Gurmukh Singh @ Gorkhi vs State of Punjab

Naresh Kumar Sanghi, J.—Challenge in this appeal is the judgment of conviction and sentence dated 16.7.2007 passed by learned Special

Judge, Moga, whereby the appellant was held guilty u/s 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to

be as the Act) and was sentenced to RI for a period of 12 years and to pay a fine of Rs.1,25,000/-. In default of payment of fine to undergo

further RI for a period of one year, for having in possession five gunny bags each containing 30 kgs. of poppy husk.

The brief facts of the case are that on 17.5.2005, SI Sikander Singh (PW5) along with other police personnel was proceedings towards village

Firoz wala from Dharamkot and when they reached near Government School, Ami Wala, a secret information from a reliable source was received

at about 5.00 a.m. that Gurmukh Singh alias Gorkhi was present on the bridge of canal on the unmetalled path leading from village Amiwala to

village Bakar Wala with huge quantity of poppy husk and was waiting for the customers. He could be apprehended with huge quantity of poppy

husk if the raid was conducted quickly. Jagjiwan Singh son of Angrej Singh was joined in the police party as a private witness. On the basis of

secret information so received, memo (Ex.P9) was prepared and sent to the police station for registration of FIR (Ex.P10). On arrival of the police

party at a disclosed place, Gurmukh Singh alias Gorkhi, as identified by H.C. Balkar Singh (PW4) and Constable Pipal Singh, was found present

there. On seeing the police party, he took to his heels and could not be apprehended. SI Sikander Singh (PW5) requested DSP Gurjit Singh

Romana (PW6) to arrive at the spot. After his arrival, ASI Balwinder Singh (PW2) was also joined in the police party. On the directions of the

DSP, five gunny bags lying on the spot were checked by SI Sikander Singh (PW5) and all the gunny bags were found to contain poppy husk. 250

grams of poppy husk was drawn from each gunny bag for a sample to be sent to Chemical Examiner. On weighment, each gunny bag was found

to contain 30 kgs. of poppy husk. All the samples and the gunny bags containing residue poppy husk were sealed with the seal bearing impressions

SS and GSR of Investigating Officer and Deputy Superintendent of Police, respectively. After use, SI Sikander Singh (PW5) handed over his seal

to ASI Balwinder Singh (PW2) while DSP (PW6) retained his own seal. After completing formalities, report u/s 173, Cr. P.C. was presented

before the Court.

Charge u/s 15 of the Act was framed to which the appellant pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined the following witnesses:-

PW1 Constable Gurmit Singh: He tendered in evidence his affidavit (Ex.P1) inter alia stating that on 23.5.2005 MHC Gurpreet Singh of Police

Station, Dharamkot, had handed over five sample parcels of poppy straw weighing 250 grams each and in turn he deposited the same in the office

of Chemical Examiner, Chandigarh on 24.5.2005 in the same state in which those were received.

PW1-A-Jaspal Singh, Photographer: On 23.8.2005, he took photographs (Ex.P1 and Ex.P2) of the case property of the present case lying in

the Court of Manish Arora, JMIC, Moga.

PW2 ASI Balwinder Singh: He inter alia stated that at the asking of SI Sikander Singh (PW5), he joined the police party. Five gunny bags

containing poppy straw were recovered. He also deposed regarding the steps taken by the Investigating Officer at the spot. He further deposed

that he knew the appellant and identified him in the Court.

PW3 HC Balkar Singh: He inter alia deposed that on 17.5.2005, he was accompanying SI Sikander Singh PW5), a secret information was

received; raid was conducted; appellant Gurmakh Singh alias Gorkhi was spotted from a distance of 15/20 karams while he was sitting on the

bags of poppy straw and seeing the police party ran away from there. He identified the appellant in the Court. He further deposed that he was

having prior acquaintance with the appellant since he (appellant) was visiting to the Police Station Fatehgarh Panjtoor during his posting there. He

also deposed about the joining of public witnesses and other formalities observed at the spot.

PW4 HC Charanjit Singh: He tendered his affidavit (Ex.P8) in the evidence, wherein he mentioned that on 17.5.2005 special reports of the case

were handed over to him for delivery to the Area Magistrate and other Officers.

