Jammu & Kashmir High Court
Reserved On: 09.03.202 vs State Of J&K on 19 March, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
...
CRA no.14/2013
Reserved on: 09.03.2021
Pronounced on: 19.03.2021
Jaspal Singh and another
.........Appellant(s)
Through: Mr R.K.Kotwal, Advocate
Versus
State of J&K
......Respondent(s)
Through: Mr Aseem Sawhney, AAG
CORAM:
HON'BLE MR JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
Koul J:
1. By virtue of this appeal the appellants herein assail their
conviction awarded by learned Sessions Judge, Kathua (for short
"Trial Court") for offence committed under Section 8 read with
Section 15(C) of the Narcotics Drugs & Psychotropic Substance
Act (hereinafter called as "NDPS Act") for recovery of 720 Kg of
Bukhi from their possession. The appellants were to undergo
rigorous imprisonment for 20 days and to pay a fine of Rs. One
lac for the commission of offence under section 8 r/w Section
15(C) NDPS Act.
2. The case of the prosecution, as emerges from the challan, reveals
that on 19.08.2010 at 11.00 AM, the appellants, namely, Jaspal
Singh S/o Roshan Singh, being driver and owner of the vehicle,
and the helper, Harpal Singh S/o Roshan Singh, both residents of
Dharam Kot District Mogo, were found in a Truck bearing
No.PB12H-7041. When appellants reported for clearance of
Truck at Export yard Toll Post Nagri Kathua, they stated that the
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truck is empty, but when the truck was physically checked by
Excise Guard on duty, namely, Javed Iqbal, the truck was found
loaded with filled gunny bags. The said Javed Iqbal, Excise
Guard, immediately reported the matter to Dheeraj Kumar, Sub
Inspector, Excise Toll Post, Nagri, Kathua, who in turn reported
the matter to Inspector Excise, Rohit Sharma. Ultimately the
matter was brought to the notice of Shri Pardeep Singh Chib,
Excise and Taxation Officer, Toll Post Nagri. The vehicle was put
to thorough physical examination under the supervision of Shri
Pardeep Singh Chib, ETO, along with Rohit Sharma, Inspector
Excise, and two Excise Guards, namely, Javed Iqbal and Fazal
Hussain. It was found that 20 gunny bags were allegedly
containing Poppy Straw (Bukhi) in the Truck No.PB12H-7041.
Both the convicted persons were detained on the spot. The matter
was reported to the Inspector Excise Sub Range, Kathua, who
came on the spot along with Executive Magistrate, Kathua. The
contraband was seized and weighed in presence of the Executive
Magistrate and it was found to be weighing 720 Kgs. Two
samples weighing 50 gms were taken from each bag and sent to
FSL for chemical analysis. The FSL report reveals the sample
belonging to Poppy plant (pappaver Somniferum) and morphine
was detected from them. It was found in the investigation that the
appellants were transporting, smuggling commercial quantity of
poppy straw illegally. After completion of the investigation,
challan was filed and the charge for the commission of offence
under sections 8/15 NDPS Act was proved against both the
appellants. After full dress trial, both the appellants stand
convicted by the Court of Principal Sessions Judge, Kathua, vide
its judgment dated 14.0.2013. On 15.01.2013, the appellants were
sentenced to undergo rigorous imprisonment for a period of 20
years, with a fine of Rs.1.00 Lakh each for commission of offence
under Section 8 read with Section 15 (C) of NDPS Act. In default
of payment of the fine, the appellants would undergo simple
imprisonment for a further period of one year.
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3. Appellants have preferred the instant appeal against the
judgement dated 14.01.2013 and the sentence order dated
15.01.2013 before this Court. The appellants challenge the
judgement and order on the following grounds:
(a) That appellants are innocent and have not committed any offence;
(b) That the entire evidence collected during investigation by the
investigating officer is in violation of the law governing the
search, seizure of the alleged contraband and arrest of the
appellants.
(c) That while making the search, recovery, seizure and arrest of the
appellants, the provisions of NDPS Act, in particular Section 41,
42, 43 & 50 had been completely violated.
(d) That the mandate of law as envisaged under Section 52 to 67 of
the NDPS Act, was completely misread.
(e) That the trial Court has committed grave error by not appreciating
the fall out of failure of the prosecution to produce the poppy
straw, alleged to have been recovered from the appellants, as
physical evidence of occurrence and failure to produce the same
has made the recovery doubtful.
(f) That no independent witness has been associated during the
search and recovery of the contraband from the appellants which
renders the prosecution case doubtful.
(g) That the investigating officer has forcibly obtained the signature
and confession of appellants about involvement of the Truck in
illegal transportation of poppy straw, which is against Article 23
of the Constitution of India, and, therefore, the prosecution case is
bound to crumble.
(h) That since Inspector, Arun Kumar, Excise Sub Range Kathua, is
complainant as well investigating officer of the case, the
investigation of the case resulting in culmination of the
appellants, stood vitiated.
(i) That there is inordinate and un explained delay in handing over
the seized samples to the FSL; furthermore, the report does not
disclose the actual percentage of the morphine of the narcotic
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drug in the sample. Thus, the samples taken from the recovered
substance does not have a representative character, as such,
creates doubt in the prosecution case.
(j) That because there is no mention of actual content of narcotic
drug in the alleged recovered item, as such, in the absence of
percentage of the quantity of narcotic drug it cannot be
determined whether the quantity was small or commercial one.
(k) That the procedure while examining the appellants in terms of S.
342 of the Cr.P.C. had not been applied properly.
