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SATNAM SINGH ALIAS SUKHDEV SINGH AND ANO versus STATE OF PUNJAB

High Court of Punjab and Haryana, Chandigarh

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Satnam Singh alias Sukhdev Singh and ano v. State of Punjab - CRA-S-23-SB-2001 [2007] RD-P&H 1341 (9 February 2007)

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Date of decision : February 9, 2007

Satnam Singh alias Sukhdev Singh and another ....Appellants

versus

State of Punjab

....Respondent

Coram: Hon'ble Mr. Justice Virender Singh Present : Mr.H.S.Sandhu, Senior Advocate with Mr. S.S.Deol, Advocate for the appellants Mr. Janender Chandail, Assistant Advocate General, Punjab Judgment

Vide impugned judgment dated 11.12.2000 of learned Special Judge, Jalandhar, appellants Satnam Singh alias Sukhdev Singh alias Baba alias Dani and Dalbir Singh alias Tota (for short 'the accused') have suffered conviction under section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'the Act') and have been sentenced to undergo RI for ten years each and to pay a fine of Rs 1 lac each, in default thereof to further undergo RI for six months each.

It is worth mentioning here that one Ranjit Singh who was the owner of the truck bearing registration No. PB-08-G-0875 in which the contraband (poppy husk) was being transported and booked under section 29 of the Act had died during the pendency of the trial, and, therefore, the proceedings qua him were dropped.

The prosecution case as set up is that on 18.3.1997 ASI Nirmal Singh signalled the aforesaid truck to stop while holding a picket at about 8 PM at Chowk Kot Kalan falling within the jurisdiction of Police Station Sadar Jalandhar. He was present at the spot along with other police officials. Satnam Singh accused was on the steering of the aforesaid truck as driver whereas Dalbir Singh accused was found sitting besides him.

After the truck had stopped, the driver managed to run away from the spot but he was identified later on as Satnam Singh whereas Dalbir Singh was apprehended at the spot. The aforesaid truck was searched after adopting all the statutory formalities from which 150 bags of poppy husk, each weighing 40 kgs each, were recovered. Out of them, 250 grams were taken out as sample from each bag and thereafter all the samples and the bags were sealed with the seal bearing impression 'NS'(for Nirmal Singh) and another seal impression bearing inscription 'GD' (for Ms. Gurpreet Kaur Deo, S.P.Vig.). She was also the attesting witness to certain memos prepared at the spot.

As per the case of the prosecution one Mohinder Pal son of Puran Chand was also joined at the time of effecting the recovery but he ultimately did not support the case of the prosecution. All other formalities including preparation of the rough site plan were completed at the spot.

Satnam Singh was thereafter arrested on 21.3.1997 and aforesaid Ranjit Singh (since dead) was declared as a proclaimed offender as he could not be arrested.

After completion of the investigation, both the appellants were challaned. They were charged under section 15 of the Act.

In order to substantiate the charge, the prosecution has examined the following witnesses:-

PW1 HC Harjinder Pal Singh :

He is a witness to the link evidence who has tendered his affidavit Ex. PA.

PW2 Constable Joginder Singh :

This witness had also tendered his affidavit Ex. PB with regard to the link evidence.

PW3 Mohinder Pal :

He is the so-called independent witness who was initially joined at the time of conducting search of the truck. As stated above, he did not support the case of the prosecution and as such declared hostile on the request of Public Prosecutor. In his cross-examination he stated that the police party knew him earlier and he had also appeared in certain cases on behalf of the prosecution.

PW4 Darshan Lal, Clerk, DTO Office, Jalandhar : He had proved ownership of truck No. PB-08-G-0875 in the name of Ranjit Singh son of Banta Singh who was booked under section 29 of the Act.

PW5 Ms. Gurpreet Kaur Deo, SP (Vigilance), Jalandhar: She was posted as Assistant Superintendent Police, Jalandhar.

