Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 1409 (PNJ)

Major Singh v. State of Punjab

2003-10-13

NIRMAL SINGH

body2003
JUDGMENT Nirmal Singh, J. - This appeal is directed against the order dated 20/23.10.1989 passed by learned Addl. Sessions Judge, Barnala vide which appellants-Mithu Singh, Mohinder Singh and Major Singh were convicted and sentenced to undergo R.I. for ten years and to pay a fine of Rs. 1 lac each and in default of payment of fine, to further undergo RI for two years under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the the Act). Appellant Lal Singh was convicted and sentenced to undergo R.I. for ten years with a fine of Rs. 1 lac and in default of payment of fine to further undergo R.I. for two years under Section 25 of the Act. 2. The case of the prosecution is that on the night intervening 11/12 June, 1987 at Hadiaya tri-junction, the police party headed by Paramjit Singh, Deputy Superintendent of Police laid a nakabandi to check the vehicles. Inspector Iqbal Singh, Joginder Singh, ASI and a few more police officials were the members of the naka party. At about 4 a.m. tractor No. PBD 719 was seen approaching along the main road from the side of Dhanaula. At the behest of the Deputy Superintendent of Police, torch light signal was given to stop the tractor. The driver of the tractor tried to turn back the tractor and on suspicion the tractor was stopped. Major Singh was driving his tractor. His co-accused namely Mohinder Singh and Mithu Singh were sitting on the mud- guards of the tractor with their faces backwards. Both of them were holding gunny bag kept on the rear lift recovered. Gunny bag was removed from the tractor and it was searched. From the gunny bag, 9 polythene bags were recovered. Each of the bag was found to contain illicit opium weighing 5.20 gm. Samples of opium were taken from each of the nine bags and were separately sealed with the seal of Inspector Iqbal Singh bearing letters IS. The sealed parcels and the tractor were taken into possession by the investigating officer vide recovery memo Ex.PA. The specimen impression of the seal used Ex.P-1 was retained separately. Ruqa was sent to the police station, Barnala upon which FIR was registered. Accused appellants were taken into custody. On the completion of the investigation, challan against Mithu Singh, Mohinder Singh and Lal Singh was put in the Court. The specimen impression of the seal used Ex.P-1 was retained separately. Ruqa was sent to the police station, Barnala upon which FIR was registered. Accused appellants were taken into custody. On the completion of the investigation, challan against Mithu Singh, Mohinder Singh and Lal Singh was put in the Court. On commitment, this case was entrusted to Additional Sessions Judge, Barnala. 3. After perusal of the documents relied upon by the prosecution and hearing the learned counsel for the appellants, the learned Additional Sessions Judge, Barnala charge-sheeted Major Singh, Mohinder Singh, Mithu Singh under Section 18 of the Act whereas the appellant Lal Singh was charge-sheeted under Section 25 of the Act to which they pleaded not guilty and claimed trial. 4. To prove its case, the prosecution has examined Iqbal Singh as PW-1. He is the investigator of the case. Joginder Singh was examined as PW-2. He is the recovery witness. Amar Nath Clerk was examined as PW-3. He has proved that the tractor No. PBD 719 has been registered in the name of Lal Singh son of Bishan Singh of village Dhaula and the registration book is Ex. P-5. Paramjit Singh Dy. S.P. was examined as PW-4. The recovery was effected from the appellants in his presence by Iqbal Singh. The prosecution also tendered into evidence affidavits of HC Ajit Singh and C. Paramjit Singh as Ex.PW5 and Ex.PW-6 respectively, C. Ranjit Singh Ex.PG and report of Chemical Examiner as Ex.PH and closed the cases. 5. When the appellants were examined under Section 313 Criminal Procedure Code to explain the incriminating circumstances appearing in the prosecution evidence, they denied simplicitor and pleaded their false implication. Appellants Mahinder Singh, Mithu Singh and Major Singh took the plea as under :- "Sarpanch of my village is inimical towards us. There is civil litigation between us and the Sarpanch. We had purchased certain lands from the brother of the Sarpanch and the Sarpanch had a grudge against us. One Rupinder Singh is relation of above said Sarpanch and he was working as Inspector Police Security Staff, Sangrur at that time and he was friendly towards Iqbal Singh. He prevailed upon Iqbal Singh to make this false case against us. Iqbal Singh with police force came to our house at village Dhaula and asked us to provide liquor and meals to the police party. My father was ill on that day. He prevailed upon Iqbal Singh to make this false case against us. Iqbal Singh with police force came to our house at village Dhaula and asked us to provide liquor and meals to the police party. My father was ill on that day. We refused to provide liquor to him. On this he felt agitated and abused us and picked our household articles and gave beatings to us. He took away 12 tolas of gold ornaments, television set and other articles from our house and large amount of money forcibly on the tractor of Lal Singh driven by Balbir Singh. At that time Piara Singh and Balbir Singh Lambardars, Teja Singh and Thakur Singh panchas and many other persons were present there who witnessed the occurrence. The police also took licensed guns of ours. Later on police fabricated this false case in Barnala police station. The other police officers are supporting Iqbal Singh for the success of this case. We made applications to the higher authorities in this case. The amount which was brought from our house was grabbed by the police but about Rs. 15,000/- have been shown in personal search. We moved applications for taking back the above said articles. Some articles were returned with the orders of the Court but remaining money and some articles were not given back to us. We are innocent." 