Uma Nath Singh, J.@mdashThis Criminal Appeal arises out of a judgment dated 13.7.1996 passed by learned Additional District Judge, Amritsar, in Sessions Case No. 22 of 1995, holding the accused-appellant guilty of offence u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act''), and sentencing him to undergo RI for ten years with a fine of Rs. 1,00,000/-, for having been found in illegal possession of 20 kgs. of smack/brown sugar. In default of payment of fine, the accused-appellant was directed to further undergo RI for one year.
2. Brief facts of the case, giving rise to the present criminal appeal, are that on 8/9.1988, Inspector Sita Ram along with other police party was coming towards Khalsa College, Amritsar, from village Dhapai, while patrolling under the supervision of DSP T.P.S. Sandhu. When the police party reached near the railway crossing of Village Kot Khalsa, the accused along with other two persons were seen carrying three trunks, one each on their heads. The accused and the said two persons tried to take a turn towards the railway quarters on seeing the police party. The police party was divided into three groups. A team headed by Inspector Sita Ram (PW-4) captured accused-appellant Puran Singh. On being asked as to whether he wanted to be searched in presence of a Gazetted Officer or a Magistrate, the accused-appellant reposed his full faith in the Inspector. Thereafter, on the asking of the Inspector, the accused, having taken out the key from the right packet of his shirt, opened the lock of the trunk. 20 pockets of smack/brown sugar, each weighing one kg., were found in side the trunk. The accused-appellant did not produce any permit/licence for keeping the same in his possession. The I.O. took out the samples of 10 grams smack/brown sugar from every packet and put them into separate in dibbas, which were made into parcels, and the remaining quantities of contraband (weighing 990 grams in each packet) of the 20 packets were kept in the same packets. They were also made into separate parcels. The sample parcels and the remaining quantities parcels were duly sealed with the impression `SR''. Thereafter the entire case properties were kept in the same trunk. The trunk was also sealed with impression `SR''. The case properties were taken into possession vide recovery memo (Ex. PA), which was attested by ASI Kuldip Singh and HC Rattan Singh. The seal in question (S.R.) was handed- over to police officer, ASI Kuldip Singh after use. An amount of Rs. 195/- was also recovered from the search of the person of the accused-appellant which was taken into possession vide memo (Ex. PB). A ruqa (Ex. PC) was sent to the Police Station on the basis of which, a formal FIR (Ex. PC/1) was recorded. A site plan was prepared vide Ex. PD, and the statements of witnesses were recorded u/s 161 Cr.P.C. Having reached the Police Station, the IO deposited the case property, including the sample parcels and the sample seal with the MHC with all the seal impressions intact. On completion of the investigation and receipt of the report of the Chemical Examiner (Ex. PE), a charge-sheet was laid against the accused-appellant in the Court of Ilaqa Magistrate, who in turn, committed the same to the Court of Sessions for trial.
3. Heard learned counsel for the parties and perused the record.
4. Learned counsel for the appellant submitted that as per the site plan, there were railway quarters on both sides of the place of recovery but no independent witness was joined. There was a non-compliance of Section 50 of the Act. According to him, there was an inordinate delay in sending the sample to the FSL, as recovery was effected on 9.9.1988 whereas, the sample was sent on 11.10.1988. There was a non-compliance of Section 55 of the Act also, inasmuch as, the case property and the accused were not produced before the SHO. He also referred to the evidence of two defence witnesses, namely, DW-1 and DW-2, in support of the defence case. According to DW-1, a Police Constable, the key and samples were not deposited with the MHC. According to DW-2, the accused-appellant was picked up from his house and was falsely implicated in this case.
5. On the other hand, learned State counsel submitted that all the mandatory provisions of the Act were duly complied. According to him, Section 50 of the Act would not apply inasmuch as, it was not a case of search of the person of the accused but of a trunk carried by him. The seals of the samples were not found to be tampered with, and DW-2 is a co-villager of the accused. According to learned counsel, till March 30, 2005, the accused-appellant had served the sentence of eight years, eight months and five days and the appeals of the co-accused have already been dismissed by this Court.