She is witness to the recovery and has also proved the recovery memos attested by her.

PW6 SI Nirmal Singh :

He is the Investigating Officer of this case and was posted as SHO, Police Station, Sadar Jalandhar on the date of alleged recovery. The investigation conducted by him is already depicted in brief in the preceding paras.

Report of the Chemical Examiner Ex. PL was tendered into evidence.

The stand taken by appellant Satnam Singh as emerges from his statement recorded under section 313 Cr.P.C. is that on 19.3.1997 at about 5/5.30 AM, he and Mohinder Pal PW were waiting for some conveyance for going to their respective villages and in the meantime, police party came there and took with them the both. Mohinder Pal was sent back after obtaining thumb impression on certain papers and he was falsely implicated in this case later on.

Accused Dalbir Singh took the plea that on 13.3.1997, the police of Police Station Sadar, Jalandhar and of CIA Staff, Jalandhar took him from his house telling that he would be let off after some time. When he was not released, his father submitted an application before Additional Chief Judicial Magistrate, Jalandhar apprehending that he might not be implicated in some false case. The said application was sent to the police for report by the concerned Judge. Instead of submitting report, he was implicated in this case. He further stated that he had no connection whatsoever with the owner of the truck and was not even known as Sukhdev Singh, Baba or Dani.

I may mention at this juncture that there appears to be clerical/typographical error while recording the statements of both the accused. The stand taken by Satnam Singh is typed in an answer to the last question put to Dalbir Singh and vice-versa the stand of Dalbir Singh is depicted in the statement of Satnam Singh. The learned State counsel also admits this fact that some typographical mistake had occurred when their statements were being recorded.

Without taking a serious note of it, I observe that a very casual approach was adopted while recording the statements of both the accused.

This also depicts that even the counsel for the accused was not vigilant at the time of recording of the statements and thereafter the learned trial Judge also signed it in routine. Statement under section 313 Cr.P.C. has its importance and should not be treated in a casual manner as it can change the fate of the case altogether.

The learned counsel for both the sides have made statement at the Bar that it was a sheer irregularity committed by the learned trial court while recording the statement of both the accused for the reason that the defence of Satnam Singh, is clear from the application Ex. D1 moved by his father Barfi Ram DW2 before the concerned Judge on 15.3.1997 on which the report of the SHO was also called.

It may also be mentioned here that at one stage, the instant appeal was heard by this Court way back in May, 2005 and the judgment was reserved. While dictating judgment, I had felt the necessity of perusing Ex. D1 in original but the same was not available on the file.

Therefore, the judgment could not pronounced and a direction was given to the concerned quarters to trace the aforesaid document. Record reveals that the said document was traced and tagged with the judicial file. Thereafter the instant appeal was put up before some other Bench and could not be heard primarily for the reason that it was initially heard by this Court.

Thereafter, on the request of learned counsel for the accused, the matter had to be adjourned for certain dates as the issue with regard to conscious possession under the Act was referred to Full Bench of this Court. The said judgment has since been pronounced in case Kashmir Singh vs. State of Punjab, 2006(2) RCR (Criminal) 477. This all had caused delay in disposing of the instant appeal.

I have heard Mr. H.S.Sandhu, learned Senior Advocate, assisted by Mr. S.S.Deol, Advocate for the accused and Mr. Janender Chandail, learned Assistant Advocate General, Punjab. With their assistance, I have also gone through the entire records.

Mr. Sandhu states that the prosecution has not been able to prove the charge against any of the accused in this case. According to the case of the prosecution, Satnam Singh alias Sukhdev Singh alias Baba alias Dani was shown on the steering of the truck as driver and after seeing the police party, he had fled away from the spot. According to Mr. Sandhu, not only the story as set up by the prosecution appears to be a concocted one on the face of it as it was not possible for the driver of the truck to run away from the spot that too after getting down from the truck in the presence of many police officials who were already holding nakabandi at a particular point. SI Nirmal Singh was posted as SHO of a Police Station and was supposed to keep some ammunition may be a pistol/revolver with him.

