Pargat Singh vs State of Punjab

A.N. Jindal, J.—Pargat Singh appellant-accused (herein referred as ''the accused'') was prosecuted for keeping in possession seven bags of poppy husk, each bag containing 30 kgs, consequently he was tried and ultimately convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/-, u/s 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein referred as ''the Act'') vide judgment dated 07.02.2004, passed by Special Court, Bathinda.

In nutshell, the allegations against the accused are that on 29.06.2001 Sub Inspector Parlad Singh alongwith other police officials, while on canter, was holding a picket near bus-stand, Gonspura. He had also associated one Hakam Singh, an independent witness. At about 3:00 a.m., the accused while driving a tractor-trolley(without number plate), came from the side of village Gonspura. On giving signal by the police party, he stopped the said tractor-trolley. On suspicion, the accused was asked to disclose the papers regarding the ownership of the tractor-trolley. However, the accused fled away and could not be apprehended. On search of the tractor-trolley in the presence of DSP Amrik Singh, seven bags of poppy husk were recovered from the trolley, out of which 250 grams of samples were drawn from each bag. Tractor-trolley was also taken into possession vide memo Ex. PB. Site plan Ex. PE was prepared and ruqa Ex. PF was sent to the police station on the basis of which formal FIR EX.PF/1 was registered. On return to the police station, Sub Inspector Parlad Singh, Investigating Officer (herein referred as ''the Investigating Officer'') kept the case property in his custody and sent special report Ex. PG to the higher officers. On 30.06.2001, he produced the case property before the Ilaqa Magistrate vide application Ex. PH, who passed the order Ex.PH/1. Inventory Ex. PJ, already prepared, was also produced before the Court over which the Court passed the order Ex.PJ/1. The accused was arrested on 31.03.2002 vide arrest memo Ex.PK. On completion of investigation, challan was presented in the Court.

The accused was charged u/s 15 of the Act to which he pleaded not guilty and claimed trial.

To substantiate the charges, the prosecution examined S.P.Amrik Singh (the then DSP)(PW1), Constable Santosh Kumar (PW2) and Sub Inspector Parlad Singh (PW3). After tendering the report of chemical Examiner Ex.PM, the prosecution closed its evidence.

When examined u/s 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further pleaded that he was a "kabbadi player" and wanted to go abroad as a "Kabbadi Player" but Sub Inspector Parlad Singh was interested in sending his relative to foreign country in his place, as such, he falsely implicated him in this case.

In defence, the accused examined Hakam Singh (DW1), Satnam Singh (DW2), Gurmeet Singh (DW3) and Head Constable Harcharan Singh (DW4).

The trial ended in conviction.

Arguments heard. Record perused. Learned Counsel for the appellant-accused has urged that the prosecution has failed to comply the provisions of Section 57 of the Act. The story, as set up by the prosecution, is improbable as the presence of the accused at the spot is doubtful. The prosecution has failed to prove his conscious possession over the said narcotic articles. The case property has been tampered and the necessary samples were not drawn. The tractor-trolley, so produced in the Court, was not the same which was taken into possession at the spot.

As regards Section 57 of the Act, PW3 Sub Inspector Parlad Singh, Investigating Officer, has stated in so many words that he had kept the case property in his custody and sent the special report Ex. PG to the higher officers under his signatures and on 30.06.2001, he produced the case property before Ilaqa Magistrate vide application Ex. PH which is accompanied by the inventory Ex. PJ. The records reveal that special report Ex. PG was prepared on the same day and it was sent to the higher police officers which was seen by the DSP on the next day i.e. on 30.06.2001. Thus, it appears that the Investigating Officer has complied with all the provisions, as laid down u/s 57 of the Act. However, it is also settled by now that the provisions of Section 57 of the Act are not mandatory in nature. Reference if any, could be made to the judgment delivered in case Gurdev Singh v. State of Punjab 2002 (1) RCR (Criminal) 154 wherein it was observed that compliance of Section 57 is directory and not mandatory. The provisions u/s 57 of the Act being procedural in nature, no benefit for its violation could be extended to the accused.

