2011 Supreme(P&H) 2020

2012(2) LAW HERALD (P&H) (DB) 1179
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice Jasbir Singh
The Hon’ble Mr. Justice Kanwaljit Singh Ahluwalia
Criminal Appeal No.145-DB of 2007
Davinder Kumar
v.
State of Punjab
{Decided on 21/11/2011}

Headnote:Narcotic--Independent Witness--Examination of an independent witness is a rule of prudence and not of necessity

       Narcotic--Acquittal--Appellants were not apprehended at the spot--Police party, as per ruqa sent for registration of the case, consisted of ten police officials--It is improbable that accused will be able to escape from spot when police party having received secret information had fully prepared in advance itself to nab them.

       (A) Narcotic Drugs and Psychotropic Substances Act, 1985, Ss. 42 & 43--Non- Compliance of S. 42--Three bags of poppy husk recovered from rear seat of cab--Recovery was effected when the vehicle was in transit--Section 43 attracted--Held that non-compliance of S. 42 is not fatal to prosecution.

       (B) Narcotic Drugs and Psychotropic Substances Act, 1985, Ss. 42 & 43--Conviction--Having received the secret information, it was imperative for SI, to immediately apprehend the vehicle--Police party had to deal with an emergent situation--Urgency and expediency to unearth the crime and effect the recovery demanded that recording of the information in writing and sending a copy thereof to the superior officials be postponed for a reasonable period--Even non-compliance of Section 42 of can also not be construed detrimental to prosecution as the accused have failed to show cause any sufferance of prejudice.

       (C) Narcotic Drugs and Psychotropic Substances Act, 1985, Ss. 15 & 18, 42 & 43--Independent Witness--Examination of an independent witness is a rule of prudence and not of necessity--In a case where deposition of the official witnesses is found to be reliable and credible by the Court, it will not discard the same merely on the ground that an independent witness has not been examined--It is only in case where there is some doubt, the Court will insist for the testimony of independent witness--Examination of independent witness is not a rule of thumb.

       (D) Narcotic Drugs and Psychotropic Substances Act, 1985, Ss. 15 & 18, 42 & 43--Sample--Non-entrustment of the sample specimen seal to the independent witness--Independent person was offered the seal and he showed his inability to remain present--Otherwise also, on very next day the samples were produced in the Court of Area Judicial Magistrate, who had found seals intact--No adverse inference can be drawn.

       (E) Narcotic Drugs and Psychotropic Substances Act, 1985, Ss. 15 & 18, 42 & 43--Acquittal--Appellants were not apprehended at the spot--Police party, as per ruqa sent for registration of the case, consisted of ten police officials--It is improbable that accused will be able to escape from spot when police party having received secret information had fully prepared in advance itself to nab them.

        PW-4 and ASI, PW-7 are silent as to who made an attempt to chase two accused-appellants and as to what effort was made for effecting their arrest--SI, PW-4 had only stated that these two persons, who were occupying back seat of the car, escaped and the police party did not follow them for a long distance--Though, it was admitted that both of these witnesses were carrying service revolves not even a single shot was fired to threaten the persons who ran away from the spot--Names of these two accused-appellants have only surfaced in the secret information relayed or during interrogation of their co-accused--Both circumstances, i.e. secret information and the information given by co-accused during interrogation are inadmissible in evidence and cannot be relied upon as incriminating circumstances accused-appellants--None of the witnesses has stated that accused-appellants were known to them earlier--Thus, taking totality of circumstances benefit of doubt extended to appellants--They are acquitted of the charges.

       (F) Narcotic Drugs and Psychotropic Substances Act, 1985, Ss. 15 & 18, 42 & 43--Reduction of sentence--Occurrence, pertains to December, 2004--Appellants are already in custody for a period of about seven years--They have suffered mental pain and agony of a protracted trial--Prosecution has not brought on record whether these three accused-appellants have been convicted in any case earlier or not--Taking into account sufferance of a protracted trial, age and antecedents of appellants sentence awarded under Sections 15 and 18 of the Act is reduced from 12 years to 10 years RI.

       (G) Narcotic Drugs and Psychotropic Substances Act, 1985, Ss. 15 & 18, 42 & 43--Fine--Sentence in default of fine--Where the amount of fine is very heavy, the Court has to consider various factors; financial status i.e. capacity of the accused to pay fine, period of substantive sentence awarded and antecedents of the accused--In default of payment of fine appellants shall undergo rigorous imprisonment for one year instead of two years as awarded by the trial Court.