Some one from the other police officials would also be having some weapon with him. It was month of March and the time of occurrence as projected in the FIR is 7.30 PM. Therefore, the explanation tendered by ASI Nirmal Singh that the driver after taking an undue advantage of the darkness, fled away from the spot is not appealing at all and it appears that a false story was concocted in order to falsely implicate in this case.

Dwelling upon his arguments, Mr. Sandhu goes on to submit that not only the aforesaid story appears to be improper, the case of the prosecution stumbles badly qua Satnam Singh accused on the ground of his identification. It is not the case of the prosecution that Satnam Singh was earlier known to any of the members of the police party. In his cross- examination ASI Nirmal Singh has categorically admitted that no identification of Satnam Singh was held. It is also not made clear in his substantive statement as to who had disclosed the name of Satnam Singh to him. He simply stated that during investigation it was found that the truck driver was Satnam Singh . Thereafter he was arrested on 21.3.1997. The learned counsel submits that even if he had come to know of the name of Satnam Singh from the co-accused, the said statement is also inadmissible in evidence whereas he vehemently reiterates that there is no such evidence on record. Because of the vital flaw with regard to the identification of Satnam Singh accused, Mr. Sandhu submits that the prosecution case is not proved qua him at all and he deserves acquittal.

In support of his aforesaid submissions, Mr. Sandhu relies upon a Division Bench judgment of this Court rendered in Rampal vs.

State of Punjab, 2003(3) RCR (Criminal) 159.

Attacking the case of the prosecution with regard to involvement of Dalbir Singh alias Tota, Mr. Sandhu submits that qua him also the prosecution has not been able to prove the conscious possession of the contraband. As per the case set up by the prosecution, he was found sitting by the side of the driver. When the truck was searched the contraband was recovered. He is resident of village Shukarchak, Distt.

Amritsar whereas owner of the truck, namely, Ranjit Singh who was also booked under section 29 of the Ac t by the prosecution agency was resident of Rerwan as is clear from the statement of Darshan Lal, PW4. The involvement of Ranjit Singh under section 29 of the Act indicates that he had financed/abetted transportation of the poppy husk in his own truck and therefore, Dalbir Singh accused in any case cannot be said to be in the conscious possession of the same. Strengthening his arguments, Mr.

Sandhu further submits that there is no evidence on the file to show that Dalbir Singh was ever employed by Ranjit Singh or he knew him in any manner personally and, therefore, conscious possession of the contraband qua him is not proved to the hilt.

Mr. Sandhu relies upon a latest judgment of Division Bench of this Court rendered in Sukhdev Singh and another vs State of Punjab 2006(4) RCR (Criminal) 263 in which not only the person who was sitting by the side of the driver was acquitted even the other two persons one on the steering of the truck and other sitting on the back of the truck where 120 bags of poppy husk were lying and recovered, were also acquitted on the ground that no alternative charge under section 8 for transporting the goods was framed against them.

Mr. Sandhu lastly submits that may be both the accused by now have served almost their entire substantive sentence as they are in custody since March, 1997, yet on facts the case of the prosecution qua both of them is on slippery footing and therefore, they deserve acquittal.

Repudiating the arguments advanced by Mr. Sandhu, Mr.

Chandail the learned State counsel contends that the case of the prosecution is proved against both the accused as the driver of the truck had fled away from the spot leaving the vehicle behind but during the investigation, the investigating Officer came to know that he was Satnam Singh accused and Dalbir Singh was otherwise apprehended at the spot.

Therefore, presumption under section 35 or 54 of the Act has to be drawn against him. The learned State counsel then contends that a very huge recovery has been effected in the present case which cannot be planted upon by the police on its own or even otherwise no animosity of any kind has been shown by the accused side. Therefore, they have no escape.

