SONU @ RAJU AND ORS Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This order will dispose of two appeals bearing No. CRA-D 779-DB of 2007 titled as Sonu @ Raju versus State of Punjab and CRA-D 684-DB of 2007 Balwinder Singh @ Billu versus State of Punjab. The above named appellants have filed these appeals against judgment and order dated 9.5.2007, vide which, they were convicted for commission of an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and sentenced to undergo rigorous imprisonment for a period of 20 years and to pay a fine of Rs.two lac each with a default clause. From the above appellants and one Makhan Singh, 20 bags of poppy husk, weighing 32 kgs each, were recovered from them on 6.11.2004 at 10.30 a.m. within the revenue estate of village Heero Kalan, police station Bhikhi. For keeping in possession, the above contraband, they failed to produce any licence. In this case, the process of law was set in motion on receipt of an intimation from Inspector Harmik Singh PW3 (investigating officer), which led to registration of an FIR (Ex.PK) on 6.11.2004 at 5 p.m. against the appellants and Makhan Singh. The trial Judge has noted the following facts regarding case of the prosecution:-

(2.) xxx xxx that on November 06, 2004 Inspector Harmik Singh of Police Station Bhikhi, alongwith a few other police officials, was present at the drain of village Heero Kalan in connection with patrolling and checking of suspected persons. PW Dhana Singh met them there and was joined in the police party. After some time, a tractor bearing registration No.PB- 13B-5809, along with trolley, of red colour, came from the side of village Dhaipi. Investigating o icer got the tractor trolley, which was being driven by accused Sonu, stopped on suspicion and found that some bags were loaded in the trolley and two persons were sitting on the bags. Investigating officer told all the three accused, who disclosed theiri names as Sonu alias Raju, Makhan Singh and Balwinder Sigh alias Billu, one after the other, that he suspected some intoxicating material in the bags lying in the tractor trolley, and that they had a right to have search of the tractor trolley in the presence of a Gazetted officer or a Magistrate. All the three of them opted to have search in the presence of a Gazetted officer on the spot. Three memoranda were recorded in this respect. Investigating officer then flashed a wireless message to requisition a Gazetted officer on the spot. After a while DSP Balbir Singh Khaira reached the spot in the company of his bodyguards. Investigating o icer apprised said DSP Balbir Singh Khaira of the facts and circumstances of the case. DSP Balbir Singh Khaira then disclosed his identity before the aforesaid three accused and told them, lone after the other, that he was a Deputy Superintendent of Police and a Gazetted officer and asked them, one after the other, if they wanted to have search of the tractor trolley before him on the spot or before any other Gazetted officer or a Magistrate. All the three accused opted to have the search on the spot before said DSP Balbir Singh Khaira. Three memoranda were recorded in this respect.

(3.) On being so instructed by DSP Balbir Singh Khaira, Investigating o icer searched the bags lying in the tractor as per laid down procedure, recovered Poppy husk from all the 20 bags which were found loaded in the tractor-trolley, separated two samples of 100 grams each from each of the twenty bags, made them into parcels and put serial numbers thereon as 1, 1A, 2, 2A and so on, sealed the samples and remainder weighing 31.800 kilograms, each bag after making them into parcels, with his seal bearing impression 'HS', prepared sample seal, handed over the seal after use to PW Dhana Singh, took the sample seal, sealed parcels of samples and remainder, and tractor trolley bearing registration no.PB- 13B-5809 in police possession by recording a memo, on failure of the aforesaid three accused to produce any permit or licence to carry the contraband, wrote a note and sent it to the police station where a formal First Information Report was recorded by ASI Nazir Singh. The Investigating officer then formally arrested accused Sonu alias Raju, Makhan Singh and Balwinder Singh alias Billu after making them aware of the grounds of their arrest, searched their persons, recorded necessary memoranda, prepared rough site plan with correct marginal notes, recorded statements of the witnesses and on return to the police station, investigating officer, Inspector Harmik Singh being the station house o icer, kept the three accused in police lock up and sealed parcels of case property, as also the tractor trolley under his supervision in Malkhana of the police station, dispatched a special report in terms of Section 57 of the Act, produced the accused and case property before the Area Magistrate on 7.11.2004 along with an inventory and application. On the inventory and application Area Magistrate passed necessary orders. There being no space available in Judicial Malkhana, the SHO brought the case property back to the police station and kept in his custody. On 8.11.2004 he completed the FSL form, handed it over along with duly sealed sample parcels and sample seal to Constable Satpal Singh for being deposited in Forensic Science Laboratory, Punjab, Chandigarh. Said constable Satpal Singh got a docket prepared from the office of Senior Superintendent of Police, Mansa, deposited the above-said articles in Forensic Science Laboratory, Punjab, Chandigarh on 9.11.2004 and brought the receipt issued by that Laboratory to the Station House Officer/ Investigating officer of this case."