Karnail Singh vs State Of Punjab
2022 Latest Caselaw 11808 P&H

CRA-S-2373-SB-2006                                                     -1-

     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH

                                CRA-S-2373-SB-2006 (O&M)
                                Date of pronouncement: 21.09.2022

Karnail Singh
                                                              ...Appellant
                  Versus

State of Punjab

                                                            ...Respondent

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

Present:    Mr. Rahul Vats, Advocate for the appellant.

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

                                *****

H.S. MADAAN, J.

1. Appellant Karnail Singh son of Bagicha Singh, an accused in

FIR No.76 dated 12.03.2005, for an offence under Section 15 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the

Act'), registered with Police Station City, Tarn Taran was tried by Judge,

Special Court, Amritsar on the allegations that on 12.03.2005 in the area

of turning of village Rataul, he was found in possession of 59 kg of

poppy husk without any license or permit. The trial ended in conviction

of the accused for an offence under Section 15 of the Act, vide judgment

dated 16.09.2006 and in terms of the order passed on that very day, he

was sentenced to undergo rigorous imprisonment for a period of 10 years

and to pay a fine of Rs.1 lakh; in default of payment of fine, to further

undergo RI for one year.

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

that on 12.03.2005, a police party from Police Station City, Tarn Taran led

by SI/SHO Naurang Singh [hereinafter referred to as the Investigating

Officer/IO] was proceeding from village Behla to Village Daburji in

connection with general checking; when the police party reached near

turning of village Rataul, the accused was spotted coming from the

opposite side, riding a scooter bearing No.PB-33-A-4929 carrying two

gunny bags having contents on the scooter; on seeing the police party, he

became nervous and tried to turn back abruptly; he was apprehended on

the basis of suspicion and his name and other particulars were enquired

about, which he disclosed; the IO told the accused that he suspected the

accused to be carrying some narcotic substances in the gunny bags placed

on his scooter and wanted to search the same and further the accused had

a right to get the search conducted in the presence of some Gazetted

Officer or a Magistrate; the accused opted to get search carried out in the

presence of a Gazetted Officer; a memo in that regard was prepared as

Ex.PF.

Thereafter, the IO sent a wireless message; in response

thereto, Sh. Jatinder Singh, DSP, Sub Division Tarn Taran reached at the

spot; in the meanwhile, two witnesses namely Gurdial Singh son of

Sohan Singh R/o village Bughe and Natha Singh son of Surain Singh R/o

Village Manochahal Kalan also came to the spot and they were joined

with the police party; on reaching the spot, the DSP gave his introduction

to the accused telling him that the accused had a right to get the search

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carried out by him or by some other Gazetted Officer, however, the

accused reposed confidence in the DSP; a consent memo in that respect

was prepared as Ex.PD; thereafter on directions of the DSP, the IO

conducted search of the two gunny bags placed on the scooter of the

accused; those bags were found to contain poppy husk; the IO took out

sample of 250 gm each from each of the gunny bags, converting those

into parcels; on being weighed, the remaining poppy husk in one gunny b

ag came out to be 29 kg 750 gm and in the second bag 28 kg 750 gm; the

gunny bag containing residue poppy husk were also converted into

parcels; then the two sample parcels and two bulk parcels were sealed

with the seal of IO having impression 'NS'; Sh. Jatinder Singh, DSP also

affixed his seal having impression 'JS' on all those parcels; sample seal

impressions were taken on a paper; thereafter, the case property in the

form of two sample parcels, two bulk parcels and specimen seal

impressions were taken into police possession, vide recovery memo

Ex.PE; the scooter along with RC was also taken into custody, vide

recovery memo Ex.PE/1; after use the IO handed over his seal to Sh.

Natha Singh, independent witness whereas the seal after use was retained

by DSP himself; HC Vinod Kumar had prepared video movie with regard

to whole proceedings of the recovery; accused was accordingly arrested

in this case; while arresting him, his personal search was conducted and

Rs.20/- recovered were taken into police possession, vide memo Ex.PE/2

and he was furnished grounds of arrest, vide memo Ex.PE/3 respectively;

requisite documents were prepared in that regard; the IO sent ruqa Ex.PG

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to the police station on the basis of which formal FIR Ex.PG/1 was

registered; the IO prepared rough site plan of the place of recovery as

Ex.PH.

On return to the police station, the accused was lodged in the

lockup, whereas, the case property was kept in double lockup.

On the next day, the IO produced the accused along with

case property in the Court of SDJM, Tarn Taran, moving an application

Ex.PI on which the learned SDJM, Tarn Taran passed the requisite order

Ex.P1/1; thereafter, the case property was handed over to the IO, who

kept the same in double lockup.

