Varinder Kumar vs State Of Pb
2022 Latest Caselaw 8150 P&H

CRA-S-36-SB-2006                                                               -1-


IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

                                 CRA-S-36-SB-2006 (O&M)
                                 Date of decision :- 1.8.2022

Varinder Kumar
                                                 ................Appellant
                                 vs.
State of Punjab
                                                 .................Respondent

Coram: Hon'ble Mr. Justice H. S. Madaan

Present:    Ms. Satpreet K. Kapila, Advocate
            for the appellant.

            Mr. Sandeep Vermani, Additional Advocate General,
            Punjab.
                            ...

H. S. Madaan, J.

1. This appeal is directed against judgment and order dated

15.12.2005, passed by the Court of Special Judge, Rupnagar, vide which on

conclusion of trial against Bimla Devi w/o Sher Singh, aged 45 years, r/o

Doctor Ambedkar Nagar, near Bhojpur Nagar, Sunder Nagar, Police Station

Chitrokri, District Mandi (H.P.) and Varinder Kumar (present appellant) s/o

Dharam Pal, aged 34 years, cultivator, r/o Village Jakhera, Tehsil and

District Una (H.P.), both of them being accused in FIR No. 65 dated

12.6.2003, for an offence under Section 18/61/85 of the NDPS Act,

registered at Police Station Anandpur Sahib. Bimla Devi was acquitted of

the charge framed against her under Section 18 of the Narcotic and

Psychotropic Substances Act, (hereinafter referred to as 'the Act'), whereas

accused Varinder Kumar was convicted for the said offence and vide order

passed on that very date, had sentenced him to undergo rigorous

imprisonment for 3 years and to pay a fine of Rs.25,000/-, in default of

payment of fine to undergo rigorous imprisonment for 3 months.

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2. Briefly stated, facts of the case, as per the prosecution story are

that on 12.6.2003, at about 7.00 P.M., accused Varinder Kumar, while

driving a scooter bearing registration No. HP-20-A-9886, on which his co-

accused Bimla Devi was pillion riding, came from the Bilaspur side. The

scooter was signalled to stop by the Police Party headed by SI/SHO

Dharampal of Police Station Anandpur Sahib (hereinafter referred to as the

Investigating Officer/IO also), in the area of village Baruwal near petrol

pump, where a picket had been laid by the Police Party. In the meanwhile,

one Swaran Singh, resident of Kiratpur Sahib, arrived there and he was

joined with the Police Party. Since SI/SHO Dharampal suspected Varinder

Kumar to be in possession of some contraband, he informed him in that

regard, stating that accused had a right to get his search and that of the

scooter, conducted from him or some Gazetted Officer or a Magistrate.

Varinder Kumar opted to get the search conducted by a Gazetted Officer.

His statement in that regard was recorded by SI/SHO Dharampal.

3. Accordingly, Mr. Varinder Singh Brar, DSP, Anandpur Sahib

(hereinafter referred to as the DSP also), a Gazetted Officer was summoned

to the spot, who disclosed his identity to the accused informing that the

accused had a right to get the search conducted from him or any other

Gazetted Officer or a Magistrate. The accused reposed confidence in Mr.

Varinder Singh Brar, DSP, Anandpur Sahib. Consent statement of Varinder

Kumar accused was recorded in that regard. Then personal search of

Varinder Kumar was conducted, which revealed that he had tied a parna (a

piece of cloth) around his waist. On being untied, it was found to contain

opium wrapped in a glazed paper. On being weighed, it came out to be 1 kg.

Two samples of 10 grams each were drawn out of the recovered opium and

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put into two plastic boxes, whereas the remaining opium weighing 980

grams, was put in a separate plastic box. All the three boxes were converted

into parcels sealed with seals of the Investigating Officer and the DSP and

taken into police possession. The accused were arrested in this case. The

scooter of the accused alongwith its registration certificate and driving

license of the accused - Varinder Kumar, were also taken into police

possession. Rough site plan of the place of recovery was prepared.

