Punjab-Haryana High Court
Kuldip Singh vs State Of Punjab on 9 September, 2022
CRA-S-2709-SB-2013 and CRA-S-2165-SB-2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) CRA-S-2709-SB-2013 (O&M)
Kuldip Singh
...Appellant
Versus
State of Punjab
...Respondent
(2) CRA-S-2165-SB-2012 (O&M)
Balwan Singh
...Appellant
Versus
State of Punjab
...Respondent
Date of pronouncement: 09.09.2022
CORAM: HON'BLE MR.JUSTICE H.S. MADAAN
Present: Mr. Navneet Jindal, Legal Aid Counsel for the appellant
in CRA-S-2709-SB-2013.
Mr. Harish Kumar Verma, Advocate for the appellant
in CRA-S-2165-SB-2012.
Mr. G.S. Dhillon, AAG, Punjab.
*****
H.S. MADAAN, J.
1. By this judgment, I intend to dispose of above mentioned
two appeals arising out of the same judgment. Appeal No.CRA-S-2709-
SB-2013 has been filed by appellant-accused Kuldip Singh whereas,
appeal No.CRA-S-2165-SB-2012 has been filed by appellant-accused
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Balwan Singh.
Appellant Kuldip Singh and Balwant Singh, both of them
being accused in FIR No.9 dated 07.03.2010, for offences under Sections
15 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(for short 'the Act'), registered with Police Station Kathgarh faced trial by
Judge, Special Court, SBS Nagar on the allegations that on 07.03.2010 at
about 1.30 pm in the area of turning point of village Chahla, they were
found in conscious possession of 70 kgs of poppy husk without any
permit or license. Vide judgment dated 08.05.2012, both the accused were
convicted for an offence under Section 15 of the Act and in terms of the
order passed on that very day, they were sentenced to undergo undergo
rigorous imprisonment (RI) for a period of 10 years each and to pay a fine
of Rs.1 lakh each; in default of payment of fine, to further undergo RI for
1 ½ years each.
2. Briefly stated the facts of the case, as per prosecution story
are that on 07.03.2010, ASI Gurdial Singh (hereinafter referred to as the
Investigating Officer/IO) along with HC Parshotam Lal, HC Kuldip
Singh, HC Shinder Pal and HC Surjit Singh from Police Station
Kathgarh, District SBS Nagar, while travelling in official vehicle having
registration No.PB-32D-6715 being driven by Constable Narinder Singh
were present at turning point of village Chahla in connection with
patrolling and checking of suspicious persons; in the meanwhile, one
Daulat Ram son of Parkash Ram resident of village Rattewal, came and
he was joined with the police party; at about 1.30 pm, a truck bearing
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registration No.PB-32-F-9831 came from the side of turn of Kathgarh;
despite a signal having been given by the police party to stop the truck,
its driver turned it towards village Chahla, however, the truck was
intercepted; on being enquired, the person driving the truck disclosed his
name as Kuldip Singh son of Hazara Singh resident of Majra Jattan,
whereas the person sitting on the front seat besides the driver disclosed
his name as Balwan Singh son of Jaimal Singh, R/o Kalesar, District
Gurdaspur; two bags having contents were found to be lying on the seat
of the truck; the IO disclosed his identity to the accused, telling them that
he suspected two bags lying on seat of the truck to be containing some
contraband and wanted to search the same; he apprised the accused of
their legal right to get the search conducted in the presence of a Gazetted
Officer or a Magistrate; however, both the accused reposed faith in the
IO; consent statements of both the accused were recorded; such statement
of accused Kuldip Singh being Ex.PW3/A signed by him and that of
accused Balwan Singh Ex.PW3/B also signed by such accused; both the
statements were attested by HC Parshotam Lal and Daulat Ram;
thereafter, the IO searched the two bags lying on the seat of the truck; the
bags were found to contain poppy husk; the IO took out two samples of
250 gms each from two bags, converting those into parcels, whereas, the
residue poppy husk in each bag came out to 34 kgs 500 gms; those bags
were also converted into parcels; two bulk parcels and four sample
parcels were sealed by the IO with his seal having impression 'GS';
specimen seal impression was taken on chit Ex.PW3/C; Form No.29
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Ex.PW3/D was partly filled up at the spot; the accused could not produce
any license or permit for possession of 70 kgs of poppy husk; the case
property and truck in question were taken into police possession, vide
recovery memo Ex.PW3/E attested by witnesses; the IO handed over seal
after use to HC Parshotam Lal.
