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2000 DIGILAW 602 (PNJ)

Ashok Kumar v. State of Haryana

2000-05-30

AMAR BIR SINGH GILL

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JUDGMENT Amar Bir Singh Gill, J. - Ashok Kumar, appellant, in this appeal has assailed the judgment dated 2.6.1989 of Shri N.K. Jain, Sessions Judge, Sirsa convicting him (appellant) of an offence under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as the Act) and sentencing him to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/- or in default of payment of fine to further undergo R.I. for a period of two years. 2. The appellant was prosecuted on the allegation that on 4.5.1986, SI Chattar Singh, Incharge Police Post Khairpur under Police Station City Sirsa alongwith the police officials including M.H.C. Jagdish Chander were present when SI Chattar Singh received secret information that the appellant alongwith Munish Kumar used to sell chura post (poppy husk) in a shop hired by them from Om Parkash Bagri. SI Chattar Singh sent an intimation through ruqa Ex. PE/1 for registration of a case on the basis of which formal F.I.R. was registered in the Police Station. The police Incharge proceeded to the shop of Om Parkash Bagri besides joining Joge Ram. SHO Chattar Singh came to know from Om Parkash and Unis Massi who met him there that the goods had been carried to the Transport Company of Yashpal Sodhi in the carts some time earlier. Both Om Parkash and Unis Massi were also joined in the police party and SI Chattar Singh reached the Sodhi Goods Transport Co. Yashpal Sodhi, proprietor of the Transport Company was found there besides 45 bags were lying outside the Transport Company which were found to contain 50 kgs. of chura post in each of the bags. SI Chattar Singh took 100 gms. out of each bag for sample in accordance with the rules which was sealed with his own seal sand the seal after use was handed over to Yashpal Singh. He also took into possession these bags numbering 45 through memo. Ex.PB. He recorded the statements of PWs including those of Shera and Nimam in whose carts the goods were carried to the Transport Company. Yashpal Singh Sodhi also produced bilty (goods receipt) Ex.PA, which was taken into possession by the SI, vide memo. Ex.PA/1. The appellant and his companion Munish Kumar happened to reach there subsequently and claimed that he deals in tobacco. He was not arrested at the spot. Yashpal Singh Sodhi also produced bilty (goods receipt) Ex.PA, which was taken into possession by the SI, vide memo. Ex.PA/1. The appellant and his companion Munish Kumar happened to reach there subsequently and claimed that he deals in tobacco. He was not arrested at the spot. SI Chattar Singh deposited that case property with the M.H.C. in the Police Station with the seals intact. Information regarding seizure of the case property was given to the S.H.O. On receipt of the report of the Chemical Examiner, the samples were found to be that of poppy husk. The appellant alongwith Munish Kumar were challaned for an offence under Section 15 of the Act. 3. At the trial, the prosecution case was supported through the statements of Yashpal Singh Sodhi, PW.1, Jagdish Chander, Head Constable, PW.8. Chattar Singh, SI, PW-9 and Dr. S.K. Shukla, Chemical Examiner, PW.10. The recovery witnesses namely Om Parkash, PW.2, Nizam, PW.3, Shera, PW.7 turned hostile to the prosecution case and resiled from their police statements besides denying recovery of any poppy husk from the possession of the appellant and his companion. The formal witnesses SI Raghubir Singh recorded the formal F.I.R. ASI Phool Singh, PW.5 arrested the accused Munish Kumar on 25.11.1987. ASI Gulzari Lal, PW.6 arrested the accused Ashok Kumar on 6.3.1987. Rest of the witnesses were given up by the Public Prosecutor. 4. When examined under Section 313 Criminal Procedure Code, the appellant denied the case of the prosecution as totally false and claimed to have been involved falsely. However, no defence evidence was produced. 5. Learned trial Judge, after appreciating the evidence on the record and hearing the counsel for the parties found the case proved against the appellant only whereas acquitted his companion Munish Kumar. 6. I have heard learned Counsel for the parties and have perused the evidence recorded in this case. 7. The prosecution case before the trial Court was that the appellant being a dealer in the poppy husk had hired a shop/godown from Om Parkash Bagri in the city. 6. I have heard learned Counsel for the parties and have perused the evidence recorded in this case. 7. The prosecution case before the trial Court was that the appellant being a dealer in the poppy husk had hired a shop/godown from Om Parkash Bagri in the city. A secret information was received by SI Chattar Singh on 4.5.1986 and in consequence thereof, he came to the Transport Company of Yashpal Singh Sodhi, PW.1 where he found 45 bags lying in front of the Transport Company which according to SI Chattar Singh contained poppy husk weighting 48 kgs each in the bag, which bags were sought to be transported through the Transport Company of Yashpal Singh Sodhi, PW.1, by the appellant on the basis of goods receipt, Ex.PA. It is also the case of the prosecution that these 45 bags were transported on carts by Nizam and Shera from the godown of the appellant to the Transport Company of Yashpal Sodhi on the asking of the appellant. 