Rajinder Singh vs State Of Punjab
2022 Latest Caselaw 15847 P&H

   CRA-S-1247-SB-2008 (O&M)                                               1

     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH
SR. No.202

                                   CRA-S-1247-SB-2008 (O&M)
                                    Date of Decision:06.12.2022
Rajinder Singh

                                                                  ...Appellant
                                   Versus
State of Punjab
                                                                ...Respondents

CORAM: HON'BLE MR. JUSTICE N.S. SHEKHAWAT

Present:    Mr. H.S. Oberoi, Advocate (legal aid counsel) and
            Mr. D.R. Gurna, Advocate,
            for the appellant.

            Mr. M.S. Bajwa, DAG, Punjab.

N.S. SHEKHAWAT, J.

The instant appeal has been preferred assailing the judgment of

conviction dated 29.05.2008 and order of sentence of even date passed by

the learned Special Court, Bathinda, vide which the appellant has been

convicted for the offence under Section 15 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and sentenced

to undergo rigorous imprisonment for 02 years and 06 months with fine of

Rs.5,000/- and in default of payment of fine, to further undergo rigorous

imprisonment for five months.

Brief facts of the case are that on 04.06.2003, a police party

headed by ASI Iqbal Singh was present at the Link Road, at that time

Jagroop Singh son of Sardara Singh, resident of Basti No.2, Bir Talab was

talking to the police party. Then a person was seen coming on a bicycle,

however, on seeing the police party, he became perplexed and tried to turn

the bicycle backwards. He was carrying a white plastic bag on the carrier of

1 of 9

his bicycle. Complainant-ASI Iqbal Singh with the help of other police

officials caught him and inquired about his name and address. He disclosed

his name and address as Rajinder Singh son of Gainda Singh caste Majbhi

resident of Tarkhan Wala, P.S. Raman. The complainant raised his

suspicion that accused-Rajinder Singh was carrying some contraband in the

bag kept on the carrier of his bicycle and his search was to be conducted as

per the law. Accused-Rajinder Singh had the right to get himself searched

either before a Gazetted Officer or a Magistrate. However, accused-

Rajinder Singh opted to get his search conducted in the presence of a

Gazetted Officer. ASI Iqbal Singh talked to Manohar Lal, DSP, City

Bathinda on mobile phone and requested him to come at the spot. After

about 25 minutes, Manohar Lal, DSP City Bathinda reached at the spot in

official gypsy along with his personal staff and disclosed his identity to the

accused. He informed the accused that he was a Gazetted Officer and

wanted to get his search conducted. On this, accused-Rajinder Singh gave

his consent to get his search conducted before the DSP and the memos in

this regard were prepared. Rajinder Singh also affixed his left thumb

impression on the same and the witnesses had put their respective

attestations. The complainant ASI Iqbal Singh conducted the search of the

above-said Rajinder Singh on the directions of DSP Manohar Lal The

plastic bag, which was kept on the carrier of the accused's bicycle, was also

opened and searched and poppy husk was recovered from the same. Two

samples of 250 gms each were drawn from the recovered poppy husk and

the samples were prepared separately and the remaining poppy husk was

weighed to be 19 kg 500 gms. Again the remaining part of the recovered

poppy husk was kept in the plastic bag and was sealed with the seal bearing

2 of 9

impression "IS" and the sample of the seal was separately prepared. After

use, the seal was handed over to Jagroop singh son of Sardara Singh. The

sample parcels and the plastic bag containing poppy- husk duly sealed along

with the bicycle were taken into possession vide separate memos by DSP

Manohar Lal and the witnesses signed the memos. Accused-Rajinder Singh

also affixed his left hand thumb impression on the said memos and Ruqa

was sent to the police for getting the case registered against accused

Rajinder Singh and the FIR in question was registered against him.

After reaching the police station, the case property and other

recovered articles were presented to Baljinder Kumar, SHO, who after

verifying the facts of the case had put his seal bearing impression "BK" and

also prepared a memo of recovery of the said articles. The accused along

with the case property was produced before the learned Chief Judicial

Magistrate. Again one representative sample from the bulk was drawn

before the Chief Judicial Magistrate and the said sample seal as well as the

bulk were sealed with the seal impression "BK". A sample drawn at the spot

as well as the sample, which was taken in the presence of CJM, were sent to

the Chemical Examiner for analysis. The investigation was concluded and

thereafter the challan was presented against the accused in the competent

court. The learned trial Court opined that a prima face case was made out

against the accused/appellant under Section 15 of the NDPS Act and he was

accordingly charged by the learned trial Court.

