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2003 DIGILAW 1015 (PNJ)

Karnail Singh v. State of Punjab

2003-07-25

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Karnail Singh son of Joginder Singh, the appellant herein, stands convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act"), vide impugned judgment dated 6.7.1990 passed by the learned Additional Sessions Judge, Kapurthala and has been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac, in default of payment of fine to further undergo RI for one year. Aggrieved by the impugned judgment, he has preferred the present appeal. 2. In short, the case of the prosecution is that on 2.5.1988, Inspector Hoshiar Singh PW2 along with SI Lekh Raj, Head Constable Balkar Singh and other police officials was going from Sultanpur Lodhi to village Sechan. Gurbachan Singh PW (given up having been won over) was also joined and then a raid was conducted in the house of the present appellant. The appellant was arrested and interrogated in which he gave a disclosure statement that he had concealed six bags of poppy husk in the khola of his old house and get the same recovered. Accordingly, his disclosure statement Ex. PA was recorded which was attested by SI Lekh Raj PW1 and Gurbachan Singh PW2 and thereafter he allegedly got recovered six bags of poppy husk in pursuance of his disclosure statement. Each bag was containing 40 kgs. poppy husk. 250 grams poppy husk was taken out and the remaining poppy husk were put into separate parcels, duly sealed and were taken into possession vide recovery memo Ex. PB. A ruqa Ex. PC was sent to the Police Station for registration of the case, on the basis of which formal FIR Ex. PC/1 was recorded in Police Station, Sultanpur Lodhi under Section 15 of the Act. After completion of investigation, the appellant was challaned in the present case. A charge under Section 15 of the Act was framed against the appellant by the trial Court. 3. In support to the prosecution case, SI Lekh Raj and Inspector Hoshiar Singh, the two alleged eye witnesses to the recovery have stepped into the witness box. Besides this, the affidavits Ex. PF and Ex. PG were also tendered by the official witnesses proving the link evidence. As stated above, Gurbachan Singh, the independent witness was given up. 4. 3. In support to the prosecution case, SI Lekh Raj and Inspector Hoshiar Singh, the two alleged eye witnesses to the recovery have stepped into the witness box. Besides this, the affidavits Ex. PF and Ex. PG were also tendered by the official witnesses proving the link evidence. As stated above, Gurbachan Singh, the independent witness was given up. 4. The appellant denied all the allegations alleged against him and claimed that he has been falsely implicated in this case on the ground that his relative Shamsher Singh was in fact killed in a false encounter by the C.R.P.F. and he was pursuing the case of Shamsher Singh and on that count he was falsely implicated in this case. He also produced Balkar Singh of Village Toti to strengthen his defence as DW1. One Jiwan Dass of postal department of Sultanpur Lodhi was also produced as DW2, who produced Ex. DA, the telegram dated 12.4.1988. Gurbachan Singh, Mukhtiar Singh and Balbir Singh Head Constable were also produced as DW3, DW4 and DW5 respectively to the effect that Shamsher Singh was killed by C.R.P.F. in village Latianwala and that Karnial Singh was pursuing his case. In this respect, one application Ex. D3 (duly proved by Balbir Singh, Head Constable DW5) sent to the Senior Superintendent of Police, Kapurthala was also proved. The telegrams Ex. D4 and Ex. D5 were also adduced in defence by the appellant in this regard. 5. After considering the entire evidence, the learned trial Court has convicted and sentenced the appellant as indicated above. Consequently, the present appeal. 6. I have heard Mr. R.S. Cheema, learned Senior counsel for the appellant and Mr. G.S. Hooda, learned Assistant General, Punjab. With their assistance I have also gone through the entire record of the case. 7. Mr. Cheema has raised the following arguments : (1) The story as set up by the prosecution does not appear to be probable on the face of it and that the appellant has in fact been falsely implicated in the present case on the basis of disclosure statement Ex. PA allegedly recorded by the prosecution. 8. 7. Mr. Cheema has raised the following arguments : (1) The story as set up by the prosecution does not appear to be probable on the face of it and that the appellant has in fact been falsely implicated in the present case on the basis of disclosure statement Ex. PA allegedly recorded by the prosecution. 8. Developing the arguments in this regard, the learned counsel contended that there was no occasion with the prosecution to record the statement of the appellant under Section 27 of the Indian Evidence Act as neither the appellant was accused in any case nor he was to be interrogated for the purposes of any case and as such the provisions of Section 27 of the Indian Evidence Act could not possibly be applicable to the recovery of the poppy husk allegedly made from the khola of old house of the appellant. According to the learned counsel, this is all farce and has to be disbelieved in toto. (2) There is non-compliance of Section 100(4) of the Code of Criminal Procedure in the present case, which also demolishes the case of the prosecution so far as the alleged recovery is concerned. The learned counsel contends that so far as Gurbachan Singh, the so-called eye witness is concerned, he was of village Sechan whereas the present appellant is of village Latianwala and the distance between the two villages is about 5 kms. Before searching the khola of old house of the appellant, the Investigating Officer should have called upon two or more independent and respectable inhabitants of the locality so as to make the recovery undoubtful. The non-compliance of Section 100(4) of Criminal Procedure Code in the present case would make the search highly doubtful. Compliance of Section 100(4) Criminal Procedure Code is also necessary even where the search is conducted in pursuance of disclosure statement made by the accused. In support of his contentions, the learned counsel relies upon the judgment of the Constitutional Bench of the Honble Apex Court rendered in State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 (SC) and of this Court rendered in Prem Chand v. State of Punjab, 1984(2) Criminal Law Journal 1131. Arguing further in this regard, the learned counsel has also relied upon paras No. 12 and 13 of the celebrated (sic). Arguing further in this regard, the learned counsel has also relied upon paras No. 12 and 13 of the celebrated (sic). (3) There is non-compliance of Section 42(1) and (2) of the Act and for this reason also the appellant deserves acquittal. 