BHOLA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is an appeal against the judgment and order dated 15.3.2004 passed by Shri Dharam Singh, Special Judge, Mansa, convicting the accused under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act, and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, he was to further undergo rigorous imprisonment for a period of six months. The learned Special Judge tried five accused in all under the above charge, out of which four have been acquitted and only present appellant has been convicted and sentenced as referred above.

(2.) IN brief, case of the prosecution is that on 23.9.1999 Sukhwinder Singh SI along with other police officials and an independent person Surjit Singh alias Sita son of Puran Singh, resident of Sardoolgarh, was holding Nakabandi on the kacha passage leading from Lohgarh to Beeranbandi, in the revenue estate of Lohgarh. At about 5.30 A.M. at the place of Naka one Eicher Tractor with a trolley was seen coming to village Lohgarh from village Beeranbandi, which was signalled to be stopped. Immediately, when the tractor stopped, four persons jumped out of the trolley and managed to escape in the Narma crop by taking the benefit of darkness. However, appellant Bhola Singh, driver of the tractor was apprehended at the spot. He disclosed the names of the persons who had jumped and ran away from trolley. The investigating officer on search found some bags lying in the trolley along with one motor-cycle and one scooter. He suspected some contraband in the bags so found in the trolley. He gave offer to Bhola Singh to get the search conducted in the presence of a Gazetted Officer and on his answering in the affirmative, Amarjit Singh DSP, Sardoolgarh was requested to reach the spot. The DSP also disclosed his identity to Bhola Singh. Bhola Singh was satisfied and gave his consent for conducting the search of bags lying in the trolley. Consent memo was prepared and was attested by the witnesses. On search he found all the 14 bags containing poppyhusk. From each of the bags, two samples of 100 grams each were taken out and the weighment was made. On weighment, each bag was found containing 34 kilograms 800 grams of poppyhusk. Thereafter the samples taken out of all the 14 bags were converted into parcels and sealed with the seal of SS. Sample seal was separately prepared. All the samples, sample seal, remaining contraband and the tractor alongwith trolley bearing registration No. HRQ-2045, motor-cycle bearing registration No. HR-22-B-1408 and Scooter No. HR24-D-9023 were taken into possession vide recovery memo which was attested by Sl Satpal Singh. Seal after use was handed over to PW Surjit Singh. Ruqqa was sent to police station through constable Hardev Singh for registration of FIR. Special reports were also sent to the higher officers through constable Karan Singh immediately. The investigating officer SI Sukhwinder Singh was the SHO of Police Station and, therefore, he completed the investigation by recording statements of the witnesses and thereafter produced the case property and Bhola Singh accused in the Court of Illaqa Magistrate. The other accused were arrested lateron. On completion of the investigation, challan was presented. All the accused were charged under Section 15 of the Narcotic Drugs and Psychotropic Substances Act to which they pleaded not guilty and claimed trial.

(3.) LEARNED counsel for the appellant has challenged the conviction of the appellant submitting that the prosecution has failed to prove the alleged recovery of poppyhusk from the conscious possession of the appellant. It is contended that from the statements of the official witnesses examined by the prosecution neither recovery of the alleged contraband from the person of the appellant or from his conscious possession has been proved, particularly when Surjit Singh, the alleged eye witness, has not been examined by the prosecution to support the recovery of the alleged contraband from the possession of the appellant. Learned counsel further contended that the prosecution has failed to adduce any evidence to show the ownership of the poppyhusk. The mere fact that the appellant was driving the tractor-trolley does not prove that he was in possession of the bags containing alleged contraband. He further argued that the prosecution should have conducted further investigation to prove the ownership and to prove that the appellant was really in possession of the contraband article. The learned counsel took the Court through the statement of the accused recorded under Section 313 Cr.P.C. and argued that not a single question was put to the accused that he was the person in possession of poppyhusk loaded in the trolley. The only question put to Bhola Singh accused is as follows :-