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JAMMU AND KASHMIR HIGH COURT
Pankaj Mithal, CJ. and Rajnesh Oswal, J.
Manjit Singh – Petitioner
versus
State of J&K – Respondent
CrlA(D) No.34 of 2019
Decided on 12.11.2021
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 8 and 15 – Seizure of Poppy Straw – Conviction and sentence – Rigorous imprisonment for a period of 12 years and fine of Rs. 1.00 lac awarded – Where Police witnesses examined are reliable then prosecution case is not required to be rejected on the ground that independent witnesses were not examined – There is convincing evidence with regard to recovery of contraband from truck driven by appellant and appellant has not been able to demonstrate any reason for disbelieving statement of Police witnesses – Statement of witness is required to be read as a whole and whole statement is required to be examined and not one solitary sentence – Contradictions as pointed by Counsel for appellant are trivial in nature, those have no bearing on merits of case and in fact are inconsequential – Trial court has examined and appreciated evidence led by prosecution in its right perspective – Conviction of appellant is upheld – Appellant must be 44 years of age by now, having family to support and prosecution has not brought anything on record that appellant has been earlier involved in commission of such type of offences – This is first offence of appellant – Sentence of appellant reduced from rigorous imprisonment of 12 years to 10 years rigorous imprisonment – Fine payable shall remain same. (Paras 10, 14, 17 and 18)
Result: Appeal Partly allowed.
JUDGMENT
Rajnesh Oswal, J.—The present appeal is arising out of the judgment and order dated 09.05.2019 and 10.05.2019 passed by the Court of learned Principal Sessions Judge, Udhampur (hereinafter to be referred as trial Court) by virtue of which the appellant has been convicted for commission of offence punishable under Sections 8 and 15 of the Narcotic Drugs and Psychotropic Substances(NDPS) Act and has been sentenced to undergo rigorous imprisonment for a period of 12 years and has also been ordered to pay a fine of Rs. 1.00 lac and further in default of payment of fine, the appellant has been ordered to undergo further imprisonment for a period of one year.
2. The judgment has been impugned on the following grounds:
a. That no independent witnesses were associated with investigation in order to inspire confidence, despite the fact the place where Naka was laid, was the busy place.
b. That PW Jeewan Singh has stated that Investigating Officer was present and managed the papers for preparing docket.
c. That PW Vinod Sharma has deposed about the presence of Pardeep Kumar Executive Magistrate on spot but the same is not forthcoming from challan as well as from the statement of the witnesses as such he is not reliable witness.
d. That there was unexplained delay of 06 days in sending the samples to FSL.
e. That there is no entry in the Malkhana register with regard to the fact that the samples were taken out from the Malkhana for the purpose of resealing and deposited again on the same day.
f. That the seal used for effecting seizure was not deposited in the Malkhana.
g. That the independent witness, namely, Mukhtyar Ahmed has not supported the prosecution and was declared hostile.
h. That there are violations of Sections 52, 55, 57 of the NDPS Act.
Prosecution Case:
3. The brief facts as they emanate from the charge-sheet are that on 16.11.2016, one docket was sent by Head Constable Pradeep Kumar to Police Station, Kud in which it was stated that he along with Constable Kamaljeet Singh, Ramesh Kumar and Jeevan Singh, was performing naka duty at National Highway Kud and during checking, at around 1300 hours, one truck bearing registration No. PB08R-9348 coming from Srinagar towards Jammu was stopped. During checking, inside the tool box of the truck, 07 plastic bags covered by tarpaulin having Poppy Straw were found. The driver of the truck could not give satisfactorily reply. Both the persons disclosed their respective names as Manjit Singh S/o Darshan Singh, appellant herein (truck driver) and Sukhjeet Singh S/o Dilbagh Singh as such, both these persons have committed offences under sections 8 and 15 of the NDPS Act. The said docket was sent through SPO Jeevan Singh. Pursuant to this, FIR bearing No. 88/2016 dated 16.11.2016 was registered by Police Station, Kud, Udhampur for commission of offences under sections 8 and 15 of the NDPS Act. Thereafter, the investigation was conducted by Sanjay Gupta, SHO Police Station, Kud who proceeded on spot. The 07 bags were unloaded from the truck and they were weighed by electronic weighing scale brought from PW Mukhtiar Ahmed and total weight of the contraband was found to be 82 Kgs of Poppy Straw. The seizure memo was prepared on spot that was marked as Ext. 1/I and also two samples of 500 grams each of Poppy Straw were separately drawn from each of the seven bags, i.e. total 14 samples were drawn and they were marked as A1, B1, C1, D1, E1, F1, G1, A2, B2, C2, D2, E2 F2 and G2. The samples were sealed on spot. The truck and tarpaulin were also seized. The seizure memo of the truck and tarpaulin were also prepared. The supurdnama with regard to the handing over of the weighing scale was also prepared on spot. The samples were resealed on 17.11.2016 by the Executive Magistrate, 1st Class Chenani and on 21.11.2016, the same were sent to the FSL. The FSL vide report dated 09.12.2016 opined that the seized substance was Poppy Straw (Papaver Somniferum).
4. After the c
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