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TMI Blog2007 (1) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... tated two accused and sentenced to rigorous imprisonment for a period of 12 years and also to pay a fine of ₹ 1.50 lacs each and in default of payment of fine, to further undergo imprisonment for 1-1/2 years. However, both the substantive sentences awarded were ordered to run concurrently. 3. In brief, the facts of the case are that three persons, namely, Binder Singh, Suraj Bhan and Mohan Singh were charged under Section 15 of the Act for having conscious possession of 900 Kgs of poppy straw on 6.8.2000 without valid permit or licence. According to the prosecution case, they were all travelling in truck bearing No. MP-09D/1503 driven by Binder Singh accused. The Truck was got stopped by Inspector Chuhar Singh lncharge CIA Staff, Mansa, who along with ASI Raghbir Singh 611, Constable Bant Singh 474, Constable Jasbir Singh 364, P.H.G. Major Singh 21860 was on patrol duty in government canter No. PB-31/9968 at about 9 A.M. on the link road leading to village Bhupan from main Mansa-Barnala road. The vehicle was found to be carrying 30 gunny bags. Inspector Chuhar Singh (IO) Informed the accused that he suspected something suspicious in the bags which were required to be searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng owner and in control of Truck No. MP-09D/1503 who himself was also apprehended at the spot in the truck along with the aforestated two accused. 5. The prosecution then examined PW-1 Girdhari Lal Pamar, Clerk, RTO, Indore, who produced registration papers of the truck in which the accused were traveling with the contraband. PW-2, Inspector Chuhar Singh, IO, has deposed in regard to having conducted the investigation. SI Cheta Singh SHO Police Station Joga, who appeared as PW-3 deposed in regard to having signed the samples and the bags besides sealing the case property. ASI Raghbir Singh appeared as PW-4 to depose that he was a member of the police party that nabbed the accused with contraband and further attested the statements given by the accused. HC Rajbir Singh appeared as PW-5 and formally tendered into evidence affidavit Ex.PT. PW-6 Rajpreet Singh, AC.III, DPO, Mansa, stated in regard to receipt of special report from DSP Balwinder Singh Romana in the office of SSP and also identified the signatures of Balwinder Singh Romana DSP and Yurinder Singh, SSP on the same. 6. Thereafter, statements of the accused under Section 313 Cr.P.C. were recorded by putting them incrim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t only driven by Mohan Singh, the present appellant, but also owned by him. Suraj Bhan, appellant, (since deceased) and Binder Singh, non-appellant, were sitting on the tarpaulin covering those bags. It is not the case of the accused-appellants that they were transporting some articles under documentation and were not aware that the bags of poppy straw had been loaded along with those articles. Rather, all three were travelling in a vehicle which was not a public vehicle. Appellants instead of submitting any explanation in regard to conscious possession of contraband, denied their presence at the time of recovery taking the plea of alibi, while examining DW-1 Baldev Singh, DW-3 Ashok Kumar and DW-6 Shambu Singh but they miserably failed to prove it in view of the evidence of heavy recovery of poppy straw, given by PW-2 Inspector Chuhar Singh and DSP Balwinder Singh Romana, a gazetted Officer, before him they (accused) signed/ thumb-marked the documents in compliance with Section 50 of the Act and the said documents at no point of time could be rebutted by the accused-appellants that the same do not bear their signatures/thumb-impressions. In the factual scenario of the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Malkhana and in the application, there is a clear cut reference to 60 samples of 100-100 gms. each. Therefore, there is sufficient evidence that two samples of 100-100 gms each were taken out from each bag and thus, it does not violative any provision of the Act ibid. 13. Counsel for the appellants-accused has addressed multi-fold arguments urging that the Panch witness Pritam Singh to whom seal after use was handed over by PW-2 Inspector Chuhar Singh has not been examined by the prosecution. It has also been urged that the case property till its dispatch to FSL, Chandigarh, remained with the Investigating Agency and the possibility of seal being tampered with and substance being changed, cannot be ruled out. It has also been urged that the samples were sent to FSL, Chandigarh after a considerable delay of 10 days without there being any explanation which is again fatal to the case of the prosecution. In support of his arguments, he has referred to judgments in Baldev Singh v. State of Punjab 2005(1) R.C.R. (Criminal) 823; Hakam Singh v. State of Haryana 2006(2) R.C.R. 880; Desh Raj v. State of Punjab 2005(3) R.C.R. 334 and Bhola Singh v. State of Punjab 2005(2) R.C.R. 520. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sahoo , that mere delay in sending the same to the Laboratory is not fatal where there is evidence that the seized articles were kept in proper and safe custody. No doubt, it has come in evidence of PW-2 Inspector Chuhar Singh that in some of the bags, samples are not legible and there are some cracks in the seals but again, it does not affect the merits of the case. Report of the F.S.L. Chandigarh shows that the articles examined were the articles connected with the instant case. Accused-Appellants have not challenged the report of the FSL nor any application was moved for examination of the Chemical Examiner as a witness. In similar situation, in Ashok Kumar v. State of Haryana wherein faint seals on the packets were produced in Court and in absence of any challenge to the report of the Chemical Analyst and not summoning him as a witness, it was held that the doubts raised by the accused as to whether samples were the same as examined by the Chemical Examiner, were found not sustainable. 14. Counsel for the accused-appellant has further contended that though PW-2 Inspector Chuhar Singh has admitted that the place of recovery is a public thoroughfare and many persons had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Singh, being owner and in control of truck No. MP-09D/1503, in his charge-sheet. DSP Balwinder Singh Romana was not a witness to ownership of the truck owned by Mohan Singh. Therefore, his non-examination has not caused any prejudice to the accused-appellant Mohan Singh. Even counsel for accused-appellant Mohan Singh, during the course of his arguments, has not been able to pinpoint any prejudice having been caused to accused Mohan Singh on account of non-examination of DSP Balwinder Singh Romana after the formal amendment in the charge, 16. No doubt, accused-appellant Suraj Bhan (since deceased) had a plastered leg on the date of search and seizure. The statement of DW2-Dr. Ashok Arora suggests that accused Suraj Bhan had been discharged much earlier, i.e. on 18.5.2000, though he had again examined him on 2.8.2000 and advised bed rest but admitted in cross -examination that he could sit in a vehicle. Thus, his evidence suggests that on 6.8.2000, he was not admitted in the hospital nor so disabled to travel in the said truck. No application had been moved either by him or DW3-Ashok Kumar who claims that Suraj Bhan was arrested from his house, to the higher Authorities about t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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