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GURBHEJ SINGH versus STATE OF PUNJAB

High Court of Punjab and Haryana, Chandigarh

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Gurbhej Singh v. State of Punjab - CRA-S-80-SB-2001 [2007] RD-P&H 727 (22 January 2007)

Crl. Appeal No.80-SB of 2001 1

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.

Date of decision: 18.10.2006

Gurbhej Singh Vs. State of Punjab

CORAM: Hon'ble Mr. Justice Virender Singh
Present: Mr. Parveen Bhadu, Advocate, Amicus Curiae, for the appellant.

Mr. M.S. Sidhu, Sr. DAG, Punjab.

Virender Singh, J.

Appellant Gurbhej Singh son of Dara Singh son of Inder Singh, resident of village Toot, Police Station Patti, District Amritsar was charged under Section 18 of the Narcotic Drugs & Psychotropic Substances Act (for short "the Act") for allegedly keeping in his conscious possession 3 Kgs of opium in the area of village Sohawa falling within the jurisdiction of Police Station Sarhali, Tehsil Tarn Taran, District Amritsar, vide impugned judgment dated 12.12.2000 passed by the learned Special Judge, Amritsar. He stands convicted for the said charge and has been sentenced to undergo R.I. for ten years and to pay a fine of Rs.1.00 lac, in default thereof to further Crl. Appeal No.80-SB of 2001 2

undergo R.I. for one year. Aggrieved by the same, he has filed the instant appeal. Mr. Parveen Bhadu, Advocate, has been appointed as Amicus Curiae by Punjab State Legal Services Authority to defend the appellant.

At the very outset it needs to be mentioned here that learned State counsel has brought to the notice of this Court that the appellant was granted six weeks parole on 1.6.2004 and thereafter he had not surrendered till date. He submits that although the police machinery is making all its sincere efforts to nab him but his whereabouts are not known.

The case set up by the prosecution is that on 19.6.1997 S.I. Mandip Singh SHO, Police Station Sarhali (PW6) alongwith other police officials was present near the bridge of Sua (Canal minor) in the area of village Sohawa, when the police party stopped a scooter make 'Bajaj Chetak' bearing registration No.PB-02-F-4349 which was signalled to stop. The appellant who was driving the said scooter disclosed his name and parentage to the police. SHO Mandip Singh suspected him of being in possession of some narcotic. He was asked by the SHO, if he would like to be searched by him or in the presence of gazetted officer. He told that he would like to be searched by a Gazetted Officer. A memo was prepared in this regard.

DSP Sukhbir Singh (PW4) was informed over wireless who reached the place of recovery. LC Rachhpal Singh was also sent to arrange some respectable independent person(s) from the village. However, Crl. Appeal No.80-SB of 2001 3

Rachhpal Singh could not arrange any independent person from the village on account of party faction as no one was ready and willing to be associated with the recovery. DSP Sukhbir Singh after reaching informed the appellant that he was a Gazetted Officer and if he was ready to be searched in h is presence. The appellant consented to the same. In this regard a separate memo was prepared. Dicky of the scooter was searched from which 3 Kgs of opium wrapped in a glazed paper was recovered. 50 grams from the same was extracted as sample and the remainder which remains 2 Kgs. 950 grams was put in a separate plastic box. The sample parcel and the remainder were separately sealed with the seals bearing impressions 'MS' and 'SS' (for Mandip Singh SHO and Sukhbir Singh DSP). Thereafter, the case property was taken into possession vide memo. The seal was handed over to ASI Mohinder Singh after use. The site plan of the place of recovery was prepared at the spot. All the witnesses present there attested the memo. On reaching the police station the case property was deposited in the Malkhana. The sample was sent for chemical analysis and on receipt of the report of the Chemical Examiner, the investigation was completed and the appellant was challaned. He was charged under Section 18 of the Act as stated above.

In order to substantiate the charge, the prosecution has examined PW1 ASI Ajmer Singh. PW6 SHO Mandip Singh who had got the case property deposited with him as he was employed as MHC Crl. Appeal No.80-SB of 2001 4

in Police Station Sarhali on 19.6.1997. On 8.7.1997 he had handed over the sample parcel to LC Kuldip Singh for depositing the same in the office of the Chemical Examiner. PW2 Vijay Kumar, Licence Clerk, proved from the record that scooter No.PB-02-F-4349 stood in the name of Ramesh Singh son of Gurbhej Singh, resident of village Toot. PW3 ASI Harcharan Singh is a witness of formal nature who after receipt of the Ruqa had recorded the formal FIR. PW4 DSP Sukhbir Singh is a witness to the recovery. He has corroborated the case of the prosecution. PW5 SI Mohinder Singh is also one of the witnesses to the recovery. He has also reiterated the case of the prosecution. PW6 SHO Mandip Singh is the Investigating Officer.