8. Now it is to be seen whether the aforesaid allegations have been proved on record by the prosecution. 9. First of all, it is noted that SI Chattar Singh never verified if any of the shop or Godown belonging to Om Parkash Bagri was in possession of the appellant on rent because SI Chattar Singh has admitted that he never examined Om Parkash Bagri, owner of the alleged shop/godown in this respect. Om Parkash Bagri has not been examined in this case. Another Om Parkash, P.W. 2 has been produced in case. He is a tea vendor and has denied any knowledge if the appellant had taken on lease any shop in his neighbourhood. 10. It is then noted as per allegations, the appellant carried the bags from his godown to the Sodhi Transport Company on the carts of Nizam and Shera. Prosecution produced PW.3, Nizam to prove this fact who has denied if he has ever known the appellant or if it was on his direction that he had carried the bags to the Transport Company. On the other hand, he stated in his cross-examination that in fact, Yashpal Singh Sodhi had directed them to bring the goods. Yashpal Singh Sodhi appearing as PW.1, has admitted that these two cart-pullers always remained at his Transport Company. 11. On the other hand, he stated in his cross-examination that in fact, Yashpal Singh Sodhi had directed them to bring the goods. Yashpal Singh Sodhi appearing as PW.1, has admitted that these two cart-pullers always remained at his Transport Company. 11. The next link in the chain of the prosecution case was that the appellant had booked the consignment of 45 bags with Yashpal Singh Sodhi, PW.1 for transportation to Hunuman Gargh. Yashpal Sodhi appearing as PW.1, has admitted that he had not known the appellant earlier to the day the police took into possession these bags nor the goods receipt Ex.PA has any of his address much less his signatures on the same. The original copy meant for consignor was neither taken into possession by the police nor recovered from the appellant nor produced by Yashpal Sodhi, PW. It is in the statement of Yashpal Sodhi, PW. that when he was in the process of preparing bilty, Ex.PA the police arrived there and according to him, the appellant and his companion were present at that time. Whereas according to SI Chattar Singh as well as HC Jagdish Chander on their arrival at the Transport Company, the appellant and his companion were not present there but they had come much later at that place. There is, thus, no clear evidence as to the genuineness of the same since it does not bear any address or signatures of the appellant. More so if this has been prepared at his instance, he must have supplied a copy of the goods receipt or it must have been with Yashpal Sodhi, PW. However, there is no such evidence forthcoming. 12. It is also noted that SI Chattar Singh did not verify the correctness of the alleged secret information in respect of a godown/shop being maintained by the appellant for his alleged illegal activities of dealing in poppy husk. According to SI Chattar Singh, on the basis of secret information when he proceeded to the said godown, Om Parkash Bagri and Unis Massi had met there from whom he came to know that the goods had been carried to the Transport Company in carts a little earlier. According to SI Chattar Singh, on the basis of secret information when he proceeded to the said godown, Om Parkash Bagri and Unis Massi had met there from whom he came to know that the goods had been carried to the Transport Company in carts a little earlier. In his cross-examination, he stated that the godown of Om Parkash Bagri, which was allegedly on rent with the appellant, was at a distance of about 1000 yards from the place he received secret information and when the police party, according to him, reached at the godown, it was found bolted. He then peeped inside the godown from the Jangla but the godown was empty. There were rooms behind the godown also. Whereas, according to H.C. Jagdish Chander, when he saw the godown, it was found open. This contradicts the statement of SI Chattar Singh. Even otherwise, after the alleged recovery of bags of poppy husk, it was the bounden duty of SI Chattar Singh to have searched the godown/shop to find out if there was any other quantity of any contraband lying there. It is also on record that the case property which was taken to the police station was not sealed by a senior Officer as required under Section 55 of the Act. No such seal was available at the time of exhibiting the