4. During the course of arguments, the learned counsel for
appellants has argued that since there is no physical evidence in
the shape of alleged recovered contraband, as the same had not
been shown to the witnesses in the Court for identification, as
such, it renders the whole prosecution case doubtful. He further
argues that no independent witness has been associated with
investigation of the case, as such, the procedure and guidelines as
regards search and seizure had been done away by investigating
agency. He also argues that it is not clear as to where the alleged
samples had been kept for a period of ten days before handing
over the same to FSL for chemical analysis. He has also stated
that Incharge of the Malkhana has not been kept as a witness and
the person who had alleged to have taken the samples from Police
Station to FSL expert for chemical analysis has also not been
listed as a witness in the instant case.
5. Learned counsel for appellant, in support of his submissions, has
relied upon the following judgments:
1. Criminal Appeal No:2104 of 2012 titled Gorakh Nath Prasad vs
State of Bihar;
2. Cr. Appeal No: 39/2013 Ghulam Mohd Bhat and anr. V State of
J&K;
3. 2004 SCC (Cri) 2028 titled Jatindra and Anr vs State of M.P.
6. From the comparative reading of the evidence in the form of
statements of the witnesses and seizure memos with the challan, it
is said by the Trial Court that on 19.08.2010 at 11.00 AM, when
alleged Truck bearing No.PB12H-7041, reached the export yard
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for clearance at Toll Post Nagri Kathua, the appellant Jaspal
Singh stated to the Excise Guard on duty that the truck was
empty, but on physical checking of the truck by the said Excise
Guard, Javed Iqbal, the truck was found loaded with filled gunny
bags. The Excise Guard reported the matter to the Sub Inspector,
Dheeraj Kumar, who also checked the vehicle on the information
given by the Excise Guard and himself reported the matter to
Excise Inspector Rohit Sharma who ultimately brought the matter
to the knowledge of Pardeep Singh Chib, Incharge Toll Post
Nagri. It was found that the truck was loaded with 20 gunny bags
of poppy straw (Bukhi). The vehicle with alleged poppy straw
along with the appellants were detained by Toll Post authorities at
Nagri Kathua. The ETO, Pardeep Singh Chib, called the
complainant Inspector, Excise Sub Range, Kathua, and narrated
the whole incident with a request to take further necessary action.
The complainant-Inspector wrote a letter bearing No.380/ ERK
dated 09.08.2021 to District Magistrate Kathua for deputing an
Executive Magistrate in order to carry further proceedings on the
spot. In view of that letter, Krishan Kumar Sharma, Naib
Tehsildar was deputed and the complainant Inspector and Krishan
Kumar Sharma along with Excise staff proceeded towards the
Toll Post Nagri and reported the ETO Toll Post Nagri at 2.10 PM.
The alleged contraband, i.e., gunny bags carrying the alleged
poppy straw was seized and put to weight at Weigh Bridge No:8
of Toll Post Nagri under the supervision of Pardeep Singh Chib,
ETO Toll Post Nagri. The bags were 20 in number and total
weight was found to be 720 Kgs. On 19.08.2010, ETO Toll Post
Nagri handed over the alleged complainant`s letter No: 01-
04/TPN dated 19.08.2010 signed by him and other seized
documents. The seizure memo, the inventory and the other
documents as revealed by the challan, by the statements of the
prosecution witnesses, all these documents were prepared on the
spot and besides this, statements of the witnesses were also
recorded on the spot. Furthermore, statement of the witnesses,
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reveals that two samples of alleged poppy straw (Bukhi) weighing
50 gms each were taken from each gunny bag and one set of
samples was marked as B-1 to B-20 and were packed and sealed
and the other set of samples were marked as C1 to C20 and they
were also sealed. The rest of the alleged poppy straw in the 20
bags were marked as A-1 to A-20 and they were also sealed.
The bags and the samples were sealed with brass seal in presence
of Executive Magistrate, Ist Class, Kathua. Thereafter the packets
and the samples bearing Mark A-1 to A-20, B-1 to B-20 and C-1
to C-20 respectively were again resealed on the spot by Executive
Magistrate Kathua with his office seal and regarding this, the
Executive Magistrate Ist Class also issued a certificate addressed
to Director FSL, Jammu, authorizing him to break the seal of
samples for chemical analysis. The samples marked as B-1 to B-
20 of alleged poppy straw were sent to Director, FSL, Jammu, for
chemical analysis and the samples were deposited before Director
FSL Jammu, under receipt No:1418/ FSl/Legal/Jammu dated
01.09.2010. The report of FSL Jammu vide No.563/CAT/ FSL
dated 03.11.2010 and covering letter No; FSL/Jammu/1046/10
dated 03.11.2010, attached to the complaint clearly reflects that
the Exhibits contain poppy straw (pappaver Somniferum) and
Morphine was detected from the exhibit/Sample taken out from
the seized poppy straw.
7. From the statements and the exhibits, seizures and the FSL report,
it is clear that the appellants have committed the offence and the
Trial Court has convicted them after following all the parameters
required under law.
8. Learned counsel for appellants by virtue of raising certain points
argued that the prosecution story is doubtful.
9. In order to appreciate the points raised by learned counsel for
appellants regarding the credibility of the prosecution story, the
evidence collected during the investigation and appreciated by the
Trial Courts needs to be re-appreciated in order to appreciate the
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points raised by learned counsel that appellants are innocent and
that the prosecution story is doubtful.
10.PW Pardeep Singh Chib, examined by the prosecution on
17.3.2011, has stated, in his statement that on 19.8.2010, he was
posted as ETO Toll Post Nagri. On the said day a truck bearing
No.PB12H-7041 arrived at the export yard. Jaspal Singh was
driving the truck and Harpal Singh was sitting in it. The
appellants told the guard, namely, Javed, who was on duty in the
export yard that the truck is empty. He checked the truck. He
found some bags in it. He reported the matter to Sub Inspector
Dheeraj Kumar, who was posted there. He too saw those bags.
