Punjab-Haryana High Court
Darshan Singh vs State Of Punjab on 25 January, 2023
CRA-S-4378-SB-2018 (O & M) ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-4378-SB-2018 (O & M)
Date of decision: 25.01.2023
Darshan Singh ... Appellant
V/s
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. H.S. Randhawa, Advocate as Amicus Curiae,
for the appellant.
Mr. Maninder Singh Bajwa, DAG, Punjab.
*****
JASJIT SINGH BEDI, J. (Oral)
The present appeal has been filed against the impugned
judgment of conviction and order of sentence dated 09.08.2018 passed by
the Judge Special Court, Sangrur vide which the complainant was convicted
under Section 15 of the NDPS Act, 1985 and was sentenced to undergo
rigorous imprisonment for a period of 30 days (i.e. the period of custody
already undergone) and to pay a fine of Rs.3,000/- and in default of payment
of fine to further undergo rigorous imprisonment for one month.
2. The prosecution story in brief is that on 22.01.2017, ASI
Sarabjit Singh alongwith Paramjit Singh SDO, BSNL, Dhuri and other
police officials were present on Dhuri-Sherpur Road. At about 12.30 p.m.,
one Ambassador car bearing registration No.PB-65-5025 was seen coming
from the side of village Kaheru and was signalled to stop. The driver of the
car stopped at some distance and tried to turn back. On getting suspicious,
ASI Sarabjit Singh apprehended him with the help of the other police
officials. On being questioned, he disclosed his name as Darshan Singh
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(appellant) son of Gurdev Singh. The investigating officer informed him of
his identity and told him that he (investigating officer) suspected that some
intoxicant substance was present in the vehicle or in his (accused-appellant)
possession. He was apprised of his right to be searched in the presence of a
Gazetted Officer or a Magistrate but the appellant reposed faith in the
investigating officer. Pursuant to obtaining of his consent, a search was
conducted and from the dicky of the car, 15 kgs. of poppy husk contained in
a plastic bag was recovered. Thereafter, a ruqa was sent to the police
station, on the basis of which, a formal FIR was registered.
On return to the police station, the investigating officer
produced the accused, witnesses and the case property before the SHO, P.S.
Sadar Dhuri, who verified the facts and sealed the case property with the
seal impression "PS" and attested the sample seal. On the direction of the
SHO, the case property was deposited by the investigation officer with the
Malkhana Munshi H.C. Makhan Singh. On 23.01.2017, after following the
property procedure, two samples of 250 grams each of poppy husk were
drawn by the Magistrate. After completion of investigation, the challan was
presented against the appellant.
3. On presentation of challan, copies of the same were supplied to
the appellant. Pursuant thereto a charge under Section 15 of the NDPS Act
was framed. The appellant pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined PW-1
Paramjit Singh SDO, BSNL Dhuri, recovery witness, PW-2 ASI Sarabjit
Singh, Investigating Officer, PW-3 HC Makhan Singh, PW-4 Inspector
Palwinder Singh and PW-5 C. Bhupinder Singh and after which the APP for
the State closed the prosecution evidence.
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5. After closure of the prosecution evidence, the statement of the
accused-appellant was recorded under Section 313 Cr.P.C. wherein the entire
incriminating circumstances were put to him, which he denied and stated
that he was picked up from his house alongwith an amount of Rs.96,000/-,
which he had obtained from Manjit Singh from the sale of his buffaloes and
a false recovery was planted upon him.
6. PW-1 Paramjit Singh SDO, BSNL Dhuri and PW-2 ASI
Sarabjit Singh, investigating officer were examined. Both reiterated the
prosecution version in their examination-in-chief that on 22.01.2017, the
appellant was apprehended by the police party and from his conscious
possession, 15 kgs. of poppy husk was recovered. They also provided
elaborate details of the incident in their evidence referring to the procedure
adopted for sampling of the substance while taking it in the police
possession and duly preserving it under their seals. They also gave evidence
of the manner and the procedure of search and seizure under the Act.
