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2008 Supreme(P&H) 981
2008(4) LAW HERALD (P&H) 2792
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Harbans Lal
Criminal Appeal No.877-SB of 2001
Malkit Singh
v.
State of Punjab
{Decided on 06/05/2008}
For the Appellant:Mr. Bikramjit Arora, Advocate.
For the Respondent-State: Ms Manjari Nehru, DAG, Punjab.
IMPORTANT POINT
Contraband--SHO stated he did not affix his seal on case property--Not disclosed to whom did seal belongs which was affixed.
Headnote:(A) Contraband--Search and seizure--Recovery of 7 bags containing poppy husk from rickshaw-rehri--14 days delay in sending the sample to the chemical examiner--SHO stated he did not affix his seal on case property--No specific question has been framed by trial Court that they were in possession of the bags--Conscious possession not established qua the bags by the prosecution--Accused acquitted--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 15. (Paras 8, 9, 13)
(B) Contraband--Conscious possession--Examination of accused--Recovery of 7 bags from rickshaw-rehri containing poppy husk--Trial Court to frame a specific question regarding presumption, which is sought to be raised either under Section 35 or Section 54 of the Act when the accused were examined under Section 313 of Cr.P.C., so as to seek their explanation--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 35 & 44--Criminal Procedure Code, 1973, Section 313. (Paras 13 & 9)
(C) Contraband--Search and seizure--S.H.O. stated he did not affix his seal on case property--The prosecution has not disclosed as to whom the seal belongs which was affixed--This causes a dent in the prosecution case--Accused acquitted--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 15--Evidence Act, 1872, Section 3. (Para 10)
Harbans Lal, J:-This appeal is directed against the judgment /order of sentence dated 18.7.2001 passed by the Court of learned Special Judge, Rupnagar, whereby he convicted and sentenced Malkit Singh accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for two years under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, ‘the Act’ ).
2. The minimal facts of the prosecution case are that on 21.2.1997, SI Gurvinder Pal Singh among other police officials by going in government Allwyn Nissan Vehicle bearing registration No. PB-12A-4826 driven by SPO Daljit Singh carried out checking of duties of Police Posts. Thereafter, they associated with them ASI Malvinder Singh, Incharge Police Post, Arkhali and other police officials. They set up Naka near river Saimphalpur near the gate for the night dominance operation. It was 5.30 A.M. when they were chattering with Sarpanch Harpal Singh of Mianpur. Meanwhile, the accused Malkit Singh was spotted coming from the side of aforesaid village carrying something on a Rickshaw Rehri. He halted his Rehri at some distance and made an attempt to turn back. The Police by directing the search light towards the accused, asked him to stop. Accordingly, he stopped. On being questioned about the contents of gunny bags on the Rickshaw Rehri, he got perplexed and disclosed that it was fresh poppy husk. On receipt of wireless message, Joginder Kumar DSP came at the spot. He asked the accused to tell as to whether he wanted to have the search before a Judge. He expressed his faith in him. The gunny bags, 7 in number, were unloaded. Their contents were found to be poppy husk. When weighed, the contents of 3 bags came to 26 Kg.500 Grams whereas of the 4 bags, turned out to 24 Kg. 500 Grams. Two samples of 250 grams were drawn from each bag to serve as sample and converted into parcels. The residue of poppy husk in each bag was also made into a parcel. The sample seal was prepared. All the parcels were sealed with the seal MS and the chits of aforementioned DSP. All the parcels were seized vide recovery memo. The Rickshaw Rehri was also taken into possession vide separate recovery memo. The Investigator sent Ruqa to the Police Station, where on its basis, formal FIR was registered. He prepared the rough site plan showing the place of recovery. On receipt of chemical examiner’s report and after completion of investigation, the charge sheet was laid in the Court for trial of the accused.
3. The accused was charged under Section 15 of the Act to which he did not plead guilty and claimed trial.
4. To bring home guilt against the accused, the prosecution has examined PW-1 MHC Nikka Ram, PW-2 Harpal Singh Sarpanch, PW-3 SI Gurvinderpal Singh, PW-4 Joginder Kumar DSP, PW-5 Constable Harnek Singh and closed its evidence.
5. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him. He put forth that his cousin brother had contested the election against Jeet Singh Sarpanch who was elected and he is a police informer. At his instance, he has been falsely involved in this case. In his defence, he examined Gurcharan Singh, Member Panchayat of Village Dhanauri, DW-1 and Mohan Singh, Member Panchayat, DW-2.
6. After hearing the learned Additional Public Prosecutor, the learned defence counsel and examining the evidence on record, the learned trial court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction/sentence, he has preferred this appeal.
7. I have heard Mr. Bikramjit Arora, Advocate for the appellant, as well as Ms Manjari Nehru, Deputy Advocate General, Punjab for the State, besides going through the record with due care and circumspection.
8. Mr.Bikramjit Arora, Advocate appearing on the behalf of the app
