IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Criminal Appeal No. S-______-SB of 2018
Simranjit … Appellant
Versus
State of Punjab … Respondent
INDEX
Sr. Description of documents Date Pages Court Fees
No.
A. Urgent Form 27.08.2018 A Nil
01. Application U/s 482 Cr.P.C. 27.08.2018 01 – 02 Nil
for stay of recovery of fine
02. Grounds of Appeal 27.08.2018 03 – Nil
03. Memo of parties 27.08.2018 Nil
04. Judgment of Judge, Special 04.07.2018 Nil
Court, Sangrur
(alongwith certified copy)
Order on Quantum of sen-
tence
05. Power of Attorney 13.07.2018 Nil
Total Court Fees (Rs.) Nil
Chandigarh (Shehbaz Thind), Advocate
Dated: 27.08.2018 P-2231/2017
Counsel for the appellant
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Criminal Misc. No. ________ of 2018
Criminal Appeal No. S-______-SB of 2018
Simranjit … Appellant
Versus
State of Punjab … Respondent
Application under Section 482 of the Code
of Criminal Procedure for stay of recovery
of fine during the pendency of appeal.
….
RESPECTFULLY SHOWETH:-
1. That the appellant has filed the above mentioned appeal
against the judgment passed by the Judge, Special Court, San-
grur, and on the basis of the grounds taken therein the appel-
lant is sanguine about its acceptance by this Hon'ble Court.
2. That the appellant has been convicted and sentenced to un-
dergo Rigorous Imprisonment for a period of Five Years and
to pay fine of Rs. 50,000/- under Section 15 of NDPS Act. In
default of payment of fine, the convict shall further undergo
rigorous imprisonment for Six months.
3. That the appellant is poor persons and at this stage they are not
in a position to pay the fine.
PRAYER:
It is, therefore, respectfully that this application may kindly be
allowed and the recovery of fine imposed on the appellant by the
Judge, Special Court, Bathinda be stayed in the interest of justice.
Chandigarh (Shehbaz Thind), Advocate
Dated: 27.08.2018 P-2231/2017
Counsel for the appellant
GROUNDS OF APPEAL
1. That the judgment passed by the Ld. Court of Shri. Gaurav
Kalia, Judge Special Court, Sangrur dated 04.07.2018, con-
victing the appellant is totally against law and facts involved
in the present case.
2. That First Information Report recorded in the case is not a
convincing piece of evidence. The same is the result of consul-
tations, deliberations and confabulations.
3. That it is submitted that the case of the prosecution as it
emerges from the final report submitted under Section 173 of
the Code of Criminal Procedure and documents annexed
therewith would reveal that on 14.10.2016, ASI Khalil Khan
along with ASI Darshan Singh, HC Ravinder Singh and PHG
Kaptaan Singh on private car with laptop and printer etc. were
going from village Khurd, Shergarh Cheema towards village
Bhudan via main road to Kacha path adjoining Raj Marriage
Palace in connection with patrolling and checking of sus-
pected persons when at about 06:30 p.m., one person was seen
carrying one plastic sack on the carrier of his bicycle. On sus-
picion, he was apprehended by ASI Khalil Khan with the help
of other police officials and on his inquiry, said person dis-
closed his name as Simranjit Singh son of Iqbal Singh besides
other particulars. Then ASI Khalil Khan disclosed his identity
with regard to his name, rank and posting to him and also told
that he suspected some intoxicant substance in the thela plastic
laden on his bicycle and he wanted to conduct his search as
well as of his thela plastic. He also apprised him about his le-
gal right to get the search conducted in the presence of Magis-
trate or Gazetted Officer who can be called at the spot. But, he
reposed his confidence in ASI Khalil Khan by executing his
consent statement Ex.P1 which was signed by him and wit-
nessed by ASI Darshan Singh and HC Ravinder Singh. There-
after, thela plastic was got down and ASI Khalil Khan con-
ducted search of the same. On checking, poppy husk was
found in the thela plastic which on weighment came to 40
Kilogram including thela plastic. The same was converted into
parcel and sealed by ASI Khalil Khan with his seal bearing
impression “KK”. The sample seals Ex.P2 to Ex.P4 were pre-
pared and seal after use was handed over to ASI Darshan
Singh. Case property along with bicycle black colour make
Hero was taken into possession vide recovery memo Ex.P5.
