Pritam Singh and Another vs State of Punjab

Jitendra Chauhan, J.—The present appeal has been filed against the judgment/order dated 29.4.2010, whereby the learned Judge, Special Court, Jalandhar, convicted and sentenced both the accused-appellants for a period of ten years each and to pay a fine of Rs. One lac each; in default of payment of fine, to further undergo RI for two years, under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act (for short ''the Act''). The facts necessary for adjudication of the matter as narrated in paras 2 and 3 of the impugned judgment are as under:-

On 14.06.2007, SI Harvinder Pal Singh alongwith other police personals was present at Nakodar Chowk, Jalandhar in connection with checking, control and prevention of consumption of narcotics, where he received a secret information to the effect about accused Jagtar Singh alias Tari son of Karam Singh son of Ganga Singh resident of Billi Chau, Tehsil Nakodar, District Jalandhar and Pritam Singh alias Parvana son of Karam Singh son of Ganga Singh resident of Billi Chau, Tehsil Nakodar, District Jalandhar are indulging in to the trade of heroin at large scale. They are in famous smugglers of international fame and indulge in sale of heroin and counterfeit Indian currency. In order to strike a big deal regarding heroin, both of them are waiting for their contact in the parking space of Wonderland Amusement Park, Lambra by sitting in their TATA Safari vehicle bearing No. PB-10BL-6957 (Temp.) and if a raid is conducted both of them can be apprehended alongwith large quantity of heroin. Finding the information reliable, a telephonic information was passed on by the SI to Sh. Tulsi Ram, SSP, Special Narcotic Cell (SNC), Punjab, Amritsar and as per the instructions of SSP, the police raided the above said place and saw a grey coloured TATA Safari vehicle parked there. On seeing arrival of the police on the scene both the occupants came into motion and its driver tried to start the vehicle, while the person sitting on the adjoining seat carrying a black coloured hand bag opened the door to run away, but was overpowered and apprehended. The vehicle driver who was trying to move the vehicle, all of a sudden came out of the vehicle, took out a pistol from his dub and with an intention to kill the SI pointed the pistol towards him, but before he could fire, he was overpowered. They disclosed their names as Jagtar Singh and Pritam Singh alias Parvana both sons of Karam Singh son of Ganga Singh resident of Billi Chau, Tehsil Nakodar, District Jalandhar. SI Harvinder Pal Singh introduced himself as SI of Special Narcotic Cell, Punjab, Amritsar and desired to search their TATA Safar vehicle and he told them that, he suspects narcotic substance in their vehicle. He also apprised them about their right to get the search conducted in the presence of a Magistrate or some gazetted Officer, upon which both of them told the SI that they want to get the search conducted in the presence of a gazetted officer and consequently their "Dissenting memos" were scribed upon which SI passed on the information to Sh. Rajpal Singh PPS, DSP, Special Narcotic Cell, Punjab, Amritsar who happened to be around Jalandhar and requested him to reach the spot. In the meantime, request was made to many tourists to join the police party but no one was willing to join the police party, however, one Rashpal Singh son of late Sunder Singh resident of Devi Dass Pura, P.S. Jandiala happened to be present in the Wonderland and when he was apprised about the facts, he agreed to join the police party as an independent witness.

When DSP Rajpal Singh reached the spot, he apprised about the proceedings. The DSP also introduced himself to both the nabbed persons and told his desire to get their vehicle searched by apprising them that they can opt search in the presence of a Magistrate, upon which both the accused reposed faith in the DSP and as per instructions of the DSP, when black coloured hand bag was searched, it led to recovery of a polythene bag, which contained heroin. Two samples of 5 grams each of the heroin were separated and on weighment the remainder contraband came to be 490 grams. The recovered case property was sealed at the spot. Thereafter, personal search of Jagtar Singh alias Tari was conducted, which led to recovery of a mobile phone and some currency notes. Personal search of Pritam Singh alias Parvana led to recovery of nine cartridges of .315 bore, currency notes and a mobile phone. One .32 bore pistol which had already been snatched from him was also taken in to police possession which contained five live cartridges of .32 bore. When their vehicle was searched another polythene bag was recovered underneath the driver seat which contained heroin. Two samples of 5 grams each of the heroin were separated and the remainder when weighed, came out to be 490 grams. The recovered case property was sealed at the spot and taken into police possession. Further investigation were started and after completion of investigations, challan against both the accused was presented in the court for trial on 07.11.2007.

