Punjab-Haryana High Court
Tarlochan Singh vs State Of Punjab on 20 January, 2023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
386
CRA-S-2209-SB-2004 (O&M)
Reserved on: 19.01.2023
Date of Decision: 20.01.2023
Tarlochan Singh ...Appellant
Versus
State of Punjab ... Respondent
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Kamal Kumar Yogi, Advocate
as Legal Aid Counsel
for the appellant.
Ms. Prabhjot Kaur, Advocate for
Mr. Karamjit Singh, Advocate
for the appellant.
Mr. M.S. Bajwa, DAG, Punjab.
N.S.SHEKHAWAT, J.
The present appeal is directed against the judgment of
conviction 28.10.2004 and order of sentence dated 28.10.2004 passed
by the learned Additional Sessions Judge-cum-Special Judge,
Amritsar, whereby, the present appellant was convicted under Section
18 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter to be referred as 'the NDPS Act) and sentenced to
undergo rigorous imprisonment for two years and to pay a fine of
Rs. 1000/- alongwith default stipulation.
The brief facts of the case are that on 14.06.2002,
SI/SHO Dalbir Singh alongwith other police officials was present and
when the police party reached on the link road, Sandhra, a person was
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seen coming on foot from the side of village Sandhra. On seeing the
police party, he got perplexed and tried to run away. The police party
got suspicious and SI/SHO Dalbir Singh with the help of his
companions apprehended the said person and asked his name and
address. On inquiry, he disclosed his name and address to be
Tarlochan Singh son of Hazara Singh Caste Jatt, resident of village
Gehri Mandi, Police Station Jandiala. The SI/SHO informed him that
there was a suspicion that he was carrying some narcotic substance
and his search was to be conducted. He was asked as to whether he
wanted to get his search conducted in his presence or in the presence
of some gazetted officer. The accused expressed his intention to get
his search conducted in the presence of a gazetted officer and the
memo was prepared in this regard, which was duly attested by the
witnesses. On getting a wireless message, Major Singh, the Deputy
Superintendent of Police reached at the spot and disclosed his identity
and told that he wanted to get his search conducted. He asked the
accused as to whether he wanted to get the search conducted in his
presence or in the presence of a Magistrate. The accused reposed
confidence in him and at the instance of the Deputy Superintendent of
Police, the search was conducted by the SI/SHO Dalbir Singh, which
led to the recovery of opium wrapped in a glazed paper, which was
kept by the accused in a cloth bag in his right hand. 10 gms of opium
was separated as a parcel and was kept in a very small plastic bag.
The total quantity of opium weighed to 1 kgs and 200 gms including
the weight of the sample. The sample parcel as well as the sample
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residue were sealed with the seal impression 'DS' of SI/SHO and 'MS'
of the the Deputy Superintendent of Police. The incriminating articles
were taken into possession vide separate recovery memo. The ruka
was sent to the police station and the case was ordered to be
registered on the basis of the same. The sample was sent to the office
of chemical examiner and it was found to be opium as per the report
of the chemical examiner. On completion of the investigation, challan
under Section 18 of the NDPS Act was presented in the competent
Court by the police.
After presentation of the challan, the accused was
ordered to be charge sheeted under Section 18 of the NDPS Act, to
which, the accused pleaded not guilty and claimed trial.
In support of the prosecution case, the prosecution
examined three witnesses.
Major Singh, the Deputy Superintendent of Police, (D)
Majitha was examined as PW1, who had reached the spot on getting
the wireless message. He stated that he verified the facts and
introduced himself to the accused. He also apprised the accused about
his right to be searched in the presence of a gazetted officer or a
Magistrate. The accused reposed confidence in him and on his
direction, the search was conducted and the same led to the recovery
of 1.200 kgs of opium from the accused. He supported the case of the
prosecution in totality. The prosecution further examined PW2 Dalbir
Singh, who was heading the police team on the said day. He was
posted as SI/SHO, Police Station Bhikhiwind on 14.06.2002 and after
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following due procedure of law, he had recovered 1.200 kgs of opium
from the accused. He supported the allegations, as enumerated in the
FIR. Apart from that, the prosecution examined PW3 Sukhdev Singh,
who had taken the contraband from the Police Station Bhikhiwind and
deposited the same with the chemical examiner.
After the prosecution evidence was over, the statement of
the accused was recorded under Section 313 Cr.P.C., and he pleaded
his false implication. He stated that nothing was recovered from him
and he was taken by the police from his house.
In his defence, DW1 Kashmir Singh was examined, who
was member of Panchayat from village Gehri Mandi twice. He stated
that about 2/3 months back, the police had come to the house of the
accused and son of the accused called Kashmir Singh at about 6.00
a.m. The police took him away at about 6.00 a.m. from his house.