Both the accused were accordingly arrested in this case as
per rules, preparing requisite documents; the IO sent ruqa Ex. PW3/K to
the police station through Head Constable Kuldip Singh on the basis of
which formal FIR Ex.PW3/L was recorded; rough site plan Ex.PW7/A of
the place of recovery was prepared; statements of witnesses were
recorded.
On return to the police station, the IO produced both the
accused along with case property, form No.29 and truck in question
before SHO Vinod Kumar, who verified the facts and affixed his seal
having impression 'VK' on all the parcels; specimen seal impression of
seal of SHO Vinod Kumar was prepared and form No.29 was completed;
on instructions of SHO, the IO deposited the case property with MHC;
accused was lodged in lockup.
On the next day, the IO took the case property from MHC of
the police station and produced the same along with accused before
SDJM, Balachaur; he had submitted various applications in the Court,
one of such application seeking police remand being Ex.PW7/B, another
for compliance of Section 52-A of the Act Ex.PW7/C, application for
presenting the case property before learned SDJM for his perusal
Ex.PW7/D in the Court; one representative sample of 250 gms each was
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drawn from two bulk parcels, then the parcels were sealed with seal 'VK'
of SDJM, Balachaur; on instructions of SDJM, Balachaur, the IO
deposited the case property in the judicial malkhana; the order passed by
learned SDJM, Balachaur perusing the case property being Ex.PW7/E;
the IO had given intimation to the higher police officer under Section 57
of the Act on 07.03.2010 as Ex.PW7/F; during the course of
investigation, sample parcels were sent to the Office of Chemical
Examiner, Punjab Kharar and as per report Ex.PW4/B received
therefrom, it was found to be that of poppy husk.
On completion of investigation and other formalities, challan
against the accused was prepared and filed in the Court.
3. On presentation of the challan before Judge, Special Court
SBS Nagar, copies of documents relied upon therein were supplied to the
accused free of costs as provided under Section 207 Cr.P.C., and then
finding a prima facie case, charge for an offence under Section 15 of the
Act was framed against accused, to which they pleaded not guilty and
claimed trial.
4. During the course of prosecution evidence, it examined the
following witnesses:-
PW-1 HC Hussan Lal, who was working as MHC of Police
Station Kathgarh with whom the case property had been deposited on
07.03.2010 by IO and on the next day, he had handed over the case
property to the said IO for producing the same before SDJM, Balachaur
in his affidavit Ex.PW1/A deposed in that regard, contending that ASI
Gurdial Singh, the IO after producing the case property before SDJM had
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again deposited with him four sample parcels sealed with seals having
impression 'GS' and 'VK' and two representative samples of 250 gms each
and on 12.03.2010, he had handed over two sample parcels of 250 gms
each along with docket to Constable Charan Dass for taking those to the
office of Chemcial Examiner, Kharar. Constable Charan Dass accordingly
did so and on return handed over receipt to him. He has contended that so
long as the case property remained in his possession, neither he tampered
with the same nor he allowed anybody else to do so.
PW-2 Constable Charan Dass, since promoted as Head
Constable, the carrier of sample parcels to the office of Chemical
Examiner, Punjab Kharar, a formal witness in his affidavit Ex.PW2/A
testified that during the period the sample parcels remained with him, no
tampering therewith had taken place.
PW-3 ASI Parshotam Lal a witness of recovery supported the
prosecution story on material aspects.
PW-4 Sh. Surinder Mohan Sharma, JA, DTO Office,
Nawanshahr had brought the summoned record regarding NDR No.4300
dated 13.12.2004 issued by their office in the name of Kuldip Singh son
of Hazara Singh, resident of Mazara Jattan, District SBS Nagar for
scooter LMV valid upto 12.12.2007 and that on 16.04.2010, the police
had submitted an application regarding verification of the license on
which he had made endorsement Ex.PW4/A.
PW-5 SI Vinod Kumar before whom the IO had produced the
accused along with case property and witnesses after recovery and who
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after verification had put his own seal on the sample parcels and bulk
parcels deposed regarding his part as detailed earlier, stating that on
completion of investigation, he had prepared the challan against the
accused for the purpose of filing that in the Court.