In support of the case of the prosecution, the prosecution

examined four witnesses and closed its evidence. The prosecution

examined PW-1 ASI Iqbal Singh, who supported the case of the

prosecution, as narrated in the FIR. He also exhibited the consent memo as

3 of 9

EX.PB, which was duly thumb marked by the accused as well as Jagroop

Singh and was also attested by DSP Manohar Lal and HC Baldev Singh.

He was also a witness to the recovery and preparation of samples for

sending the same to the FSL. He clearly stated that sample seal Ex.P1 was

prepared and was handed over to Jagroop Singh, a private witness, after use.

After making the recoveries, he produced the accused along with the

recovered articles to the SHO and memo Ex.PH was prepared in this regard

which was signed by him. The SHO kept the case property with him.

Similarly, PW-2 Constable Surinder Pal Singh tendered his affidavit Ex.PK

and supported the case of the prosecution. Inspector Baljinder Kumar, SHO,

Police Station City Mansa was examined as PW-3, before whom the

accused was produced along with the case property. He clearly stated that

the parcels were duly sealed with the seal mark "IS" and tallied with the

sample seal produced. He also affixed his own seal mark "BK" on all the

parcels and sample seal was kept intact and the case property was taken into

possession vide memo Ex.PH. He also stated that on 06.06.2003, the case

property was sent to the office of Chemical Examiner, Patiala, through

C. Surinder Pal Singh and so long as the case property remained in his

custody, he did not temper with it nor allowed some one to temper with the

same. The prosecution further examined PW-4 DSP Manohar Lal, who

reached at the spot and on his direction, the search was conducted and the

contraband and other articles were recovered from the present appellant.

After the prosecution concluded its evidence, the

accused/appellant was called upon to reply to the incriminating evidence

tendered by the prosecution and in his statement under Section 313 Cr.P.C.,

he stated that nothing had been recovered from him and he had been falsely

4 of 9

implicated in this case. The police had arrested him many times just to

implicate him in false cases. He approached the police through Sarpanch

and other respectable not to harass him but they falsely implicated him in

the preset case. However, the appellant did not lead any defence evidence.

The learned trial court after appreciation of the facts and

evidence brought on record concluded that the prosecution has successfully

proved its case, bringing home the guilt against the accused/appellant.

Consequently, the appellant was convicted and sentenced as noted above.

Hence, the present appeal.

Learned counsel for the appellant has submitted that there are

material contradictions in the statements of various prosecution witnesses.

He has further submitted that even the mandatory provisions of the NDPS

Act had not been complied with in the instant case. Still further, the link

evidence was completely missing in the instant case. The seal was handed

over to the independent witness after use. However, during the course of

the trial, the said independent witness was not examined by the prosecution

and the accused/appellant is liable to be acquitted on this ground only. Still

further, as per the case of the prosecution, it was PW-1 ASI Iqbal Singh,

who had called the Gazetted Officer, i.e. DSP Manohar Lal at the spot.

However, PW-1 admitted in his cross-examination that he did not remember

the mobile number of the said DSP and this clearly establishes that the

entire proceedings of search and seizure were conducted in the police

station itself and a false case was planted on the present appellant.

On the other hand, learned counsel for the State, while referring

to the findings recorded by the learned trial Court, submitted that the said

submissions had already been dealt with by the learned trial court and the

5 of 9

impugned judgment of conviction and order of sentence are liable to be

upheld by this Court.

I heave heard the learned counsel for the parties at length and

perused the case file carefully.

Learned counsel for the appellant submitted that in the instant

case, it is apparent that when accused/appellant was nabbed by the police,

Jagroop Singh, an independent witness, was present at the spot and even the

seal was handed over to him after use. However, the said witness had not

been examined by the prosecution. This Court finds no force in the

arguments raised by learned counsel for the appellant. In fact, in a case

under NDPS Act, non-examination of an independent witness alone would

not raise any doubt about the prosecution case, if the prosecution had been

able to lead sufficient evidence establishing the complicity of the accused in

the commission of the crime. Simply because of the fact that an independent

witness had not been examined, being won over by the accused, the case of

the prosecution cannot be rejected. The testimonies of the official witnesses

have to be considered in absence of the independent corroboration if such

testimonies inspire confidence, the same can be believed to convict the

accused. In the instant case, the accused/appellant had not been able to

prove any malice or motive on the part of the official witnesses to depose

falsely against him and their testimonies cannot be discarded on the sole

ground that they are the official witnesses.

