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2003 DIGILAW 303 (PNJ)

Ranjit Singh alias Jita v. State of Punjab

2003-02-18

R.L.ANAND, VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Ranjit Singh alias Jita son of Kartar Singh resident of village Balamgarh District Patiala has been convicted under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as the Act) and has been sentenced to undergo RI for eleven years and to pay a fine of Rs. One Lac and in default of payment of fine to further undergo RI for six months. 2. In brief the case of the prosecution is that on 2.2.2000, PW7 SI Hans Raj along with other police officials in a Government Jeep was busy in connection with general patrolling at T-point, Kularan in the area of Samana on the metaled road leading from Samana to Bhawanigarh. He received a secret information that the present appellant who was habitual in selling poppy husk has kept a large quantity of poppy husk with him and in case his house is raided the same can be recovered. The information being reliable, a ruqa Ex. PB was sent through Constable Puran Singh for the registration of the case and consequently formal FIR Ex. PB/1 was recorded. Thereafter PW7 SI Hans Raj along with other police officials started for raiding the place of recovery and when they reached near the Bus stand of village Kotli, Raghbir Singh son of Natha Singh resident of village Bhedpuri met the police party and he was also joined in the police party and thereafter they raided the house of the appellant in village Balamgarh. The appellant was found present there. From his personal search Rs. 72/- were recovered which were taken into possession. During interrogation, the appellant allegedly suffered a disclosure statement that he has kept concealed five bags of poppy husk in the courtyard of his residential house under the paddy husk about which he only knows and can get the same recovered. The said statement Ex. PC was reduced into writing and thereafter PW7 SI Hans Raj asked the appellant that the recovery of bags is to be effected and if he so desires, the same can be effected in the presence of Magistrate or Gazetted Officer. The appellant replied that the recovery be effected in the presence of Gazetted officer and in this respect a statement Ex. PD of the appellant was also recorded. The appellant replied that the recovery be effected in the presence of Gazetted officer and in this respect a statement Ex. PD of the appellant was also recorded. Consequently, PW6 DSP Ashwani Kumar, Circle Samana was called who reached the spot and disclosed his identity to the appellant as DSP Samana and told that he was a Gazetted Officer and asked the appellant whether he wants to get the search conducted in his presence. The appellant consequently reposed confidence in him and consent memo of the appellant Ex. PE in this regard was also prepared signed by DSP Ashwani Kumar and other police officials including independent witness Raghbir Singh. Thereafter the appellant, as per his disclosure statement, got recovered five bags of poppy husk from the courtyard kept under the paddy husk. It was weighed and in each bag 30 kags of poppy husk was found. From all the five bags samples of 250 grams each were taken and were put in a parcel. The sample parcels were numbered 1A to 5A and the bags were numbered as 1 to 5. All the parcels were sealed with seal of PW7 SI Hans Raj bearing impression HR and the seal after use handed over to Raghbir Singh. DSP Ashwani Kumar also sealed the sample parcels and poppy husk with his seal bearing impression AK. Sample seal was separately kept. DSP Ashwani Kumar retained his seal. The case property was then taken into possession through recovery memo Ex. PF. The rough site plan of the place of recovery was prepared. The sample were thereafter sent to the Chemical Examiner. The report Ex. PJ, indicated that the sample was opium containing Mechonic acid and morphine of the required percentage. The appellant was, thus, challaned. 3. After committal proceedings, the appellant was charged under section 15 of the Act. 4. The prosecution in support of its case has examined SI Virsa Singh as PW1. His statement is to the effect that on 3.2.2000, he took the case property including samples from MHC Jagga Ram along with the appellant for producing before the Ilaqa/Duty Magistrate, Samana. The case property was redeposited with MHC Jagga Ram after the appellant was produced before the court and remanded to police custody. He has proved the orders of Judicial Magistrate Ist Class, Ex. PA/1. 5. PW2 is ASI Jaswinder Singh. The case property was redeposited with MHC Jagga Ram after the appellant was produced before the court and remanded to police custody. He has proved the orders of Judicial Magistrate Ist Class, Ex. PA/1. 