Punjab-Haryana High Court
Bagga Singh @ Lakhvir Singh vs State Of Punjab on 7 June, 2023
Neutral Citation No:=2023:PHHC:081722
CRA-S-784-SB-2008 (O&M) - 1-
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203+1963 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-784-SB-2008 (O&M)
Reserved on: 01.05.2023
Date of Pronouncement: 07.06.2023
Bagga Singh @ Lakhvir Singh ...Appellant
vs.
State of Punjab ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present : Mr. Balbir Kumar Saini, Advocate for
for the applicant- appellant.
Mr. Amish Sharma, AAG, Punjab.
***
N.S.Shekhawat J.
1. The present appeal has been preferred against the judgment of
conviction dated 25.09.2006 and the order of sentence dated 27.09.2006 passed
by Learned Special Judge, Moga, whereby the present appellant has been
convicted under Section 15(c) of the Narcotic Drugs and Psychotropic Act,
1985 (herein after referred to as the "NDPS Act") and was sentenced to undergo
rigorous imprisonment for a period of ten years and to pay a fine of
Rs.1,00,000/-, along with default stipulation.
2. The prosecution story, as it emanates from the report under Section
173 Cr.P.C is that on 12.11.1993, Ajmer Singh ASI/SHO from Police Station,
Mehna along with other police officials had set up a picket at about 04:45 AM,
one truck bearing registration No. DIL8871 driven by Bagga Singh, accused
came from the side of village Kokari Kalan and it was signaled to stop with the
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help of torch light. Three more persons namely, Sadhu Singh, Surjit Singh and
Jarnail Singh were sitting by the side of Bagga Singh, accused. All the
occupants, including the present accused Bagga Singh were apprehended by the
police. Efforts were made to join any independent witnesses, but no person was
willing to join. In the meantime, Narinderpal Singh, DSP, Moga also reached
there in order to check the police pickets and Ajmer Singh ASI apprised him of
the facts of the case. In his presence, Ajmer Singh ASI conducted the search of
the truck of the accused, from which 20 bags of poppy straw were recovered.
One sample of 250 grams each was taken out from each of the recovered bags
of the poppy straw and separate parcels were prepared in this regard. The
remaining poppy straw was also weighed along with bags and each bag was
found to be containing 39 Kgs 750 grams of poppy straw. Their separate parcels
were prepared and were numbered serially from 1 to 20. Sample parcels were
also given serial numbers 1 to 20, as per the serial numbers of the bag from
which they were drawn. The parcels were duly sealed by Ajmer Singh, ASI
with his seal of mark "AS" and DSP has also sealed all the parcels with his seal
mark "NPS". The samples of their seals were prepared. Ajmer Singh, ASI
handed over the seal after use to ASI Prem Singh and the case property was
taken into possession by preparing separate recovery memo. The truck along
with its permit and other documents were also taken into possession vide the
separate recovery memo. Personal search of the accused was also conducted. It
was found that the accused were carrying 20 bags of poppy straw, each bag
weighing 40 Kgs and the accused had retained aforesaid poppy straw without
any permit or licence. Therefore, a ruqa was sent to the police station for
registration of the FIR under Section 15 of the NDPS Act against the accused,
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including the present appellant.
3. Initial necessary investigation was conducted by Ajmer Singh, ASI,
who arrested the accused and supplied him grounds of arrest. He prepared the
site plan of the place of recovery and the statements of the witnesses were
recorded. On his return to the police station, he kept the case property in safe
custody and later produced the case property before the learned Magistrate on
13.11.1993 and the orders were passed in this regard. After returning to the
police station, the case property was deposited with MHC Surajpal Singh in
intact condition. Later on, the sample parcel and the sample of seal were sent to
the office of Chemical Analyst and after receipt of the report of Chemical
Analyst, the final report under Section 173 Cr.PC was prepared against the
accused and was presented in the Court.
4. After consideration of the material on record, the charge under
Section 15 of the Narcotics Drugs and Psychotropic Substances, Act was
ordered to be framed against the present appellant and appellant pleaded his
innocence and claimed trial.
