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HARI SINGH & ORS versus STATE OF PUNJAB

High Court of Punjab and Haryana, Chandigarh

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HARI SINGH & Ors v. STATE OF PUNJAB - CRA-S-2163-2003 [2006] RD-P&H 94 (11 January 2006)

Criminal Appeal No.2163 SB of 2003 (1)

Hari Singh and others Vs.State of Punjab Present:Mr.Vishal Sharma & Mr.Rajiv Verma,Advocates for the appellants.

Mr.Jayender S. Chandail, Assistant Advocate General, Punjab

----

Amar Dutt, J.

The appellants are aggrieved by the conviction and sentence recorded against them by the Special Judge, Patiala on 24.9.2003 for having been found to be in possession of l6 bags of poppy husk each containing 30 Kgs.

According to the prosecution case, on 9.7.1999, SI Krishan Kumar along with other police officials and one PW Gurjail Singh was going from village Kadrabad to Gajewas and when they were three kilometers short of the village, they had noticed three men and two women sitting on the bags lying between the sugarcane fields and a heap of earth. On seeing the police party, these persons tried to slip away. Sub Criminal Appeal No.2163 SB of 2003 (2)

Inspector Krishan Kumar stopped the vehicle and apprehended Puran Singh, Hari Singh, Jaswinder Kaur and Charanjit Kaur while 5th

accused who was identified as Amrik Singh by Gurjail Singh slipped away. The Sub Inspector sent a wireless message to the Police Station and called S.P.Os. Rajwinder Kaur and Surinder Kaur to the spot and in their presence apprised the apprehended persons that police want to search the bags on which they had been sitting and they could ask for search being conducted in the presence of a Gazetted Officer or Magistrate. In response to this, the persons opted for being searched by a Gazetted Officer. Their statements were recorded and through wireless, S.I. Krishan Kumar requested DSP, Samana Shri Paramvir Gill to reach at the spot and in his presence the bags were searched and found to contain poppy husk. The samples were taken and grounds of arrest served upon the appellants and eventually after receipt of adverse report from the Chemical Examiner a challan was presented against them.

Criminal Appeal No.2163 SB of 2003 (3)

After going through the papers, the trial court came to the conclusion that prima facie a case under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the Act" )was made out against the appellants and as they pleaded not guilty, the prosecution was called upon to lead its evidence. It examined PW 1 SI Manjit Singh, PW 2 HC Rakesh Kumar, PW3 DSP P.S.Gill, PW4 Inspector Krishan Kumar, PW 5 C.Gurtej Singh and PW 6 SI Gurcharan Singh.

After conclusion of the evidence, the incriminating circumstances appearing in the prosecution case were put to the accused, who denied the allegations and asserted that they were innocent and have been falsely implicated in the case by the police due to enmity. Puran Singh asserted that Inspector Paramjit Singh was posted as SHO, Police Station,Dirba, District Sangrur and ASI Jarnail Singh are inimical towards him. The police officials had picked up his sons Amrik Singh, Baghel Singh and his nephew Paramjit Singh on 16.4.1987.

Aggrieved by this, Puran Singh had filed a writ of Habeas Criminal Appeal No.2163 SB of 2003 (4)

Corpus and when this petition came up for hearing, Mr.M.L.Bharara, Superintendent of High Court, who was appointed as Warrant Officer had found three detenus present in the Police Station. Puran Singh had also been brought into Police Station by ASI Jarnail Singh and when the Warrant Officer inquired about him, the police officials replied that he also is not wanted in this case. On this report of the Warrant Officer, in which he mentioned that police officials had given him a thousand rupees as bribe for making a false report, action under the Contempt of Courts Act had been initiated against two officials and Inspector Paramjit Singh had been fined with Rs.1000/- and in default of payment of fine he was sentenced to undergo SI for a period of two months. Again, Gursewak Singh, who was DSP Railways had picked up his son and brother- in- law. His brother -in -law was killed and in that case his son had appeared as a witness against the police officials and a writ had also been filed against them in the Punjab and Haryana High Court. Due to this, Police Department is inimical towards him and his family and had Criminal Appeal No.2163 SB of 2003 (5)

implicated in the case. The accused had brought on record certified copy of the judgment passed by Shri G.S. Dhiman, Additional Sessions Judge, Sangrur on 24.5.2003 and photocopy of the Criminal Contempt Petition No.13 of 1987 marked D2 and closed the evidence.

The Trial Court after hearing the arguments, came to the conclusion that the case against the appellants was proved beyond reasonable doubts and after holding them guilty under Section 15 of the Act had sentenced each of them to undergo RI for 10 years and to pay a fine of Rs. 1 lac and in default of payment of fine to further undergo RI for six months.

