MAKHAN CHAND Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is an appeal preferred by Makhan Chand son of Kapur Chand against the order of conviction and sentence passed by Additional Sessions Judge, Barnala, dated 17th August, 1995, vide which the appellant herein was held guilty of having committed an offence under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act) and sentenced vide order of even date to undergo R.I. for ten years and to pay a fine of Rs. 1,00,000/- (one Lac) in default whereof he was to further undergo R.I. for two and a half years.

(2.) THE prosecution version stems from the FIR recorded by S.I. Karam Chand PW-2 which reveals that on 28th July, 1993 while he was posted as S.H.O. Police Station Kotwali, Barnala, he joined with him ASI Bhupinder Singh, H.C. Nishan Singh and some other police officials and proceeded for patrolling the area. When he along with his companions was proceedings from bus stand, Barnala towards bye-pass chowk Bajakhana and was about 50 yards short of chowk, he saw the appellant alighting from the bus with tin box in his hand. On seeing the police party, the appellant got perplexed and slipped towards Khatans on the pretext of urinating himself which caused suspicion in the mind of the police party. He was apprehended and was told that his tin box was to be searched and if he so desired, search could be made in the presence of a Gazetted Officer or Magistrate. The appellant, however, reposed confidence in the police and agreed to be searched by the police itself. On search of the tin box that the petitioner was carrying, 37,000, tablets were recovered. Two samples of 500 tablets were separated and sealed. The remaining 3600o tablets were put in an envelope and put into the tin box along with three distinct parcels with seal bearing letters K.C. he also prepared sample impression of the seal used as Ex. PC and handed over the seal after use to ASI Bhupinder Singh. He thereafter took into possession three parcels vide memo Ex. PD attested by ASI Bhupinder Singh and H.C. Nishan Singh. On further personal search of the appellant, he took into possession Rs. 32/- vide recovery memo Ex. PE. He also sent information Ex. PF from the spot to the police station for registration of case against the appellant on which formal FIR Ex. PF-1 was recorded by MHC Gulshan Kumar. He further prepared rought site plan Ex. PF of the place of recovery with correct marginal notes. After completing the formalities, the challan was put against the appellant which also consisted of report of Chemical Examiner Ex. PA according to which the tablets contained Meconic acid and Morphine to the extent of 1.08%.

(3.) THE conviction has been primarily based on the statements of S.I. Bhupinder Singh PW-1 and S.I. Karam Chand PW-2. Mr. Rajiv Kataria learned counsel representing the appellant besides pointing out some discrepancies in the statements of PW-1 and PW-2 has also argued that the provisions of Section 50 of the Act were not complied with in this case. He also contends that it is over-whelmingly proved on the record of the case that the place where the alleged recovery was made was such where there could not be any dearth of independent witnesses and yet the police had not chosen to join any independent witness while effecting recovery from the appellant. He also contends that while making an offer to the appellant as envisaged under Section 50 on the Act, no independent witness was joined as also that no offer in writing was made to the appellant in this regard.