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TMI Blog2017 (5) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... total sentence of eight years ten months and ten days. Appellant- Wardi Chand has not earned any remission and has undergone total sentence for a period of eight years one month and four days. Thus, all the appellants have already undergone a substantial period in jail. In view of the facts and circumstances of the case, they certainly deserves leniency in the matter of sentence. As we do not find any legal infirmity in the conviction of the appellants recorded by the learned Judge, Special Court, Panipat. Thus, the conviction of the appellants recorded by the learned Judge, Special Court, Panipat for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is upheld and appeal against conviction stands dismissed. However, the order on the quantum of sentence dated 15.01.2011 is hereby modified. Appellants Wardi Chand, Balbir, Tirlok and Kuldeep are sentenced to undergo rigorous imprisonment for a period of ten years and also ordered to pay a fine of ₹ 1 lac each and in default thereof, they will further undergo imprisonment for a period of one year. - CRA-D-260-DB of 2011(O&M) - - - Dated:- 16-2-2017 - S. S. Saron And Darshan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f bus stand, Panipat. The said vehicle was got stopped by the police party. All the four persons sitting on the rear seat of the vehicle and the driver of the said vehicle were apprehended. The driver of the vehicle disclosed his name as Tirlok. The persons sitting on the middle seat disclosed their names as Wardi Chand and Balbir. The persons sitting on the rear seat disclosed their names as Kuldeep and Vikas. One big size plastic box was lying in between the persons sitting on the middle seat and the another plastic box was lying in between the persons sitting on the rear seat. The Investigating Officer suspected some contraband contained in those plastic boxes. He served a notice under Section 50 of the NDPS Act (Ex.PW6/B) upon the accused-appellants giving an option to them to get their personal search and search of the bags conducted before any Magistrate or Gazetted Officer. They opted their personal search and search of their bags to be taken in the presence of a Gazetted Officer. The Investigating Officer telephonically informed (PW-8) DSP Randhir Singh, City Panipat. After 15 minutes, he reached at the spot. The Investigating Officer disclosed the facts of the case to him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case property were again deposited in the malkhana. Two sample parcels were sent to Forensic Science Laboratory, Madhuban (for short 'F.S.L.') for examination, which were found to be of opium vide report Ex.PX and on completion of the investigation, the report under Section 173 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') was presented in the Court. 6. After compliance of the provisions of Section 207 Cr.P.C, the accused-appellants were charge sheeted by the learned Judge, Special Court, Panipat for the offence punishable under Section 18 of the NDPS Act vide order dated 18.02.2009 to which they pleaded not guilty and claimed trial. 7. In order to substantiate its case, the prosecution examined as many as eight witnesses. 8. When examined under Section 313 Cr.P.C, the accusedappellants pleaded false implication and that nothing was recovered from their possession. Accused-appellant-Vikas (now deceased) further pleaded that he has been apprehended at the instance of Ex-Sarpanch of village Daffarpur, District Sonepat due to monetary dispute. Accused-appellant- Wardi Chand pleaded that he had visited village Daffarpur, District Sonepat wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat on this account also there is violation of Section 42 of the NDPS Act. 15. They further contended that as per prosecution case and statements of the prosecution witnesses, sample parcels were stored in a plastic box. But, in the F.S.L. report (Ex.PX), it is mentioned that the samples were in polythene. They further contended that as per the case of the prosecution 50 gms of opium was separated as sample. But, the report of the FSL shows that one of the sample was weighing 55.2 gms and the other sample was weighing 64.2 gms. There was much difference of weight of sample parcels sent to the F.S.L. Thus, they contended that it is not established that the same sample parcels, which are alleged to have been separated, have been sent to the F.S.L. for examination. 16. They further contended that in-fact the entire prosecution story has been fabricated. PW-5-Mahabir Singh Nain, Photographer has categorically stated that he has taken the photographs on 07.01.2009. In the cross-examination, he has stated that he took the photographs at 12 'o clock noon, whereas the recovery is shown to have been affected after 5 pm of 07.01.2009 and this version of PW-5 has not been challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Investigating Officer has made the efforts to join the independent witness, but none of them cameforward. He further contended that the accused-appellants have not alleged any animosity against the official witnesses. The version of the prosecution is also corroborated from the statement of DSP Randhir Singh (PW-8) a gazetted police officer. Learned counsel for the appellants has not been able to find out any material contradictions in their statements. So, there is no reason to disbelieve their testimonies. Thus, he contended that the conviction of the appellants does not suffer from any legal infirmity. 