Rajwinder Singh @ Raju vs State Of Punjab
2022 Latest Caselaw 9606 P&H

CRA-S-3593-SB-2015(O&M)                                                 -:1:-


     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH

                                         CRA-S-3593-SB-2015(O&M)
                                         Date of decision:-24.8.2022

Rajwinder Singh @ Raju

                                                                 ...Appellant
                    Versus


State of Punjab

                                                                ...Respondent


CORAM: HON'BLE MR.JUSTICE H.S.MADAAN


Present:    Mr.Amaninder Preet, Advocate(Legal Aid Counsel),
            for the appellant.

            Mr.Anmol Singh Sandhu, AAG, Punjab.


                           ****

H.S. MADAAN, J.

1. Appellant Rajwinder Singh @ Raju was tried by learned

Judge, Special Court, Patiala in case FIR No.261 dated 22.10.2012 for an

offence under Section 22 of Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereinafter referred to as 'the Act'), Police Station Kotwali,

Patiala and in terms of judgment dated 27.7.2015, he was convicted in that

case for the offence for which he was booked and in terms of order passed

on that very date, he was sentenced to undergo rigorous imprisonment for

ten years and to pay a fine of Rs.1,00,000/- and in default thereof to

undergo further rigorous imprisonment for a period of 1 year.

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

are that on 22.10.2012, a police party from Police Station Kotwali, Patiala

led by SI Baldev Singh (hereinafter referred to as the Investigating

Officer/IO) travelling in a private vehicle in connection with patrolling

and checking of suspects, was present near Old Octroi Post, Rajpura

Road, Patiala; at about 5:35 p.m., accused was spotted coming on foot

from the side of Rajpura Road and he on seeing the police party turned

back in haste; he was apprehended on the basis of suspicion and on being

inquired, he disclosed his name and other particulars; the Investigating

Officer suspected that the accused was carrying some narcotic substance

and informed him in that regard, apprising him of his legal right to get the

search conducted in presence of some gazetted officer or a Magistrate,

however, the accused reposed faith in SI Baldev Singh; his consent

statement was recorded as Ex.PA, which was thumb marked by him and

attested by ASI Gurnam Singh and HC Inderpal Singh; personal search of

the accused was conducted and from right pocket of his wearing pant

narcotic powder of white colour placed in a polythene carry bag was

recovered; the Investigating Officer separated two samples of 10 gms.

each from the recovered contraband and on being weighed the residue

came out to be 130 gms; the bulk and samples were converted into

parcels, sealed with the seal of IO having impression BS; a specimen seal

chit Ex.P1 was prepared and seal after use was handed over to ASI

Gurnam Singh; the recovered articles were taken into police possession

vide seizure memo Ex.PB attested by the witnesses. Accused was arrested

in this case as per rules. Necessary memos were prepared and formalities

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were carried out. A ruqa Ex.PD was sent to the police station, on the basis

of which, formal FIR Ex.PE was recorded at Police Station Kotwali,

Patiala. Rough site plan of the place of recovery was prepared as Ex.PG.

3. On return to the police station, the Investigating Officer

produced the accused along with the case property and witnesses before

Inspector Sukhamrit Singh Randhawa, SHO of Police Station Kotwali; the

latter verified the facts of the case and sealed the case property with his

own seal having impression 'SS'. Thereafter, the said SHO deposited the

case property with MHC Gurbinder Singh.

4. On the next day i.e. on 23.10.2012, SI Baldev Singh took the

case property from the MHC and produced the accused along with the

case property before CJM, Patiala moving an application for judicial

remand Ex.PJ and an application for inventory Ex.PK and another

application for depositing the case property in judicial Malkhana Ex.PL

were also moved. Learned CJM, Patiala compared the seals of parcels

with the specimen seal impressions and also saw and signed the case

property thereafter handing it over to SI Baldev Singh for the purpose of

depositing it in the judicial malkhana at Patiala and in that regard order

Ex.PL/1 was passed. Thereafter, SI baldev Singh deposited the bulk parcel

and one sample parcel in judicial malkhana at Patiala, whereas the other

sample parcel was handed over to MHC. The receipt issued by concerned

clerk of judicial malkhana was handed over to the MHC. The sample was

sent to the office of Chemical Examiner, Punjab on 25.10.2012 through

HC Charan Singh with seals intact. A report was received from the office

of Chemical Examiner as Ex.PM to the effect that the sample was that of

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the narcotic powder. After completion of investigation and other

formalities, challan against the accused was prepared and filed in the

Court.

5. On presentation of the challan, copies thereof were supplied

to the accused free of costs, as envisaged under Section 207 Cr.P.C.

6. On observing that prima facie charge for an offence under

Section 22 of the Act was disclosed against the accused, he was charge-

sheeted accordingly, to which, he pleaded not guilty and claimed trial.

7. During the course of its evidence, the prosecution examined

HC Charan Singh as PW1, DSP Sukhamrit Singh as PW2, SI Gurnam

Singh as PW3, HC Gurbinder Singh as PW4 and SI Baldev Singh as

PW5.

The prosecution relied upon several documents and then its

evidence was closed.

8. Statement of the accused was recorded under Section 313

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

prosecution evidence against him were put to such accused but he denied

the allegations contending that he was innocent and had been falsely

involved in this case.

9. The accused did not lead any evidence in defence.

10. The trial Court formulated following points for

determination:

(A) Whether the prosecution has duly proved conscious

possession of 150 gms. of intoxicant powder (Diphenoxylate) of the

accused?