On 17.03.2005, the IO handed over two sample parcels and

specimen seal impression duly sealed along with docket to Constable

Jasbir Singh for the purpose of depositing those in the office of Chemical

Examiner, Punjab, Chandigarh, who deposited such articles as per

direction and on return handed over receipt to the IO; as per report Ex.PJ

received from the office of Chemical Examiner, Punjab, Chandigarh, the

samples were found to be those of poppy head; on completion of

investigation and other formalities, challan against the accused was

prepared and filed in the Court.

3. On receipt of the challan, the trial Court of Special Judge,

Amritsar supplied copies of documents relied upon in the challan 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 the accused, to which he pleaded not guilty and

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claimed trial.

4. During the course of prosecution evidence, prosecution

examined the following witnesses:-

PW-1 Constable Jasbir Singh, the carrier of sample parcels to

the office of Chemical Examiner, Punjab, Chandigarh, had furnished his

affidavit Ex.PA to the effect that during the period, the sample remained

in his possession, no tampering therewith had taken place.

PW-2 HC Vinod Kumar, Photographer, CIA Staff Tarn Taran

deposed that on 12.03.2005 he was posted as such and on that day, on

receipt of wireless message from SHO Naurang Singh, he reached at the

spot and had prepared video movie of all the proceedings with regard to

recovery of contraband from the possession of the accused Karnail Singh;

that after preparing VCD of the proceedings, he produced the same before

SHO/IO who prepared parcel of the VCD, sealing it with his seal having

impression 'NS' and took the same into police possession, vide recovery

memo Ex.PB, attested by him and ASI Balwinder Singh.

PW-3 Prem Kumar, Clerk, SDM Office, Nakodar had

brought the record of registration of vehicles, stating that in terms of that

record, scooter No.PB33-A-4929 stands in the name of Smt. Charan Kaur

wife of Lahori Singh of Village Toti. He proved RC of the scooter as

Ex.PC.

PW-4 Sh. Jatinder Singh, DSP, Sub Division, Tarn Taran

under whose directions the gunny bags being carried by the accused on

his scooter were searched which were found to contain poppy husk

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testified in that regard in detail.

PW-5 SI Naurang Singh, a witness of recovery and

Investigating Officer deposed regarding his role, proving several

documents.

The prosecution relied upon various documents. Thereafter,

its evidence was closed.

5. Statement of the accused was recorded under Section 313

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

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

the allegations contending that he was innocent and had been falsely

involved in this case. No recovery had been effected from him and a false

recovery had been planted upon him.

6. During his defence evidence, accused examined HC

Gurbachan Singh from PS City, Tarn Taran as DW1, who had brought the

summoned record i.e. register No.19 and 21 of PS City Tarn Taran,

stating that as per register No.19, on 12.03.2005, CFSL form was not

deposited along with case property. He proved photocopy of entry as

Ex.DW1/A. He further stated that as per register No.21, when the case

property was sent for chemical examination, CFSL form was not sent

along with the sample. He proved photocopy of entry as Ex.DW1/B.

With that, the defence evidence was closed.

7. After hearing arguments, the trial Court convicted and

sentenced the accused as mentioned supra.

8. Feeling aggrieved by the judgment of his conviction and

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order of sentence, the appellant had preferred an appeal before this Court

which was Admitted for regular hearing on 30.11.2006, and on an

application having been filed under Section 389 Cr.P.C., the remaining

sentence of the appellant was suspended during the pendency of the

appeal on 30.05.2009. Now the appeal has come up for final arguments.

9. I have heard learned counsel for the appellant/accused,

learned State counsel besides going through the record.

10. In this case, the witnesses of recovery namely PW-4 Sh.

Jatinder Singh, DSP and PW-5 SI Naurang Singh fully supported the

prosecution story with regard to the accused having been found in

conscious possession of 59 kg of poppy husk on 12.03.2005 in the area of

village Rataul without any permit of license. Both these PWs were

subjected to lengthy cross-examination on behalf of the accused but they

stuck to their guns and could not be shattered on any material point. Both

of them deposed in a natural and convincing manner and the account

given by them inspire confidence. No previous enmity between these

PWs and the accused has been alleged or proved prompted by which they

might have involved the accused in this case wrongly or deposed against

him to secure his conviction. The entire incident had been got video

graphed from HC Vinod Kumar, office photographer and VCD in that

regard has been proved in evidence. That goes a long way in lending

credence to the prosecution version and the allegations made by the

accused in his statement under Section 313 Cr.P.C., of having been

involved in this case wrongly and a false recovery having been planted

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upon him fall flat.

From statement of PW-1 Constable Jasbir Singh, the carrier

of sample parcels to the office of Chemical Examiner, Punjab,

Chandigarh and statement of PW-5 SI Naurang Singh, it comes out that

the case property was not tampered with at any stage and the sample

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

in an intact condition. Report there from Ex.PJ goes to show that the

sample parcels were received there with seals intact and the seals tallied

with the specimen seals impressions. As mentioned in the report itself, the

parcels remained in safe custody of Assistant Chemical Examiner,

Punjab, Chandigarh after their receipt till the time those were analyzed.

