Balwinder Singh vs State of Haryana

Sat Pal, J.

This appeal is directed against the judgment dated 9th May, 1995, passed by the Additional Sessions Judge, Sirsa. By this judgment, the learned Additional Sessions Judge has convicted the appellantBalwinder Singh @ Binder Singh under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the NDPS Act) for possession of 36 Kgs. opium and has sentenced him to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. one lac. In default of payment of the fine, the appellant shall further undergo rigorous imprisonment for two years.

As per the case of the prosecution, on 28th November, 1993, Inspector Om Parkash, CIA Sirsa (PW 3) was on patrol duty in the area of Sahuwala when he received secret information that appellantBalwinder Singh was likely to bring opium in a tractor. On this information, a raiding party was formed and an independent witness namely Kesar Singh (PW 6) was also associated and when the raiding party reached at a distance of 2 kms. from the bridge. Mewar Minor village Sahuwala, an Eicher tractor being driven by the appellant was seen coming from the opposite side and the appellant on seeing the police vehicle, started turning the tractor towards the left side of the embankment of the canal. PW 3 on suspicion stopped the vehicle and apprehended the accused with the help of accompanying persons. On checking one plastic bag, the mouth of which was tied, was found in between the left mudguard and seat of the tractor. On suspicion, a notice in writing was given to the appellant stating therein "I suspect that opium can be there in the plastic bag kept on your tractor and some Gazetted Officer or Magistrate can be called at the spot if you so desire." This notice which is exhibit PW was duly acknowledged by the appellant. Thereupon, the appellant expressed the desire that some Gazetted Officer may be called at the spot for search. On this PW 3 informed the Superintendent of Police Sirsa through wireless and after sometime, Shri Moti Lal, D.S.P., Sirsa (PW 7) along with his staff reached the spot. The plastic bag was searched in his presence and opium in a wax paper was recovered from the bag. Out of the recovered opium, 50 gms. opium was separated as sample and a parcel thereof was prepared and the remaining opium was weighed which came to be 35 kgs. 950 gms. The aforesaid remaining opium was put into 2 tins and parcels thereof were prepared. The sample of opium and the parcels of tins were sealed with the seal bearing superscription `OP'' and taken into possession. The seal after use and retaining its specimen, was handed over to Krishan Chander Head Constable (PW 2). Thereafter PW 3 sent ruqa Exhibit PA through Constable Veer Bhan and formal FIR Exhibit PA/1 was recorded at the Police Station Baragudha by SI/SHO Lachhman Singh. PW 3 arrested the accused, recorded the statements of the PWs and prepared the rough site plan Exhibit PD and on return to the Police Station, the case property was duly deposited with the MHC and the appellant was lodged in the lock up. PW3 also submitted the report Exhibit PE before PW7 DSP Moti Lal.

In support of his case, the prosecution examined 7 witnesses. PW1 Lachhman Singh, SI/SHO Police Station Baragudha had recorded the formal FIR Exhibit PA/1 at 7.15 p.m. on 28th November, 1993 and had despatched its copies to the higher authorities and to the Ilaqa Magistrate. PW2 Head Constable Krishan Chander was a member of the raiding party and is an eye witness. PW3 Inspector Om Parkash was the leader of the raiding party and had intercepted the tractor being driven by the accused at 11/11.15 a.m. on 28.11.93. PW4 Head Constable Kishan Lal at the relevant time was posted as MHC at P.S. Baragudha and has proved his affidavit Exhibit PF. In his affidavit, he has stated that on 28.11.1993, PW3 Inspector Om Parkash had handed over to him sample parcel of opium along with other case property and the sample parcel was handed over to Krishan Kumar on 1.12.1993 for being sent to F.S.L. Haryana, Madhuban. PW5 Constable Krishan Kumar at the relevant time was posted at Police Station Baragudha on general duty and has proved his affidavit Exhibit PG wherein it is stated that on 28.11.1993 sample parcel of opium was handed over to him by MHC Krishan Lal for being sent to DFSL Madhuban and he had deposited the same on 2.12.1993 with the Director, D.F.S.L. Madhuban. PW6 Kesar Singh is an independent witness with regard to the search and recovery of the contraband from the appellant. PW7 DSP Moti Lal was sent at the spot by S.P. Sirsa for conducting the search and the recovery of opium from the appellant was made in his presence.