5. In order to prove the charge, against the accused the prosecution
examined six witnesses namely, PW-1 HC Surajpal Singh, PW-2 C.Jagjit
Singh, PW-3 Ajmer Singh ASI, PW-4 Chiranji Lal, Registration Clerk, PW-5
DSP Narinderpal Singh and PW-6 Prem Singh ASI.
6. After the closure of the prosecution evidence, the statement of the
accused was recorded under Section 313 Cr.PC and he pleaded that he was
innocent. He was brought by the police from his village on 09.11.1993, on
suspicion of terrorists as nothing was against him and the poppy husk was
planted on him. No recovery was effected from him. In his defence, the
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appellant examined DW-1, C. Jaswinder Singh SSP, Office Moga, who had
brought the original record of character roll. He had seen the order No.4295-
4300/B dated 17.05.2000 which was as under:-
"Vide order dated 5905-14 F/1 dated 13.05.2000
DIG/FR/Ferozepur in compliance of direction of DGP/Punjab
Chandigarh issued by his circular letter No.8694-984/E-6 dated
28.04.2000 adhoc promotion in the rank of Assistant Sub Inspector
granted to Ajmer Singh vide order No.13308-09/FR-1 dated
07.09.1999 is hereby withdrawn with immediate effect and place to
his substantive rank as Head Constable. He is further given ORP
posting in the rank of ASI. He withdraw again said he will draw
his pay etc. against his substantive post as HC and not against
ORP posting in higher post of Assistant Sub-Inspector. However,
he will get his regular promotion on his own term on acquiring
requisite eligibility as per his seniority and suitability."
7. I have heard learned counsel for the parties and also perused the
evidence led by both the sides carefully.
8. Learned counsel for the appellant vehemently contended that in the
instant case, PW-3 Ajmer Singh, ASI/SHO never sent the special report under
Section 57 of the Act to his senior police authorities. Since, a report was never
sent, serious prejudice has been caused to the present appellant and he was
liable to be acquitted by this Court on this ground alone. Apart from that, the
case property, which was in possession of the police, was tampered with and did
not remain intact till production in the Court. Furthermore, the entire
prosecution case is based on the testimonies of official witnesses, who were
already inimical towards the present appellant and later on he was picked up by
the police only on the suspicion of involvement in terrorist activities. Still
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further, no recovery was effected from the present appellant and he was not in
conscious possession of the contraband. The learned Trial Court completely
overlooked the evidence led by both the sides and wrongly convicted him. The
submissions made by learned counsel for the appellant have been vehemently
opposed by the learned State counsel. He contends that the provisions of
Section 57 of the Act were directory in nature and its non-compliance would
have no effect on the case of the prosecution. Still further, the police made all
efforts to join independent witnesses, but no one was willing to join the
investigation against the drug peddler of this level. Even the case property
remained intact, when it was produced before the Court. Thus, the appellant,
who was found in conscious possession of the contraband, was liable to be
convicted by this Court.
9. Having heard learned counsel for the parties and perusing the
evidence led by both the sides, this Court is of the considered opinion that there
is no force in the argument raised by learned counsel for the appellant. The
main contention of the learned counsel for the appellant is that the mandatory
provisions of Section 57 of the NDPS Act have not been complied with and the
appellant is liable to be acquitted only on this ground alone. In fact, the said
submission is meritless in view of the law laid down by the Hon'ble Supreme
Court in the matter of Gurmail Chand Vs. State of Punjab, 2021 (14) SCC 334,
in which the Hon'ble Supreme Court held as follows:-
"10. In so far as submissions on the basis of Section 57 of the
NDPS Act are concerned, it has been held that the said provision
is not to be interpreted to mean that in event the report is not sent
within two days, the entire proceeding shall be vitiated. The
provision has been held to be directory and to be complied with
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but merely not sending the report within the said period cannot
have such consequence as to vitiate the entire proceeding. A three
judge Bench of this Court in Sajan Abraham Vs. State of Kerala
has held that non-compliance of Section-57 would not vitiate the
prosecution case. In para 12 the following was laid down:(SCC
pp.696-97)
"12. The last submission for the appellant is, there is
non-compliance with Section 57 of the Act. He submits
under it, an obligation is cast on the prosecution while
making an arrest or seizure the officer should make full
report of all particulars of such arrest or seizure and send it
to his immediate superior officer within 48 hours of such
arrest or seizure. The submission is, this has not been done.
