Jammu & Kashmir High Court
Manjit Singh vs State Of J&K on 12 November, 2021
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
ATJAMMU
Reserved on: 07.09.2021
Pronounced on: 12 .11.2021
Case: CrlA(D) No. 34 of 2019
Manjit Singh .....Appellant/Petitioner(s)
Through :- Sh. Muzaffar Iqbal Khan, Advocate.
v/s
State of J&K .....Respondent(s)
Through :- Sh. Vishal Bharti, Dy. AG
Coram: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
Per Oswal J
1. The present appeal is arising out of the judgment and order dated
09.05.2019 and 10.05.2019 passed by the Court of learned Principal
Sessions Judge, Udhampur (hereinafter to be referred as trial Court) by
virtue of which the appellant has been convicted for commission of offence
punishable under Sections 8 and 15 of the Narcotic Drugs and Psychotropic
Substances(NDPS) Act and has been sentenced to undergo rigorous
imprisonment for a period of 12 years and has also been ordered to pay a
fine of Rs. 1.00 lac and further in default of payment of fine, the appellant
has been ordered to undergo further imprisonment for a period of one year.
2. The judgment has been impugned on the following grounds:
a. That no independent witnesses were associated with investigation in
order to inspire confidence, despite the fact the place where Naka was
laid, was the busy place.
b. That PW Jeewan Singh has stated that Investigating Officer was
present and managed the papers for preparing docket.
c. That PW Vinod Sharma has deposed about the presence of Pardeep
Kumar Executive Magistrate on spot but the same is not forthcoming
from challan as well as from the statement of the witnesses as such he
is not reliable witness.
d. That there was unexplained delay of 06 days in sending the samples to
FSL.
e. That there is no entry in the Malkhana register with regard to the fact
that the samples were taken out from the Malkhana for the purpose of
resealing and deposited again on the same day.
f. That the seal used for effecting seizure was not deposited in the
Malkhana.
g. That the independent witness, namely, Mukhtyar Ahmed has not
supported the prosecution and was declared hostile.
h. That there are violations of Sections 52, 55, 57 of the NDPS Act.
Prosecution Case:
3. The brief facts as they emanate from the charge-sheet are that on
16.11.2016, one docket was sent by Head Constable Pradeep Kumar to
Police Station, Kud in which it was stated that he along with Constable
Kamaljeet Singh, Ramesh Kumar and Jeevan Singh, was performing naka
duty at National Highway Kud and during checking, at around 1300 hours,
one truck bearing registration No. PB08R-9348 coming from Srinagar
towards Jammu was stopped. During checking, inside the tool box of the
truck, 07 plastic bags covered by tarpaulin having Poppy Straw were found.
The driver of the truck could not give satisfactorily reply. Both the persons
disclosed their respective names as Manjit Singh S/o Darshan Singh,
appellant herein (truck driver) and Sukhjeet Singh S/o Dilbagh Singh as
such, both these persons have committed offences under sections 8 and 15
of the NDPS Act. The said docket was sent through SPO Jeevan Singh.
Pursuant to this, FIR bearing No. 88/2016 dated 16.11.2016 was registered
by Police Station, Kud, Udhampur for commission of offences under
sections 8 and 15 of the NDPS Act. Thereafter, the investigation was
conducted by Sanjay Gupta, SHO Police Station, Kud who proceeded on
spot. The 07 bags were unloaded from the truck and they were weighed by
electronic weighing scale brought from PW Mukhtiar Ahmed and total
weight of the contraband was found to be 82 Kgs of Poppy Straw. The
seizure memo was prepared on spot that was marked as Ext. 1/I and also
two samples of 500 grams each of Poppy Straw were separately drawn
from each of the seven bags, i.e. total 14 samples were drawn and they were
marked as A1, B1, C1, D1, E1, F1, G1, A2, B2, C2, D2, E2 F2 and G2. The
samples were sealed on spot. The truck and tarpaulin were also seized. The
seizure memo of the truck and tarpaulin were also prepared. The
supurdnama with regard to the handing over of the weighing scale was also
prepared on spot. The samples were resealed on 17.11.2016 by the
Executive Magistrate, 1st Class Chenani and on 21.11.2016, the same were
sent to the FSL. The FSL vide report dated 09.12.2016 opined that the
seized substance was Poppy Straw (Papaver Somniferum).
4. After the conclusion of the investigation, the charge sheet for the
commission of offence under section 8 and 15 of the NDPS Act was filed
against the appellant herein and one Sukhjeet Singh, co-accused on
29.12.2016 and thereafter the charges for commission of offence under
sections 8 and 15 of the NDPS Act were framed against the appellant as
well as other co-accused on 14.01.2017. Out of the 10 witnesses cited in the
challan, 9 were examined by the prosecution and PW 4 was given up. After
the conclusion of the prosecution evidence, the statements of both the
accused under section 342 Cr.P.C. were recorded by the learned trial court
on 19.01.2019. No witness was examined in defence by the accused. After
hearing both the parties, the learned trial court convicted the appellant and
acquitted the co-accused by virtue of judgment impugned.