9. In this regard, the learned counsel has read out the statement of Inspector Hoshiar Singh, PW2, the Investigating Officer of the present case, who has deposed that he had received a secret information against the present appellant one or two days earlier and he did not send the information to the superior officer. The learned counsel has also referred to the other part of the statement of his witness in which he has stated that he did not send the information to the superior officer even after recording a disclosure statement Ex. PA of the appellant. According to the learned counsel, this non-compliance is also fatal to the prosecution and vitiates the entire investigation. In support of his argument, he has relied upon State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 736, Mohinder Kumar v. State of Panji Goa, 1998(8) Supreme Court Cases 655 and Abdul Rashid Ibrahim Mansuri v. State of Gujarat, JT 2000(1) SC 471. (4) The place of alleged recovery is open to all and sundry and that the appellant cannot be said to be in the conscious possession of the alleged contraband. (5) That the defence as set up by the appellant was most probable and the evidence adduced by him in order to strengthen his defence speaks volume of the false implication of the present appellant. 10. Relying very heavily on the aforesaid arguments, the learned counsel prays for acquittal. 11. On the other hand, Mr. Hooda, appearing for the State of Punjab has vehemently contended that the charge against the appellant has been proved beyond any reasonable doubt as the recovery had been effeted in this case in pursuance of the disclosure statement of the appellant which cannot be doubted. He then contended that the recovery was effected in the presence of one Gurbachan Singh of village Sechan and simply that he had been given up by the prosecution as having been won over, this fact itself would not be taken against the prosecution. Mr. He then contended that the recovery was effected in the presence of one Gurbachan Singh of village Sechan and simply that he had been given up by the prosecution as having been won over, this fact itself would not be taken against the prosecution. Mr. Hooda further contends that if even there is non-compliance of Sections 42(1) and (2) of the Act, this would not vitiate the trial as it has not caused any prejudice to the appellant. Regarding defence of the appellant, the learned State counsel has submitted that it does not render any help to him. 12. After hearing the rial contentions of both the sides, I am of the considered view that the appellant deserves acquittal in this case. My reasoning is set out as under :- 13. In order to avoid lengthy discussion, I am clubbing Section 27 of the Indian Evidence Act, Section 100(4) of Criminal Procedure Code and the point of conscious possession. Apparently there appears to be no justification with Inspector Hoshiar Singh PW2 which necessitated the recording of the statement of the present appellant under Section 27 of the Indian Evidence Act. Admittedly, the appellant was not to be interrogated in any case on 2.5.1988. Concededly, he was not an accused in any case as well and as such there was no occasion with Inspector Hoshiar Singh to record the disclosure statement Ex. PA of the appellant under Section 27 of the Indian Evidence Act. 14. In my view, the compliance of Section 100(4) of Criminal Procedure Code was not carried out in this case. No independent or respectable inhabitant of the lcoality was called upon by Inspector Hoshiar Singh PW2 in this case. The so called independent witness namely, Gurbachan Singh was imported in this case to show sanctity to the search. This witness is from a different village (Sechan). He was, however, given by the prosecution. The two judgments Prem Chand v. State of Punjab and State of Punjab v. Baldev Singh (supra) cited by Mr. Cheema support the contentions advanced on behalf of the appellant. This witness is from a different village (Sechan). He was, however, given by the prosecution. The two judgments Prem Chand v. State of Punjab and State of Punjab v. Baldev Singh (supra) cited by Mr. Cheema support the contentions advanced on behalf of the appellant. Dealing with the expression "in so far as they are not inconsistent with the provisions of the Act", their Lordships of the Apex Court have been held in State of Punjab v. Baldev Singh that the provisions of Sections 100 and 165 Criminal Procedure Code are not inconsistent with the provisions of the NDPS Act and are applicable for effecting search, seizure or arrest under the NDPS Act. Admittedly, there is a complete go-bye to Section 100 of Criminal Procedure Code Even otherwise the place where the recovery was effected is accessible to all. I have minutely seen the rough site plan Ex. PD prepared by Inspector Hoshiar Singh PW2 in this respect. From this all the recovery seems to be highly doubtful. 15. So far as non-compliance of Section 42(1) and (2) of the Act is concerned, I am of the considered view that in the present case, the non- compliance of Section 42(1) of the Act has certainly caused prejudice to the appellant. The action of the officer (Inspector Hoshiar singh PW2) becomes a suspect. He has categorically stated that he got the information one or two days earlier. He has again categorically stated that he did not send the information to the superior officer. The relevant portion of his cross examination is reproduced for ready reference : " .............. I was having a secret information against the accused. I got information one or two days earlier. I did not send the information to the superior officer after recording the disclosure statement of the accused......." 16. This in my view amounts to glaring non-compliance for which the prosecution has no explanation. JT 2000(1) Supreme Court 471 (supra) is totally applicable to the facts of the present case. The appellant deserves acquittal on this count also. 17. Since on account of my aforesaid discussion, I am doubting the prosecution case, there is no need of entering into further discussion so far as defence set up by the appellant is concerned. 18. No other point has been urged before me. The appellant deserves acquittal on this count also. 17. Since on account of my aforesaid discussion, I am doubting the prosecution case, there is no need of entering into further discussion so far as defence set up by the appellant is concerned. 18. No other point has been urged before me. The net result is that the prosecution has not been able to prove the charge against the appellant beyond any reasonable shadow of doubt and as such the appellant stands acquitted. The appeal is hereby allowed. The appellant is discharged of the bail bond furnished by him during the pendency of the appeal. Let the intimation of this judgment be sent to the learned trial Court at once. Appeal allowed.