IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: October 21, 2013 CRA No.569-DB of 2009 Naveed Masih ...Appellant Versus State of Punjab ...Respondent CRA No.318-DB of 2009 Ajit Singh ...Appellant Versus State of Punjab ...Respondent CRA No.251-DB of 2009 Arsal Singh ...Appellant Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE FATEH DEEP SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Ms. Tanu Bedi, Advocate, for the appellant in CRA No.569-DB of 2009. Mr. Karamjit Singh, Advocate, for the appellant in CRA No.318-DB of 2009. M/s J.S.Sidhu & S.P.S.Sidhu, Advocates, for the appellant in CRA No.251-DB of 2009. Mr. Pavit Mattewal, Addl. AG, Punjab, for the respondent-State. Mr. Rajiv Sharma, Advocate, for the Narcotics Control Bureau. 2 CRA No.569-DB of 2009, CRA No.318-DB of 2009 & CRA No.251-DB of 2009 HEMANT GUPTA, J. This order shall dispose of aforementioned three appeals i.e. CRA No.569-DB of 2009; CRA No.318-DB of 2009 & CRA No.251-DB of 2009 preferred by Naveed Masih s/o Sharief Masih; Ajit Singh s/o Tara Singh and Arsal Singh s/o Bhag Singh respectively, against the judgment of conviction and order of sentence dated 17.02.2009 passed by the Special Court, Amritsar, whereby appellant Naveed Masih was convicted for the offences punishable under Sections 21 & 23 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs.1 lac each on both counts, whereas appellants Ajit Singh and Arsal Singh were convicted for an offence punishable under Section 29 of the Act and sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs.1 lac each. In the event of default of payment of fine, the defaulter shall further undergo rigorous imprisonment for a period of one year. 2. The Narcotics Control Bureau (hereinafter referred to as 'NCB’) filed a complaint in the Court of Special Judge, Amritsar against the present appellants on 22.12.2005 for the offences punishable under Sections 8, 21, 29 & 60 of the Act. In the complaint (Ex.P48), it is pleaded that on 28.06.2005 at about 1.15 AM, when Constable Satpal Singh - PW4 and Constable Kailash Chand were on duty at naka No.85 of Border Out Post (BOP) Dharma of ‘B’ coy Papa-I Battalion of Border Security Force, they observed some movement approximately 100 meters ahead of fence near Border pillar 37/8. Constable Satpal Singh alerted Constable Hiralal Yadav and informed post Commander SIO R.D.Parsad, who was on command naka. At the same time, message was 3 CRA No.569-DB of 2009, CRA No.318-DB of 2009 & CRA No.251-DB of 2009 also conveyed to Sh. Shyam Kumar, AC Coy Commander ‘B’ Coy Papa-I BN - PW5, who had just arrived from depth patrolling in the AOR Dharma KS Wala and Wan. He also rushed to the spot. In the meantime, the naka party ordered the intruders to surrender and come forward. The intruders stood still for a while, but the man standing behind ran towards international border and escaped by taking advantage of darkness, bushes and broken ground. On reaching at the spot, Company Commander took the other intruder on gun point and sent guard party to bring the intruder to own side through gate No.137. Four rounds were fired from Pakistan side and in retaliation; the troops fired 11 rounds of BDR. When the fire stopped, the party during search recovered one cloth packet containing four bundles packing tape wrapped around each packet having a characteristic pungent smell. It was revealed by Pakistani intruder that it was heroin. During search of the intruder, one mobile phone (Nokia), 100 rupees Pakistani currency, telephone diary and visiting cards were recovered. A memo Ex.P4 of recoveries of articles recovered along with the list of persons involved in the operation was prepared. Intimation with regard to capture of Pakistani intruder along with articles recovered was sent to the Commandant, BSF Ex.P3 and NCB for further action, as BSF authorities being not authorized under the provisions of the Act to conduct further action or investigation. Information to superior officers by way of Ex.P1 was also sent. On receipt of information, an investigating team was constituted. On reaching Wan, a request letter signed by O.P.Sharma, Superintendent NCB, was moved to the Commandant with regard to handing over of Pakistani intruder along with articles recovered from him. In pursuance of such letter, BSF officials handed over the said person along with articles recovered by way of Ex.P2, brief profile of the encounter and the list of the officers, who 4 CRA No.569-DB of 2009, CRA No.318-DB of 2009 & CRA No.251-DB of 2009 participated in the said encounter. The Investigating Officer of NCB – PW2 prepared recovery memo Ex.P12. 