Gurwinder Singh Alias Guri vs State Of Punjab
2024 Latest Caselaw 7890 P&H

Punjab-Haryana High Court

Gurwinder Singh Alias Guri vs State Of Punjab on 16 April, 2024

                                      Neutral Citation No:=2024:PHHC:051939




      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH
                          ****
                                   CRA-S-1339-2023 (O&M)
                                    Reserved on: 09.04.2024
                                  Pronounced on: 16.04.2024
                                                                 2024:PHHC:051939
GURWINDER SINGH ALIAS GURI
                                                                . . . . APPELLANT
                                         Vs.

STATE OF PUNJAB
                                                               . . . . RESPONDENT
                                ****
CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
                                ****
Present: - Mr. Jashandeep Singh Sandhu, Advocate, for the appellant.

            Mr. Baljinder Singh, DAG, Punjab.
                                  ****

DEEPAK GUPTA, J.

In Sessions Trial No.32 of 2023 (CNR No.PBFZ01-004011-

2019) arising out of FIR No.21 dated 14.04.2019 registered at Police Sta-

tion Arif Ke, District Ferozepur, accused namely, Gurwinder Singh alias

Guri (appellant herein) was put to trial by the Ld. Special Judge, Fast Track

Court, Ferozepur and has been convicted under Sections 21 of the Narcotics

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

and Sections 411 & 473 of the Indian Penal Code, 1860 (for short 'the

IPC') vide judgement dated 25.04.2023. Vide a separate order of the even

date, he was sentenced as under: -

Offence/Under Imprisonment Fine In default of fine Section imprisonment 21 NDPS Act Rigorous imprisonment for ₹1,00,000/- Imprisonment for a period of 10 years. one year 411 IPC Rigorous imprisonment for ₹5,000/- Imprisonment for a period of one year. one months 473 IPC Rigorous imprisonment for ₹10,000/- Imprisonment for a period of five year. six months

1 of 13

Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023 2024:PHHC:051939

2. All the sentences were directed to run concurrently. However,

fine was not paid and the period of sentence undergone during trial was

directed to be set off.

3. Against the aforesaid judgment of conviction and order of

sentence, the present appeal is filed.

4.1 As per prosecution case, on 14.04.2019, Inspector Paramjit

Singh (PW6), In charge of the police party alongwith ASI Jasvir Singh

(PW5 and other police officials, were on patrolling duty in the area of Po-

lice Station City, Ferozepur. When they were present at Bus stop of Village

Katora, Ferozepur-Mallanwala Road, Inspector Paramjit Singh received se-

cret information that Gurwinder Singh alias Guri son of Lakha Singh, resi-

dent of Village Rukan Shah Wala, was habitual of selling huge quantity of

drugs and supply the same on the stolen vehicles and on that day, he was

coming in an Alto car from Village Daulatpura side to Arif Ke and that if

siege is laid at T-Point of Village Daulat Pura, he could be apprehended

alongwith the stolen car and Heroin. Believing secret information to be reli-

able, ruqqa Ex.P24 was sent to the police station through Constable Vijay

Kumar for registration of case. Special reports were also sent.

4.2 Sub Inspector Gurcharan Singh (PW2) reached the spot i.e. at

the Naka held at T-Point of Village Daulat Pura. After some time, one 'Alto

car', coming from the side of Village Daulatpura was intercepted. On in-

quiry, driver of the same disclosed his name as Gurwinder Singh alias Guri

[accused - appellant herein] son of Lakha Singh, resident of Village Rukan

Shaha Wala. He was apprised of the suspicion of some intoxicating sub-

stance in his possession as well as in the car make 'Alto'. Sub Inspector

2 of 13

Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023 2024:PHHC:051939

Gurcharan Singh, the Investigating Officer (hereinafter referred to as 'IO')

