KISHAN SINGH AND ORS. Vs. STATE OF PUNJAB

JUDGEMENT

(1.) TO challenge judgment of conviction and order of sentence dated December 08, 2010 whereby learned Judge, Special Court, Sahibzada Ajit Singh Nagar (Mohali) (here -in -after referred to as 'the trial court') has convicted and sentenced them to rigorous imprisonment for a term of twelve years and fine amounting to Rs. 1,50,000/ - and in default of payment of fine to further rigorous imprisonment for a term of one year, each, under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here -in -after referred to as 'the Act'), Kishan Singh and Bhagwan Singh (here -in - after referred to as 'the appellants') have brought this appeal.

(2.) CONSPECTUS of events leading to the instant appeal, stated in brief, indicates that while present at ITI Chowk, Lalru in connection with patrol duty, in the company of a police party, including Assistant Sub Inspector Amrik Singh (PW3), at or around 10.00 p.m. on September 04, 2008, Sub Inspector Sukhwinder Singh (PW6) (here -in -after referred to as 'the investigating officer') came across another police contingent headed by Sub Inspector Sarabjit Singh (PW1), Officer -in -charge, Narcotics Control Cell, Kharar and while conversing with him received a secret information that the appellants alongwith their accomplice Yogesh Kumar (since acquitted), who were jointly engaged in smuggling of Cocaine, were in possession of big quantity of Cocaine and were waiting for customers near Narang Hotel in front of Railway Station, Lalru and if apprehended immediately, huge quantity of Cocaine was likely to be recovered from them and their interrogation was likely to reveal names of other members of their cartel. Believing the information to be correct and reliable and possession of Cocaine being an offence under Section 22 of the Act, Investigating Officer telephonically apprised Harinderjit Singh Sidhu, Superintendent of Police (Operations), SAS Nagar (Mohali) (PW5) of the information; requested him to reach the spot; recorded an intimation slip (commonly called a 'Ruqa"), Exhibit PW6/A, and sent it, through Constable Sukhwinder Singh, to the Police Station whereupon a formal First Information Report (for short, 'FIR'), Exhibit PW6/B, was recorded by Assistant Sub Inspector Narinder Singh at Police Station, Lalru. Wasting no time, investigating officer, accompanied by the police officials, reached the disclosed place; joined Hazara Singh (given up witness) with the police party; and on reaching the disclosed place apprehended the appellants. Yogesh Kumar, however, was able to give the police a slip. Appellant Kishan Singh was holding a bag in his right hand. Investigating Officer told him that the bag in his possession was suspected to carry some intoxicating substance and was liable to be frisked; apprised of his legal right to have frisking of the bag before a gazetted officer or a Magistrate. Appellant Kishan Singh opted to have the bag frisked before a Gazetted Officer. Memorandum, Exhibits PA was, accordingly, recorded. In the meantime, SP Harinderjit Singh Sidhu(PW5) reached the spot; and apprised appellant Kishan Singh of his legal right to have frisking of the bag before him or before some other Gazetted Officer or a Magistrate. Appellant Kishan opted to get the bag frisked in his presence. Memorandum, Exhibit PB, was recorded in this regard. Under the instructions of SP Harinderjit Singh Sidhu(PW5), Investigating Officer frisked the bag held by appellant Kishan Singh, in the presence of witnesses. In the bag there was a red -coloured rexine envelope having a paper sticker carrying inscription "TIGER/ SSS.M. Date 10.9.2007/Exp. Date 10.10.2010/ Thailand'. From inside this envelope, Cocaine wrapped in a polythene paper was recovered. From the recovered Cocaine, Investigating Officer separated two samples of ten grams each; and put the samples so separated in parcels. Remainder weighed 880 grams and after putting it back in the polythene paper and the red -coloured rexine envelope, it was put into a plastic container. Investigating officer sealed the parcels containing samples and the remainder, with his seal bearing impression "SS". SP Harinderjit Singh Sidhu also affixed his own seal bearing impression "HS" on sample parcels and the parcel containing the remainder. Sample seals were separately prepared. Investigating Officer handed over seal after use to Hazara Singh (PW) while SP Harinderjit Singh Sidhu retained his seal with himself. Investigating officer took in police possession the sealed sample parcels, Exhibits P1 and P2 to P16, and sealed parcel of remainder, Exhibit P3, vide memorandum, Exhibit PC; arrested the appellants vide memoranda, Exhibits PD and PW3/A; frisked their persons vide memoranda, Exhibits PW3/C and PW3/B, respectively; recorded statements of witnesses; prepared rough site plan, Exhibit PW6/C, of the place of recovery; and on return to the police station produced the appellants and the case property with MMHC Sohan Singh (PW2). On September 05, 2008, Investigating Officer withdrew the case property from Police Malkahana and the appellants from police lock up and produced the appellants and the case property, alongwith an inventory, Exhibit PW6/D, prepared in terms of Section 52A of the Act, before learned Sub Divisional Judicial Magistrate, Dera Bassi who caused a representative sample weighing ten grams to be taken from the parcel of remainder and sealing thereof as also resealing of parcel of remainder by the Investigating Officer with his seal bearing impression "SS"; got the process photographed; and on police request/Inventory, Exhibit PW6/D, passed order Exhibit PW6/E. Yogesh Kumar was arrested on September 07, 2008 vide memorandum, Exhibit PW3/E. One of sample parcels was sent to Chemical Examiner through Constable Varinder Singh (PW4) and a report, Exhibit PW6/F, confirming that the contents of sample parcel were Cocaine, was received from the Chemical Examiner. On conclusion of investigation, a report in terms of sub -section (2) of Section 173 of the Code of Criminal Procedure, 1973 (here -in -after referred to as 'the Code') was presented before the learned trial court.

(3.) TO prove the charge against the appellants, prosecution examined Investigating Officer, SI Sukhwinder Singh as PW6, SP Harinderjit Singh Sidhu as PW5, SI Sarabjit Singh and ASI Amrik Singh, witnesses of recovery, as PW1 and PW3, respectively, HC Sohan Ram, who kept the case property in safe custody and also handed over one set of sample parcel to Constable Varinder Singh, as PW2 and Constable Varinder Singh, who took the sample parcels to the office of Chemical Examiner, as PW4.