Mahender Singh vs State of Haryana

Augustine George Masih, J.—The Appellant was convicted for an offence u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') for being in possession of 60 Kgs. of poppy husk and was sentenced to undergo RI for a period of 10 years and a fine of Rs. 1 lac was also imposed upon him.

Facts in brief are that on 3.9.1998 Sub Inspector Dharambir Singh, SHO Police Station Rori along with Head Constable Makhan Singh and other police officials was present at Bus-stand of Village Lahangewala. One Gurjant Singh met him at the bus stand. Sub Inspector Dharambir Singh, received a secret information against Mahender Singh accused-Appellant that he was selling poppy husk at his house. A raiding party was constituted by SI Dharambir Singh, of which Gurjant Singh was also a member, which straight-away went to the house of the accused who was found there. On seeing the police party, he tried to run away but was apprehended. The accused was found in possession of a gunny bag and a plastic bag in front of his house where he was standing. As it was suspected that these contained some Narcotic substance, he was given notice to the effect that if he so wanted, a Gazetted Officer or Magistrate could be called at the spot for conducting search of his person. The accused having expressed his faith in SI Dharambir Singh, gave his consent. A search of the bags was conducted and it was found to contain poppy husk. On weighment, the gunny bag was found containing 40 kg. while the plastic bag contained 20 kgs. of poppy husk. Sample weighing 100 gms. was separated from each of the two bags, sealed and taken in possession. The seal was handed over to the Head Constable Makhan Singh. A written communication was sent to the police station for registration of the case on the basis of which a formal FIR Exhibit PE/1 was recorded by MHC Shiv Narain. Rough site plan was prepared by the Investigating Officer and statements of witnesses were recorded u/s 161 Code of Criminal Procedure On returning to the police station, report was prepared by SI Dharambir Singh u/s 57 of the Act and then sent to the Deputy Superintendent of Police. The case property was deposited by SI Dharambir Singh, SHO, with MHC Shiv Narain, who sent the samples to Forensic Science Laboratory through Constable Dilbag Singh. The report of FSL showed the sample to be of poppy husk and accordingly, the accused was challaned. Charge was framed against the accused u/s 15 of the Act, to which he pleaded not guilty and claimed trial.

On the basis of the evidence led by the prosecution, the learned trial Court came to the conclusion that the Appellant had committed the offence for which he was charged and held guilty u/s 15 of the Act and accordingly, convicted leading to his sentence against which the present appeal has been preferred by him.

Counsel for the Appellant submits that there is a delay of 10 days in sending the sample to the FSL because of which the credibility of the sample is in doubt. He further submits that the seal was not handed over to the independent witness, namely, Gurjant Singh which further casts a dent on the sample which was sent after a delay of 10 days. He submits that these two circumstances itself entitle the Appellant to acquittal. In support of this contention, he relies upon the judgments of this Court in the cases of Ramji Singh v. State of Haryana 2007 (3) RCR 452 and Karnail Singh v. State of Punjab 2003 (4) RCR 316. He contends that the secret information was not immediately reduced into writing by the SHO nor was the said information immediately sent to some higher authority, which further shows that no incident, as a matter of fact, had taken place and the Appellant has been involved in the case at the instance of one Ex. Sarpanch Baldev Singh with whom he had a previous enmity. On the basis of these submissions, he prays for acceptance of the appeal and setting aside of the conviction and sentence of the Appellant.

Counsel for the State, on the other hand, submits that there is consistent and concrete evidence appearing against the Appellant-accused. The Court below had appreciated in detail the evidence led and on the basis of which the conviction and sentence was awarded to the Appellant. No prejudice had been caused to the Appellant on account of non-handing over of the seal to the independent witness or by sending the sample to FSL after a delay of 10 days. The secret information could not be immediately put down in writing as the delay would have resulted in the escape of the accused from the site. The independent witness, namely, Gurjant Singh was given up as having been won over by the accused and as a matter of fact he had deposed in favour of the accused. Be that as it may, all the documents, whether it was recovery memo. or issuance of notice, go to show that incident as alleged had in fact taken place. The report of the Chemical Examiner Exhibit PJ clearly shows that the narcotic drug recovered from the possession of the accused-Appellant was that of poppy husk. He accordingly prays for dismissal of the appeal.

I have heard learned Counsel for the parties and with their able assistance gone through the evidence.

Merely because the secret information which is the basis for raiding the house of the accused-Appellant, had not been reduced into writing, cannot be a ground to draw an inference that no information was received by the SHO, SI Dharambir Singh. It would not be fatal to the case of the prosecution, as the prosecution has been able to show that by doing so, the delay would have resulted into escape of the accused. If that be so, the present case where the information was that if the house of the accused is raided immediately, the recovery could be effected and he could be apprehended from the spot and as a matter of fact, he was apprehended with 60 kg. of poppy husk from his house. Therefore, the contention of the counsel for the Appellant cannot be accepted.

Another ground which has been pressed into service by the counsel for the Appellant is that the seal was not handed over to the independent witness but was handed over to Constable Dilbag Singh. This again would not be fatal to the prosecution case for the reason that nothing had come on record that there was any tampering with the seal which was affixed on the sample. Further, the delay of 10 days in sending the sample to the FSL also would not be fatal in a case where no prejudice is caused to the accused as the seal was found to be intact by the Laboratory. The evidence led by the prosecution witnesses is unshaky and they withstood the test of cross-examination. Nothing has come in evidence which would suggest that the investigating agency had involved the accused-Appellant in the case with a mala fide intention or under the influence of one Baldev Singh Ex. Sarpanch as alleged.

The sequence of events and the compliance with the mandatory provisions of the Act has been established by the prosecution before the Court which, therefore, does not call for any interference by this Court. The judgments relied upon by the counsel for the Appellant in the cases of Ramji Singh and Karnail Singh (supra) are distinguishable on the ground that apart from there being non-compliance of Section 42(1) of the Act, other discrepancies were also pointed out in the process of taking samples and of filling in the required forms as mandated at the spot, which are not available in the present case and thus, the judgments relied upon by the counsel for the Appellant, are not applicable to the facts of the present case.

Finding no merit in the present appeal, the same stands dismissed. Resultantly, bail bonds of the accused-Appellant Mahender Singh are cancelled and he is directed to immediately surrender before the Court of the Chief Judicial Magistrate concerned to undergo the remaining sentence and on his failure to do so, his arrest warrants be issued by the CJM concerned.