5. PW2 is ASI Jaswinder Singh. His evidence is to the effect that he was posted as ASI, Police Station Samana. On that day he joined with the police party headed by PW7 SI Hans Raj and thereafter they went to the T-point of village Kularan in connection with patrolling where SI Hans Raj received a secret information and thereafter ruqa Ex. PB was sent to the police station. His statement further is to the effect that Raghbir Singh an independent witness had also met the police party and he was also joined. His statement further is that when they reached the house of the appellant he was found present and on interrogation he made disclosure statement regarding concealment of poppy husk. PW6 DSP Ashwani Kumar also reached the spot and the recovery was effected in his presence. The sample was drawn and thereafter the sample and the remainder were sealed in his presence with the seal impression HR of SI Hans Raj and AK of DSP Ashwami Kumar. He further states that the case property was taken into possession vide recovery memo Ex. PF attested by the police officials. 6. PW3 is Constable Lal Singh. He had tendered his affidavit Ex. PH. PW4 is ASI Daulat Ram. His evidence is to the effect that he recorded the statements of Moharar Head Constable Jagga Ram and Constable Lal Singh. PW5 is Head Constable Jagga Ram. HC Jagga Ram had tendered his affidavit Ex. PJ. 7. PW6 is DSP Ashwani Kumar. His statement is to the effect that on 2.2.2000, when he was posted at Police Station Samana as DSP he received a message to reach village Balamgarh and consequently reached the spot where SI Hans Raj alongwith police officials was present. The appellant was also present there and after he introduced himself to the appellant stating that he was a Gazetted Officer and apprised him whether he wanted the search to be conducted in his presence, the appellant reposed confidence in him and thereafter consent memo Ex. PE was recorded which was read over and explained to the appellant. The appellant was also present there and after he introduced himself to the appellant stating that he was a Gazetted Officer and apprised him whether he wanted the search to be conducted in his presence, the appellant reposed confidence in him and thereafter consent memo Ex. PE was recorded which was read over and explained to the appellant. It is further stated by him that thereafter the appellant led the police party to the place of recovery and from the court-yard of his house, after removing the paddy husk five bags were recovered which contained poppy husk. He also talks about the extracting of the samples and thereafter taking the samples and the five bags of poppy husk into possession in which his seal bearing the seal impression AK and seal of SI Hans Raj bearing seal impression HR were used. 8. PW7 is SI Hans Raj. He has investigated the complete case. There is no need of reproducing his statement because the investigation part has already discussed by us in the early part of our judgment. 9. Raghbir Singh PW was given up by the prosecution has having been won over by the appellant. 10. The stand of the appellant is that he has been falsely implicated in this case. Nothing was recovered from him. It is further stated by him that during the night intervening 1.2.2000 and 2.2.2000, ASI Jaswinder Singh, SI Hans Raj alongwith some other police officials, came to his house in plain clothes while riding in a private vehicle and called to him to come out of the house. When he refused to come out they forcibly entered his house which has no outer gate and they started abusing and beating him. Dhanna Singh, Sucha Singh and other respectables of the village came at the spot and tried to intervene but he was taken away by the above police officials to the police station and on the next day he was falsely implicated in the present case. He has also stated that he is 72 years old and was never arrested even in any Excise Act case or NDPS Act case earlier. 11. In defence the appellant has produced DW1 Sucha Singh son of Bhagwan Singh to the effect that the house of the appellant was raided on 1.2.2000 and he was taken in illegal custody in the presence of Sucha Singh and other respectables. 