Statements of the prosecution witnesses were recorded. Ruka was sent to the

Police Station, which formed the basis for registration of FIR Exhibit PJ/1,

at Police Station Anandpur Sahib. On return to the Police Station, the

accused were put in the lockup, whereas the case property was deposited

with MHC Amrit Lal. On the next day, both the accused alongwith the case

property, were produced in the Court of Illaqa Magistrate. During the

course of investigation, one of the sample parcel was sent to the office of

Chemical Examiner, Punjab and as per report received therefrom, it was

found to be that of opium.

4. On completion of investigation and other formalities, challan

against the accused was prepared and filed in the Court. On receipt of the

challan in the Court, copies of documents, relied upon in the challan, were

supplied to the accused, free of cost, as provided under Section 207 Cr.P.C.

and then finding a prima facie case, charge for offence under Section 18 of

the NDPS Act, was framed against both the accused, to which they pleaded

not guilty and claimed trial.

5. During the course of prosecution evidence, the prosecution

examined in as many as 5 prosecution witnesses. PW-1 Constable Sohan

Lal, a formal witness, tendered his affidavit Exhibit PA. PW-2 Sanjay

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Kumar, Registration Clerk in the office of Registration and Licensing

Authority, Una, had brought the summoned record regarding registration of

scooter No. HP-20-A-9886, stating that it was registered in the name of

Varinder Kumar s/o Dharampal, resident of village Jekhera, registration

certificate being Exhibit PB. He proved the driving license of accused as

Exhibit P-C. PW-3 HC Amrit Lal, stated that on 12.6.2003, he was posted

as MHC at Police Station, Anandpur Sahib. He tendered in evidence his

affidavit Exhibit PD with regard to the safe custody of the case property.

PW-5 SI Dharampal, Investigating Officer of this case deposed with regard

to the recovery part, as well as the investigation conducted by him, toeing to

the line of prosecution. PW-4 Mr. Varinder Singh Brar, DSP, Anandpur

Sahib, supported the case of prosecution with regard to recovery of

contraband from the accused in his presence. After tendering report of

Chemical Examiner Exhibit PQ, the prosecution evidence was closed.

6. Statements of accused were recorded under Section 313

Cr.P.C., in which all the incriminating circumstances appearing in the

prosecution evidence were put to them, but they denied the same, pleading

innocence. Accused - Varinder Kumar took up the plea that on 11.6.2003,

when he had gone to the Dargah of Baba Budan Shah, to pay obeisance, an

altercation took place between him and the police officials. For that reason

a false case has been planted upon him.

7. The accused examined DW-1 HC Balbir Singh from Police

Station Anandpur Sahib, who deposed that landline number at the residence

of DSP Anandpur Sahib is '01887-236638' and that of Police Station

Anandpur Sahib is '232027' and he produced the summoned record relating

to the DDRs of Police Post, Kirtpur Sahib recorded on 12.6.2003 and

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13.6.2003, besides proving some other documents. DW-4 Saroj Bala, an

official of Department of Telecommunication, Anandpur Sahib, produced

summoned record with regard to telephone Number '236638', stating that it

was issued in the name of DSP, Anandpur Sahib. She stated that

subsequently digit '2' was prefixed to said telephone number, further

deposing that telephone number '230217' is in the name of Dharampal s/o

Om Parkash. Accused tendered in evidence telephone bills of mobile phone.

8. After hearing the arguments, accused- Bimla Devi was

acquitted of the charge framed against her, whereas accused- Varinder

Kumar was convicted and sentenced for an offence under Section 18 of the

NDPS Act, by the Court of Special Judge, Rupnagar, vide judgment and

order dated 15.12.2005, as mentioned above.

9. Feeling aggrieved by the said judgment of conviction and order

of sentence, the accused-convict Varinder Kumar had approached this

Court by way of filing the present appeal, which came up for hearing on

9.1.2006, when it was admitted for regular hearing and on an application

under Section 389 Cr.P.C. having been filed, remaining sentence of the

appellant was suspended during the pendency of the appeal.

10. Now the appeal has come up for final hearing.

11. I have heard learned counsel for the appellant - accused and

learned State counsel, besides going through the record.

12. The first ground of attack of learned counsel for the appellant

was that the offer given to the accused by the Investigating Officer in terms

of Section 50 of the Act was a partial offer, which is not valid in the eyes of

law causing prejudice to the accused entitling him to get benefit of acquittal.

