KASHMIR SINGH AND ANOTHER Vs. STATE OF HARYANA

JUDGEMENT

(1.) Challenge in these two appeals i.e.CRA-S-2317-SB of 2007 and CRA-S-2380-SB of 2007 is to the judgment of conviction dated 24th September, 2007, passed by Judge Special Court, Kaithal, vide which the appellants were held guilty of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short, 'NDPS Act'), as well as the order of sentence of even date, vide which the appellants were sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000- each, with a rider that in default of payment of fine, they will further undergo rigorous imprisonment for a period of three years in FIR No.188 dated 19.11.2003 registered at Police Station Guhla.

(2.) It may be noticed that these appeals pertains to the year 2007 and the sentence of the appellant Bittu Masih @ Ladi in CRA-S-2380-2007 was suspended on 11.11.2008, as he had undergone 03 years, 03 three months and 10 days of sentence. Sentence of Kashmir Singh-appellant No.1 in CRA-S-2317-SB of 2007 was suspended on 15.01.2009 as he had undergone 04 years of substantive sentence. Similarly, the sentence of Palvinder Singh-appellant No.2 in CRA-S-2317-SB of 2007 was suspended on 18.01.2018 as he had undergone 04 years, 05 months and 25 days of the actual sentence in present FIR No.188 dated 19.11.2003 and in another FIR No.112 dated 23.09.2002, he had undergone the complete sentence of 10 years.

(3.) Brief facts of the case are that on 19.11.2003 SI Jaimal Singh, along with ASI Jagdish Lal, HC Balbir Singh, HC Gurbaj Singh and other police officials were going towards the dera of one Amrik Singh, situated on an unmettled road leading from village Shiv Majra to Daban Kheri. The police party saw three persons sitting on the bags near the aforesaid dera. On apprehension, they tried to nab the accused persons, out of which two persons namely Palvinder Singh @ Polla and Laddi @ Bittu ran away and accused Kashmir Singh was apprehended at the spot. The other two accused persons were known to SI Jaimal Singh and ASI Jagdish Lal and they had identified them. On suspicion of some narcotic substance in the bags, a notice under Section 50 of the NDPS Act was served upon Kashmir Singh, informing him about his right to be searched either before the Investigating Officer i.e. SI Jaimal Singh or before a Gazetted Officer or before a Magistrate, vide notice Ex.PA. Accused Kashmir Singh opted to be searched in presence of a Gazetted Officer, vide his consent memo Ex.PB and both the memos were attested by ASI Jagdish Lal and Head Constable Balbir Singh. Thereafter, the Investigating Officer sent a message to Dharam Pal, DSP, through VT message and after some time he reached at the spot along with his staff. Accused Kashmir Singh was produced before DSP Dharam Pal Dalal and he verified the facts from the accused and witnesses and on his direction the Investigating Officer opened the bags and found poppy husk in all the ten bags. Thereafter, two samples of 100 gms.of poppy husk were drawn from each bag and were sealed separately as sample parcels. The residue on weighment was found to be 19 kgs. 800 gms.in each bag. All the 20 sample parcels and the 10 bags were converted into separate parcels and were sealed with the seal of the investigating officer 'JS' and the seal of DSP as 'DP'. Thereafter, the specimen seal impressions were prepared. The investigating officer handed over his seal 'JS' to ASI Jagdish Lal and the DSP retained his seal with him. The sample parcels, the residue bags and specimen seal impressions were taken in police possession vide recovery memo Ex.PC, which was signed by ASI Jagdish Lal and Head Constable Balbir Singh and was attested by Dharam Pal, DSP. Thereafter, the investigating officer sent a ruqa Ex.PD to the police station through Constable Nathu Ram, on the basis of which, formal FIR Ex.PD/1 was recorded by MHC Rishi Parkash and he made his endorsement on the ruqa as Ex.PD/2. Thereafter, the investigating officer prepared the rough site plan Ex.PE and recorded the statement of witnesses under Section 161 Cr.P.C. The investigating officer arrested the accused Kashmir Singh and on return to the police station, the investigating officer deposited the case property, sample parcels and specimen seal impressions with MHC, in intact position and lodged Kashmir Singh accused in the police lock up. Thereafter, next day, he sent a report under Section 57 of the NDPS Act to the higher polices officials. The accused Laddi @ Bittu was arrested on 29.05.2005 and Palvinder Singh @ Polla was arrested on 15.04.2005. Thereafter, separate reports under Section 173 Cr.P.C. were prepared and presented in the Court. The accused Kashmir Singh was charged under Section 15 of the NDPS Act, vide order dated 08.02004, for having possession of 200 kgs.of poppy husk. Whereas accused Bittu Masih @ Ladi and Palvinder Singh @ Polla were charged under Section 15 of the NDPS Act, for having possession of 60 kgs. of poppy husk, without any permit or licence. All the accused persons denied the charge and pleaded not guilty and claimed trial.