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2002 DIGILAW 681 (PNJ)

State Of Punjab v. Dhara Singh

2002-07-18

HEMANT GUPTA, R.L.ANAND

body2002
Judgment Hemant Gupta, J. 1. State of Punjab has filed the present appeal against the judgment of acquittal dated 21.10.1993 passed by Additional Sessions Judge, Ferozepur acquitting the respondent herein, in case FIR No. 188 of 15.5.1988 under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the Act) registered at Police Station, Sadar Ferozepur. 2. The prosecution has sought the trial of respondent on the allegations that on 15.5.1988 in the area of Hussainiwala, respondent Dhara Singh was found in possession of 24 packets of charas each weighing one kilogram and on the same day accused was also found in possession of 7 bags each containing 22 packets of 1 kilogram each of charas without any licence or permit. It was stated that Harbhajan Chand S.P. (O) received a secret information on 15.5.1998 that the accused and some other persons were indulging in smuggling of charas and arms from Pakistan to India. The informant had informed that the accused used to send heroin, charas and arms. Shri Harbhajan Chand was also informed that in case raid is carried out at the house of accused Dhara Singh, he could be apprehended with heroin, charas and arms. Finding the said information reliable, Shri Harbhajan Chand S.P. (O) sent ruqqa Ex.PF at 12.30 a.m. and on the basis of said ruqqa, present case was registered. 3. Shri Harbhajan Chand S.P. (O) constituted a raiding party including Inspector Rupinderpal Singh and Surinder Singh, Reader to S.P. (O) and a naka was held near Hussainiwala bridge. At about mid night at 2-3 a.m. accused Dhara Singh was seen coming from Indo Pak Border carrying gunny bag on his head. Accused was apprehended and Shri Harbhajan Chand conducted search and 24 packets of charas were recovered from the gunny bag. The samples of 10 gram of charas were separated from all the 48 packets as 24 packets consisted of 2 parts each. The samples and the packets containing remaining charas were separately sealed with seal of Harbhajan Chand bearing letters HBC and taken into possession. It is further the case of the prosecution that on interrogation, the accused made a disclosure statement he had kept concealed and buried 7 bags of charas and 50 rounds of A.K. 47 in his turriwala cattle shed and offered to get the same recovered. It is further the case of the prosecution that on interrogation, the accused made a disclosure statement he had kept concealed and buried 7 bags of charas and 50 rounds of A.K. 47 in his turriwala cattle shed and offered to get the same recovered. This disclosure statement was reduced into writing and produced on record as mark-A on the basis of such disclosure statement, 7 bags of charas were recovered vide recovery memo Ex.PE containing 22 packets in each bag. 4. On the basis of these allegations, the accused was put to trial for an offence under section 15 of the Act. 5. Shri Harbhajan Chand died before he could appear as a witness, however, the prosecution examined D.S.P. Surinder Singh PW1 and Shri Rupinderpal Singh, Reader to S.P.(O) to prove the case of the prosecution as well as produced Ravinder Pal Singh, the then SHO, Police Station, Sadar, Ferozepur. The accused was examined under section 313 Cr.PC, where he denied all the prosecution allegations and in his defence examined Tarsem Lal Gulati, Junior Engineer, Hussainiwala Head Works, Ferozepur as DW 1 and also tendered into evidence certified copy of judgment dated 11.1.1992 passed by Addl. Judge, Designated Court, Ferozepur Ex.DA and copy of judgment dated 16.9.1993 passed by Addl. Sessions Judge, Ferozepur, Ex.DB. 6. The Trial Court after considering evidence on record passed an order of acquittal of respondent holding that the prosecution has failed to prove the writing work at the spot of recovery and the failure of the prosecution to produce S.P. (O) in the witness box deprives the accused of his valuable right to cross-examine the material witness. The trial Court also found that the prosecution has failed to prove that the case property was not tampered with as the case property was not retained in the possession of SHO nor any order was received from the Ilaqa Magistrate about the disposal of the case property. The learned trial court also found that no intimation regarding grounds of arrest was intimated as contemplated under Section 52 of the Act or to immediate superior officials under Section 57 of the Act. The court was of the opinion that though the provisions of Sections 52 and 57 of the Act are considered directory in nature but the provisions contained in foregoing sections cannot be lightly ignored. 7. The court was of the opinion that though the provisions of Sections 52 and 57 of the Act are considered directory in nature but the provisions contained in foregoing sections cannot be lightly ignored. 7. We have heard Shri S.S. Randhawa, Deputy Advocate General Punjab for the appellant-State of Punjab and Shri S.C. Chhabra, Advocate, learned counsel for the respondent and with their assistance have gone through the records of the case carefully. On perusal of the record we do not find any reason to take a different view than the one taken by the trial court. 8. It is the positive case of the prosecution that they had received a secret information regarding carrying of narcotics by the accused and therefore, a raiding party was organised. Inspite of such information, the prosecution had failed to associate any independent person at the time of apprehension of the accused which puts the prosecution story to suspicion. Even the disclosure statement mark-A which is purported to have been made on the next day is also not made in the presence of independent witness nor the recoveries allegedly in consequent to such disclosure statement are made in the presence of independent witnesses. Even if we assume that no independent witness could be made available during night hours in view of the curfew imposed by the District magistrate within a radius of 6 kilometers of Indo pak Border, there is no explanation for not associating any independent witness in the matter of recovery of 7 bags containing 22 packets of charas in pursuance of the disclosure statement next day. 9. The prosecution has failed to prove the deposit of case property with MHC of Police Station. The case property was not retained in the custody of Station House Officer nor any order was received from the Ilaqa Magistrate for the disposal of the case property thereby putting doubt on the veracity of the prosecution about the recoveries effected from the respondent. The factum of acquittal of the accused vide judgment dated 11.1.1992 Ex. DA by Additional Sessions Judge, Designated Court, Ferozepur in the case registered in respect of possession of A.K. 47 in pursuance of some disclosure statement mark-A, goes a long way to demolish the story set up by the prosecution as well. The factum of acquittal of the accused vide judgment dated 11.1.1992 Ex. DA by Additional Sessions Judge, Designated Court, Ferozepur in the case registered in respect of possession of A.K. 47 in pursuance of some disclosure statement mark-A, goes a long way to demolish the story set up by the prosecution as well. Keeping in view the above facts and circumstances of the case, we do not find any reason to take a different view than the one taken by the trial Court. Consequently, the appeal is dismissed.