PW5 SI Sikander Singh: He is the Investigating Officer and deposed about the receipt of secret information, formation of the raiding party,

going to the spot, fleeing of the accused and recovery of five bags containing poppy husk. He also deposed about the other formalities of the

investigation, sending of the information to the police station for registration of the case and recording of the statements of the witnesses in term of

Section 161, Cr. P.C. He further deposed that the case property was produced before SHO Bachan Singh (PW9) who verified the facts and

affixed his own seal on the samples of the case property bearing impression BS and the entire case property was taken into possession vide memo

(Ex.P7). On the next day, the case property was produced before the Area Magistrate by SI Sikander Singh (PW5).

PW6 Gurjit Singh Romana, Superintendent of Police, Headquarters Ludhiana: He inter alia deposed that on 17.5.2005 while posted as DSP,

Dharamkot, he went to the spot and on his direction, SI Sikander Singh (PW5) searched the gunny bags containing poppy husk. He further

deposed about the formalities of investigation conducted at the spot.

PW7 HC Gurpreet Singh: He tendered in evidence his affidavit (Ex.P14) wherein inter alia stated that on 18.5.2005, SI Sikandhar Singh

(PW5) had deposited the case property with him. He further mentioned that on 23.5.2005, he handed over five sample parcels of poppy straw

weighing 250 grams each sealed with seal SS, GSR and BS alongwith seal impressions to Constable Gurmit Singh. He further deposed that on

24.5.2005, Constable Gurmit Singh handed over the receipt to him.

PW8 SI Ram Singh: He took the case property to the court of learned JMIC, Moga, where Photographer Jaspal Singh (PW1A) was

summoned for taking the snaps. On coming back to the police station, the case property was re-deposited in the Malkhana.

PW9 SI Bachan Singh: He inter alia deposed that on 17.5.2005, he was SHO of Police Station Dharamkot. On that day, SI Sikander Singh

(PW5) had produced five gunny bags each containing 30 kgs. of poppy husk alongwith five samples duly sealed and in turn he affixed his own seal

bearing impression GS on the samples and the case property. He further deposed that on receipt of memo, FIR (Ex.P10/A) was recorded.

PW10 SI Manjit Singh: He, inter alia, deposed that on 1.3.2006 while posted at Police Station Dharamkot, he alongwith other police officials

was proceeding towards Sherpur Bagge, apprehended appellant Gurmukh Singh alias Gorkhi and arrested him on the identification of HC Balkar

Singh (PW3).

After closure of the prosecution evidence, incriminating evidence was put to the appellant. He denied the incriminating evidence and convicted

and sentenced the appellant as has been described in the initial part of this judgment. pleaded innocence.

No defence evidence was led. The learned trial Court convicted and sentenced the appellant as has been described in the initial part of this

judgment.

Learned counsel for the appellant vehemently argued that identity of the appellant could not be established since he (appellant) was allegedly

identified by HC Balkar Singh (PW3) and Constable Pipal Singh while running away from the spot after seeing the police party. However after his

arrest, no test identification parade was conducted. The identification of the appellant in the court by the witnesses does not carry any weight. He

further submitted that the prosecution miserably failed to prove that the appellant was in conscious possession of five bags containing poppy husk.

It was also pointed out that according to the prosecution, Jagjivan Singh, a private person, was joined in the police party but was not produced in

the Court for making his statement. He also submitted that the evidence of the prosecution was contradictory with regard to joining of one or more

private witnesses in the raiding party. Learned counsel also argued that SI Sikander Singh (PW5) did not hand over his seal after use to a person

from the public. He also asserted that the samples were sent to the Chemical Examiner after considerable delay and that too, without proper

explanation. Therefore, tampering of the same could not be ruled out. In view of the above submissions, he prayed for the acceptance of the

appeal and acquittal of the appellant.