Submissions:
5. Sh. Muzaffar Iqbal Khan, learned counsel appearing for the appellant
vehemently submitted that learned trial Court has fallen in grave error of
law while convicting the appellant, as all the witnesses except Mukhtiar
Ahmed have stated that the Magistrate was present at the time of seizure
whereas PW-Rafiq Ahmed has specifically denied the same. Learned
counsel laid much stress on the contradiction with regard to the presence of
the Magistrate and the SDPO on spot. He further argued that only single
independent witness that was associated with the investigation has not
supported the prosecution case. He urged that no evidence was brought on
record with regard to the fact that the samples were taken from the
Malkhana on 17.11.2016 for resealing and were again deposited back on
the same day. He also stressed that there was contradiction in the evidence
with regard to the custody of the seal.
6. Per contra, Mr. Vishal Bharti, learned Dy. AG appearing for the Union
Territory-respondent vehemently argued that the seizure of the contraband
has been successfully proved by the prosecution witnesses and further that
the safe custody of the seized contraband as well as samples in the
Malkhana has also been proved by the prosecution.
7. Heard learned counsel for the parties and perused the record.
8. Before appreciating the contentions raised by the appellant it is necessary to
have a brief resume of evidence led before the trial court.
Evidence of the Prosecution:
a. PW No. 1 Head Constable Pardeep Kumar stated that on 16.10.2016,
he along with Constable Kamaljeet, SPO Jeewan Singh and SPO
Ramesh Kumar was checking the vehicles at Naka point, near Guest
House Kud, those were coming from Srinagar towards Jammu. They
stopped one truck bearing number PB-08R-9348, that tried to dodge the
police. He along with others stopped the truck by standing in front of the
same. The truck driver was asked to come down but he became nervous,
which made them suspicious. Constable Kuljeet Singh and SPO Jeewan
Singh searched the truck and nothing was loaded in the same. There
were 5/6 bags lying in the tool box covered with tarpaulin. On being
asked about the same, the driver stated that it was poppy straw and he
had committed mistake. Driver was accompanied by one person who
disclosed his name as Sukhjeet. The driver of the truck disclosed his
name as Manjit Singh. Seven bags of white colour were found in the
toolbox. He prepared a docket for registration of FIR with the police
station Kud. Docket is marked as ExtP-1(but marked as Ext-1 on the
document). SHO came on spot at 2:45 PM and the bags were
photographed. Dy.S.P Chenani and Tehsildar Chenani also came on spot.
Jeewan Singh brought an electronic weighing machine from the shop of
Mukhtiar Ahmed. The bags were weighed and total weight of the bags
and poppy straw was found to be 82 Kgs. From each bag, 500-500 gms
each of Poppy straw as samples were separately drawn and sealed. There
were total fourteen samples out of which seven samples were prepared
for FSL. The samples were sealed with the ring and the ring was kept on
supurdnama of Jeewan Singh. The contraband and the truck were seized
on spot. He signed the seizure memo as marginal witness along with
Kamaljeet Singh. The seizure memo of contraband is marked as Ext -
PI/1(but marked as Ext-1/I on the document). The contents of the seizure
memo are correct and bears his signature. The seizure memo pertaining
to truck is marked as Ext - P1/II(but marked as Ext-1/II on the
document). The contents of the seizure memo are true and bears his
signature. The seizure memo of tarpaulin bears his signatures and the
contents are true. The seizure memo is marked as Ext-P1/III. His
statement was recorded under section 164-A Cr.P.C and the same is
marked as Ext-P1/IV(but marked as Ext-1/IV on the document). He
identified the seized articles shown to him in the court.
In cross examination stated that they were on routine
patrolling and it started at 10 AM. They were deputed to undertake
patrolling and checking of vehicles. He does not remember the
registration numbers of the vehicles those were checked on that day. The
truck was intercepted when it tried to overtake another truck that was
ahead of it. They did not have any prior information about the truck. He
also mounted on the truck. They had seen the particles of contraband
scattered in the toolbox. The docket was written at Naka point. The
paper was brought from one shop through one civilian. He does not
remember the name of that person but he works in the shop of Taj
sweets. He does not remember as to whether he had written the time on
the docket or not. He did not record in the docket that the truck driver
attempted to flee away. Docket was prepared at 1.30 PM Taj sweets was
at a distance of 10/15 feet from the Naka point. J & K Bank, State Bank
and Medicine shops are 50/60 feet away from the Naka point. I.O had
come on spot at 2:45 PM. Sanjay Gupta was Investigating officer. I.O
was accompanied by PSI Anil Kumar and PSO Sameer. The accused
were sitting in the truck till the I.O came on spot. Pursuant to the enquiry
by the I.O, the accused disclosed that they had brought the contraband
from Srinagar. The contraband was unloaded from the truck by him,
Kamaljeet, Jeewan Singh and PSO Sameer. Thereafter Jeewan Singh
brought the weighing scale from Mukhtiar Ahmed, who also came on
spot. All the bags were weighed separately and thereafter 500/500 gms
samples were drawn. Dy.S.P and Tehsildar came on spot at 3:30 PM. He
does not know as to how they were called on spot but they remained on
spot while the proceedings were being conducted. I.O had seized the
contraband prior to the arrival of Dy.S.P and Tehsildar. The bags were
opened and the contraband was weighed in presence of DySP and
Tehsildar. He does not know as to whether the ring was made of iron or
some other metal. He does not know about the impression of the seal. He
does not know as to how many impressions of seal were fixed on the
samples. During the proceedings, the vehicles were not checked. He does
not know about the forms those were filled by the I.O. He signed the
seizure memos. During the proceedings, there was no movement of
civilians. There was movement of vehicles but very few people were
moving. Mukhtiar Ahmed remained on spot while the proceedings were
being conducted. He does not remember the clothes those were worn by
the accused. In his statement under section 164-A Cr.P.C, it is not
mentioned that the driver of the truck tried to fled away and he as well as
Kamaljeet stopped the truck by standing in front of the truck. It is also
not mentioned in the statement that the driver of the truck got nervous
and admitted the mistake because he had kept the contraband. Both of
his statements made in the court as well as recorded under sec 164-A are
correct. Bags containing contraband were white in colour but he does not
remember as to what was written on those bags. It took 4 to 4 ½ hours to
complete the proceedings on spot. I.O had not called Lamberdar and
Chowkidar on spot. I.O had not called shopkeepers in his presence. He
denied the suggestion that nothing was done in his presence.
