Dismissed

Ratti Ram v. State of Punjab

Punjab & Haryana HC20 Sept 2012CRA-S/1631/2005

Case brief

AI extract

What is this about?

High Court of Punjab and Haryana dismissed criminal appeals challenging conviction under Section 15 of the NDPS Act. The court held recovery from premises without explanation under Section 50 is valid, non-examination of independent witness doesn't vitulate strong police evidence, and conscious possession was established.

What did the court decide?

Both appeals dismissed; appellants on bail ordered to be arrested for serving remaining sentence.

Ratti Ram Vs State of Punjab — Narcotics (NDPS) | Punjab & Haryana HC (2012)

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CRA No.S-1631-SB of 2005 & CRA No.S-1420-SB of 2006

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Date of Decision: September 20, 2012 CRA No.S-1631-SB of 2005 Ratti Ram .... Appellant Versus The State of Punjab .... Respondent CRA No. S-1420-SB of 2006 Guman Singh ... Appellant Versus State of Punjab ... Respondent

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CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH 1) Whether Reporters of the local papers may be allowed to see the judgment?

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1. To be referred to the Reporters or not? 3) Whether the judgment should be reported in the Digest?

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Present: Mr. Dhirinder Chopra, Advocate, for the appellant (In CRA No.S-1631-SB of 2005) Mr. D.R. Punia, Advocate, for the appellant (In CRA Nos. 1420-SB of 2006)

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Mr. K.S. Aulakh, AAG, Punjab.

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Paramjeet Singh, J.

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By this common order, Criminal Appeals viz. CRA No. S-

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CRA No.S-1631-SB of 2005 & CRA No.S-1420-SB of 2006 2

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1631-SB of 2005 and CRA No. S-1420-SB of 2006 shall be decided together as both arise from the common judgment dated 25.08.2005 passed by the learned Judge, Special Court, Patiala.

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Both the appeals are directed against the judgment of conviction and order of sentence dated 25.08.2005 passed by the learned Judge, Special Court, Patiala, whereby the appellants have been convicted and sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs. One lac each for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”). In default, to further undergo RI for one year each.

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Brief facts of the case are that on 15.12.2001, SI Jagroop Singh accompanied by ASI Kuldip Singh, HC Ajaib Singh, HC Avtar Singh, C. Sandip Singh, C. Charanjit Singh, C. Karam Singh, C. Harjinder Singh, C. Harnek Singh, while riding Government vehicle, Tata 407, bearing No. PB-11R-7938, being driven by C. Narinder Singh, under the supervision of Sh. Satbir Singh, DSP (D), Patiala, who was accompanied by C. Jasdev Singh, SPO Varinder Pal Singh and were riding in Government Gypsy No. PB-04-3140,being driven by C. Surinder Singh, were present at `T' point in the area of Mardan Heri, in connection with checking. In the meantime, Labh Singh, resident of Malkana Patti, Samana, came from the side of village Mardan Heri and was joined in the police party. Meanwhile, SI Jagroop Singh received secret information that

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CRA No.S-1631-SB of 2005 & CRA No.S-1420-SB of 2006 3

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three persons are sitting on the gunny bags in the area of Beer Gurdialpura. A motor cycle is also lying parked there. The police party under the supervision of DSP (D) Sh. Satbir Singh, reached the said place. Three persons were seen sitting on the bags. One of the accused ran away. Remaining two accused, namely Guman and Ratti Ram were apprehended at the spot. Since SI Jagroop Singh suspected contraband in the gunny bags, he asked the accused turn by turn, whether the accused wanted the search of bags in the presence of Gazetted Officer or Magistrate. The accused gave option that search be effected in presence of a Gazetted Officer. Then, Sh. Satbir Singh, DSP (D), Patiala told them that he is a gazetted officer and posted as DSP (D) Patiala. Consent memos of both the accused were prepared. Thereafter, the search of the bags was conducted and it was found that there was poppy husk in all the ten bags. Two samples of 250 grams each were separated from each of the bags. The remaining poppy husk in each bag came to 34.5 kg and the total recovery was 350 kg. The samples as well as bags were sealed by Sub Inspector with his seal JS and by the DSP with his seal SS. Sample seal was separately prepared and the seal of SI Jagroop Singh, after use, was handed over to Labh Singh, independent witness, whereas, the DSP retained his seal with him. The case property was taken into possession vide recovery memo Ex.PG and the motor cycle and its RC were also taken into possession vide memo Ex.PH, which were found to be registered in the name of Bhajan Singh-accused. The personal search of accused Guman

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CRA No.S-1631-SB of 2005 & CRA No.S-1420-SB of 2006 4

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and Ratti Ram was done and memos Ex.PK and PK/1 were prepared. Site plan of the place of recovery was prepared. On return to the police station, the samples and the case property along with accused and PWs were produced before ASI Karan Singh, who was then officiating as SHO of P.S. Ghagga. On the next day, the samples along with the case property and motor cycle were produced before the learned Illaqa Magistrate. On the analysis of the samples, the same were found to be of poppy husk. After completion of investigation of the case, challan was presented in Court. Finding a prima facie case against the accused, they were charge-sheeted to which they pleaded not guilty. Later on, Bhajan Singh accused was arrested and amended charge against all the three accused was framed, to which they pleaded not guilty and claimed trial.

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The prosecution, in order to prove its case, examined PW1 C. Kaka Singh, PW2 HC Satnam Singh, PW3 ASI Karan Singh, PW4 Gopal, Clerk, PW5 SI Jagroop Singh , PW6 SI Kuldeep Singh, whereas PW Labh Singh was given up as having been won over and closed its evidence.

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Thereafter, statements of the accused were recorded under Section 313 Cr.P.C. All incriminating circumstances were put to them. They denied the same and pleaded innocence. They did not lead any evidence in defence.

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The learned Judge, Special Court, Patiala, after trial, acquitted Bhajan Singh and convicted and sentenced accused-appellants as mentioned in the earlier part of the judgment.

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CRA No.S-1631-SB of 2005 & CRA No.S-1420-SB of 2006

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I have heard learned counsel for the appellants, as well as, the learned State counsel.

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Learned counsel for the appellants vehemently contended that there is no compliance of the provisions of Section 50 of the NDPS Act. The appellants were not taken to the Magistrate, rather, they were searched by the DSP who was present at the spot and prior to that recovery had been effected. The compliance of Section 50 of the NDPS Act is mandatory before effecting recovery. Learned counsel for the appellants further contended that the seal was handed over to an independent witness Labh Singh who has not been examined. Failure to examine an independent witness clearly indicates that no independent witness was present at the spot as he has not been subjected to cross-examination to elicit truth from him. Learned counsel for the appellants further submitted that the prosecution has failed to prove the conscious possession of the appellant and submitted that the link evidence is missing. Learned counsel for the appellants further stated that the appellants were not even asked in the course of examination under Section 313 Cr.P.C. that they were the person in possession of poppy husk. Learned counsel for the appellants further submitted that as per prosecution case, SI Jagroop Singh prepared memo of possession of contraband and motor cycle at the spot before sending alleged ruqa to the police station on basis of which FIR was recorded. Ruqa and memos bear the FIR number. There are number of contradictions and discrepancies in the statements of Police witnesses.

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CRA No.S-1631-SB of 2005 & CRA No.S-1420-SB of 2006

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Learned State counsel has opposed the contentions raised by the learned counsel for the appellants and submitted that recovery has been effected from gunny bags and not from the person of the accused. Huge quantity has been recovered from a place which has turned out to be a poppy husk weighing 350 kgs. which was contained in 10 gunny bags of 35 kg each. Such a huge quantity cannot be planted on the accused. The appellants were apprehended at the spot. As such, the possession of the appellants is conscious and they were fully aware of this fact. Learned State counsel further contended that non-examination of independent witness cannot be a ground for acquittal. The evidence of the police officials specifically when the recovery is so heavy cannot be discarded merely on the ground that they are police officials. The prosecution has categorically proved by leading a cogent evidence the recovery of articles of the contraband from gunny bags which were in conscious possession of the appellants.

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I have considered the rival contentions of the learned counsel for the parties and perused the evidence on record.

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Perusal of the record shows that when the appellants were apprehended then an option was given to them whether they wanted to be searched by a Gazetted Officer or by a Magistrate and the consent memo was prepared and the appellants had opted that they wanted to be searched by a Gazetted Officer. As such, Sh. Satbir Singh, DSP(D), a Gazetted Officer, who was present at the spot, in whose presence the search was

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CRA No.S-1631-SB of 2005 & CRA No.S-1420-SB of 2006

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conducted.

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The Apex Court in the judgment of State of Punjab versus

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Baldev Singh, AIR 1999 SC 2378 has clearly held as under:-

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“ 12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirement of Section 50 of the Act are not attracted.”

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When the recovery is effected from the person only then Section 50 of the NDPS Act is mandatory. If the recovery is effected from the premises etc. then there is no requirement of complying with the provisions of Section 50 of the NDPS Act. The said view has been further affirmed by the Apex Court in the case of Ajmer Singh versus State of Haryana, 2010(2) RCR (Criminal) 132 wherein it has been held that Section 50 of the NDPS Act applies only in case the personal search of the person is carried out and not otherwise. Articles like bag, brief case, container, etc. cannot even remotely treated as part of the body of a human being. The same view has been affirmed in a recent Constitution Bench judgment of the Hon'ble Apex Court in the case of Vijaysinh Chandubha

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CRA No.S-1631-SB of 2005 & CRA No.S-1420-SB of 2006

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Jadeja versus State of Gujarat, 2010(4) RCR (Criminal) 911.

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In view of the above, the contention of the learned counsel for the appellants in regard to non-compliance of Section 50 of the NDPS Act fails.

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Further, the non-examination of the independent witness does not affect the merit of the case. Police Officials are responsible persons and their evidence cannot be discarded merely on the ground that the same is not corroborated by the independent witness. As such, the said contention of the learned counsel for the appellants that the evidence of the official witnesses has not been corroborated by independent witness becomes insignificant specially when the recovery is huge. The question of implanting such a heavy quantity does not arise. Hence, this contention is also rejected.

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The recovery of the huge quantity of gunny bags at the spot is indicative of the conscious possession of the appellants as per Section 35 of the NDPS Act. The existence of such mental state will be presumed against the appellants especially in view of the explanation given in Section 35 of the NDPS Act according to which a person in possession of huge quantity of contrabands must be deemed to be in the knowledge of the fact of such articles, unless it is rebutted by cogent evidence. Recovery itself indicates the motive and intention of retaining such contraband and is the indicative of the fact of conscious possession. However, the learned counsel for the appellants has failed to rebut the same specifically when he

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CRA No.S-1631-SB of 2005 & CRA No.S-1420-SB of 2006

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has been apprehended at the spot.

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Another contention of the learned counsel for the appellants is that it was not put to the appellants while recording their statements under Section 313 Cr.P.C. that they are the persons who were in possession of the poppy husk. All the incriminating circumstances leading to the recovery have not been put to them.

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I have perused the statements of the appellants recorded under Section 313 Cr.P.C. From the perusal of the statements it is clear that all the material incriminating circumstances leading to the recovery from them has been put to them. Merely non-examining of the exact words regarding the possession of the poppy husk does not mean that the appellants have not been made aware of the incriminating evidence against them. Otherwise also, the appellants are fully conscious when they have thoroughly examined the witnesses and the statements of the witnesses have been referred in the statements under Section 313 Cr.P.C. For this reason, this contention of the appellants fails.

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The next contention of the learned counsel for the appellants that as per prosecution case, SI Jagroop Singh prepared memo of possession of contraband and motor cycle at the spot before sending alleged ruqa to the police station on the basis of which FIR was recorded and ruqa and memos bear the FIR numbers, has no substance. In fact, after mentioning the words FIR space has been left by putting a hyphen (-) over which the number of the FIR has been subsequently mentioned. In this

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CRA No.S-1631-SB of 2005 & CRA No.S-1420-SB of 2006 10

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manner, it cannot be said that the proceedings have been completed by sitting in the police station. This contention of the learned counsel for the appellants also fails.

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Learned counsel for the appellants failed to point out any other material discrepancies which may go to the root of the case.

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In view of this, both the appeals fail and are dismissed. Since appellants are on bail, the authorities may take appropriate measures for arrest of the appellants to serve the remaining part of the sentence.

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September 20, 2012 [Paramjeet Singh] vkd Judge

Ratti Ram v. State of Punjab

Case brief

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Ratti Ram v. State of Punjab

Case brief

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