Jagdev Singh vs State of Punjab

Jitendra Chauhan, J.—This appeal is directed against the judgment of conviction and the order of sentence dated 14.07.1995, rendered by the Court of Additional Sessions Judge, Ludhiana, vide which the accused/appellant Jagdev Singh was convicted for the offence punishable u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as ''the Act'') and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs. 1,00,000/- or in default of payment thereof, to further undergo RI for a period of two years, for having been found in possession of seven bags, each containing 35 kilograms of poppy husk, without any permit or licence. The case of the prosecution as per judgment of the trial Court is as under:--

On 20.04.1991 Narinder Pal Singh SHO (I.D.) (now S.P.) was presented in Giaspura Chowk, along with police party, in connection with checking. He received a secret information against the accused of his indulging in the unlawful activities of sale of Poppy husk at his house in mohalla Gobindsar. He then sent ruqa Ex.PG to the police station, on the basis of which FIR Ex.PB was recorded by Ram Sarup S.I. Thereafter, he proceeded towards the house of the accused for conducting raid and on the way near flour mill on Daba Road, joined Ishar Singh public witness. The accused was found present in his house and Narinder Pal Singh S.H.O. (I.D.) disclosed him his intention to take the search of his house and also enquired from him if he wanted the presence of a Gazetted Officer or Magistrate. But the accused reposed confidence in him and allowed him to take the search of the house. He made statement Ex.PD to the effect. On conducting the search seven bags of poppy husk each weighing 35 kgs. were recovered from the chaff room located at the back side of the courtyard of his house. Two samples each 250 gms. were taken out from each bag. The samples and the bags containing the remaining poppy husk were sealed separately with the seal NPS and taken into possession through recovery memo Ex.PE. On taking the personal search of the accused Rs. 45/-were also recovered regarding which memo Ex.PE was prepared which was signed by him and Jaswinder Singh HC, ASI Harbhajan Singh and I-Sher Singh PW. Special information through wireless was also sent by Narinder Pal Singh SHO to the higher authorities regarding the recover)'' of seven bags of the poppy husk from the house of the accused. He also prepared the site plan Ex.PH.

On reaching at the police station, Narinder Pal Singh SHO deposited the case property with MHC. Samples were sent to the Chemical Examiner for analysis, who opined the same to be of poppy husk. On receipt of his report and completion of the investigation, the accused was challaned.

On commitment, the accused was charged u/s 15 of the Act to which the accused/appellant pleaded not guilty and claimed trial.

In support of the case of prosecution, it examined PW-1 Amarjit Singh, Constable; PW-2 ASI Nachhattar Singh; PW-3 Inspector Ram Sarup; PWM HC-Santosh Kumar; PW-5 HC-Jaswinder Singh, and PW-6 Narinder Pal Singh, Superintendent of Police, Moga (the then SHO).

PW-1 Constable Amarjit Singh tendered his affidavit Ex.PA, but he was not cross-examined by the Amicus Curiae.

PW-2 ASI Nachhattar Singh proves the production of case property before JMIC, Ludhiana and thereafter, handing over the case property to AMHC Santosh Kumar with seals intact.

PW-3 Inspector Ram Sarup proves recording of FIR Ex.PB in the police station.

PW-4 HC-Santosh Kumar tendered his affidavit Ex. PC in evidence.

PW-5 HC-Jaswinder Singh proved the recovery of contraband while PW-6 Narinder Pal Singh, SP, the then SHO, corroborated the statement of the recovery witness.

The report of the Chemical Examiner Ex. PJ was tendered in evidence. However, the Addl. PP gave up Ishar Singh, the independent witness as having been won over by the accused, who was present in the Court on 01.09.1994.

The statement of the accused u/s 313 Cr.P.C. was recorded and he was put all the incriminating circumstances, appearing against him in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence, in his defence, but tendered into evidence Ex.D-2 and D-3, receipts Ex.D-4, certified copy of the telegram.

After hearing the Public Prosecutor for the State, the Counsel for the accused, and after going through the evidence, on record, the trial Court, convicted and sentenced the accused/appellant, as stated hereinbefore.

Feeling aggrieved, against the judgment of conviction, and the order of sentence rendered by the trial Court, the instant appeal, was filed by the accused/appellant which was admitted on 02.08.1995. The sentence of accused/appellant was suspended till the decision of the appeal vide order dated 08.04.1996.

This appeal came up for hearing on 30.05.2008, but none appeared on behalf of the appellant. This Court after hearing the State counsel dismissed the appeal on merits on the same day.