6. Lal Singh-appellant took the plea as under :- "I am innocent. On the day of occurrence I was not present in my house and in my absence without my consent and knowledge my tractor was taken away. I was told by Balbir Singh that police had taken away my tractor to carry the goods of Mohinder Singh etc. to the police station and lateron I come to know that my tractor has been falsely involved in the present case." 7. The appellants were called upon to lead evidence in their defence. They have examined Ram Nath, Petition Writer as DW-1. He is the scribe of Ex. DA, DB and DC. Ranbir Singh was examined as DW-2. He is the attesting witness of Ex. DA, DB and DC which had been executed by Paramajit Singh in favour of Mahinder Singh & others. Balbir Singh was examined as DW-3. C. Ajaib Singh as DW-4, Darshan Singh MHC as DW-5, and Kirpal Singh as DW-6. DA, DB and DC. Ranbir Singh was examined as DW-2. He is the attesting witness of Ex. DA, DB and DC which had been executed by Paramajit Singh in favour of Mahinder Singh & others. Balbir Singh was examined as DW-3. C. Ajaib Singh as DW-4, Darshan Singh MHC as DW-5, and Kirpal Singh as DW-6. The appellants also tendered in evidence copy of the order dated 8.9.1987 Ex.DD, copy of the report dated 24.7.1987 Ex. DE, copy of the order dated 28.7.1995 Ex.DF, copy of the statement of Jaswinder Singh dated 27.8.1998 Ex.DH, copy of the order dated 3.11.1986 Ex. DJ, copy of the report under section 173 Criminal Procedure Code dated 23.5.1986 Ex.DK, postal receipts dated 3.7.1987 Ex.DL and Ex.DM, copy of the application dated 27.6.1987 mark X, attested copy of the certificate of B.A. mark XX, marks list mark Y and another marks list mark YY and closed the defence evidence. 8. The learned Additional Sessions Judge, Barnala, after appreciating the evidence of the prosecution and the defence, hearing the learned counsel for the appellants and the Public Prosecutor convicted and sentenced the appellants as stated in paragraph-1 of the judgment aggrieved by which the present appeal has been preferred. 9. Shri Bipan Ghai assisted by Shri T.P.S. Mann Advocate, learned counsel for the appellants assailed the judgment of the trial Court on the ground that the learned trial court has not appreciated the evidence on record in its right perspective. They submitted that it has been established from the evidence on record that the appellants have been falsely implicated in this case. They also pointed out that when the appellants were taken into custody, Inspector Iqbal Singh also took away the articles of the appellants into possession and these articles were deposited with MHC on 12.6.1987 vide DDR No. 22 and Sr. No. 44 and these articles were returned to the appellant Mahinder Singh on 9.9.1987. This fact is proved from the statement of Darshan Singh MHC as well as from the statement of DW-6 Kirpal Singh and DW-6 Balbir Singh Lambardar. The learned trial Court has discarded the evidence of the defence on surmises and conjectures. They further contended that this case upon the appellants have been foisted at the instance of the Sarpanch of their village. The learned trial Court has discarded the evidence of the defence on surmises and conjectures. They further contended that this case upon the appellants have been foisted at the instance of the Sarpanch of their village. They pointed out that appellant Mahinder Singh has purchased the land from the brother of Sarpanch and due to that the Sarpanch was having grudge in his mind. They pointed out that Rupinder Singh, Inspector was working in Sangrur District in the Security Staff. He was friendly with Iqbal Singh Inspector and at his instance the appellants have been falsely implicated. They contented that Iqbal Singh Inspector alongwith other police officials came to the house of appellant Mahinder Singh and took away the articles belonging to the appellant forcibly in the tractor of Lal Singh in the presence of Piara Singh and Balbir Singh and other co-villagers. The arms of the appellants were also taken into possession. They contended that this fact has been proved from the statements of Darshan Singh and Kirpal Singh DW-5 and DW-6 respectively. They further contended that the tractor was taken from the house of Lal Singh in the absence by the police forcibly but subsequently Lal Singh has also been implicated in this case that his tractor has been used for transporting the articles with his knowledge. 