b. PW No. 2 Constable Kamaljeet Singh stated that on 16.11. 2016 he
along with Havaldar Pardeep Kumar, who was Naka Incharge, SPO
Jeewan, SPO Ramesh Kumar proceeded for laying Naka at Naka point
Kud at 8 AM in the morning for checking. At 1 PM one truck bearing
number PB-08R-9348 that was coming from Srinagar was signaled to
stop and the said truck stopped at the Naka. Truck was being driven by
accused Manjit and another accused was also in the truck. When they
asked the accused about their names, they got nervous. We got
suspicious and he and Jeewan saw inside the truck but the truck was
empty. Thereafter they checked the toolbox and found that one tarpaulin
was placed on it and after lifting the tarpaulin, they found seven bags and
also found poppy straw scattered in the toolbox. They disclosed the same
to Naka Incharge. He too mounted on the truck and found the seven bags
and scattered particles of poppy straw in the toolbox. In-charge Naka
prepared docket for registration of a FIR and sent the same through SPO
Jeewan to police station Kud. SHO came on spot after sometime and
clicked the photographs of the truck and poppy straw. Poppy straw was
unloaded from the truck by Sameer and Jeewan. Sameer had come on
spot along with SHO. Poppy straw was weighed on spot and weighing
scale was brought from shopkeeper Mukhtiar. Poppy straw was found to
be 82 Kgs. Fourteen samples of 500 g each were prepared from the
poppy straw, drawn from each bag. They were sealed. The rest of the
poppy straw was also seized and sealed on spot with impression of ring.
Ring was kept on supurdnama of SPO Jeevan Singh. He identified his
signatures on the seven samples those were received from FSL and the
other seven reserve samples.
In cross-examination stated that he does not remember as to
whether any entry with regard to their departure was made in the
Roznamcha or not. There were 2 Munshis in the Police Station at that
time. One was Hafeez and another was Hakam. All police personnel had
reached Naka at 8:15 AM. They started checking vehicles at 8:30 AM.
He does not know whether In-charge Naka had any register in which
entries with regard to checking of the vehicles were made. The accused
had reached on spot in the vehicle at 1-1:15 PM. This is not correct that
the vehicle was not stopped by the accused at Naka point but tried to run
away and truck was stopped after Naka point. SPO Jeewan Singh went to
the police station at 1.30-1.45 PM. SHO had come on spot at 3 PM and
was accompanied by PSO Sameer and his driver. First of all, SHO
clicked the photographs of the truck and the poppy straw. The accused
were in the truck when SHO came on spot. Jeewan and Sameer unloaded
the truck. He also assisted them in unloading poppy straw. SHO and PSI
Anil Kumar jointly weighed the seized articles. Electronic weighing
scale was brought from Mukhtiar, Sweet shop owner and he was present
on spot. The bags were white in colour but he does not know what was
written on them. He does not know who was preparing the papers on
spot. He does not know as to who prepared the papers which he signed.
Tehsildar and SDPO had reached on spot after some time of the arrival
of SHO. He and Pardeep signed on the samples but he does not
remember whether Mukhtiar too had signed the same or not. His
statement was recorded in the court. This is correct that SHO was
assisted by PSI Anil Kumar while preparing samples. No other vehicle
was stopped while the proceedings were being conducted. People were
moving at that time. Vehicles were also moving. There are branches of
SBI and J and K Bank adjoining Naka point. He does not know whether
any civilian was called on spot or not. No civilian was present on spot
when the proceedings were conducted. It took 3 to 4 hours to complete
the proceedings. The proceedings ended at 6 PM. He denied the
suggestion that he was not present on spot.
c. PW No. 3 SPO Jeewan Singh stated that on 16.11.2016 he, along with
Hawaldar Pardeeep Kumar, Constable Kamaljeet Singh and SPO
Ramesh Kumar proceeded from police station Kud at 9-9.30 AM for
laying Naka and Naka was laid for checking the vehicles coming from
Srinagar. At around 1.30, one truck of Jammu number was stopped for
checking and that truck was followed by another truck bearing number
PB-08R-9348 and the truck tried to overtake. On the asking of Pardeep
Kumar, he and Kamaljeet stopped the truck. Accused Manjit Singh was
driving the truck and on seeing the police party, he became nervous.