On the basis of the aforesaid submissions, the learned counsel prays for affirmation of the conviction and sentence awarded to both the accused.

No doubt the recovery allegedly effected in this case is very heavy i.e. 150 bags of poppy husk being transported in a truck but heavy recovery by itself cannot be a ground to maintain the conviction. It has been repeatedly held that the offences under the Act are grave and graver the offence, stricter the proof. Stringent provisions are provided by the Statute with regard to sentence part and before the accused is to be convicted under the Act and the minimum sentence for being in possession of the commercial quantity of the contraband is 10 years and a fine of Rs one lac which may also extend to 20 years or two lacs, no scope for concession can be extended to the investigation at least on vital aspects. My view is supported by judgment of Division Bench of this Court rendered in State of Punjab versus Jalaur Singh, 2002(3) RCR 478 (P&H).

In my view, the identification of the accused and the conscious possession qua the narcotic item are very vital issues which cannot be taken lightly. In the case in hand, the prosecution is on a slippery footing on both the counts.

The admitted case is that Satnam Singh accused was not apprehended at the spot. Assuming for the sake of arguments, even if I give some latitude to the prosecution with regard to the manner in which the story of running away of the driver of the vehicle from the spot is projected, although it is not appealing to the judicial conscience which is an embodiment of reasoning and reasoning alone, yet the basic flaw in this regard is that the identification of Satnam Singh accused is not proved/established in accordance with law. I have once again rescanned the entire statement of Nirmal Singh the Investigating Officer of this case.

He simply stated that during the investigation he came to know that the man who was on the steering of the truck and fled away was Satnam Singh. In cross-examination, he categorically admitted that no identification parade was held. What is the source with the Investigating Officer to fix the identity of Satnam Singh on the date of incident is a very crucial question to be answered by the prosecution and, in my considered view, the same remains un-answered. In Sukhdev Singh's case (supra) on which Mr.

Sandhu relied heavily, this Court acquitted the driver of the truck on the ground that his identification was fixed from the statement of his co-accused who was apprehended at the spot. The said statement being inadmissible in evidence was kept away from the zone of consideration. In the case in hand, even that is not the situation. Therefore, in the present set of circumstances and on the basis of the evidence on record, I do not find any difficulty in holding that the prosecution has miserably failed to fix identity of Satnam Singh accused in this case. He, thus, deserves acquittal of this vital infirmity alone. Ordered accordingly.

Let us now advert to the case of Dalbir Singh accused.

The prosecution case as set up is that one Ranjit Singh was the owner of the truck in which 150 bags of poppy husk were being transported.

This fact is clear from the statement of Darshan Lal PW4. Even otherwise, the conceded position before me is that Ranjit Singh was booked under section 29 of the Act. He, however, died during the pendency of the trial.

This fact finds mentioned in the impugned judgment also. All these facts make it clear that Ranjit Singh being the owner of the truck had certainly the knowledge about the fact of contraband being transported in the truck.

Dalbir Singh accused is a resident of village Shukarchak which falls within the jurisdiction of District Amritsar. The prosecution has not proved any nexus of Dalbir Singh accused with aforesaid Ranajit Singh. He was not the employee of Ranjit Singh who could be sent along with contraband. In the absence of any evidence on record in this regard, by no stretch of imagination, it can be inferred that Dalbir Singh was in the know of the contraband being carried in the truck. Merely he was found sitting in the cabin of the truck by the side of the driver would not be a proof enough to conclude the conscious possession of Dalbir Singh accused qua the narcotic item.

Possession is the core ingredient to be established before the accused is subjected to the punishment under the Act and the prosecution has to prove the nexus between the accused and the contraband allegedly recovered as held in Avtar Singh vs State of Punjab 2002(4) RCR (Criminal) 180, wherein their Lordships have observed that the word "possession" no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together.

But the minimum requisite element which has to be satisfied is custody or control over the goods.