Then ASI Khalil Khan sent ruqa Ex.P6 through PHG Kap-
taan Singh for registration of case against the appellant on the
basis of which FIR Ex.P7 was lodged by ASI Gurmej Singh.
Site plan Ex.P8 was prepared at the spot. Personal search of
the appellant was conducted and currency notes of Rs.150/-
were recovered vide personal search memo Ex.P9. Appellant
was arrested vide arrest-cum-intimation memo Ex.P10 and in-
timation regarding his arrest was given to his brother Karamjit
Singh on his mobile phone. Investigating Officer also prepared
the special report Ex.P11 at the spot upon which the stamp and
signatures of DSP Malerkotla [Link] Singh is Ex.P12. On
return to the police station, Investigating Officer produced the
appellant, witnesses and case property i.e. bulk parcel, bicycle,
personal search Rs. 150/- along with sample seals before
SHO/Inspector Amanpal Singh who verified the facts of case
from the appellant as well as witnesses and attested the case
property by affixing his seal bearing impression “APS” there
on including sample seals after his satisfaction. Then, Investi-
gating Officer deposited the case property with HC Harmesh
Lal, Malkhana Munshi as per instructions of the SHO and ap-
pellant was put into police lockup. On 15.10.2016, ASI Khalil
Khan withdrew the case property from Malkhana Munshi and
produced it before learned JMIC Malerkotla Shri Bikramdeep
Singh, along with appellant vide application Ex.P13 . Learned
JMIC perused the case property and certified inventory
Ex.P14. He also took two representative samples of 250/250
grams poppy husk after breaking the seals of bulk parcel and
resealed the bulk parcel as well as samples with his seal “BS”.
Sample seals were prepared by learned JMIC, one of which is
Ex.P15 and form no.29 Ex.P16 was also partly filled. Learned
JMIC attested the sample seals Ex.P2 to Ex.P4 and passed
the order Ex.P17 directing to deposit the case property in Judi-
cial Malkhana, Sangrur. Photographs were clicked which are
Ex.P18 to Ex.P26. On returning to police station, the case
property was deposited by Investigating Officer with
Malkhana Munshi. On 18.10.2016, Investigating Officer
moved an application Ex.P27 before learned JMIC
Malerkotla for correction in the zimni order at which learned
JMIC passed order Ex.P28 and rectified its previous order.
Thereafter, ASI Khalil Khan obtained the case property i.e.
one bulk parcel 39 kilo 500 gram, one sample parcel of 250
gram bearing seal ‘BS’ and bicycle from Malkhana Munshi
and moved application Ex.29 before learned C.J.M. Sangrur
for depositing the same at which learned C.J.M., Sangrur
sought the report vide order Ex.P30. Nazir Malkhana made his
report Ex.P31 to the effect that there was no space in Judicial
Malkhana. Then learned C.J.M. passed order Ex.P32 and di-
rected to deposit one sample parcel in the Judicial Malkhana
and to return the remaining case property to Investigating Of-
ficer with directions to keep the same in safe custody at Police
Malkhana. As per the order of learned C.J.M. Sangrur, ASI
Khalil Khan deposited sample parcel in Judicial Malkhana and
on return to police station, he deposited the remaining case
property with Malkhana Munshi in intact condition. During
investigation, statements of witnesses were recorded and sam-
ple parcel was sent to FSL for analysis. On receipt of report of
FSL Ex.P33 and after completion of entire investigation, chal-
lan against the appellant was presented in the Court for trial.
4. That it is submitted that the prosecution has examined total 5
witnesses i.e. PW-1 IO/ASI Khalil Khan, PW-2 ASI Darshan
Singh, PW-3 HC Harmesh Lal, PW-4 Constable Balwant
Singh, PW-5 Inspector Amanpal Singh Virk and thereafter,
learned Additional P.P. for the State closed the prosecution ev-
idence.
