MAAN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS Criminal Appeal arises out of a judgment dated 5.9.1998 passed by the learned Additional Sessions Judge, Hisar, in Sessions Trial No. 240 of 11.3.1996 (31.3.1998); holding the accused-appellant guilty of offence under Section of 18 of the NDPS Act, and sentencing him to undergo RI for ten years with a fine of Rs. 1,00,000/-; and in default of payment of fine, directing to undergo further two years' RI.

(2.) A . Briefly narrated the facts of the prosecution case are as follows : on 2.10.1995, SI/SHO Raja Ram along with other police personal, was present at bridge Rajbaha on a road to village Nadhori in its precincts; at that time, a person was seen coming with a suit case, who on seeing the police party at once sat on ground pretending to go for urination; therefore, apprehended on the spot; and he disclosed his name as Maan Singh son of Amin Lal. The I.O. expressed his doubts that the accused was carrying some contraband in the suit case; a notice was served upon him informing as to whether he wanted to be searched before a Gazetted Officer or a Magistrate, and he agreed for a Gazetted Officer. During search of the suit case in the presence of a DSP, the police recovered 12 kgs opium, out of which, 100 grams were separated as sample, and the remainder was found to be 11 kgs. 900 grams. The sample and the residue were sealed with seals of 'IS' and 'RR', and were taken into possession vide a recovery memo. The accused was formally arrested; a rough site plan was prepared, and after statements of PWs were recorded, and investigation completed, a challan was laid before competent Court for trial.

(3.) ON the other hand, learned State counsel contended that this is a case of recovery from a suit-case, and not from the person of the accused/appellant, therefore, the ratio of the judgment of Hon'ble the Apex Court reported in 2004(2) RCR(Crl.) 960 (SC) : 2004(3) Apex Criminal 163 (SC) : 2004(5) SCC 188 (State of Haryana v. Jarnail Singh and ors.), would apply. He also submitted that this is a case of chance recovery, and no such questions - as to whether the sample and seal were tampered with were put to the prosecution witnesses. Learned counsel referred to a five-Judge decision of Hon'ble the Apex Court reported in 1999(3) RCR(Crl.) 533 (SC) : (1999)6 SCC 12 (State of Punjab v. Baldev Singh).