KULDIP SINGH J. - (1.) BY this order, two criminal appeals Nos.CRA -D No.869 - DB of 2008 and CRA -D No.300 -DB of 2009 filed by Jasbir Singh @ Sheera and Gurmel Singh, respectively, arising out of the same judgment and order dated 26.08.2008 and order of sentence dated 27.08.2008, passed by the learned Judge, Special Court, Ludhiana, will be disposed of, vide which both the accused -appellants were convicted under Sections 15 of the Narcotic Drugs and Psychotropic Substances Act ( for short 'NDPS Act') and sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 1,50,000/ - each and in default thereof, to further undergo rigorous imprisonment for one year and six months each.
(2.) SINCE no one has appeared on behalf of Gurmel Singh (appellant in CRA No.D -300 -DB of 2009), as such, Mr. Sarvesh Gupta, Advocate, who is present in the Court, is appointed as Legal Aid Counsel. Prosecution story is that on 30.12.2005, SI Gurdev Singh, SHO, Police Station Sidhwan Bet, along with SI Gulzar Singh , HC Sukhmander Singh, C. Major Singh, SPO Sukhdev Singh was on patrolling duty and was checking suspects. They were in Govt. vehicle Tata 207 bearing No.PB -12 -G -9052 and were present at Chowk Kania Saini. One Avtar Singh @ Tari son of Lal Singh, resident of Pati Multani Hirdaywal met them and was joined in the police party. At about 6.30 a.m., one truck bearing No.HR -62 -5277 came from the side of Dussi Band. It was signalled to stop with the help of torch. When the truck stopped, one person sitting on the driver seat and other sitting on the cleaner seat were apprehended, whereas, one more person sitting in the rear side of the truck ran away from the spot. The person on the driver seat disclosed his name as Gurmel Singh, whereas the person on the cleaner seat disclosed his name as Jasbir Singh @ Sheera. The name of absconding person was disclosed by accused as Mohinder Singh son of Parsa Singh, resident of village Kholia Wala Pul Malsian Bajan, Sidhwan Bet. Sub Inspector Gurdev Singh then checked the truck and found some gunny bags lying the body of truck containing some intoxicant smelling like poppy husk. Therefore, Sub Inspector disclosed his identity to both of the accused and also apprised them of their legal rights of search before the Gazetted officer or Magistrate. Both the accused reposed confidence in the Sub Inspector. Their consent memos Ex.PB and Ex.PC were prepared, which were signed by both the accused. Then in the presence of Avtar Singh, independent witness and other police officials, search of the truck was conducted, which yielded the recovery of 18 bags containing poppy husk. Photographer Raghuwinder Parshad was called at the spot by making phone call. Two samples of 100 gms. each were separated from each bag. The weight of each bag of poppy husk came to 34.8 Kgs. The bags and the samples were sealed by Sub Inspector Gurdev Singh with his seal G.S. Specimen seal was also prepared. Seal after use was handed over to SI Gulzar Singh. Thereafter, the truck, its R.C. and tax book were taken into possession, vide recovery memo Ex.PD. Ruqa Ex.PM was sent to the police station. The FIR Ex.PN was registered. Rough site plan EX.PO of the place of recovery was prepared. Personal search of the accused was conducted and memos in this regard were also prepared. Accused were then arrested and memos in this regard were also prepared. Thereafter, the accused were interrogated. Accused Gurmel Singh as well as Jasbir Singh @ Sheera during their separate interrogation, disclosed that they along with Mohinder Singh loaded 22 bags of poppy husk from Dolla, Rajasthan in the truck. Out of which, 7 bags are kept concealed in the cattle room or the residential house of Mohinder Singh and the same can be got recovered. Thereafter, house of Mohinder Singh accused, who had ran away, was raided. On the identification of Gurmel Singh and Jasbir Singh @ Sheera, four bags of poppy husk were recovered from the house of Mohinder Singh. From the said bags, two samples of 100 gms. of each were separated and the remaining poppy husk in each bag came to 34.8 Kgs. Memos in this regard were prepared. The said bags were also taken into possession. On 31.12.2005, the accused and the case property was produced before the Judicial Magistrate Ist Class by moving an application Ex.PQ/1, on which Magistrate ordered the case property to be deposited in Malkhana. After completion of the investigation, challan was presented in the Court. The accused were tried under Sections 15 of the NDPS Act. In support of its case, the prosecution examined ASI Jagjit Singh as PW1, SI Gulzar Singh as PW2, C. Satnam Singh as PW3, HC Baljit Singh as PW4 and SI Gurdev Singh (now Inspector) as PW5. When examined under Section 313 Cr.P.C., accused Jasbir Singh stated that accused Gurmel Singh was known to him. He had taken lift from him in the truck but he had no knowledge about the contraband. Accused Gurmel Singh stated that he has been falsely implicated in this case. He does not know driving. In fact, he was picked up by the police of P.S. Sidhwan Bet from his house on 28.12.2005, on the ground that truck No.HR -62 -5277 had caused accident. Thereafter, he was involved in this case. In fact, Harbans Singh son of Buta Singh, resident of Bahhoana, P.S. Budhladha, District Mansa, was its driver. On 27.12.2005, the said truck came to lift sand from village Kania. He further claimed that he did not know co -accused Mohinder Singh and Jasbir Singh @ Sheera.
(3.) AFTER hearing the prosecution and accused and going through the evidence, learned Judge, Special Court, Ludhiana, vide order dated 26.08.2008, convicted and sentenced the accused aforesaid, which has been challenged by the accused through different appeals.;