Dheeraj Kumar reported the matter to Rohit Sharma and Rohit
Sharma reported the matter to him. He asked the appellants to
produce the documents pertaining to the vehicle before him.
Truck was loaded with Bukhi " Poppy straw". The Bukhi was
seized at the spot. It was weighed in presence of a Magistrate. It
weighed 720 Kilograms. The bags were twenty in number. He
prepared a certificate regarding the weighment of Bukhi. It is
attached to the file. It bears his seal and signature. In his cross
examination he has stated that Rohit Sharma narrated the
occurrence to him. Rohit Sharma proceeded to the place of
occurrence with him. Dheeraj and Javed were near the truck. The
truck was not loaded with any other material. The bags
containing Bukhi had been covered by the accused. They weighed
in his presence on the weigh bridge. He did not search the
accused before their arrest. The certificate was prepared by Rohit
Sharma in his office. His statement was recorded by the I.O on
the day of occurrence itself. He knows the accused by their name
but he does not know their parentage.
11.PW Rohit Sharma, examined by prosecution on 18.3.2011, has
stated, in his statement, that on 19.8.2010 he was posted as Excise
Inspector Toll Post Nagri. On the said day a truck bearing
No:PB12H-7041 arrived at the export yard. Javed Iqbal, the
guard, was on duty there. The driver of the truck, i.e., the accused,
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present in the court told the guard that the truck was empty.
Before the truck reached the weigh bridge the guard saw it was
loaded with some bags. Dheeraj Kumar, Sub Inspector, also saw
the truck loaded with some bags. He reported the matter to ETO.
ETO arrived at the spot. ETO informed the matter to the Inspector
Range, Kathua on telephone at about 12 noon. Inspector Range,
Kathua along with others and the Magistrate reached there at
about 14:20 hours. ETO asked him to get the bags weighed in the
presence of the Magistrate. The bags were unloaded from the
truck by the guards and the labourers who had accompanied the
Inspector. These were twenty in number. They weighed 720
kilograms. ETO issued a certificate on that count. The accused
and the truck were entrusted to the Inspector Sub Range, Kathua,
for appropriate inquiry. Two samples weighing 50 gms each
were taken from each bag for chemical analysis. The samples
were wrapped with a white cloth. It was sealed. The bags
containing Bhuki were also wrapped with white cloth. They were
marked as A-1 to A-20 and the samples were marked as B-1 to B-
20 and C1 to C20. The Inspector arrested the accused at the spot.
The seizure memo vide which the Bukhi was seized contains his
signatures and it is true and correct. It is marked as EXT-P2/2. He
has identified the seized Bukhi in the court. In his cross
examination he has stated that at the time of occurrence he was
near the weigh bridge. It is incorrect that the accused Jaspal had a
scuffle with Javed Iqbal Guard as a consequence of which a false
case was prepared against the accused. The bags were weighed
first and then the detection letter was prepared. All the
proceedings were initiated after the Excise Range Inspector
arrived at the spot. The accused had not stated that the bags
contained fodder. The Magistrate and the Inspector arrived there
at the same time. It is incorrect that he was not present at the time
when the bags were unloaded from the truck. ETO issued the
weighment certificate after the Bukhi was weighed. He had not
issued any form at the weigh bridge. The samples were taken by
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the Inspector Range, Kathua namely Arun Kumar. He had the
weighing machine with him. The samples were sealed. The bags
containing Bukhi were also sealed. He had stated before the I.O
that the Bukhi weighed 720 kilograms but the statement does not
bear so.
12.PW Javed Iqbal, examined by the prosecution on 17.8.2011, has
stated, in his statement, that on 19.8.2010 he was posted as Excise
Guard at Nagri Toll Post. A truck bearing No:PB12H-7041 came
from Jammu. It was on way to Punjab. At about 11:15 A.M the
truck was stopped. The driver said that the truck is empty. He
checked the vehicle. It was loaded with some bags. He told the
Inchage Sub Inspector Dheeraj Kumar that the truck is loaded
with bags. Sub Inspector Dheeraj Kumar reported the matter to
Inspector Rohit Sharma. He too checked the vehicle. He reported
the matter to ETO. He came to the spot. The driver and the
conductor were asked to stop the vehicle. They narrated their
names as Jaspal Singh and Harpal Singh. The ETO informed the
matter to the Range Inspector on telephone. The Range Inspector
along with some personnel and the Magistrate arrived at the spot.
The bags were unloaded from the truck. The bags were 20 in
number. They were weighed before a Magistrate, the Range
Inspector and the ETO. These weighed seven quintals. Thereafter
the Range Inspector took two samples weighing 50 grams from
each bag. These were enveloped. The envelopes were wrapped in
a white cloth. These were sealed by the Inspector. The Magistrate
also marked these samples. The seized bags were also wrapped in
white cloth. A memo of seizure was accordingly prepared. It
contains his signature and is true and correct. It is marked EXT-
P2/2. In his cross examination he has stated that his duty, at the
Toll Post, Nagri had started on 17th at 12 noon. He and the two
labourers namely, Kamal and Pala unloaded the bags from the
truck. The bags were weighed on the arrival of Range Inspector
Arun Kumar at the spot. The ETO made an inquiry from the
accused in his presence. They stated that the truck was loaded
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with Bukhi. He did not have any personal knowledge about the
dumping of Bukhi in the truck. The samples were taken by the
Range Inspector Arun Kumar. These were taken at the electronic
export yard on the weighing machine itself. The persons who had
accompanied the Range Inspector also assisted him in the process.
