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2002 DIGILAW 703 (PNJ)

Budha Singh v. State Of Punjab

2002-07-23

HEMANT GUPTA, R.L.ANAND

body2002
Judgment R.L.Anand, J. 1. By this judgment we dispose of three Criminal Appeals - No. 346-Db-1995 titled Budha Singh & another v. The State of Punjab & another, No. 361-DB-1995 titled Balbir Singh @ Bhapa v. Union of India & another, and No. 446-DB-1995 titled Virsa Singh v. Intelligence Officer, Directorate of Revenue Intelligence (Regional Unit), M-I/C, Green Avenue, Amritsar, as all the three appeals have arisen from the judgment and order dated 28.7.1995 passed by Addl. Sessions Judge, Amritsar, who convicted Budha Singh and Virsa Singh under Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to `the Act) and Ranbir Singh alias Kakku and Balbir Singh alias Bhapa under Section 23 of the Act and sentenced each one of them to undergo R.I. for 15 years and to pay a fine of Rs. 1 lac. In default of payment of fine each one of the appellants was directed to further undergo R.I. for three years. 2. The appellant-accused Virsa Singh, Budha Singh, Balbir Singh and Ranbir Singh were charge-sheeted under Sections 8, 21, 23, 24, 25 and 29 of the Act. The prosecution allegations are that on 13.10.1988, Shri R.S. Bhullar, Second-in-Command, 84th Battalion, B.S.F., Gurdaspur, received a secret information that heroin had been smuggled by Virsa Singh, Balbir Singh alias Bhapa, Ranbir Singh alias Kakku, all residents of village Kakkar and had concealed and buried it in the fields of Budha Singh. Shri Ranjit Singh, Assistant Director, D.R.I., Sh. R.S. Bhullar, Joint Asstt. Director (G), Naresh Chander, Inspector, Tarsem Singh HC, Chuni Lal Inspector, Sukhdev Singh SI, Sh. B.S. Risht, Assistant Director, Avtar Singh and others formed a raiding party on 14.10.1988 and went to the border out post, Kakkar. The raiding party was divided into four groups and took their different positions on different directions. They had also taken the secret informer along with them. He was made to stand at some distance to give signal to the raiding party. The secret informer gave a signal to the raiding party at 6.20 p.m. All the Officers saw Virsa Singh and Budha Singh digging earth with a spade from a distance of 50/60 yards from a binoculars. Budha Singh was standing by the side of the corner of the fields from where Virsa Singh started digging the earth with a spade. The secret informer gave a signal to the raiding party at 6.20 p.m. All the Officers saw Virsa Singh and Budha Singh digging earth with a spade from a distance of 50/60 yards from a binoculars. Budha Singh was standing by the side of the corner of the fields from where Virsa Singh started digging the earth with a spade. As soon as Virsa Singh and Budha Singh saw the raiding party, they tried to run away. Budha Singh was over-powered by Chuni Lal and Sukhdev Singh officials of the B.S.F. A portion of gunny bag became visible from the place from where Virsa Singh was digging the earth. Shri R.S. Bhullar directed Tarsem Singh HC and Inspector Naresh Chander to dig out the earth more. Hardly they dig the earth, they saw two gunny bags lying concealed under the ground. Two gunny bags were containing 50 packets each of heroin. The packets were covered with a white cloth and certain writing in Urdu had been written on the side packets. SABBAR 75 was written on 19 packets, two packets were having the mark of `GUL 8900, three packets were marked with `MEER MUT-3, 53 packets were bearing mark of `TWAB-AN-03 and the remaining 23 packets had words `TWAB DOHAM-3. The total weight of heroin was found to be 100 kgs. The head of the raiding party drew the samples out of the recovered quantity and made sealed parcels thereof. The parcels were taken into possession vide recovery memo Ex.PA attested by Shri R.S. Bhullar and other officials. Rs. 5,905/- were recovered from the personal search of Virsa Singh, besides two chits - one bearing the words `Baljit Gill Bombay besides the address of that person and on the other chit No. 8725299/Zila R- Bat was written. These chits Ex.PB and Ex.PC were attested by Naresh Chander Inspector and signed by Virsa Singh and Budha Singh and were taken into possession vide recovery memo Ex.PD. The currency notes seized from the two accused were taken into possession vide recovery memo Ex.PE attested by Kehar Singh and Satnam Singh. 3. After effecting the recovery, residential houses of Budha Singh, Virsa Singh and Balbir Singh were searched, but nothing was recovered. The currency notes seized from the two accused were taken into possession vide recovery memo Ex.PE attested by Kehar Singh and Satnam Singh. 