11. In defence the appellant has produced DW1 Sucha Singh son of Bhagwan Singh to the effect that the house of the appellant was raided on 1.2.2000 and he was taken in illegal custody in the presence of Sucha Singh and other respectables. Constable Dharam Pal was produced as DW2 who had brought the register No. 19 and photo copy of the same ws exhibited as Ex. D1. DDR No. 10 and 11 were also exhibited as Ex. D2 by this witness. Besides this, other five documents Ex. D1 to D5 were tendered by the appellant. These documents show that Raghbir Singh is the stock witness of the police who had appeared in many cases of the police under NDPS Act and as such was very convenient witness for the prosecution to be shown in any case. 12. On consideration of entire evidence, the trial court has convicted and sentenced the appellant as indicated above. Hence, this appeal. 13. We have heard Mr. R.K. Battas, learned counsel for the appellant and Mr. G.S. Gill, Senior Deputy Advocate General, Punjab and with their assistance gone through the record of the case. 14. Mr. Battas, learned counsel for the appellant to start with his arguments has submitted that the appellant has been falsely implicated in this case and infact no recovery was effected from the appellant. Developing his argument Mr. Battas has stated that there is non-compliance of section 42(1) & (2) of the Act because neither the secret information was reduced into writing nor it was sent by PW7 SI Hans Raj to his immediate official superior and the appellant deserves acquittal for this basic lacuna. 15. The other contention raised by the learned counsel for the appellant is that the disclosure statement Ex. PC allegedly made by the appellant is of no consequence because the only independent witness Raghbir Singh in whose presence the appellant had allegedly made disclosure statement has not been produced by the prosecution. Criticising the disclosure statement, Mr. Battas further submitted that Raghbir Singh is not even resident of the village of the appellant. He is resident of village Bhedpuri which is at a considerable distance from the village of the appellant and as such he had no business to be present on the outskirts of village Ballamgarh for the purpose of joining the police party as alleged by the prosecution. He is resident of village Bhedpuri which is at a considerable distance from the village of the appellant and as such he had no business to be present on the outskirts of village Ballamgarh for the purpose of joining the police party as alleged by the prosecution. Infact Raghbir Singh is the stock witness of the prosecution as is clear from the documents Ex. D1 to D5. Mr. Battas, thus, contended that in the flash back of the fact that Raghbir Singh has been chosen to be the witness of the alleged disclosure statement, this by itself is a circumstance to show that infact nothing had happened at the house of the appellant and no recovery was effected from him. 16. Mr. Battas further contended that the another material weakness which goes deep to the root of the case is that in Ex. PL, the rough site plan prepared at the spot, the sections mentioned are 430, 379, 506, 427 and 34 Indian Penal Code instead of Section 15 of the Act. Learned counsel in this context has taken us through the original rough site plan prepared in Vernacular which is at page 15 of the trial Court file and submitted that although PW7 SI Hans Raj has said in his statement when examined in the court that this all was written by him by mistake but this bald statement cannot fill up the basic lacuna, it rather strengthens the defence that the appellant was taken to the police station by certain police officials, detained there for a day and thereafter falsely implicated in this case by planting the contraband on him. The learned counsel in this regard has further contended that even the place from where the recovery has been allegedly shown was not in the exclusive possession of the appellant as it was thorough-fare. In this context, he has taken us through the statement of PW6 DSP Ashwani Kumar. Mr. Battas contends that the appellant, thus, cannot be connected with the conclusive possession of the contraband and for this reason also, he deserves acquittal. 17. Mr. Battas has lastly pointed out certain discrepancies in the statements of official witnesses. In this context, he has taken us through the statement of PW6 DSP Ashwani Kumar. Mr. Battas contends that the appellant, thus, cannot be connected with the conclusive possession of the contraband and for this reason also, he deserves acquittal. 17. Mr. Battas has lastly pointed out certain discrepancies in the statements of official witnesses. He has particularly taken us through the statement of PW2 ASI Jaswinder Singh and PW6 DSP Ashwani Kumar and pointed out that according to PW2 ASI Jaswinder Singh, DSP had arrived at the spot at 12.30 PM in Government Gypsy whereas PW6 DSP Ashwani Kumar has stated that the recovery was effected at 11.15 AM. According to Mr. Battas this is a very material discrepancy in two statements which would also go to show that these witnesses were not present at the time of alleged recovery. He has also pointed out certain other discrepancies. 