Parminder Singh vs State of Punjab

T.H.B. Chalapathi, J.

These appeals are directed against the conviction and sentence imposed by the learned Additional Sessions Judge, Rupnagar on the accusedappellants in Sessions case No. RT3 of 1992 decided on August 18, 1993 for the offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act).

According to the case of the prosecution on 22nd July, 1992 when Inspector Ramesh Chander was holding a picket at Tpoint in village Manakpur Kaller, he received a secret information that poppy husk in huge quantity was being carried from Bareili to village Simbal Majra in a Truck bearing No. CHW 9946. He the sent a ruqa to the Police Station for registration of the case. At about 8 A.M. a truck came to the site and the same was intercepted. The accused Udham Singh (who is appellant in Criminal Appeal No. 993SB of 1998) was driving the said truck while the accused Parminder Singh (who is appellant in Cr. Appeal No. 684SB of 1998) was sitting by the side of the Driver and the accused Bhola Singh (who is the appellant in Cr. Appeal No. 900SB of 1998) was also sitting in the cabin and the 4th accused Happy Singh, who was a cleaner was also sitting in the said truck. All the accused were apprehended at the spot. Before conducting the search of the accused, Rakesh Kaushal, Deputy Superintendent of Police, arrived at the spot on receipt of a wireless message. The search was conducted in the presence of the Deputy Superintendent of Police which resulted in the recovery of 55 bags of poppy husk weighing 40 kgs. each. Sample of 250 gms was taken from each bag and the same were sealed. The bags containing remaining poppy husk were also sealed. The samples and bags of poppy husk were taken into possession by the Deputy Superintendent of Police through the recovery memo. After completion of the investigation, the chargesheet has been filed against all the four accused.

After committal, the learned Additional Sessions Judge framed the charge against all the accused for the offence under Section 15 of the N.D.P.S. Act to which the accused pleaded not guilty.

In order to prove the guilt of the accused, the prosecution produced four witnesses and filed affidavits of Constable Ajmer Singh and Head Constable Pritpal Singh. After closure of the evidence for prosecution, the accused were examined under Section 313 Cr.P.C. All the accused pleaded that they were falsely implicated in this case, but the accused did not adduce any evidence in defence.

On a consideration of the evidence on record, the learned Additional Sessions Judge, convicted all the accused for the offence under Section 15 of the N.D.P.S. Act and sentenced them to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs. one lac each.

Aggrieved by the said conviction and sentence imposed by the learned Additional Sessions Judge, the accused 1 to 3 filed the above appeals.

The learned counsel for the accusedappellants argued that there is non compliance with the provisions of Sections 42 and 50 of the N.D.P.S. Act and the independent witnesses who have been joined by the Police for recovery of the contraband from the truck have not been examined and the affidavits of Constable and Head Constable cannot be read in evidence and there is no evidence of conscious possession of the contraband by the accused. Therefore, the accused are entitled to be acquitted of the charge under Section 15 of the N.D.P.S. Act.

PW1 is the Inspector of Police Station, Sohana. He deposed that about 7 A.M. he along with Police officials namely Sub Inspector Tarsem Singh, Asstt. Sub Inspector Sukhminder Singh, Head Constables Gurcharan Singh and Paramjit Singh and other Constables was present at the Nakabandi at Tpoint in village Manakpur Kaller. He received a secret information to the effect that the poppy husk in huge quantity was being carried out from Bareli to village Simbal Majra in Truck No. CHW 9946 and if the said truck was searched, the poppy husk could be recovered and he further stated that the informer disclosed that Udham Singh was the driver of the said truck and Bhola singh, who was a trader was also in the truck and Parminder Singh was the second driver of the truck. There was also a cleaner in the truck. He reduced the information to writing and sent it through Constable Kamaljit Singh for registering the case and on the basis of the same the case was registered. Thereafter one Angad Singh was passing by that side and he called him to be a witness. Thus at about 8 A.M. a truck bearing No. CHW9946 came to the place of Nakabandi. They signalled to stop the truck and Udham Singh was found at the steering wheel of the truck and accused Parminder Singh, Bhola Singh and Cleaner were also in the truck alongwith the bags of poppy husk and they were apprehended. The names and addresses of the accused were noted. The body of the truck was also searched and 55 bags each containing 40 Kgs of poppy husk were recovered. He further deposed that before the search was conducted, the Deputy Superintendent of Police came to the spot since he sent a wireless and the truck was searched in the presence of the Deputy Superintendent of Police namely Rakesh Kaushal. The bags were sealed by him and also by the Deputy Superintendent of Police with their respective seals after taking samples. He also deposed that the bags were weighed one by one and each bag contained 39 Kgs 150 gms. of poppy husk after taking the sample. Constables were present. The truck was also seized. Nothing has been brought out to discredit the evidence of this witness in the crossexamination.

PW2 who is the Sub Inspector supported the evidence of PW1. PW2 was also a member of the Party who held Nakabandi. His evidence also goes to show that a search of the truck was conducted in the presence of the Deputy Superintendent of Police and 55 bags of poppy husk were recovered from the truck and accused Udham Singh was driving the truck while the other accused were sitting in the truck.

