Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 1348 (PNJ)

Jasbir Kaur v. State Of Punjab

2002-12-04

VARINDER SINGH

body2002
Judgment Varinder Singh, J. 1. Jasbir Kaur alias Faujan wife of Krishan Singh is the appellant in this appeal who stands convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the N.D.P.S. Act) vide the impugned judgment dated 6.7.2000 passed by the Special Judge, Hoshiarpur. She has been sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1 lac and in default, to further undergo R.I. for six months. 2. In brief, the case of the prosecution is that on 18.2.1997, a police party headed by S.I. Kulwant Single was present at the Old Bus-Stand, Mahilpur on patrol duty when a secret information was, received against the appellant that she was keeping poppy husk in her house and was selling the same and in case a raid is conducted, the contraband could be recovered. After the receipt of the secret information, S.I. Kulwant Singh joined one Harjit Singh as an independent witness and the D.S.P. was also called at the spot. Ruqa was sent for registration of the formal F.I.R. It is then the case of the prosecution that when the police party reached the house of the appellant, she was not found there and 5 bags of poppy husk were recovered from the western corner of the house of the accused which were weighed and each bag was found to contain 30 kilograms of poppy husk. The samples according to rules were drawn. The other formalities were also completed. 3. The appellant was charged under Section 15 of the N.D.P.S. Act. On a consideration of the entire evidence, the appellant was convicted and sentenced as indicated above. Aggrieved against the impugned judgment of his conviction, she has preferred the present appeal. 4. I have heard Mr. Bipan Ghai, learned counsel for the appellant and the learned A.A.G. Punjab. I have also gone through the entire evidence recorded by the trial Court and the other relevant documents. 5. At the very outset, learned counsel for the appellant has argued that the case of the prosecution suffers from many legal infirmities in so much so that the prosecution has not been able to prove the conscious possession of the poppy husk allegedly reocvered from the house of the appellant. 5. At the very outset, learned counsel for the appellant has argued that the case of the prosecution suffers from many legal infirmities in so much so that the prosecution has not been able to prove the conscious possession of the poppy husk allegedly reocvered from the house of the appellant. Advancing his argument, learned counsel for the appellant has stated that when the house of the appellant was allegedly raided by S.I. Kulwant Singh (PW-6), the appellant was not found present in her house and that the house is not owned by her alone. He then contended that it is admitted by the prosecution that no proof regarding the ownership of the accusd was taken by the Investigating Officer and that it is also admitted by the Investigating Officer and the that the house of the appellant was jointly owned and possessed by her children and husband also. Thus, according to the learned counsel for the appellant, the prosecution has miserably failed to prove the conscious possession of the contraband so far as the alleged recovery of the contraband is concerned. In this context, learned counsel for the appellant has relied upon a judgment of the Apex Court in Gopal v. State of M.P., 2002(2) Crimes 168 : [2001(4) All India Criminal Law Reporter 625 (SC)]. 6. The next contention of the learnd counsel for the appellant is that the appellant was arrested in this case on 3.6.1997 and at the time of her arrest, the appellant had allegedly disclosed before ASI Ravi Dutt (PW-4) that she had kept concealed 5 bags of poppy husk powder in the western comer of room on 18.12.1997 and when she came to know that the police was coming to raid, she ran away from the house. The said statement is exhibited as PE. Learned counsel for the appellant contends that this statement legally cannot be taken into account being inadmissible in evidence as this statement did not lead to any disclosure of the fact and as such cannot be used against the appellant for the purpose of bringing home the guilt. The said statement is exhibited as PE. Learned counsel for the appellant contends that this statement legally cannot be taken into account being inadmissible in evidence as this statement did not lead to any disclosure of the fact and as such cannot be used against the appellant for the purpose of bringing home the guilt. He further contends that if the statement regarding the disclosure of the fact is legally excluded, the other part of the statement to the effect that she ran away from the house after coming to know of the raid would be hit by Sections 25 and 26 of the Evidence Act being a statement made to a police officer. In this context, learned counsel for the appellant has relied upon a judgment of the Apex Court rendered in Prabhoo v. State of Uttar Pradesh, AIR 1963 S.C. 1113. 7. Learned counsel for the appellant, thus prays that the case against the appellant is not proved and she is entitled to acquittal. 