In Abdul Rashid Ibrahim Mansuri vs. State of Gujarat (2000) 2 SCC 523, while dealing with the aspect of Section 35 of the Act, their Lordships observed that the circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that the accused could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.

In Kashmir Singh's case (supra) the Full Bench of this Court while discussing sections 35 and 54 of the Act and taking into consideration the aforesaid two decisions of Hon'ble Apex Court and certain other judgments finally observed that no presumption under sections 35 and 54 of the Act should be drawn against the accused unless he has been given an opportunity to rebut the same in his statement recorded under sections 313 of the Code of Criminal Procedure. In the case in hand, the perusal of the statement of the present accused recorded under section 313 Cr.P.C.

indicates that no such specific question with regard to conscious possession of the contraband was put to him. Therefore, the case of the prosecution becomes weak on this aspect also.

Not that the case of the prosecution is very weak qua Dalbir Singh accused with regard to the conscious possession of the contraband on the ground that the same is not proved in the light of the given circumstances, his case is otherwise squarely covered by a latest judgment of Division Bench of this Court rendered in Sukhdev Singh case (supra).

In the aforesaid case, 125 bags of poppy husk were carried in a truck. Three persons were found sitting in the said truck; one was on the driving seat of the truck; other was sitting by the side of the driver and the third was sitting on the back of the truck. All were charged under section 15 of the Act. The learned trial court convicted all the three accused . In an appeal filed by them, the Division Bench of this Court while relying upon two Supreme Court judgments rendered in Avtar Singh vs State of Punjab 2002(4) RCR (Criminal) 180 SC and Madan Lal and another vs. State of Himachal Pradesh, 2003 (4) RCR (Criminal) 100 and Full Bench decision rendered in Kashmir Singh's case (supra) on the issue of conscious possession held that even if the accused were found carrying the offensive contraband stuff in the truck on the date, they could not be held guilty for the commission of the crime because no alternative charge under section 8 of the Act for transporting the offensive goods was framed against them.

The Hon'ble Bench while acquitting all the three accused observed in para 18 as under:-

"18. After carefully considering the submission of the learned counsel for the parties, it is not disputed that no alternative charge has been framed against the accused as envisaged under Section 8 of the Act for transporting the offensive goods. It is also not disputed that no question was put by the prosecution to the accused, with respect to conscious possession of the contraband, when they were examined under Section 313 Cr.P.C., that they were transporting the offensive goods in the vehicle at the relevant time.

Thus in the absence thereof, the accused cannot be held guilty for the commission of any crime. " On facts, so is the position in the case in hand. Therefore, Sukhdev Singh case (supra) also squarely covers the case of Dalbir Singh accused and he also deserves acquittal. Ordered accordingly.

No other point has been raised or left un-touched by this Court.

As a sequel to the aforesaid discussion, the net result now surfaces is that the prosecution has not been able to prove the charge qua both the accused beyond any shadow of reasonable doubt and therefore, the impugned judgment of conviction and sentence qua them is hereby set aside.

Consequently, the instant appeal stands allowed. As stated by Mr. Sandhu both the accused are in custody They shall now be released forthwith, if not required in any other case.

Concerned quarters be informed in this regard without any delay.

Before parting with the judgment, I may observe here that it certainly pricks the judicial conscience that the instant appeal is being heard at a stage when both the accused are on the verge of serving their entire substantive sentence but I may state here that some what delay was caused on account of the fact that one very important document (Ex. D1) was initially not traceable on the trial court records and it so happened that thereafter the instant appeal was sent to other Hon'ble Benches but could not be heard being a part heard appeal. As stated above, at one stage counsel for the accused also made a request for an adjournment awaiting the decision of Full Bench of this Court on the point of conscious possession.

Paucity of time is also causing delay in final disposal of the appeals despite the fact that we are conscious of the fact that many accused after suffering conviction are languishing in jails for years together.

( Virender Singh )

February 9, 2007 Judge

'dalbir'


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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