High Court of Punjab and Haryana, Chandigarh
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Darshan Singh v. State of Punjab. - CRA-1570-sb-2003  RD-P&H 1912 (22 March 2006)
Crl.A No.1570-SB of 2003.
Date of decision 4.1.2006.
State of Punjab.
Coram: Hon'ble Mr. Justice Virender Singh Present : Mr. A.P.S.Deol,Advocate for the appellant.
Mr. M.S.Sidhu, Senior Deputy Advocate General, Punjab.
Appellant-Darshan Singh stands convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter referred to as the Act) for allegedly keeping in his possession 76 kgs of poppy husk containing in two bags (38 Kgs each). He has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lac., in default of payment of fine to further undergo rigorous imprisonment for two years.
The prosecution case in brief is that on 25.8.1999 ASI Mithu Singh received a secret information to the effect that appellant was selling poppy husk in his field in a kotha and if raid is conducted, the poppy husk could be recovered from him. ASI Mithu Singh disclosed this secret information to Inspector Jarnail Singh (PW-3), who was present at Bus Stand Killi Nihal Singhwala along with other police officials. He sent a ruqa Ex. PF to the concerned Police Station, on the basis of which formal FIR Ex.PF/1 was recorded. A message was also sent ( through wireless ) to Deputy Superintendent of Police Brij Mohan Sarup (PW-2), who reached the spot after sometime. One Balwinder Singh son of Natha Singh ( not produced by the prosecution) was also joined as an independent witness and thereafter the kotha of the appellant was raided. The case of the prosecution further is that the appellant was found sitting on the gunny bags. He was apprised of his right of search vide memo Ex.PG in accordance with the provisions of Section 50 of the Act. Deputy Superintendent of Police after reaching the spot and disclosing his identity apprised him once again of his aforesaid statutory right. The appellant reposed confidence in him and thereafter on his direction the two gunny bags were searched. Each bag was containing 38 kgs of poppy husk. 200 grams each of poppy husk was taken from both the bags separately.
Both the sealed samples and two bags were sealed separately and all the articles were taken into possession vide memo Ex.PD attested by the witnesses present there. Personal search memo Ex.PE was also prepared. Rough site plan Ex.PJ was also prepared at the spot. The appellant and the case property were then produced before Inspector Bhupinder Singh, Station House Officer of Police Station Nihalsingh Wala (PW-1), who after verification of the investigation affixed his seal on all the parcels and sample seal. The case property was then kept in safe custody. The sample parcel was sent to the Chemical Examiner and on the receipt of the report Ex.PL, the appellant was challaned in this case. He was consequently, charged under Section 15 of the Act.
The case of the prosecution is hinging upon statement of Sub Inspector Bhupinder Singh (PW-1), Deputy Superintendent of Police Brij Mohan Sarup (PW-2) Inspector Jarnail Singh since retried (PW-3) and one Constable Jagmail Singh (PW-4) (a witness to link evidence). The report of Chemical Examiner was also tendered.
Balwinder Singh, the independent witness, who was joined by the prosecution party at the time of raid was given up as having been won over by the accused-appellant.
The statement of the appellant recorded under Section 313 Cr.P.C discloses false implication. The stand taken up by the appellant is that he was lifted from his house in the presence of certain witnesses (produced in defence) on account of the previous enmity of the police and falsely implicated in this case.
In defence, the appellant has examined Jeon Singh Ex- Sarpanch of the village (DW-1), Ajmer Singh (DW-2), Constable Kulwant Singh (DW-3) and Balwinder Singh (DW-4). It is worth mentioning here that Balwinder Singh (DW-4) is the same person who was given up by the prosecution.
I have heard Mr.Deol, learned counsel for the appellant, Mr.
Sidhu, learned Senior Deputy Advocate General, Punjab. With their assistance, I have gone through the entire evidence and the other relevant documents.
Mr.Deol, at the very out-set submits that the police started the investigation on an unrecorded information and this not only dents the case of the prosecution but prejudiced the rights of the accused as well. Dwelling upon the argument, Mr.Deol submits that it is a case of prior secret information which was received by ASI Mithu Singh and he has not been produced by the prosecution. This is a serious flaw.
According to Mr. Deol there is complete non-compliance of Section 42 of the Act and in the light of a Supreme Court judgment rendered in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat 2000 (2) Supreme Court Cases 513, the said non-compliance is not to be seen with a different approach while one being adopted in appreciating the case of the prosecution with regard to non-compliance of Section 50 of the Act. It is imperative that the Officer, who receives the prior information that any narcotic drugs and psychotropic substance is kept in a place should reduce the same in writing and forthwith send a copy to his immediate superior official. In the instant case, there is a complete go bye, to the said provision. Mr. Deol while drawing my attention to para Nos. 18,19 and 23 of the aforesaid judgment, states this basic lacuna is enough to uproot the case of prosecution.
