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2012(1) LAW HERALD (P&H) (DB) 296
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice S. S. Saron
The Hon’ble Mr. Justice M. Jeyapaul
Crl. A. No. 631-DB of 2006
Neeraj Kumar
v.
State of Haryana
{Decided on 11/01/2012}
(B) Narcotics and Psychotropic Substances Act, 1985, S.21--Sample Seals--DSP deposed that seals used by him so were of square shape whereas IO said seals used by both of them were of ring shape--Held; they were examined before the Court after a lapse of one long year--Under such circumstances, it may not be possible for them to keep it in memory even the shape of the seal used by them--Seal impression was sent along with the samples and the seal found on the samples did tally with the seal impression sent for comparison, as per report of the Chemical Examiner--Such a variation in the testimony of would not create any doubt. (Para 18).
(C) Narcotics and Psychotropic Substances Act, 1985, S.54--Conscious Possession--Acquittal--Accused was not found lifting any of the bags of contraband and was also not arrested at the scene of occurrence--Benefit of doubt extended to accused and therefore acquitted. (Para 19)
(D) Narcotics and Psychotropic Substances Act, 1985, S.15--Reduction in Sentence--Recovery of 286 kgs of poppy straw--Sentence of 12 years RI--Held; Sentence not very much proportionate to the quantity of contraband recovered--Reduced to 10 years R.I (Para 20)
(E) Narcotics and Psychotropic Substances Act, 1985, S.54--Conscious Possession--Accused was virtually found lifting one of the bags of the contraband and he was found at the exact spot, referred to by the informer, with the contraband--Held; He was in conscious possession thus convicted. (Para 13)
(F) Evidence Act, 1872--Hostile witness--Independent witness--The very fact that the independent witness, has been examined by the defence to support the version of the accused, would go to establish that in fact, he was won over--Narcotics and Psychotropic Substances Act, 1985. (Para 15)
Mr. M. Jeyapaul, J.: - This shall dispose of Criminal Appeal Nos. 631-DB and 694-DB of 2006 as the same have arisen out of same judgment.
2. Accused, Neeraj Kumar and Manoj Kumar, were convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the 1985 Act’) and each of the two was sentenced to undergo rigorous imprisonment of 12 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. Accused, Neeraj Kumar has preferred Criminal Appeal No. 631-DB of 2006 while accused Manoj Kumar has filed Criminal Appeal No. 694-DB of 2006.
3. The brief case of the prosecution is that on 9.1.2005, PW-7 SI Satpal Singh along with PW-5 ASI Prem Singh and other police officials proceeded towards Phoosgarh road for detection of crime. By then, he received a secret information at about 4.45 PM that the accused Neeraj Kumar and Manoj Kumar and one Hariom Pandit who was declared a proclaimed offender, were engaged in the process of transporting poppy straw in a plot near New Bal Bharti Public School, R.K.Puram, Karnal. Based on such information, PW-7 sent a ruqa, Exhibit P-9, to the police station. A formal FIR came to be registered based upon ruqa sent by PW-7. One Udaivir Singh was also associated for the purpose of raid. PW-5 and PW-7 along with other police officials then proceeded to the said spot referred by the informer. Three young persons were found present there. Accused Neeraj Kumar was found lifting one of the bags lying over there. On seeing the police party, except accused Neeraj Kumar, the other two accused persons ran away, out of whom one was Manoj Kumar accused. 9 bags were found lying at the spot. As per the choice and preference of accused Neeraj Kumar, PW-6 DSP Kirat Pal Singh was associated for the purpose of search and seizure. In his presence, all 9 bags were checked and the same were found containing poppy straw. Two samples of 100 grams from each of the 9 bags were separated. The remaining quantity in each of the bags weighed between 28.800 kgs. to 33.800 kgs. The total weight of the bags weighed 285 kgs. The samples and the residue were converted into separate parcels. They were properly sealed with the seal of PW-6 DSP Kirat Pal Singh and PW-7 SI Satpal Singh. PW-6 kept his seal with him after use whereas PW-7 handed over the seal, after use, to PW-5 ASI Prem Singh. Accused Neeraj Kumar was arrested. The case property along with the accused was produced before PW-4 Inspector Hari Kailash who was the Station House Officer of Police Station Sadar, Karnal. He having affixed his seal over the samples and the remaining quantity of the contraband, deposited the same in the Malkhana. Accused, Neeraj Kumar, was remanded to judicial custody. On 14.1.2005, PW-7 having received secret information about the movement of accused Manoj Kumar, proceeded towards Subzi Mandi (Vegetable Market), Karnal, and arrested him from there vide arrest memo. Exhibit P-16. He too was remanded to judicial custody.
4. PW-1 Constable Rishi Parkash delivered the special report to the learned Additional Chief Judicial Magistrate, Karnal, at about 8.45 PM on 9.1.2005. PW-2 MHC Shingara Ram deposed that the case property was in fact deposited in the Malkhana on 9.1.2005 itself by PW-4 Inspector Hari Kailash. The case property which was taken out for the purpose of production before the learned Additional Chief Judicial Magistrate, was redeposited in the Malkhana on the same day at about 5 PM. PW-3 Constable Abhey Singh took the case property to Forensic Science Laboratory, Madhuban, Karnal, on 11.1.2005 but the same was returned by the said Laboratory for some compliance. The case property was again entrusted by PW-3 to the Forensic Science Laboratory on the next day, i.e. 12.1.2005. The FSL’s report would read that the sample sent for examination was nothing but poppy straw. PW-7 laid final report as agains
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