Another accused was also in the truck. He and Kamaljit mounted on the
toolbox. There was yellow coloured tarpaulin and underneath it, they
found seven bags and poppy straw was scattered there. Nothing was
loaded in the truck. Naka Incharge also saw it and asked the driver about
the same, who got nervous and stated that he had brought the truck from
Srinagar and had committed mistake and further he be pardoned. Naka
Incharge prepared the docket and sent the same through him to police
station. After registration of FIR, SHO along with Anil Kumar, PSO
Sameer proceeded for spot. SHO sent him for bringing weighing scale
from Taj Sweets shop. He brought electronic weighing scale from the
shop. He was accompanied by Mukhtiar Ahmed on spot. Poppy straw
was unloaded from the truck by the police personnel. It was weighed and
was found to be 82 kg of poppy straw. Bags were of plastic and white in
colour. Fourteen samples of 500 g each of poppy straw were drawn from
each of the seven bags. They were sealed and ring was kept on his
supurdnama. He produced the ring in the court. SDPO Chenani and
Tehsildar Chenani also came on spot. Weighing scale was handed over
on spot to Mukhtiar Ahmed. Supurdnama Ring (Ext-P-3) and
Supurdnama Weighing Scale (Ext-P-3/I) bear his signatures and the
contents are true. He identified the seized articles in the court.
In cross-examination stated that he does not know as to whether
entry with regard to his departure was made in Roznamcha or not. He
was asked by Munshi to proceed for Naka at 9-9:30 AM. Before
checking the truck, they checked around 30-35 vehicles. He does not
remember the numbers of those vehicles. One vehicle was stopped when
the truck tried to overtake it. He does not remember whether it was
mentioned in his statement recorded under section 161Cr.P.C. or not. He
mounted on the truck from the side of the conductor. Kamaljeet Singh
lifted the tarpaulin and below the tarpaulin, there were bags of poppy
straw. Docket was prepared by the In charge Naka party. The papers
were brought by IO through civilian. He has not seen the docket today.
He had handed over the docket to the Munshi of the police station for
registration of a FIR. He had come on spot at 2:45 along with SHO and
other police personnel. He does not know as to how many photographs
were clicked by SHO, after he mounted on the truck and also how many
photographs were clicked by SHO after unloading the poppy straw. All
the bags were weighed separately. Tehsildar Chenani and SPDO
Chenani were also present at the time of weighing the poppy straw. After
weighing, the samples and the poppy straw were sealed in a cloth. Cloth
was brought from the market but he does not remember as to who
brought the cloth. He did not notice the impression of the ring. He had
kept the ring in his trunk and brought the same today. He does not
remember whether any civilian was present on spot at that time or not
but normal movement remains there as there is National Highway. He
does not know whether SHO called Sarpanch or Numberdar on spot.
Tehsildar did not conduct any proceedings in his presence. They did not
stop any other vehicle while the proceedings were being conducted. The
proceedings ended at 6 pm. After conclusion of the proceedings, the
seized articles were taken to the police station and handed over to
Munshi of police Station. He denied the suggestion that no proceedings
were conducted in his presence.
d. PW 5 Mukhtiyar Ahmed stated that he does not know the accused. He
runs the sweet shop in Kud under the banner of M/s Taj Sweets. About
2-3 months ago one, policeman had come to his shop and demanded
weighing scale from him. He had electronic weighing scale and that
weighing scale was taken at around 9.30 AM by that policeman.
Thereafter, he was called on 12.30 PM and was asked to take back his
weighing scale. He went inside the PWD Gate and weighing scale was
lying on road. Hafiz-Munshi was also there. His signature was taken on
one paper and he does not know what was done with the weighing scale.
The witness was declared hostile and was cross examined by the Public
Prosecutor and during cross examination, he stated that he does not
remember that on 16.11.2016 weighing scale was taken from him as
mentioned in his statement recorded earlier. In his statement recorded
under section 161-Cr.P.C. time is not mentioned with regard to taking of
the weighing scale. As per his memory, the weighing scale was taken by
Sameer and not by SPO Jeevan. He denied his presence on the spot when
the Poppy Straw was recovered from the truck. He denied that the poppy
straw was weighed in his presence as well as in the presence of SDPO,
Tehsildar and other police personnel. He identified his signature on the
supurdnama, that is marked as Ext-P3. In the cross examination he stated
that he went inside PW Guest House, Kud and Hafiz-Munshi was
standing there and he was handed over his electronic weighing scale. At
that time PSI Anil Kumar and Sameer were also standing at the Guest
House. Hafiz Munshi had obtained his signature on supurdnama.
e. PW 6- Rafiq Ahmed stated that in November, 2016, he was posted as
Executive Magistrate(Naib-Tehsildar),Chenani. On 17.11.2016, ASI
Subash Chander of Police Station, Kud brought 14 packets for the
purpose of resealing. He got 14 packets resealed in his office from his
clerk under his supervision. Seal used for the purpose of resealing was
lying in his office. He also issued one authority letter in the name of
Director, FSL for breaking the seal for the purpose of the examination of
samples. He had also affixed the impression of seal on that authority
letter for the purpose of comparison. The letter dated 17.11.2016 bears
his signature and same is marked as ExtP-6. He has seen those 14
packets today in the court and those were resealed by him.
In cross examination, he stated that he does not remember
the time when ASI Subash Chander came to his office for the purpose of
resealing. ASI had also produced one letter from SHO at the time of
resealing. He has not seen the letter today in the court. He had affixed
2/3 seals but he does not know about the seals used by the police but the
same has been mentioned in his letter. Police had not sent the seal used
by them and also the seal impression was not sent. He had not opened
the sealed packets. He does not remember the name of dealing clerk.