In reply to Question No. 8 of his statement under Section 313, Cr.P.C. the appellant stated as under :

"I was witness in FIR No. 149 of 1992 PS Baragudha under Section 302 IPC pending for 1.6.1994 in the court of learned Sessions Judge, Sirsa. Om Parkash Inspector in collusion with the accused and to pressurise me lifted me from my house on the night intervening 27/28/11/1993 at 10 p.m. and implicated me falsely in this case and 1 kg. liquid opium recovered by Om Parkash from somebody else was planted on me after mixing with gur. I am innocent. My wife on the morning of 28.11.1993 sent telegrams in this behalf."

In defence the appellant examined 9 witnesses. DW 1 Ganshayam Dass Sharma proved that the telegram Exhibit DA was issued on 28.11.1993. DW 2 Rameshwar Dutt, Record Keeper Sessions Court, Sirsa, produced the copy of the challan Exhibit DG and copy of the list of witnesses Exhibit DF of Sessions Case No. 27 of 1992, titled State v. Balvinder Singh. DW 3 Rati Ram Patwari proved that Kishangarh minor is ahead of Sadeva minor and there is Mamerkehra distributory and that minor is about 6 kms. from village Sahuwala. DW 4 Chhinder Pal Singh deposed that the appellant was taken forcibly by the Police in a jeep at 10 p.m. on the alleged date of occurrence. DW 5 Harnek Singh has proved that he had Dhaba at Sadeva minor which is about 2 kms. from village Sahuwala. DW 6 Virpal Kaur is the wife of the appellant and has deposed that the appellant was taken forcibly on 27.11.93 at 10 a.m. and she had sent telegrams to higher authorities at 1/1.15 p.m. on 28.11.1997. PW7 Ved Parkash constable has produced the log book of the Gypsy of DSP Moti Lal and has proved that as per the log book on 28.11.93 DSP Moti Lal had started from his office at 3 p.m. on 28.11.93. PW8 Om Parkash Ahlmad of the Court of JMIC, Sirsa has proved that on 31.1.94, the appellant had moved an application through his counsel for inspection of FIR No. 197/28.11.93 P.S. Baragudha under Sections 17/18, NDPS Act. DW9 Head Constable Subhash Chander had produced the log book of Gypsy of PW3 Inspector Om Parkash and according to the entries in the log book on 28.11.93 Inspector Om Parkash along with some other Police officials had started from CIA Staff at 8.15 a.m.

After discussing the evidence of the prosecution as well as of the accused, the learned trial Court has convicted and sentenced the appellant under Section 17 of the NDPS Act as stated in the earlier part of the judgment.

Mr. Ghai, the learned counsel appearing on behalf of the appellant submitted that there is error in framing the charge. He submitted that the charge against the appellant was framed under Section 17 of the NDPS Act and the appellant has been convicted and sentenced under Section 17 of the NDPS Act. He submitted that a person under Section 17 of the NDPS Act could be charged and convicted if there is recovery of prepared opium but in the present case as per the case of the prosecution the recovery is of opium and not prepared opium and for the recovery of opium a person could be convicted and sentenced under Section 18 of the NDPS Act. He, therefore, contended that the conviction of the appellant under Section 17 of NDPS Act was not sustainable.