13. Whereas learned State counsel has vehemently opposed this

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contention stating that there was nothing wrong with the offer made by the

Investigating Officer to the accused before carrying his search inasmuch as

the appellant/accused was informed that he had a right to get the search

effected in presence of a gazetted officer or Magistrate and the accused

opted to get search conducted in presence of a gazetted officer, accordingly,

Sh.Varinder Singh Brar, DSP, Anandpur Sahib, a gazetted officer was

called to the spot and in his presence, search was conducted, therefore there

was no violation of Section 50 of the Act.

14. After hearing the rival contentions, I find that the argument put

forward by learned counsel for the appellant is devoid of any merit and

provisions of Section 50 of the Act were duly complied with, as such no

prejudice was caused to the accused, therefore, the appellant/accused is not

entitled to get any benefit for alleged non-compliance of Section 50 of the

Act.

15. The second contention put forward by learned counsel for the

appellant was that there was delay in sending the sample to the office of

Chemical Examiner, Punjab, Chandigarh, which has not been explained.

16. Whereas learned State counsel has again refuted this

contention. I on my part feel that there has not been much delay in sending

the sample to the office of Chemical Examiner, Punjab. From the evidence

brought on file by the prosecution, it comes out that sample parcel had

reached the office of Chemical Examiner with seals intact. Therefore the

possibility of tampering with the sample parcels and bulk parcel stands

ruled out. Even otherwise, there is nothing to show that the opium is such a

substance whose chemical composition changes with passage of time and as

such delay, if any, in sending the sample would have resulted in drawing a

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wrong conclusion. Therefore, this contention of learned counsel for the

appellant is also rejected.

17. The third argument put forward by learned counsel for the

appellant was that as per the prosecution story the sample seal after use had

been handed over by the Investigating Officer to Sh.Swaran Singh, an

independent witness, who was not examined by the prosecution, therefore,

the link evidence in this case is missing.

18. On the other hand, learned State counsel has pointed out that

Swaran Singh had been won over by the accused, therefore, non-

examination of independent witness does not effect the veracity of the

prosecution case, which was otherwise proved by leading enough cogent

and convincing evidence.

19. I find that the explanation rendered by learned State counsel is

quite satisfactory and plausible and therefore such argument advanced by

learned counsel for the appellant is also rejected.

20. The impugned judgment of conviction passed by the trial Court

is well reasoned one, based upon proper appraisal and appreciation of

evidence and correct interpretation of law. There is no illegality or infirmity

therein. The prosecution had successfully proved its charge against the

accused beyond a shadow of reasonable doubt by bringing enough cogent,

convincing and reliable evidence both oral as well as documentary.

Although the appellant/accused alleged that he had an altercation with the

the police at Dargah of Baba Budan Shah but accused could not bring any

evidence to show that. The recovery involved in this case is quite

substantial i.e. 1 k.g. of opium minimizing the chances of false plantation.

21. With regard to the sentence part, although learned counsel for

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the appellant has contended that the appellant is a poor person, married

having children and is sole bread winner of his family and he is a first

offender, as such he should be shown some leniency in the matter of

sentence, but I find that the drug trafficking is rising at an alarming rate in

this region, especially in the State of Punjab, which has ruined the lives of

young men and women. Drug peddlers for a small monetary consideration

make the youth to use drugs for a small time excitement/kick. The drug

peddlers have successfully destroyed the social fabric of our society and led

youth to the wrongful path. Such type of persons need to be dealt with

firmly and sternly and no sympathy can be shown to them lest that should

prove to be counter productive and result in increase drug trafficking.

Therefore, considering the quantity of contraband recovered, the accused is

not entitled to any leniency in sentence.

22. Thus, the judgment of conviction and order of sentence are

upheld whereas the appeal is found to be without any merit and the same is

dismissed accordingly.

23. Varinder Kumar - appellant/accused is stated to be on bail

granted to him by this Court. His bail is cancelled. Chief Judicial

Magistrate, Rupnagar is directed to issue arrest warrants to get him arrested

so as to make him undergo the remaining sentence of imprisonment and to

recover the amount of fine imposed upon him.

                                               (H.S. Madaan)
1.8.2022                                          Judge
chugh/Brij
                   Whether speaking / reasoned              Yes / No
                   Whether reportable                       Yes / No




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