After analysis, the opinion given was that the samples were of poppy

heads. The prosecution had successfully proved its charge against the

accused beyond a shadow of reasonable doubt.

11. Learned counsel for the appellant has attacked the impugned

judgment on various grounds, which are discussed here under one by one.

12. The first ground was that only one sample had been drawn

from each bag instead of two samples as required. However, learned

counsel could not point out as to what prejudice has been caused to the

appellant in the process. As discussed already, the sample parcel had

reached the office of Chemical Examiner, Punjab, Chandigarh in an intact

condition. It is not the case of the appellant that he wanted another

sample to be sent for chemical examination but since no such second

sample was available, he could not do so in the process he got prejudiced.

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Therefore, this objection is without merit.

13. The second ground raised by learned counsel for the

appellant was that recovery was effected on 12.03.2005, whereas, the

samples had been sent to the office of Chemical Examiner, Punjab,

Chandigarh on 17.03.2005 i.e. after a delay of 05 days, which cast a

doubt in the mind as to whether the samples had reached the office of

Chemical Examiner, Punjab, Chandigarh without tampering.

This contention is also without any force. As already

discussed, the sample parcels had reached the office of Chemical

Examiner, Punjab, Chandigarh in an intact condition and 05 days delay in

sending the sample parcels does not merit much. 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.

14. The next objection raised by learned counsel for the

appellant was that PW-1 Constable Jasbir Singh had not narrated all the

facts in his examination-in-chief and had furnished affidavit Ex.PA

stating that the same be read as part of his examination in-chief. I find

this objection without any head or tail. Constable Jasbir Singh being a

formal witness could have validly tendered in evidence his affidavit

which he did. He was subjected to cross-examination on behalf of the

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accused. Though, in his cross-examination, he stated that there are some

cuttings in his affidavit which have not been attested but after perusing

the affidavit, I find that cuttings are not with regard to any material fact

and learned JMIC, Amritsar had attested the affidavit that the contents

had been sworn before him by the deponent.

The accused is to be taken as in conscious possession of the

contraband in terms of Sections 35 and 54 of the Act, since he has failed

to show otherwise and his culpable mental state for commission of the

offence also can be safely presumed.

15. As regards the next objection that two independent witnesses

namely Gurdial Singh and Natha Singh have not been examined by the

prosecution in support of its case. In my considered view, this objection

also does not carry any weightage. As has been discussed in detail above,

two official witnesses of recovery did not have any motive to depose

falsely against the accused and the account given by them has been found

to be worthy of reliance. Non-examination of independent witnesses does

not affect the merits of the case. Furthermore, independent corroboration

is just a rule of caution and not requirement of any law. It is nowhere

provided that in the absence of independent corroboration, the account

given by the official witnesses is to be discarded.

16. A Single Judge of this Court in judgment Krishan Kumar

Vs. State of Punjab, 2016(2) RCR (Crl.) 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

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on account of their official designation.

17. As regards another objection put-forward by learned counsel

for the appellant that Form No.29 was not prepared at the spot. It is to be

kept in mind at best it could be termed as a procedural omission. Learned

counsel for the appellant could not point out as to how the accused was

put at loss for the said reason.

In judgment Khet Singh Versus Union of India by the

Supreme Court in Appeal (Crl.) 31 of 2000, it was observed that law on

the point is very clear that even if there is any sort of procedural illegality

in conducting the search and seizure, the evidence collected thereby will

not become inadmissible and the Court would consider all the

circumstances and find out whether any serious prejudice had been

caused to the accused. If the search and seizure was in complete defiance

of the law and procedure and there was any possibility of the evidence

collected likely to have been tampered with or interpolated during the

course of such search or seizure, then, it could be said that the evidence is

not liable to be admissible in evidence.

18. The impugned judgment of conviction passed by the trial

Court is quite detailed, well reasoned, does not suffer from any illegality

or infirmity. It is based upon proper appraisal of evidence and correct

interpretation of law. There is no illegality or infirmity therewith, which

might have called for interference by this Court while exercising

appellate jurisdiction.

The sentence awarded to the appellant is the minimum

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prescribed. Neither it can be reduced as per law nor the appellant

deserves to be granted any such concession, keeping in view the

substantial quantity of the contraband recovered from him. As such the

impugned judgment of conviction and order of sentence are upheld.

The appeal is found to be without merit and is dismissed

accordingly.

19. The appellant/accused is directed to surrender before Chief

Judicial Magistrate, Amritsar within a week from today, failing which

learned CJM, would issue warrants of arrest to secure his presence and

send him to jail to undergo the remaining sentence. Necessary intimation

be sent to the Court concerned for information and compliance.

21.09.2022                                            (H.S. MADAAN)
sumit.k                                                   JUDGE


               Whether speaking/reasoned :      Yes          No
               Whether Reportable :             Yes          No




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