DURGA BAI Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The appellants herein were convicted under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo imprisonment for ten years and to pay a fine of Rs. 1 lakh. The appellant in Criminal Appeal No. 1144 of 2003, namely, Phuman Singh was also convicted under Section 307, IPC for firing a shot from his pistol at the police party and on that count, sentenced to undergo imprisonment for four years and to pay a fine of Rs. 2,000/-. The sentences were ordered to run concurrently. The trial Court however acquitted Phuman Singh for the charge under Sections 25 and 27 of the Arms Act on the ground that the sanction of the District Magistrate has not been duly proved by the prosecution. Aggrieved by the same, the appellants preferred appeals in the High Court of Punjab and Haryana. The appeals were dismissed by the impugned judgment which is somewhat cryptic.

(2.) The prosecution case is as follows : During the early hours of 2nd August, 1987, Inspector Sukhdev Singh (PW 1) Station House Officer, Jalalabad P.S. received a telephonic message, from the Commandant, BSF Jalalabad that a special nakabandi (patrolling) has to be organized. He along with the other police personnel went to the BSF Headquarters and after reaching there the Commandant deputed two Inspectors including Inspector Shivpal Singh (PW2) and three more BSF personnel to accompany PW1 for the patrolling. The Commandant instructed them to hold the naka at the canal bridge in the vicinity of Machhiwara village as he had some information about smuggling. At 3.30 am. the patrolling party noticed two persons coming from the direction of the village Tahliwala. When they were challenged, there was a firing from the opposite direction aimed at the patrolling party. In self defence, the Inspectors (PWs 1 and 2) fired one shot each. Another Inspector also fired a light pistol. It was then noticed that a man with a pistol and a woman were the persons coming towards them. The patrolling party confronted them and made the man concerned dislodge his pistol. The naka party then apprehended both of them. First they searched Phuman Singh and found five cartridges in the left fold of his chadar. Then one empty and four live cartridges were also found in the chamber of the revolver thrown on the ground. Ten packets of brown sugar/ heroin were found in the bag which was slung on the left arm of Phuman Singh. On search of the jhola (hand baggage), the other appellant Durgo Bai was carrying ten packets of brown sugar were recovered. The packets weighed one kilogram each. The ten packets recovered from each were made into separate parcels and the seal of PW 1 was affixed thereon. A recovery memo was prepared and a rucca was also recorded. The revolver and the cartridges were also seized. FIR was recorded on the basis of the rucca. The seized parcels and the revolver were deposited by PW 1 with the property room of which a Head Constable was in-charge. He sent information to the Customs Officers. Thereupon , Inspector Customs (PW 3) came to the police station on 3-8-1987 and took possession of 20 Kgs. of heroin contained in two bags which were handed over to him by PW 1.The seals were found to be in tact. After weighing the packets, he took out four samples of five grams from each packet on which the seals of PW 3, BSF and police were affixed. After leaving some of the samples with the BSF and police, PW 3 sent 20 samples to the Chemical Examiner for analysis and report. Necessary documentation, such as inventory of the goods seized, was done. The remaining heroin was kept in the packets and sealed and thereafter, the packets were put in a trunk on which PW 3s seal was affixed and it was deposited in the police malkhana (property room). On 12-8-1987, PW 3 recorded the statements of the witnesses and the accused were interrogated and they gave statements confessing to the commission of crime. The Chemical Examiner, by his report dated 18-8-1987 (Ex.PN) noted that the brown powder sent in each sample contained di-acetyl morphine. It appears that the Chemical Examiners report was actually received much later i.e. on 6-10-1987 as stated by PW 3. The complaint was filed by Assistant Collector of Customs, Amritsar on 19-10-1987 in the Court of the Chief Judicial Magistrate, Ferozepur together with various documents. After committal by the Judicial Magistrate, Ferozepur, the Additional Sessions Judge, Ferozepur framed charges and proceeded with the trial.

(3.) The trial Court held that the recovery of heroin from the two accused persons was proved beyond reasonable doubt and the presumption under Section 54 of the Act would come into play. The learned trial Judge also held that there was no violation of the mandatory provisions of Sections 41, 42 and 50 of the Act. The evidence of DW 2 - the Sarpanch of village Tahliwala, to the effect that the police took Durgo Bai the appellant into custody from her house on the 9th of August, 1987, was disbelived. The learned Additional Sessions Judge convicted and sentenced the accused as per the details already referred to.