after disclosing his identity, apprised the accused about his legal right to get

his search as well as of Alto car conducted in presence of Illaqa Magistrate

or from some Gazetted Officer, who can be called at the spot. Accused told

that he intended to get his search as well as his car to be conducted in the

presence of some Gazetted Officer. Dissent memo was prepared duly

signed by the accused and other officials put their signatures as attesting

witness. 4.3 After some time, DSP Sukhwinderpal Singh (PW4), along-

with his officials, reached at the spot, who introduced himself to the ac-

cused and also apprised him that as the police party was having suspicion

that he was possessing some intoxicating substance, his search is to be con-

ducted. Accused reposed confidence and offered himself to get his search

conducted from DSP Sukhwinderpal Singh. Consent memo was separately

signed by the accused and attested by police officials. Effort was made to

join independent witness but none was available. On directions of

Sukhwinderpal Singh, DSP, SI Gurcharan Singh (IO) conducted search of

the accused and from the left side of the pocket of the lower worn, one

black coloured polythene envelope containing Heroin was recovered. On

weighing the said Heroin, it came to be 270 grams, which was put into plas-

tic container, converted into parcel and sealed with seal bearing impression

'GS'. Sample seal was prepared separately. After using seal, it was handed

over to ASI Jasvir Singh. The parcel was also sealed by Sukhwinderpal

Singh DSP with his seal bearing impression 'SPS'. Seal was retained by

him. Further, on search of Alto Car bearing No. PB-03- AZ-0267, no docu-

ment regarding its ownership was recovered. The parcel containing Heroin

3 of 13

Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023 2024:PHHC:051939

alongwith car make Alto bearing No.PB-03-AZ-0267 were taken into pos-

session vide separate recovery memo. Other formalities were completed on

the spot and statements of the witnesses under Section 161 Cr.PC were

recorded.

4.4 During interrogation, accused suffered disclosure statement

resulting in the recovery of car make Alto bearing No.HR-24-T- 5956 and

Car make I-20 without number, which were taken into possession.

4.5 On return to the police station, SI Gurcharan Singh produced

the accused alongwith case property i.e. parcel containing 270 grams of

Heroin alongwith Car make Alto bearing No.PB-03-AZ-0267 as well as

other cars recovered on the basis of disclosure statement i.e. car make Alto

bearing No.HR-24-T-5956 and Car make I-20 without number, before SI

Jaspal Singh. Accused was interrogated by SI Jaspal Singh. Thereafter, ac-

cused was sent to police lock up. Seals on the case property alongwith sam-

ple seals were tallied, found to be correct and intact. Thereafter, SI Jaspal

Singh sealed the parcel with his seal bearing impression 'JS'. Sample seal

was separately prepared. The case property was kept by SI Jaspal Singh in

his possession in police malkhana. Statement of SI Gurcharan Singh

recorded.

4.6 On 15.04.2019, case property alongwith accused was pro-

duced by SI Jaspal Singh before Learned JMIC, Ferozepur. On the basis of

request, inventory proceedings were carried out by the learned Judicial

Magistrate. The seals on the parcels were checked by Ld. Magistrate and af-

ter breaking open the same, two representative samples of 10/10 grams of

heroin each were drawn separately, converted into parcels and sealed with

4 of 13

Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023 2024:PHHC:051939

seal impression 'RSR'. Remaining 250 grams of heroin was converted into

parcel sealed with seal impression 'RSR'.

4.7 On 22.04.2019, SI Jaspal Singh, SHO, vide road certificate

dated 22.04.2019 sent Lady Constable Rajni Thind (PW3) to deposit the

sample parcel in the office of Director Regional Testing Forensic Science

Laboratory, Bathinda. Upon receipt of report of the Chemical Analyst and,

after completion of investigation, accused was challaned to face trial under

section 21/61/85 of the NDPS Act and, Section 379 & 411 of Indian Penal

Code.

4.8 After hearing learned Addl. P.P for the State, learned defence

counsel and perusing the documents attached with the report under Section

173 Cr.P.C, a prima facie case for commission of offence punishable un-

der Section 21 of the Narcotic Drugs & Psychotropic Substances Act and

Section 411, 473 of Indian Penal Code, having been made out against the

accused, he was charge- sheeted accordingly. Accused denied his guilt,

pleaded innocence and false implication.

5.1 In order to prove its case, prosecution examined as many as 12

witnesses.