The investigation conducted by him has already been discussed by me in the preceding paras. PW7 HC Kuldip Singh is a witness of formal nature who tendered in evidence his affidavit Ex.PH. This witness took the sample parcel to the office of Chemical Examiner.

The plea taken by the appellant as emerges from his statement under Section 313 Cr.P.C. is of false implication asserting that the police was having previous ill-will against him prior to the registration of this case as his father and brother were detained in wrongful confinement in Police Station, Patti and he filed a habeas corpus writ in this Court whereupon a Warrant Officer was appointed who raided the police station and recovered his father and brother from the illegal custody of the police. For this reason the police had a grudge against him and planted this case.

Crl. Appeal No.80-SB of 2001 5

In defence, the appellant has examined LC Gurvinder Singh (DW1) who on the basis of the record proved Entry No.20/73 dated 19.6.1997 (Register No.19) as Ex.DA, copy of road certificate No.166/21 dated 8.7.1997 Ex.DB and copy of DDR No.44 dated 19.6.1997 Ex.DC. Harbans Singh (DW2) stated that in the year 1993 the police had taken into custody the appellant and his father for which a habeas corpus writ was filed in the High Court and the Warrant Officer had raided the Police Station and recovered the appellant and his father from illegal custody. He then stated that in the year 1997, the police officials from Police Station Sarhali had arrested the appellant from his village and subsequently implicated him in this case. The appellant also tendered into evidence a certified copy of the judgment dated 4.7.1998 Ex.DA passed by learned Special Judge, Amritsar.

After appreciating the entire evidence, the learned trial Court has convicted and sentenced the appellant as stated above.

I have heard Mr. Parveen Bhadu, Advocate, and Mr.

M.S. Sidhu, learned Senior Deputy Advocate General, Punjab. With their assistance I have also gone through the entire record.

Mr. Bhadu submits that the case of the prosecution is not proved against the accused inasmuch as there is clear violation of Section 50 of the Act. He submits that the initial offer which was made to the appellant indicates that it was partial in nature inasmuch as he was asked about the search to be conducted before a Gazetted Crl. Appeal No.80-SB of 2001 6

Officer only. This fact is also mentioned in the Ruqa Ex.PA. He then submits that even after DSP had reached the spot, the offer given by him was also partial in nature as he disclosed to the appellant that he was a Gazetted Officer and did not ask the appellant as to whether he wanted to be searched before him. According to the learned Counsel, partial offer is in clear violation of Section 50 of the Act and the appellant deserves acquittal on this flaw alone.

The learned counsel then submits that no independent witness was associated by SHO Mandip Singh at the time of effecting recovery and the explanation tendered that nobody was willing to join is not trust worthy and is a sheer eyewash. The Investigating Officer could very well take legal action against the persons who had refused to join the investigation or at least their names could be disclosed to strengthen the explanation. Once the same is not done, it can comfortably be inferred that in fact no attempt was made to join the independent witnesses. Therefore, even if the recovery is effected in the presence of DSP, the same has to be seen with an eye of suspicion.

The learned counsel then submits that the prosecution is failing on link evidence as delay of about 20 days in sending the sample to the Chemical Examiner goes unexplained. Therefore, there were chances of tampering with the case property before the sample was sent to the Chemical Examiner.

The learned counsel then submits that the defence of the Crl. Appeal No.80-SB of 2001 7

appellant is probable on the face of it which has not been taken into account by the learned trial Court in the right perspective. The police was nursing a grudge against the appellant since 1993 when the raid was conducted by a Warrant Officer of the High Court. Ultimately the appellant was falsely implicated on account of that grudge.

The learned counsel has lastly pointed out certain discrepancies in the statements of the official witnesses and submits that the same also assume importance when seen in the light of the other main flaws as pointed out herein above.

On the basis of the aforesaid submissions, the learned counsel prays for acquittal of the appellant.

While controverting the submissions advanced on behalf of the appellant, Mr. Sidhu submits that may be the recovery is not effected in the presence of any independent witness but the same cannot be discarded as DSP Sukhbir Singh was called at the spot and in his presence the dickey of the scooter was searched. He then submits that Section 50 of the Act is not attracted in this case as it is not the recovery of a person and, therefore, the appellant cannot derive any benefit from the violation of the provisions of Section 50 of the Act. The learned State counsel then submits that may be there is some delay in sending the sample to the Chemical Examiner for analysis but the same would be of no advantage to the appellant as the case property was cross-checked by the Ilaqa Magistrate on the next Crl. Appeal No.80-SB of 2001 8

day of the alleged recovery and, therefore, no chance of tampering with the case property is ruled out in this case. The discrepancies as pointed out by the learned counsel for the appellant, are not that material so as to discard the case of the prosecution in its entirety and, therefore, the appellant has no escape.