The learned counsel submitted that provisions of Section 50 of the NDPS Act have not been complied with in the present case. He submitted that though as per the case of the prosecution notice Ex.PB was served on the appellant but there is no mention in the notice that the appellant was informed about his right to be served (searched ?) before a police officer or a Magistrate as required under Section 50 of the Act. He further submitted that in the said notice the particulars of the FIR have not been mentioned whereas in the recovery memo Ex.PC and in the report Ex.PE given to the Dy.S.P., the number and date of the FIR have been mentioned. The learned counsel submitted that the provisions of Section 50 of the NDPS Act were further violated as the appellant was not informed about the secret information received by the Inspector Om Parkash. In support of this submission, he placed reliance on a Single Bench judgment of this Court in Satnam Singh v. State of Punjab, 1996(3) RCR (Crl.) 369 : 1996(3) CC Cases 36. 9. The learned counsel further submitted that the statement of the appellant under Section 161 Cr.P.C. was not recorded by the Investigating Officer and nonrecording of the said statement is a serious irregularity which has prejudiced the appellant. He further submitted that as per the statement of the Investigating Officer, the sample was sealed with the seal `OP'' at four places but as per the chemical report the seal of `OP'' was affixed at five places. He also submitted that the sample allegedly taken from the recovered opium was not sealed by the Dy.S.P. with his own seal. He contended that for these discrepancies, the appellant was entitled to be acquitted. In support of this submission, he placed reliance on a Division Bench judgment of this Court in Padam Singh v. State of Haryana, 1997(4) RCR 172.

The learned counsel further submitted that there was every likelihood that the sample drawn by the Investigating Officer was tampered with. He submitted that to prove its case that the sample was not tampered with, the prosecution has relied on affidavit Ex.PF of Krishan Lal MHC and affidavit Ex.PG of Constable Krishan Kumar. He submitted that verification of both these affidavits was defective as it has not been stated that which of the paragraphs are true to the knowledge and which of the paragraphs are true to the belief. He further submitted that the sample seals allegedly prepared at the spot were not deposited in the Malkhana as MHC Krishan Lal has not stated in his statement that these sample seals were handed over to him. The learned counsel further submitted that the sample alleged to have been taken by the Investigating Officer was 50 gms. but the report of the chemical examiner shows that it was found as 70 gms. He submitted that the seal after use was handed over to the Head Constable and not to the independent witness namely PW6 Kesar Singh who was an independent witness.

The learned counsel further submitted that there was noncompliance of Section 57 of NDPS Act as there is no evidence on record to show that the case property was produced before the Magistrate. He further submitted that there was noncompliance of Section 52 also as there is no evidence to show that the accused was informed about the grounds of arrest. According to him there was also noncompliance of Section 42 of the NDPS Act as the secret information was not reduced in writing and sent to superior officers. The learned counsel also submitted that the independent witness PW6 Kesar Singh has not supported the case of the prosecution. He, therefore, contended that the appellant was entitled to be acquitted. In support of this submission he placed reliance on a Division Bench judgment of this Court in State of Punjab v. Kulwant Singh, 1996(3) C.C. Cases 129.

Lastly, the learned counsel of the appellant submitted that in the present case the sentence awarded was excessive.

Mr. Varinder Singh, the learned DAG, submitted that the particulars of the offence had been fully described in the charge sheet and the trial had proceeded in accordance with the wording of the charge framed and as such there was no miscarriage of justice and no prejudice has been caused to the appellant by a mere wrong citation of the charged offence. In support of this submission, he placed reliance on a judgment of this Court in Hukam Chand v. State, 1961 PLR 890.

The learned counsel further submitted that the provisions of Section 50 of the NDPS Act have been fully complied with in the present case. He submitted that notice Ex.PB under Section 50 of the NDPS Act was duly served on the appellant and in this notice it was clearly stated that there was suspicion that plastic bag of the appellant contained opium and if he desired some Gazetted Officer or Magistrate could be called at the spot. He submitted that this notice was duly acknowledged by the appellant and in fact Dy.S.P. Moti Lal (PW7) who is a Gazetted Officer, was called and the search was conducted in his presence. He further submitted that the secret information was a source of suspicion and the word "suspicion" has been used in the notice itself.

The learned DAG further submitted that so far the alleged defective verifications of affidavits Ex.PF and PG were concerned, this was only a technical error and no prejudice has been caused to the appellant by this alleged defect. He submitted that affidavit Ex.PG clearly showed that the seals of the sample remained intact.

