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2015 (9) TMI 401 - PUNJAB & HARYANA HIGH COURT

2015 (9) TMI 401 - PUNJAB & HARYANA HIGH COURT - TMI - Offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) - Contention of learned counsel for the appellants that the statements before the Revenue Officials are not admissible in evidence, is untenable and unacceptable. - Furthermore, contention of learned counsel for the appellants that there are number of cuttings in statement suffered by Sukhchain Singh rendering it inadmissible, is not tenabl .....

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Adv. Mr. J S Gill, Adv. For the Respondent : Mr D D Sharma, Adv. JUDGMENT Lisa Gill, J. Appellants Rajinder Singh and Sukhchain Singh have been convicted for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act') and sentenced to undergo rigorous imprisonment for a period of 12 years, besides, pay a fine of ₹ 1,00,000/- each and in default thereof, to undergo further rigorous imprisonment for one year by the learn .....

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ight pink coloured turbans carrying approx. 5 Kg. of heroin in a hand bag would reach Kathunangal Bus Stop on Amritsar-Pathankot road at about 8.00 p.m. on 22.07.2007 on a private bus. This intelligence/information was reduced into writing, Ex.P1 and sent to Senior Intelligence Officer, Ramesh Sharma who directed surveillance of Kathunangal Bus Stop and for making arrangements for apprehending the consignment alongwith the persons carrying it vide Ex.P1/A. Pursuant thereto, necessary action was .....

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in the hand-bag with Rajinder Singh, it was denied. On repeated questioning Rajinder Singh admitted carrying narcotic substance in the said hand-bag held by him. Sukhchain Singh denied having carried any such substance. PW4 Ramesh Sharma disclosed his identity as Senior Intelligence Officer and a gazetted officer of the Directorate of Revenue Intelligence to the accused. Both the accused were served with a notice under Section 50 of the NDPS Act intimating their right to get their search conduct .....

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nue, Amritsar for carrying out further proceedings. Personal search of both the accused was conducted in the presence of PW4 Ramesh Sharma as well as the independent witnesses. Nothing incriminating was recovered from the personal search of Sukhchain Singh. From the blue coloured hand-bag carried by Rajinder Singh, five packets wrapped in yellow adhesive tape were recovered from under an old and used Kurta Pyjama. Packets were marked as 'A' to 'E'. All the packets were opened and .....

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ere drawn from each of the packets and put in a self-locking polythene packs. All the ten samples were further packed in a white paper envelope and sealed with the seal of DRI over a paper slip bearing signatures of the accused, Panches and DRI officer. All the five packets containing white/yellowish brownish lumps/granules were repacked in the same packets from which the samples were drawn. The opened sides of the polythene packets were closed with the help of transparent adhesive tape and then .....

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Recovery memo, Ex.P5 dated: 22/23.07.2007 was prepared bearing signatures of PW1 Pushpdeep Singh attested by both the accused, Panches and PW4 Ramesh Sharma, Senior Intelligence Officer. Seal after use was given to the competent authority. Special report was sent to Joint Director, DRI, Ludhiana. Statements, Ex.P8 and P9 of accused Rajinder Singh and Sukhchain Singh were recorded under Section 67 of the NDPS Act. Before recording their statements, caution was afforded to the accused that their s .....

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About two years prior to 2002 i.e., in the year 2000 he used to work as a Travel Agent. He had sent about 10-15 persons to Germany and he used to take money ranging from ₹ 2 lacs to ₹ 2.5 lacs per person. He used to send persons abroad through one Kuldip Singh Randhawa, resident of village Kanda Police Station Dera Baba Nanak, District Gurdaspur. His commission out of ₹ 2.5 lacs was about ₹ 20,000/- per person which he received in about 10/12 cases. He made Kuldip Singh R .....

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tacted him on his mobile No. 9855452777 and told that a person named Sarpanch would contact him on telephone and ask him to do some work and Rajinder Singh would earn much money. Nature of work revealed to him on his asking was transporting of narcotic/intoxicating substance to a place, Sarpanch would tell. He did not agree to the same. In the year 2007, Sarpanch contacted him on another telephone number. Meanwhile, one of Rajinder Singh's vehicle met with an accident. He suffered huge loss .....

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the person accompanying him would wear white Kurta Pyjama and cream colour turban. After some time Sarpanch again called him up that description of his physical appearance had been given to someone who would give him some material which he should bring to Kathunangal by bus where another person would meet him to whom the said articles should be handed over. Rajinder Singh asked his uncle Sukhchain Singh who resided in the same village and also plied one of his trucks, to accompany him. He revea .....

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ue colour hand-bag introduced himself as Vicky and asked whether they have been sent by Sarpanch. Having replied in affirmative, he handed over the said blue hand-bag to the accused and directed them to go to the place by bus as told by Sarpanch. They reached Kathunangal at about 8.00 p.m. by a private bus. As they stepped down from the bus, officials in plain clothes stopped them and revealed themselves to be officials of Directorate of Revenue Intelligence. He reiterated the version of their a .....

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Incharge Malkhana, Customs House, Amritsar vide Ex.P19. Five samples from the recovered contraband were sent to the Central Revenue Control Laboratory (CRCL), New Delhi on 25.07.2007 through HC Swaran Singh, DRI office, Amritsar. They were deposited vide receipt No.113 dated 26.07.2007. Forwarding letter is Ex.P22. Test memo sent to CRCL, New Delhi is Ex.P25. Report of the Chemical Examiner Ex.P26 was received and the complaint in question was thereafter filed. Inquiry as contemplated under Sect .....