Samples were kept in small envelopes. These were marked by
them and by the Magistrate. They marked with "OM" and the
Magistrate marked with "ET". They were marked after they were
sealed. The Inspector sealed them. After opening them ( bags) it
was found that the bags contained Bukhi. The bags were unloaded
from the truck in presence of the accused. The marks "OM" and
"ET" were affixed simultaneously. No civilian was associated
with the operation. The accused were not searched. It is incorrect
that nothing was recovered from the accused and the entire
investigation was carried in the office.
13.PW Dheeraj Kumar, examined by the prosecution on 13.9.2011,
has stated in his statement that in the month of August he was
posted as Sub Inspector Excise Toll Post, Nagri. On 19.08.2010,
at about 11 to 11.15 a truck bearing No: PB12H-7041 came from
Jammu. It was driven by the accused. The truck was on way to
Punjab. On reaching the Toll Post, Nagri, the accused stated that
the truck is empty. However, Javed Iqbal guard checked the
vehicle and he found it loaded with some plastic bags. He too
checked it. He also found it loaded with some plastic bags. He
reported the matter to the concerned Inspector, namely Rohit
Sharma. He informed the matter to the concerned Officer of the
Toll Post, namely Pardeep Singh Chib, on telephone. He inquired
from the accused about the contents of the bags. They informed
the Range Officer, namely Arun Verma, who came on spot. He
informed the Tehsildar Executive Magistrate and they reached the
spot within an hour or an hour and a half. The guard and the
labourers unloaded the Bhuki from the truck. Bukhi was packed
in plastic bags. These weighed 720 kilograms. Two samples
weighing 50 grams each were taken from each packet. These
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were taken by the Range Officer. The Bukhi was seized vide a
memo of seizure marked as EXT-P2/2. It bears his signature and
is true and correct. The accused were arrested. The accused told
him that the truck is empty. The rear lid of the truck was closed. It
was about one and half feet in height. The bags were unloaded
from the truck on the arrival of the ETO. He reached there within
4 to 5 minutes. When the bags were opened, the ETO and the
Inspector identified them to be filled with the Bukhi. When the
accused admitted that the bags contained Bukhi, a memo was
prepared and it was signed by him. He did not see that memo on
the file. The Bukhi was weighed by Arun Kumar, Inspector,
Kathua Range, on the arrival of the Tehsildar. They had checked
only one bag prior to that. When the Tehsildar and the Inspector
arrived, at the spot, the accused were in the cabin. It was only on
their arrival that the samples were taken from the Bukhi. The
samples were wrapped in a cloth by the Inspector. One more
person was also with him. It took him about one hour to complete
the entire formality. It was completed by 5 to 5.30 P.M. The
Tehsildar reached there at about 2.30 to 3 p.m. The accused were
not known to him prior to the occurrence. No civilian was
associated with the search. His statement was recorded on the day
of occurrence itself. He had stated in his statement that the
samples were taken in his presence but it does not contain so.
14.PW Fazal Hussain, examined by the prosecution on 22.2.2012,
has stated in his statement that on 19.8.2010, he was posted at
Nagri Toll Post. A truck bearing No: PB12H-7041 came from
Jammu. Javed checked the vehicle. It was loaded with bags. The
bags were 20 in number. At that moment ETO arrived there. He
asked the accused what did the bags contain. The accused i.e the
driver told him that it is loaded with Bukhi. The accused were
kept in a glass room. They stood near the weigh bridge. The
Bukhi was unloaded from the truck. It weighed 720 kilograms.
Thereafter the accused were arrested by the Excise Range, Sub
Inspector, Kathua. The memo of arrest marked EXPT2/1, bears
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his signature. It is true and correct. In his cross examination he
has stated that Javed inspected the truck. He found it loaded with
bags. The rear lid of the truck was closed. Accused persons had
admitted that the bags contain Bukhi. The Inspector Kathua
Range reached the spot at 14 to 14:15 hours. All the documents
were prepared on his arrival. It is incorrect that he (the witness)
was not present at the place and he has made a false statement.
15.PW Arun Kumar, examined by the prosecution on 09.04.2012,
has stated, in his statement, that on 19.8.2010 he was posted as
Excise Inspector Sub Range, Kathua. The accused are known to
him. On 19.08.2010 he was in his office. He received a telephone
call from ETO, Pardeep Singh Chib Toll Post Nagri. He told him
that a truck bearing No: PB12H-7041 had reached at the Toll Post
for assessment. The driver and the conductor stated that the truck
did not carry anything but they found it to be loaded with 20
bags, allegedly containing Poppy straw "Bukhi". He also told him
that the driver and the conductor of the truck have been detained
on spot along with the contraband. He addressed a letter to the
District Magistrate, Kathua, with the request that an Executive
Magistrate be deputed at the spot. The letter bears his signature
and is true and correct. It is marked as EXTP-8. The District
Magistrate deputed Naib Tehsildar, namely Krishan Kumar with
him. He along with his staff and the Magistrate reached Toll
Post, Nagri at about 14 to 14;15 hours. They found a truck and the
accused there. Thereafter the Executive Magistrate and the ETO
unloaded the bags from the truck. They were weighed on the
weighing machine. The bags weighed 720 kilograms. The
weighing certificate was issued by the ETO. It was signed by the
Executive Magistrate. It is marked as EXTP-1 and is correct. The
weighment slip and the detection letter along with documents of
the vehicle were entrusted to him. He recorded the statements of
the ETO and the other employees present on the spot. The
accused were arrested. The memo of seizure vide which the
Bukhi was seized contains his signature and is true and correct. It
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is marked as EXTP-8/2. He took two samples weighing 50 grams
each from each bag. These were sealed in presence of the
Executive Magistrate. These were resealed by the Executive
Magistrate. Forty samples were prepared and on an authority
letter of the Executive Magistrate, they were sent to FSL for
chemical analysis. The seal was entrusted to sub Inspector, Sub
Range, Kathua. He prepared the site plan. The memo pertaining
to the search of the truck and the other documents were prepared
by him. During the investigation it was found that the Bukhi
recovered, from the accused, was in their illegal possession. He
entered into correspondence with the authorities of FSL for
procuring the report. On obtaining the report it was placed on the
file. The complaint is in his hand writing. The seized bags are
lying in his custody and he identifies them. The seized samples
that they received from the FSL are the same that have been
shown to him in the court. In his cross examination he has stated
that he himself went to the District Magistrate along with the
letter. He received the telephone call of the ETO, Toll Post,
Nagri, at about 11.30 P.M. he told him that the bags allegedly
contained Poppy straw. He accompanied the Executive Magistrate
to the spot. The bags had been counted before his arrival. They
had not been opened. However, some bags had been checked.