5.2 PW-6 Inspector Paramjit Singh deposed about receipt of the

secret information. He proved ruqa Ex.P-24 sent to the police station

resulting into registration of formal FIR Ex.P-5 by PW-8 SI Jaspal Singh.

5.3 PW-2 SI Gurcharan Singh proved that on getting information

from Insp. Paramjit Singh, he reached the spot. He proved memo Ex.P1,

whereby option was given to the accused apprising him about his legal

rights to get his search as well as search of his car conducted in the presence

5 of 13

Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023 2024:PHHC:051939

of Gazetted Officer or Magistrate. He further proved the consent as given

by the accused and then arrival of DSP Sukhwinderpal Singh (PW-4), in

whose presence and on whose direction, the search was conducted and

recovery was effected.

5.4 PW-5 ASI Jaspal Singh is the recovery witness, who supported

PW2 in all material particulars.

5.5 PW-4 DSP Sukhwinderpal Singh also corroborated PW2 to the

effect that on getting information from him (SI Gurcharan Singh), he had

reached the spot and he had also apprised the accused about his legal right

to get himself searched in presence of some Gazetted officer or magistrate

and after the accused opted to be searched in his presence, memo Ex.P2 was

prepared and at his instance, the search was conducted, resulting into

recovery of 270 grams of Heroin from the left pocket of his lower. He also

proved further proceedings conducted in his presence.

5.6 PW-8 SI Jaspal Singh not only proved FIR Ex.P25 recorded by

him on receipt of ruqqa Ex.P24 and his endorsement Ex.P-26, he further

proved that said SI Gurcharan produced before him the accused along with

entire case property i.e. one parcel containing 270 grams of heroin duly

sealed with the seals bearing impression 'GS' and 'SPS' and sample seal

and other case property i.e. cars and that he had put his seal bearing

impression 'JS' on the parcel. He further proved the proceedings conducted

before the Court on 15.04.2019, where samples of 10 grams each were

drawn from the bulk parcel, which was sealed with 'RSR' and that sample

seal etc. were prepared. All the proceedings conducted in the Court have

been duly proved by him.

                                     6 of 13

                                       Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023                                           2024:PHHC:051939



5.7          To prove the link evidence, prosecution relied upon statement

of PW3 LC Rajni Thind, who had taken one sample parcel of 10 grams of

Heroin sealed with impression 'RCR', handed over to him by SI Jaspal

Singh, besides CFSL form, which she deposited at RTFSL, Bathinda.

5.8 The rest of the witnesses examined by the prosecution pertain

to ownership of all the three cars, which were recovered from the

possession of the accused and which were found to be stolen property and

on which fake number plates had been affixed.

6. All the incriminating circumstances appearing in the evidence

produced by prosecution were confronted to the accused in his statement

recorded under Section 313 Cr.P.C, in which he pleaded innocence and

controverted the incriminating evidence appearing against him. He

examined two witnesses in is defence.

7. After hearing both the sides, judgment of conviction and order

of sentence were passed, as per the details given earlier.

8. Before this Court, learned counsel for the appellant has not

assailed the conviction recorded under Sections 411 & 473 of the IPC. He

assailed the conviction recorded under Section 21 of the NDPS Act only, by

contending that secret information as allegedly received by SI Paramjit was

not reduced into writing and so, there is non-compliance of Section 42 of

NDPS Act. He further argues that option given to the accused was to get

himself searched before Illaqa Magistrate or the Gazetted Officer, which is

not in strict compliance of Section 50 of NDPS Act and it was not proper. It

is also argued that presence of DSP Sukhwinderpal Singh at the spot is

doubtful, as he did not prepare any documents. Apart from this, the

7 of 13

Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023 2024:PHHC:051939

contention of learned counsel for the appellant is that no independent

witness was joined and thus, the entire prosecution case is based upon the

statements of official witnesses, who were interested in success of the case.

With these submissions, prayer is made for setting aside the conviction of

the appellant- accused recorded under Section 21 of the NDPS Act.

9. On the other hand, learned State counsel has contended that the

entire evidence has been properly appreciated by the trial Court and after

considering all the contentions as raised by the accused, conviction has been

rightly recorded. Prayer is made for dismissal of the appeal.