As regards the difference in the two weights, the learned DAG submitted that this difference was only 20 gms. and this small/negligible difference could be due to some minor defect in the weight measures. He submitted that even the chemical report showed that the weight shown as 70 gms. was approximate. As regards the discrepancy in the number of seals, the learned DAG submitted that in the report of the chemical examiner, five seals have been mentioned and the Dy.S.P. Moti Lal PW6 has mentioned the number of seals as four. He submitted that PW6 Moti Lal was examined after more than a year from the date of occurrence and such a minor discrepancy should be ignored. He also submitted that the seal of the Dy.S.P. was not necessary as he was only a witness of recovery.

As regards the deposit of the seal with the Head Constable and not with the independent witness PW6 Kesar Singh, the learned DAG submitted that there is no allegation that the Head Constable was a biased person. The learned DAG referred to the statement of PW3 Om Parkash, Inspector and submitted that this witness has clearly stated that the statement of PWs were recorded by him.

As regards the contention of the learned counsel of the appellant that the appellant was not informed about the grounds of arrest, the learned DAG submitted that the accused was required to be informed about the grounds of arrest only in a case when warrants are issued by the Magistrate but in the present case no such warrants were issued by the Magistrate. He further submitted that the provisions of Section 57 of the NDPS Act have fully been complied with in the present case as the arresting officer had submitted the report of the case to his immediate superior i.e. Dy.S.P. Moti Lal (PW7).

We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. In this case, as per the FIR Ex.PA/1, 36 kg. of opium was recovered from the appellant. In the chargesheet, it was stated that the appellant was found keeping in his possession 36 kg. of opium in a tractor bearing No. HYN9128 without any permit or licence in this regard and thereby committed offence punishable under Section 17 of NDPS Act, 1985. From this, it is clear that the appellant was well aware of the fact that he had been challaned for the recovery of 36 kg. of opium and the charge was also framed for the said recovery of 36 kg. of opium. It is correct that for the recovery of the opium, a person can be charged and convicted under Section 18 of the NDPS Act and it is only for the recovery of prepared opium that a person can be charged and convicted under Section 17 of the Act but once the appellant was aware that he has been challaned and charge sheeted for the recovery of 36 kg. of opium, no prejudice has been caused to the appellant simply because in the charge sheet, the section was mentioned as Section 17 instead of Section 18 of the NDPS Act or in the judgment the conviction has been shown under Section 17 instead of Section 18 of the Act. It may also be relevant to point out here that both under Sections 17 and 18 of the NDPS Act, the punishment provided is the same. Thus there was no miscarriage of justice.

As regards the contention of the learned counsel of the appellant that Section 50 of the NDPS Act has been violated in the present case, we do not find any substance in this contention. It has been fully established from the evidence of the prosecution that before conducting the search notice Ex.PB was served on the appellant and this notice was duly acknowledged by him. In this notice it has clearly been stated that it was suspected that there could be opium in the plastic bag kept on the tractor in his possession and if he so desire, some Gazetted Officer or Magistrate could be called at the spot. Pursuant to this notice, the appellant in fact exercised his option and stated that some Gazetted Officer might be called at the spot for search. On this Inspector Om Parkash (PW3) informed the Superintendent of Police, Sirsa through wireless and after some time Sh. Moti Lal Dy.S.P. Headquarters (PW7) who was a Gazetted Officer reached the spot. As held by the Hon''ble Supreme Court in the case of Raghbir Singh v. State of Haryana, 1996 SCC (Crl.) 266, the option under Section 50 of the NDPS Act is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate and the choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search. In view of the law laid down by the Apex Court in the aforesaid case, we are of the opinion that the provisions of Section 50 of the NDPS Act have been fully complied with in the present case. The ratio of the judgment in the case of Satnam Singh (supra) is not applicable to the facts of the present case as in that case, the search was not conducted in the presence of a Gazetted Officer.