PW-6 Sh. Naveen Kumar stated that he is owner of the truck
No.PB32-F-9831 where he had employed Kuldip Singh son of Hazara
Singh as a driver whereas Balwan Singh son of Jaimal Singh was cleaner
on that truck. He further deposed that he paid Rs.3000/- per month as
salary to driver Kuldip Singh and Rs.1500/- per month to Balwan Singh.
Going further, this witness stated that on 01.03.2010, the aforesaid driver
and cleaner had loaded plastic roll in the truck from Ansron. Such articles
belong to Max India and were to be taken to Gujarat. On 07.03.2010, they
had brought baardana for the Ambuja cement. He identified both the
accused present in the Court, stating that his statement was recorded and
in that had brought the truck in question which was parked in the Court
Complex. He was cross-examined on behalf of the accused.
Subsequently, an application U/s 311 Cr.P.C. was filed on
behalf of accused Balwan Singh for recalling of PW-6 Naveen Kumar
and two more witnesses, which was accepted and Naveen Kumar was
summoned for his cross-examination on behalf of accused Balwan Singh.
He had put in appearance in the Court. On 09.01.2012, when he made a
summersault from his earlier deposition in the Court, stating that he did
not know accused Balwan Singh and he had not employed him as a
cleaner on his truck. At request of Addl. PP, he was declared a hostile
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witness and permission was granted to Addl. PP to cross-examine the
witness, which he availed of.
PW-7 SI Mohd. Umair Saquib, who had registered the formal
FIR on the basis of ruqa sent by ASI Gurdial Singh deposed in that
regard, stating that after registration of FIR, he had sent a copy of FIR
along with ruqa back to ASI Gurdial Singh through HC Kuldip Singh
besides sending special report to higher police officer and Illaqa
Magistrate through Constable Charan Dass. He stated that on 29.03.2010,
the investigation of the case was entrusted to him, during the course of
which, he had recorded statements of various witnesses including owner
of the truck and that on receipt of report of Chemical Examiner
Ex.PW4/B, SI/SHO Vinod Kumar had prepared the challan against the
accused.
PW-8 Sh. Ravi Dutt, Clerk, DTO Office, SBS Nagar brought
the record with regard to ownership of truck bearing No.PB-32-F-9831,
stating that it stands in the name of Naveen Kumar son of Ram Parkash,
R/o H.No.32, Ward No.9, Balachaur and on police verification, he had
made report in that regard, vide his endorsement.
PW-9 ASI Gurdial Singh who was heading the police party
which had intercepted the truck and found the accused in conscious
possession of the contraband deposed in that regard, supporting the
prosecution story on material aspects, proving various documents. He
further deposed with regard to the investigation conducted by him in this
case.
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PW Daulat Ram was given up as having been won over by
the accused by Addl. PP for the State.
With that, the prosecution evidence got concluded.
5. Statements of both the accused were recorded under Section
313 Cr.P.C., in which all the incriminating circumstances appearing in
prosecution evidence against the accused were put to them but they
denied the allegations contending that they were innocent and had been
falsely involved in this case.
Accused Kuldip Singh raised a plea that a false case has been
planted upon him after picking him up from his house at 11.30 am and no
recovery had been effected from him, whereas plea taken up by Balwan
Singh was that a false case has been foisted upon him and no recovery
was effected from him. He had taken lift from Ropar to Balachaur
(Nawanshahr) in truck in question. He had no knowledge that as to what
was lying in the truck and he had no relation with the owner and driver of
the truck. His house was situated at 200 kms from Balachaur and he had
come to meet his relative near Ropar.
6. During their defence evidence, accused Balwan Singh
examined one Surinder Singh son of Jaspal Singh as DW-1. This witness
stated that he know accused Balwan Singh son of Jaimal Singh, resident
of Kalesar, District Gurdaspur and on 07.03.2010, accused Balwan Singh
had taken lift on a truck at Ropar at about 2 pm; Balwan Singh had come
to meet him in the morning at his village; Balwan Singh was his close
friend and he was with Balwan Singh at the time when he took lift from
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Ropar to Nawanshahr. He stated that he did not know the owner or driver
of the truck.
With that, the defence evidence of the accused stood closed.
7. After hearing arguments, learned trial Court convicted and
sentenced the accused as mentioned supra.
