MAHENDER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE Appellant was convicted for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') for being in possession of 60 Kgs. of poppy husk and was sentenced to undergo RI for a period of 10 years and a fine of Rs. 1 lac was also imposed upon him.

(2.) FACTS in brief are that on 3.9.1998 Sub Inspector Dharambir Singh, SHO Police Station Rori along with Head Constable Makhan Singh and other police officials was present at Bus -stand of Village Lahangewala. One Gurjant Singh met him at the bus stand. Sub Inspector Dharambir Singh, received a secret information against Mahender Singh accused -Appellant that he was selling poppy husk at his house. A raiding party was constituted by SI Dharambir Singh, of which Gurjant Singh was also a member, which straight -away went to the house of the accused who was found there. On seeing the police party, he tried to run away but was apprehended. The accused was found in possession of a gunny bag and a plastic bag in front of his house where he was standing. As it was suspected that these contained some Narcotic substance, he was given notice to the effect that if he so wanted, a Gazetted Officer or Magistrate could be called at the spot for conducting search of his person. The accused having expressed his faith in SI Dharambir Singh, gave his consent. A search of the bags was conducted and it was found to contain poppy husk. On weighment, the gunny bag was found containing 40 kg. while the plastic bag contained 20 kgs. of poppy husk. Sample weighing 100 gms. was separated from each of the two bags, sealed and taken in possession. The seal was handed over to the Head Constable Makhan Singh. A written communication was sent to the police station for registration of the case on the basis of which a formal FIR Exhibit PE/1 was recorded by MHC Shiv Narain. Rough site plan was prepared by the Investigating Officer and statements of witnesses were recorded under Section 161 Code of Criminal Procedure On returning to the police station, report was prepared by SI Dharambir Singh under Section 57 of the Act and then sent to the Deputy Superintendent of Police. The case property was deposited by SI Dharambir Singh, SHO, with MHC Shiv Narain, who sent the samples to Forensic Science Laboratory through Constable Dilbag Singh. The report of FSL showed the sample to be of poppy husk and accordingly, the accused was challaned. Charge was framed against the accused under Section 15 of the Act, to which he pleaded not guilty and claimed trial.

(3.) COUNSEL for the Appellant submits that there is a delay of 10 days in sending the sample to the FSL because of which the credibility of the sample is in doubt. He further submits that the seal was not handed over to the independent witness, namely, Gurjant Singh which further casts a dent on the sample which was sent after a delay of 10 days. He submits that these two circumstances itself entitle the Appellant to acquittal. In support of this contention, he relies upon the judgments of this Court in the cases of Ramji Singh v. State of Haryana, 2007 (3) RCR 452 and Karnail Singh v. State of Punjab, 2003 (4) RCR 316. He contends that the secret information was not immediately reduced into writing by the SHO nor was the said information immediately sent to some higher authority, which further shows that no incident, as a matter of fact, had taken place and the Appellant has been involved in the case at the instance of one Ex. Sarpanch Baldev Singh with whom he had a previous enmity. On the basis of these submissions, he prays for acceptance of the appeal and setting aside of the conviction and sentence of the Appellant.