ExtP-6 was prepared in his office. He had not gone on spot. He had
signed the resealed packets and also affixed his seals but they do not bear
the signature of the dealing clerk. Police had not recorded the statement
of the dealing clerk. The seal that was used in the ExtP-6 remains in the
custody of the dealing clerk in the office.
f. PW 7-Pawan Abrol: In chief examination, he has stated that on
21.11.2016, he had received seven sealed packets forwarded by the
SDPO Chenani vide his letter dated 19.11.2016 through ASI Subash
Chander. The said seven sealed packets enclosed within cloth were
marked as Ext A-1, B-1, C-1, D-1, E-1, F-1 and G-1. The same were
given further exhibit numbers as P-2208/16 to P-2214/16 by him and
each weighed 500 grams. The seals were opened and the contents of the
each exhibit were duly examined by him and they remained under his
custody til the examination was completed. The exhibits were examined
and the result arrived at was as under:
1. Morphine was detected in the aforesaid exhibits
2. The aforesaid exhibits were identified as Poppy Straw.
In cross-examination, he has stated that he has not
mentioned the details and name of chemical examination conducted by
him in his report and the same has been mentioned in his internal record
register/work-sheet lying in FSL. He further stated that he has not
received the NCB form along with the exhibits A-1 to G-1 which were
sent to FSL for chemical examination. He has not mentioned the
description of both the seal impressions forwarded by the Magistrate and
police. Only the facsimile of both the seals impressions on the packets
was forwarded to him for comparison but not the original seals. The
exhibits were bearing the name and signature of the accused and the
Magistrate only and not of SHO. He has not mentioned the percentage of
Morphine in the certificate because Morphine is always present in traces
in dried opium or Bhukki and traces cannot be quantified. No seal
impression was found inside the packets though he had received the
facsimile of both the seals impressions forwarded by both Magistrate and
Police for comparison.
g. PW 8 Hukam Singh stated that in November 2016 he was posted in
police station Kud. On 16.11.2016 PSI Anil Sharma presented 21 sealed
packets, those included the samples and the remaining poppy straw with
him for depositing in the Malkhana. He was posted as Incharge
Malkhana during those days. He has brought register No. 19 along with
him. As per entry No. 54, the sealed packets were deposited in the
Malkhana. On 17/11/2016 ASI Subash Chander obtained fourteen
packets for the purpose of resealing from the Executive Magistrate and
on the same day the same were deposited back in the Malkhana and
separate entry has been made in the relevant column of register. Out of
these fourteen packets, seven packets were obtained by ASI Subash
Chander on 21.11.2016 as they were required to be deposited with the
FSL for chemical analysis. He had seen the copy of the Malkhana
register No. 19 and the same was marked as ExtP-8.
In cross examination stated that in ExtP-8, the time of
deposit of articles has not been mentioned but the time is mentioned in
the original register. In ExtP-8,at column number 1, one has been
mentioned but in original register the number of the concerned entry is
54. In column No. 2 of ExtP-8 date has not been mentioned as
16.11.2016 that has been shown in column two of the original register. In
ExtP-8 in column No. 3 date is mentioned as 16.11.2016 but the same is
not mentioned in column No. 3 of original register but FIR number and
relevant sections have been mentioned. In column No. 5 of ExtP-8 and
register, name of PSI Anil Sharma has not been mentioned but name of
SHO has been mentioned. ExtP-8 does not mention about the
proceedings of 17.11.2016 but has been mentioned in the original
register. As per his memory ExtP-8 was issued after 21.11.2016. The
packets were having the signatures and seal impression of SHO. Ring
used for sealing was not handed over to him and also was not deposited
in Malkhana. Entry is not made in the register No. 19, when the articles
are obtained and returned back in the Malkhana but entry is made in
Roznamcha and due to this reason there is no such mention in the
register 19 that he has brought with him.
h. PW 9 -Vinod Sharma: stated that he knows the accused. In November,
2016 he was posted as SDPO Chenani. On 16.11.2016 while he was in
his office at 2.00 PM, he received the information from the SHO
Chenani that one truck has been stopped at Kud and Poppy Straw has
been recovered from it. He immediately went on spot and after 30-40
minutes, he reached at Naka point, Kud. The Tehsildar, Chenani also
proceeded for spot in his vehicle. They reached on spot where SHO
Sanjay Gupta, PSI Anil Sharma and other personnel of naka party were
present. He found the police personnel unloading the Poppy Straw from
the truck. In his presence, SHO weighed the contraband and prepared the
site plan and conducted the other proceedings. SHO had told him that the
weight of Poppy Straw was 82 Kg. There were seven packets of Poppy
Straw.
In cross examination, he stated that he did not sign any
paper on spot. The Tehsildar had not resealed the packets in his presence.
When he reached on spot, the consignment was almost unloaded from
the truck. He denied that he was not present on spot but was told by the
SHO about the recovery. SHO had sealed the packets on spot as such, he
did not know as to how many seals were affixed by him and also about
the impression of the seal. SHO had weighed the bags and he only told
him about the weight of the contraband. He does not know whether the
weight included the contraband only or the weight of the bags as well.
On 19.11.2016, he forwarded the samples to the FSL. He does not know
as to when the samples were handed over to the FSL. The samples
bearing A1, B1, C1, D1, E1, F1, G1 mentioned in the letter were not
presented before him when the letter was issued.
i. PW No: 10 Sanjay Gupta stated that on 16.11.2016 HC Pardeep Kumar
sent a docket for registration of FIR. It was written in the docket that one
truck having registration number of Punjab was stopped and Poppy
Straw was recovered from it. He went on spot as Investigating Officer.