Reference was also made in the evidence to the consent obtained vide Ex.P1
after which the search was conducted. The sample seals were Ex. PW-2/A to
Ex.PW-2/C. Various documents were executed at the spot, such as recovery
memo Ex.P2, ruqa Ex.P3, formal FIR Ex.PW2/D, site plan Ex.PW2/E,
personal search memo of accused Ex.P4, arrest-cum-intimation memo
Ex.P5, special report Ex.PW2/F, Endorsement of DSP Ex.PW2/G,
application moved before the SDJM, Dhuri Ex.PW2/H, Inventory Ex.PW2/J,
photographs Ex. PW2/K to Ex. PW2/M, sample seal prepared by the
Magistrate Ex.PW2/N, order of the Court Ex. PW2/P, application moved
before the CJM, Sangrur Ex.PW2/Q, report of Nazir Ex.PW2/R, report of
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Malkhana Nazir Ex.PW2/S, order of the Court Ex.PW2/T, representative
parcel Ex.MO1 and car Ex.MO2.
7. PW-4 Inspector Palwinder Singh deposed that he was posted as
SHO, Police Station Dhuri on 22.01.2017. On the day of the receipt of ruqa,
he had recorded the formal FIR Ex. P4. He also deposed that ASI Sarabjit
Singh produced before him the official witnesses alongwith the appellant
Darshan Singh and the case property i.e. bulk parcel, currency notes of
Rs.96,000/- and one Ambassador car. The parcel was sealed by the
investigating officer with the impression "SS". The case property was
further sealed by him with the seal impression of "PS". He also appended
his seal on the Form No.29 and thereafter, on his directions, the investigating
officer deposited the case property with the Malkhana Munshi.
8. In order to prove the link evidence and the fact that the case
property and the samples were not tampered with during the period it
remained in the possession of the police authorities, the statements of H.C.
Makhan Singh (PW-3) Malkhana Munshi and PW-5/Constable Bhupinder
Singh were recorded.
9. The appellant in his defence did not examine any witness to
substantiate his defence.
10. Based on the evidence led the appellant-Darshan Singh came to
be convicted and sentenced vide judgment and order dated 09.08.2018 as
under:-
Offence Sentence Fine RI/SI in default of
under RI/SI payment of fine
Sections
15 NDPS (RI) 30 days Rs.3,000/- (RI) 01 month
Act
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11. The learned Amicus Curiae for the appellant contends that
Section 50 of the NDPS Act has not been complied with. No independent
witness has been joined in the investigation as required under Section 100
Cr.P.C. The recovery was effected on 22.01.2017 whereas the samples were
sent on 07.02.2017 and the delay of 16 days in sending these samples to the
FSL is fatal to the prosecution case. There were a number of discrepancies
in the statements of the prosecution witnesses and the link evidence was not
proved. He, thus, contends that the judgment and order of sentence dated
09.08.2018 ought to be set aside and the appellant ought to be acquitted of
the charges framed against him.
12. The learned counsel for the State, on the other hand, while
supporting the case of the prosecution and the judgment and order of
conviction dated 09.08.2018 contends that the grounds raised by the
appellant have been duly considered by the Trial Court while convicting
him. The discrepancies as pointed out are insignificant and minor and do
not deserve any credence. Mere non-joining of independent witnesses
would not be fatal to the case of the prosecution. Even otherwise, the
appellant has not been able to establish any enmity with the investigating
agency so as to falsely implicate him.
13. I have heard the learned counsel for the parties.
14. The recovery in the present case is from the dicky of the car and
as such, since it would not amount to personal search, Section 50 of the
NDPS Act would not apply to the case. Further, non-joining of independent
witnesses would not be fatal to the case of the prosecution as there is no
evidence to suggest that the official/prosecution witnesses were inimical to
the appellant. The delay in sending the samples to the FSL is also
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insignificant. A perusal of the affidavit of H.C. Makhan Singh (PW-3) would
reveal that he had kept the parcel in an intact condition and did not tamper
with the seals while in the police custody. Further from a perusal of the
report of the chemical examiner Ex.PX, it is apparent that the seals on the
parcel were found intact and tallied with the specimen seal impression.
15. The oral and documentary evidence produced by the prosecution
witnesses clearly point towards the guilt of the appellant and there is no
violation of any mandatory provisions of search and seizure which would
vitiate the Trial.
16. In view of the above, I find no merit in the present appeal.
Therefore, the same is dismissed.
( JASJIT SINGH BEDI)
January 25, 2023 JUDGE
sukhpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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