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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Rajiv Sharma, Harinder Singh Sidhu, JJ.
Dilbagh Singh And Another - Appellant
Vs.
State Of Haryana - Respondent
Criminal Appeal (D) No. 1090 of 2012
Decided On : 15-05-2019
NDPS ACT - SECTION 15(C) - APPEAL AGAINST CONVICTION AND SENTENCE - SECRET INFORMATION RECEIVED BY POLICE - DELAY IN COMPLYING WITH PROVISIONS OF SECTION 42 - SUBSTANTIAL COMPLIANCE - SECTION 50 - CONDITIONS UNDER WHICH SEARCH OF PERSONS SHALL BE CONDUCTED - STRICT COMPLIANCE - CONSTRUCTIVE AND CONSCIOUS POSSESSION OF CONTRABAND - DETENTION ORDER UNDER PREVENTION OF ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1988.
Fact of the Case:
Police received secret information that Raju, Balraj, and Vinod were involved in smuggling poppy husk. They intercepted a truck and a Tavera vehicle. Four sacks of poppy husk were recovered from the Tavera, and 74 sacks were recovered from the truck. The appellants, Bajrang and Dilbag Singh, were convicted and sentenced to 12 years of rigorous imprisonment and a fine of Rs. 1,25,000 each. Co-accused Baljeet, Shyama, Rajesh, Raju alias Narender, and Prabhu were acquitted.
Finding of the Court:
The court found that the prosecution had proved the case against the appellants. The secret information received by the police was reliable, and the delay in complying with the provisions of Section 42 of the NDPS Act was justified in the circumstances. The court also found that Section 50 of the NDPS Act was not applicable in the present case as the contraband was recovered from the vehicles and not from the person of the appellants. The court further held that the appellants were in constructive and conscious possession of the contraband even though they were not physically carrying it.
Issues: 1. Whether the prosecution had proved the case against the appellants. 2. Whether the delay in complying with the provisions of Section 42 of the NDPS Act was justified. 3. Whether Section 50 of the NDPS Act was applicable in the present case. 4. Whether the appellants were in constructive and conscious possession of the contraband.
Ratio Decidendi: 1. The court held that the prosecution had proved the case against the appellants based on the following evidence: (a) the secret information received by the police was reliable; (b) the delay in complying with the provisions of Section 42 of the NDPS Act was justified in the circumstances; (c) Section 50 of the NDPS Act was not applicable in the present case as the contraband was recovered from the vehicles and not from the person of the appellants; and (d) the appellants were in constructive and conscious possession of the contraband even though they were not physically carrying it. 2. The court held that the delay in complying with the provisions of Section 42 of the NDPS Act was justified in the circumstances because the police had to act quickly to prevent the accused from escaping or destroying the contraband. 3. The court held that Section 50 of the NDPS Act was not applicable in the present case because the contraband was recovered from the vehicles and not from the person of the appellants. 4. The court held that the appellants were in constructive and conscious possession of the contraband even though they were not physically carrying it because they knew that the contraband was being carried in the vehicles and they were part of the conspiracy to smuggle it.
Final Decision: The court dismissed the appeal and upheld the conviction and sentence of the appellants.
JUDGMENT :
Rajiv Sharma, J.
This appeal is instituted against the judgment and order dated 13.10.2012 and 16.10.2012 rendered by the Additional Sessions Judge, Bhiwani, in NDPS Act Case No.2 of 2011/2012.
2. Both the appellants along with co-accused Baljeet, Shyama, Rajesh, Raju alias Narender and Prabhu were charged with and tried for offences punishable under Sections 15(c), 27(A) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). The appellants have been convicted and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs.1,25,000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of six months for offence under Section 15(c) of the NDPS Act. Co-accused Baljeet, Shyama, Rajesh, Raju alias Narender and Prabhu were acquitted. Appellants were also acquitted for the offence under Section 27-A and 29(1) of the NDPS Act.
3. XXX XXX XXX
4. The case of the prosecution in a nutshell is that on 17/18.07.2011 police party headed by ASI Om Parkash comprising of Head Constable Ramphal, EHC Surender and Constable Vikas was present at Police Post Jhuppa Kalan. He received secret information to the effect that Raju, Balraj, Vinod alias Golu were jointly involved in smuggling of poppy husk and cases were already registered against them. They would come in truck bearing registration No.WB23B-4030 which was taken on hire basis from Harish son of Gangadhar. They had purchased poppy husk from Prabhu Dayal son of Tulsi Ram, Thekedar at Chittorgarh in Rajasthan and will come from Chittorgarh via Salasar Churu, Rajgarh, Behal and Jhuppa. They would also be using Scorpio of white colour bearing registration No.HR-24J-1111 driven by Shyama accompanied by Raju, Vinod alias Golu and Balraj. This vehicle was being used as a pilot for the truck and another vehicle Tavera of grey colour bearing registration No.HR-20M-0200 driven by Dilbag alias Gholu accompanied by Bajrang would be behind the truck as escort. If an immediate action is taken, all the three vehicles carrying poppy husk could be apprehended. Report No.22 dated 17.07.2011 was registered at the Police Post and copy of the same was sent to the senior officers through Constable Vikas. SHO, Police Station Siwani was informed on mobile phone. ASI Om Parkash, HC Ramphal and EHC Surender started for Jhuppa road in a private vehicle. When they were present near Bus Stand Matani Behal road, from the side of Behal, Tavera vehicle bearing registration No.HR20M-0200, truck bearing registration No.WB-20B-4030 and Scorpio bearing registration No.HR24J-1111 came. ASI Om Paraksh along with other police officials gave signal to stop the vehicles. The driver of Tavera identified himself as Dilbag and the person accompanying him identified himself as Bajrang. The driver of the truck and conductor managed to run away from the spot taking advantage of darkness. The driver of Scorpio turned back and succeeded in running away from the spot. Tavera and truck were searched in the presence of Balbir Singh, DSP, Headquarter Bhiwani. Four sacks of poppy husk (doda post) were recovered from Tavera vehicle. Two samples of 200 grams each were separated from each sack. The first sack weighed 28 kilograms, second sack weighed 21 kilograms, third sack weighed 22 kilograms and fourth sack weighed 26 kilograms 600 grams. All the parcels were sealed with seal of OP. DSP also affixed his seal 'BS'. The truck contained 74 sacks of poppy husk. These were assigned serial numbers 5 to 78. Two samples of 200 grams were separated from each sack. Samples were converted into parcels. Every sack was sealed with three seals of monogram 'OP'. DSP also affixed his seal 'BS'. Contraband was taken into possession. Written information was sent to the police station through EHC Surender. Case was registered. Samples were sent to FSL for examination. Investigation was completed. Challan was put up after completing all the codal fo
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