PW3 is the Deputy Superintendent of Police. He deposed that he received a wireless message of 22.7.1992 from PW1 about the interception of the truck and he asked him to reach the place of recovery. He further stated that a case had already been registered on the basis of the information and in pursuance of the wireless message he went to the place where the truck was intercepted and a search was conducted in his presence and they found 55 bags of poppy husk, each containing 40 Kgs of poppy husk in the truck and 250 gms of poppy husk was taken as sample from each bag and the samples and the remaining bags were sealed. He and PW1 put the seals on the samples and also on the bags and he also identified the truck bearing No. CHW9946 which was seized on 22.7.1992. Thus PW3 supported the evidence on PW1 and PW2 on all material particulars.

The evidence of PW4 is only formal in nature. He also filed an affidavit which is marked as Exhibit PB and he was allowed to be crossexamined.

The contention of the learned for the accusedappellants that the provisions of Section 42 of the N.D.P.S. Act are not followed cannot be accepted. In fact the Inspector of Police, who has been examined as PW1, has reduced to writing the secret information received by him and sent the same to his higher officials and on the basis of the information i.e., the ruqa Exhibit PA sent by PW1, the case was registered in FIR and the FIR was sent to higher officials alongwith statement Exhibit PA. Therefore, there is sufficient compliance with subsection (2) of Section 42 of the N.D.P.S. Act. In this case, I do not find any violation of provisions of Section 42 of the N.D.P.S. Act.

The learned counsel for the accusedappellant also contended that there is a violation of the provisions of Section 50 of the N.D.P.S. Act. According to him, no offer was made to the accused whether they wanted to be searched in the presence of a Gazette Officer, but the fact remains that even before conducting the search, a wireless message was sent to the Deputy Superintendent of Police that a truck was intercepted and he was asked to come. Accordingly, the Deputy Superintendent of Police, PW3, went to the place where the truck was intercepted and the search was conducted in his presence. There cannot be any dispute that the Deputy Superintendent of Police is a Gazetted Officer. When the search itself was conducted in the presence of a Gazetted Officer, there is no question of offering to the accused whether they wanted to be searched in the presence of a Gazetted Officer. Further, it is not a case of personal search of the accused. Section 50 is applicable only in a case where physical search of a person has been made. Here the poppy husk was recovered from the truck. In such cases, there is no requirement of giving any offer to the accused whether they wanted to be searched in the presence of a Gazetted Officer or a Magistrate. In this context, it is useful refer to the decision of the Apex Court in Sarjudas and another v. State of Gujrat, 1999(4) RCR(Crl.) 614 : JT 1999(8) SC 118 , where it has been held as follows :

"We do not find any substance in this contention as the charas was not found on the person of the appellants, but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found."

Since in the instant case there is no personal search of the accused, the provisions of Section 50 of the N.D.P.S. Act are not attracted.

It is next argued by the learned counsel for the accusedappellants that the independent witness who has been joined while recovering the poppy husk from the truck has not been examined. If the evidence of PW1 to PW3 can be believed, the nonexamination of an independent witness is not fatal to the case of the prosecution. In view of the recovery of huge quantity of poppy husk and also recovery of the truck, it cannot be said that the case is planted and the accusedappellants have been falsely implicated. When there is nothing on record to shake the evidence of PW1 to PW3, their evidence cannot be disbelieved merely on the ground that they are official witnesses. Nothing has been brought out on record to show that any of the witnesses namely PW1 to PW3 were interested in securing the conviction of the accused. I am, therefore, of the opinion that nonexamination of independent witness is not fatal to the case of the prosecution.

The learned counsel for the appellants further argued that the affidavit filed by PW4 who is the Head Constable, cannot be read in evidence. In fact the Head Constable is only a formal witness, who recorded the FIR. He has been tendered to crossexamination and he has been crossexamined by the learned counsel for the accused without raising any objection. He was not present at the time of the Nakabandi or at the time of seizure of the poppy husk from the truck. Therefore, I am unable to agree with this contention of the learned counsel for the accusedappellants.

The learned counsel for the accusedappellants further argued that there is no evidence of conscious possession, but the fact remains that Udham Singh was driving the truck and the accused Parminder Singh was a codriver while the accused Happy Singh was the Cleaner of the truck. It is also in evidence that the accused Bhola Singh was a trader. It is not the case of Bhola Singh that he was travelling in the truck as a passenger. He never stated in his 313 Cr.P.C. statement that he was travelling in the truck as a passenger and he boarded the truck in the midway while it was in transit from one place to another place. When a large quantity of poppy husk in 55 bags was being transported in the truck, it cannot said that none of the accused had knowledge of the poppy husk. Further the evidence on record clearly shows that except 55 bags of poppy husk, there was no other commodity or goods being transported in the truck. Thus it is clear that all the accused were having conscious possession of the poppy husk which was being transported in the truck in question from one place to another.

On a consideration of entire material on record, I do not find any ground warranting interference with the conviction and sentence imposed by the learned Additional Sessions Judge, Rupnagar on the accusedappellants.

The result is, all the three appeals fail and they are, accordingly, dismissed confirming the conviction and sentence imposed by the learned Additional Sessions Judge on the accusedappellants.

Appeals dismissed.