case property before the trial Court. Besides, it is also noted that after receipt of initial secret information, subsequent information received by SI Chattar Singh from Om Parkash Bagri and Unis Massi, PWs, in respect of appellant and his companion having taken poppy husk in the bags to the Transport Company of Yashpal Sodhi, PW, was not reduced in writing. In fact, this was the information on which cognizance of offence could have been taken. Earlier, a ruqa sent to SI Chattar Singh on the basis of secret information, was only in general terms alleging that the appellant deals in the sale of poppy husk. The failure of SI Chattar Singh to reduce the information in writing, as aforesaid, directly contravenes the provisions of Section 42 as well as its sub-section (2) of the Act which is mandatory in nature. Failure to do so caused serious doubt in the veracity of the prosecution story more so in the light of the recovery witnesses having not supported the prosecution case against the appellant before the trial Court. Failure to do so caused serious doubt in the veracity of the prosecution story more so in the light of the recovery witnesses having not supported the prosecution case against the appellant before the trial Court. 13. It is also noted that at the time of recovery of bags lying in front of the Transport Company of Yashpal Sodhi, PW, the same were not in the custody of the appellant and his companion. Since, according to SI Chattar Singh, the appellant or his companion were not present at the time when he reached the Transport Company of Yashpal Sodhi, PW, the genuineness of the goods receipt, Ex.PA has already been referred to above. 14. In the circumstances, the prosecution failed to connect the appellant, in any manner, with the 45 bags, sample of which was found to contain poppy husk. It is also noted that at no stage, the appellant was asked if 45 bags taken into possession by SI Chattar Singh belonged to him. 15. Learned trial Judge, no doubt, highlighted the weakness of the prosecution case in his judgment, now in appeal, however, ignoring the glaring infirmities of the case of the prosecution, he relied upon the statement of the appellant himself under Section 313 Criminal Procedure Code The appellant in his statement stated that he is dealer in tobacco and not in chura post. He claimed that the police had taken bags of tobacco at Sirsa on suspicion. They brought these bags to the police station and made some writings and then allowed him to go. Subsequently, he was involved in this case after six months. He is claimed to have shown to the police the documents relating to receipt of consignment of tobacco. He was involved when he came to collect his bags of tobacco. This statement was found sufficient by the trial Judge to connect the appellant with the offence by observing that the accused acknowledged the recovery of bags from his possession. The appellant, however, has not admitted at any stage that the bags taken from his possession contained chura post. The trial Judge, further observed that since it is acknowledged by the appellant that bags were taken to the Police Station, non-compliance of any of the mandatory provisions of law was out of question. The appellant, however, has not admitted at any stage that the bags taken from his possession contained chura post. The trial Judge, further observed that since it is acknowledged by the appellant that bags were taken to the Police Station, non-compliance of any of the mandatory provisions of law was out of question. Be that as it may that the appellant has admitted certain bags having been taken by the police from his house containing tobacco did not support the case of the prosecution as made out against the appellant. The prosecution case has to be established beyond a reasonable doubt and the existence of any such fact as alleged in the prosecution case, cannot be considered as proved by giving a meaning to the statement of an accused person which can support the prosecution case. It is well settled that a fact is said to be proved when the Court believes its existence beyond a reasonable doubt and not merely when existence is sought to be established by preponderance of probability, as the trial Judge has proceeded to hold. The Court cannot ignore the evidence on record nullifying the case of the prosecution against an accused person and accept it to be proved by giving a meaning to the statement of the accused other than the one which an accused person has sought to convey though his statement. The case of the prosecution is highly doubtful being not supported by the witnesses produced in this case and the appellant cannot be convicted in the absence of proof beyond a reasonable doubt. 16. In the light of what has been said above, this appeal is allowed. The conviction and sentence passed against the appellant is set aside. He shall be set at liberty forthwith if not in custody in any other case. Appeal allowed.