8. Feeling aggrieved by the said judgment of their conviction
and order of sentence, accused/appellants had approached this Court by
way of filing the appeals. Notice of appeals was given to the State, which
has put in appearance. The appeals were Admitted for hearing. On
applications under Section 389 Cr.P.C., having been filed, remaining
sentence of the appellants was suspended on their furnishing requisite
bonds to the satisfaction of CJM, SBS Nagar.
Now the appeals have come up for final hearing.
9. I have heard learned counsel for the appellants/accused,
learned State counsel besides going through the record.
10. The main thrust of the argument by learned counsel for the
appellant Balwan Singh was that PW-6 Naveen Kumar, owner of the
truck during his cross-examination on behalf of accused Balwan Singh
had stated that he does not know Balwan Singh and had not employed
him as cleaner on his truck, therefore, the story set up by the prosecution
that Balwan Singh was there on the truck at the time of recovery in the
capacity of a cleaner becomes doubtful and the version that he had taken
lift in the truck which is duly proved from statement of DW-1 Surinder
Singh should be accepted and he be acquitted of the charge framed
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against him.
Whereas learned counsel for appellant Kuldip Singh had
stated that Kuldip Singh is not proved to be working as a driver of the
truck in view of the statement of Sh. Surinder Mohan Sharma, JA, DTO
Office, Nawanshahr. The driving license issued to Kuldip Singh
authorizes him to drive scooter and LMV only. It being so, there is no
question of the owner of truck having employed him as a driver on truck
which is a heavy vehicle and as a matter of fact, Kuldip Singh had been
picked up by the police from his house and thereafter, involved in this
false case.
Whereas, learned State counsel has countered the argument
stating that the involvement of both the accused in the case and that they
were in a joint conscious possession of the contraband recovered from
them stands duly proved and no second thought in the matter is possible.
After considering the rival contentions, I do not find any
merit in the arguments advanced by learned counsel for the appellants.
During the course of investigation, the police had recorded statement of
Naveen Kumar, owner of the truck who had categorically stated that he
had employed Kuldip Singh as a driver and Balwan Singh as a cleaner on
his truck. When his statement was recorded in the Court for the first time,
he had stood by the statement made by him to the police categorically
deposing in that regard. He had been cross-examined on behalf of
accused by Sh. H.K. Bhambi, Advocate on behalf of the accused, in
which he had stated that he had not maintained any record showing
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accused to be his driver and conductor or payment of salary to them. He
had denied the suggestion that he had deposed falsely. However, it
appears that accused somehow managed to influence Naveen Kumar in
making statement favourable to them and when for a technical reason, he
was recalled for cross-examination on behalf of accused Balwan Singh,
he made a summersault and stated that he does not know Balwan Singh
accused, present in the Court and had not employed him.
After being declared as a hostile witness, when he was cross-
examined by Addl. PP for the State, he admitted himself to be owner of
the truck bearing No.PB32-F-9831 from which the contraband had been
recovered. He admitted having appeared as a witness in the Court on
02.09.2011 but denied having stated that he had employed Balwan Singh
as a cleaner. When he was confronted with part of his statement where he
had stated so, he denied having made such statement. The conduct of
such type of person who denies having made statement in the Court
deserves condemnation but he deserves to be dealt with strictly. It is
really surprising that after appearing in the Court and getting his
statement recorded, he had the guts to deny having made such statement.
That shows his utter disrespect and disregard for the Court. Even
otherwise, it comes out that he had denied having employed Balwan
Singh as a cleaner for some extraneous reason and when his statement is
seen in whole, it comes out that Balwan Singh was in his employment
and was present in the truck in his capacity as a cleaner. The story that he
had taken a lift from Ropar to Nawanshahr is least convincing and seems
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to have been fabricated, just to escape the criminal liability. The statement
of DW1 in support of such version also does not inspire confidence. He
comes out to be procured witness owed to help accused Balwan Singh in
the matter. If the defence version was so truthful on coming to know
about the arrest of accused Balwan Singh in this case, the natural conduct
of Surinder Singh would have been to make representations to the higher
police officers or meet them in company of other respectables to agitate
that Balwan Singh had just taken a lift on the truck and had been
wrongly involved in this case but as admitted by him in his cross-
examination, he did not did so. It seems highly unlikely that a person
belonging to Gurdaspur district coming to meet his friend at village Singh
Bhagwantpur would take a lift from Ropar to Nawanshahr in a truck
instead of boarding a bus or other passenger vehicle for returning to his
residence.