Mr. Deol also makes an attempt to demolish the case of the prosecution stating that there is non compliance of section 57 of the Act as no special report was sent to the immediate superior official by ASI Jarnail Singh the Investigating Officer. While drawing my attention to the statement of the said witness in this regard, the learned counsel states that may be it is directory in nature but its non- compliance can certainly be taken into consideration along with other flaws.
The other argument advanced by Mr. Doel is that the exclusive ownership of the appellant with regard to kotha from where the recovery of contraband was effected, is not proved beyond doubt by the prosecution. This flaw, again is fatal to the prosecution.
According to Mr. Deol, the other infirmity in the prosecution case is that the seal which was used for the purpose of sealing of the sample was not given to the independent (Balwinder Singh) who otherwise has deposed against the prosecution while appearing as one of the defence witnesses. Instead the seal was handed over to Brij Mohan Sarup DSP and the same was even taken by Investigating Officer on the next day. The sample was sent to the Chemical Examiner after 13 days which otherwise should have been sent at the earliest.
There is no explanation to it. The seal also reached the hands of investigating officer within one day of the alleged recovery and therefore, the chances of tampering with the sample cannot be ruled out.
In this context, Mr. Deol also goes on to state that even the link evidence is missing. He submits that Constable Jagmal Singh PW.4 is the person, who took the sample to the Chemical Examiner for analysis. He tendered his affidavit Ex. PK in evidence. He was confronted with his earlier affidavit, Ex. DX, which forms part of the judicial file and in the said affidavit there was no reference to the effect that the sample seal impression was also handed over to the Chemical Examiner. Even in the statement recorded under Section 161 Cr.P.C.
(Ex. DY) with which he was confronted, the aforesaid fact was not recorded. Mr. Deol submits that crude attempt was made by the prosecution to fill up this lacuna as the vital link was conspicuously missing.
Mr. Deol lastly submits that the defence of the appellant is strengthened from the statement of Balwinder Singh DW.4 who was initially joined as an independent witness by the prosecution, but subsequently given up. The other evidence produced by the appellant, also reflects that the appellant had made a complaint against one ASI Manjit Singh who was in-charge of Police Post Killi Nihalsingh to SSP and other higher authorities and for this reason the police was inimical towards him. Mr. Deol, in this regard, relies upon the complaint Ex.
On the basis of the aforesaid submissions, it is submitted that the case of the prosecution fails on all the fronts and the appellant deserves acquittal.
Learned State counsel while repudiating the submissions of Mr. Deol submits that the case of the prosecution is proved to the hilt.
He submits that there is no reason to disbelieve Deputy Superintendent of Police and the Investigating Officer as they had no reason to falsely implicate the appellant. He then contends that even if there is non- compliance of certain provisions of the Act, those are not mandatory in nature and does not affect case of the prosecution at all. Even the non- examination of ASI Mithu Singh would not demolish the case of the prosecution as his evidence was not that material. He only supplied information to Jarnail Singh. The learned State counsel, therefore, prays for upholding the conviction of the appellant.
After hearing the rival contention of both the sides and going through the entire record very carefully, I am of the considered view that the prosecution has not been able to prove its case against the appellant to the hilt and as such he deserves acquittal.
So far as the first submission of Mr. Deol with regard to non compliance of section 42(1) of the Act is concerned, the same has to be repelled in the light of the fact that DSP Brij Mohan Sarup PW2 was called at the spot by sending a wireless message. He was apprised of all the facts by Inspector Jarnail Singh. In his substantive statement, DSP Brij Mohan Sarup states that he had disclosed his identity to the accused showing that he was a gazetted police officer (DSP). He also disclosed to the accused that the search of the gunny bags were to be conducted. He then states that he (DSP) had also apprised the accused of his right to get the search conducted before any gazetted officer or Magistrate and when he reposed faith in him, on his direction, the search of two gunny bags was conducted. If all these facts are seen in the light of the facts in sequence, it cannot be said that there is a non- compliance of section 42 of the Act. In this regard, I rely upon a latest judgment of Hon'ble Apex Court rendered in G.Srinivas Goud v. State of A.P. 2005(4) RCR (Criminal) 353, in which view rendered in Abdul Rashid's case (supra) cited by Mr. Deol, was also considered. The Hon'ble Apex Court while considering the said judgment observed in para no. 12 as under:-
"12. Lastly, the learned counsel for the appellants sought to rely on Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000(1) RCR (Crl.) 611 (SC): 2000 (2) SCC 513.