We also do not find any substance in the contention of the learned counsel of the appellant that the statement of PW7 Dy.S.P. Moti Lal was not recorded by the Investigating Officer and nonrecording of statement was a serious irregularity. From the evidence of PW3 Inspector Om Parkash, we find that the said witness has clearly stated that he had recorded the statements of PWs under Section 161 Cr.P.C. and no question in crossexamination has been put to him on this aspect of the matter. In view of these facts the decision in the case of Padam Singh (supra) is not applicable to the facts of the present case.

As regards the alleged defect in the verification of the affidavits Ex.PF and PG, we are of the opinion that the evidence of the deponents of these affidavits do not lose the evidenciary value simply because in the verification, the deponent has stated that the facts stated in the affidavit are true to his knowledge and belief and have not clearly stated that which paragraph of the affidavit is true to his belief. PW4 Krishan Lal through his affidavit Ex.PF has proved that the sample parcel of the opium with the seal `OP'' along with other case property was deposited in the Malkhana on 28.11.1993 by Inspector Om Parkash and the sample parcel of the opium was handed over to PW5 Krishan Kumar on 1.12.1993 for being sent to DFSL, Madhuban. This witness was crossexamined by the learned counsel of the appellant. Similarly, PW5 Krishan Kumar through his affidavit Ex.PG has proved that on 1.12.1993, the sample parcel with the seal `OP'' was handed over to him by Krishan Lal MHC (PW4) for being sent to DFSL, Madhuban and he deposited the said sample with the Director, FSL, Madhuban and on return RC was handed over to MHC. He further stated that the sample had not been tampered with when it remained in his custody. Opportunity to crossexamine this witness was also given to the learned counsel of the appellant though he did not put any question in crossexamination. The chemical report Ex.PH also shows that the seals on the parcel containing sample were found intact and tallied with the specimen seals. In view of these facts, it is clear that no prejudice has been caused to the appellant for the alleged defect in the verification of the affidavits as opportunity to crossexamine both these witnesses, who had given these affidavits, was given to the appellant.

We also do not find any merit in the contention of the learned counsel of the appellant that the sample could have been tampered with as the seal was not handed over to the independent witness PW6 Kesar Singh and the same was handed over to MHC Krishan Lal (PW4). As stated hereinabove PW4 Krishan Lal in his statement has clearly proved that on 28.11.1993, Inspector Om Parkash had handed over to him the sample parcel with the seal along with other case property, and the same was kept in Malkhana. This witness has been duly crossexamined by the learned counsel of the appellant and there is not even a suggestion to this witness that the sample or the seal was tampered with. As regards the difference in weight of sample, we find that this difference is negligible. Besides in the chemical report, the weight of sample has been shown as 70 gms. approximately.

We also do not find any merit in the contention of the learned counsel of the appellant that provisions of Sections 52 and 57 of NDPS Act have not been complied with in the present case. Section 52 has been fully complied with in this case as the appellant was informed through notice Ex.PB that it was suspected that there could be opium in the plastic bag kept on the tractor in his possession and he was given the option to be searched in the presence of a Gazetted Officer or a Magistrate. As a result of search 36 kgs. opium was recovered from him and he was arrested. Thus he was fully aware of the grounds of arrest. There is no violation of Section 57 of the Act also PW3 Inspector Om Parkash, who was arresting officer had given report Ex.PE of the particulars of arrest and seizure to his immediate superior officer namely Dy.S.P. Moti Lal. This fact has been clearly stated by PW3 Om Parkash in his examinationinchief. Even otherwise, the provisions of Sections 52 and 57 are by themselves not mandatory in terms of law laid down by the Supreme Court in State of Punjab v. Balbir Singh, AIR 1994 SC 1872.

As regards the quantum of sentence, we do not find any merit in the contention of the learned counsel of the appellant that the sentence awarded to the appellant is excessive. Keeping in view the recovery of 36 kgs. of opium, we are of the opinion that the sentence awarded to the appellant is not excessive.

For the reasons recorded herein above, we do not find any merit in this appeal and accordingly the appeal is dismissed.