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PUNJAB AND HARYANA HIGH COURT
R.L. Anand and Hemant Gupta, JJ.
Dharminder Kumar - Appellant
Versus
State of Punjab - Respondent
Crl. A. No. 165-DB of 2002.
Decided On : 13 September, 2002
Narcotic Drugs and Psychotropic Substances Act - Violation of Section 42 - Sections 42 and 43 - Summary of the Acts and Sections: The court discussed the violation of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the distinction between Sections 42 and 43. It highlighted the mandatory nature of the provisions and the requirement for strict compliance by the prosecution. The court also emphasized the need for a pragmatic interpretation of the provisions to prevent the escape of offenders and the balance between stringency and practicality in enforcing the law.
Fact of the Case:
The appellants were convicted for possession of poppy husk without a permit or license under the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution's case was primarily based on the testimony of ASI Bhag Mal and the recovery of the contraband.
Finding of the Court:
The court found that the provisions of Section 42 were not applicable in the case and that the accused had suffered no prejudice due to non-compliance. It also dismissed the argument regarding the absence of independent witnesses and the notice of search in the presence of a Gazetted Officer. The court acquitted two of the accused due to lack of evidence linking them to the contraband, while affirming the conviction of the other two accused.
Issues: Violation of Section 42, absence of independent witnesses, and notice of search in the presence of a Gazetted Officer.
Ratio Decidendi: The court emphasized the mandatory nature of the provisions of the Narcotic Drugs and Psychotropic Substances Act, the distinction between Sections 42 and 43, and the need for a pragmatic interpretation of the provisions to prevent the escape of offenders.
Final Decision: Two accused were acquitted, and the conviction of the other two accused was affirmed with a reduced sentence.
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 judgment of Judicial Special Court, Nawanshahar dated 15.2.2002 whereby all the appellants were sentenced to undergo rigorous imprisonment for 15 years and a fine of Rs. one lakh each and in default to undergo further rigorous imprisonment 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 respectively. Both Jasbir Singh and Dharaminder 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 statements 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 recovered 30 bags of poppy husk kept, concealed beneath 15 gunny bags of Cattle Feed. In the meantime, Constable Surender Singh came along with scales, but informed that no independent 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 Psychotropic Substances Act, 1985 (hereinafter 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 primarily 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 PW8. 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 PW8.
5. PW1 Mukhtiar Singh has corroborated the version of PW6 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 PW6 Bhag Mal ASI with him on 8.9.1999. The sample packets were entrusted to PW2 Constable Jaswinder Singh for depositing the same to the Chemical Examiner who has furnished its
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