18. Mr. G.S. Gill, learned Senior Deputy Advocate General, Punjab had refuted the arguments advanced by the learned counsel for the appellant and submitted that there is no reason to dis-believe the prosecution as the recovery of contraband has been effected in pursuance of the disclosure statement made by the appellant. It is then contended that non-production of Raghbir Singh cannot be considered to be a ground to reject the testimony of official witnesses who have unfolded the prosecution case in one voice. Mr. Gill contends that the conviction of the appellant deserves to be maintained. 19. After appreciating the entire evidence on record, we are of the view that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt and he deserves acquittal. 20. So far as the first contention of Mr. Battas is concerned, we however, do not agreed with the submissions made by the learned counsel for the appellant. We feel that there is due compliance of section 42(1) and (2) of the Act. The moment PW7 SI Hans Raj received the secret information, he reduced the same into writing as is clear from the ruqa Ex. PB. On the basis of the said ruqa, the case was registered in police station Samana and immediately thereafter the information was supplied to the higher officer as well as the Ilaqa Magistrate on 2.2.2000 itself as is clear from the police proceedings initiated by Sucha Singh ASI of Police Station Samana. PB. On the basis of the said ruqa, the case was registered in police station Samana and immediately thereafter the information was supplied to the higher officer as well as the Ilaqa Magistrate on 2.2.2000 itself as is clear from the police proceedings initiated by Sucha Singh ASI of Police Station Samana. This, in our view amounts to compliance of section 42(1) & (2) of the Act. The learned counsel for the appellant cannot derive any benefit in this regard. 21. So far as the alleged recovery is concerned, though the learned counsel for the appellant has dissected his arguments in three parts yet we would deal with them collectively. We are doubting the initial disclosure statement Ex. PC allegedly made by the appellant. Admittedly one of the witnesses of this disclosure statement is Raghbir Singh son of Natha Singh, Jat, resident of village Bhedpuri. This witness is not resident of the village of the appellant. He was with-held by the prosecution on the ground of having been won over by the appellant but one material fact which cannot escape our notice is that he is a stock witness of the police as is clear from the documents tendered by the appellant. He is the most convenient witness of the prosecution who had already been imported for the purpose of showing a witness of recovery in other cases of NDPS Act as well. This creates doubt in the mind of the court. Had the police officials not joined any independent witness while recording the statement of the appellant, we would have agreed with any reasonable explanation given by them for non-joining but once they have chosen to join an independent witness and the same turns out to be the stock witness of the prosecution appearing in many cases in support of the prosecution, this fact compels us to draw an inference against the prosecution. The very case set up by the prosecution is that Raghbir Singh witness had joined the prosecution party at the out-skirts of village Balamgarh and once we are doubting the presence of Raghbir Singh, it can be safely concluded that infact no raiding party, as projected by PW7 SI Hans Raj, was ever constituted for the purpose of going to the house of the appellant. This basic lacuna makes the foundation of the prosecution sandy and the edifice which has been erected thereafter on it, must fall. 22. We are anyway not leaving ourselves on this lacuna only and would scan the prosecution case from other angle also. No doubt the recovery in this case was effected in pursuance of the disclosure statement recorded under Section 27 of the Indian Evidence Act but it was the bounden duty of the Investigating Officer, PW7 SI Hans Raj to join some persons from the village atleast. The same has not been done. PW6 Ashwani Kumar DSP has categorically stated that before entering the house of the appellant, no Panch, Sarpanch or Lambardar was called. The relevant portion of the cross-examination of his statement is reproduced as under :- "xxx xxx xxx No other person from the public except Raghbir Singh was joined. It is incorrect to suggest that PW Raghbir Singh is a police tout and he has been cited as a public witness in a large number of cases. Before entering the house of accused, no Panch, Sarpanch or Lambardar of village was called. xx xxx xxx" 23. For the purpose of conducting searches and seizures, the Statute has enacted section 51 of the Act which reads as under :- "51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrest, searches and seizures. - The provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. 