3. At about 8.00 AM on the same day, the officials of the NCB started their investigation after joining two witnesses namely PW Vikram Sharma, Deputy Commandant (General) and PW Inspector Sukhdev Raj. The packet was opened by Balvinder Kumar, Intelligence Officer, who is also the Investigating Officer, which were also wrapped by yellow coloured adhesive tape. After opening all the four packets, two packets each were recovered from each of the four packets i.e. in all eight small packets were recovered. On weighment, all the small eight packets came to 1 Kg. each. Out of these eight packets, three packets bore the inscription of Afgan Co. Limited 2000, Half Moon and a star and on the other side MMCO Ltd. 2000 and picture of lion. The contents of these three packets were transferred into a bigger packet after homogenizing the contents properly. On testing by drug testing kit, the homogenized mixture was revealed as heroin. This mixture was marked as lot- A. After taking two samples of 5 gms. each, which were marked as A-1 and A-2, the remaining lot was heat sealed and then placed in a cloth bag, which was sealed with the seal bearing inscription ‘Narcotic Control Bureau-06’. Similarly, a homogenized mixture of other five packets having inscription in urdu and a picture of four flowers, was prepared. On testing by drug testing kit, such homogenized mixture also showed positive result for heroin. This mixture was marked as lot-B. After taking two samples of 5 gms. each, which were marked as B-1 and B-2, the remaining lot was heat sealed and then placed in a cloth bag, which was also sealed with the seal bearing inscription ‘Narcotic Control Bureau-06’. A panchnama incorporating the details of seizure made, 5 CRA No.569-DB of 2009, CRA No.318-DB of 2009 & CRA No.251-DB of 2009 withdrawal of samples, preparation of different lots and packages, drawing of recovery-cum-seizure memo and preparation of test memo, was also prepared, which was signed by witnesses and thumb marked by the accused. All the sealed samples were handed over to O.P.Sharma, Superintendent, NCB, Chandigarh on the same day for safe custody and thereafter information-cum- proceedings Ex.P13 was prepared and the accused Naveed Masih was arrested through Ex.P17 and notice under Section 67 of the Act by way of Ex.P15 was served upon him. 4. Thereafter, accused Naveed Masih tendered voluntary statement Ex.P16 before the Investigating Officer Balvinder Kumar without any threat, inducement or pressure, which was reduced into writing. In his statement, Naveed Masih admitted the manner and factum of recovery. He also volunteered that co-accused Ajit Singh was his accomplice on this side of India along with a Constable of BSF for illegal importation/transportation of the narcotics. The Constable of BSF was later on identified as appellant Arsal Singh. Such statement was also signed by the witnesses and thumb marked by the accused himself. 5. Information with regard to the seizure arrest of Naveed Masih Ex.P18 was given to SHO, PS Khalra, District Tarn Taran. Message was also sent to the Senior officers in Administration including Pakistan High Commission and the Ministry of External Affairs, Government of India, New Delhi as Ex.P19. The accused was medico legally examined by the Chief Medical Officer, Civil Hospital, Patti on the same day by way of Ex.P21. Notice under Section 57 of the Act Ex.P22 was sent. After completion of other formalities¸ the accused Naveed Masih was produced before the Judicial 6 CRA No.569-DB of 2009, CRA No.318-DB of 2009 & CRA No.251-DB of 2009 Magistrate Ist Class, Patti on 29.06.2005 along with case property, samples and relevant papers. 