When he reached the spot the accused were in a cabin situated
just near the truck. The accused did not name the place from
where they had loaded these bags containing Poppy Straw. The
bags were weighed after taking the samples. Razi Ahmed to
whom the seal, with which the bags were sealed, was entrusted,
has not been cited as a witness in the case. The seal cannot be
produced in the court. The bags were weighed on his arrival at the
Toll Post. The detection letter was issued thereafter by Rohit
Sharma Sub Inspector, Toll Post, Nagri. It was signed by the
ETO. The certificate of resealing was prepared by the Executive
Magistrate from a computer at the Excise Toll Post Nagri. It was
resealed on 19.8.2010 and was sent for chemical analysis on
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23.8.2010. It was raining heavily on the 20th and they were busy
in some other work. That is why the samples were sent for
chemical analysis on 23.8.2010. The samples were received by
the authorities of FSL on 1.9.2010. No cause for the delay in
sending the samples to the authorities of FSL is stated in the
complaint. The person who carried the samples to the FSL, has
not been cited as a witness in the case. The documents, whatever
that were prepared in the case, are not in his hand writing. They
bear his signature and were prepared under his dictation by Sub
Inspector Raiz Ahmed. He is not a witness in the case. He is the
complainant as well as the Investigating Officer in the case. The
memo of confession could not be prepared because the accused
refused to sign it. The statement of Dheeraj has been recorded by
him. It is incorrect that a false case has been prepared against the
accused. The seized bags were made of jute.
16.PW Rohit Koul, examined by the prosecution on 8.3.2012, has
stated in his statement that on 1.9.2010, he was posted at FSL,
Jammu. A case was forwarded, for chemical analysis report, in
the matter of State through Excise Department vs. Yash Paul
Singh and Harpal Singh. The description of the packets is given
in the report No:563/C & T FSL dated 3.11.2010. These were
marked as exhibit Nos. B1 to B20 which were further marked as
K-992/10 to K1011/10 respectively. All these packets weighed 50
gms each and contained some yellow coloured powdered
material. The exhibits were subjected to various chemical and
chromatographic examination and it revealed as under:
1. Exhibit marked K-992/10 to K-1011/10 belongs to
Poppy plant(Pappaber Somneferum).
2. Morphine was detected in the exhibitNo:992/10 to K-
1011/10.
17.The contents of the report No: 563/C&T/FSL attached to the court
file are true and correct. It bears his seal and signature and is
exhibited as EXT-P7. On cross examination by the defence
counsel, he has deposed that the letter from the Inspector Excise
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Sub Range Kathua bears No: 385/ERK dated 23.8.2010 and the
same was received by their office on1.9.2010. The total number
of seals on each packet were two, one of the Excise Department
and the other one of the Executive Magistrate Ist Class Kathua.
Only one certificate along with the specimen seal of the Executive
Magistrate is on the court file. There is no mention of Excise seal
in the authorization letter of the Ist Class Magistrate. The copy of
which is in the court file. The percentage of Morphine has not
been mentioned by him in his report.
18.PW Krishan Kumar, examined by the prosecution on 20.4.2012,
has stated, in his statement, that on 19.8.2010, he was posted as
Naib Tehsildar Kathua. On the said day, Arun Kumar Inspector,
came to his office. He said that some Bukhi is lying at Toll Post,
Nagri. He accompanied him to the Toll Post, Nagri. Some other
employees were also there. A truck bearing No: PB12H-7041 was
standing there. The accused too were present there. The Bukhi
comprising twenty bags was weighed in his presence. It weighed
720 kilograms. Weighment certificate was issued by the Excise
Inspector in his view and presence. He attested it. He has
identified his seal and signature on the certificate. It is true and
correct. Forty samples of Bukhi weighing 50 gms each were
produced before him by the Excise Inspector for resealing. These
were marked as B-1 to B-20 and C-1 to C-20. He resealed them
and issued a certificate for their chemical analysis. The seal was
affixed on the samples also. In his cross examination he has stated
that when he reached at the spot, the Bukhi was lying in the
Truck. The accused were near the truck. They were not in
custody. Some other officials of the department of Excise were
also there. A number of civilians and 1 to 2 truck were there. At
first the truck was weighed along with the Bukhi. The truck was
again weighed after unloading the Bukhi. When he reached at the
spot the truck was stationed at a distance of 20 feet from the
weighing device. The bags containing Bukhi were made of jute.
