SANJEEV KUMAR ALIAS TOTA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This appeal has been filed by Sanjeev Kumar @Tota s/o Dwarka Nath r/o Shanti Nagar, Jammu against the order dated 15.06.2009 passed by the Special Court, Amritsar convicting and sentencing the accused-appellant under Section 21 of the NDPS Act, 1985 (for short "the Act") to undergo rigorous imprisonment for twelve years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year.

(2.) The case of the prosecution according to the FIR No.77 dated 02.06.2007 under Sections 21 and 22 of the Act registered at Police Station Kathu Nangal, Amritsar against the appellant and two others i.e. Sansar Chand and Sham Lal is that secret information was received through an informer that an attempt was being made to smuggle heroin through the area of Kathu Nangal on the Amritsar-Batala Road, Amritsar. Acting on this information, a police party was formed comprising of PW-2 SI Rajbir Singh, CIA Staff, Amritsar (Rural), PW-6 Suraj Kumar, Inspector, CIA Staff Rural, Amritsar and several others Constables, Head Constables and Assistant Sub Inspector. They established a police blockade (nakabandi for short 'naka') at the T-point coming from the Majitha side in the area of Kathu Nangal on Amritsar-Batala Road, Amritsar. While the police was checking vehicles at the naka at about 12.10 PM, a silver colour Tata Indica car bearing registration No.JK-P2-P-7645 driven by a clean shaven gentleman was signalled by the police party to stop. The driver of the car stopped the vehicle about 20 yards before the naka. On the rear seat of the vehicle, a clean shaven man of about 40-42 years, wheatish complexion, about 6 feet tall and wearing a trouser and shirt had on him a black bag in his right hand.

(3.) He opened the right hand rear door of the car and fled from the spot towards the side of the nearby canal. ASI Lakhwinder Singh and three policemen at the naka chased him. The man escaped but not before throwing the black bag in the canal. Meanwhile at the naka, the other officials present on duty on the spot surrounded the Indica car and asked the person sitting in it to disclose the name and addresses of the occupants. The driver of the car was Sansar Chand s/o Gian Chand, r/o Purkho, Akhnoor Road, Tehsil and District Jammu while the clean shaven person sitting on the back seat of the car disclosed his name as Sanjiv Kumar @ Tota s/o Dwarka Nath r/o Shanti Nagar, Jammu, the appellant before us in this appeal. He carried an iron box/trunk on his thighs. PW-6 Suraj Kumar, Inspector, CIA Staff Rural, Amritsar and later to be Investigating Officer-cum-recovery witness in the present case disclosed his rank to the appellant and expressed suspicion that the trunk might contain some narcotic or intoxicating substance and, therefore, the trunk was to be searched. The appellant was given option under Section 50 of the Act whether his personal search may be conducted either by PW-6 or by a Magistrate or Gazetted Officer. The appellant desired to be searched in the presence of a Gazetted Officer. PW-1 Sh. Gurmit Singh, DSP (D) Rural, Amritsar already present in a naka was requested by PW-6 to make himself available to supervise the search. PW-1 Gurmit Singh disclosed his status as a Gazetted Officer to the appellant after he was narrated the sequence of events leading to the necessity of personal search. The appellant is said to have expressed his faith in being searched before PW-1 Gurmit Singh. He signed the consent memo. The memo was attested by the appellant in English with the witnesses signing in proof thereof. On the direction of the PW-1 Gurmit Singh, the appellant alighted from the car along with trunk. The trunk was opened with the help of key obtained from the appellant. The trunk contained 10 packets of a substance which appeared to be heroin powder. The contraband was taken into possession. The packets were sealed in plastic covers. Procedure of drawing samples and sealing the remainder heroin was carried out. 5 grams each of heroin was taken as sample from each packet from separate plastic boxes converted into parcels and marked serial no.1 to 10. The balance substance was weighed at 990 grams less 5 grams each for two samples. The 10 packets were enclosed in separate parcels. The seal of PW-6 and PW-1 was put on each of the 10 parcels recovered. The sample parcels were marked as Mark A and Mark B. Recovery memos were prepared for the vehicle, the Registration Certificate, the iron trunk, the key of the lock etc and the same were taken into police possession. Petty cash of Rs.5200/- was recovered from the personal search of appellant Sanjeev Kumar which was also packed into sealed parcels with the seal of PW-6. The driver of the car namely Sansar Chand was personally searched and four 500 rupees notes were recovered from his right pocket. The name of the person who escaped was disclosed as Sham Lal s/o Amar Nath r/o village Dangre, Tehsil R.S. Pura, Jammu. The black bag thrown by him was recovered from the place where he had thrown it which contained two packets of heroin similar to the one recovered from the other accused. These two packets were marked and taken into possession and samples prepared and numbered as Mark 11-A and 11-B and 12-A and 12-B. After drawing the samples the residue was weighed and packed and taken into possession under the official seals of PW-1. The ruqa was sent to the Police Station through Constable Sukhdev Singh for registration of a case with instructions to intimate number of the FIR after registration of case so that the proper FIR number could be put on recovery memos and documents etc during the procedure carried out on the spot of recovery. On registration of the FIR, special reports were issued to the Area Magistrate and to the Designated Officers and to Control Room Amritsar through wireless on the same day. The accused was formally arrested on the spot.