As regards the argument that no test identification plea was held, the Investigating Officer was holding a picket near bus-stand, Gonspura, where he apprehended the accused when he was coming while driving the tractor-trolley, therefore, question of mistaken identity does not arise. At the very initial stage, the accused was signalled to stop and then was asked about his whereabouts but during the process of search, the accused fled away while getting the benefit of darkness. Since the witnesses had sufficient time and occasion to see the accused and had come to know about his whereabouts, therefore, question of test identification parade does not arise.

It also does not lie in the mouth of the accused that he was not in conscious possession of the poppy husk. It was the only accused and none else present on the tractor trolley, when he was apprehended. It was night time when the accused was coming. He fled away while getting benefit of darkness which also goes to show that the accused was in conscious possession. Had the accused not known about the contents of poppy husk then he would not have fled from the tractor trolley. Now the onus is shifted upon the accused to explain that he did not know about the contents of the bags. Failure to advance any explanation, invites this Court to draw an inference that he was in conscious possession of the same.

The next argument raised by learned Counsel for the appellant is that the seals of the case property, produced in Court, were not intact. He has placed reliance on the judgment delivered in case Nirmal singh v. State of Punjab 2003 (4) RCR (Criminal) 132 in which it has been held that in case the seals over the case property are either broken or found missing then the benefit of doubt could be extended to the accused. But the ratio descend in the aforesaid judgment does not apply to the facts of the present case. In the case in hand, during the examination of PW3 Sub Inspector Parlad Singh, Investigating Officer, identified the case property i.e. seven bags Ex.P2 to Ex.P8 and tractor Ex.P9 as recovered from the accused. Mere fact that he admitted during cross-examination that bags were having the seals and one bag was without seal, yet the same does not effect the substratum of the prosecution case. The seals on six bags were found intact and reliable, the possibility of seal of 7th bag having been broken due to passage of time or eaten by the rodents could not be ruled out. In Nirmal Singh''s case (supra), the total bags relied upon were 12, out of which 4 bags were containing no seal. No plea has been set up by the prosecution that the bag which is without seal relates to this case. Even otherwise, on perusal of the bags, it transpires that the 7th bag bears the particulars of the case and serial number of the malkhana, therefore, this being the position, the accused could not be extended any benefit under the aforesaid legal umbrella.

The argument that drawing of one sample out of each bag, being in violation of the rules, also smashes the prosecution case is without any merit as no prejudice has been caused to the accused. Admittedly, one sample was taken out from each bag and was properly weighed, wrapped and sealed with the seals and samples so sent to the chemical examiner were intact. The link evidence is complete which depicts that during the period, the sample reached the chemical examiner the seals remained intact and was not tempered in any manner. It has come in the statement of Investigating Officer that he was the SHO of police station and as such he kept the case property in his safe custody in the police station. He also deposed that at the time of arrest of accused, the grounds of his arrest were disclosed to him vide memo Ex. PK. Thus, on the aforesaid premises, no violation of Section 57 of the Act could be said to have been made out.

The counsel has further urged that there is no document on the record regarding the registration of tractor-trolley in question. He has referred to the cross-examination of Investigating Officer in which he has deposed that registration certificate of tractor in question was taken into possession. Admittedly, on record, there is neither any registration certificate of tractor in question nor any memo regarding taking into possession of registration certificate of tractor. The registration certificate of any vehicle does not prove or disapprove the recovery, effected therefrom. It appears that the aforesaid statement is due to slip of tongue. Had he taken registration certificate into possession, then he must have prepared the memo in that regard. As a matter of fact, the case set up by the prosecution is that tractor was without number plate. All this shows that no registration certificate of tractor was taken into possession by the police. Even the recovery memo bears the chassis and engine numbers of the tractor. As regards the fact that, at present the tractor was not in working condition, it may be mentioned that it could go out of order with the passage of time.

On conspectus of the entire evidence, it transpires that the prosecution has been able to establish his case beyond reasonable doubt whereas the defence set up by the accused is not plausible. Investigating Officer was not having any inimical relations with the accused and he had no animus to implicate him in this case of heavy recovery. He had no such sources to foist such heavy recovery upon the accused. The defence appears to be an afterthought.

Resultantly, finding no merit in the appeal, the same is dismissed.

Amicus Curiae may claim remuneration from the competent authorities as per rules.