Sumit Tomar vs The State of Punjab

K.C. Puri, J.—Sumit Tomar-appellant has directed the present appeal against the judgment and order dated 20.8.2009 passed by learned Judge, Special Court, Patiala vide which accused/appellant has been convicted u/s 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short-the Act) and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year. The prosecution story when put in brief is that on 27.6.2004 ASI Gurdeep Singh was leading the police party in connection with special naka bandi and was present at bus stand Basantpura, when Kaur Singh PW met them. In the meantime at about 5.00 p.m. from the side of Rajpura Indica Car bearing registration No. DL-7CC-0654 was seen coming which was signaled to stop but driver tried to flee it away and then investigating officer placed the Barricade and car was made to stop. On enquiry driver told his name Sumit Tomar and his companion told his name Vikas Kumar. On suspicion car was checked and two plastic bags were found. Then the investigating officer told the accused that he suspected some contraband in the bags and further told them that search of bags is to be conducted and they had a right to get the search conducted in the presence of Gazetted Officer or Magistrate. Both the accused reposed faith in the investigating officer and on search of bags poppy husk was found. Contents of both the bags were mixed with each other with the help-of tarpaulin and thereafter two samples of 250 grams each were separated and residue on weighment came to be 69 Kg 500 grams. Sample parcel and residue parcel were prepared and sealed with seal impression GS. Specimen seal was prepared. Seal after use was handed over to Kaur Singh. Case property was taken into possession. Site plan of the place of recovery was prepared. Statements of the witnesses were recorded and the accused were arrested. After completion of necessary investigation, challan against the accused was presented in the Court for trial.

On appearance of the accused, complete copies of challan papers were supplied to the accused. Charge u/s 15 and 25 of the Act was framed against the accused. The accused pleaded not guilty and claimed trial.

In order to prove its case, prosecution examined HC Lakhwinder Singh (PW-1), Devinder Kumar (PW-2), ASI Gurdeep Singh (PW-3), HC Jarnail Singh (PW-4), Madan Lal (PW-5), HC Mohan Singh (PW-6) and DSP Manjit Singh (PW-7).

After closure of the prosecution evidence, statement of the accused u/s 313 Cr.P.C., was recorded. The accused denied the incriminating evidence and claimed to be innocent and had been falsely implicated in the case. The accused examined Mahipal Singh (DW-1) and also tendered certain documents into evidence. Vikas Kumar co-accused of the appellant has died during the trial.

The learned Judge, Special Court, after hearing the learned counsel for the parties, convicted and sentenced the accused/appellant vide judgment dated 20.08.2009, as aforesaid.

Feeling dissatisfied with the aforesaid judgment and order, the appellant has preferred the present appeal.

I have heard learned counsel for the appellant and learned Assistant Advocate General for the State of Punjab and have also carefully perused the case file.

Learned counsel for the appellant has submitted that Kaur Singh, an independent witness, was allegedly joined but he has not been examined by the prosecution. The story of the prosecution has not been corroborated by any independent witness. Kaur Singh was a stock witness. So, in these circumstances, the prosecution story is doubtful. To support this contention, learned counsel for the appellant has relied upon authority Gurdip Singh Vs. The State of Punjab,

I have carefully considered the said submission and have gone through the contents of the above said authority.

The argument advanced by the learned counsel for the appellant does not carry any weight. In authority Gurdip Singh''s case (supra), the accused has produced convincing evidence on the file that he has enmity with ASI Sukhwinder Singh PW-2. In that case, wife of accused was a prosecution witness in a corruption case against the said ASI. In the present case, there is no enmity on the part of any of the prosecution witnesses. Even no suggestion has been put to any of the prosecution witnesses for falsely implicating the accused at the instance of the police. Kaur Singh was alleged to be an witness in two other cases but that does not make the status of Kaur Singh to be a stock witness of the police. In these circumstances, non-examination of Kaur Singh does not fatal for the prosecution.

Learned counsel for the appellant has further submitted that there are shops near the place of recovery. The car does not belong to the appellant. The testimony of the owner Devinder Kumar (PW-2) does not inspire confidence. So, the prosecution story is doubtful.

I have carefully considered the said submission but do not find any force in that submission.

