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2013 Supreme(P&H) 1367
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Muttaci Jeyapaul & Anita Chaudhry, JJ.
Jagdish – Appellants
Vs.
State of Haryana – Respondent
C.R.A.-D No. 143-DB of 2009
Decided On : 04.09.2013
For Appellant/Petitioner/Plaintiff:F.S. Virk and L.S. Bhalla, Advocates.
For Respondents/Defendant: Dhruv Dayal, D.A.G.
The judgment emphasizes the importance of compliance with legal provisions, the presumption of conscious possession, and the burden of proof in cases involving the NDPS Act.
Headnote:
NDPS Act - Conviction under Section 15/16 - Summary of Acts and Sections: NDPS Act, 1985, Section 15, Section 16 - The court discussed the compliance of Section 42 and Section 50 of the NDPS Act, the presumption raised under Section 54, and the requirement of conscious possession. The court also considered the non-joining of independent witnesses and the defense of false implication. The judgment confirmed the findings of the trial court and modified the sentence for one of the accused.
Fact of the Case:
The accused were convicted under Section 15 of the NDPS Act for possession of poppy straw. The prosecution's case involved a raid based on secret information, serving of notices, drawing of samples, and sealing of the contraband. The accused claimed false implication and non-compliance with legal requirements.
Finding of the Court:
The court found that the raid was conducted after sunrise, complying with Section 42, and the accused were in conscious possession, raising a presumption under Section 54. The defense of false implication and non-joining of independent witnesses was rejected. The trial court's findings were confirmed, and the sentence for one accused was reduced.
Issues: Non-compliance with Section 42 and Section 50, conscious possession, false implication, non-joining of independent witnesses.
Ratio Decidendi: The compliance with legal provisions, presumption of conscious possession, and the lack of evidence for false implication were crucial in the court's decision.
Final Decision: The appeal was dismissed, confirming the trial court's findings, and the sentence for one accused was reduced.
Anita Chaudhry, J.
1. The present appeal is directed against the judgment of conviction dated 24.01.2009 and order of sentence dated 29.01.2009 passed by Additional Sessions Judge, Sirsa in F.I.R. No. 57 dated 18.03.2006 registered under Section 15/16 of Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred as NDPS Act) registered at police station Sadar Dabwali, District Sirsa. Accused Jagdish was convicted for having in his possession 777 kgs of poppy straw. He was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1 lac under Section 15 of the NDPS Act. In default of payment of fine, he was to further undergo simple imprisonment for a period of one year. Accused Sewak Singh was convicted for having in his possession 1110 kgs of poppy straw and was sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 1 lac under Section 15 of the NDPS Act. In default of payment of fine, he was to further undergo simple imprisonment for a period of one year. The prosecution story as unfolded by the prosecution is that Inspector Shish Ram along with ASI Krishan Chander and other police officials were on patrol duty on Rajasthan Canal Bridge in the official vehicle when secret information was received that Dhanraj Bishnoi, Manjeet Singh, Gurpreet Singh, Jagdish Meghwal and Sewak Majhabi, residents of Abubshahar, were habitual in the illegal trade of poppy straw. The secret informer informed the officer that in the intervening night Dhanraj, Manjeet and Gurpreet had brought bags of poppy straw in a pickup van from Rajasthan and those had been unloaded in the houses of Sewak Majhabi and Jagdish Meghwal and the bags were still in their houses and if raid was conducted, the bags could be recovered. Believing the information to be true, a notice under Section 42 of the Act was prepared, which was sent by the Inspector to Raj Kumar, DSP through EHC Hanuman Singh. The Inspector formed a raiding party. Meanwhile, Daya Nand, Inspector CIA (II), Sirsa along with Inspector Jagat Singh and ASI Sita Ram who were called, reached in another vehicle, they were also apprised of the same information. One party headed by Inspector Daya Nand was deputed to go towards Sewak's house while the other party headed by Inspector Shish Ram proceeded towards Jagdish's house.
2. The police party reached the house of Jagdish and it was noticed that one person was arranging the bags in a room. He was apprehended and he disclosed his name as Jagdish. The Inspector suspected that the bags contained contraband and notice Ex. PJ was served upon him. He was apprised of his right of getting the search effected before a gazetted officer or a Magistrate. Jagdish in his reply Ex. PJ/1 desired that the search be carried out in the presence of a gazetted officer. The DSP Raj Kumar was called.
3. DSP Raj Kumar along with his staff reached the spot. In his presence, 21 bags were checked and the bags were found to contain poppy straw. Two samples of 100 grams each were taken from every bag. The remaining poppy straw in each bag was found to be weighing 36 kgs 800 gms. The samples and the residue bags were sealed with the seal impressions 'SR' as well as with seal 'RK' of the DSP. The seal having impression 'SR' after its use it was handed over to ASI Krishan Chander by the Inspector while the DSP retained his seal. The recovery memo. Ex. PG was prepared, which was attested by Raj Kumar, DSP. ASI Krishan Chander along with constable were left on the spot and Inspector Shish Ram along with other police officials reached the house of accused Sewak. Inspector Daya Nand and other members of the party were already present there. One person was found sitting on the bags, who revealed his name as Sewak. Suspecting some contraband in the bags, notice Ex. PK was served upon him and he was apprised to his right of getting the search effected in the presence of a gazetted officer or Magistrate.