The prosecution examined PW-1 ASI Iqbal Singh, who had

supported the case of the prosecution in totality and withstood the test of

cross-examination. Similarly, the prosecution examined PW-4 DSP

Manohar Lal and even his testimony could not be shattered in any manner.

6 of 9

Thus non-examination of the independent witness would have no impact on

the facts of the case, which otherwise stood proved from the testimonies of

the official witnesses.

Learned counsel for the appellant further submitted that the

mandatory provisions of the NDPS Act were not complied with by the

prosecution and the appellant is liable to be acquitted by this Court.

However, during the course of arguments, learned counsel for the appellant

could not satisfy this Court with regard to the alleged violations. Even

otherwise, this Court has perused the evidence carefully and finds that the

mandatory provisions of Section 42 and 50 of the NDPS Act have been

dealt with and the findings recorded by the learned trial Court in this regard

are liable to be upheld by this Court. Still further, the learned trial Court had

rightly held that it was apparent from the statements of PW-2 C. Surinder

Pal Singh and PW-3 Inspector Baljinder Kumar, SHO, City Mansa as well

as from the contents of the report of the Chemical Examiner Ex.PX. that the

samples and the sample seal chit were deposited with the Chemical

Examiner, Patiala, in an intact condition by PW-2 Constable Surinder Pal

Singh and after analysis, it was found to be poppy husk. Even otherwise, I

have gone through the learned trial Court record carefully and the findings

recorded by the learned trial Court are based on due appreciation of

evidence and the settled law. Thus, keeping in view the facts and

circumstances of the case, the impugned judgment of conviction dated

29.05.2008 is ordered to be upheld.

At this stage, learned counsel for the appellant submitted that

the appellant is facing the agony of trial/appeal since 04.06.2003 and also

remained in the custody for sufficient long period and he is the sole bread

7 of 9

winner of the family. Thus, he prayed that a lenient view may be taken in

the matter while awarding the sentence.

The submissions made by the learned counsel for the appellant

have been opposed by the learned counsel for the State, who submitted that

two more FIRs , i.e. FIR No.141 dated 25.06.2017 under Section 15 of the

NDPS Act and FIR No.182 dated 21.07.2018 under Section 61 of the Excise

Act and Section 25 of the Arms Act registered at Police Station Ramna,

Bathinda have also been registered against the present appellant and he does

not deserve the sympathy of this Court.

It is true that the above-said two FIRs were also registered

against the present appellant, however, the fact remains that the contraband

recovered from the present appellant was a non-commercial quantity. Even

the learned State counsel has produced the custody certificate dated

18.05.2022, which shows that appellant has undergone 03 months and 19

days of actual custody.

Keeping in view the facts and circumstances of the case as

noted above, coupled with the facts that the appellant is facing the agony of

trial/appeal since the last more than 19½ years and custody period as well

as his antecedents and quantum of recovery; sentence awarded to the

appellant is reduced to the period already undergone by him. However, the

amount of total fine imposed upon the appellants is enhanced to

Rs.20,000/-. which shall be deposited with the learned trial Court within a

period of 03 months from today, failing which the appellant shall undergo

further imprisonment of 06 months.

In view of the above, the impugned judgment of conviction

dated 29.05.2008 passed by the learned Special Court, Bathinda, is upheld

8 of 9

and order of sentence is modified to the extent indicated above.

With the above modifications, the present appeal stands partly

allowed in the above terms. Pending application(s), if any, shall also stand

disposed of.

Case property, if any, be dealt with, and, destroyed after the

expiry of period of limitation. The trial Court record be sent back forthwith.

                                                       (N.S. SHEKHAWAT)
06.12.2022                                                    JUDGE
mks


                     Whether Speaking/Reasoned: YES / NO
                     Whether Reportable:              YES / NO




                                       9 of 9