In this case the search was carried out by a Police Inspector who admitted that he had failed to take down in writing the information as required under Section 42(1) and also he had failed to send a copy of the information to his immediate official superior as required under section 42(2) of the Act.
The Inspector of Police was not an officer of gazetted rank.
Therefore, it was necessary for him to comply with the provisions of Section 42. He having failed to do so, the conviction of the accused was set aside by this Court. The facts of the present case are totally different because in the present case the action has been taken by an officer of the gazetted rank.
Similarly the argument advanced by Mr. Deol to the effect that non-production of ASI Mithu Singh who had allegedly received the secret information and then conveyed it to Inspector Jarnail Singh is fatal to the prosecution is again of no substance for the reason that no prejudice is shown to have been caused on account of the said non compliance. Provisions of section 57 of the Act are directory in nature as it is well settled by now by the authoritative pronouncements. The lastest view in this regard is rendered in Babubhai Odhaviji Patel etc.
etc. v. State of Gujarat JT 2005 (9) SC 410. Otherwise also, there is a reference to secret information in the ruqa Ex. PF itself. DSP Brij Mohan Sarup was also apprised of it.
However, the other contentions with regard to certain other flaws in the case of the prosecution have got weight.
The prosecution has not been able to prove to the hilt that kotha from where the recovery was allegedly effected was in conscious possession of the appellant only. Inspector Jarnail Singh states that he did not collect any documentary evidence regarding ownership of the land where kotha in question was located.
May be the said infirmity is not one which alone would up- root the case of the prosecution in toto but the case of the prosecution suffers from a very vital weakness with regard to missing of link evidence. In order to prove the same, the prosecution has examined Jagmail Singh PW4 who tendered his affidavit Ex. PK. There is another affidavit of this witness dated 20.11.99 (Ex. DX) placed on record. The affidavit Ex. PK is dated 7.2.2003. Constable Jagmail Singh was confronted with Ex. DX his earlier affidavit in which there is no reference that the sample seal was also handed over to him for depositing with the Chemical Examiner. It appears that the affidavit Ex. DX which was prepared on 20.11.99 was filed along with challan and thereafter another affidavit Ex. PK was prepared on 7.2.2003, the date on which he appeared before the trial court and in the said affidavit an improvement was made. This witness was also confronted with his earlier statement recorded under section 161 Cr.P.C. (Ex. DY) on 16.9.1999 and in the said statement, there is again no reference to the handing over of the sample seal. This creates all the doubts.
I have very minutely seen the affidavit Ex. DX of 1999. In the first page, at last, it is written with another ink that " sample seal and road certificate were also given". May be no specific question is put by defence in this regard to the witness, but it appears that some interpolation is made in the affidavit at some stage. Otherwise this material aspect could not be missed by the Investigating Officer while recording the statement of Constable Jagmail Singh under section 161 of Cr.P.C. In my considered view, this is a vital flaw.
Another fact which needs consideration in this regard is that Inspector Jarnail Singh does not say a word that CFSL form was prepared at the spot and deposited in the malkhana. Even SI Bhupinder Singh PW1 (SHO of the concerned Police Station) who had affixed his seal, does not say that FSL form was shown to him and the same was deposited in the malkhana. In a latest judgment of this Court rendered in Bhola Singh v. State of Punjab 2005(2) RCR (Criminal) 520, filling up of FSL form at the spot is considered as a very valuable safeguard to ensure that the seal sample was not tampered with till it was analysed by FSL. Non compliance of the same along with sending the sample with delay can be said to fatal to the prosecution. In the aforesaid case the seal was also not given to the independent witness and was kept with the Investigating Officer himself. That is also considered to be fatal observing that chances of tampering with the contraband or the sample seal could not be ruled out. So is the position in the instant case as seal was not handed over to Balwinder Singh the independent witness and instead was handed over to Brij Mohan Sarup DSP who had returned the same to Inspector Jarnail Singh, the Investigating Officer on the next day. Admittedly, the sample was sent to the Chemical Examiner after 13 days as is clear from the statement of SI Bhupinder Singh PW1. All these flaws when taken collectively, can lead the Court to conclude that the link evidence is missing. The judgment rendered in Bhola Singh's case (supra) squarely covers the case of the appellant.
I do not feel the necessity of discussing the defence led by the appellant for the reason that I am rejecting the case of the prosecution on account of other weaknesses referred to herein above.
The net result is that the prosecution has not been able to prove the conscious possession of the contraband qua the appellant beyond any shadow of reasonable doubt and therefore, the impugned judgment of the trial court, whereby the appellant has been convicted and sentenced for the charge of section 15 of the Act is hereby set aside.
The instant appeal is allowed.
( Virender Singh )
January 04 ,2006 Judge
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