BHAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS criminal appeal is against the judgment dated 10.1.2003 passed by the Judge, Special Court, Sangrur whereby the appellant Bhan Singh has been convicted under Section 15 of the NDPS Act and sentenced to undergo rigorous imprisonment for 01 year and to pay a fine of Rs. 1,000/ -. The prosecution case as per paragraph 2 of the judgment is that on 9.6.1996 ASI Sher Singh along with other police officials was on patrol duty near bridge of canal minor in the area of village Bhindran. Accused was going ahead of the police party having a bag on his head and he on seeing the police party tried to slip away but was apprehended on suspicion. ASI Sher Singh asked the accused that the bag carried by him contained some intoxicant substance and search of the bag was required to be done and if he so desired the search could be conducted in the presence of a Gazetted Officer or a Magistrate, but the accused reposed faith in him and consent statement Ex. PB of the accused in this regard was recorded. Thereafter search of the bag was conducted and the bag was found containing poppy husk. Out of which two samples of 250 grams of poppy husk were separated and remaining poppy husk on weighment came to be 25 kgs. which was put into the same bag. The samples and the bag were converted into parcels and sealed with the seal bearing impression 'SS'. Sample seal chit was prepared separately. Seal after use was handed over to ASI Gulab Singh. The case property was taken into possession vide memo Ex. PC. Thereafter ruka Ex. PD was forwarded to the police station on the basis of which formal FIR Ex. PB/1 was registered against the accused. The investigating officer prepared rough site plan Ex. PF of the place of recovery and on return to the police station he produced the accused, case property and witnesses before SHO, Nagor Singh who verified the facts and after satisfying himself put his seal bearing impression 'NS' on all the parcels and attested samples seal chit Ex. P1. On his direction case property was deposited with MHC Baljinder Singh. Statements of the witnesses were recorded. Sample was conveyed to the laboratory for analysis and on receipt of report Ex. PX of Chemical Examiner and at the conclusion of investigation challan against the accused was presented in the court of Mrs. Davinder Pal Kaur, JMIC, Sangrur who vide her commitment order dated 2.9.1996 committed this case to the court of learned Sessions Judge, Sangrur from where it was received in this court by entrustment.

(2.) AFTER presentation of the challan, charges were framed under Section 15 of the NDPS Act. The prosecution examined PW4 ASI Sher Singh who deposed that on 9.6.1996 when he along with ASI Gulab Singh were present near the bridge of canal minor in village Bhindran the accused was seen having a bag on his head. The accused on seeing the police party tried to slip away. However, he was apprehended and on search poppy husk was recovered from him. Therefore, the provisions of Section 15 of the NDPS Act were not attracted in the present case. Ex. PF is the site plan and recovery memo is Ex. PC. The prosecution version has been supported by ASI Gulab Singh who appeared as PW2. The statements of ASI Gulab Singh and ASI Sher Singh PW4 cannot be doubted on account of non -joining of independent witnesses. The defence of the accused has been disbelieved by the trial Court as he did not examine Bhan Singh or any person from his village to substantiate his defence that he had been called to the police station on 9.6.1996 and false case was planted upon him.

(3.) THE recovery from the appellant was of 25 -1/2 kg. of poppy husk which was below the commercial quantity. As per Entry No. 110 of the Schedule, the commercial quantity is above 50 kg. and the fact that the appellant as already undergone more than 09 months of actual imprisonment, it would be just and expedient to reduce the sentence qua imprisonment to already undergone by the appellant.