22. We have duly considered the aforesaid contentions. 23. The plea raised by learned counsel for the appellants that the mandatory provisions of Section 42 of the NDPS Act have been violated carries no substance. From the statement of PW-7-Inspector Jagdeep Singh, the Investigating Officer of the case, it comes out that immediately on receiving the secret information he reduced into writing the said secret information in the shape of the D.D.R. no. 6 dated 07.01.2009 (Copy Ex.PW6/A). Copy of the said D.D.R. was duly forwarded to PW-8-DSP Randhir Singh, his immedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o authorize PW-7-Inspector Jagdeep Singh to carried out the search even during night. So, there is no violation of proviso to Section 42 (1) of the NDPS Act. Case State of Rajasthan Vs. Jag Raj Singh @ Hansa (supra) relied upon by learned counsel for the appellants is quite distinguishable on facts. In that case, there was difference of the secret information recorded in the Rojnamcha and the information sent to the Circle Officer. Whereas, in this case no such difference could be pointed out by learned counsel for the appellants in the secret information recorded in the DDR Ex.PW6/A and the information sent to PW-8-DSP Randhir Singh as the copy of the same DDR has been forwarded to PW-8- DSP Randhir Singh. In case State of Rajasthan Vs. Jag Raj Singh @ Hansa (supra), the search was carried out by the Investigating Officer himself without seeking any search/ authorization and without procuring the presence of any empowered officer at the spot. Whereas, in this case the Investigating Officer was duly authorized vide written authorization Ex.PW6/D by PW-8-DSP Randhir Singh to carry out the search. Moreover, he himself has supervised the operation of the search. Thus, the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he weight of one sample along with polythene has been mentioned as 55.2 gms and the weight of the second sample is mentioned as 64.2 gms with polythene. It is evident that the weight of the sample has been taken by the expert in the FSL along with the polythene. As per the evidence on record, the Investigating Officer has used the pen type scale to weight the samples and residue opium. The samples were weighed in open. The pen type scale cannot be stated to be so accurate and definite, whereas in the FSL the sophisticated digital scales are used in closed premises to weigh the substance. In these circumstances, the variation in the weight of the sample is natural and it could not establish the tampering with of the samples. The Hon'ble Supreme Court in case Madan Lal and Anr. Vs. State of Himachal Pradesh 2003 (4) R.C.R. (Criminal) 100 has laid down as under;- 18. Coming to the plea that there was reduction in weight of the samples sent for analysis and there was tampering, it has to be noted that this aspect has also been considered by the Trial Court which has recorded the reasons for rejecting the same. It has been noted that the seals were intact and there was no tampe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses, but they showed their helplessness. Inspector Jagdeep Singh (PW-7), the Investigating Officer of the case has also deposed that he tried to join the public persons in the investigation as witnesses, but they all had shown their inability to join the investigation. PW-8-DSP Randhir Singh has also stated in the crossexamination that he directed the Investigating Officer to join the public persons in the investigation and he tried to join some persons in the investigation, but nobody was ready to join the investigation as told by the Investigating Officer. Thus, the efforts have been made by the Investigating Officer to associate the independent witnesses in the investigation, but they expressed their helplessness/ inability to joint the investigation. So, the investigating Officer was left with no other option, but to proceed further by joining the police officials. It is well settled by this time that the testimonies of the official witnesses also carries the same evidentiary value and their testimonies cannot be discarded merely on the ground of their official designation. The learned defence counsel has not been able to point out any material contradiction in the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys and after adding remission, he has undergone total sentence of eight years ten months and ten days. Similarly, appellant-Kuldeep has actually undergone seven years ten months and ten days in jail and after adding remission, he has also undergone total sentence of eight years ten months and ten days. Appellant- Wardi Chand has not earned any remission and has undergone total sentence for a period of eight years one month and four days. Thus, all the appellants have already undergone a substantial period in jail. In view of the facts and circumstances of the case, they certainly deserves leniency in the matter of sentence. 35. Thus, keeping in view our aforesaid discussion, we do not find any legal infirmity in the conviction of the appellants recorded by the learned Judge, Special Court, Panipat. Thus, the conviction of the appellants recorded by the learned Judge, Special Court, Panipat for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is upheld and appeal against conviction stands dismissed. However, the order on the quantum of sentence dated 15.01.2011 is hereby modified. Appellants Wardi Chand, Balbir, Tirlok and Kuldee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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