6. On 29.06.2005, O.P.Sharma, Superintendent handed over a covering letter Ex.PA, test memos Ex.PB/Ex.P14 & Ex.P14A as well as original samples in sealed condition to PW-1 Sepoy Ramesh Kumar, NCB, Chandigarh for depositing the same with Central Revenue Control Laboratory (CRCL), New Delhi for chemical analysis, which was deposited on 30.06.2005, regarding which receipt Ex.PD was issued. 7. Accused Ajit Singh was summoned on 12.07.2005 by way of Ex.P28. He also suffered a voluntary statement Ex.P29 without any threat, inducement and pressure. Such statement was also reduced into writing. In his statement, Ajit Singh admitted the manner and factum of recovery and also made confessional statement with regard to his role in illegal importation and transportation of the narcotic drug heroin across the Indo-Pak International Border. He was put under arrest by way of memos Ex.P30 & Ex.P31 at about 7.00 PM on 13.07.2005 after informing him grounds of arrest. Information in respect of his arrest Ex.P32 was also sent to SHO, P.S. Bhikhiwind, Amritsar after medical examination by way of Ex.P33 & Ex.P34. Ajit Singh was sent to judicial custody on 16.07.2005 by the Court of Judicial Magistrate Ist Class, Patti and information Ex.P35 was sent to the Superintendent, NCB. In his statement, Ajit Singh divulged the name of Arsal Singh, Constable in BSF, who has conspired/abetted in the illegal importation/transportation of narcotic drug across the Indo-Pak International Border. 7 CRA No.569-DB of 2009, CRA No.318-DB of 2009 & CRA No.251-DB of 2009 8. On 27.07.2005, a request letter Ex.P36 was sent to the Inspector General (G), Punjab Frontiers, Jalandhar to hand over the custody of Constable Arsal Singh for investigation in the crime of illegal importation/transportation of narcotic drug across Indo-Pak International Border. By issuing summons under Section 67 of the Act Ex.P38, Arsal Singh was asked to appear before Balvinder Kumar for investigation. He also suffered a statement Ex.P39 admitting his participation in illegal importation of narcotic drug heroin across the Indo-Pak International Border, which was attested by the witnesses and signed by the accused. In pursuance of such statement, Arsal Singh was also put under arrest vide Ex.P40 and information in this regard Ex.P41 & Ex.P43 were sent to the Commandant, 123 BN BSF, Bhikhiwind, District Amritsar and Superintendent, NCB, Chandigarh respectively by way of Ex.P37. This accused was medically examined by way of Ex.P42. Records of BSF were requisitioned through letter Ex.P44, which were received through letter Ex.P45. The record is Ex.P46. 9. After receipt of report of the CRCL Ex.PC, New Delhi dated 29.07.2005 to the effect that representative samples A-1 & B-1 derived from the seized contraband tested positive for diacetylmorphine on the basis of chemical and chromatographic examination and godown receipt Ex.P47, Balvinder Kumar – the Investigating Officer moved the present complaint by way of Ex.P48. 10. To prove its case, the prosecution examined PW-1 Sepoy Ramesh Kumar, who deposed with regard to the safe deposit of parcels in Central Revenues Control Laboratory (CRCL), New Delhi on 30.06.2005 and that the parcels were not tampered with during the period it remained in his custody. 8 CRA No.569-DB of 2009, CRA No.318-DB of 2009 & CRA No.251-DB of 2009 11. PW-2 Balvinder Kumar - the Investigating Officer detailed the investigations and the evidence oral as well as documentary collected during the same against the accused. In cross-examination, he stated that he is not in possession of any record showing that he is authorized to file instant complaint on behalf of the NCB though he stated that he can produce the same. He also denied the suggestion that the signatures of Arsal Singh had been taken under the fear of death, coercion and torture on blank papers and that Arsal Singh has been falsely implicated in this case. 12. PW-3 is O.P.Sharma, Superintendent, who after receiving telephonic information from BSF authorities brought the same to the notice of Zonal Director of NCB, Chandigarh. He also supported the prosecution version as deposed by PW-2 Balvinder Kumar – the Investigating Officer. He also deposed with regard to the safe custody of the articles recovered. 