10. The appellants in their defence have examined as many as six witnesses and also tendered in evidence the sale deed and the orders. After scanning the evidence of the defence, it is established that the case has not been foisted upon the appellants at the instance of the Sarpanch of the village nor the articles of the appellant Mahinder Singh has been taken from the village on 12.6.1988 as alleged by the appellants rather these articles have been recovered from the house of appellant Mahinder Singh on 19.6.1987. 11. 11. Iqbal Singh PW-1 has deposed in his statement that on the day of recovery, he did not raid the house of the appellant but raided the house of the appellant on 19.6.1987 and took into possession from the house of Mahinder Singh five gold rings, one Kara made of gold, one gold ear rings, one Band made of gold, one Chhatar made of gold, one pendal made of gold, one gold coin, one pair of clips made of gold, some silver ornaments and these ornaments were taken into possession under Section 102 Criminal Procedure Code His version has been fully corroborated by Paramjit Singh PW-4. He has deposed that the Investigating officer did not go to the house of the appellant on that day nor any article was brought by the police. Learned counsel for the appellants laid much stress on the evidence of DW-5 that as per the entry in Register No. 19, the articles were deposited in the malkhana on 13.6.1987. DW-5 Darshan Singh MHC has deposed in his cross-examination that DDR No. 22 dated 12.6.1987 bear time 9.30 P.M. does not relate to the seizure of the articles into police possession under Section 102 Criminal Procedure Code rather it relate to the distribution of the arms and ammunition to some constable. Copy of the DDR entry No. 22 was placed on record as Ex.DX. He has further deposed that he has checked all the entries in the Daily Diary Register relating to 12.6.1987. None of the entries relate to the seizure of the said articles into possession under Section 102 Criminal Procedure Code Preceding entry No. 403 in register No. 19 relates to the DDR entry No. 19 dated 18.6.1987 and entry No. 405 in the aforesaid register No. 19 relates to the DDR entry No. 28 dated 20.6.1987. He has further deposed that entries in register No. 19 correspond to the serial wise entries in the daily diary register. Entry No. 22 dated 19.6.1987 in the said daily diary register related to the seizures of ornaments into police possession by Inspector Iqbal Singh in case FIR No. 82/1987 under Section 18 NDPS Act and regarding their deposit in the malkhana. Entry No. 22 dated 19.6.1987 in the said daily diary register related to the seizures of ornaments into police possession by Inspector Iqbal Singh in case FIR No. 82/1987 under Section 18 NDPS Act and regarding their deposit in the malkhana. He has further deposed that there is an entry 9.9.1987 passed by the Sub Divisional Judicial Magistrate, Barnala on the application for return of the ornaments taken into possession under Section 102 Criminal Procedure Code The case of the appellants is that articles of Mahinder Singh were taken away by the police in the presence of Balbir Singh DW-3 and Kirpal Singh DW-6. Both these witnesses are materially discrepant in their statements. As per Balbir Singh PW-3 these goods were loaded in the tractor by the police in the presence of 30/40 persons including himself whereas Kirpal Singh DW-6 deposed that these articles were removed in a truck. This discrepancy in the statement of both the DWs is not minor one. If the articles have been removed in the presence of these two witnesses then it can not be said that such like discrepancies will come in their statement. So, the defence taken by the appellants that the appellants were taken into custody by Inspector Iqbal Singh from their house alongwith the articles has not been established. To prove the fact that Jaswinder Singh Sarpanch relate to Rupinder Singh, the appellants have examined Kirpal Singh as DW-6. He has admitted in his cross-examination that he does not know where Rupinder Singh is posted. Even he was unable to tell the name of the fathers sister of Jaswinder Singh whereas as per Kirpal Singh, she belong to his village and has given his age of 55 years. So, from the evidence led by the defence, it has not been proved that Jaswinder Singh Sarpanch relate to Rupinder Singh Inspector or Jaswinder Singh Sarpanch in connivance with Rupinder Singh, Inspector has got false case registered against the appellants. 12. The case of prosecution hinges on the statement of PW1 Iqbal Singh and PW4 Parmajit Singh. They have given the minute details with regard to the date, time, place and manner in which the recovery was effected from the appellants. 13. Learned counsel for the appellants failed to point out any discrepancy in the statements of the prosecution witnesses on the basis of which their testimonies could be discarded. They have given the minute details with regard to the date, time, place and manner in which the recovery was effected from the appellants. 