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2012 Supreme(P&H) 858
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice S.S. Saron
The Hon’ble Mr. Justice S.P. Bangarh
CRA No.324-DB of 2009 (O&M)
State of Punjab
v.
Jia Ram, s/o Khanger Ram
{Decided on 18/07/2012}
For the Appellant:Mr. S.S.Dhaliwal, Additional Advocate General, Punjab.
For the Respondents No.1 to 3:Mr. G.S. Gill, Advocate.
Headnote:Narcotics—Personal Search--Opium was recovered from a bag being carried by accused persons in Jeep, wherein, they were travelling--Held, provisions of S.50 of the Act would not be attracted.
(A) Evidence Act, 1872--Testimony of witnesses--Minor Contradictions--Effect--Held, human memory is fallible and erodes with the passage of time--Such minor contradictions are likely to occur in testimonies of witnesses after a passage of time.
(B) Evidence Act, 1872--Testimony of witnesses--Minor Contradictions--Effect--Witnesses are not alleged to have any animus or hostility towards accused--Therefore, no motive can be ascribed to prosecution witnesses to implicate accused falsely in present case or depose falsely against them before trial Court. (Para 30)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985, S.18--Independent Witnesses--Non joining of--Recovery of 24Kgs 980 gms of opium--Efforts were made by Investigating Officer to join independent witnesses but none was available--Held, people in rural areas are generally reluctant and averse to join police in such cases as they are afraid of the fact that joining police and deposing in favour of prosecution may expose them to serious consequences and create permanent enmity with accused--Evidence of prosecution witnesses examined in present case cannot be discarded or repelled due to non association of non official or independent witnesses--Acquittal set aside. (Paras 31 & 65)
(D) Narcotic Drugs and Psychotropic Substances Act, 1985, S.50--Personal Search--Opium was recovered from a bag being carried by accused persons in Jeep, wherein, they were travelling--Held, provisions of S.50 of the Act would not be attracted--Acquittal set aside. (Paras 36 & 65)
(E) Narcotic Drugs and Psychotropic Substances Act, 1985, S.55--Case property--Keeping of--Recovery of 24Kgs 980 gms of opium--Station House Officer himself was Investigating Officer who kept case property in his possession throughout till deposit, thereof, in ‘malkhana’ as also, till deposit of sample parcel in office of Chemical Examiner through PW2, Constable--Held, provision of S.55 of the Act has been complied with in present case--Acquittal set aside. (Paras 37 & 65)
(F) Narcotic Drugs and Psychotropic Substances Act, 1985, S.35--Conscious possession--Presumption u/s.35--Recovery of 24Kgs 980 gms of opium--Opium was recovered from a bag being carried by accused persons in Jeep, wherein, they were travelling--Held, trial Court ought to have presumed that accused had culpable mental state u/s.35 of the Act and had committed offence--Acquittal set aside. (Paras 49 & 65)
Mr. S.P. Bangarh, J.:- The appellant State of Punjab has assailed the judgment dated 24.12.2007, passed by the learned Judge, Special Court, Ferozepur in Session Case No. 338 of 2006, Session Trial No. 105 of 2007 emanating from FIR No. 203 dated 07.09.2006, Police Station Sadar Abohar, whereby, the respondents were acquitted of charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘Act’ for short).
2. Case of the appellant is that on 07.09.2006, Major Singh, Sub Inspector, Station House Officer, Police Station Sadar Abohar alongwith Iqbal Khan ASI and other police officials was proceeding from village Sherewala towards the culvert known as Patli in a Bollero jeep bearing registration No. MH-02-A/TR-869 being driven by HC Jalandhar Singh in connection with patrol duty and checking of suspected persons. At about 04:30 pm, when they reached near the culvert in the area of village Sherewala, one Bollero jeep bearing registration No. RJ-19UA-1203 came from the opposite side. On seeing the police vehicle, driver of that vehicle tried to retreat his vehicle and, thereupon, Major Singh SI intercepted the Bollero jeep bearing registration no. RJ-19UA-1203 with the help of other police officials. On inquiry, the driver of that vehicle disclosed his name as Bansi Lal (respondent) and the other two persons who were sitting in the said vehicle disclosed their names as Uma Ram and Jia Ram (respondents).
3. Major Singh, SI then tried to join some independent witness in the police party, but no one was found available. Then Major Singh SI disclosed his identity to those persons, who are respondents herein. Then he informed them that he suspects some contraband in their possession, as also, in their vehicle, therefore, he wants their search, as also, the search of their vehicle to be conducted and they had a legal right to have their search, as also, of their vehicle conducted in the presence of some gazetted officer or Magistrate. The respondents then replied that they wanted to get their search, as also, of their vehicle conducted in the presence of some gazetted officer regarding which memo Ex.P1 of Bansi Lal, Ex.P2 of Jia Ram and Ex.P3 of Uma Ram were prepared, which were signed by them and attested by Iqbal Khan ASI and Sukhmander Singh ASI.
4. Thereafter, Major Singh SI sent a message to police post Bahavwala through wireless set to send Amrik Singh, DSP at the spot, who reached at the spot at 6:00 pm. On reaching at the spot, he disclosed his identity to the respondents and he informed them that he suspected some intoxicant material to be in their possession, as also, in their vehicle and that they have got a legal right to get their search, as also, of their vehicle conducted in the presence of some other gazetted officer or Magistrate. Thereupon, the respondents reposed confidence in Amrik Singh, DSP in getting their search, as also, the search of their vehicle conducted by him and they signed consent memos Ex.P4, Ex.P5 and Ex.P6 respectively in this regard.
5. Thereafter, Major Singh, SI conducted the search of the vehicle, which resulted in recovery of a gunny bag containing opium in a glazed paper from underneath the middle seat of the vehicle. Two samples of 10 gms each of opium were taken out from the recovered opium and their separate parcels were prepared. The remaining opium on weighment came to 24 kgs 980 gms and its separate parcel (MO-1) was prepared. All the three parcels were sealed by Major Singh, SI and Amrik Singh, DSP with their respective seals bearing impressions ‘MS’ and ‘AS’ respectively and they also prepared sample seals chit Ex.P16. Major Singh, SI handed over his seal to Iqbal Khan, ASI, while Amrik Singh, DSP retained his seal with him.
6. The entire case property was seized vide memo Ex.P7 alongwith Bollero jeep No.RJ-19-UA/1203 which was attested by the aforementioned officials. The respondents could not produce any valid permit or licence for keeping in their posses