13. PW-4 Satpal Singh a Constable of BSF, posted at Border Out Post Dharma of ‘B’ Company, who on 28.06.2005 observed some moment about 100 metres ahead of fence near border at Pillar No.137/8 and informed the higher officials and testified the ocular version as to the apprehension of accused Naveed Masih leading to recovery of the contraband. 14. PW-5 is Shyam Kumar, who was posted as Company Commander ‘B’ Company, 123 BN BSF in Wan, K.S.Wala Dharma on 28.06.2005. He deposed that on receiving information in respect of some movements, he immediately rushed to the spot and found that naka party along with Post Commander had ordered the intruders to surrender and deposed that arrest of 9 CRA No.569-DB of 2009, CRA No.318-DB of 2009 & CRA No.251-DB of 2009 Naveed Masih and recovery of 8 Kgs. heroin. Thereafter, the evidence was closed by proving documents Exs.P1 to P48. 15. The incriminating circumstances appearing against all the accused were put to them while recording their statements under Sections 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). Appellants Arsal Singh and Ajit Singh pleaded false implication and stated that their signatures were obtained on blank papers and that they did not give any voluntary statement to NCB Department, whereas Naveed Masih stated that he was watering in his fields near India-Pakistan border and BSF officials have falsely implicated him in this case and that he has no concern with Ajit Singh and Arsal Singh. In defence, they examined DW-1 Nishan Singh, Sarpanch, who stated that he know Ajit Singh from his childhood and that he cannot speak/write Hindi or English and that he only can put his signatures in Punjabi. DW-2 Pargat Singh is stated to be a neighbourer of accused Ajit Singh. He states that he accompanied Ajit Singh to the police station and that the SHO was not aware why Ajit Singh has been brought to the police station. DW-3 is Constable Jagdish Chander, who brought the original record maintained by the BSF Authorities and stated that accused Arsal Singh was made to close arrest from 19.07.2005 till 15.10.2005 and on 15.10.2005, he was handed over to NCB. 16. After considering the testimonies of all the witnesses, the learned Special Judge found the appellants guilty of the offences mentioned in the charge-sheet and, therefore, convicted and sentenced them in the manner mentioned above. 10 CRA No.569-DB of 2009, CRA No.318-DB of 2009 & CRA No.251-DB of 2009 17. Before this Court, learned counsel for the appellants has vehemently argued that the first version i.e. Ex.P3, a communication addressed by the Company Commander to the Commandant, Papa-I, BN BSF, Amarkot (Punjab), is silent about the throwing of packets by appellant Naveed Masih while raising his hands. It is only averred that intruder stood still for a while, but the man behind him ran away towards International Border. Therefore, the conscious possession of the contraband cannot be attributed to the said appellant. It is also argued that the burden of proof of conscious possession is on the prosecution. Reliance is placed upon Noor Agha Vs. Customs (2008) 16 SCC 417; Ritesh Chakraborty Vs. State of M.P. (2006) 12 SCC 321; Bhola Singh Vs. State of Punjab (2011) 11 SCC 653; Delhi Vs. Ram Avtar (2011) 12 SCC 207 and Ashok Kumar Vs. Rajasthan (2013) 2 SCC 67. 18. It is argued that the statements of Constable Satpal Singh and Shyam Kumar, who said to witness the occurrence, particularly throwing of packets, have not been recorded during the course of investigations as contemplated under Section 161 of the Code. The appellants were not aware the purpose of citing of such persons as witnesses in the complaint filed. Therefore, the appellants have been taken by surprise, therefore, the statements of PW-4 Constable Satpal Singh and PW-5 Shyam Kumar cannot be read in to as evidence. 19. Contending that the judgment of the Supreme Court in Kanhaiya Lal Vs. Union of India (2008) 4 SCC 668 is per incurium as the empowerment of as Officer-in-charge of a police station makes such empowered officer, as the police officer as laid down in later judgment in Noor Agha’s case (supra).