10. Having considered submissions of both the sides and after

appraising the record, this Court does not find any merit in this appeal.

11. The testimony of PW2 Inspector Paramjit Singh, the initial

investigating officer of the case to be read with that of PW2 SI Gurcharan,

the later IO prove that on the basis of secret information, accused was

nabbed after laying a siege and that contraband was recovered from him

after completing all statutory requirements. All the necessary details in this

regard, as proved by him, have been duly corroborated by the testimonies of

PW5 ASI Jasbir Singh and PW4 DSP Sukhwinderpal Singh. After

completing the formalities, case property along with witnesses and the

accused were produced before PW8 SI Jaspal Singh, SHO in the Police

Station, who also verified the facts, inspected the case property and found

the same to be correct and made his endorsement on the notice under

Section 55 of the NDPS Act. All these witnesses have been grilled at great

length during their respective cross-examinations but nothing material

could be elicited so as to make them unreliable.

                                     8 of 13

                                       Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023                                             2024:PHHC:051939

12. As far as non-examination of independent witness is

concerned, it has been categorically testified by SI Gurcharan Singh, the

Investigating Officer of the case that he had tried to join some independent

witnesses but none of them agreed. The testimony of all the recovery

witnesses as referred above is found to be quite credit worthy, as nothing

could be elicited to disbelieve them. Their statements regarding the

recovery are quite consistent with no material contradiction. Examination

of an independent witness is not a sine qua non to believe the testimony of

official witnesses, as it has been observed by Hon'ble Supreme Court in

State Govt. of NCT of Delhi Vs. Sunil 2001(1) RCR (Crl.) 56 that "court

cannot start with the presumption that police records were untrustworthy

and rather, as a proposition of law, presumption should be other way around

and that official acts of the police are regularly performed is a wise

principle of presumption and recognized even by the legislature.

13. In Ravinder Vs. State of Maharashtra 2002(3) RCR (Crl.)

598, the case was based on official witnesses. No independent witness was

examined. It was held by Hon'ble Supreme Court that official (police)

witnesses cannot be discarded merely on the ground that they belonged to

the police force and are either interested in the investigating or the

prosecuting agency. It was further held that prudence dictates that their

evidence needs to be subjected to strict scrutiny and as far as possible

corroboration of their evidence in material particulars should be sought. The

desire of such witnesses to see the success of the case based on their

investigation requires greater care to appreciate their testimony.

14. In yet another case titled Sumit Tomar vs State of Punjab

9 of 13

Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023 2024:PHHC:051939

2013(1) SCC 395, Hon'ble Supreme Court has observed as follows:

"In view of the above discussion, though it is desirable to examine independent witness, however, in the absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with. On the other hand, the procedure adopted by the prosecution is acceptable and permissible, particularly, in respect of the offences under the Narcotic Drugs and Psychotropic Substances Act."

15. Coming to the contention of learned counsel regarding the non-

compliance of Section 42 of NDPS Act, it is revealed that on getting secret

information, PW-6 SI Paramjit reduced the same into writing in the shape of

ruqqa Ex.P24 and sent the same through Constable Vijay Kumar to the

police station resulting into the registration of FIR Ex.P25. SI Gurcharan

Singh PW-2 has also deposed that on getting the receipt of the ruqa, he went

to the spot. Not only this, ruqqa Ex.P24 reveals that SI. Paramjeet Singh

had directed the concerned police official who was going to get the FIR

registered, to send special reports to the senior police officers. All this was

done before arrival of the regular Investigation Officer at the spot. Even if it

be taken that a written information was not sent to the senior police officers,

the same cannot be considered to be violation of Section 42 of the NDPS

Act. Learned trial Court has rightly referred to "Sajan Abraham v. State of

Kerala" 2001(6) Supreme Court Cases 692, wherein it has been held by

Hon'ble Supreme Court that:

"it was not always mandatory that information received should be reduced into

writing and then sent to immediately superior official. In that case, the officer

concerned was on patrol duty and on receiving the information that the accused

was selling the contraband drugs at a particular place, he immediately rushed

10 of 13

Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023 2024:PHHC:051939

there and apprehended him"

It was held by the Apex Court that compliance of sub sections (1) and (2) of

Section 42 of the Act would have delayed the trapping of the accused,

which might have led to jus escape. Hence on fact, there was no violation of

Section 42 of the Act. It was further observed that strict compliance of the

mandatory provisions of the Act need not be insisted upon and the whole

matter should be considered pragmatically.

