PREM SINGH Vs. INSPECTOR CUSTOMS PREVENTIVE STATION

JUDGEMENT

(1.) Prayer in the instant appeal is for setting aside the judgment of conviction dtd. 9/5/2005 vide which the appellant was held guilty for the offence punishable under Sec. 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and the order of sentence dtd. 9/5/2005 vide which he was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1.00 lac and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year.

(2.) Brief facts of the case are that the Inspector Customs, Preventive Station, Attari, on receiving a secret information which was reduced into writing and sent to the superior officer, laid a naka/barrier at Railway Crossing near Attari Railway Station on Attari-Rajatal Road on 25/8/2003 and intercepted a scooter bearing registration No.PB-03-K-3628. On enquiry, the appellant was found to be driving the scooter and one Manjit Singh was sitting on the pillion seat. Thereafter, two independent witnesses, namely, Swarn Singh and Joginder Singh were joined and in their presence, the Customs Officers consisting of Inspector Supinder Singh, Superintendent Ashwani Kumar disclosed their identity and informed them about their right to be searched before a Gazetted Officer or a Magistrate as they apprehended that the accused were carrying some narcotics. In reply to the notice, accused opted to be searched before a Gazetted Officer and the notice and consent memo were recorded in writing and the personal search was also conducted but nothing was found in personal search. Thereafter, the search of the scooter was conducted and from the dicky, brown colour cloth bag containing eight polythene packets of blackish semi-solid resinous material, i.e. opium was found and on weighment, it was found to be 4.10 kgs.(gross) and 4.00 kgs. net. With his drug testing kit, it was found to be opium and thereafter, samples of 25 grams each were drawn by making it a homogenous and were packed and sealed with seal No.114 of the Customs Division, Amritsar under the signatures of accused Prem Singh and the same was witnessed by Inspector Supinder Singh. The remaining opium of 3.95 kgs. was packed in the polythene pouch, and thereafter, the same was put in tin box and wrapped and sealed with seal No.114 under the signatures of the Investigating Officer. Thereafter, the test memo was also prepared and handed over the competent authority and the scooter and other articles were taken in possession and the statement of the accused under Sec. 57 of the Act was recorded regarding the recovery of opium. He stated that he came in contact with one Jagtar Singh, resident of village Jandwala and he had been purchasing opium from him. Jagtar Singh gave an offer to him to give Rs.1,000.00 per kg. As commission for the delivery of opium to some person and he was going to deliver the consignment to one Khan when he was intercepted by the Custom Officials and it was further stated that Manjit Singh do not know about the concealment of the opium in the dicky. In his separate statement, Manjit Singh stated that he was innocent had no knowledge about the same and, therefore, he was not arrested.

(3.) In the prosecution evidence, Supinder Singh, Inspector Customs appeared as PW1 and stated that Superintendent, Custom was a Gazetted Officer and as the accused opted to be searched before a Gazetted Officer, Ashwani Kumar, Superintendent recorded the option Ex.PA, which was thumb-marked by the accused and the consent memo was prepared as PA/1, which was also thumb-marked by the accused and signed by Ashwani Kumar, Superintendent. Two independent witnesses Joginder Singh and Swarn Singh also signed the same. Similarly, the consent memo of Manjit Singh Ex.PB and Ex.PB/1 was recorded, which was also thumb-marked by him and attested by the aforesaid witnesses. In the personal search of both the accused, nothing was recovered and from the dicky of scooter, the recovery of opium was made. Thereafter, a panchnama i.e. memo. Ex.PC was prepared which was signed by accused Manjit Singh, seizure memo Ex.PD was prepared which was also signed by the same set of witnesses, including the independent witnesses. This witness further proved the test memo Ex.PE, arrest memo. Ex.PF, grounds of arrest of the accused as Ex.PG, personal search memo. Ex.PH and the statement of the accused under Sec. 67 of the NDPS Act was proved as Ex.PJ. This witness further stated that on 4/9/2003, one sealed parcel containing the samples was sent to Central Revenue Control Laboratory, New Delhi through Inspector Joginder Singh and was received in the said office on 5/9/2003. This witness further proved the sealing of sample parcels and the bulk parcels, sending the application Ex.PL to the higher authorities and the other report Ex.PM. Thereafter, the case property was deposited with Sarabjit Singh, Incharge of the Malkhana vide inventory Ex.PO and Ex.PR, the scooter was also deposited in the Malkhana. The report of the Chemical Examiner was received as Ex.P7. The inventory dtd. 14/11/2003 was attested by the Chief Judicial Magistrate, Amaritsar vide certificate Ex.PV which was done in his presence and the complaint against the accused was submitted as Ex.PW. In cross-examination, this witness has stated that in the information report, name of the secret informant was not given and it was sent to Deputy Commissioner, Kalhon in writing. However, he had not brought the same in the Court. He denied that the independent witnesses were not present and their signatures were obtained later on. He further stated that on enquiry of the registration certificate of the scooter it was found that one Surjit Singh is the owner of the same. He also denied that the scooter and registration certificate were recovered from Surjit Singh and not from the accused.