Truck was near naka point and there were 7 bags of Poppy Straw in the
Toolbox. They were unloaded and were weighed. The weight of Poppy
Straw was 82 Kg. 14 Samples of 500 grams each were drawn from them
and were sealed. The Tehsildar and the Dy.SP were on spot. After
recording the statement of witnesses on spot, seized material was
weighed. Samples were got resealed from Naib Tehsildar and were
forwarded to FSL. He proved the offences under sections 8 and 15
NDPS against the accused. 14 packets were shown to him. He identified
his signatures on FIR marked as ExT-P 10/Iand also identified the
photographs marked as A&B. He also admitted the contents of seizure
memo marked as Ext-P1/I as true and identified his signatures. He also
identified his signatures on details narcotics form (ExtP- 10/II) and
admitted its contents to be true. Similarly, he admitted the contents of
Ext-I/II, ExTP1/III, ExT-P-3, Ext P3/I as true. Signatures of accused
were obtained on Arrest memos. He was shown the 14 samples by the
PP and he identified the same. They were marked as MO I to MO 14. PP
submitted that rest of the seized material including tarpaulin etc were
lying in the malkahna and defence counsel did not object to it.
In cross examination stated that he received information at
1.30 PM. He received docket from HC Pardeep Kumar. Naka was at a
distance of 200/300 meters away from the Police Station. He reached on
spot at 2.00 PM. He had seen the 7 bags below tarpaulin and after
opening, Poppy Straw was found in them. He cannot read Urdu properly.
Challan was prepared by his reader namely Hafeez. There is Taj Sweet
Shop near place of recovery and there are other shops also. The road is
busy road. He did not issue notice to any of the civilians but they were
asked orally. But none was willing to be a witness. He has not mentioned
the same in CD File. Articles were seized around 2.30 PM to 3.00 PM.
He had obtained the signatures of witnesses on seizure memo. Samples
were drawn in presence of Dy. SP and Magistrate. He had fixed six
impressions of seal on each of the samples, which were got resealed
from Naib Tehsildar next day. He does not remember about the number
of seals affixed by the Magistrate. Letter was obtained from Dy.S.P for
sending the samples to FSL. He does not remember as to who was sent
for delivery of the samples. He does not remember as to whether the
remnants were received back from FSL or not. The remnants are part of
the challan. During investigation it was revealed that the contraband was
brought from Srinagar but neither the name of persons nor place could
be found during investigation. He had already dealt with narcotic cases
as such, he knew that it was Poppy Straw. He did not record the
statements of DySP, Tehsildar on spot and also did not keep them as
witnesses in the seizure memo. Seized articles were not resealed on spot
as Tehsildar was not having the requisites for resealing. He had called
DySP and Tehsildar on spot by phone and they came on spot at 3.00 PM.
They stayed there for 1 to 1.30 hours. Packets were resealed by the Naib
Tehsildar with his seals and the packets were not opened for resealing.
Weighing machine was electronic. He cannot say about the weight of
contraband from each bag individually. When samples were taken from
Malkhana, entry is made in Register No. 19. He has not annexed any
document with challan demonstrating that samples were brought out
from the malkhana. He stated that there is certificate with regard to
deposit of articles in malkhana.
Discussion:
9. The first contention of the appellant is that no independent witness has been
associated with the investigation by IO, which affects the credibility of the
prosecution story. PW Sanjay Gupta, who happens to be the Investigating
Officer admitted that there were civilians on spot and he intimated them
orally to be a witness but they declined and this fact is not mentioned in the
case diary. So the fact remains that despite civilians witness being available
on spot, they were not associated with the investigation. Now it is required
to be seen as to whether the prosecution case can be rejected on this ground
alone. In Rizwan Khan v. State of Chhattisgarh1, the Apex Court has
held as under:
"12. It is settled law that the testimony of the official
witnesses cannot be rejected on the ground of non-
corroboration by independent witness. As observed and
held by this Court in catena of decisions, examination of
independent witnesses is not an indispensable
requirement and such non-examination is not
necessarily fatal to the prosecution case [see Pardeep
Kumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC
808].
13. In the recent decision in Surinder Kumar v. State of
Punjab [Surinder Kumar v. State of Punjab, (2020) 2
SCC 563], while considering somewhat similar
submission of non-examination of independent
witnesses, while dealing with the offence under the
NDPS Act, in paras 15 and 16, this Court observed and
held as under:
"15. The judgment in Jarnail Singh v. State of
Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC
521: (2011) 1 SCC (Cri) 1191], relied on by the counsel
for the respondent State also supports the case of the
prosecution. In the aforesaid judgment, this 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
(2020) 9 SCC 627
evidence of official witnesses cannot be distrusted and
disbelieved, merely on account of their official status.
16. In State (NCT of Delhi) v. Sunil [State (NCT of
Delhi) v. Sunil, (2001) 1 SCC 652 : 2001 SCC (Cri) 248],
it was held as under: (SCC p. 655)
„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 court
cannot start with the presumption that the police records
are untrustworthy. As a proposition of law, the
presumption should be the other way around. That
official acts of the police have been regularly performed
is a wise principle of presumption and recognised even
by the legislature.‟"
14. Applying the law laid down by this Court on the
evidence of police officials/police witnesses to the facts
of the case in hand, referred to hereinabove, we are of
the opinion as the police witnesses are found to be
reliable and trustworthy, no error has been committed by
both the courts below in convicting the accused relying
upon the deposition of the police officials."
