BIRBAL DASS Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is a criminal appeal and has been directed against the judgment and order dated 18.3.1999 passed by the court of Additional Sessions Judge, Bathinda who convicted the appellant Shri Birbal Dass under section 18 of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. one lac or in default of payment of fine he was directed to undergo R.I. for a period of one year.

(2.) THE brief facts of the case are that on 29.8.1993 at about mid day, S.I. Barjinder Kumar, the then S.H.O., P.S. Balianwali accompanied by Constable Shingara Singh and some other police officials left Police Station, Balianwali for village Khokhar, Sooch etc. by a Government Vehicle in connection with patrolling and had also joined in his police party one Sukhpal Singh son of Sarwan Singh at about 2.00 p.m. When the police party reached near Dera Babu Kalu in the area of village Khokhar the accused was spotted coming from the opposite direction on a Bajaj Chetak Scooter No. PIB-2340 and on seeing the police party he tried to give slip. On the basis of the suspicion he was apprehended by S.I. Barjinder Kumar and on checking the diggi of the scooter, opium was found lying in the same. The thanedar inquired from the appellant as to whether he wanted to give search in the presence of a Gazetted Officer or a Magistrate. Accordingly, the accused stated that he wanted to give search in the presence of some Gazetted Officer as a result of which D.S.P. Sukhdev Singh who was a Gazetted Officer was called at the spot and in this presence search was conducted and opium was found. On weighment it came to 1 kilograms and 10 grams. S.I. Barjinder Kumar separated 10 grams of opium by way of sample and the same was sealed with the seal bearing inscription BK. The remaining opium was separately sealed with the same seal. Specimen of the seal used was separately prepared and the entire case property was taken into possession in the presence of Sukhpal Singh, DSP Sukhdev Singh and Constable Shingara Singh. The seal after use was handed over to Constable Shingara Singh. From the personal search of the accused a sum of Rs. 20/- was recovered. This currency was taken into possession. The grounds of arrest were supplied to the accused. The accused could not produce any permit or licence for the possession of the same. Resultantly, ruqa Ex.PE was sent to the Police Station Balianwali for the registration of the case on the basis of which formal F.I.R. Ex.PC/1 was registered. The sample of the opium was sent to the office of the Chemical Examiner who vide report Ex.PJ declared the contents to be of opium and on completion of the investigation of the case, challan was submitted in the Court of Area Magistrate who supplied copies of the documents to the accused as required under the law and vide commitment order dated 9.7.1994 committed the accused to the Court of Sessions. Vide orders dated 12.8.1994, the accused was charge-sheeted under section 18 of the N.D.P.S. Act on the allegations that on 29.8.1993 in the revenue limits of Village Khokhar, he was found in possession of one kilogram of opium without any valid licence or permit and thereby committed an offence punishable under section 18 of the N.D.P.S. Act. The charge was read over and explained to the accused to which he pleaded not guilty and claimed a trial.

(3.) ON the closure of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. The accused denied those circumstances and stated that he has been falsely implicated in this case. Precisely, his defence was as follows :-