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2003 DIGILAW 1546 (PNJ)

Tara Singh v. State of Punjab

2003-11-12

NIRMAL SINGH

body2003
ORDER Nirmal Singh, J. - This appeal is directed against the judgment dated 4.5.1990 passed by the Additional Sessions Judge, Ludhiana vide which the appellant has been convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called the Act). In default of payment of fine the appellant was sentenced to undergo rigorous imprisonment for a period of one year. 2. In succinct, the case of the prosecution is that the appellant was found in possession of 70 kgs. of poppy husk on 13.3.1988 in the area of village Kaunkey Kalan without any permit or licence. Accused was apprehended. After completion of the investigation, challan was put before the illaqa magistrate. As the offence under Section 15 of the Act was exclusively triable by the Court of Session, therefore, the case was committed to the Court of Session for trial. After commitment, it was entrusted to Additional Sessions Judge, Ludhiana. 3. From a perusal of the documents relied upon by the prosecution, a prima facie case under Section 15 of the Act was made out against the appellant to which he pleaded not guilty and claimed trial. 4. To prove its case, the prosecution has examined Shri Ajaib Singh as PW-1, HC Harsukhdev Pal as PW-2. He has tendered his affidavit Ex. PA in evidence. Constable Tejinder Singh as PW-3. He has also tendered affidavit Ex.PB in evidence. Rattan Singh ASI was examined as PW-4, HC Kuljit Singh as PW-5. The prosecution has also tendered in evidence report of the Chemical Examiner Ex.PG and closed the evidence of the prosecution. 5. When the appellant was examined under Section 313 Criminal Procedure Code to explain the incriminating circumstances appearing in the prosecution, he denied simplicitor and pleaded his false implication. He has pleaded as under :- "I am innocent. I was taken from my village and was falsely implicated in this case." The appellant was called upon to lead evidence in defence. He did not examine any witness in his defence. 6. After perusing the evidence on record, hearing the learned Public Prosecutor and the learned counsel for the appellant, the learned Additional Sessions Judge, Ludhiana convicted and sentenced the appellant as mentioned in paragraph-1 of the judgment. 7. He did not examine any witness in his defence. 6. After perusing the evidence on record, hearing the learned Public Prosecutor and the learned counsel for the appellant, the learned Additional Sessions Judge, Ludhiana convicted and sentenced the appellant as mentioned in paragraph-1 of the judgment. 7. I have perused the contentions raised by the learned counsel for the appellant and Shri B.S. Sewak, DAG, Punjab and with their assistance, I have perused the record. 8. The case of the prosecution is that from the possession of the appellant two bags of poppy husk weighing 35Kg each were recovered in the presence of Ajaib Singh. The prosecution has examined Ajaib Singh as PW-1. He has not supported the case of the prosecution. He has deposed that no recovery was effected from the appellant in his presence. He was cross-examined at length by the learned Public Prosecutor after taking permission from the Court but nothing favourable was deposed by the witness to connect the appellant with the crime. He deposed that the police had brought him as well as the appellant from the village. ASI Rattan Singh has deposed that he recorded the statement of Ajaib Singh PW-1 but he specifically denied of making any statement mark A. 9. The case of the prosecution hinges on the statement of ASI Rattan Singh PW-4 and HC Kuljit Singh PW-5. Both are official witnesses. Their evidence can not be discarded simply on the ground that they are official witnesses. When the case of the prosecution is based on the testimony of official witnesses, it puts the Court on its own guard to scrutinize the evidence with great care and caution. When the evidence of ASI Rattan Singh PW-4 and HC Kuljit Singh PW-5 is scanned, it is established that at the time of recovery both these witnesses were not together and they have concocted the entire story. ASI Rattan Singh PW-4 deposed in his statement that there is a liquor vend and petrol pump near the place of recovery and nobody was present at the liquor vend or at the petrol pump at that time. The petrol pump was locked at that time but the liquor vend was open and one karinda was there whereas ASI Rattan Singh (PW-4) deposed that there are petrol pump and liquor vend near the place of recovery and both were opened. The petrol pump was locked at that time but the liquor vend was open and one karinda was there whereas ASI Rattan Singh (PW-4) deposed that there are petrol pump and liquor vend near the place of recovery and both were opened. They did not try to join any person from the petrol pump and from the liquor vend. ASI Rattan Singh PW-4 has deposed that the place where he received the secret information is populated area. He asked 2/3 persons to join in the police party but they refused to join the investigation whereas Kuljit Singh HC deposed that they were present at the octroi post Agward Lopon Jagraon where ASI Rattan Singh received the secret information against the appellant. He further deposed that the octroi post was open when they received the secret information, ASI Rattan Singh might have asked some employees of the octroi post of join with them. These discrepancies in the statement of witnesses are not minor in nature rather these discrepancies are such that go to the root of the case and make the case of the prosecution suspicious. If HC Kuljit Singh and ASI Rattan Singh would have been together at the time of recovery, such like discrepancies are not likely to come, even though they have been examined after a long lapse of time. There are number of other discrepancies in the statement of both the witnesses but the abovesaid discrepancies are sufficient of discard the statement of ASI Rattan Singh and HC Kuljit Singh. 10. There is another infirmity in the case of the prosecution which makes the case of the prosecution doubtful. As per Rattan Singh ASI after completion of the investigation, he deposited the case property with seals intact after presenting it before SHO Hardeep Singh who after verification sealed the case property and the sample with his own seal RS and also affixed on the sample seal, which is Ex.P-2. The case property was then handed over to him by the SHO. He instructed him to deposit the same with the MHC. But when he was cross-examined, he admitted that he did not record the statement of the SHO nor any case diary was recorded by the SHO. The case property was then handed over to him by the SHO. He instructed him to deposit the same with the MHC. But when he was cross-examined, he admitted that he did not record the statement of the SHO nor any case diary was recorded by the SHO. If the case property would have been presented before the SHO and the SHO has put the seal on the case property and also attested the sample impression seal Ex.P-1 on the same day then the statement of the SHO must have been recorded. If the statement has not been recorded under Section 161 Criminal Procedure Code, a note to that effect must have been written in the case diary. 11. ASI Rattan Singh has deposed that in the police party, Ajaib Singh independent witness was joined in the investigation but he deposed that after sealing the case property with his seal RS, it was handed over to HC Kuljit Singh. If Ajaib Singh would have been with the police party then ASI Rattan Singh must have handed over the seal to him before depositing the case property. So, tampering with the case property also can not be ruled out before its deposit with the MHC. 12. For the reasons mentioned above, the appeal is accepted as the case of the prosecution is highly doubtful. I gave the benefit of doubt to the appellant and acquit him of the charge. He is on bail. His bail bond and surety bond stands discharged. The fine, if any deposited by the appellant, may be refunded to him. Appeal allowed.