Hence, this appeal.

I have heard Shri Vishal Sharma and Shri Rajiv Verma, learned counsel for the appellants and Sh.Jayender S.Chandail, learned Assistant Advocate General, Punjab and with their assistance gone through the record carefully.

The short question on which the judgment of the court below is sought to be challenged is that even if the prosecution story, for the sake of argument, was to be accepted Criminal Appeal No.2163 SB of 2003 (6)

that appellants, who were sitting on the l6 bags of poppy husk, had, on seeing the police party started moving away, there is no evidence on record to show that

a) these bags have been stacked in the fields by them;

b) the appellants are the owners of fields where the bags were tagged; and

c) even if the ownership of the fields is not proved that the bags had been stacked out there by the appellants and not by some unidentified persons.

In this view of the matter, from the mere fact that a person is sitting on bags lying at a place not belonging to him it cannot in law be held that he is in possession of the bags and of the contents thereof. Consequently, guilt under section 15 of the Act is not made out. It was also asserted that from portion of cross examination of the Investigating Officer wherein he says that:-

Criminal Appeal No.2163 SB of 2003 (7)

"I did not record any statement under section 161 Cr.P.C. to know the origin of the churra poppy husk. I also did not record any

statement under Section 161 Cr.P.C. to the effect that on which vehicle the

incriminating bags reached the place of

recovery and what mode of conveyance was used."

it appears that investigating agency was not conscious regarding necessity of proving this aspect of the case and, therefore, there is no material on the record to show that bags containing poppy husk belonged to the appellants and consequently, it cannot be held that the appellants have been rightly found to be guilty under Section 15 of the Act. It was further stated that a perusal of the statements of the accused recorded under Sections 313 Cr.P.C. shows that no question had been put to them regarding their being in possession of the contraband goods and therefore, on this ground also, the conviction could not be sustained.

Criminal Appeal No.2163 SB of 2003 (8)

I have carefully considered the arguments advanced by learned counsel for the appellants and reply given by the learned State counsel.

The factual position as has been asserted in the submissions made by the appellants' counsel is borne out from the record. The Investigating Officer was apparently oblivious of the necessity to collect evidence to prove that the appellants were in conscious possession of the l6 bags of poppy husk. He was content to infer the conscious possession by bringing on record his own statement that the appellants were sitting on the bags and their conduct of trying to slip away when they had been sighted by the police party. In these circumstances, I find no material on record to show that the appellants were even in custody of the narcotic substance on which they are stated to be sitting what to talk of being in possession thereof. It would have been a different matter in case 16 bags each containing 30 Kgs. of poppy husk were found to be stacked on the land belonging to the appellants or some one closely connected with them but I find that Investigating Officer had conveniently Criminal Appeal No.2163 SB of 2003 (9)

overlooked the necessity of investigating into this aspect of the case. He, thus, collected no material to prove that the appellants were in possession of narcotic substance that are alleged to have been recovered from them and consequently the trial court was not able to put any question to the accused while recording their statements under Section 313 Cr.P.C. regarding their having been found in possession of the contraband goods.

This lapse of the investigating agency renders it difficult for me to uphold the findings of the trial court because in the absence of any question being put to the accused regarding possession of the narcotic substance, no findings can be returned qua this aspect of the case as has been held in Raj Kumar Vs. State of Punjab, 2005 (1) RCR (Criminal) 70.

Further in the absence of any investigation regarding this aspect of the case, appellants would be entitled to acquittal as has been held in State of Punjab Vs. Balkar Singh and another, (2004) 3 SCC 582.

Criminal Appeal No.2163 SB of 2003 (10)

In view of the aforesaid position, I have no option but to hold that the view taken by the trial court cannot be sustained and consequently the appeal is accepted. The appellants are acquitted of the charge framed against them.

Before parting with the judgment, with heavy heart, I would like to bring on record my note of concern about the manner in which the investigation has been conducted.

The appellants have asserted that their implication was a part of vendetta set up by the disgruntled elements of the police force to get even with the appellants on account of the views expressed by this Court in Contempt Petition No.13 of 1987.

The circumstances have been brought on record by the appellants to prove their apprehension. Whether this is correct or not, I would not like to go into in this appeal and it would be suffice to request the Director General of Police, Punjab to have these allegations enquired into by the Internal Vigilance Authorities and if they are found to be correct hope that he would take appropriate action by evolving a mechanism which Criminal Appeal No.2163 SB of 2003 (11)

prevents hounding of persons by officers in uniform merely on account of the fact that in a case initiated by the appellants, these officers are found to have transgressed the law.

(Amar Dutt)

Judge

July 1,2005

Pa


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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