BHAG SINGH Vs. STATE OF H.P.

JUDGEMENT

(1.) The present appeal is directed against the judgment and order dtd. 6/8/2005, vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Sec. 15 of the Narcotic Drugs and Psychotropic Substances Act (ND&PS Act) and was sentenced to undergo rigorous imprisonment of 10 years, pay a fine of ?1.00 lac and in default of payment of fine, to undergo further simple imprisonment for two and half years. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

(2.) Briefly stated, facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of an offence punishable under Sec. 15 of the ND&PS Act. It was asserted that ASI Harbans Lal (PW19), HC Sarabjeet Singh (PW16), HC Nardev Singh (PW18), Constable Upnesh Kumar (PW3), Constable Jaswinder Singh, Constable Somnath, Constable Suresh Kumar and LC Suresh Kumari (PW10) were present at Laluwal border for patrolling on 29/1/2004. HHC Sher Bahadur (PW14) told Harbans Lal (PW19) at 2:35 PM that he had received a secret information that accused Bhag Singh and Avtaar Singh were selling opium poppy husk near Kaku Poultry farm. A huge quantity of poppy husk could be recovered in case of search. Statement of HHC Sher Bahadur (Ex.PW3/A) was reduced into writing and was sent to the Police Station, Una, for registration of FIR through Constable Upnesh Kumar. Harbans Lal prepared information under Sec. 42 of the ND&PS Act and handed it over to Constable Suresh Kumar (PW4) with a direction to carry it to the Superintendent of Police, Una. Constable Suresh Kumar handed over the information under Sec. 42 of the ND&PS Act to Dy. Superintendent of Police Anupam Sharma on 29/1/2004, who handed it over to his Reader HC Ishar Singh (PW12). ASI Harbans Lal associated witnesses Rajinder Singh (PW1) and Manoj Kumar (PW2), and proceeded towards the Kaku poultry farm. He found the accused, Bhag Singh, standing near the road with a plastic bag (Ex. P17). Harbans enquired his name and address and told Bhag Singh that he had a suspicion regarding the possession of poppy husk and he had a right to be searched before the Gazetted Officer or the Magistrate. The accused consented to be searched by the police vide memo (Ex.PW6/A). Harbans Lal and other police officials gave their personal search to the accused, and nothing incriminating was found in their possession. Memo (Ex.PW4/A) was prepared. Harbans Lal checked the bag of the accused and found that it contained poppy husk and a small tin box. Its weight was found to be 15 kg. Two samples of 200 grams each were taken out, which were put in different plastic bags. These were wrapped in separate cloth parcels. The bulk parcel was sealed with one seal of impression 'A', and two samples were sealed with three seals of impression 'A'. These were seized vide memo (Ex.PW16/B). Harbans Lal prepared the site plan (Ex.PW19/B). He arrested the accused, Bhag Singh, vide memo (Ex.PW6/C). He searched the accused and prepared a memo (Ex.PW16/D). Bhag Singh made a statement under Sec. 27 of the Indian Evidence Act (Ex.PW16/E) that he had also kept 14 bags of poppy husk in the cattle shed of Avtar Singh. He took the police and the witnesses to the cattle shed of Avtar Singh. Avatar Singh was standing in the courtyard, but he ran towards the jungle after seeing the police. The police tried to apprehend him, but they failed to do so. Bhag Singh took out the key concealed under the bricks and opened the lock of the cattle shed. He got recovered 14 bags of poppy husk (Ex. P3 to Ex. P16) concealed amongst the wheat husk and maize fodder. Each bag was found to contain 40 kgs. of poppy husk. Two samples of 200 grams each were taken from each bag. Each sample was put in a cloth parcel, and each parcel was sealed with three seals of seal 'A'. Each bag of remaining poppy husk was also sealed with three impressions of seal 'A'. The sample seal (Ex.PW1/A) was taken on a separate piece of cloth. NCB-1 Forms (Ex.PW8/C and Ex.PW8/D) were prepared. A seal impression was put on the Form. FIR (Ex.PW8/A) was registered in the Police Station. ASI Harbans Lal conducted the investigation. He prepared the site plan (Ex.PW19/C) and recorded the statements of witnesses as per their version. He produced the accused and the case property before Surender Sharma (PW15), SHO Police Station, Una. Surender Sharma (PW15) resealed the gunny bags, plastic bags and 30 sample parcels with two seals of seal impression 'N'. He put the seal impression 'N' on the NCB-1 Forms (Ex.PW8/C and Ex.PW8/D). He filled columns No.9 and 11 of the NCB-1 Forms and obtained the sample seal (Ex.PW8/B) on a separate cloth parcel. He handed over the case property to MHC Ved Parkash (PW8), who made an entry in register No. 19 and deposited all the articles in Malkhana. He sent the samples and other articles to CTL, Kandaghat, through Constable Jagan Nath (PW11) vide R.C. No. 21/2004. Harbans Lal prepared the special report (Ex.PW12/A) and sent it to the Superintendent of Police, Una. Dy. Superintendent of Police Anupam Sharma handed over the special report to his Reader, HC Ishar Singh, on 29/1/2004. HC Ishar Singh made an entry in his register and retained the special report on record. The accused, Bhag Singh, made a disclosure statement (Ex.PW1/A) on 31/1/2004 in the presence of Harpal Kumar (PW7) and Constable Som Nath (PW5) that he had concealed one bag of poppy husk in his cattle shed and he could get it recovered. Accused Bhag Singh took the police party and the witnesses to his cattle shed and got recovered one gunny bag containing 20 kg of poppy husk. Two samples of 200 grams each were separated from the bag, which were sealed in separate cloth parcels with seal impression 'O'. The remaining poppy husk was sealed in the same bag with three seals of seal impression 'O'. Sample seal 'O' (Ex.PW5/B) was taken on a separate piece of cloth. HC Nardev filled NCB-1 Form (Ex.PW8/E). The seal was handed over to Harpal Singh after the use. The bag and the sample seals were seized vide memo (Ex.PW5/C). The site plan (Ex.PW18/A) was prepared, and statements of witnesses were recorded as per their version. The case property was produced before Sher Singh (PW9), Additional SHO, who re-sealed the gunny bag and the sample parcels with two seals of seal 'B'. He obtained the sample seal 'B' (Ex.PW8/F) and put the seal impression on the NCB-1 Form. He deposited the gunny bag and the parcels with HC Ved Parkash (PW8) on 31/1/2004, who deposited them in Malkhana. He sent the sample parcels along with other articles to CTL, Kandaghat, through Constable Ramesh Chand vide R.C. No. 23 of 2004 for chemical analysis. All the articles were deposited in a safe condition at CTL, Kandaghat, and the receipt was handed over to Ved Parkash after use. The results of the analysis (Ex.PW15/A to Ex. PW15/C) were issued in which it was mentioned that samples contained Meconic Acid and Morphine, and the samples were of poppy husk. The statements of the remaining witnesses were recorded as per their version and after the completion of the investigation, a challan was prepared and presented before the learned Additional Chief Judicial Magistrate, Court No.1, Una, who committed it to learned Sessions Judge, Una, H.P., who assigned it to learned Additional Sessions Judge, Una (learned Trial Court).

(3.) The learned Trial Court charged the accused with the commission of an offence punishable under Sec. 15 of the ND&PS Act, to which they pleaded not guilty and claimed to be tried.