3. After effecting the recovery, residential houses of Budha Singh, Virsa Singh and Balbir Singh were searched, but nothing was recovered. During the course of investigation, statements Ex.PH of Budha Singh and Ex.PJ of Virsa Singh were also recorded wherein they deposed before the custom officers that Balbir Singh and Ranbir Singh had been bringing heroin from Pakistan for keeping it in the custody of Virsa Singh and Budha Singh for its onwards transmission to Bombay market. 4. The samples of heroin recovered from the packets were sent to the office of the Chemical Examiner who gave his report Ex.PK and came to the conclusion that the samples contained Diamorphine. Resultantly, a complaint was filed in the Court of Assistant Collector against the accused under Sections 8, 21, 23, 24, 25 and 29 of the Act. 5. Copies of the documents relied upon by the prosecution were supplied to the accused and charges were framed under the said provisions. The charges were read over and explained to the accused to which they pleaded not guilty and claimed trial. 6. Before we proceed further, we must say that the charge was not happily framed by trial Court as in our considered opinion the charge should have been framed in accordance with the provisions of the Criminal Procedure Code as contained in the Chapter of charge and the trial court ought to have framed separate charges under Sections 8, 21, 23, 24, 25 and 29 of the Act clearly indicating how the prosecution alleges that the accused had committed the offence under those sections. However, we are further of the view that if a charge has not been properly framed against the appellants, it will not give any benefit to them because they have not been misled by the charge framed by the trial Court and they have got full opportunity to rebut the evidence of the prosecution. 7. In order to prove the charge, the prosecution examined PW1 Shri R.S. Bhullar, Second-in-Command, 84, B., B.S.F., PW2 Naresh Chander, Inspector, PW3 Avtar Singh Inspector Customs, PW4 Satnam Singh, PW5 Ranjit Singh, Deputy Director, PW6 Chuni Lal, Asstt. Collector and also tendered in evidence report of the Chemical Examiner Ex.PK. 8. 7. In order to prove the charge, the prosecution examined PW1 Shri R.S. Bhullar, Second-in-Command, 84, B., B.S.F., PW2 Naresh Chander, Inspector, PW3 Avtar Singh Inspector Customs, PW4 Satnam Singh, PW5 Ranjit Singh, Deputy Director, PW6 Chuni Lal, Asstt. Collector and also tendered in evidence report of the Chemical Examiner Ex.PK. 8. On the closure of prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C., They denied the allegations of the prosecution and pleaded innocence. They examined DW1 Rakhwant Singh and also placed on record copy of khasra girdawri Ex.DC. 9. The learned trial court relied the prosecution story and convicted and sentenced the appellants in the manner as stated above and aggrieved by their conviction and sentence the present appeals. 10. Before we deal with the submissions raised by the learned counsel for the parties, we may also make a mention that the recovery in this case was effected as back as on 13.11.1988 and the conviction was recorded on 28.7.1975. We were told during the course of submissions that the appellants had already suffered the substantive sentence awarded to them. They were not in a position to pay the fine, as a result of which they are serving the sentence in default of payment of fine. Be that as it may, we have to examine the case of the prosecution independently. 11. The first submission raised by the learned counsel for the appellants is that the case property in this case has not been produced by the prosecution before the trial Court, therefore, the benefit of doubt should be given to the appellants. The submission raised by the learned counsel for the appellants looks to be very alluring at the first instance but on our deeper scrutiny we are of the considered opinion that this is devoid of any merit. We apprehend and hope that the prosecution in such like cases should have preserved and produced the case property at the time of trial. But if the case property is not produced at the trial, it is not fatal always. We all know that the production of the case property in court is a corroborative piece of evidence to the eye witness account. But if the case property is not produced at the trial, it is not fatal always. We all know that the production of the case property in court is a corroborative piece of evidence to the eye witness account. If we examine the statement of PW1 Shri R.S. Bhullar, who was heading the raiding party there is no manner of doubt that the incriminating article in the shape of heroin was recovered from the gunny bags. In this regard we can refer the statement of Shri Bhullar who deposed that independent witnesses were summoned from the village. Satnam Singh Lambardar and Kehar Singh arrived there. They were also associated in the raiding party. On the search of the bags, 50 packets