Rajinder vs State Of Punjab
2022 Latest Caselaw 13848 P&H

CRA-S-815-2017(O&M)                                                     -:1:-


     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH

                                         CRA-S-815-2017(O&M)
                                         Date of decision:-1.11.22
Rajinder
                                                                 ...Appellant
                    Versus

State of Punjab

                                                                ...Respondent

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

Argued by: Mr.Mukesh Tomar, Advocate for
           Mr.S.S. Brar, Advocate
           for the appellant.

            Mr.G.S. Dhillon, AAG, Punjab.

                           ****
H.S. MADAAN, J.

1. This appeal is directed against the judgment dated 18.11.2016

passed by learned Judge, Special Court, Jalandhar vide which on

conclusion of trial appellant Rajinder, an accused in case FIR No.183

dated 14.8.2013 for an offence under Section 22 of Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'),

Police Station Navi Baradari, Jalandhar, was convicted for the offence

under Section 22(c) of the Act and in terms of order of that very date, he

was sentenced to undergo rigorous imprisonment for 10 years and to pay a

fine of Rs.1,00,000/- and in default thereof to further undergo rigorous

imprisonment for a period of one year.

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

are that on 14.8.2013, a police party from Police Station Navi Baradari,

Jalandhar headed by ASI Sewa Singh (hereinafter referred to as the

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Investigating Officer/IO) was going from Ladowali Road to Railway

Colony, Double Storey Quarters, Jalandhar in connection with patrolling;

when the police party had reached near cremation ground, the accused

carrying a polythene bag in his hand, was spotting coming on foot from

Guru Nanakpura side; he was apprehended on the basis of suspicion and

his name and other particulars were inquired about, which he disclosed;

the IO told the accused that he suspected him to be in possession of some

contraband and as such wanted to carry out his search; the IO informed

the accused that he had a legal right to get the search carried out in

presence of some gazetted officer or a Magistrate but the accused reposed

faith in the IO; a consent memo in that regard was prepared, executed by

the accused; the IO then proceeded to search the polythene bag being

carried by the accused in his hand, which was found to contain intoxicant

powder; the IO drew two samples of 5 grams each from the recovered

intoxicant powder and on being weighed, the residue intoxicant powder

came out to be 150 grams; the two samples and the residue were

converted into parcels, sealed by the IO with his seal having inscription

'SS'; separate Form M-29 was prepared at the spot and seal after use was

handed over to HC Harbhajan Lal; then the sample parcels, bulk parcel

and Form M-29 were taken into possession vide recovery memo.

The IO sent ruqa to the police station, on the basis of which

formal FIR was recorded. The accused was arrested in this case as per

rules and requisite documents were prepared. The Investigating Officer

prepared rough site plan of the place of recovery and recorded statements

of witnesses.

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On return to the police station, the Investigating Officer

produced the case property and Form M-29 as well as accused before

Inspector Sukhdev Singh, SHO of the police station, who verified the

facts and put his own seal having inscription 'SS' on two samples, one

bulk parcel as well as Form M-29. Then Inspector Sukhdev Singh

deposited the case property with MHC of the police station.

On the next day, the sample parcels and bulk parcel along

with the accused were produced before the Illaqa Magistrate by the IO

and learned Illaqa Magistrate verified the case property made his

endorsement 'seen' and appended his signatures passing an order to return

the case property to the IO, who accordingly re-deposited the same with

MHC for safe custody, whereas accused was sent to judicial custody.

During the course of investigation, a sample parcel was sent to the office

of Chemical Examiner, Kharar and as per report received therefrom as

Ex.PZ, it was found to be have 'Diphenoxylate' which is an intoxicant

substance.

After completion of investigation and other formalties,

challan against the accused was prepared and filed in the Court.

3. On presentation of the challan, copies of the documents

relied upon therein were supplied to the accused free of costs, as

envisaged under Section 207 Cr.P.C.

4. Then on observing that prima facie charge for an offence

under Section 22(c) of the Act was disclosed against the accused, he was

charge-sheeted accordingly, to which, he pleaded not guilty and claimed

trial.

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

Inspector Sukhdev Singh as PW1, ASI Harbhajan Lal as PW2, Constable

Hardeep Singh as PW3, HC Balwant Singh as PW4 and ASI Sewa Singh

as PW5.

With that the prosecution evidence stood closed.

6. After closure of prosecution evidence, statement of the

accused was recorded under Section 313 Cr.P.C., in which all the

incriminating circumstances in the prosecution evidence appearing

against such accused were put to him but he denied the allegations

contending that he was innocent and had been involved in this case

falsely.

7. Accused did not lead any evidence in his defence.

8. The trial Court had formulated the following points for

determination:

(i) Whether accused Rajinder was found in conscious possession of

160 grams intoxicant powder containing Narcotic Drugs &

Psychotropic Substance 'Diphenoxylate' without any valid permit

or licence?

(ii)Whether non joining of independent witness is fatal to the

prosecution case?