10. Thus the test is that where the Police witnesses examined are reliable then
the prosecution case is not required to be rejected on the ground that
independent witnesses were not examined. From the testimony of PW-Head
Constable (HC) Pardeep Kumar, it is evident that he was on naka duty
along with Constable Kamaljeet Singh, SPO-Jeewan Singh and SPO-
Ramesh Kumar and during naka, a truck that was being driven by appellant
was stopped and when the same was checked by PW-Jeewan Singh and
PW-Kamaljeet Singh, it was found to be empty. However, in the tool box,
seven boxes were found and the particles of Poppy Straw were scattered in
the tool box. PW HC-Pardeep Kumar has proved the docket as EXT-1,
pursuant to which, FIR bearing No. 88 of 2016 under Sections 8/15 of
NDPS Act was registered at Police Station Kud. The prosecution witnesses
namely PW Jeevan Singh and PW Kuljeet Singh have narrated the same
story as has been mentioned in the docket. PW Pardeep Kumar has further
proved the fact that SHO Police Station Kud also visited the site and
contraband was weighed that was found to be 82 kgs and from each box, 02
samples of 500 grams each were separately drawn and total 14 samples of
500 grms each were prepared. He is witness to the seizure memo and he has
proved the contents of the seizure memo of contraband i.e. EXT-1 and also
the seizure of vehicle i.e. EXT-P1/II. The evidence of the PW HC-Pardeep
has been corroborated by the statement of PW-Jeewan Singh and PW-
Kuljeet Singh, who first of all mounted on the truck and found the Poppy
Straw in the tool box. PW-Jeewan Singh has also proved the factum of
preparation of the docket by HC-Pardeep Kumar for registration of FIR and
it was PW-Jeewan Singh who had taken the said docket to Police Station
for registration of FIR and he too has categorically stated that Poppy Straw
was weighed and it was found to be 82 kgs. He has further proved the fact
that he brought the electronic weighing machine from the shop of Taj
Sweets. He has further proved the fact that the seal that was used for the
purpose of sealing was kept on his Supurdari and he produced the same in
the Court. PW-Kuljeet Singh has also supported the prosecution on similar
lines like PW-Pardeep Kumar and PW-Jeewan Singh. All the three witness
examined by the prosecution have categorically proved the fact that the
vehicle in question was stopped and the same was checked and during
checking, seven bags were found in the tool box those were covered with
yellow Tarpaulin. The particles of the Poppy Straw were scattered in the
tool box. All the three witnesses have also proved the fact that the SHO
came on spot along with photographer and contraband was weighed by
electronic weighing scale and the total weight of the contraband was found
to be 82 kgs. Thus there is convincing evidence with regard to the recovery
of contraband from the truck driven by the appellant and the appellant has
not been able to demonstrate any reason for disbelieving the statement of
the Police witnesses.
11. The second contention of the appellant is that there is no evidence that the
Samples were withdrawn from the malkhana on 17.11.2016 for the purpose
of resealing and they were deposited back in the Malkhana on the same day
as such, there is no evidence that the contraband allegedly seized from the
appellant was sent for resealing by the Executive Magistrate. Ext P-8 is the
extract of Malkhana register in which there is entry with regard to the
deposit of seized articles including samples on 16.11.2016. PW Hukam
Singh, who was the In-charge Malkhana at the relevant point of time, had
brought the Register No. 19 in the trial court. In the said register, the
reference was made to the resealing of samples on 17.11.2016, though there
was no entry with regard to taking out and depositing of the samples on
17.11.2016 in Malkhana register. But PW Hukam Singh stated that the said
entry is made in Roznamcha. Further it is mentioned in the malkhana
register that seven samples were withdrawn on 21.11.2016 by ASI Subash
Chander for the purpose of chemical examination by FSL and it is
mentioned in FSL report dated 09.12.2016 (Ext P-7) that the seven samples
were sealed with the seal of Naib-Tehsildar. The factum of resealing on
17.11.2016 has been duly reflected in the original Malkhana register. So
this contention too lacks any force.
12. The third contention of the appellant is that there was delay of 6 days in
sending the samples to FSL for chemical analysis and the said delay is fatal
to the prosecution case. It requires to be noted that the samples alongwith
other seized articles were deposited in malkhana on 16.11.2016 after they
were duly sealed on spot by IO. Thereafter the samples were resealed by
PW Rafiq Ahmed with his seals on 17.11.2016. The perusal of FSL report
dated 09.12.2016 (Ext P-7) revels that the seals were intact and the
impression of the seals tallied with the facsimile impression of seal on letter
dated 17.11.2016 (Ext P-6) of Naib-Tehsildar.Thus there was no tempering
with the seals impression upon the samples sent for chemical examination.
In Hardip Singh v. State of Punjab2, the Apex Court, while dealing with
the question of delay in sending the samples to the FSL, observed that it
was of no consequence as the recovery of the said sample from the
possession of the appellant had been proven and established by cogent and
reliable evidence and that apart, it had also come in evidence that till the
date of parcels of samples were received by the chemical examiner, the
seal put on that parcel was intact. Under these circumstances, the
Court ruled that the said facts clearly proves and establishes that there
was no tampering with the aforesaid seal in the sample at any stage
and the sample received by the analyst for chemical examination
contained the same opium which was recovered from the possession of
the appellant. The plea that there was 40 days' delay was held to be
immaterial. So this plea too deserves to be rejected as there is nothing on
record that the samples were tampered.
