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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mrs. Justice Anita Chaudhry
CRA-S- 260-SB of 2009 (O&M)
Pawan Kumar @ Pappu & Anr.
v.
State of Punjab
{Decided on 17/02/2018}
It cannot be said on the basis of the evidence available on record that the appellants including the driver were having custody or control of the contraband lying on the back of the truck. It is difficult to reach such conclusion beyond reasonable doubt. None of the appellants were the owners of the truck. (Para 19)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985, S.34 & S.54 – Conscious Possession – Acquittal – Recovery of poppy husk from truck – All the accused were sitting in the cabin of truck – No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and offending goods – Appellants are neither owners of truck nor proved to have custody and control over the contraband lying on the back of truck – Conscious possession not proved beyond reasonable doubt – Accused acquitted. (Para 18)
(C) Narcotics Drugs and Psychotropic Substances Act, 1985, S.35 – Defective Investigation – Acquittal – As per prosecution a photographer had been called on the spot but there are no photographs nor the photographer was examined – No explanation for holding back of photographs – Accused acquitted. (Para 8)
(D) Narcotics Drugs and Psychotropic Substances Act, 1985, S.35 – Non-examination of independent witness – Acquittal – Recovery becomes doubtful when the only independent witness is not examined – Accused acquitted. (Para 18)
(E) Narcotics Drugs and Psychotropic Substances Act, 1985 – Seal – Sample seal was not handed over to the independent witness but was handed over to a police officer which goes to show that the independent witness was not present on the spot – Possibility of seal being tempered cannot be ruled out – Accused acquitted. (Para 19)
(F) Narcotics Drugs and Psychotropic Substances Act, 1985, S.15 – Defective investigation – Investigating officer did not prepare the inventory which was required to be prepared on the spot – Accused acquitted.
Mrs. Anita Chaudhry, J.:- These are three appeals against the judgment of conviction and order of sentence dated 01.12.2008, passed by the Special Court, Ludhiana emanating from FIR No. 5 dated 14.01.2006, registered under Section 15 of the NDPS Act, whereby the appellants were convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1 lac each. In default of payment of fine, they were to undergo further rigorous imprisonment for a period of 6 months.
2. Since all the appeals have arisen from common judgment, therefore, they are being taken up together.
3. The case of the prosecution is that on 14.01.2006 SI Jangjit Singh along with HC Teja Singh, HC Bhagwan Singh and other police officials were going on their official vehicle from Dehlon towards village Kaind. A private witness Niranjan Singh met them near the bus stop of village Sayan. The police party laid a picket at the canal bridge of village Kaind. They saw a truck bearing registration no. HR-29-D-0267 coming from the side of village Kaind. SI Jangjit Singh signaled the truck to stop. The driver after stopping the truck tried to escape but was apprehended. There were three other persons who were sitting in the truck. They were also apprehended. The driver disclosed his name as Kuldeep Singh and the other disclosed their names as Subhash Chand, Pawan Kumar and Ranbir Singh. SI Jangjit Singh introduced himself to the accused and desired to search the truck as they had suspicion that it had contraband articles. Those persons were informed that they could get the search conducted in the presence of a Gazetted Officer or a Magistrate. The accused consented to the search by SI Janjit Singh and their separate consent statements were recorded.
4. On search, 20 bags containing poppy husk were recovered, which were lying under the apple cartons. Two samples of 100 grams each were separated from each bag and on weighment the remaining bags were found to be 29 kgs 800 grams each. The samples as well as bulk parcels were sealed by SI Jangjit Singh with seal bearing impression “JS”. The seal after use was handed over to ASI Jaswant Singh. Thereafter, personal search of the accused was carried out from whom some currency notes of small denomination were recovered. A separate recovery memo was prepared with respect to that recovery.
5. The police party returned to the police station and SI Jangjit Singh produced the case property alongwith the accused and PW5 before SHO Amarjit Singh and after verifying the same he deposited the case property with HC Gulab Singh.
6. The case of the prosecution further is that SI Jangjit Singh took the case property from MHC Gulab Singh and produced it alongwith the accused in the Court and on return the case property was deposited back with the MHC. On receipt of Chemical Examiner report, the challan was presented against all the accused. They were charged under Section 15 of the NDPS Act.
7. The prosecution examined DSP Amarjit Singh, ASI Jaswant Singh and SI Jangjit Singh PW5. Gurpreet Singh PW4 had deposited the samples with the office of Chemical Examiner. The remaining witnesses were given up as unnecessary. PW Niranjan Singh was given up as won over.
8. The accused abjured the trial. Accused Pawan Kumar took a plea that he was running a cloth business since 2003 in Ludhiana and he had taken the shop on rent from its owner Mithhu Joshi who was working with a lawyer at Ludhiana and he had relations with the higher officials and he wanted to get the shop vacated and he had been falsely implicated.
9. Subhash accused brother of Pawan Kumar took the same plea as taken by his brother. The remaining two accused pleaded that they had been picked up from home and the real persons were let off and the case was planted. They examined two witnesses namely Major Singh Constable who proved the time of departure of the police party. Niranjan Singh, the independent witness disclosed that the police had obt
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