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2017 Supreme(P&H) 2706
IN THE HIGH COURT OF PUNJAB AND HARYANA
SUDIP AHLUWALIA, J.
DEVINDER SINGH @ KAKA – Appellant
Vs.
STATE OF PUNJAB – Respondent
CRA No. 3147-SB of 2009
Decided on : 06-12-2017
Advocate Appeared:
For the Appellant :L.S. Sidhu, Advocate
For the Respondent:Hittan Nehra, Addl. Advocate
IMPORTANT POINT
.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15 – Identification of accused – Accused managed to flee from the spot – Held; No question was put to witness as to how he knew about the directly of flee is accused – Witness denied previous acquaintance with accused – Accused had been convicted under different FIR for similar offence – Witness in police service for a long time – Normal acquaintance with identity of a person who was allegedly involved in another case of a similar nature – Not impossible for police constable to establish identity of accused – Conviction upheld.
(B) Evidence Act, 1872, S.137 – Examination of Witness – Contention that accused was not put specific question as to whether to wanted to lead any evidence – Declined – Held; Guardian by court "anything else to say" was enough to cover ambit of granting opportunity to accused to lead evidence – Criminal Procedure Code, 1973, S.313.
(C) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15 & S.54 – Conscious Possession – Held; Running away from spot means that accused knew about presence of contraband – No previous enmity with police officers established – Accused who claims not being in conscious possession, he himself has to establish the same – Conviction upheld.
Sudip Ahluwalia, J.
This appeal is directed against the Judgment of conviction and order of sentence dated 30.3.2009 passed by the Ld. Judge, Special Court, Muktsar in SC No. 125/21.11.2002 arising out of FIR No. 29 dated 25.3.2002 of Police Station Gidderbaha, under Section 15 of the Narcotic Drugs & Psychotropic Substances Act (in short "NDPS Act"), 1985.
2. Vide the impugned Judgment, the Trial Judge had convicted the Appellant of the offence under section 15 of the NDPS Act, and sentenced him to undergo imprisonment for a period of ten years and to pay a fine of Rs. One Lac, in default whereof he was directed to further undergo imprisonment for a period of six months.
3. The Appellant faced trial on the charge that he had committed the aforesaid offence since he was found in possession of 180 Kg. of Poppy Husk on 25.3.2002 at about 7.30 P.M. in the area of village Bharu without any permit or licence.
4. Scrutiny of the Trial Court record goes to reveal that actual evidence from the prosecution side was recorded by way of deposition of PW-1 ASI Gurdev Singh on 12.4.2006. Prior to that on 16.2.2006 on submission of Ld. Addl. PP for the State, the evidence of one witness namely C. Harbans Singh, who was present in Court, was given up 'being unnecessary'. Thereafter, six more witnesses were examined from the prosecution side and the prosecution evidence was finally closed on 20.3.2009 after recording the statement of PW-7.
5. No independent witness was led from the defence side but in the examination of the Appellant by the Court under section 313 Cr.PC, it was his consistent assertion that the statements and evidence led against him are all false and motivated; that he is innocent and that his Car was brought to the Police Station one day prior to the alleged recovery and on the next day, such false recovery was foisted upon him.
6. Having carefully perused the oral as well as documentary evidence led from the prosecution side and after hearing arguments and submissions raised on behalf of the Appellant, this Court now proceeds on to consider the merit in each of the contentions/points raised to assail the impugned Judgment.
7. The first ground on which the Judgment of conviction has been challenged is that identification of the accused/Appellant for the purpose of showing his involvement in the alleged offence was itself not established. It is seen on perusal of the impugned Judgment that the same submission regarding identification of the accused/Appellant was also raised before the Ld. Trial Court, which however, found little merit in the same. Now to substantiate this contention before this Court, Ld. counsel for the Appellant has drawn attention to the FIR which was drawn up at the Police Station shortly after the alleged seizure of contraband from the Appellant's Car from which he otherwise managed to flee away. Perusal of the aforesaid FIR drawn up at 8 P.M. (Ex.P9) goes to show that the occurrence allegedly took place near village 'Bharu' about 3 K.M. north of the Police Station. Details of the incident have been mentioned in the said FIR in which it is also specifically noted that the fleeing accused was identified by C. 68 Harbans Singh as 'Devinder Singh @ Kaka son of Kashmir Singh, Jat, R/o Kandu Khera'. This noting would clearly go to show that identity of the accused was already known to the complainant/Police Party by the time the FIR was drawn up at 8 P.M. on 25.3.2002, and that such identity had been established by C. 68 Harbans Singh, who was a member of the Police Party. This is also clear from the statement of complainant/ASI Gurdev Singh as PW-1 to the effect that 'C. Harbans Singh No. 68 identified by (Sic) as Devinder Singh accused'. PW-3 DSP Kulwinder Singh also stated in his deposition that S.I. Kirpal Singh and some other Police officials had chased the accused, but could not apprehend him. He was identified by C. Harbans Singh, who disclosed his name as 'Devinder Singh'. Subsequently, C. 68 Harba
