High Court of Punjab and Haryana, Chandigarh
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Surjit Singh son of Narain Singh, v. State of Punjab. - CRA-D-211-DB-2001  RD-P&H 3386 (24 May 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Criminal Appeal No. 211-DB of 2001.
Date of Decision: 26.04.2006
Surjit Singh son of Narain Singh, Resident of Village Dhbulewala, P.S.Zira Distt.
State of Punjab.
Criminal Appeal No. 210-DB of 2001
Chuhar Singh son of Mehanga Singh resident of Bandala District Jalandhar.
State of Punjab.
Criminal Appeal No. 241-DB of 2001.
Balwinder Singh son of Sohan Singh, resident of Mohalon District Jalandhar.
State of Punjab.
CORAM: Hon'ble Mr.Justice K.S.Garewal, and
Hon'ble Mr.Justice R.S.Madan.
Argued by: Mr. Vinod Ghai, Advocate, for appellant Surjit Singh.
Mrs.Jatinderjit Kaur, Advocate, for the appellant Chuhar Singh.
Mr.R.S.Jhand, Advocate, for appellant Balwinder Singh.
Mr.A.S.Virk, Additional Advocate General, Punjab.
By this judgment, we propose to dispose of the three criminal appeals bearing Nos. 210, 211 and 241-DB of 2001, filed by Chuhar Singh, Surjit Singh and Balwinder Singh, respectively, which has arisen from a judgment and order dated 23/24.01.2001 passed by Special Judge, Ferozepur, whereby the accused-appellants 2 Cr.A. No. 210-DB of 2001.
have been convicted and sentenced to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs. One Lakh each and in default of payment thereof to undergo further rigorous imprisonment for a period of one year.
The following facts gave rise to the filing of the present appeals by the accused-appellants.
It was on 25.11.1990 Deputy Superintendent of Police Khushi Mohammad, the then Sub Inspector, along with other police officials was present for patrolling on the road crossing at Kot Ish Khan. At about 7 PM he received a secret information that Surjit Singh son of Narain Singh, resident of Village Daulewala has gone away from his village to fetch poppy husk in a truck as he is indulging in the sale of poppy husk. If nakabandi was conducted at a proper place, he could be apprehended red handed. On this information, ruqa was prepared and sent to the police station through constable Harjinder Singh. On the basis of which first information report was registered at the police station. Then the SI Khushi Mohammad along with the other police officials, held nakabandi on the bridge of Canal situated at Kot Ise Khan- Makhu Road. At about 6 A.M. On 26.11.1990 one truck bearing registration No.
PJQ-6911 came from the side of Kot Ise Khan. On suspicion the truck was signalled to stop. Resultantly, truck was stopped. The truck was being driven by Chuhar Singh whereas accused Davinder Singh, Balwinder Singh and Major Singh were sitting in the cabin of the truck along with the driver and accused Surjit Singh was sitting in the body of the truck. Immediately, when the truck stopped, accused Surjit Singh after jumping from the ran away. He was chased by the police official but managed to escape from the spot. The other four accused were apprehended. The SI suspected that some contraband was being carried in the truck. He extended offer to all the accused for search of the truck and whether they wanted to get the search conducted from him or in the presence of some Gazetted Officer or Magistrate but all the accused reposed confidence on the SI Khushal Mohammad. Memo to this effect was prepared which was signed by all the four accused and attested by HC Swaran Singh. After removing 3 Cr.A. No. 210-DB of 2001.
Tarpaulin from the body of the truck, search of the truck No. PJQ 6911 was conducted.
On search 80 bags containing poppy husk were recorded. 100 grams of poppy husk was separated from each of the gunny bags as sample and the remainder weighing 39.900 gms was sealed with the seal bearing letters "KM" and the seal after use was handed over to Head Constable Swaran Singh. The entire case property and the truck in question was taken into police possession vide separate recovery memo which was attested by HC Swaran Singh. From the personal search of accused Davinder Singh, current notes ofRs.70/- were recovered whereas a sum ofRs.150/- were recovered from Balwinder Singh and no money was recovered from accused Chuhar Singh and Major Singh, Memos to these effect were prepared and the currency notes recovered were also taken into police possession vide separate recovery memos. The Registration Certificate of the truck was also taken into possession. All the recovery memos were attested by Head Constable Swaran Singh. The investigating officer prepared the rough site plan of the place of recovery of the contraband with correct marginal notes; recorded the statements of the witnesses and on return to the police station produced the accused and the entire case property including samples with seals intact and the sample seal impression before the station house officer namely Nachattar Singh, who also verified the facts of the case, sealed the entire case property including the samples with his own seal bearing letters "NS". After completing all the formalities, the case property and the samples bearing the seals with seals impression to Thakur Dass AMHC in the presence of the investigating officer. Samples were got sent to the Chemical Examiner. After the completion of all other formalities, arrest of accused Surjit Singh on 31.12.1990 and on the receipt of report of the Chemical Examiner, challan against the accused was presented in the court.