On the other hand, learned State counsel vehemently argued that the identity of the appellant has been well established from the testimony of

the witnesses; the appellant was found sitting on the gunny bags containing poppy husk and ran away from the spot after seeing the police party;

the link evidence is complete and all the mandatory provisions of the Act and rules were complied with. He further submitted that the learned trial

Court had rightly convicted the appellant and already taken a lenient view in awarding the sentence and as such, the present appeal may be

dismissed.

We have heard the learned counsel for the parties and gone through the record with their able assistance.

According to the prosecution version, a reliable secret information was received by SI Sikander Singh (PW5) while he alongwith other police

personnel was present for patrolling. A raiding team was constituted by joining Jagjivan Singh from the public and reached at the disclosed place.

The accused/appellant was found sitting on five gunny bags containing poppy husk but ran away from there on seeing the police people. He was

identified by HC Balkar Singh (PW3) and Constable Pipal Singh. DSP was requested to come at the spot and under his command, the bags were

checked and poppy husk was found. The appellant Gurmukh Singh alias Gorkhi was previously known to HC Balkar Singh (PW3) and he had

specifically identified him while running away from the spot after seeing the police party. The said witness alongwith one more police personnel

chased the appellant to a considerable distance but failed to apprehend him. The secret information received by SI Sikander Singh (PW5) was

reduced into writing which contained the name of the appellant. SI Manjit Singh (PW10) was very categorical in his deposition that on 1.3.2006

while they were going Sherpur Bagge from Dharamkot, in the meantime, of the pointing out of HC Balkar Singh (PW3), the appellant Gurmukh

Singh alias Gorkhi, who was wanted in the present case, was arrested. The identification of the appellant was well established from the deposition

of SI Sikander Singh (PW5) and HC Balkar Singh (PW3) when they identified the appellant in Court, to be the person who was sitting with bags

of poppy husk containing poppy husk and ran away after seeing the police party. Therefore, the prosecution has proved the identity of the

appellant. There is no ambiguity or confusion in this regard.

The submission of learned counsel for the appellant regarding conscious possession of the contraband is also not tenable since the appellant

was found sitting on five bags containing poppy husk and no other person was nearby. His running away from the spot after seeing the policy party

would show his culpable mental state. The appellant failed to offer any explanation as to why, how and under what circumstances, he was present

with bags containing poppy husk. In these circumstances, the argument raised by the learned counsel is devoid of force and is liable to be rejected.

The submission of the learned counsel for the appellant that Jagjivan Singh, the only private person allegedly joined during investigation, was

not produced in Court for making statement would not help the appellant since depositions of the police personnel are unblemished and there is

nothing material on the basis of which their depositions could be doubted. It is the quality and not the quantity of evidence which matters. From the

statements of the Investigating Officer and other prosecution witnesses, it has been well proved that the appellant was present at the spot with five

bags of poppy husk and he ran away from there after seeing the police party. In such a backdrop, it cannot be said that any prejudice has been

caused to the appellant by non-examination of Jagjivan Singh as prosecution witness.

The argument that the seal after use was not handed over to a person from the public is also liable to be rejected since the samples and the

bags containing residue poppy husk were sealed by the seal of three persons, namely, the Investigating Officer, the then Deputy Superintendent of

Police and thereafter the Station House Officer. The Chemical Examiner in his report had unambiguosly mentioned that seals on the samples were

intact and on comparison with the sample impressions found intact. Therefore, the submission of the learned counsel for the appellant in this regard

is also liable to be rejected.

The assertion that the samples were sent to the Chemical Examiner after considerable delay and that too without proper explanation is

misconceived and is liable to be rejected since the contraband was recovered on 17.5.2005, and on the very next day, i.e., 18.5.2005, the

recovered material was produced before the learned Area Magistrate. The Photographer was also summoned to take photographs of the case

property. Thereafter samples and the remaining poppy husk were deposited with MHC of Police Station, Dharamkot. He handed over the

samples to Constable Gurmit Singh on 23.5.2005 for further handing over the same to Chemical Examiner and in turn Constable Gurmit Singh

delivered the samples to Chemical Examiner on 24.5.2005. In view of the said facts, it cannot be said that there was delay in sending the samples

to the Chemical Examiner.

As a sequel to the above discussion, we find no merit in the appeal and the same is hereby dismissed.