The certificate makes the mention of twenty gunny bags. It does
CRAA no.14/2013
not mention jute or plastic bags. The weight of the Bukhi was
derived after deducting the weight of the truck loaded by them
from the weight of the truck after unloading them. It is incorrect
that the certificate regarding the weight of the Bukhi was prepared
before his arrival. The bags were unloaded from the truck by the
employees. Thereafter, samples were taken out of them. On the
same day the packets were resealed. The entire process was
completed within 3 to 4 hours. The certificate was prepare by
him at the spot on the computer. He himself enquired from the
accused about their names. The employees of the Excise
department also told him their names. The bags B1 to B20 were
marked by the department of Excise. After resealing them he did
not affix any mark on them, however, he affixed one seal on each
packet. In the certificate EXTP-6 he has mentioned about the
resealing of the packets and not resealing them. In the certificate
he has authorised the authorities of FSL to open the packets of B1
to B20 for chemical test whereas no such authority had been
given to them in respect of the packets marked as C1 to C20.
19.Learned counsel for appellants has argued that the Trial Court has
committed grave error by not appreciating the fall out of the
failure of the prosecution to produce poppy straw in the court,
alleged to have been recovered from the appellants.
20.In order to address this argument the statements of the
prosecution witnesses, particularly, statements of prosecution
witnesses Javed Iqbal, Fazal Hussain, Dheeraj Kumar, Rohit
Sharma, Arun Kumar and Krishan Kumar stands recorded in the
Court and all of them had stated that 20 gunny bags containing
poppy straw(Bukhi) were found in the Truck and after checking
the weight, the alleged Bukhi was found to be 720 Kgs and out of
which 50 gms of two samples were taken from each gunny bags
containing poppy straw. Thereafter the gunny bags were sealed.
The samples were also sealed with brass seal and again re-sealed
by the Excise Inspector. The packets and samples were marked as
A-1 to A-20 and C-1 to C-20 respectively. PW Rohit Sharma in
CRAA no.14/2013
examination-in-chief stated that he had seen the seized material in
the court and it was the same which was recovered from the
accused persons on the date of occurrence. PW Javed has stated
in his examination in chief that seized material produced in the
court is seen and identified by him and same was recovered from
the accused persons/appellants on the day of occurrence. PW
Dheeraj Kumar in his examination in chief stated that the material
which was recovered, is seen by him today in the court and is the
same which was recovered on the day of occurrence. PW Arun
Kumar has identified the samples, one sent to FSL (residue after
test) and the other sample with the police, in the court.
21.Apart from that statements under section 342 Cr.P.C. of both the
appellants were also recorded and questions were put to the
appellants that during search from the vehicle the gunny bags
were weighed in presence of Executive Magistrate and the total
weight was found to be 720 Kgs. The seizure memo, Ext P2/2,
was prepared on the spot have also been proved and exhibited in
the Court and furthermore, no cogent reply had been given by the
appellants about recovery of the alleged poppy straw weighing
about 720 Kgs from them. It is also seen that in cross-examination
none of the prosecution witnesses were asked whether the
recovered item/ material was shown to them. In fact, the defence
Counsel, it seems had deliberately avoided to put questions
regarding the showing of the seized material. It is important to
note that the arguments of the learned counsel for the appellants
stands belied by the statements of PWs Javed, Dheeraj, Rohit and
Arun. Furthermore, that showing of the alleged contraband in the
Court to the prosecution witnesses is not mandatory, particularly,
in the cases of NDPS Act, because ultimately the fact of recovery
of alleged contraband can also be established and proved by way
of proving the documents of seizure.
22.Section 66 of the NDPS Act raises presumption with regard to the
documents in certain cases:
CRAA no.14/2013
"66. Presumption as to documents in certain cases;-Where any
document---Is produced or furnished by any person or has been
seized from the custody or control of any person, in either case,
under this Act or under any other law; or
(i) Has been received from any place outside India(duly
authenticated by the such authority or person and in such manner
as may be prescribed by the Central Government) in the course of
investigation of any offence under this Act alleged to have been
committed by a person;
and such document is tendered in any prosecution under this Act in
evidence against him, or against him and any other person who is
tried jointly with him, the court shall----
(a) Presume, unless the contrary is proved, that the signature and
every other part of such document which purports to be in the
handwriting of any particular person or which the court may
reasonably assume to have been signed by; or to be in the
handwriting of, any particular person, is in that person`s
handwriting; and in the case of a document executed or attested
that it was executed or attested by the person by whom it purports
to have been executed or attested;
(b) admit the document in evidence, notwithstanding that it is not
duly stamped, if such document is otherwise admissible in
evidence;
(c) in a case falling under clause (i), also presume, unless the
contrary is proved, the truth of the contents of such document."
23.Perusal of the seizure memo reveals that PW Rohit Sharma, PW
Dheeraj, PW Javed Iqbal had established and proved the
document EXTP2/2, EXTP-2/3, EXTP2/21, which clearly reflects
that the documents of seizure have been proved in the Court.
Even if for the sake of arguments, it is presumed for a while that
alleged contraband was not shown to the witnesses in the court;
was not the defence counsel under obligation to put relevant
questions to the witnesses as to whether the contraband was
shown to them in the Court or not. No such question has been put
to any of the witness as regards showing of contraband in the
Court as alleged to be not produced in the Court by the learned
counsel for the appellants. Since in the instant case the
documentary evidence is proved, whether the Poppy Straw has
been shown to the witnesses in the Court for identification or not,
in the opinion of the Court same does not prove fatal to the
prosecution case, which has been proved by the documentary
evidence i.e the alleged possession of the contraband have been
proved by the witnesses by virtue of documents exhibited in the
CRAA no.14/2013
Court and the statements of PWs Dheeraj, Javed, Arun and Rohit
makes it clear that the seized items have been shown to them in
the court.
24.Coming to another point of the L/C for the appellant that no
independent person has been kept as a witness in order to give
authenticity to the prosecution case. He has further argued that it
was broad day light and the concerned investigating agency
should have kept independent persons as witnesses to the search,
seizure and recovery of the contraband in order to give
authenticity to the prosecution case.