The accused/appellant filed Crl. Appeal No. 3375 of 2010 before the Supreme Court of India, which was accepted on 27.04.2011, the following has been noticed in judgment:--

We have heard the learned Amicus Curiae and the learned counsel for the State of Punjab. We notice from a reading of paragraph 8 of the judgment of the High Court that the appellant was not represented before the High Court and the appeal had been heard in his absence. We must emphasize that where an accused does not appear to defend his case, the Court should appoint an Amicus Curiae. This was apparently not done in this case. We also see that some events have subsequently arisen in the matter, which would necessitate arguments to be addressed on behalf of the appellant as well.

We accordingly, set aside the judgment of the High Court dated 30th May, 2008, and remit the case to the High Court for decision afresh, after hearing the counsel on both sides, if necessary, by appointing an Amicus Curiae for the appellant.

The parties are directed to appear in the High Court either in person or through their counsel, as the case may be, on the 10th August, 2011. The fee of the Amicus Curiae is fixed at Rs. 7000/-.

In pursuance of the above order of the Hon''ble Apex Court, the appeal was again listed for hearing on 10.08.2011, but none caused appearance on behalf of the appellant and the matter was adjourned to 18.08.2011. On 18.08.2011, again none appeared for the appellant. On 3.10.2011, this Court appointed Mr. P.S. Ahluwalia as Amicus Curiae to assist this Court on behalf of the appellant, who also could not appear on 10.01.2012. Ms. Gurjit Kaur, Advocate filed Crl. Misc. No. 77346 of 2012 for suspension of sentence of the appellant during the pendency of the present appeal, on which notice was issued for 15.03.2013. On 15.03.2013, the application was dismissed as not pressed and the appeal was listed for final arguments on 04.04.2013. On 10.05.2013, when the appeal came up for final hearing again none appeared for the appellant and Mr. Kamaljit Singh Sidhu. Advocate was appointed as Amicus Curiae to assist the Court on behalf of the appellant. The appeal was adjourned to 24.05.2013. On 29.05.2013, 01.07.2013 and 02.07.2013, none appeared for the appellant. In the circumstance, Mr. Rahul Vats, Advocate, who was present in Court was appointed Amicus Curiae to assist this Court. On 23.07.2013, arguments were heard at length and today again the arguments were heard and the matter is being disposed of.

The learned Amicus Curiae argued that in this case the house of the accused was searched on a secret information but no search warrant was obtained by the police; that the house is not in the exclusive possession of the accused/appellant and it has come in evidence of Head Constable Jaswinder Singh that "in the house of the accused at that time, his children and many other male members of his house were present at that time"; that no respectable person of the locality was joined before searching of the accused/appellant; that the accused/appellant was not in conscious possession of the contraband and that there is delay in sending the sample parcel. The learned Amicus Curiae argued that there are material discrepancies in the statements of the witnesses and the prosecution has miserably failed to prove the case against the accused/appellant.

On the other hand, the learned State counsel submits that the prosecution has fully proved its case by producing HC-Jaswinder Singh, PW-5; a witness to the recovery and his statement is corroborated by Narinder Pal Singh, Superintendent of Police, Moga (the then SHO) PW-6. He further argued that the mandatory provisions of the Act have been complied with. He prays for dismissal of the appeal.

This Court has heard the arguments of the learned Amicus Curiae and the learned State counsel and carefully gone through the record of the case.

In this case, on 20.04.1991, PW-6 Narinder Pal Singh was present in Giaspura Chowk in connection with checking when a secret information was received that the accused/appellant was selling poppy husk in his house in the area of Mohalla Hargobind Nagar and could be apprehended along with the bags. He sent ruqa Ex. PG to the police station, on the basis of which FIR Ex. PB was recorded. Without wasting time P.W. 6 witness raided the house of the accused. Ishar Singh, PW was joined on the way. The accused was present at the gate of the house and his house was searched according to law. Seven bags of poppy husk containing 30 kgs poppy husk each were recovered from the house. In the circumstances, if the Police Officer had not reached the place of recovery immediately after the receipt of secret information, and if, he had consumed time in obtaining the search warrant from the competent court, in that event, the appellant could have escaped from the house and lift the bags of poppy husk to carry it elsewhere then the whole purpose of the secret information and raiding the house would have been frustrated. Therefore, no search warrants were required to be taken for effecting recovery from the house of the accused/appellant. So far as compliance of Section 42(2) of the Act is concerned, this Court is of the opinion that it was also complied by the Investigating Officer of this case by sending an information to the police station where formal FIR was recorded whose copies were sent to the Illaqa Magistrate, as also to the higher police officers immediately. PW-3 Inspector Ram Sarup proved the recording of the FIR in the police station, but the learned defence counsel has not opted to cross-examine him despite the fact that an opportunity was given to him.

