MANOJ KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is an appeal against the judgment dated August 16, 2004 passed by Judge Special Court, Bathinda, wherein he has convicted the appellant and sentenced him to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 2,00,000/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for a period of two years for an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act").

(2.) PROSECUTION version is that on November 25, 1991, Sub-Inspector Bhupinder Singh along with Assistant Sub-Inspector Kaur Singh, Assistant Sub-Inspector Bahadur Singh, Head Constable Sarban Singh and Constable Nirmal Singh were on special naqa in the area of village Ablu. They were present in an official Gypsy driven by Constable Iqbal Singh. PW-Mukhtiar Singh, Member Panchayat of village Balhar Mehma, was joined as an independent witness. A Maruti car bearing No. HR-20D-3065 came from the side of village Ablu. The driver of the car, on seeing the police party, tried to turn the car, but with the help of the police officials, Sub-Inspector Bhupinder Singh over-powered him. The driver of the car disclosed his name as Manoj Kumar @ Mohan son of Vijay Kumar, resident of Hanuman Garh (Rajasthan). On opening the window, the police party saw five gunny bags lying in the back seat of the car. Offer of search was made to the appellant, as to whether he wanted to be searched by a Gazetted Officer or a Magistrate. The appellant stated that he be searched by a Gazetted Officer. Consent memo was prepared on which, appellant Manoj Kumar put his signature. It was attested by Mukhtiar Singh, the independent witness. Wireless message was sent to Police Station Nehianwala. After about one hour, Birj Mohan Sarup, Deputy Superintendent of Police, Bathinda (PW-1) along with his staff, came in his official Gypsy. Brij Mohan Sarup disclosed to the appellant, as to whether he wants to be searched by him or a Magistrate. Appellant reposed confidence in him. Consent memo was again prepared, which was signed by the appellant. The car was searched. Poppy husk was recovered from five gunny bags, each weighing 35 kgs. 200 Grams of poppy husk was taken as sample from each gunny bag. Five samples containing poppy husk were sealed with the seal "BS". The seal after its use, was handed over to Assistant Sub- Inspector Kaur Singh. Personal search of the appellant was done. Currency notes of Rs. 100/- were recovered, which were taken into possession. Ruqa was sent to Police Station Nehianwala to register a case under Section 15 of the Act.

(3.) LEARNED counsel for the appellant has stated that independent witness Mukhtiar Singh, Panch, was not brought into the witness box. Seal bearing Mark "BS" should not have been handed over to Assistant Sub-Inspector Kaur Singh, but to PW Mukhtiar Singh, the independent witness. From where the weights and weighing scale were brought, it has not been made clear. Link evidence is missing. Samples were not handed over to the Moharrir Head Constable, so that he could keep them in the Malkhana. The Investigating Officer Inspector Bhupinder Singh kept the poppy husk and samples in his custody, so that he could tamper with the evidence. The percentage of narcotic present in the poppy husk, is not mentioned in the Chemical Examiner's report, Exhibit PN. The material witnesses Assistant Sub-Inspector Kaur Singh, Constable Iqbal Singh and Constable Nirmal Singh have not been examined. Notification to show that Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) was a Gazetted Officer, has not been put on record.