13. Learned counsel for the appellants failed to point out any discrepancy in the statements of the prosecution witnesses on the basis of which their testimonies could be discarded. The recovery effected from the appellants is 45 kgs opium which does not come under the minor quantity. The value of the said opium runs into lacs of rupees. No Investigator would falsely plant such a huge quantity of opium only to falsely implicate a person. When this recovery was effected, the Notification dated 19.10.2000 was not in existence. At the time of alleged recovery, even for the recovery of small quantity of opium, the minimum sentence was 10 years with a fine of Rs. one lac. As it has been discussed above, there was no motive with the Investigator Iqbal Singh to falsely implicate the appellants. There is no enmity or hostility either alleged or proved against the Investigator. The case put forth by the appellants is that this case has been planted at the instance of Rupinder Singh, Inspector, who was working in the security staff at Sangrur. No Investigator would like to take risk to falsely implicate any innocent person under the Act. Under the Act, stringent punishment has been provided i.e. minimum sentence of 10 years with a fine of Rs. one lac for keeping the narcotic which comes under the definition of commercial quantity, but at the same time, under section 58 of the Act, it has been provided that in case any police officer falsely or vexatiously launch prosecution against any person, he can also be punished. 14. So from the record, it has been established that 45 kgs. opium was recovered by the police party headed by Inspector Iqbal Singh when the appellants Mithu Singh, Mahinder Singh and Major Singh were carrying the same in Tractor No. PBD 719. The learned trial court after appreciating the evidence on record rightly came to the conclusion that appellants were in possession of opium for which they have no permission or licence to carry the same and rightly convicted them under Section 18 of the Act. 15. The learned trial court after appreciating the evidence on record rightly came to the conclusion that appellants were in possession of opium for which they have no permission or licence to carry the same and rightly convicted them under Section 18 of the Act. 15. Learned counsel for the appellant Lal Singh submitted that there is no evidence on the record to show that appellant Lal Singh had knowingly permitted Mohinder Singh and others to use his tractor for transporting the opium. He contended that learned trial Court erroneously convicted Lal Singh on the basis of presumption under section 35 of the Act. He submitted that presumption cannot be drawn in a case of a person who is the owner of the vehicle and he has allowed the vehicle knowingly that the same would be used for transporting some narcotic. 16. On the other hand, learned Deputy Advocate General submitted that appellant has taken the stand that the tractor has been taken away in his absence for transporting the goods of Mohinder Singh from his house to the police station by the police but that has not been proved by the appellant Lal Singh. Rather it has been proved on record that tractor was taken into possession on 12.6.1987 from the custody of Major Singh, Mithu Singh and Mohinder Singh. 17. Before considering the rival contentions of learned counsel for the parties, it would be appropriate to notice the provisions of Section 25 of the Act, which read as under :- "25. Punishment for allowing premises, etc., to be used for commission of an offence :- Whoever, being the owner or occupier or having the control or use of nay house, room, enclosure, space, place, animal or conveyance knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for the offence.]" 18. It was for the prosecution to prove that appellant Lal Singh has given the tractor to the appellants Major Singh, Mithu Singh and Mohinder Singh knowingly that it would be used for transporting the opium. But in the instant case, prosecution has not brought on record any direct or substantial evidence that Lal Singh has allowed Mithu Singh, Mohinder Singh and Major Singh to use his tractor for transporting the opium. 19. But in the instant case, prosecution has not brought on record any direct or substantial evidence that Lal Singh has allowed Mithu Singh, Mohinder Singh and Major Singh to use his tractor for transporting the opium. 19. The plea raised by learned DAG that Lal Singh has taken a stand that his tractor was taken by the police for transporting the goods of Mohinder Singh etc. to the police station and subsequently he came to know that his tractor was falsely involved in the case has not been proved. 20. Lal Singh has taken a specific plea that his tractor was taken away by the police for transporting the goods of Mohinder Singh etc. to police station and subsequently he was implicated. The accused has a right to take as much as defence he can take. If the plea of the accused has not been established, then on the weakness of defence, the case of the prosecution is not proved. The prosecution has to prove its case beyond shadow of reasonable doubts. As it has been observed above, the prosecution has miserably failed to prove that Lal Singh has knowingly allowed appellants Major Singh, Mohinder Singh and Mithu Singh to use his tractor for transporting some narcotics. Therefore, by giving the benefit of doubt, I acquit Lal Singh of the offence charged. 21. For the reasons recorded above, appeal qua appellant Lal Singh is accepted. His conviction and sentence is set aside and bail bonds and surety bonds shall stand discharged. 22. The appeal qua appellants Mohinder Singh, Mithu Singh and Major Singh stand dismissed. They are on bail. Their bail bonds and surety bonds stand cancelled. They be taken into custody to undergo the remaining period of sentence. Appeal dismissed.