The next point argued by the learned Amicus Curiae is about the joint possession of the accused/appellant of the house along with his other members of the family. The learned Amicus Curiae intends to prove that the house was not being occupied exclusively by the accused/appellant and even if recovery from the house is proved, then, he is not only the person who is responsible for the possession of the contraband. After having gone through the record, this Court finds that no such plea was taken by the accused/appellant in his statement u/s 313 Cr.P.C. No other member of the family was examined to prove as to how many other persons were in possession of the house. No documentary evidence such as Voter card, ration card or bill of electric meter, which were supposed to be in possession of the accused/appellant, were placed on record, to prove the joint possession of the house with other members of the family. Mere admission on the part of PW-5 HC-Jaswinder Singh that his children and many other male members of his house is based on conjectures or estimation. So, this argument of the learned Amicus Curiae is repelled.

It is next argued by the learned Amicus Curiae that no independent witness was joined from the locality, where the house of accused/appellant was situated, although, it has come in the prosecution evidence that many persons gathered at the spot. In this regard, it is to be kept in mind that it is not easy to find any independent witness, that, too, from the locality where the accused/appellant was residing. The public in general is not very enthusiastic in joining and assisting the police, therefore, there is no reason to doubt the statements of the official witnesses. The statements of official witnesses are as good as the statements of other witnesses and such statements of the official witnesses cannot be discarded only because these are being deposed by the police officials. The police officials are truthful witnesses. No animosity has been either alleged nor proved against the official witnesses. So, PW-5 HC-Jaswinder Singh and PW-6 Narinder Pal Singh are termed as truthful witnesses. If there are some minor discrepancies in the statements of the official witnesses that may be due to lapse of time because the human memory is likely to be faded.

The learned Amicus Curiae while referring to statement of PW-6 Narinder Pal Singh argued that the prosecution has failed to produce the entire case property in the Court. This Court has gone through the statement of this witness wherein it has come that one bag pertains to the case of Daljit Singh was produced by the local police by mistake. This discrepancy is of no avail to the Amicus Curiae as in all seven bags containing poppy husk weighing 35 kgs each were recovered from the possession of the accused/appellant. It appears that due to inadvertence, one bag of another case was produced by the official concerned in the Court. So, this is inadvertent error and due to this the testimony of the recovery witnesses cannot be discarded. Even if, this Court find that recovery of six bags was effected ignoring seventh bag, even then, the accused/appellant cannot get any benefit out of it. In the malkhanas, due to shortage of space, such like errors may happen on the part of the official concerned, which deserved to be ignored.

So far as sending the samples to the chemical examiner, it is to be noted that affidavit Ex.PA of PW-1 Constable Amarjit Singh was tendered in evidence, this witness deposited the samples on 23.04.1991 with the chemical examiner. Recovery was effected on 20.04.1991. PW-2 ASI Nachhattar Singh proves that on 21.04.1991, he produced the case property with seals intact before the Judicial Magistrate, Ludhiana along with the accused. The learned Judicial Magistrate inspected the entire case property which was later on handed over to AMHC Santosh Kumar, whose affidavit is also on record as Ex.PC. There is no delay in sending the samples to the chemical examiner for analysis. The learned Amicus Curiae failed to point out anything from record from which it could be inferred that there were chances of tampering with the seals of the samples. No prejudice is caused to the accused/appellant in any way.

A certified copy of telegram Ex.D4 and receipts Ex. D2 & D3 produced in Court cannot be read in the evidence as the sender of the telegram namely Gurmeet Kaur has not been produced as a defence witness. This telegram was sent on 20.04.1992 at 13.10 (1.10 PM) to the Government of Punjab, Chandigarh stating that Jagdev Singh was arrested by the police on 20.04.1991 from the house without describing any reason. In this case, the recovery was effected from the accused/appellant on 20.04.1991 at 2.35 PM. Feeling apprehension that the police may raid at the house of the accused/appellant, this telegram was sent as peshbandi. The drug paddlers are expert in creating defence by sending advance telegrams, which cannot be relied upon in the absence of deposition of sender of the telegram. The prosecution was deprived of the cross-examination of the sender of the telegram. So, documents Ex.D2 to Ex.D4 cannot be relied upon.

The learned Amicus Curiae argued that the punishment awarded to the accused/appellant is on the higher side. He is the sole bread earner of his family. No leniency can be shown to the accused/appellant. The learned trial Court has rightly awarded minimum sentence of imprisonment and fine prescribed u/s 15 of the Act. No interference is called for in the sentence.

From the oral as well as documentary evidence, this Court comes to conclusion that the prosecution has fully proved its case beyond reasonable doubt against the accused/appellant.

There is, thus, no illegality or impropriety in the impugned judgment of conviction and order of sentence dated 14.07.1995 and the same, is, hereby upheld and affirmed. There is no merit in the appeal which is hereby dismissed. The accused/appellant shall surrender before the Chief Judicial Magistrate. Ludhiana, to undergo the remaining part of the sentence.