BACHITTAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS appeal has been filed by the appellant against the judgment and order dated 5.12.1989 passed by the learned Additional Sessions Judge, Ludhiana whereby the appellant has been convicted for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act, for short) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year.

(2.) CASE FIR No. 36 of 12.2.1987 (Ex. PC/1) was registered on the writing sent by Sub-Inspector Harbhajan Singh (PW-2). It was stated by SI Harbhajan Singh (PW-2) that on the date of the occurrence i.e. 12.2.1987 at about 1.30 p.m. he along with ASI Uttam Singh (PW-1) and other police officials were present at Tehsil Chowk Jagraon in a Government Jeep No. PUN 2509 driven by Malkiat Singh, Constable and a barricade (naka) had been set up at that time. A secret informer came to SI Harbhajan Singh (PW-2) and he informed that Bachhittar Singh (appellant) indulges in large scale sale of poppy husk and if a raid was conducted a large quantity of poppy husk and poppy heads could be recovered from him. The information was found reliable. Since Bachittar Singh aforesaid (appellant) had committed an offence punishable under Section 15 of the Act, a memo was sent to the Police Station for registration of FIR against the appellant for selling poppy husk and poppy heads. The writing was sent for registration of the FIR through Sukhwinder Singh Constable No. 884. SI Harbhajan Singh proceeded to the spot for conducting investigation. After that the police party went to the village Baba Manuke i.e. the village of the appellant from where Darshan Singh an independent witness was joined with the police party. They reached the house of the appellant at about 2.15 p.m. and he met them at the gate. He was taken in custody and interrogated. During his interrogation, the appellant made a disclosure statement that he had kept concealed 20 bags of poppy husk in a deserted well in the area of village Bhamipura and also offered to get the same recovered. The disclosure statement Ex. PA was recorded which was signed by the accused and attested by ASI Uttam Singh (PW-1) and the independent witness Darshan Singh. In pursuance of the disclosure statement, 20 bags of poppy heads were recovered which on weighment came to 40 kg. each. Samples of poppy heads weighing 250 grams each were taken out from each of the bags. The sample and the remaining poppy heads in the bags Exs. P-1 to P-20 were separately sealed by the Investigating Officer and the seal was handed over to Darshan Singh, the independent witness at the spot. The recovery bag along with samples were taken in possession vide memo Ex. PB and attested by the witnesses at the spot. Rough site plan Ex. PD with correct marginal notes was prepared and the statements of the witnesses were recorded. The case property was deposited with MHC Piara Singh with the seal intact. Report of the Chemical Examiner Ex. P-1 was received. After the police had completed the investigation, the challan in the case was filed on 7.7.1989.

(3.) AFTER recording the statement of the appellant under Section 313 Cr.P.C., the learned Additional Sessions Judge found that the charge had not been properly framed. It had transpired that inadvertently the charge could not be correctly framed. The same was defective inasmuch as the case of the prosecution was that on 12.2.1987 in the area of Bhamipura the accused was found in possession of 20 bags each containing 40 kgs of poppy husk. However, inadvertently in the charge it was recorded that the appellant was found in possession of 40 kgs. of poppy husk only. The learned Additional Public Prosecutor and the defence counsel on 25.11.1989 stated that they had no objection to the amendment of the charge in accordance with the FIR. Accordingly, it was directed that the charge be amended in accordance with the FIR. An amended charge was framed on 25.11.1989 to the effect that the accused on or about 12.2.1987 in the area of Bhamipura, was found in possession of 20 bags each containing 40 kgs. of poppy husk without a valid licence or permit and thereby committed an offence punishable under Section 15 of the Act. The charge was read over and explained to the accused. He pleaded not guilty and claimed trial. The statements of the Additional Public Prosecutor and the defence counsel were recorded to the effect that they do not want to produce any PW for examination, re-examination or cross-examination. Besides, the accused does not want to lead defence evidence. The Additional Public Prosecutor stated that after the amendment of the charge he does not want to recall any witness and that the evidence already recorded may be read. Similarly, statement of the accused was recorded, which is to the effect that after amendment of the charge he does not want to recall any PW for further cross-examination and that the evidence already on the record may be read. Besides, his statement already recorded under Section 313 Cr.P.C. be read and he did not want to produce any evidence in defence. The learned Additional Sessions Judge after considering the evidence and material on record vide his impugned order convicted and sentenced the appellant, which order is assailed by the appellant in this appeal.