(iii)Whether investigating officer has not complied with the mandatory

provisions of Section 50 of the NDPS Act, if so its effect?

(iv)Whether prosecution has been able to prove the guilt of the

accused beyond all reasonable doubt?

9. After hearing arguments, learned trial Court convicted and

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

he has filed the present appeal, which was taken up on 1.3.2017, when it

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

remain stayed. 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 vide

order dated 29.4.2019 and remaining sentence of the appellant was

suspended during the pendency of the appeal and he was admitted to bail,

subject to his furnishing personal and surety bonds to the satisfaction of

learned CJM, Jalandhar.

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

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

convict, learned Assistant Advocate General for the State of Punjab

besides going through the record.

12. Here ASI Sewa Singh, who was heading the police party,

which had apprehended the accused and effected recovery from him

appearing as PW5 and PW2 ASI Harbhajan Lal, who was member of the

said police party had fully supported the prosecution story with regard to

accused having been found in conscious possession of contraband on

14.8.2013 in the area of near cremation ground within the jurisdiction of

P.S. Navi Baradari, Jalandhar. 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

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him falsely to secure his conviction. The account given by these PWs

come out to be worthy of reliance.

13. The link evidence has been provided by Inspector Sukhdev

Singh PW1 before whom the case property was produced by IO soon

after the recovery, PW4 HC Balwant Singh, with whom the case property

had been deposited and PW3 Constable Hardeep Singh, who had taken

the sample parcel to the office of Chemical Examiner, Kharar. From the

statements of these PWs, it comes out that no tampering with the case

property had taken place and the sample parcel had reached at the office

of Chemical Examiner, Kharar with seals intact. Report from the office of

Chemical Examiner, Kharar also goes to show that. This report further

disclosed that on analysis the recovered powder was found to be

containing intoxicant substance 'Diphenoxylate'.

14. The accused has simply denied the recovery from him

without rendering any reasonable or plausible explanation for his alleged

false implication in this case. As has been observed supra, the IO and the

witnesses of recovery are not shown to have any previous enmity with

the accused prompted by which, they might have involved the accused in

this case falsely or depose against him to secure his conviction. False

plantation is a very serious crime and the police officers, who are

government officials are well aware of indulging in such type of acts,

which entail not only strong disciplinary action but criminal prosecution

also. It is not for nothing that the police officials would tread such

dangerous path of wrongly involving an innocent person in serious crime

of drug peddling. Accused is not shown to have submitted any written

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representation to the higher authorities against his alleged false

implication in this case. He has not led any evidence in defence to support

his version. As a matter of fact, he has no plausible explanation at all.

15. Learned counsel for the appellant has attacked the

prosecution case on three grounds, which are being taken up one by one.

The first ground of attack is non-compliance of Section 50.

However, such provision does not come into play in this case because the

recovery had been effected from the polythene bag, which the accused

was carrying in his hand at the relevant time and not as a result of his

personal search. 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 with

regard to the search of bag in his possession.

The second ground of attack was that there had been delay of

7 days in sending the sample to the office of Chemical Examiner, Kharar.

Again this submission is without force. The Apex Court in Hardip Singh

Versus State of Punjab, 2008(4) RCR(Criminal)97 while dealing with a

case relating to recovery of 7 kgs. of opium when samples were sent to

chemical examiners after 40 days of recovery, however, there was no

evidence that samples were tampered with or any prejudice was caused to

the accused, the delay was not held to be fatal to the case.

The third ground was that there are discrepancies in the

statements of witnesses of recovery as regards time i.e. when the accused

was spotted; when recovery was effected from him; when ruqa was sent

to the police station and when the police party had returned to the police

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station etc. as well as the distance between the place of recovery and

police station; the distance from which the accused was spotted etc. But

these discrepancies are with regard to inconsequential details of the

incident, which do not go to the root of the matter. Both the witnesses of

recovery were unanimous as regards the accused having been found in

possession of 160 grams of intoxicant powder.

16. As regards the order dated 28.5.2019 passed by a Co-ordinate

Bench of this Court in CRM-M-5074-2019 in case titled 'Joginder Singh

Versus State of Punjab', referred to by learned counsel for the appellant,

the same does not find application to the present case due to different

facts and circumstances and the context in which such observations had

been made.

17. 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.

18. 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

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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. The sentence awarded to the

appellant/accused is the minimum for possession of contraband

amounting to commercial quantity, which is the case here. Neither any

reduction in the sentence is permissible nor the same ought to to be

granted in this case.

19. 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.

20. Appellant Rajinder is stated to be on bail granted to him by

this Court. His bail is cancelled. Chief Judicial Magistrate, Jalandhar is

directed to issue arrest warrants to get him arrested so as to make him

undergo the remaining sentence.

1.11.2022                               (H.S.MADAAN)
Brij                                       JUDGE


                    Whether reasoned/speaking :                No / Yes

                    Whether reportable               :         No / Yes




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