(2008) 8 SCC 557
13. The fourth contention of the appellant is that the seal was not kept in the
malkhana and there is contradictory evidence as to the custody of the seal
as PW Pardeep Kumar has stated that ring was kept on supurdnama of
SHO. We find that it has come in the evidence of PW Jeewan Singh that the
ring used for sealing was kept on his supurdnama and the supurdanama Ext
P-3/I was proved by him and he had even produced the ring in the trial
court. Even the perusal of statement of PW Pardeep Kumar reveals that he
has stated that ring was kept on supurdnama of Jeewan. When the ring was
kept on supurdnama of PW Jeewan Singh and seized articles were
deposited in the Malkhana on 16.11.2016 so there can hardly be any chance
of tampering. Even the appellant has not cross-examined the witness
regarding the tempering. As such this contention also is without any
substance.
14. The fifth contention raised by the appellant is with regard to the
contradictions in the prosecution case. The Learned Counsel for the
appellant laid stress with regard to the presence of SDPO and Executive
Magistrate on spot. It deserves to be noted that the all the witnesses who
were present on spot have deposed about the arrival of SDPO and Tehsildar
on spot. PW Rafiq Ahmed was Naib-Tehsildar and he rightly stated that he
was not present on spot. So there is no contradiction with regard to the
presence of Tehsildar on spot. So far as the argument of the learned
Counsel about the presence of SDPO with regard to the contradiction in his
statement regarding unloading of the contraband is concerned, he has stated
that while he reached on spot poppy straw was almost unloaded, so there is
hardly any contradiction in his statement. So far as PW Mukhtiar Ahmed is
concerned, he was not witness to the seizure memo. He admitted the
signatures on the supurdnama of weighing scale (Ext P-3) and was cited as
witness to the supurdnama of weighing scale only in the list of the
witnesses and was never cited as eye witness. So merely his turning hostile
will not have any effect on the prosecution case. The argument of the
Learned counsel for the appellant that PW Jeevan Singh ahs deposed that
papers were brought through civilian by IO is concerned, it needs to be
noted that SHO is investigation officer and PW Jeewan Singh admitted that
he came along with SHO and other police personnel at 2.45. It is PW
Jeewan Singh who handed over the docket for registration of FIR. The
statement of the witness is required to be read as a whole and whole
statement is required to be examined and not one solitary sentence. The
contradictions as pointed by the learned counsel for the appellant are trivial
in nature, those have no bearing on the merits of the case and in fact are
inconsequential. Reliance is placed on the decision of Apex Court in State
v. Saravanan3, where Apex Court has held that as under:
"Even otherwise, it has been said time and again by
this Court that while appreciating the evidence of a
witness, minor discrepancies on trivial matters without
affecting the core of the prosecution case, ought not to
prompt the court to reject evidence in its entirety.
Further, on the general tenor of the evidence given by
the witness, the trial court upon appreciation of
evidence forms an opinion about the credibility thereof,
in the normal circumstances the appellate court would
not be justified to review it once again without
justifiable reasons. It is the totality of the situation,
which has to be taken note of. Difference in some
minor detail, which does not otherwise affect the core
of the prosecution case, even if present, that itself
(2008) 17 SCC 587
would not prompt the court to reject the evidence on
minor variations and discrepancies."
15. The last contention has been raised with regard to the compliance of
sections 52, 55 and 57 of the NDPS Act. It needs to be noted that in
Gurbax Singh versus State of Haryana 4, the Apex Court has held that
the said provisions are not mandatory but directory. The seized articles
were kept in safe custody and the appellant was informed about his arrest.
Immediate superior of PW Sanjay Gupta i.e. PW Vinod Sharma SDPO was
also present on spot. Assuming there is violation of abovementioned
provisions, even then appellant is not entitled to be acquitted once the
prosecution has proved its case beyond any shadow of doubt.
16. The judgments relied upon by the Appellant reported in 2013 AIR (SC)
357, 2018(2) SCC 305 and 2017 AIR (SC) 3751 are not applicable in the
present facts and circumstances of the case.
17. We have carefully gone through the judgment of the trial court. The learned
trial court has examined and appreciated the evidence led by the
prosecution in its right perspective and the appellant has not been able to
convince us that the learned trial court has wrongly appreciated the
evidence. In light of what has been discussed above, we have not been able
take a view other than that of the trial court. As such, the conviction of the
appellant is upheld.
18. The appellant must be 44 years of age by now, having family to support and
the prosecution has not brought anything on record that the appellant has
been earlier involved in commission of such type of offences, so we have
no hesitation to hold that this is the first offence of the appellant. So taking
2001 AIR (SC) 1002
note of the judgment of the Apex Court in Balwinder Singh v Assistant
Commissioner, Customs and Central Excise5, we reduce the sentence of
the appellant from Rigorous imprisonment of 12 years to 10 years Rigorous
imprisonment. The fine payable shall remain the same. The appeal is partly
allowed. The impugned order of sentence passed by Learned Sessions
Judge, Udhampur in challan titled "State vs Manjeet Singh and another"
bearing File No. 11/Spl. Challan arising out of FIR No. 88/2016 under
sections 8/15 of the NDPS Act registered with Police Station Kud, is
modified accordingly.
19. Record be sent back forthwith along with copy of the judgment. Jail
Authorities be intimated accordingly.
(RAJNESH OSWAL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
JAMMU:
12.11.2021
Paramjeet
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
2005(4) SCC 146
