Kashmir Singh vs State Of Punjab
2022 Latest Caselaw 10860 P&H

CRA-S-1838-SB-2011(O&M)                                                 -:1:-


     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH

                                          CRA-S-1838-SB-2011(O&M)
                                          Date of decision:-9.9.2022

Kashmir Singh

                                                                 ...Appellant
                    Versus


State of Punjab

                                                                ...Respondent


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


Present:    Mr.Aseem Kataria, Advocate
            for the appellant.

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


                           ****

H.S. MADAAN, J.

1. Appellant/accused Kashmir Singh was tried by learned

Judge, Special Court, Sri Muktsar Sahib in case FIR No.77 dated

19.5.2002 for an offence under Section 15 of Narcotic Drugs and

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

Police Station Sadar, Malout and vide judgment dated 11.5.2011, he was

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

of 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

further undergo rigorous imprisonment for a period of two years.

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

version are that on 19.5.2002, a police party from Police Station Sadar,

Malout headed by SI Gamdoor Singh (hereinafter referred to as the

Investigating Officer/IO) comprising ASI Darshan Singh and HC Major

Singh etc., was on routine patrolling and checking of suspicious persons

travelling in a private jeep going towards villages Lakarwala, Bhalarian,

Ratta Khera, Alamwala etc.; when the police party reached at bus stand of

village Ratta Khera, then one Jeeta Singh came there and he was joined

with the police party; when the police party reached near link road

Alamwala in the area of village Ratta Khera, then the accused was spotted

coming on a scooter without number carrying gunny bags having

contents on that scooter; on suspicion, the scooter was got stopped by the

police party and on being inquired about, the accused disclosed his name

and other particulars; the IO informed the accused that he suspected some

contraband in possession of the accused and wanted to carry out necessary

search and that the accused had a legal right to get the search conducted in

presence of some gazetted officer or a Magistrate; the accused opted to get

the search carried out in presence of a gazetted officer; a memo in that

regard was prepared as Ex.P1 executed by the accused, which was attested

by ASI Darshan Singh, HC Major Singh and Jeeta Singh, an independent

witness and thumb marked by the accused; then DSP(D) Jarnail Singh, a

gazetted officer was called to the spot by sending a wireless message; the

said DSP(D) Jarnail Singh along with his staff arrived at the spot after

some time; on reaching there, he gave his introduction to the accused and

inquired from him whether he wanted the search to be carried out in his

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presence or in presence of a Magistrate or any other gazetted officer; the

accused reposed confidence in DSP(D) Jarnail Singh stating that he had

no objection, if search was conducted in his presence; a consent memo

Ex.PW6/A in that regard was prepared, which was thumb marked by the

accused and attested by the witnesses.

3. Thereafter, on instructions of DSP(D) Jarnail Singh, the IO

conducted search of the bags tied on the rear seat of the scooter with a

rubber tube of a bicycle,which were found to contain poppy husk. The

accused could not produce any permit or licence for possession of the

said contraband. Accordingly, after arranging weights and scale, two

samples of 250 grams each were drawn from both the bags and the residue

poppy husk in each bag came out to be 34 kgs. 500 grams; the sample

parcels and the bags containing residue poppy husk were converted into

parcels and sealed with the seal of IO having impressions 'GS'; specimen

seal impression chit was also prepared; DSP(D) Jarnail Singh also put his

seal having letters 'JS' on all the parcels; specimen seal impressions were

taken on a chit; the IO handed over the seal after use to ASI Darshan

Singh, whereas DSP(D) Jarnail Singh retained his seal with himself; the

case property was accordingly taken into police possession vide a

recovery memo Ex.P2; the IO sent ruqa Ex.PW5/A to the police station

through LC Sukhdev Singh on the basis of which formal FIR Ex.PW5/B

was recorded by ASI Kulwant Singh. Accused was accordingly arrested in

this case as per rules, preparing requisite documents i.e. a memo of

jamatalashi Ex.P3 and memo with regard to serving grounds of arrest

upon the accused as Ex.P4. The scooter make Bajaj Chetak of Cococola

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colour without number plate Ex.MO 5, rubber tube of cycle Ex.MO 6

were also taken into possession vide recovery memo Ex.P5. The

Investigating Officer prepared rough site plan of the place of recovery as

Ex.PW7/B and recorded statements of witnesses.

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

produced the accused along with the case property and witnesses before

SI Harinder Singh, SHO of the police station, who verified the facts and

sealed the case property with his seal having inscription 'HS'; the case

property was taken into possession vide separate entrustment memo. The

accused was lodged in the lock up.

