HARBANS SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS criminal appeal arises out of a judgment dated 27.8.1990 passed by learned Additional Sessions Judge, Ludhiana, in Sessions case No. 35 of 6.11.1989, holding the accused-appellants quilty of offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and sentencing them to undergo RI for ten years and to pay a fine of Rs. 1,00,000/-, each. In default of payment of fine, they were directed to undergo further RI for two years, each.

(2.) AS per prosecution case, on 1.7.1989 at 6.30 AM, ASI Darshan Singh accompanied by HC Hakam Singh, Constables Gurdial Singh, Kuldip Singh, Bishan Singh and Gurcharan Singh, was present at the canal minor in the area of Village Kalaran. ASI Darshan Singh was talking to Gurdial Singh. A tractor bearing the No. PJS 6470 (Escort make) came from the Burj Kalan side, which was being driven by Harbans Singh accused. Accused Surjit Singh was sitting on the gunny bags lying in the trolley. Seeing the police party, the accused became nervous. Trolley was also bearing the same registration No. PJS 6470. ASI Darshan Singh warned accused Harbans Singh to stop. Tractor trolley was accordingly stopped. Both the accused who came down from the vehicle were told about their right of being searched before a Magistrate or a Gazatted Officer. They were also told that if they so desired, they could be taken to a Gazetted Officer or a Magistrate for search. Both the accused reposed their faith in ASI Darshan Singh. On conduction of search, the trolley was found loaded with 30 bags of poppy husk. On weighment, each gunny bag was found to contain 40 kgs of poppy husk. Two samples of 250 grams each were taken out from each of the gunny bags. ASI Darshan Singh prepared the sample seal impression (Ext.P1) on the spot itself. Each sample parcel was put in a separate piece of cloth and it was sealed with the seal impression 'DS' of ASI Darshan Singh. Gunny bags (Ext.P-2 to P-31) were also sealed with the seal of 'DS'. The Seal was handed over to HC Hakam Singh. Tractor Trolley registration certificate, 60 samples and gunny bags (Ext.P-2 to P-31) were taken into possession vide memo. Ex.PA which was attested by prosecution witnesses Gurdial Singh and HC Hakam Singh on the spot itself. Registration certificate of the vehicle is Ex.P-32. Ruqa (Ext.PC) was sent to the Police Station for the registration of the case against the accused. On that basis, a formal FIR (Ext.PC/1) was recorded by SI Kirpal Singh at P.S. Jagraon. The seal was handed over to HC Hakam Singh. A rough site plan (Ext.PD) was prepared at the spot with correct marginal notes. On return to the Police Station, ASI Darshan Singh produced the accused, the samples, the gunny bags, the tractor-trolley and the registration certificate before SI Kirpal Singh, SHO, P.S. Jagraon. SI Kirpal Singh interrogated the accused and affixed his own seal on the samples and the gunny bags. He deposited the samples, the gunny bags etc. with MHC Jasbir Singh. SI Kirpal Singh affixed his own seal bearing impression 'KS' on seal impression chit Ex.P1 at P.S. Jagraon. 30 samples, i.e., one sample each drawn out from each of the gunny bags were sent to the Chemical Examiner for chemical examination. The Chemical Examiner gave a report (Ext.PE) that the samples contents are poppy straw powder. After investigation, a challan was put up against accused Harbans Singh and Surjit Singh and they were tried upon a charge under Section 15 of the Act.

(3.) ON the other hand, learned State counsel submitted that this is a case of recovery of a huge quantity of contraband, being 30 bags (40 kgs. each), which could not have been foisted by the police. He also argued that the provisions of Section 57 of the Act being directory in nature would not cause any prejudice to the right of the accused-appellants.