25.At the very threshold, it is to be noticed that merely because
prosecution has not kept any civilian or independent person as a
witness, same would not necessarily lead to the conclusion that
the prosecution case is doubtful and the appellants have been
falsely implicated in this case. The guiding judgment with respect
to this argument raised by the learned counsel for appellants in
the case of Jarnail Singh vs State of Punjab
Manu/SC/0480/2011: (2011)3 SCC 521, relied on by the counsel
for the respondent State, also supports the case of the prosecution.
In the aforesaid judgment, the Supreme Court has held that
merely because prosecution did not examine any independent
witness would not necessarily lead to conclusion that the accused
was falsely implicated. The evidence of official witnesses cannot
be distrusted and disbelieved, merely on account of their official
status.
26.In the case of State, Government of NCT of Delhi v Sunil and
Anr. MANU/SC/0735/2000: (2001)1 SCC 652, it was held as
under:
" It is an archaic notion that actions of the police officer should be
approached with initial distrust. It is time now to start placing at
least initial trust on the actions and the documents made by the
police. At any rate the Courts cannot start with the presumption
that the police records are untrustworthy. As a presumption of law,
the presumption would be the other way round. The official acts of
the police have been regularly performed is the wise principle of
presumption and recognized even by the legislature."
CRAA no.14/2013
27.In the present case, no question has been put to any of the
witness, particularly, Arun Kumar that is why no civilian has been
associated with the search, seizure and recovery of the alleged
contraband on the spot. The said Arun Kumar was the main
architect and he is the only person to whom this question can be
put but no question has been put regarding the listing or calling of
any civilian as witness in the case. Even otherwise also it has
been noticed that people generally resist and refrain themselves to
be kept as witness in criminal cases for the reasons best known to
them. The statements of the police or Excise witnesses cannot be
regarded as doubtful merely they are the official witnesses.
Something more than that needs to be projected by the defence so
as to create doubt in the statement of these witnesses.
28.Another argument raised by the learned counsel for appellants is
that on 19.8.2010 the alleged recovery was made from the truck
of the appellants by the investigating agency and after a gap of 10
days the samples had been sent to FSL and it is not cleared by the
prosecution as to where the samples have been kept.
Furthermore, a query has been raised by the counsel for the
appellants that the person of Riaz Ahmed, to whom the ring for
sealing had been handed over and the person who had taken the
samples to FSL has not been deliberately kept as witness so as to
deprive the appellants to raise and ask the question regarding
tampering of the samples during the lodgement period. He has
further contended that since the person who handed over the
samples to FSL from Malkhana was not kept as a witness thus, an
important link of evidence is missing and the chain is incomplete.
29.As per the prosecution case and the statement of the investigating
officer Arun Kumar, after preparing the seizure memo EXTP-8/2,
two samples weighing 50 grams each were taken from each bag
and the bags were sealed in presence of the Executive Magistrate.
These bags were resealed by the Executive Magistrate; forty
samples were prepared and on authority letter of the Executive
Magistrate they were sent to FSL for chemical analysis. The seal
CRAA no.14/2013
was entrusted to Sub Inspector Sub Range Kathua. He further
stated that the complaint is in his handwriting and the seized bags
are lying in his custody and he identifies them. Furthermore, PW
Krishan Kumar had stated that forty samples of Bukhi weighing
50 grams each were produced before him by the Executive
Magistrate for resealing; these were marked as B1 to B20 and C1
to C20 and resealed them and issued certificate for chemical
analysis. The seals were affixed on the samples. He further stated
in his examination that 20 bags of gunny bag were weighed in his
presence and it weighed about 720 kilograms containing Bukhi.
Thus, it is proved that by virtue of the statement of PW Krishan
Kumar and Arun Kumar that the 20 bags, after taking samples
were stitched and samples were also taken and sealed and
resealed on the spot on 19.8.2010 and sent for chemical analysis
on 23.8.2010.
30.Learned counsel for the appellants has raised a question as to why
the samples were sent to FSL on 23.8.2010 and where the
samples have been kept during this interval and who had taken
the samples to FSL. It is important to note that in the cross
examination a question was put to PW Arun Kumar as to why the
samples has been sent to FSL on 23.8.2010; he fairly replied that
it was raining heavily on 20th and they were busy in some other
work, therefore, the samples were sent to FSL on 23.8.2010. A
further question was put to the witness Arun Kumar as to why the
person who had taken the samples, has not been cited as a witness
in the case. We think that it is not important as to who had taken
the samples from custody of police or the Malkhana to FSL, what
is more important is whether the seals are intact or not in order to
complete the chain. PW Rohit Koul, in his examination-in-chief
stated that a case was forwarded for chemical analysis in the
matter titled State through Excise Department vs Yash Pal and
Harpal Singh. The description of packets is given in the report
No.563/ CAT / FSL dated 3.11.2010. These were marked as
exhibit B1 to B20, which were further marked as K-992/10 to K-
CRAA no.14/2013
1011/10 respectively. All these packets weighed 50 grams each. It
is to be seen that as per the PW Arun Kumar and PW Krishan
Kumar, 40 exhibits weighing 50 grams were sealed/resealed on
the spot and one set was marked as B1 to B20 whereas the other
set was marked as C1 to C20. The mark B1 to B20 were sent to
FSL with a letter of authorisation to open the packets B1 to B20
for chemical analysis. This means that the samples, sealed and
resealed on spot by the Executive Magistrate bear the testimony
to it. Furthermore, PW Rohit Kumar, FSL expert, has received
the samples in an intact position and had not reported that the
seals were any way tampered or damaged. The fact that neither
PW Arun Kumar nor PW Krishan Kumar were in possession of
the seals but the same were kept with Riaz Ahmed, Sub Inspector,
as such the question of tampering with the case property by the
investigating officer or by the PW Krishan Kumar does not arise
at all. The samples, sent to the FSL, were found to be intact with
seals, so non-listing of the said Riaz Ahmed as a witness in the
prosecution case does not in any way affect the case of the
prosecution.
