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2003 DIGILAW 1349 (PNJ)

Balwinder Singh @ Binder v. State of Punjab

2003-09-24

HARJIT SINGH BEDI

body2003
JUDGMENT H.S. Bedi, J. (Oral) - The prosecution story is as under :- During the night intervening 14/15.12.1987 a police party headed by Sub Inspector Sant Kumar (PW-2) and including amongst others ASI Charan Singh (PW-1) were holding a Nakabandi in Binjal Chowk on the Raikot-Jagraon high way. At about 1.15 A.M., on 15.12.1987 a tractor-trolley coming from the direction of Jagraon, was signalled to a stop and it transpired that whereas Balwinder Singh alias Binder accused was at the wheel, Amar Singh and Sukhwinder Singh alias Sukha were sitting on the right mudguard of the tractor, whereas four persons, who were sitting on the gunny bags in the trolley managed to run away. SI Sant Kumar made an offer to the accused under Section 50 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter called the Act), but on being assured by them that they had full confidence in him, a search was carried out of the trolley and 50 bags of poppy-husk each containing 40 Kgs. were recovered. The four persons who had been apprehended at the spot were accordingly arrested and the identity of those who had been run away was ascertained. The Sub Inspector thereafter sent ruqa (Exh.PF) to the police station for registration of a case, on which a formal FIR (Exh.PF/1) was recorded by ASI Gulzara Ram. SI Sant Kumar also made the necessary enquiries/investigation and also arrested three of the accused, who had run away, whereas accused Raj Singh the fourth one was declared a proclaimed offender. The challan was put up against the accused and they were charged for an offence punishable under Section 15 of the Act, and as they pleaded not guilty, were brought to trial. 2. The prosecution in support of its case relied on the evidence of ASI Charan Singh (PW-1) and SI Sant Kumar (PW-2) and also the circumstance that four of the accused had been arrested at the spot, whereas the other four, who had run away, were also known to SI Sant Kumar previously and had been identified by him and that the articles recovered from the gunny bags had been proved to be poppy-husk in the report of the Chemical Examiner. 3. 3. The prosecution case was then put to the accused and their statements recorded under Section 313 or the Code of Criminal Procedure, in which they denied the allegations levelled against them and pleaded false implication. Balbir Singh took the plea that on 13.12.1987 SI Sant Kumar had taken away his goods including a T.V. set from his house and that he had informed the higher authorities which had annoyed the police officer. Accused Balwinder Singh, Maghar Singh and Amar Singh pleaded that they had been implicated in a false case as they were the employees of Balbir Singh aforesaid, whereas Sukhwinder Singh stated that he had been picked up from his village Galib Kalan on 13.12.1987 and thereafter falsely implicated. Raj Singh stated that he had been falsely implicated being a relative of Balbir Singh. The telegrams sent by the relatives of the accused at the time of their arrest were also produced in defence. 4. The trial Court on an appreciation of the evidence held that the involvement of Balbir Singh, Raj Singh, Tarsem Singh and Gurjit Singh, who had alleged to have run away from the spot, had not been proved by observing that SI Sant Kumars story that they were previously known to them was improbable as he had stated that only those who had run away were previously known to him, while the remaining four who had been arrested from the spot were not known to him. The Court also observed that it would be unsafe to hold as proved the identity of these four persons on the un-corroborated testimony of S.I. Sant Kumar alone. The involvement of the other four accused was, however, held to be proved on account of the fact that they had been arrested at the spot. They were accordingly convicted under Section 15 of the Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac each and in default of payment of fine to undergo further rigorous imprisonment for one year each. 5. The present appeal has been filed by the four accused, who have been convicted. 6. Shri J.S. Chahal, the learned counsel for the appellants has raised two arguments in the course of the hearing. one lac each and in default of payment of fine to undergo further rigorous imprisonment for one year each. 5. The present appeal has been filed by the four accused, who have been convicted. 6. Shri J.S. Chahal, the learned counsel for the appellants has raised two arguments in the course of the hearing. He has first submitted that as the prosecution story rested on the evidence of two police officials alone PW-1 Charan Singh ASI and PW-2 Sant Kumar SI, respectively, their evidence hat to be scrutinized with great care. He has also pleaded that as the provisions of Section 50 of the Act had not been complied with in letter and spirit, the accused are entitled to acquittal on that score as well. 7. Mr. Grewal, the learned Senior Deputy Advocate General, Punjab has, however, urged that the presence of the witnesses on the day of occurrence was a clear possibility and in this view of the matter, their evidence should be accepted in toto. 8. I have considered the arguments advanced by the learned counsel for the parties. 9. It would be seen that SI Sant Kumar was the senior of the two police officers. The judgment of the trial Court clearly shows that the Court was not fully convinced with the evidence of SI Sant Kumar and this fact has been clearly noted in the judgment. Besides this, there is judgment (Exh.DH) given by N.S. Mundra, Judicial Magistrate Ist Class, Ludhiana on 1.3.1985 in a prosecution under Sections 379/411 of the Indian Penal Code, in which SI Sant Kumar (at that time ASI) had appeared as a prosecution witness and while acquitting the accused, the trial Court has observed that as the case property, i.e., the car No. CH-3622 had been recovered much earlier to the alleged date of theft, it could not be understood as to how it could have been in the possession of the accused and as to how it could have been recovered on 7.4.1984. The Court had accordingly concluded that, "it is certainly a false case and the accused have been entangled in it by ASI Sant Kumar for the reasons best Known to him." Exh.DI is a judgement of the Additional Sessions Judge, Ludhiana dated 3.1.1989, in which Balbir Singh, an accused in the present case as well, had been brought to trial for an offence under Section 15 of the Act and it was SI Sant Kumar again, who was the main Investigating Officer and prosecution witness. The trial Court observed that the recovery allegedly made by SI Sant Kumar in this case was apparently a false one as it was proved from the statements of the prosecution witnesses themselves that the accused had been in police custody for three days and had been under persistent interrogation. The Court accordingly held that the recovery of the narcotics allegedly made on the basis of the disclosure statement under Section 27 of the Evidence Act could not be believed. The Court further observed that the defence story that SI Sant Kumar had attempted to multiply the false cases against Balbir Singh because of enmity seemed probable. Balbir Singh accused was accordingly acquitted. There appears to be merit in Mr. Chahals argument, therefore that given the background of the character of SI Sant Kumar and the strictures passed by two Courts and in one matter pertaining to Balbir Singh accused himself, wherein it has been observed that SI Sant Kumar was inimical towards him, no reliance can be placed on his testimony. The possibility of false implication, therefore, of all the accused, who were in one way or the other connected ultimately with Balbir Singh cannot be ruled out. 10. In view of the above discussion, the ingredients of Section 50 of the Act need not be gone into. This appeal is accordingly allowed, the appellants are ordered to be acquitted of the charge levelled against them. A copy of this judgment alongwith judgments Exhs. DH and DI be sent to the D.G.P. Punjab under registered cover for initiating necessary action against SI Sant Kumar if he is still in service. Appeal allowed.