence should be taken into consideration and the benefit of doubt should be given to the appellant.

I have considered this contention. It is common knowledge that independent witness who is a co-villager of the appellant-accused would generally do not support the prosecution version as he would have been influenced by the co-villagers not to depose against the appellant, a co-villager. The evidence of DW5 - Muchra Singh is also of not much value. The accused has failed to examine Sadhu Singh and Gurjant Singh who may have supported the version narrated by Muchra Singh, Chowkidar.

Learned counsel for the appellant has failed to point out any material discrepancies in the evidence, which may affect the merit of the case, although the prosecution witnesses have been cross-examined thoroughly In view of this, the present appeal fails and is dismissed. The judgment of conviction and order of sentence dated 16.09.2004 passed by the learned Judge, Special Court, Mansa are upheld. Since appellant is on bail, the authorities may take appropriate measures for arrest of the appellant to serve the remaining part of the sentence.