They signalled the police to stop the vehicle, but it was not stopped by
the police officials. Kashmir Singh, Sarpanch of the village went to
CIA office, and enquired about the accused, but to no effect. They
also represented the the Senior Superintendent of Police, Tarn Taran
and they came to know about the arrest of the accused in the present
case. However, in his cross-examination he admitted that no
application/complaint was given in writing to the the Senior
Superintendent of Police, or any other higher officer.
I have heard learned counsel for the parties and with their
able assistance, I have examined the trial Court record carefully.
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Learned counsel for the appellant argued that in the
instant case, the appellant/accused was simply asked as to whether he
wanted to get his search conducted in the presence of a gazetted
officer or SI/SHO Dalbir Singh. Thus, there was non-compliance of
Section 50 of the NDPS Act, which is mandatory. Even, the mere
asking the accused as to whether he was required to be produced
before a Magistrate or a gazetted officer will not amount to
communicating him that he had a right under the law to be searched
so. The said submission has been opposed by the learned State
counsel by submitting that the mandatory provisions of Section 50 of
the NDPS Act would not apply to the facts of the instant case. I find
no force in the argument raised by the learned counsel for the
appellant. In fact, from a perusal of the evidence of the present case, it
is apparent that the opium was wrapped in a glazed paper, which was
kept in a cloth bag by the appellant/accused and the said bag was held
by the appellant in his right hand. Thus, the recovery was not effected
from his personal search and the recovery was made from the cloth
bag. Thus, the mandatory provisions of Section 50 of the NDPS Act
would not be applicable to the facts of the instant case.
Still further, the learned counsel for the appellant further
submitted that the accused was apprehended and the recovery of the
contraband was allegedly made on a pucca road near a Gurudwara,
where several independent and respectable persons were available.
Even, the DSP came after one hour and it was easy and convenient for
the police to have called some respectables and independent person
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from the Gurudwara itself. Still further, non joining the independent
witnesses raises a serious doubt about the genuineness of the
prosecution case. The said submission has been opposed by the
learned State counsel by submitting that the appellant/accused has not
attributed any motive for false implication by the police officials.
Again, I find that the argument raised by the learned counsel for the
State of Punjab carried weight. The testimonies of official witnesses
have to be scrutinized carefully, but said statements of the official
witnesses cannot be thrown out only on the ground of their official
status. No doubt, as a rule of prudence, the Courts look for
independent corroboration, but the statements of the official witnesses
cannot be thrown out, if such statements inspire confidence. I have
carefully perused the statements made by the official witnesses and all
the witnesses had withstood the test of cross-examination. Thus, the
learned trial Court has rightly placed reliance on the testimonies of
the official witnesses.
Still further, the learned counsel appearing for the
appellant prayed that as per the record, appellant was aged about 47
years at the time of framing of charge, i.e. on 23.08.2002 and is aged
about 68 years at present. Still further, he is facing the agony of
trial/appeal for the last more than 21 years and even recovery made
from him is non-commercial in nature and prayed that a lenient
view may be taken in the matter of sentence. I find sufficient force in
the submission made by the learned counsel for the appellant. A
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perusal of the record reveals that as on 23.08.2002, the appellant was
aged about 47 years and he must be aged about 68 years as of now.
As per the custody certificate produced by the learned
State counsel, he has undergone about 05 months and 07 days of
actual sentence out of total sentence of 2 years. Still further, as per the
custody certificate, no other case under NDPS Act was registered
against him ever. He has only shown to be involved in a case FIR
No. 48/2003 under Section 399, 402 of IPC and Section 25 of Arms
Act, Police Station Kotwali, Amritsar, in which, he is stated to be on
bail. Apart from that, the recovery of the opium from present
appellant was non-commercial in nature and he has faced the agony
of trial/appeal for the last about 21 years.
Consequently, the impugned judgment of conviction
28.10.2004 passed by the learned Additional Sessions Judge-cum-
Special Judge, Amritsar, is ordered to be upheld. The sentence
awarded to the present appellant is reduced to the period already
undergone by him. However, the amount of fine is enhanced from
Rs. 1000/- to Rs. 20,000/- and the same shall be deposited by the
appellant/accused in the Punjab and Haryana High Court Bar
Association Lawyer's Family Welfare, Fund, within a period of two
months, failing which, the appellant shall undergo rigorous
imprisonment for a period of 02 months in default of fine, as ordered
by the trial Court.
All pending applications, if any, are disposed of,
accordingly.
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The case property, if any, may be dealt with as per the
rules after expiry of period of limitation for filing the appeal.
Records of the Court below be sent back.
20.01.2023 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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