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(B) Whether the link evidence is complete?

11. After hearing arguments, learned trial Court convicted and

sentenced the accused as mentioned above, which left him aggrieved and

he has filed the present appeal, which was taken up on 20.8.2015 when it

was admitted for regular hearing and recovery of fine was ordered to

remain stayed during the pendency of the appeal. On an application under

Section 389 Cr.P.C. having been filed by the appellant/accused for

suspension of his sentence of imprisonment during the pendency of

appeal, the same was allowed on 2.2.2017.

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

13. I have heard learned legal aid counsel for the appellant -

accused - convict, learned AAG for the State of Punjab besides going

through the record.

14. Here the witnesses of recovery, namely PW3 SI Gurnam

Singh and PW5 SI Baldev Singh, Investigating Officer, who were

members of the party, which had apprehended the accused and had

effected recovery from him fully supported the prosecution story as

regards the accused having been found in conscious possession of 150

gms. of intoxicant powder (Diphenoxylate) on 22.10.2012 at about 5:35

p.m. in the area of Old Octroi Post, Rajpura Road, Patiala. They were

cross-examined at length on behalf of the accused but they stuck to their

guns and could not be shattered on any material point. No previous

enmity between them and the accused - convict has been alleged or

proved prompted by which they might have involved the accused in this

case wrongly and deposed against him falsely to secure his conviction.

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The account given by these PWs come out to be worthy of reliance.

15. To establish the link evidence, the prosecution has examined

PW1 HC Charan Singh, who had submitted his affidavit Ex.PW1/A. He

had taken the sample parcel from MHC Gurbinder Singh on 25.10.2012

and after getting docket issued from the office of SSP, Patiala, he had

deposited it in the office of Chemical Examiner, Punjab. PW4 HC

Gurbinder Singh, who was MHC of the Police Station Kotwali in his

affidavit PW4/A has toed the line of prosecution stating that so long as

the case property remained in his possession, no tampering of seals had

taken place. Even otherwise, the report from the office of Chemical

Examiner, Punjab goes to show that the sample parcel had reached in the

office with seals intact.

16. Though learned counsel for the appellant has raised several

pleas to show that the prosecution had been unable to prove the guilt of

the accused beyond a shadow of reasonable doubt but I find that these

pleas are without any force.

17. With regard to non joining of independent witness, this plea

has been discussed in para Nos.15 to 22 of the judgment coming to the

conclusion that the Investigating Officer had tried to join independent

witness, but nobody was ready to join. It is a matter of common

knowledge that now-a-days people generally hesitate to come forward to

appear as a witness for the prosecution against the criminals apprehending

that such criminals may not turn towards them and cause harm to them or

their near relatives. Then there are hassles of going to the police station in

connection with investigation and to attend hearings in the Court,

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therefore, people mostly avoid joining the investigation and offering

themselves as witnesses.

18. In this case, no previous enmity between the accused and

witnesses of recovery has been alleged or proved prompted by which they

might have planted a false case upon the accused or deposed against him

wrongly to secure his conviction. Even otherwise, the depositions of

official witnesses are at par with that of independent witness.

Furthermore, independent corroboration is a rule of prudence and not

requirement of law. It is no where provided in any statute that

independent corroboration is a must and in absence thereof, the case of

the prosecution is to rejected outrightly.

19. One more plea put forward by learned counsel for the

appellant was that there was non-compliance of Section 50 of the Act.

Again I do not find any merit in this contention. From the statement of

PW5 SI Baldev Singh, the Investigating Officer of this case, it comes out

that he had apprised the accused of his legal right to get his search

conducted in presence of a gazetted officer or a Magistrate, who could be

summoned to the spot, however, the accused reposed faith in SI Baldev

Singh. The consent statement of accused proved on record as Ex.PA

bearing thumb marked by the accused attested by ASI Gurnam Singh and

HC Inderpal Singh also goes to show that. PW3 SI Gurnam Singh also

deposed in that regard.

Nevertheless the Apex Court in judgment State of Himachal

Pradesh Versus Pawan Kumar 2005(2) RCR(Cri.) 621 has observed that

Section 50 of the Act applies to personal search of the accused and not

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with regard to the search of bag in his possession.

20. The prosecution has proved its charge against the accused

conclusively and affirmatively. The accused could not render any

reasonable or plausible explanation for his alleged false implication nor

could he account for possession of the intoxicant powder without any

licence or permit thereby showing that he was in conscious possession of

intoxicant powder.

21. As regards the sentence part, the accused was sentenced to

undergo rigorous imprisonment for ten years, which is the minimum

prescribed sentence for possession of commercial quantity of the

contraband. Even otherwise, the appellant/accused for a pecuniary benefit

opted to play with lives and health of people of the area by making them

addict to taking drugs. 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 increased drug trafficking. Therefore, the sentence awarded to the

appellant/accused is not found to be on very high side and does not call

for any reduction.

22. The impugned judgment of conviction and order of sentence

passed by the trial Court are well reasoned one, based upon proper

appraisal and appreciation of evidence and correct interpretation of law.

There is no illegality or infirmity therein. The said 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.

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23. Appellant Rajwinder Singh @ Raju is stated to be on bail

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

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

so as to make him undergo the remaining sentence.

24.8.2022                               (H.S.MADAAN)
Brij                                       JUDGE


                   Whether reasoned/speaking :                 No / Yes

                   Whether reportable                :         No / Yes




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