5. On the next day i.e. on 20.5.2002, SI/SHO Harinder Singh

produced the accused along with the case property in the Court moving

applications Ex.PW3/C and Ex.PW3/A. Learned Magistrate drew one

additional sample from the bulk parcel sealing the same along with bulk

parcel with its seal having inscription FSD/MLT and passed orders

Ex.PW3/D and Ex.PW3/B; thereafter handing over the case property to

SHO, who deposited the same with MHC Jaswinder Singh; the SHO had

sent detailed report Ex.PW5/E to the Halqa DSP. During the course of

investigation, the sample parcels were sent to the office of Chemical

Examiner, Punjab, Chandigarh and as per report Ex.PW5/G received

therefrom, those were found to be that of poppy-husk.

After completion of investigation and other formalities,

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

6. On receipt of the case in the Court, observing that prima

facie charge for an offence under Section 15 of the Act was disclosed

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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

the following witnesses:

PW1 ASI Darshan Singh, who was member of the police

party headed by SI Gamdoor Singh, which had apprehended the accused

effecting recovery of contraband from him, deposed in that regard in tune

with the prosecution version.

PW2 HC Angrej Singh, a formal witness tendered in

evidence his affidavit Ex.PW2/A deposing that so long as the case

property remained in his possession, no tampering therewith had taken

place.

PW3 HC Jaswinder Singh, another formal witness, with

whom the case property had been deposited by SI/SHO Harinder Singh

after search and seizure in his affidavit Ex.PW6 testified that the case

property had been deposited with him with seals intact and he had sent

sample of the case property to the office of Chemical Examiner, Punjab

on 27.5.2002 through HC Angrej Singh, who deposited the same there on

28.5.2002.

PW4 Jasvir Singh, Translator to the Court of District and

Sessions Judge, Sri Muktsar Sahib stated that on 20.5.2002, he was posted

as Ahlmad in the Court of Sh.Jagnahar Singh, SDJM, Malout and on that

day on an application Ex.PW3/A having been filed before the said SDJM,

Malout, order Ex.PW3/B was passed by him and similarly on application

Ex.PW3/C, learned SDJM, Malout passed order Ex.PW3/D.

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PW5 SI Harinder Singh, who was posted as SHO of Police

Station Sadar, Malout before whom the case property had been produced

and after verifying the facts had put his own seal on the parcels thereafter

depositing the case property with MHC Jaswinder Singh on the next day,

produced the case property in the Court along with the accused moving

requisite applications, deposed in that regard.

PW6 Sh.Jarnail Singh, DSP(Retd.), a witness of recovery

testified in that respect and his statement was in tune with the prosecution

version.

Since SI Gamdoor Singh had expired, therefore, he could not

be examined as a witness by the prosecution, however his death

certificate Ex.PY and report in that regard Ex.PZ/1 were placed on record.

The prosecution has relied upon various documents and

thereafter the prosecution evidence stood closed.

8. 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 a false case has been foisted upon him by

the Investigating Officer.

The accused did not lead any evidence in his defence.

9. The trial Court had formulated the following point for

determination:

"Whether on 19.5.2002 at 7:00 p.m., in the area of village Ratta

Khera, accused was found in possession of 70 kilograms of poppy

husk without any permit or licence and whether he can be

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convicted?"

10. 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 27.7.2011, when it

was admitted for regular hearing and recovery of fine was 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

vide order dated 11.8.2017 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/Duty Magistrate, Sri Muktsar Sahib.

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

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

convict, learned Assistant Advocate General for the State of Punjab

besides going through the record.

13. Here both the witnesses of recovery namely PW1 ASI

Darshan Singh and PW6 Sh.Jarnail Singh, DSP(Retd.) have fully

supported the prosecution story with regard to accused having been found

in conscious possession of contraband. 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. The account given by these PWs

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come out to be worthy of reliance. Since SI Gamdoor Singh, the IO and

witness of recovery had expired, the prosecution cannot be blamed for not

examining him as a witness.

14. From the statement of PW2 HC Angrej Singh and PW3 HC

Jaswinder Singh as well as orders passed by learned SDJM, Malout on

applications Ex.PW3/A and Ex.PW3/C, coupled with testimony of PW5

SI Harinder Singh, the then SHO of Police Station Sadar, Malout, it

comes out that the case property had remained in safe custody and no

tampering therewith had taken place and further that the sample parcels

had reached the office of Chemical Examiner, Punjab, Chandigarh with

seals intact. Report Ex.PW5/G from Chemical Examiner, Punjab,

Chandigarh also shows that the samples had reached there with seals

intact. This very report goes to show that on analysis the sample parcels

were found to contain poppy heads.

15. Learned counsel for the appellant has attacked the impugned

judgment of conviction and order of sentence on various grounds. Firstly,

that the independent witness Jeeta Singh joined with the police party was

not examined by the prosecution, which renders its version doubtful.