The owner of the car Devinder Kumar has categorically stated that he has given the car to the appellant. The testimony of Devinder Kumar lends corroboration to the story of the prosecution. Mere fact that there were shops near the place of recovery does not make it suspicious that independent witness Kaur Singh was joined. So, it cannot be said that non-joining of the shop-keepers is fatal for the prosecution.

Learned counsel for the appellant has further submitted that appellant does not know the Gurmukhi script. His signatures on the memo, which are in Gurmukhi script, prove the fact that prosecution story is doubtful.

I have carefully considered the said submission but do not find any force in that submission.

No doubt the appellant has signed the consent memo in Hindi language but he has not raised any objection at the earlier stage that consent memos are in Gurmukhi script. So, no benefit can be drawn by the accused.

Learned counsel for the appellant has further submitted that seal of the Station House Officer was broken. The seal remained with the police officials after use and as such there is a possibility that the same might have been misused.

I have carefully considered the said submission but do not find any force in that submission.

The prosecution witnesses have stated that seal on one of the bags were partially broken but the same is readable. Moreover, with the passage of time even if the seal is broken that does not create doubt in the prosecution story. Every act of the police cannot be taken as a suspicious unless the accused is able to prove that police has done something extra to falsely implicate him in the case. Both the recovery witnesses have been cross-examined at length but nothing could be brought on the file to discard their sworn testimony.

Learned counsel for the appellant has further submitted that conscious possession of the accused is not proved.

I have carefully considered the said submission but do not find any force in that submission.

Constitutional Bench of Hon''ble the Supreme Court in authority Madan Lal and Another Vs. State of Himachal Pradesh, held that in view of Sections 35 and 54 of the Act, where the accused is found to be in possession of contraband, the onus shift upon him to disprove that he is not in conscious possession.

Learned counsel for the appellant has further submitted that appellant was a student and has been falsely implicated in this case. To support this contention, he has relied upon document Ex. DC.

I have carefully considered the said submission but do not find any force in that submission.

The document Ex. DD has not been proved in accordance with law. Otherwise also, the recovery is dated 27.6.2004 when, even according to document Ex. DD, he has completed his education.

Learned counsel for the appellant has further submitted that the offer of search was not made before the Gazetted Officer and as such there is non-compliance of Section 50 of the Act. In support of his contention, he has relied upon the authority Man Bahadur Vs. State of H.P., . But, the facts of authority Man Bahadur''s case (supra) are not attracted to the facts of the present case, as it was not a case of personal search and as such no reliance can be placed on the said authority.

The learned counsel for the appellant has further submitted that Central Forensic Science Laboratory form has not been prepared at the spot and as such in view of authority Kaku Singh and others Vs. State of Punjab, the prosecution story is doubtful.

I have carefully considered the said submission but do not find any force in that submission.

In authority Kaku Singh''s case (supra) there were number of other circumstances also on which the accused was acquitted. Moreover, in this case, the investigating officer has not been cross-examined specifically on this point.

Lastly, learned counsel for the appellant has submitted that according to HC Lakhwinder Singh (PW-1), four samples were drawn whereas according to case of the investigating officer and recovery witnesses, only two samples were drawn from the two bags and by mixing them on a tarpaulin.

I have carefully considered the said submission but do not find any force in that submission.

No doubt, in the cross-examination HC Lakhwinder Singh has stated about drawing of four samples but he has simply proved his affidavit Ex. PA, in which it is specifically mentioned that two samples and two bags of contraband were deposited with him as MHC. So, the said fact cannot be given undue importance.

Learned counsel for the appellant has submitted that 70 kgs of poppy husk alleged to have been recovered from two persons and Vikas accused has stated to have died and as such at the most 35 kgs of poppy husk can be said to be attributed to him.

I have carefully considered the said submission but do not find any force in that submission.

If two persons are found in possession of commercial quantity of contraband in that case the same cannot be bifurcated to the convenience of accused to make it non-commercial. Therefore, the said contention is also meritless.

No other point has been urged before me.

So, in view of the above discussion, no ground for interference in the appeal is made out and finding of trial Court regarding guilt of accused stands affirmed.

Consequently, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance.