Dismissed

Kaka Khan v. State of Pb.

Punjab & Haryana HC20 May 2013CRA-S/2020/2005

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Punjab and Haryana dismissed the appeal of a convict sentenced under the NDPS Act for possession of poppy husk. The Court upheld the conviction, rejecting arguments regarding a withdrawn independent witness and procedural irregularities, finding guilt proved beyond reasonable doubt.

What did the court decide?

The appeal is dismissed; the appellant shall surrender to bail bonds or be arrested to undergo the remaining sentence.

Kaka Khan Vs State of Pb. — Narcotics (NDPS) | Punjab & Haryana HC (2013)

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Criminal Appeal-S-No.2020-SB of 2005

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Appeal-S-No.2020-SB of 2005 Date of decision : 20^th May, 2013

Kaka Khan

…. Appellant

Versus

State of Punjab

…. Respondent

CORAM : HON’BLE MR. JUSTICE L. N. MITTAL

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Present : Mr. Abhay Pal Singh Gill, Advocate for the appellant.

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Mr. Roopam Aggarwal, Deputy Advocate General, Punjab

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L.N. MITTAL, J. (ORAL)

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Convict-Kaka Khan has filed this appeal assailing his conviction and sentence ordered by learned Judge, Special Court, Sangrur vide judgment and order dated 03.10.2005 thereby convicting the appellant/accused under Section 15 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (in short, the Act) and sentencing him to undergo rigorous imprisonment for two years and to pay fine of ` 10,000/- and in default thereof, to undergo further rigorous imprisonment for six months.

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According to the prosecution version, police party comprising ASI Gurdial Singh, Head Constable Randhir Singh, other police officials and also independent witness Chanan Singh was patrolling for crime detection. The accused/appellant was found sitting in a field with a gunny bag in a suspicious condition. Mouth of the gunny bag was open. Poppy husk was visible in the gunny bag.

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Criminal Appeal-S-No.2020-SB of 2005

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It weighed 35 Kgs out of which two samples of 250 grams each were separated. Separate parcels of the samples and the remaining poppy husk were prepared and sealed. Ruqa was sent to the police station on the basis of which FIR was registered. Rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (in short, Cr.P.C.). On return to the police station, the accused alongwith case property and witnesses was produced before SHO Harjinder Singh who verified the facts of the case and affixed his own seal on the case property.

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On completion of investigation, report under Section 173 Cr.P.C. was presented for prosecution of the accused under Section 15 of the Act.

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Charge under Section 15 of the Act was framed against the accused who pleaded not guilty and claimed trial.

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In support of its case, prosecution examined five witnesses.

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Constable Baldev Singh PW-1 and Head Constable Naib Singh PW-3 being formal witnesses tendered their affidavits in evidence. PW-2 SI Harjinder Singh stated that the accused alongwith case property and the witnesses was produced before him and he verified the facts of the case and affixed his own seal on the case property. PW-4 ASI Gurdial Singh and PW-5 HC Randhir Singh broadly stated according to prosecution case about recovery of poppy husk from the accused. ASI Gurdial Singh also stated about investigation of the case conducted by him.

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Criminal Appeal-S-No.2020-SB of 2005

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The accused in his examination under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. The accused alleged that he was arrested from his house in the presence of his wife and an amount of ` 5000/- was snatched which he had received by selling his buffalo.

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In defence, the appellant examined DW-1 Mohd. Salim and DW-2 Mehar Din. They stated that ASI Gurdial Singh wanted the accused to cut a Tahli tree standing in front of his house and to leave the same at the house of ASI Gurdial Singh but the accused refused to do so saying that the tree was Government property and thereupon the accused was arrested from his house in the presence of his wife and amount of ` 5000/- was also snatched from him which the accused had received by selling his buffalo and he was falsely implicated in this case.

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Learned trial Court convicted and sentenced the accused as noticed herein before. Feeling aggrieved, the convict has filed this appeal.

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I have heard learned counsel for the parties and perused the case file including file of the trial Court with their assistance.

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Counsel for the appellant contended that independent witness Chanan Singh has been given up and, therefore, prosecution case is doubtful. It was also contended that appellant has been falsely implicated for the reasons stated by the defence witnesses. It was also argued that seal was handed over to Chanan Singh who has, however, not been examined. It was also argued by counsel for

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Criminal Appeal-S-No.2020-SB of 2005

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the appellant that place of occurrence is doubtful.

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On the other hand, learned State counsel contended that all the prosecution witnesses have supported the prosecution case and guilt of the accused is proved beyond reasonable doubt.

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I have carefully considered the aforesaid contentions.

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There is no reason to discard the statements of ASI Gurdial Singh PW-4 and Head Constable Randhir Singh PW-5. They had no enmity with the accused. They had no reason to implicate the accused in false case by planting 35 Kgs poppy husk on him. It was stated by the accused in his own examination under Section 313 Cr.P.C. that he was arrested from his house in the presence of his wife and an amount of ` 5000/- was also snatched from him and he was falsely implicated in this case. However, it was neither suggested to prosecution witnesses nor stated by the accused in his statements under Section 313 Cr.P.C. as to why the accused had been falsely implicated in this case. In these circumstances, statements of defence witnesses Mohd. Salim and Mehar Din that ASI Gurdial Singh wanted the accused to cut the Government tree and to leave it at the house of said police official can not be accepted being completely after thought version. No such plea came during cross-examination of the prosecution witnesses or even in the statement of accused himself under Section 313 Cr.P.C. Consequently, it can not be said that the accused has been falsely implicated and that too without any rhyme or reason.

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In the aforesaid circumstances, statements of ASI Gurdial Singh and Head Constable Randhir Singh can not be discarded

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Criminal Appeal-S-No.2020-SB of 2005

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merely because of their official uniform. Their veracity could not be impeached in cross-examination. Being not hostile to the accused for any reason, their statements are as much credible as those of independent witnesses. One independent witness Chanan Singh had also been joined, but he had to be given up because he was won over by the accused. Fate of the accused can not be left to the whims and fancies of the independent witness joined at the time of recovery of the contraband substance. It is not uncommon that such independent witnesses normally do not support the prosecution case to avoid enmity with the accused. So mere non-examination of Chanan Singh is not fatal to the prosecution case. From the prosecution evidence, it can not be said that place of occurrence is doubtful in any manner. Even rough site plan of the place of occurrence has been produced and thus there is no doubt about the place of occurrence. Exact spot of recovery has been depicted in the site plan.

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It was also argued by counsel for the appellant that case property was not produced before Judicial Magistrate. However, it was not mandatory to do so. It was also argued that FIR in this case was registered by ASI Gurcharan Singh and not by SHO Harjinder Singh before whom the case property was produced alongwith accused and witnesses. However, the prosecution case does not become suspicious on this ground. Case property alongwith accused and witnesses had to be produced before Station House Officer in compliance of Section 55 of the Act, but recording of FIR by the SHO himself was not mandatory requirement.

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Criminal Appeal-S-No.2020-SB of 2005

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For the reasons aforesaid, I find that guilt of the accused has been duly proved beyond reasonable doubt and conviction of the appellant is well founded. There is no illegality or perversity in the impugned judgment of conviction nor it is based on misreading or mis-appreciation of the evidence. Accordingly, conviction of the appellant is upheld.

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As regards quantum of sentence, the sentence imposed on the appellant by the trial Court can not be said to be excessive keeping in view the quantity of contraband poppy husk recovered from the appellant. Menace of drug abuse is assuming alarming proportions and is spoiling the youth, particularly the rural youth. Consequently, reduction in sentence is also not warranted.

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Resultantly, I find no merit in this appeal, which is accordingly dismissed. The appellant, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining sentence.

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(L. N. MITTAL) JUDGE

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20^th May, 2013 reena

Kaka Khan v. State of Pb.

Case brief

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Kaka Khan v. State of Pb.

Case brief

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