Lastly the learned State counsel contends that the conduct of the appellant is also not upto the mark as he is absconding since June, 2004 and the same may be taken into account against him.

After hearing rival contentions of the either side and going through the entire evidence and the other relevant documents minutely, I am of the view that the prosecution has been able to bring home the charge against the appellant to the hilt.

The first argument advanced by Mr. Bhadu with regard to the violation of Section 50 of the Act merits dismissal as in the case in hand, the recovery allegedly effected is not from a person but from the dickey of a scooter and, therefore, Section 50 is not attracted. The learned counsel cannot derive any advantage from this flaw in the light of a latest judgment of the Hon'ble Supreme Court rendered in State of Himachal Pradesh Vs. Pawan Kumar, 2005 (2) All India Criminal Law Authority 653.

No doubt, no independent witness was joined by SHO Mandip Singh at the time of search, but the said fact by itself cannot be termed to be a ground for rejecting the case of the prosecution in its totality. It depends upon the facts of the each case. Although the Crl. Appeal No.80-SB of 2001 9

Investigating Officer did not take any action against any person who had refused to join the police party, yet it is quite often noticed that the independent witnesses are reluctant to join the police party for many reasons and, therefore, the prosecution case is not to be thrown only on that weakness alone which is otherwise proved. In my considered view, the recovery effected in the presence of DSP Sukhbir Singh who was called at the spot, is not to be rejected simply on account of the fact that it goes uncorroborated from independent source. Therefore, I hereby repel the second limb of argument advanced by Mr. Bhadu.

I do not find any infirmity with regard to the link evidence. It has come in the statement of SHO Mandip Singh, the Investigating Officer that the accused along with the case property was produced before the Ilaqa Magistrate and thereafter the sample was put in his double lock and the remaining case property was handed over to MHC of Police Station. On 8.7.1997 the sample was handed over to LC Kuldip Singh for depositing the same in the office of Chemical Examiner. Although the order passed by the learned S.D.J.M. has not been got proved by the prosecution, yet I have seen the same from the trial Court records which reads as under:- "Present: APP for the State.

Accused in custody with Shri Gurdial Singh Sandhu, Adv.

Crl. Appeal No.80-SB of 2001 10

Heard. Police file perused. The allegations against the accused are well founded. The accused is remanded to police custody till 21.6.97.

SI Mandeep Singh has also produced before me the case property containing two parcels i.e. one sample parcel and the other containing remaining opium. Both these samples are sealed with the seal bearing letters 'MS' and 'SS'. Seals are intact. The parcels are returned to SI Mandeep Singh."

I am taking the judicial notice of this order.

It would have been better had the learned Magistrate initialed the sample chits pasted on the parcels, but in my view even if the same is not done, the manner in which the sample parcels are kept by SHO Mandip Singh in his custody till the same were sent to the Chemical Examiner, there remains no doubt about tampering with the same at any stage. The seal used by DSP Sukhbir Singh was also retained by him. In my view, even if there was delay of about 20 days in sending the samples to the Chemical Examiner, the same cannot be said to be fatal to the prosecution. Therefore, the link evidence is also proved to the hilt by the prosecution.

Much has been said by Mr. Bhadu with regard to the defence set up by the appellant but in my considered view the same is hanging on a very tenuous thread. The Warrant Officer conducted the Crl. Appeal No.80-SB of 2001 11

raid in the Police Station in the year 1993 whereas the present case was registered in 1997. If at all the police has to register any case on account of the said grudge, the appellant could be implicated within a very short time of the said raid and there was no need for waiting for long four years. The defence evidence produced by the appellant in support of his case is neither here nor there which could advance his case.

The discrepancies pointed out by the learned counsel in the statements of the official witnesses are not that material so as to dislodge the case of the prosecution in its totality. Therefore, I do not feel the necessity of entering into detailed discussion in this regard.

As a sequel to the aforesaid discussion, the net result now surfaces is that the prosecution has been able to prove conscious possession of the contraband (3 Kgs opium) qua the appellant beyond any shadow of reasonable doubt and, therefore, his conviction and sentence as already recorded by the learned trial Court deserves to be upheld. Ordered accordingly.

Consequently, the instant appeal stands dismissed.

Although the conduct of the appellant in absconding from the jail after he was granted six weeks parole cannot have any bearing upon the merits of the instant case which has been appreciated by me entirely on the basis of the evidence on record, yet I take a serious note of this fact and it smacks of inaction on the part of the police agency. Senior Superintendent of Police of the Crl. Appeal No.80-SB of 2001 12

concerned District has already been informed of the said fact vide separate order and a request has been made to him to take all necessary steps with regard to the arrest of the appellant without any further delay. A copy of the judgment be also sent to him for information.

(Virender Singh)

Judge

October 18, 2006

'rana'


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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