from each gunny bag, in all 100 packets, were recovered. Those packets were already covered with white cloth and certain writing in Urdu was written. This witness further deposed that the samples were drawn from these packets and all gave positive test of Dia-morphine i.e. heroin. The samples and the packets were separately sealed with the seal mark DRI and were taken into possession vide recovery memo Ex.PA. Shri Bhullar is a public servant. He has no animus against the accused and, therefore, we are inclined to accept his statement that 100 packets of heroin were recovered from the fields. We are also inclined to believe the statement of Shri Bhullar when he deposed that he and other members of the party from a distance of 50/60 yards saw that Virsa Singh had been digging the earth with the help of a spade in corner of the field where mustard crop was standing and Budha Singh was also standing at the place where Virsa Singh was digging the earth. We are also inclined to believe the statement of this witness that Virsa Singh tried to run away but he was overpowered by him and Ranjit Singh and that Budha Singh was overpowered by Chuni Lal and Sukhdev Singh. We are dealing with an offence for the recovery of narcotic drugs. Moment we believe the statement of PW1 Shri R.S. Bhullar that the recovered article was heroin, we repel the first argument raised by the learned counsel for the appellants that the case of the prosecution should be rejected on the ground that the case property has not been produced. Moment we believe the statement of PW1 Shri R.S. Bhullar that the recovered article was heroin, we repel the first argument raised by the learned counsel for the appellants that the case of the prosecution should be rejected on the ground that the case property has not been produced. Rather, it was the case of the accused before the trial Court that 100 packets of brown sugar had been recovered from Satnam Singh and others from their truck but they were let off for extraneous reasons and that the brown sugar seized from Satnam Singh had been planted upon the present appellants, meaning thereby that the recovered article was brown sugar. It is true that suggestions are not the proof but if those suggestions are indicative of the fact that with regard to the quantity and quality of a particular incriminating material, we can certainly take the assistance of these suggestions for the purpose of determining whether the story of the prosecution appears to be correct or not. Shri Bhullar (PW1) has categorically stated that 100 packets recovered underneath the ground were being dug by Virsa Singh in the presence of Budha Singh. Therefore, we are inclined to hold that the incriminating article was heroin and we are not inclined to give any benefit to the accused-appellants when it was argued by the learned counsel for the appellants that the case property has not been produced at the time of trial. 12. The learned counsel for the appellants submitted that the case law relied upon by the trial Court reported as Balraj Singh v. State of Punjab AIR 1982 Criminal Law Journal 1374 is distinguishable on facts, but we are not inclined to accept this contention for the main reason that the production of the case property is neither start nor end of a criminal trial. If the case property is not produced for any particular reason, the story of the prosecution cannot be thrown away when the eye witnesses testimony fully inspires confidence in the mind of the Court because the charge is of the conscious possession which can be proved otherwise by the production of the case property. Let us develop this point. If the case property is not produced for any particular reason, the story of the prosecution cannot be thrown away when the eye witnesses testimony fully inspires confidence in the mind of the Court because the charge is of the conscious possession which can be proved otherwise by the production of the case property. Let us develop this point. It is just possible that while the case property was in the custody of police or the Investigating Agency, it might have been destroyed, say in fire or flood, then in such a situation how the accused can take benefit on account of the non-production of the case property. In criminal trial we always see the credibility and acceptability of the prosecution witnesses whether their statements have proved a particular fact or not. If we read the statement of PW1 Shri R.S. Bhullar and other prosecution witnesses, who were the member of the raiding party, we are left with no manner of doubt that 100 packets of heroin was recovered at the spot when Virsa Singh and Budha Singh were present. Ranbir Singh is none else but the son of Budha Singh. 