The accused-appellants were charged for the commission of offence punishable under Section 21 of the Act alongwith Section 307 /34 of IPC, to which, they did not plead guilty and claimed trial.

In order to substantiate the charge, the prosecution has examined as many as eight witnesses were examined; PW 1 C. Jagwinder Singh, a formal witness, carried the sample parcels to the office of FSL; PW 2 SI Ravinder Kumar, the then SHO, PS Lambra, with whom the case property was deposited; the case property was deposited to PW 3 ASI Joginder Singh, by SI Harvinderpal Singh after which he put his own seals upon all the six parcels and deposited the same with SI Ravinder Kumar; PW 4 ASI Sukhdev Singh, who proved the test report Ex. PA of the pistols and live cartridges; PW 5 Mrs. Jaswinder Kaur, Snr. Asst., Special Narcotic Cell, Amritsar who proved the Standing Order of DGP, Punjab Ex. PB and Ex. PC; PW 6 SI Harvinder Pal Singh, Investigating Officer, who conducted the raid and apprehended both the accused; PW 7 Inspector Balbir Singh, accompanied SI Harvinder Pal Singh, the Investigating Officer; PW 8 DSP Rajpal Singh, gazetted officer before whom, the search was conducted.

When examined under Section 313 of the Code of Criminal Procedure, the accused-appellants stoutly denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. They stated that they were picked up by the police from their Dera situated in their fields alongwith their pistol and TATA Safari on 13.6.2007 and both of them were taken to the office of SSP situated in PAP campus and from there, they were taken to Amritsar. They were not arrested from Wonderland Amusement Park on 14.6.2007. In their defence, they examined DW 1 Paramjit Singh, DW 2 Sohan Singh, DW 3 Raval Singh, Sarpanch, DW 4 Surinder Kaur wife of Jagtar Singh, DW 5 Davinder Pal Singh, DW 6 HC Palwinder Singh and closed their evidence.

Before the trial court, the arguments raised by the learned defence counsel were that the appellants had been falsely implicated in the present case, as the police was inimical towards Jagtar Singh; that the recovery of contraband falls within the category of "small quantity"; that there are material contradictions in the statements of the prosecution witnesses and finally that the independent witness was not examined.

After analysing the entire evidence and hearing the learned counsel for the parties, the learned Trial Court rejected the pleas raised by the counsel for the accused and convicted and sentenced the accused appellants, as noticed at the outset.

The present appeal was admitted on 26.5.2010 by this Court.

Learned counsel for the appellants submits that the learned trial Court has committed a grave error while convicting and sentencing the appellants. He further submits that mandatory provisions of law as envisaged under Section 42 of the Act, have not been complied with. No question was put to the accused with regard to the conscious possession. He further submits that the alleged recovery falls under the category of "small quantity". He further submits that the raiding party was posted at Amritsar, whereas, the alleged recovery was effected at Jalandhar, for which no explanation is forthcoming. It is also submitted that the seal after use was not handed over to the independent witness. He further submits that there is a delay of six days in sending the sample to the FSL. This delay having not been explained in any manner, gives rise to the inkling of tampering with the contents of the sample parcels. It is further submitted that the independent witness was not examined. He further submits that Appellant No. 1 Pritam Singh is the owner of the vehicle. He cites State of Punjab Vs. Hari Singh and Others, , Kashmir Singh Vs. State of Punjab--> , Raj Kumar Vs. State of Punjab, , and E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, .

On the other hand, the learned counsel appearing for the respondent-State submits that the prosecution case having been fully proved beyond reasonable doubt, the learned trial Court has rightly convicted and sentenced the appellants and confiscated the vehicle in question.

I have heard the learned counsel for the parties and perused the record carefully.

In order to curb the menace of illicit Narcotics, a Standing order Ex. PB, dated 10.11.2005 was passed by the DGP, Punjab and in pursuance thereof, a Special Narcotic Cell at Amritsar was created. The cell was primarily created to detect Narcotic Terrorism in the State. On 14.06.2007, a secret information was received by the SNC at Amritsar that the accused persons are indulging in the trade of Heroin on a large scale and are sitting in the parking slot of Wonderland Amusement Park, Jalandhar in order to strike a big Heroin deal. This information was then forwarded by SI Harvinder Pal Singh of the SNC to Sh. Tulsi Ram, SSP, SNC, Amritsar upon whose direction, the said SI alongwith other officials raided the parking slot of Wonderland Amusement Park and found a TATA Safari bearing registration No. PB-10-BL6957 (Temp). The accused persons were sitting in the said vehicle. They tried to escape, but they were overpowered by the raiding party. The search was conducted in the presence of DSP Rajpal Singh of SNC Amritsar and contrabands were recovered from the possession of the accused as well as from the vehicle.

