KANWAR SAIN Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is an appeal against the judgment/order dated 17.12.2003/18.12.2003 of the Additional Sessions Judge, Fatehabad whereby he convicted Kanwar Sain son of Badri Prasad under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") and sentenced him to undergo 12 years rigorous imprisonment and to pay a fine of Rs. one lac, in default to further undergo rigorous imprisonment for three years.

(2.) THE story of the prosecution is unfolded by ruqa Ex. PF, being sent to SHO Police Station Sadar, Fatehabad by ASI Prem Chand. ASI Prem Chand stated that he along with Head Constable Hoshiar Singh, Constable Mittar Sain, Constable Shiv Chand, Constable Ram Kumar, Constable Manoj Kumar, Constable Jai Singh and Constable Sat Pal were present near the Police Post Badopal in connection with putting up a picket (Nakabandi). ASI Prem Chand received secret information that gunny bags of poppy husk were brought in Tata 608 (Canter) bearing registration No. HR-14/0119 and its driver was Kanwar Sain son of Badri Parshad. The informant stated that the vehicle would come from Hisar side and would go towards Sirsa. ASI Prem Chand tried to join many persons in the investigation, but all of them expressed their inability to do so. Three barricades were installed to check the vehicles coming from Hisar side. Time was at about 10.00 p.m. A Tata Canter arrived, which was stopped by ASI Prem Chand along with the help of other police officials. Registration No. of the vehicle was HR-14/0119. The driver disclosed his name as Kanwar Sain. One young boy named Kuldeep Singh who was sitting by the side of the driver and was known to the ASI, alighted from the Tata Canter from the side of the driver, but he succeeded in escaping in the streets towards village Baropal, taking advantage of the darkness. Kanwar Sain, after he came down, was served with a notice under Section 50 of the NDPS Act, as to whether he wanted to be searched by a Gazetted Officer or a Magistrate. Kanwar Sain, in reply to the notice, stated that he wanted the Tata Canter to be searched by some Gazetted Officer or Magistrate. ASI Raj Singh of Police Station Sadar, Fatehabad was informed on telephone that the search of the Tata Canter was to be conducted and some Gazetted Officer or Magistrate be sent at the spot. Shri Ashok Kumar Garg, Tehsildar, Fatehabad came to the spot. On his directions, the search of the Tata Canter bearing registration No. HR-14/0119 was conducted. As a result of which, 20 bags of onions were recovered and underneath the onion bags, there were 86 gunny bags. On opening the mouth of the gunny bags, it was found that they were containing poppy husk. Weights and the weighing scale were fetched from a nearby factory. Samples each weighing 100 grams were taken from each of the gunny bags and the residue poppy husk on weighing was found to be 39 kgs. 900 grams per bag. The sample parcels and the gunny bags containing residue poppy husk were sealed with seal bearing subscription "PC". The Tata Canter was taken into possession. The recovery memo was attested by he witnesses. The seal after its use and the sample of seal was handed over to Head Constable Hoshiar Singh. On the basis of the ruqa FIR Ex. P-94 was registered by ASI Dharamvir. Special report was sent to the Senior Officers and also to the SDJM, Fatehabad on 13.2.2000.

(3.) LEARNED counsel for the appellant has argued that Ashok Kumar PW-14, Tehsildar was not present. His signatures have not been taken on the recovery memos especially, memo Ex. P-5. This witness has stated that no constable or any other police official was sent to the Police Station to register a case. As per the statement of ASI Hoshiar Singh, PW-3, the bags containing the contraband produced in the Court were of different weights. Some of the bags did not have seals. The secret information received by ASI Prem Chand was not recorded and no memo was prepared which was a violation of Section 42 of the NDPS Act. Though the police party had ample opportunity to join independent witnesses, but the Investigating Officer, deliberately did not do so, as the truth would come out. The alleged contraband was recovered from the Tata Canter, the owner of which was one Mahinder Singh. Appellant Kanwar Sain could not be held consciously liable for the possession of the contraband. The case property produced in Court has been tampered with. The gunny bags are weighing less. There are no identification chits on the gunny bags and there are big holes in the bags.