31.It is evident from the evidence that the samples B1 to B20 were
sealed and resealed on spot and PW Krishan Kumar vide his
certificate EXTP-6 had mentioned about resealing of the packets
with further authorisation to the FSL to open the packet B1 to
B20 for chemical analysis and the FSL expert Rohit Sharma
found the seals intact and the seals on the samples tallied with the
sample seals. In that view of the matter the chain of evidence was
complete.
32.Another limb of argument of learned counsel for appellants is that
PW Arun Kumar is the complainant in the instant case and he is
also the investigating officer of the case, as such the whole
investigation done by him, is biased and the investigation which
culminated into the conviction of the appellants, be set aside on
this ground also.
CRAA no.14/2013
33.A five Judge Bench of the Supreme Court in Mukesh Singh vs
State, decided on 31.8.2020, at paragraph 12 clause II, has held as
under:
"In a case where the informant himself is the investigator, by that
itself cannot be said that the investigation is vitiated on the ground
of bias or the like factor. The question of bias or prejudice would
depend upon the facts and circumstances of each case. Therefore,
merely because the informant is the investigator, by that itself the
investigation would not suffer the vice of unfairness or bias and
therefore on the sole ground that informant is the investigator, the
accused is not entitled to acquittal. The matter has to be decided on a
case to case basis. The contrary decision of this Court in the case of
Mohan Lal v State of Punjab (2018) 17 SCC 627 and any other
decision taking a contrary view that the informant cannot be the
investigator and in such a case the accused is entitled to acquittal are
not good law and they are specifically overrules."
34.In view of above law laid down by the Supreme Court, the
argument raised by learned counsel for appellants is not tenable
and is rejected.
35.Now coming to the Judgments referred by the learned counsel for
the appellants.
36.In relation to the judgment in Ghulam Mohd Bhat case supra, it is
clear that the samples had been kept at the Airport for three days
and had not been deposited in the Malkhana. The samples have
been produced in the Court whereas the fact of the matter in the
case in hand, the samples had not been produced in the Court and
identified by PW Arun Kumar. Besides, no question was put to
witnesses as to where the contraband had been kept. In fact, PW
Arun Kumar has stated that the contraband was lying with him. In
the judgment referred to by the learned counsel for appellants it
has been held that besides the question of taking care of the
sample and proper safety in the Malkhana, the High Court also
reported that there are insertions and contradictions and same has
escaped the attention of the trial Court, whereas in the case in
hand, the L/C for the appellants has not reported or brought any
inconsistency or contradiction viz-a-viz statements of the
prosecution witnesses to the notice of this Court. The judgments
CRAA no.14/2013
furnished are not applicable to the facts and circumstances of this
case.
37.In case titled Gorakh Nath Prasad Vs State of Bihar, the
independent witnesses with regard to the search and seizure,
turned hostile, deposing that their signatures were obtained on
blank paper, whereas in the case in hand though no independent
person had been listed as witness to the search and seizure, but
only officials have been kept as the witness to the search and
seizure and none turned hostile. Infact the defence counsel could
not project any objection except that they are the official
witnesses. Thus, the judgement referred to is also not applicable
to the facts and circumstances of this case.
38.After considering the Judgment of the Ld Trial Court, hearing the
submissions of the rival sides, this court is of the opinion that
prosecution has successfully proved its case beyond any
reasonable doubt and the Trial Court have very rightly recorded
the conviction of the appellants .
39.This court is not oblivious of the fact that appellants are convicted
in a very serious offence affecting the society at large.
Considering the nature of the offence, so also the seriousness of
the crime, there is no reason to reduce the punishment awarded to
the appellants/ accused persons. Considering the age of the
appellants, their poor background and the fact that appellants are
behind the bars since their arrest in this case. Furthermore, in case
of Balwinder Singh Vs Asst. Commissioner, Customs and
Central Excise (2005) 4 SCC 146, The Honble Supreme Court
has narrated the relevant factors to be considered for reduction of
sentence for the offence under NDPS Act. In the said Case, the
accused was convicted under the NDPS Act for the first time and
therefore, the sentence was reduced from RI for 14 years to RI for
10 years.
40.Coming to the case in hand, there is no report from the
prosecution side that the appellants are the repeaters of the
offence, this suggest that they are the first timers. So, in view of
CRAA no.14/2013
law laid down by the Supreme court in the case of Balwinder
Singh (supra) coupled with facts and circumstances of the case in
hand and the fact that there is no record to show that accused
persons/appellant had previously committed such offences, the
instant case is also considered on the lines of above cited
judgement and as a corollary thereof, the sentence of appellants is
reduced from RI for 20 years to RI 15 years, However, the
penalty imposed by the Trial Court shall remain the same.
41.For the foregoing reasons, the appeal is partly allowed. The
impugned judgement and order of conviction passed on File
no.74/Challan, by the court of Sessions Judge, Kathua, is
modified. The sentence to undergo rigorous imprisonment for 20
years is reduced to 15 years. And insofar as the penalty of Rs.1.00
Lakh is concerned, that shall remain same.
42.The Trial Court record, if summoned/received, be sent down
along with copy of this judgement.
(Vinod Chatterji Koul) ( Tashi Rabstan )
Judge Judge
Srinagar
19.03.2021
Rakesh
Whether the order is reportable: Yes/No.
I pronounce this judgement in terms of Section 138(4) of the J&K High
Court Rules, 1999.
( Tashi Rabstan )
Judge
Jammu
19.03.2021