However, I am not impressed by this contention. As already observed the

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

with the accused prompted by which they might have come forward to

depose falsely against the accused. One of the official witness is a police

officer of the rank of ASI i.e. ASI Darshan Singh, whereas other is DSP

namely Sh.Jarnail Singh, who happened to be a gazetted officer. Even

otherwise, the depositions of official witnesses are at par with that of

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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. A Single Bench of

this Court in judgment Krishan Kumar Versus State of Punjab, 2016(2)

RCR(Criminal)707 had observed that testimonies of the official

witnesses carry the same evidentiary value as that of any other witness

and their statements cannot be discarded simply on account of their

official designation.

A Division Bench of this Court in case Sucha Singh Versus

State of Punjab 2015(4) RCR (Criminal)25 when an independent witness

had been joined during the search and recovery of contraband. He had

appeared as a witness for the defence stating that his signatures were

procured on blank papers when he had visited the police station in

drunken condition, had observed that such contention was not accepted

holding that it cannot be believed that numerous signatures on various

papers having different written material could be signed by a witness on

blank papers. The testimony of that witness was held to be unreliable and

was discarded. In that very judgment, credibility of official/police

witnesses was considered and it was observed that when there is no

allegation of any enmity against the police officials to falsely implicate

the appellants and there was no reason for them to depose against the

appellants, the trial Court had rightly concluded that non-examination of

independent witness of search and recovery being won over by the

accused does not raise any doubt in the prosecution case.

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16. Another argument put forward by learned counsel for the

appellant was that as per the prosecution version the police party was

travelling in a private jeep, however the driver of the that jeep was not

examined, adversely affecting the merits of the prosecution story.

17. I find this argument to be lacking merit. The prosecution is

not required to examine each and every person, who had witnessed the

recovery. It is for the prosecution to decide as to which witness is to be

examined and which is to be given up as unnecessary. Furthermore, the

prosecution had examined two police officers, one of the rank of ASI i.e.

ASI Darshan Singh and other a gazetted officer i.e. Sh.Jarnail Singh, DSP

and none examining of driver of the jeep does not make the prosecution

story doubtful.

18. One more contention put forward by learned counsel for the

appellant was that there was delay of 9 days in sending the sample to

FSL, Punjab, Chandigarh.

19. Again this contention failed to convince me. As discussed

above and as is borne out from the record the case property had remained

in safe custody and sample parcel had reached the office of Chemical

Examiner, Punjab, Chandigarh with seals intact. Therefore, some delay in

sending the samples to the office of Chemical Examiner, Punjab,

Chandigarh does not have any adverse affect on the merits of the case of

the prosecution. 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

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samples were tampered with or any prejudice was caused to the accused,

the delay was not held to be fatal to the case. In Sucha Singh's case

supra, it was observed that when the samples were not sent to the office of

Chemical Examiner within 72 hours, the prosecution and conviction

cannot be vitiated on that ground since there was no specific provision in

the Act in that regard and the instructions/standing orders in that respect

were only the guidelines to regulate and control their internal working of

Narcotic Control Bureau.

20. One more argument put forward by learned counsel for the

appellant was that no consent memo of the accused is available on the

judicial record. However, a perusal of statement of PW6 Jarnail Singh,

DSP(Retd.), goes to show that he had categorically stated that he had

given an option to the accused to get his search conducted by him or by

some other gazetted officer or Magistrate, however, the accused had

reposed confidence in the DSP and a consent memo was prepared thumb

marked by the accused and attested by him (this witness), ASI Darshan

Singh SI Gamdoor Singh and public witness Jeeta Singh. He prepared

carbon copy of consent memo as Ex.PW6/A. Although he was cross

examined with regard to original of the consent memo but he stated that

as per challan presented in the Court original consent memo was

produced along with other documents. If it was so, then the prosecution

cannot be blamed for non production of the original consent memo. Even

otherwise, the recovery had been effected from the bags, which the

accused was carrying on the rear seat of his scooter and it is not a case of

recovery of contraband as a result of personal search of accused.

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Therefore, the provisions of Section 50 of the Act are not attracted. 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.

21. 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 contraband without any licence or

permit thereby showing that he was in conscious possession of the

contraband.

22. 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.

23. The impugned judgment of conviction and order of sentence

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

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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.

24. Appellant Kashmir Singh is stated to be on bail granted to

him by this Court. His bail is cancelled. Chief Judicial Magistrate, Sri

Muktsar Sahib is directed to issue arrest warrants to get him arrested so as

to make him undergo the remaining sentence.

9.9.2022                                (H.S.MADAAN)
Brij                                       JUDGE


                   Whether reasoned/speaking :                 No / Yes

                   Whether reportable                :         No / Yes




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