6. The prosecution has examined 4 witnesses, whereas the defence has produced two. MHC Tirath Singh (PW-1) submitted his evidence on affidavit (Ex. PW-1/A). It was accepted since his evidence was of a formal character. He was posted as Moharrir Head Constable on the date of seizure, i.e. 9.9.1988, at Police Station Sadar, Amritsar. Inspector Sita Ram (PW-4) on the date of seizure had deposited the case property, being 20 packets of smack (brown sugar) and also 20 tin boxes of samples of said pockets with this witness. He had sent 20 samples of the contraband with Constable Angrez Singh (PW-2) for delivery in the FSL, Chandigarh, vide Road No. 380/21 on 11.10.1988. As per Chemical Examiner''s Report (Ex. PE), the same were received at FSL, Chandigarh, on 12.10.1988 and the receipt in respect thereof was submitted to this witness by PW-2 Constable Angrez Singh on 13.10.1988. He has given a categorical statement on affidavit that there was no tampering with the case property and the samples as long as the articles remained in his custody. Constable Angrez Singh (PW-2) vide his affidavit (Ex. PW-2/B) has supported the evidence of PW-1 in material particulars. He has also clarified that there was no tampering with the seals of the samples during his custody. HC Rattan Singh (PW-3) was posted in Anti Smuggling Staff, Aar. He was a member of the police party headed by Inspector Sita Ram. There were three police parties headed by three officers, namely, first by Inspector Sita Ram, second by Inspector Sukhdev Singh and third by ASI Atma Ram. All the three police parties were working under the supervision of DSP Tajinder Pal Singh. Near Railway Crossing, GT Road, Aar, three accused were seen approaching the place from the side of Khasla College. Having seen the head lights of the police jeeps, the accused turned towards the right side, where Railway Quarters were situated. On the direction of the DSP, all the three accused were detained on suspicion. Accused-appellant Puran Singh was offered to be searched in presence of the DSP or by Inspector Sita Ram (PW-4). The accused gave no objection if the search was conducted by Inspector Sita Ram. The accused was searched by PW-4 in presence of the DSP. The search revealed that the accused was carrying 20 packets of smack kept in an iron box being carried on his head. The accused himself unlocked and opened the box after taking out the key from right pocket of his shirt. Each of the 20 packets was packed in a glazed paper and wrapped in a cloth bag, which was duly stitched. Each packet contained 1 kg. of smack. 10 grams of sample was taken from each packet and put in a tin box. The remaining quantities of the contraband of each packet was repacked in the same packet. The samples and the remaining quantities parcels were sealed with seal impression `SR'' of Inspector Sita Ram. All the samples and the remainders were taken into possession vide memo (Ex. PA), which was attested by this witness and ASI Kuldip Singh. All the articles were again put inside the tin box, which was locked. On a personal search of the accused, an amount of Rs. 195/- was also taken into possession vide memo (Ex. PB), which was again attested by this witness and ASI Kuldip Singh. In his cross-examination, his version of prosecution evidence has remained intact. According to him, police party had started at 9.00 p.m. from the Police Station and they remained at the place of recovery till 4.00 a.m. According to this witness, the accused was produced in the Court on the next day but he was not able to recollect the name of the police personnel, who had produced. He has denied the defence suggestion that no recovery was effected. Inspector Sita Ram (PW-4) has also supported the prosecution case. He has stated that three police parties had been constituted under the supervision of DSP T.P. Singh Sandhu. He had apprehended accused- appellant. Puran Singh and two other accused were arrested by two other police parties. He had offered the accused to be searched in presence of a Gazetted Officer or a Magistrate. The accused had reposed his faith in him for search. He sealed all the 40 parcels, namely, 20 parcels of the samples and the rest 20 of the remainder quantities with his seal impression `SR''. He prepared the sample seal on the spot itself. He kept all the 40 parcels in the trunk, which was also sealed by him and the key of the lock of the trunk was seized vide memo (Ex. PA), which was attested by ASI Kuldip Singh (died during the pendency of the trial) and HC Rattan Singh. The seal after use was handed over to ASI Kuldip Singh. He also recovered currency notes worth Rs. 195/- vide a separate memo (Ex. PB). He conducted the search in the presence of Shri T.P. Singh Sandhu, DSP, on his direction. He also sent a ruqa (Ex. PC), whereupon a formal FIR (Ex. PC/1) was recorded by SI Randhir Singh. He identified the signature and handwriting of said SI Randhir Singh. He recorded the statements of the witnesses and prepared site plan (Ex. PD). Having returned to the Police Station, he deposited the case property, sample parcels and sample seals with Moharrir Head Constable, with seals intact, and also locked up the accused in police lock up. He has stated in his cross-examination that the key of the trunk was also deposited with the MHC along with the case property. He has denied all the defence suggestions contrary to the prosecution case.
7. In his explanation u/s 313 Cr.P.C., the accused-appellant pleaded false implication. He also produced two defence witnesses. Constable Santokh Singh (DW-1) has produced register No. 19 of the concerned period before the Court. According to him, the register does not contain a mention that the key of the trunk and the sample seal were also deposited with the Moharrir Head Constable. Nirmal Singh (DW-2) was a Member of the Panchayat. According to this witness, the accused was picked up from his house along with two other co-villagers. He is a labourer. However, he has admitted that he did not make any complaint to the higher authorities about his apprehension that the accused-appellant would be falsely implicated.
8. Thus, from the aforesaid analysis of the evidence, it appears that the accused was found to be carrying a trunk on his head, which contained 20 packets of smack/brown sugar. The search was conducted in presence of a DSP, who was supervising the patrolling duty of three police parties. From the evidence of MHC Tirath Singh (PW-1) rendered on affidavit, it appears that the case property was deposited with seals intact. During the search and seizure, the necessary procedures were duly followed. Right from the Police Station till the FSL, the seals were found to be intact. It also appears from the Court proceedings of learned Chief Judicial Magistrate that the accused was produced before him on 9.9.1988 itself and he was given a police remand, which was extended upto 15.9.1988. It is also clear from the testimony of Inspector Sita Ram (PW-4) that he deposited the key of the trunk along with the case property with the MHC of the Police Station. Though the witnesses are only police witnesses but they have clearly supported the prosecution case. The accused has taken a plea of a false implication in his explanation u/s 313 Cr.P.C. and has produced two defence witnesses to impeach the credibility of the prosecution case but his defence version has not been able to make any dent. The evidence of DW-1 that the key of the trunk was not deposited with the MHC stands belied by the answer given by Inspector Sita Ram (PW-4) in his cross-examination. Similarly, the defence evidence of DW-2, Nirmal Singh, a co-villager, also does not inspire confidence, as he has admitted that no complaint was made to the higher authorities when the accused was illegally picked up from his house. The nature of the contraband has been found to be diacetylmorphine in the FSL report (Ex. PE). Besides, a huge quantity (being 20 packets, each packet containing 1 kg) of contraband, like smack would not have been planted by the police. Further, the accused has not attributed any motive to the police for false implication. Moreover, this is not a case of search of and recovery from the person of the accused. The recovery has been effected from his trunk. Therefore, the compliance of Section 50 of the Act would not be mandatory. (See (i)
9. Under the circumstances, the impugned judgment dated 13.7.1996, is hereby affirmed and Crl. Appeal No. 578-SB of 1996 is, accordingly dismissed.