8. On the other hand, the learned A.A.G. Punjab has vehemently argued that the prosecution has been able to prove its case against the appellant. He further contends that heavy recovery was effected from the house of the appellant and that the raid was conducted under the supervision of D.S.P. - Charanjit Singh (PW-7) and that the police officials had no enmity to falsely implicate the appellant in any manner. 9. After considering the rival contentions raised by both the parties, I am of the considered view that the prosecution has not been able to prove its case against the appellant to the hilt. 10. It is the admitted case of the prosecution that when the house of the appellant was raided, she was not found present, there and in her absence, the house was raided in which 5 bags of poppy husk were allegedly recovered from the western corner of the room. 11. I have perused the statement of ASI Ram Chand (PW-3) and in his crossexamination. He has categorically admitted in so many words that the appellant was residing in the house along with her husband and children. He further admitted that the raiding party did not obtain any docmentary proof regarding the ownership of the house of the accused. 11. I have perused the statement of ASI Ram Chand (PW-3) and in his crossexamination. He has categorically admitted in so many words that the appellant was residing in the house along with her husband and children. He further admitted that the raiding party did not obtain any docmentary proof regarding the ownership of the house of the accused. It is also pertinent to mention here that Harjit Singh alias Jita, the so called independent witness of the alleged recovery, had stepped into the witness box on behalf of the prosecution, but did not support the prosecution case and was declared hostile. 12. Taking all these facts into consideration, it can be safely said that the prosecution has not been able to prove the conscious possession of the contraband from the appellant. On this count the judgment cited by the learned counsel for the appellant is Gopals case (supra) is applicable to the case of the appellant with all force. 13. So far as the second contention of the learned counsel for the appellant is concerned, I find force in the same also. Ravi Dutt A.S.I. (PW-4) has stated that when the appellant was arrested in this case on 3.6.1997, she made a statement (Ex. PE) beore him that she had kept concealed 5 bags of poppy husk powder in the western corner of her residential room on 18.2.1997 and she had run away from her house the moment she came to know that a raid was to be conducted. It is the admitted case of the prosecution that the recovery had already been effected on 18.2.1997 itself and in this eventuality, the statement Ex. PE looses its legal entity being inadmissible in evidence and it has to be excluded because in pursuance of the said statement, no recovery was effected. The other part of the statement which leads to confession, can also not legally be taken into account being hit by Sections 25 an 26 of the Indian Evidence Act. For that, reference to the statement of Ravi Dutt (PW-4) is necessary. He has stated :.....I arrested the accused. The accused disclosed that she had kept concealed five bags of poppy husk powder in the western corner of her residential room on 18.2.1997 when she came to know that police was coming for raid, she ran away from the house. I correctly recorded her disclosure statement Ex. He has stated :.....I arrested the accused. The accused disclosed that she had kept concealed five bags of poppy husk powder in the western corner of her residential room on 18.2.1997 when she came to know that police was coming for raid, she ran away from the house. I correctly recorded her disclosure statement Ex. PE attested by H.C. Gurmel Singh and lady Head Constable Surinder Kaur. Disclosure statement Ex. PE was read over to the accused and after admitting the same to be correct, she had put her thumb impression in token of its correctness. I had also conducted her personal search through Lady H.C. Surinder Kaur but nothing was recovered from her and separate memo Ex. PT was prepared to this effect which was thumb-marked by the accused. The accused was locked up in the police lock up on that very day". The judgment cited by the learned counsel for the appellant in Prabhoos case (supra) is also applicable to the present case on this score. 14. The argument advanced by the learned A.A.G. Punjab to the effect that the recovery has been effected in the presence of D.S.P. Charanjit Singh, and as such it could not be doubted in any manner, falls on the ground after reading the statement of ASI Ram Chand (PW-3) minutely in which he has stated that before the arrival of D.S.P. Charanjit Singh, the house of the accused was already searched and that the 5 bags of poppy husk were also detected by them before the arrival of the D.S.P. and thereafter the D.S.P. took the investigation in his hands. Simply that the police officials had no axe to grind against the appellant can be taken in favour of prosecution, if otherwise the prosecution fails on account of basic infirmities as stated above. 15. No other point has been urged by the either side. 16. Consequently the present appeal is allowed and the appellant is acquitted of the charge framed againt her. In case the appellant is in custody, she would be released forthwith, if not required in any other case.