16. In similar circumstances, the Division Bench of this Court did

not give benefit of non- compliance of Section 42 of the Act to the accused

in Labh Singh Vs. The State of Punjab, Criminal Appeal No: 722 -DB of

2003 decided on 24.7.2006 on the basis of legal position explained by the

Hon'ble Apex Court in Sajan Abraham's case (supra).

17. Thus, strict non-compliance of Section 42 of the NDPS Act, in

the facts and circumstances of the case, is found to be not fatal to the

prosecution case as ruqqa Ex.P24 was immediately transmitted to the

Senior Officers.

18. The next contention of learned counsel to the effect that proper

offer was not given to the accused to make compliance of Section 50 of

NDPS Act, is also devoid of any merit. Accused was given option not only

by SI Gurcharan Singh apprising him of his legal right to get himself

searched before Illaqa Magistrate or Gazetted Officer but as the accused

opted to be searched before the Gazetted Officer, DSP Sukhwinderpal

Singh was called, who on arrival after disclosing his identity to the accused,

informed him that he was a Gazetted Officer and further apprised the

accused that his search was to be conducted on account of suspicion that he

11 of 13

Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023 2024:PHHC:051939

was possessing intoxicating substance and it is only after exercise of the

option by the accused vide consent memo that the search of the accused was

conducted as per the direction of DSP Sukhwinderpal Singh, after the

accused had reposed faith in him. Simply because SI Gurcharan had

initially apprised the accused to get himself searched before Illaqa

Magistrate or Gazetted Officer and did not use the word 'Magistrate only'

cannot be taken as a breach of Section 50 of the NDPS Act.

19. The contention of counsel Ld. for the appellant, doubting the

presence of DSP Sukhwinderpal Singh at the spot, is absolutely without any

substance. Simply because DSP Sukhwinderpal Singh did not himself

prepare the recovery memo or the consent memo in his own handwriting,

cannot mean that he was not present at the spot or that search was not

conducted in his presence or that recovery was not effected in his presence.

Learned trial Court has noticed that recovery memo Ex.P4 has been duly

attested by DSP Sukhwinderpal Singh, and that in itself proves his

presence. Besides this, Ex.P2 i.e. the consent memo is also duly signed by

him.

20. No other point was urged before this Court, qua the conviction

of the accused under Sections 21/61/85 of NDPS Act.

21. Although learned counsel for the appellant has not challenged

the conviction of the accused - appellant recorded under Sections 411 &

473 IPC, but this Court has gone through the evidence on record and finds

that accused was found in possession of Alto Car bearing No.PB-03-

AZ0267 (original number UP16C-8916) belonging to Yogesh Kumar; one

car make I-20 bearing No.PB-05-AJ-7884 belonging to Neeraj Kumar and

12 of 13

Neutral Citation No:=2024:PHHC:051939

CRA-S-1339-2023 2024:PHHC:051939

one Alto Car bearing No.HR-24-T-5945 (Original number PB11AF-7980)

belonging to Sukhchain Singh knowing and having reasons to believe the

same to be stolen property, retained by him dishonestly and further, by

counterfeiting their plates with fake numbers. All the relevant witnesses in

this regard have been examined by the prosecution and their testimonies are

duly discussed by trial court

22. As such, it is held that conviction of the accused- appellant

under Sections 411 & 473of the IPC has been rightly recorded.

23. No other point is urged.

24. Consequent to the above discussion, it is held that the appeal is

devoid of any merit. As such, the same is hereby dismissed.

All the connected applications stand disposed of.

(DEEPAK GUPTA) 16.04.2024 JUDGE Neetika Tuteja

1. Whether speaking/reasoned? Yes

2. Whether reportable? Yes

13 of 13