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l court on consideration of the entire facts and circumstances of the case, concluded that prosecution had proved its case beyond reasonable doubt qua the accused who were accordingly convicted and sentenced as detailed above. Learned senior counsel for the appellants vehemently argues that false implication of appellants is apparent on the face of it. Prosecution is unable to prove that the appellants were, in fact, apprehended at Bus Stop Kathunangal in conscious possession of the contraband i .....

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r urged that false implication of the appellants is proved by the fact that no independent witness was joined with the proceedings. So called independent witnesses Satnam Singh and Ashok Kumar had been given up as having been won over by the prosecution on 14.05.2008. It is only when the defence examined DW3 Satnam Singh, that witness PW5 Satnam Singh was examined after moving an application under Section 311 Cr.P.C. Prosecution has propped up an impersonator in place of the real Satnam Singh wh .....

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ich are otherwise not free from suspicion. It is thus prayed that conviction of the appellants in the facts and circumstances is not sustainable. They should be acquitted of the charges against them. Learned counsel for the respondent while supporting the impugned judgment submits that there is overwhelming evidence on record adduced by the prosecution to prove complicity of the appellants in the commission of the offence as alleged. Appellants were apprehended carrying heavy quantity of contrab .....

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fically revealed that specific secret information/intelligence was received about two Sikh gentlemen who would be carrying approximately 5 Kg. heroin. They could be apprehended at Kathunangal Bus Stop on Amritsar - Pathankot road. Information was duly reduced into writing, Ex.P1 and sent to the Senior Intelligence Officer who had duly endorsed the same. It is on this secret information that the officials were present at Kathunangal Bus Stop. Appellants alighted from the bus coming from Pathankot .....

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under Section 50 of the NDPS Act though the provisions of Section 50 of the Act in a case where the recovery is effected from a bag held by the accused would not be strictly applicable. It is a matter of record that both the appellants suffered statements, Ex.P8 and P9. In the statements recorded under Section 67 of the NDPS Act both of them revealed their complicity in the commission of the offence. Appellant Rajinder Singh has specifically stated that he was in dire financial straits. People w .....

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ncial helplessness prodded him into this illegal trade. He was directed to go to Vijaypur chowk on 22.07.2007 where he would be handed over the narcotic substance which would be transported by him to Kathunangal Bus Stop. Appellant No.1 - Rajinder Singh told his uncle Sukhchain Singh, appellant No.2 about the work to be carried out and promised him a share in the spoils. Appellant No.2 admittedly worked as a driver on his vehicle at a salary of ₹ 2500/- per month. Similarly, appellant No.2 .....

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e Officials are not admissible in evidence, is untenable and unacceptable. Hon'ble Supreme Court in Ram Singh v. Central Bureau of Narcotics, (2011) 11 SCC 347 has specifically held that officers vested with the powers of investigation under the Act are not police officers and, therefore, confessions recorded by such officers are admissible in evidence. Bar created under Sections 24 and 27 of the Evidence is not attracted and the statement by a person before the officer concerned can be reli .....

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accused has made a statement to an empowered police officer in respect of investigation carried out under the Act, such statements are relevant for determining the offence by the concerned person. Therefore, in the present case statements, Ex.P8 and P9 suffered by the appellants can be read into evidence. It is pertinent to note that appellants have not retracted from their confession/statement at any point of time in this case. Furthermore, contention of learned counsel for the appellants that .....

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ht to be argued by learned counsel for the appellants. Another argument pressed into service on behalf of the appellants is that so-called independent witness PW5 Satnam Singh had never witnessed the occurrence. Defence claims to have examined the original Satnam Singh son of Tara Singh as DW3. It is noted that prosecution has examined PW5 Satnam Singh son of late Shri Tara Singh as an independent witness who was present at the time of recovery of narcotics from the appellants. PW5 has completel .....

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of 'late Shri Tara Singh'. Therefore, it is clear that Satnam Singh son of late Shri Tara Singh who had, in fact, witnessed the recovery was duly examined by the prosecution and he has duly supported the prosecution version. By setting up DW3 Satnam Singh, nothing can be gained by the defence. Prosecution has duly proved the recovery of 5 Kg. heroin from the appellants in the presence of independent witnesses. Even otherwise if the prosecution is able to prove its case on the basis of s .....

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ellants. There is not an iota of evidence on record to prove that any of the official witnesses were inimical towards the appellants having an axe to grind against them. Similarly, it cannot be said that non-recording of number of the bus in question or non-examination of the driver/conductor of the bus or of the copassengers, is fatal to the prosecution version. Link evidence in this case is intact. There is nothing on record to raise an inference of tampering of the sample in question. Samples .....

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intact and tallied with the sample seals. HC Swaran Singh as well as Inspector Daljit Singh PW3, who was Incharge of Malkhana on 24.07.2007 have specifically deposed that the samples were neither tampered with nor allowed to be tampered with by anybody as long as they were in his possession. It is contended that tampering of the case property cannot be ruled out as signatures of the Magistrate on the seals have not been mentioned in the Inventory, Ex.P19 especially in view of statement of PW1 Pu .....

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the case property was produced again on 24.04.2008 for authentication certificate under Section 110(1-B) of the Customs Act and it is specifically mentioned in the order, Ex.P28 by the Chief Judicial Magistrate that the samples were produced, duly seen and initialed by the Magistrate. Tampering is thus not evident from the above. Learned senior counsel for the appellants has additionally sought to attack the prosecution version on the ground that alleged secret information was received at about .....

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