Naresh Kumar Sanghi, J. - (1.) Challenge in the present criminal appeal is to the judgment of conviction and order of sentence, dated 15.1.2004, passed by learned Judge, Special Court, Sangrur, whereby the appellant, Atma Singh @ Baj Singh, son of Bachna Singh, resident of Rattangarh, Police Station, Ratia, District Fatiabad (Haryana), was held guilty for the offence punishable under Sec. 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, 'NDPS Act'), and ordered to undergo rigorous imprisonment for ten years besides payment of fine of rupees one lac and in default thereof to undergo further rigorous imprisonment for a period of two years.
(2.) Learned counsel for the appellant has raised the following arguments: - i. The investigating officer and the complainant is one and the same person and, as such, the veracity of the prosecution case put up by the complainant cannot be believed; ii. There was huge delay in sending the samples to the Chemical Examiner, Punjab, at Chandigarh, because the same were allegedly drawn on 18.2.2002, while delivered on 20.3.2002 in the office of the Chemical Examiner; iii. The conscious possession of two gunny bags containing poppy husk with the appellant could not be substantiated by the prosecution; iv. The samples were not drawn by mixing the whole contents properly; v. While recording the statement under Sec. 313, Cr.P.C., of the appellant, no question with regard to conscious possession of the contraband was put to him; vi. Ajaib Singh, the only independent witness from the public, was not examined during trial by the prosecution; vii. Copies of the FIRs (Exs. D5 and D6) of Police Station, Lehra, would clearly show that Ajaib Singh, i.e. the same person who was associated as a public witness in the present case, was also a prosecution witness in the said cases and, as such, he was a stock witness of the police belonging to Police Station, Lehra, District Sangrur; viii. There was non -compliance of sub -section (6) of Sec. 50 of the NDPS Act, since after effecting search of the appellant, the report was not sent to the senior police officers; ix. No Gazetted officer or the Executive Magistrate was summoned at the spot from where the alleged poppy husk was recovered, to witness the recovery; x. All the documents were scribed in Punjabi language, while the appellant, who belonged to Ratia, District Fatiabad (Haryana), was a Hindi speaking person and did not know Punjabi, as such, his signatures were obtained without making him understand the contents of the documents; xi. Initially the samples were sent to the Chemical Examiner, Punjab, at Chandigarh on 25.2.2002, but he found certain irregularities in the forwarding letter and, as such, the samples were not retained by him and later on the same were once again sent and delivered in the office of the Chemical Examiner on 20.3.2002; xii. It has come in the deposition of Inspector Jaswinder Singh (PW -5) that the seal used for sealing the samples and the residue of the alleged contraband, was returned by Ajaib Singh on the very next day of the recovery, which would create doubt that the samples remained in the police possession for a long time in the same state in which those were originally sealed; xiii. There were severe contradictions in the depositions of the prosecution witnesses; xiv. The grounds of arrest of the appellant were neither assigned nor the relative or friend of the appellant was informed regarding his arrest; and xv. Learned Trial Court without assigning cogent reasons has returned the verdict of guilt against the appellant.
(3.) On the other hand, learned counsel for the State has vehemently opposed the arguments raised by learned counsel for the appellant and submitted that the investigating agency had no enmity with the appellant to falsely implicate him in the present case; there was no delay in sending the samples to the Chemical Examiner since after seven days of the recovery of the contraband, the samples were sent on 25.2.2002, but due to deficiency in the forwarding letter, the samples were sent back by the Chemical Examiner to the investigating agency and, as such, time was consumed in delivering the samples; the appellant was found sitting on the gunny bags containing poppy husk and from the said fact it would be clear that he was in conscious possession of the poppy husk; no prejudice has been caused to the appellant from the fact that no question was put to him in his statement recorded under Sec. 313, Cr.P.C., regarding conscious possession of the contraband; mere non - examination of Ajaib Singh, a person from the public, would not lead this Court to assume that whole case of the prosecution was false; the investigating officer had made an offer to the appellant to call for the Gazetted Officer or the Magistrate at the spot, but the appellant had himself declined the said offer of police and posed confidence in the Investigating Officer; and that the contradictions pointed out by learned counsel for the appellant were bound to occur in the depositions of the prosecution witnesses when they were examined after long lapse of time. He prayed for dismissal of the appeal.;