On appearance of the accused before the Court and after going through the documents and report under Section 173 of the Code of Criminal Procedure, a prima facie case under Section 15 of the N.D.P.S.Act was found to be made out against all the accused and they were charged. The charge-sheet was read over and 4 Cr.A. No. 210-DB of 2001.
explained to all the accused in vernacular, to which they pleaded not guilty and claimed trial.
In order to bring home the guilt of the accused, the prosecution examined PW-1 DSP Nachhatar Singh, who was then SHO of the Police Station, PW-2 constable Kewal Singh who took the samples to the office of Chemical Examiner, PW-3 ASI Swaran Singh (the then Head Constable), a witness of recovery, PW-4 DSP Khushi Mohammad, who was then SI and investigated the case. Thereafter, the evidence of the prosecution was closed.
After the evidence of the prosecution was closed, the accused were examined as envisaged under Section 313 of the Code of Criminal Procedure, in which the entire incriminating evidence appearing against them was put to the accused, to which they denied and pleaded innocence. They, however, led no evidence in defence.
After going through the entire evidence produced by the prosecution, the learned Special Judge hold all the accused guilty of the offence under Section 15 of the N.D.P.S. Act and convicted and sentenced them accordingly, as already indicated above.
Accused Davinder Singh expired during the pendency of the appeal and accused Major Singh absented himself on the date of pronouncement of order of conviction.
We have heard learned counsel for the parties and have carefully gone through the evidence and the other documents placed on the record carefully.
Learned counsel for the appellants at the very out set frankly conceded that in view of the judgment rendered by this Court in Paramji tSingh Versus State of Punjab, 1999(4) All India Criminal Law Reporter 735 and Balbir Singh Versus The State of Haryana, 2000(3) RCR (Criminal) 121, the provisions of Section 15 of the NDPS Act are not attracted to the facts and circumstances of the present case. He assailed the case of the prosecution contending that it has come in the evidence of PW-3 Swaran Singh Head Constable and PW-4 the investigating officer of the case that Surjit Singh 5 Cr.A. No. 210-DB of 2001.
accused at the time of recovery of the contraband contained in 80 gunny bags from the truck bearing No. PJQ-6911, managed to escape from the spot. He further contended that since Surjit Singh accused fled from the spot, the alleged recovery of contraband from his is highly doubtful. It is admitted that accused Surjit Singh was arrested in this case on 31.12. 1990 and after his arrest no identification parade was got conducted by the investigating officer that it was he who escaped from the spot on the date of alleged recovery of poppy husk, from which an inference can be raised that the accused have been arrayed in this case because the secret information was allegedly received by the investigating officer against Surjit Singh. It is also unbelievable that at the relevant time the police officials were not armed with latest weapons and none of them had extended a threat to Surjit Singh accused to stop when he managed to escape from the spot at the time of apprehension of the other accused along with the contraband in a truck.
Thus, according to the counsel for the appellants, the prosecution has miserably failed to prove the alleged recovery of poppy husk from the conscious possession of Surjit Singh accused.
The learned Deputy Advocate General, Punjab could not refute the contention of the learned counsel for the appellants.
The learned counsel for the appellants has taken us through the prosecution evidence recorded by the learned Special Judge. ASI Swaran Singh PW-3 whose examination - in - chief was commenced on 27.11.1997 could not be concluded till 17.12.2000 because of non-production of case property by the concerned police station. In the cross- examination he has stated that he has been attending the Court in this case for about 20 adjournments to give evidence. His examination in chief was being deferred due to the reason that the case property was not been produced. He further admitted that 62 gunny bags contained poppy husk but the remaining 18 bags were in torn condition and were totally empty. There was only a chit on the torn gunny bags whereas the 62 bags on which a chit was there but it did not bear the signatures of Khushid Mohammad, the investigating officer and that Nachhatar Singh, the then 6 Cr.A. No. 210-DB of 2001.
station house officer of the police station. He further admitted that the writing on these chits cannot be read as the chits are in torn condition. Thus, according to the learned counsel, the prosecution has miserably failed to prove on the record that the case property produced in the court was the same which was recovered from the possession of the accused at the time they were intercepted. It was an obligation on the part of the prosecution to prove that the poppy husk contained in 80 bags which was alleged to have been recovered from the possession of the accused was the same which they had produced in the court but the producing of the case property in the court disproves this fact.