Subsequently on dated 20.06.2007, Constable Jagwinder Singh delivered the parcels to the FSL. In this regard, it is the submission of the counsel for appellants that the delay in delivering the parcels to the FSL created an inkling of tampering. However this submission of the learned counsel does not find merit with the Court in view of State of Orissa Vs. Kanduri Sahoo, , wherein as much as 12 kgs cannabis (ganja) was recovered from the accused. The sample was sent for chemical examination after 4 days. The evidence showed that the contraband articles were kept in proper and safe custody. The Apex Court held that "there was no ground to quash the prosecution on account of delay when articles were in proper and safe custody." In the present case, as per the FSL report, Ex. PS, the seals on the parcels were found intact and tallied with specimen seal impressions. Hence, the possibility of tampering is excluded since the articles were in proper and safe custody. Moreover in view of Piara Singh Vs. State of Punjab, , contrary to the submissions of the learned counsel for the appellants; there is no mandate to hand over the seal to an independent witness.

In regards to the next submission of the learned counsel for appellants that no question was put to the accused persons in regards to the conscious possession reference must be made to the case Madan Lal and Another Vs. State of Himachal Pradesh, , wherein the Apex Court held that "once possession is established the person who claims that it was not conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from position of illicit articles." In the instant case, right from framing of the charge till conclusion of the prosecution evidence, the accused/appellants were very much aware of the fact that the charge against them was that they were found in possession of heroin and in support of such charge, the evidence has been adduced in their presence and they have effectively cross-examined the prosecution witnesses through their counsel. So, it cannot be presumed under the circumstances of the case that during trial, they remained oblivious of their conscious possession.

Similarly the submission that the recovery falls within the category of small quantity cannot be accepted on merits. The recovery of 1000 grams of heroin was effected from the appellants, which falls in the category of "commercial quantity".

Moreover the submission of the learned counsel for appellants that, there is no explanation as to how the party posted in SNC, Amritsar effected the recovery in Jalandhar, cannot be accepted since during trial the statement of PW 6 Inspector Harvinderpal Singh, Special Narcotic Cell was recorded. He categorically stated that a secret information of Jagtar Singh and his brother Pritam Singh with regard to smuggling of heroin and fake currency was received. In pursuance to the information received, the appellants were apprehended at Wonderland Amusement Park at Jalandhar, sitting in a vehicle i.e. TATA Safari bearing registration No. PB10-BL-6957 (Temp). Rashpal Singh resident of Devidasspur was joined by the police party as a witness. DSP Raj Pal Singh, Special Narcotics Cell, Punjab, Amritsar was also called at the spot. The search was conducted according to the procedure laid down under the Narcotic Drugs and Psychotropic Substances Act. Heroin weighing 500 grams was recovered from the person of Jagtar Singh, out of which, two samples, five grams each, were prepared and the remaining heroin was sealed in a separate parcel and all the three parcels taken into possession vide recovery memo Ex. PE signed by SI Balbir Singh. From the possession of Pritam Singh accused, nine live cartridges of 315 bore having mark KF and WWB recovered vide Ex. PG. A revolver of .32 bore was also taken into possession, which was snatched from Pritam Singh accused. Another 500 grams heroin was recovered under the driver''s seat of TATA Safari PB-10BL-6957 (temp.), out of which, two samples of 5 grams each were drawn. All the parcels of heroin were taken into possession vide separate recovery memo Ex. PJ attested by the witnesses. From personal search of accused Pritam Singh Rs. 1100/- and one mobile phone was recovered which were taken into possession vide Memo Ex. PK signed by accused Pritam Singh. The vehicle was taken into police possession. Grounds of arrest and information memo of accused Jagtar Singh Ex. PN signed by the accused were prepared by SI Balbir Singh. Similarly, Ex. PM/1 of accused Pritam Singh was prepared and signed by him. Site plan Ex. PO was prepared. Thereafter, ruqa Ex. PP was sent through CII Sukhwinder Singh, on the basis of which, the FIR Ex. PP/1 was registered. This witness was examined at length. He has categorically stated that the secret information was received at 3.45 p.m. The information received by him was shared with SSP Shri Tulsi Ram, though, it was not recorded. Both the accused were inside the vehicle. In the same manner, PW 7 Inspector Balbir Singh also corroborated the statement of PW 6 Inspector Harvinderpal Singh. PW 8, DSP Rajpal Singh has explained in detailed, the manner in which, the search was conducted under his supervision. He also stated that SSP Narcotic Cell, Amritsar was informed about the information. Since the facts supporting the prosecution case are sufficiently corroborated the court finds no merit in this submission.