13. It was then submitted on behalf of the appellants that it is not established that the appellants were in conscious possession of the incriminating article as the recovery has been effected from the open fields and not under Section 27 of the Indian Evidence Act. The counsel submitted that as per the khasra girdawri Ex.DC the land mentioned therein is in the ownership and possession of Singara Singh, Budha Singh and others. At the most it will be considered as a joint possession and in these circumstances the benefit of doubt must go to the appellants. We have considered this submission and are of the considered opinion that this contention is without any merit. The case of the prosecution is that the raiding party spotted two persons Budha Singh and Virsa Singh. Virsa Singh was carrying a spade, while Budha Singh was standing by his side. Virsa Singh was digging the earth. The bags were inside the ground. Those were visible to a naked eye. On digging earth some portion of the bags came out. The very fact that Virsa Singh was digging the earth with the help of a spade while Budha Singh was standing on the place show their conscious possession with regard to the heroin. The bags were inside the ground. Those were visible to a naked eye. On digging earth some portion of the bags came out. The very fact that Virsa Singh was digging the earth with the help of a spade while Budha Singh was standing on the place show their conscious possession with regard to the heroin. 14. It was then submitted on behalf of the appellants that the statements of Budha Singh and Virsa Singh Ex.PJ and Ex.PH/1 respectively and the statement Ex.PG/2 of Satnam Singh are not admissible vis-a-vis Balbir Singh and Ranbir Singh. It was argued that this is an offence under the Narcotic Drugs & Psychotropic Substances Act which has to be investigated by the officers who are so authorised in this regard by the Act and the statement recorded by the Directorate Revenue Officials is not admissible. It was submitted that at least the case of Balbir Singh and Ranbir Singh is distinguishable from that of Budha Singh and Virsa Singh as they were not arrested at the spot. We are not convinced with this submission also. As per the version of the prosecution, Budha Singh and Virsa Singh were apprehended. Their statements were recorded by the D.R.I. people, who are not police officers. As per the statement of Budha Singh, he has two sons by the name of Balraj Singh and Ranbir Singh. They own 20 killas of land. He also admits that Ranbir Singh resides with him and he knows that his son does the smuggling activities and on several occasions he has gone to Pakistan by crossing over the border. It has also come in the statement of Budha Singh that his son Ranbir Singh, Virsa Singh and Balbir Singh jointly do the work of smuggling and smuggle the goods from Pakistan. It has further been stated by this witness that as and when they bring the smuggled things, they bury the same in his land. He even stopped on several occasions his son Ranbir Singh from indulging in these activities but he did not hear to his advice. Few days back his son along with Virsa Singh and Balbir Singh had gone to Pakistan and had brought 100 packets of heroin from there and put those articles into two bags and had buried in his fields after digging the earth and that it remained buried for few days. Few days back his son along with Virsa Singh and Balbir Singh had gone to Pakistan and had brought 100 packets of heroin from there and put those articles into two bags and had buried in his fields after digging the earth and that it remained buried for few days. On the previous day in the evening Virsa Singh came to his house and he took him along. Virsa Singh further picked up a spade and asked him to accompany him to the place where the heroin was lying buried. Budha Singh was also informed that after digging out the heroin it has to be smuggled to Bombay. Also he was informed that other two accused had gone to arrange a truck and they can return in the evening at any time. In pursuance thereof Virsa Singh started digging earth while Budha Singh was asked to keep a watch. When the earth was hardly dug, they noticed that they have been encircled by some officers who disclosed their identity as D.R.I./B.S.F. people. They were apprehended in the presence of Kehar Singh and Satnam Singh residents of village Kakkar. Thus the reading of the statement of Budha Singh would show that all the four persons were in conscious possession of heroin. Each one independently knew that the heroin has been buried in the pit in the fields. This was the reason that Budha Singh accompanied Virsa Singh. From his statement it is also established that Ranbir Singh and Balbir Singh along with Virsa Singh have been indulging in the smuggling activities and they brought the heroin from Pakistan and with the connivance of Budha Singh they buried it inside the ground. The statement of Virsa Singh Ex.PJ which was recorded by D.R.I. people further establishes the story of the prosecution. Irrespective of the fact that Ranbir Singh and Balbir Singh were not apprehended at the spot, their conscious possession is established when they along with Virsa Singh buried in a pit 100 packets of heroin. 