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2003 (1) Crimes 19
Punjab & Haryana High Court (DB)
R.L. Anand & Hemant Gupta, JJ.
Dharminder Kumar —Appellant
versus
State of Punjab —Respondent
Crl. Appeal Nos. 165-DB of 2002 & 168DB/2002, 176 DB/2002 & 198 DB/2002
Decided on 13-9-2002
Counsel for the parties:
For the Appellant :Shri Vinod Sharma, Advocate.
For the Respondent:Shri S.S. Randhawa, Deputy Advocate General, Punjab.
Important Point
If seizure of contraband is made from any animal, conveyance or article in a public place or in transit then Section 43 of the NDPS Act would be applicable and Sections 43 and 42 of the Act operate in different spheres.
Headnote:(i) Narcotic Drugs and Psy-chotropic Substances Act, 1985
— Sections 15 and 42 — Recovery of 1200 kgs. of poppy husk in 30 gunny bags being carried in a truck/vehicle — Appellants were the driver and cleaner on truck — Conviction challenged on plea of violation of provisions of section 42 of the Act as ASI seizing officer having received secret information in writing did not record his reasons of belief of commission of offence nor did he disclose said information to superior officers — Power of entry, search and seizure — Scheme of the Act contemplates two categories of situations — Conveyance in a public place would fall under Section 43 of the Act and provisions of Section 42 were not applicable — Conviction could not be disturbed. (Paras 10, 11, 14 & 16)
(ii) Narcotic Drugs and Psy-chotropic Substances Act, 1985 — Section 50 — Right of accused of search in presence of Gazetted officer was only when “person” of accused was to be searched — When contraband was recovered from vehicle whereby it was being transported provisions of Section 50 was not attracted. (Para 22)
(iii) Narcotic Drugs and Psy-chotropic Substances Act, 1985 — Section 15 — Recovery of poppy husk in gunny bags which was being transported in truck — Appellants were found sitting on gunny bag who were identified by seizing officer ASI and they ran
away in dark — Appeal against conviction — Vehicle was inter-cepted in midnight — Police party was equipped with torch, arms, wireless and vehicles and were seven officials — It was difficult to believe story that appellants could escape in that situation — Appellants were entitled to benefit of doubt. (Para 24)
(iv) Narcotic Drugs and Psy-chotropic substances Act, 1985 — Section 15—Recovery of 1200 kgs. of poppy husk which was being transported in a vehicle and appe-llants were the driver and cleaner in the truck — Sentence — Trial court awarded 15 years imprison-ment and fine of Rs. One lac to each of two accused — Keeping in view age of appellants, sentence of imprisonment reduced to 10 years. (Para 25)
Result: Appeals disposed of.
Judgment
Hemant Gupta, J.— This order shall dispose of four Criminal Appeals bearing Nos. 165 DB of 2002 (Dharminder Kumar v. The State of Punjab), 168-DB of 2002 (Jasbir Singh v. The State of Punjab), 176-DB of 2002 (Sokhi v. The State of Punjab) and 198-DB of 2002 (Malkiat Ram v. The State of Punjab) respectively as they arise out of the same judg-ment of Judicial Special Court, Nawanshahar dated 15-2-2002 whereby all the appellants were sentenced to undergo rigorous impri-sonment for 15 years and a fine of Rs. one lakh each and in default to undergo further rigorous impri-sonment for one year each.
2. Briefly, the prosecution case is that on 1-9-1999 at about 1.45 p.m. ASI Bhag Mal was present in connection with nakabandi at canal bridge of Swajpur towards south, when he received a secret information, to the effect that Daula son of Mehanga and Sokhi son of Lehmber in possession of huge quantity of poppy husks in a D.C.M. Toyata bearing No. PB-10-D-9972 and coming from village Karimpur towards canal bridge. He requested SHO and DSP Nawanshahr through wireless to reach at spot and Constable Surender Singh was sent to call public witness and also to arrange for a scale. The said vehicle coming from the village Karimpur was stopped at a short distance ahead of canal bridge. However, Daula and Sokhi who were sitting on the bag of gunny with poppy husk whom ASI Bhag Mal knows very well ran away taking the benefit of darkness. However, the driver and cleaner of the vehicle were apprehended who disclosed their names Jasbir Singh and Dharaminder Kumar respecti-vely. Both Jasbir Singh and Dhara-minder Kumar were asked whether they wanted to be searched by a Gazetted Officer or by a Magistrate. However, both of them desired not to be searched by the Gazetted Officer or by the Magistrate. Their state-ments Exhibits PD and PE in this respect were recorded. It has been further mentioned in the ruqa that the D.S.P. could not be contacted but on the directions and in the presence of Station House Officer, ASI Bhag Mal conducted a search and reco-vered 30 bags of poppy husk kept, concealed beneath 15 gunny bags of Cattle Feed. In the meantime, Cons-table Surender Singh came along with scales, but informed that no indepen-dent witness could be arranged. The samples were drawn from all the 30 gunny bags and made into parcels and sealed with seal of SHO. The gunny bags as well as DCM Toyota were taken into possession. The ruqa was received at Police Station at 4.30 a.m. and the FIR was recorded
at 5.15 a.m.
3. In order to substantiate its case, prosecution examined eight witnesses and produced certain documents. After evidence of the prosecution was concluded, all the incriminating circumstances were put to accused in terms of Section 313 of the Code of Criminal Procedure. The accused earlier sought production of defence evidence but none was produced. Consequently, the trial Court passed an order convicting all the accused for offence under Section 15 of the Narcotic Drugs and Psycho-tropic Substances Act, 1985 (herein-after referred to as ‘the Act’) on account of conscious possession of 1200 kilograms of poppy husk without any permit or licence.
4. The prosecution case pri-marily is based on testimony of PW6, ASI Bhag Mal who had led the raiding party on 1st on September, 1999. As per the witnesses, they had put up a naka along with other police officials including ASI Baldev Singh PW 8. He had reiterated the version given in the ruqa on the basis of which FIR was recorded. His version was corroborated by Surender Mohan, PW-5 and Baldev Singh PW 8.
5. PW1 Mukhtiar Singh has corroborated the version of PW 6 Bhag Mal ASI regarding samples being kept in sealed intact position. The said witness was posted as Moharar Head Constable of Police Station Rahan. The contraband were deposited by PW 6 Bhag Mal ASI with him on 8-9-1999. The sample packets were entrusted to PW 2 Constable Jaswinder Singh for depositing the same to the Chemical Exam