The learned counsel for the appellants further contends that appellant Pritam Singh when examined under Section 313 Cr.P.C., stated that he alongwith his brother Jagtar Singh was picked up by the police officials from the Dera situated in the fields. The licenced revolver and vehicle i.e. Tata Safari were taken into possession on 13.6.2007 and later on they were taken to Jalandhar. They were not arrested from Wonderland Amusement Park at Jalandhar on 14.7.2007. No recovery was effected from them. DW 1 Paramjit Singh has stated that on 14.6.2007, the police party inquired from him about the residence of Jagtar Singh. While the police party came back, the appellants were sitting on the rear seats of the Tata Safari. He came to know about the registration of the instant case through a newspaper. He categorically stated that he did not make any application to the higher officials. DW 2 Sohan Singh deposed that no resolution was passed by the Panchayat to the effect that the appellants were known drug smugglers. DW 3 Sarpanch Raval Singh also stated that at the time of search of the house of the accused, no incriminating recovery was effected and that the appellants were taken by the police from their house. However, this witness had not filed any complaint to the police. DW 5 Devinder Pal Singh deposed with regard to the ownership of the registration of rifle .315 bore and revolver .32 bore in the name of the appellant Pritam Singh.

Hence, with regard to the aforementioned, there is nothing on record to show that any member of the police parry is previously known to the appellants. Subsequently, the grounds of mala fide and false implication do not find any corroboration. Similarly from the perusal of the evidence, nothing emerges to suggest that the recovery was effected in violation of the requirements of the NDPS Act.

In regard to the non-examination of the independent witness Rashpal Singh, it was noticed by the learned Judge, Special Court vide order dated 18.9.2008 that he was given up as having been won over by the appellants. As there is no mala fide and since the recovery is of commercial quantity, the case of the prosecution cannot be disbelieved simply on the ground that the no independent witness has been joined in the case. It is common knowledge that many people do not come forward to join as independent witnesses, as they feel that they will be required to go the Court and ultimately, they may be harassed. However, in the instant case, the police joined independent witness, who was given up as having been won over by the accused. The Hon''ble Apex Court in the case Appabhai and Another Vs. State of Gujarat, wherein it was observed that the prosecution story cannot be thrown out on the ground that an independent witness had not been examined by it.

Moreover Aher Raja Khima Vs. The State of Saurashtra, , it has been held that "the presumption that a person acts honestly applies as much in favour of a public officer as of other persons, and it is not a judicial approach to distrust and suspect him, without good grounds therefore. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration." In view of these observations, the contention raised on behalf of the appellants pales into insignificance, as no infirmity surged to the surface during cross-examination of the prosecution witnesses. Further State of Punjab Vs. Balbir Singh, , it has been ruled by the Hon''ble Supreme Court that "there is no bar in recording the conviction by relying upon the statements of police officers." It has been observed in paragraph No. 8 of the judgment that "It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official, but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." In re: Roop Singh v. State of Punjab, 1996 (1) RCR 146, a Division Bench of this Court has held as under:-

A Panch witness may turn hostile and not support the case of the prosecution or may be hesitant in appearing in the Court and depose against an accused for various reasons from fear to bribe. He is an average and ordinary human being and quite exposed and vulnerable to the human feelings of yielding, browbeating, threats, inducements, etc. To figure as a Panch-witness at the stage of police investigation, is one thing, and thereafter to give evidence before the Court is entirely a different thing. In fact, a Panch witness generally think twice before entering into a witness-box and if at all he enters the same, one would not be surprised if he does not support the prosecution because of variety of the reasons mentioned above. Therefore, the fact that the prosecution has given up the independent public person Nirbhai Singh having been won over by the accused persons, is fully justified in the present day situation prevailing in the Society and no adverse inference against the prosecution can be drawn in this case. By now, it is beyond cavil of doubt that the statements of police officials are to be weighed in the same scales as of other witnesses. Of course, the statements of the police officials are to be scrutinised with due care and caution when the same do not find corroboration from any independent source, but herein, a careful delving into their statements would reveal that there is no material infirmity.

In view of the above, this Court finds no infirmity or illegality in the judgment/order delivered by the learned trial Court. As such, this appeal is dismissed.