5. That it is submitted that the appellant in his defence has exam-
ined DW-1 i.e. Saraj Mohd. who has deposed with regard to
relationship of present appellant with police officials and he
has further disclosed the real story involved in the present
planted recovery upon the appellant.
6. That the Ld. Court of Additional Sessions Judge, Sangrur has
passed the judgement dated 04.07.2018 which is not sustain-
able in the eyes of law and needs to be set aside on the follow-
ing grounds:-
(i) That while passing the Impugned judgment, the Ld.
Court of Additional Sessions Judge, Sangrur has failed
to consider the fact that there is a clear violation of Sec-
tion 50 of the NDPS Act by the police party. The Ld.
trial Court has failed to take judicial notice of the provi-
sions contained in Section 50 of NDPS Act, which reads
as under:-
50. Conditions under which search of persons shall be
conducted.-
(1) When any officer duly authorised under section 42
is about to search any person under the provisions of
section 41, section 42 or section 43, he shall, if such
person so requires, take such person without unneces-
sary delay to the nearest Gazetted Officer of any of the
departments mentioned in section 42 or to the nearest
Magistrate.
(2) If such requisition is made, the officer may detain
the person until he can bring him before the Gazetted
Officer or the Magistrate referred to in subsection (1).
(3) The Gazetted Officer or the Magistrate before whom
any such person is brought shall, if he sees no reason-
able ground for search, forthwith discharge the person
but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a
female.
2
[(5) When an officer duly authorised under section 42
has reason to believe that it is not possible to take the
person to be searched to the nearest Gazetted Officer or
Magistrate without the possibility of the person to be
searched parting with possession of any narcotic drug
or psychotropic substance, or controlled substance or
article or document, he may, instead of taking such per-
son to the nearest Gazetted Officer or Magistrate, pro-
ceed to search the person as provided under section
100 of the Code of Criminal Procedure, 1973 (2 of
1974).
(6) After a search is conducted under sub-section (5),
the officer shall record the reasons for such belief
which necessitated such search and within seventy two
hours send a copy thereof to his immediate official su-
perior.]
In the present case, there is no substantial compliance of
section 50 as neither any Gazetted Officer was called
nor any executive Magistrate was present at the place of
recovery and consent statement given by the accused
does not dispense with the fulfilment of mandatory pro-
visions as provided under section 50 NDPS Act.
Moreover, Hon’ble Apex Court has even laid law with
regard to mandatory requirements of Section 50 NDPS
Act, 1985 as reported in 2018 AIR (SC) 2123 and held
as under:-
“A. Narcotic Drugs and Psychotropic Substances Act,
1985 Section 50 Personal search of - Mandatory re-
quirements - Mandatory on part of authorised officer to
make suspect aware of existence of his right to be
searched before Gazetted Officer or Magistrate, if so
required by him and this requires strict compliance -
Evidence adduced by prosecution neither suggested nor
proved that search and recovery made in presence of
magistrate or gazetted officer - Accused entitled for
benefit of doubt - Appeal allowed.
B. Narcotic Drugs and Psychotropic Substances Act,
1985 Section 50 Recovery of "Charas" - Appellant gave
his consent in writing to be searched by the police offi-
cials - Two Courts below came to a conclusion that the
requirements of Section 50 stood fully complied - Held
that a search and recovery does not satisfy the manda-
tory requirements of Section 50 - Appellant was not
produced before any Magistrate or Gazetted Officer -
Thus search and recovery of the contraband "Charas"
was not made from the appellant in the presence of any
Magistrate or Gazetted Officer - None of the police offi-
cials of the raiding party, who recovered the contra-
band "Charas" was the Gazetted Officer and nor they
could be and, therefore, they were not empowered to
make search and recovery from the appellant of the
contraband "Charas" except in the presence of either a
Magistrate or a Gazetted Officer.”
So, taking into consideration the above stated law, the
judgment passed by the Ld. Court of Additional Ses-
sions Judge, Sangrur does not stand the test of justice
and needs to be set aside on this ground alone present
appeal should be allowed.