11. As far as Kuldip Singh is concerned, Naveen Kumar had
stated that he had employed him as a driver. Kuldip Singh and Balwan
Singh when apprehended, Kuldip Singh was driving the truck and
Balwan Singh was sitting on the front seat. The story set up by Kuldip
Singh that he had been picked up from his house and a false case was
planted upon him also does not come out to be worthy of acceptance. No
evidence has been led by such accused in support of that contention. It is
not the case of any of the accused that they had any previous enmity with
the official witnesses of recovery who might have ganged up against
them to plant a false case upon such accused and depose in the Court to
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secure their conviction.
The prosecution by bringing enough cogent, convincing,
reliable evidence has been able to prove its charge against the accused
beyond a shadow of reasonable doubt. The defence version set up by the
accused does not come out to be acceptable. The plea raised on behalf of
appellant/accused Kuldip Singh that he holds license only for driving a
scooter or LMV only and therefore could not have been employed as a
driver puts owner of the truck in a dock on that score as to how he had
handed over his truck to a person who was not authorized to drive that
type of vehicle.
12. Learned counsel for appellant Kuldip Singh had referred to
judgment Naresh Kumar @ Nitu Vs. State of Himachal Pradesh
(2017) 3 RCR (Criminal) 852. That judgment is not applicable due to
different facts and circumstances. Both the accused have failed to account
for possession of contraband and in terms of Sections 35 and 54 of the
Act. They are to be taken in conscious possession of 70 kgs of poppy
husk recovered from the truck in which Kuldip Singh was driver and
Balwan Singh was cleaner. Both of them have failed to account for
possession of contraband. Similarly the other judgment Hanif Khan Vs.
Central Bureau of Narcotics, (2019) 4 RCR (Criminal) 250 does not
find application in the present case.
13. With regard to judgments referred to on behalf of accused
Balwan Singh, Nirmal Singh Vs. State of Punjab, 2003(4) RCR
(Criminal) 132, Jagtar Singh Vs. State of Punjab, 2008 (4) RCR
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(Criminal) 708, Mella Singh Vs. State of Punjab, 2003 (3) RCR
(Criminal) 762, Sorabkhan Gandhkhan Pathan & Anr. Vs. State of
Gujarat, (2004) 13 SCC 608 and Sanjeet Kumar Singh @ Munna
Kumar Singh Vs. State of Chhattisgarh in CRA-871-2021 decided on
30.08.2022. Those are also not applicable since in view of the detailed
discussion above, it has been concluded that Balwan Singh was employed
on the truck as a cleaner and story set up by him that he had taken a lift
for going from Ropar to Nawanshahr his highly unconvincing, as such
not acceptable.
14. The impugned judgment of conviction passed by the trial
Court is quite detailed, well reasoned, based upon proper appraisal of
evidence and correct interpretation of law. There is no illegality or
infirmity therein. The accused were rightly convicted for offence under
Section 15 of the Act, keeping in view the fact that the contraband
recovered from conscious possession of the appellant amounts to
commercial quantity.
The trial Court has awarded minimum punishment to them
which is prescribed for the offence. There is certainly no scope for
reduction in the sentence and further, the act and conduct of the accused
in indulging in drug trafficking and having been found in conscious
possession of the huge quantity of contraband does not make them
entitled to any leniency.
15. The appeals are found to be without merit and same are
hereby dismissed accordingly.
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16. As a result, the orders passed by this Court suspending their
sentence and grant of bail during pendency of the appeals come to an end
and are withdrawn. The appellants/accused are ordered to surrender
before Chief Judicial Magistrate, SBS Nagar within a week from today,
failing which learned CJM, would issue warrants of arrest to secure their
presence and send them to jail to undergo the remaining sentence.
Necessary intimation be sent to the Court concerned for information and
compliance. The trial Court/its successor is directed to initiate
proceedings under Section 340 read with Section 195 Cr.P.C. or other
relevant provisions of against PW Naveen Kumar, owner of the truck. A
copy of the judgment be sent to successor of the trial Court through
District & Sessions Judge, SBS Nagar, Nawanshahr for necessary
compliance.
09.09.2022 (H.S. MADAAN)
sumit.k JUDGE
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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