NAVEED MASIH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This order shall dispose of aforementioned three appeals i.e. CRA No.569-DB of 2009; CRA No.318-DB of 2009 & CRA No.251-DB of 2009 preferred by Naveed Masih s/o Sharief Masih; Ajit Singh s/o Tara Singh and Arsal Singh s/o Bhag Singh respectively, against the judgment of conviction and order of sentence dated 17.02.2009 passed by the Special Court, Amritsar, whereby appellant Naveed Masih was convicted for the offences punishable under Sections 21 & 23 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs.1 lac each on both counts, whereas appellants Ajit Singh and Arsal Singh were convicted for an offence punishable under Section 29 of the Act and sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs.1 lac each. In the event of default of payment of fine, the defaulter shall further undergo rigorous imprisonment for a period of one year.

(2.) The Narcotics Control Bureau (hereinafter referred to as 'NCB') filed a complaint in the Court of Special Judge, Amritsar against the present appellants on 22.12.2005 for the offences punishable under Sections 8, 21, 29 & 60 of the Act. In the complaint (Ex.P48), it is pleaded that on 28.06.2005 at about 1.15 AM, when Constable Satpal Singh - PW4 and Constable Kailash Chand were on duty at naka No.85 of Border Out Post (BOP) Dharma of 'B' coy Papa-I Battalion of Border Security Force, they observed some movement approximately 100 meters ahead of fence near Border pillar 37/8. Constable Satpal Singh alerted Constable Hiralal Yadav and informed post Commander SIO R.D.Parsad, who was on command naka. At the same time, message was also conveyed to Sh. Shyam Kumar, AC Coy Commander 'B' Coy Papa-I BN - PW5, who had just arrived from depth patrolling in the AOR Dharma KS Wala and Wan. He also rushed to the spot. In the meantime, the naka party ordered the intruders to surrender and come forward. The intruders stood still for a while, but the man standing behind ran towards international border and escaped by taking advantage of darkness, bushes and broken ground. On reaching at the spot, Company Commander took the other intruder on gun point and sent guard party to bring the intruder to own side through gate No.137. Four rounds were fired from Pakistan side and in retaliation; the troops fired 11 rounds of BDR. When the fire stopped, the party during search recovered one cloth packet containing four bundles packing tape wrapped around each packet having a characteristic pungent smell. It was revealed by Pakistani intruder that it was heroin. During search of the intruder, one mobile phone (Nokia), 100 rupees Pakistani currency, telephone diary and visiting cards were recovered. A memo Ex.P4 of recoveries of articles recovered along with the list of persons involved in the operation was prepared. Intimation with regard to capture of Pakistani intruder along with articles recovered was sent to the Commandant, BSF Ex.P3 and NCB for further action, as BSF authorities being not authorized under the provisions of the Act to conduct further action or investigation. Information to superior officers by way of Ex.P1 was also sent. On receipt of information, an investigating team was constituted. On reaching Wan, a request letter signed by O.P.Sharma, Superintendent NCB, was moved to the Commandant with regard to handing over of Pakistani intruder along with articles recovered from him. In pursuance of such letter, BSF officials handed over the said person along with articles recovered by way of Ex.P2, brief profile of the encounter and the list of the officers, who participated in the said encounter. The Investigating Officer of NCB PW2 prepared recovery memo Ex.P12.

(3.) At about 8.00 AM on the same day, the officials of the NCB started their investigation after joining two witnesses namely PW Vikram Sharma, Deputy Commandant (General) and PW Inspector Sukhdev Raj. The packet was opened by Balvinder Kumar, Intelligence Officer, who is also the Investigating Officer, which were also wrapped by yellow coloured adhesive tape. After opening all the four packets, two packets each were recovered from each of the four packets i.e. in all eight small packets were recovered. On weighment, all the small eight packets came to 1 Kg. each. Out of these eight packets, three packets bore the inscription of Afgan Co. Limited 2000, Half Moon and a star and on the other side MMCO Ltd. 2000 and picture of lion. The contents of these three packets were transferred into a bigger packet after homogenizing the contents properly. On testing by drug testing kit, the homogenized mixture was revealed as heroin. This mixture was marked as lot- A. After taking two samples of 5 gms. each, which were marked as A-1 and A-2, the remaining lot was heat sealed and then placed in a cloth bag, which was sealed with the seal bearing inscription 'Narcotic Control Bureau-06'. Similarly, a homogenized mixture of other five packets having inscription in urdu and a picture of four flowers, was prepared. On testing by drug testing kit, such homogenized mixture also showed positive result for heroin. This mixture was marked as lot-B. After taking two samples of 5 gms. each, which were marked as B-1 and B-2, the remaining lot was heat sealed and then placed in a cloth bag, which was also sealed with the seal bearing inscription 'Narcotic Control Bureau-06'. A panchnama incorporating the details of seizure made, withdrawal of samples, preparation of different lots and packages, drawing of recovery-cum-seizure memo and preparation of test memo, was also prepared, which was signed by witnesses and thumb marked by the accused. All the sealed samples were handed over to O.P.Sharma, Superintendent, NCB, Chandigarh on the same day for safe custody and thereafter information-cumproceedings Ex.P13 was prepared and the accused Naveed Masih was arrested through Ex.P17 and notice under Section 67 of the Act by way of Ex.P15 was served upon him.