15. We are concerned whether we should believe the statements of the prosecution witnesses or not. The statement of PW1 Shri R.S. Bhullar coupled with the statement of PW3 Avtar Singh fully establishes that 100 Kgs. of heroin was recovered from the physical custody of Virsa Singh and Budha Singh and from the conscious possession of Balbir Singh and Ranbir Singh. We are concerned whether we should believe the statements of the prosecution witnesses or not. The statement of PW1 Shri R.S. Bhullar coupled with the statement of PW3 Avtar Singh fully establishes that 100 Kgs. of heroin was recovered from the physical custody of Virsa Singh and Budha Singh and from the conscious possession of Balbir Singh and Ranbir Singh. We are further of the view that Budha Singh gave a voluntary statement without any duress and this is an admissible piece of evidence as it has not been recorded by a police officer under Section 25 of the Indian Evidence Act. The customs and B.S.F. officers cannot be equated with the police officers for the purpose of Section 25 of the Indian Evidence Act. 16. It was then submitted that the conviction cannot be based on the testimony of the official witnesses. Satnam Singh, independent witness, has not supported the version of the prosecution. The submission raised by the learned counsel cannot be accepted. The prosecution took the courage to put Satnam Singh in the witness-box. Rather, the statement of Satnam Singh was also recorded by the investigating agency at the spot. If Satnam Singh has been won over by the accused being a co-villager, we cannot give benefit to the accused for this purpose. Moreover, we have to examine the real realities of the life in the modern society. Satnam Singh being a co-villager of the appellants would always feel shy in assisting the prosecution. Even if we ignore Satnam Singh; we have ample evidence on the record that Virsa Singh and Budha Singh were arrested at the spot with the huge recovery which cannot be planted by the Investigating Officer from personal resources. From the statement of these accused it is established that this heroin was brought by Balbir Singh and Virsa Singh from Pakistan in connivance with Budha Singh; it was buried underneath the ground and was recovered when Budha Singh and Virsa Singh were trying to dispose it of to the knowledge of Balbir Singh and Ranbir Singh. The testimony of Shri Bhullar finds corroboration from the statement of PW2 Naresh Chander, PW3 Avtar Singh, PW5 Ranjit Singh, besides from the statement of PW6 Chuni Lal. All these witnesses have deposed with one voice with regard to the recovery and the samples. The testimony of Shri Bhullar finds corroboration from the statement of PW2 Naresh Chander, PW3 Avtar Singh, PW5 Ranjit Singh, besides from the statement of PW6 Chuni Lal. All these witnesses have deposed with one voice with regard to the recovery and the samples. From the report of the Chemical Examiner Ex.PK it stands established that the samples were containing Dia- morphine which is the other name of heroin. The statements of Budha Singh and Virsa Singh can be used against Ranbir Singh and Balbir Singh which establish that they brought the heroin from Pakistan and handed over the same to the custody of Budha Singh. 17. The learned counsel appearing on behalf of Virsa Singh appellant submitted that his client could not be convicted for the offence under Section 25 of the Act as the ingredients of Section 25 are not applicable to him. We agree with this submission to a limited extent but we are of the opinion that his client can always be convicted for the offence under Section 21 and 23 of the Act. There appears to be clerical mistake on the part of the trial Court when it recorded conviction against Virsa Singh under Section 25 of the Act. In fact, it wanted to record the conviction under Sections 21 and wanted to acquit under Section 25, but in the order this mistake has taken place which we would like to rectify as no prejudice has been caused to any one of the appellants. Therefore, we record the conviction against Budha Singh and Virsa Singh under Section 21 and against Ranbir Singh and Balbir Singh under Section 23 of the Act. All of them are directed to undergo R.I. for 15 years and to pay a fine of Rs. 1 lac each and in default of payment of fine each one of them shall undergo R.I. for a period of 1-1/2 years. The case property shall stand confiscated to the State and shall be destroyed according to rules.