Controverting the arguments of the learned counsel for the appellants, the learned Deputy Advocate General, Punjab submitted that the recovery in this case was effected on 26.11.1990 in the presence of several police officials including Head Constable Swaran Singh, now ASI, PW-3 and the case property was produced in the court on 17.11.2000. It was not possible for the Head Constable Malkhana to have stored the case property in safe custody for such a long period and the case property which was available with him concerning this case, was produced in the court. The arguments of the learned State counsel appears to be attractive but lack force.
Another limb of the arguments of the learned counsel for the appellants is that the investigating officer, despite the fact that a specific secret information was received that the accused was coming from Village Kot Ish Khan with poppy hush in a truck, did not join any independent witness. The police party remained present at the bridge throughout the night. The learned counsel submits that the joining of an independent witness is a rule of caution and not mandatory. This contention of the learned counsel for the appellants has no force particularly for the fact that in those days in Punjab, the terrorism was in peak and no one was ready to join the police party during night on account of fear that they may not be eliminated either by the accused or by the terrorist. Further joining of an independent witness is a rule of caution and not mandatory. It has been held in Baldev Singh Versus State of Punjab, 1988(2) RCR 7 Cr.A. No. 210-DB of 2001.
(Criminal) 730 wherein it was observed that association of independent witness is a rule of prudence and not a rule of law.
It was next contended on behalf of the learned counsel for the appellants that the ingredients of conscious possession of poppy husk are missing in this case. It has no where come in the testimony of Pws that at the time of apprehension of the accused, they were in conscious possession of the contraband. It has come in the evidence of the prosecution witness that all the accused except Surjit Singh, were sitting in the cabin of the truck along with the driver whereas Surjit Singh accused, who as per the prosecution story was allegedly sitting in the body of the truck, fled from the spot and was arrested on 31.12.1990. In the latest pronouncement by the Full Bench of this Court in case Kashmir Singh Versus State of Punjab and Karam Singh Versus State of Punjab, Criminal Appeals No. 407 and 408-DB of 1999, the Full Bench has dealt in detail with Sections 35 and 54 of the N.D.P.S.Act and observed that unless the accused is put in the statement under Section 313 Cr.P.C. That they were in conscious possession of the contraband, the order of conviction and sentence can not be recorded against the accused. It is the fundamental right of the accused to know the case of the prosecution and able to develop his defence.
The learned Deputy Advocate General, appearing on behalf of the State of Punjab, very frankly conceded that in the statement recorded by the Special Judge, under Section 313 Cr.P.C it was not put to the accused that they were in conscious possession of the contraband articles contained in 82 gunny bags.
At the end, the learned counsel contended that it has come in the cross- examination of PW-1, Nachhattar Singh, Deputy Superintendent of Police that register No.19 is maintained by the MHC and entries made in the register are in the hands of Thakar Dass, who is now dead. Column No.3 of register No.19 relates to the deposit of case property with the MHC. Regarding this case, in the column the name of Khushi Mohammad is written as having deposited the case property, who was the investigating officer of the case. He has also admitted that the sample seal was also deposited with 8 Cr.A. No. 210-DB of 2001.
the MHC but it is no where recorded that at the time the samples were dispatched to the office of Chemical Examiner on 12.12.1990, the sample seal was sent along with the same or not. According to the prosecution version, Khushi Mohammad entrusted the case property to SHO Nachhattar Singh, now Deputy Superintendent of Police, who deposited the case property with the MHC of the Malkhana. The learned counsel further referred to the cross-examination of DSP Nachhattar Singh, wherein he has admitted that there is no entry in register No.19 with respect to MHC having sent the seal impression along with the 80 samples to the office of the Chemical Examiner. Thus, according to the learned counsel, the link evidence is missing. It was only Thakur Dass, since expired, who could have thrown some light on the entry made in register No.19. A perusal of the report of the Chemical Examiner Ex.P-6 reflects that the sample seal of Khushi Mohammad and that of Nachhattar Singh were also sent along with the samples. Thus, the contention of the learned counsel for the appellants stands fully answered by the prosecution.
In the Court, at the time of recording of statement of ASI Swaran Singh, the then Head Constable, the prosecution has taken three years long time to produce the case property in the Court and several adjournments were granted to this effect.
However, the case property contained in 62 gunny bags which were produced, did not bear the seal and the chit of Khushi Mohammad and Nachhattar Singh, on the chits pasted on the gunny bags. So far as the remaining 18 gunny bags are concerned, those were totally empty and in torn condition.
Thus, the case of the prosecution is not covered with the dictum of the Full Bench, wherein it has been observed that no presumption under Section 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement under Section 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions.
For the reason discussed above and keeping in view the facts and circumstances of the three appeals mentioned above, the appeals are accepted and 9 Cr.A. No. 210-DB of 2001.
the conviction and sentence imposed by the learned Special Judge are set aside. The bail bonds, if furnished by the accused-appellants, stands discharged.
April 26, 2006.
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