Hence, the entire case vitiates. It is true that the
communication to the immediate superior has not been
made in the form of a report, but we find, which is also
recorded by the High Court, that PW5 has sent copies of
FIR and other documents to his superior officer, which is
not in dispute. Ex.P-9 shows that the copies of the FIR along
with other records regarding the arrest of the appellant and
seizure of the contraband articles were sent by PW-5 to his
superior officer immediately after registering the said case.
So, all the necessary information to be submitted in a report
was sent. This constitutes substantial compliance and mere
absence of any such report cannot be said to have
prejudiced the accused. This section is not mandatory in
nature. When substantial compliance has been made, as in
the present case, it would not vitiate the prosecution case. In
the present case, we find PW-5 has sent all the relevant
material to his superior officer immediately. Thus we do not
find any violation of Section 57 of the Act.
10. Thus, in view of the law laid down by the Hon'ble Supreme Court
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in the abovestated judgment, the argument raised by the learned counsel for the
appellant is liable to be rejected by this Court.
11. In the instant case, it is apparent from the bare perusal of the FIR,
that after apprehending the accused at the spot, every effort was made to join
witnesses, but nobody was willing to join the proceedings against the present
appellant, from whom huge recovery of poppy straw was made. Even, Ajmer
Singh ASI Police Station City, Moga was examined as PW-3, who clearly
stated that Kuldeep Singh, HC was sent to bring some respectables from village
Kokri Kalan, however, he returned to the spot and told him that no person was
willing to join the police party from the village. However, in the meantime,
Narinderpal Singh, DSP, Moga arrived there for checking and the search was
conducted from the appellant at his instance. Thus, it is apparent that the police
wanted to join independent witnesses, but no one was ready to join the police
party. Even otherwise, the prosecution has examined PW-3 Ajmer Singh, ASI
who had conducted the search and recovered contraband. His statement has
been duly corroborated by PW-5 Narinder Pal Singh, DSP, who was posted as
DSP and in his presence the search was conducted by the local police. Both the
abovesaid witnesses have been cross-examined at length and their testimonies
could not be shattered in any manner. This Court has also perused the
testimonies of said official witnesses, which inspire confidence of the Court and
the findings recorded by learned Trial Court are liable to be upheld.
12. Thus, this Court has carefully examined the findings recorded by
the learned Trial Court. The learned Trial Court has dealt with all the
submissions raised by the learned counsel for the appellant and recorded valid
reasons for rejecting the same submissions made by learned counsel for the
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appellant. It has been held that the appellant having conscious possession of the
20 bags of the poppy straw and while transporting the same without any permit
or licence, the appellant was apprehended by the the police party headed by
PW-3 ASI Ajmer Singh. Apart from that, it is apparent that the certain minor
contradictions are always there in the testimonies of truthful witnesses and are
liable to be ignored.
13. In view of the above discussion, the present appeal must fail and
the judgment of conviction dated 25.09.2006 and the order of sentence dated
27.09.2006 passed by Learned Special Court, Moga, does not suffer from any
irregularity or perversity and is liable to be upheld by this Court.
14. Thus, the impugned judgment of conviction dated 25.09.2006 and
the order of sentence dated 27.09.2006 passed by Learned Special Judge, Moga
is ordered to be upheld and the appeal is accordingly ordered to be dismissed.
15. All pending applications, if any, are also disposed off, accordingly.
16. Case property, if any, be dealt with, and destroyed after the expiry
of period of limitation for filing the appeal, in accordance with law. The Trial
Court record be sent back.
(N.S.SHEKHAWAT)
07.06.2023 JUDGE
hitesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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