(ii) That it is submitted that, complete case property was not
taken into possession of the police which itself indicates
the probability of false implication and planted recovery
of the present appellant. That the as per the version of
prosecution, the thela plastic was carried by the appel-
lant on bicycle. He has further argued that PW-1 IO/ASI
Khalil Khan in his cross examination has stated that
plastic bag of poppy husk was placed on the carrier of
bicycle and appellant was paddling the cycle. The said
bag was tied with rope. The rope was of plastic type and
blue colour having length of three meters. That rope
was not taken into possession along with cycle. He has
argued that said rope was neither taken into police pos-
session nor produced before the Court and the Investi-
gating Officer could not give any reason as to why that
rope was not taken into police possession in spite of the
fact that it was the case property.
(iii) That the judgment passed by the Ld. Trial Court is not
sustainable in law as no independent witness has joined
the police investigation at the time of recovery which
has even weaken the prosecution case. Cross-examina-
tion of PW-1 IO/ASI Khalil Khan where he stated that
they remained at the place of recovery for three hours
and Raj Marriage palace is situated at 20 karams away
from the place of recovery. They went inside the back-
side of palace as also the cycle and plastic bag were
taken inside the marriage palace. He further deposed
that there was no person available inside the marriage
palace. However, he admitted that Manager, Watchman
and other servants of Raj Palace were present inside the
marriage palace, but they were on the main side. PHG
Kaptaan Singh was sent to bring watchman to join in in-
vestigation, but he was not available. No other person
was called from the Marriage palace except the
Chowkidar. This itself proves the fact that the said re-
covery was later on planted on the present appellant and
no such recovery was ever made from the present appel-
lant.
(iv) That it is submitted that, there is a substantial delay in
receiving the samples by the FSL which remains un ex-
plained in record as the alleged contraband was recov-
ered in the present case on 14.10.2016 whereas the pe-
rusal of Ex-P33 report showa that sample was deposited
with the FSL on 18.10.2016 and there is substantial de-
lay in receiving the sample by the FSL which remains
unexplained on the file which proves fatal to the case of
prosecution.
(v) That it is submitted that there are major contradictions
in the testimonies of witnesses examined by the prose-
cution which proves fatal to the case of prosecution.
PW-1 IO/ASI Khalil Khan in his cross examination has
deposed that appellant was still paddling the cycle when
he was apprehended. He further stated that he stopped
the vehicle from a distance of 12 karams while the ap-
pellant was coming from front side while PW-2 ASI
Darshan Singh stated during his cross examination that
when Investigating Officer asked to stop the appellant at
that time he boarded off the cycle and that Investigating
Officer asked the appellant to stop by raising voice and
at that time, appellant was at a distance of 50 yards from
their car. These contradiction are fatal to the case of the
prosecution and the same proves the factum of planted
recovery on the appellant. On this ground alone the ap-
peal needs to be allowed and judgment passed by the
Ld. Trial Court needs to be set aside.
7. That the recovery effected from the appellant is planted one
and it falls under non-commercial category and the sentence
awarded is highly excessive.
PRAYER:
It is, therefore, respectfully prayed that the appeal may kindly
be allowed, the judgment and order of the trial Court set aside and
the appellants may kindly be acquitted of the charge.
It is further prayed that the appellant may kindly be exempted
from filing the true typed copy of the impugned Judgment dated
04.07.2018 and permission may kindly be given to annex the legible
photocopy of the same which is fair and easily readable. Certified
copy of the judgment is also annexed.
Note: That no such Crl. Appeal on behalf of the appellant/applicant
has earlier been filed either in this Hon'ble Court or in the
Hon'ble Supreme Court of India.
Chandigarh (Shehbaz Thind), Advocate
Dated: 04.09.2018 P-2231/2017
Counsel for the appellant
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
IN CRIMINAL APPEAL NO. S-______-SB OF 2018
(Memo of Parties)
Simranjit Singh @ Roda son of Iqbal Singh, aged __ years, resident
of Shervani Kot, P.S. Sandaur, District Sangrur.
(Confined in ___________)
…Appellant
Versus
State of Punjab … Respondent
Chandigarh (Shehbaz Thind), Advocate
Dated: 27.08.2018 P-2231/2017
Counsel for the appellant