24. Now we switch over to Section 100(4) of Code of Criminal Procedure which reads as under :- "100. Persons in charge of closed place to allow search. - (1) to (3) xxx xxx xxx (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do." (5) to (8) xx xxx xxx xxx". 25. 25. In our view, PW7 SI Hans Raj has given complete go-bye to these provisions. He was going to effect a very heavy recovery in this case and it was expected of him to follow the procedure by calling some respectable inhabitants of the locality to attend and witness the search. We have carefully scanned the statement of SI Hans Raj in this respect once again. He does not say a work in examination-in-chief that any effort was made by him to call anyone from the village or they had refused to join. However, in his cross-examination he has stated that he had asked many persons to join the investigation but no one had joined but he did not remember the names of any person who had refused to join and he has also not taken any action who had refused to join. This bald statement of Investigator would not absolve him of the legal requirement. For the sake of expedition we may say that if the search allegedly conducted in pursuance of the disclosure statement, is seen in the flash-back of the fact that the so-called independent witness is a stock witness, there remains no room of doubt to dis-believe the same. 26. Another fact which is worth noticing here is that PW6 Ashwani Kumar DSP has also stated that the place of recovery was thorough-fare. We have also seen the rough site plan Ex. PL in this respect. The alleged place of recovery is quite away from the house of the appellant and there is even no main gate outside the big compound. Thus, it cannot be said with certainty that the place of alleged recovery where the contraband was kept was in the exclusive possession of the appellant. 27. The wrong mentioning of the sections in Ex. PL, rough site plan is also a circumstance to doubt the prosecution case. According to the prosecution it was prepared at the spot after the recovery as is clear from the statement of PW7 SI Hans Raj. As per prosecution, after sending the ruqa Ex. PB, the formal FIR was registered. This FIR bears No. 96 under section 15 of the NDPS Act. The ruqa sent by SI Hans Raj shows that he was proceeding alongwith other police officials to village Balamgarh and that he should be informed of the FIR number there only at the spot. As per prosecution, after sending the ruqa Ex. PB, the formal FIR was registered. This FIR bears No. 96 under section 15 of the NDPS Act. The ruqa sent by SI Hans Raj shows that he was proceeding alongwith other police officials to village Balamgarh and that he should be informed of the FIR number there only at the spot. He has stated that by mistake he has mentioned these sections. This explanation does not appear to be plausible. Rather it indicates that there is something fishy. We do not want to comment further on it but observed that nothing has happened in the house of the appellant as alleged by the prosecution. 28. We would have not given an importance to the discrepancies as pointed out by the learned counsel for the appellant but in the light of the reason as stated above for doubting the alleged recovery, the discrepancies also assumed some importance. PW2 ASI Jaswinder Singh has stated in his statement that Ashwani Kumar DSP had arrived at the spot at 12.30 PM and he had come in his government Gypsy and he had left the spot at about 3.40 PM whereas PW6 Ashwani Kumar DSP has categorically stated that the recovery was effected in his presence at 11.15 AM. This discrepancy about the arrival of the DSP would also certainly create doubt so far as the recovery party is concerned. Ashwani Kumar DSP has stated that all the writing work was done by SI Hans Raj in so much so the rough site plan was also prepared by SI Hans Raj whereas PW2 ASI Jaswinder Singh has stated that his statement was recorded by Head Constable Ranjit Singh whereas all case diaries (ziminis) were written by SI Gurcharan Singh. As already stated that we would have not cared for these discrepancies at all but now in the peculiar set of the circumstances of this case we are constrained to observe that these discrepancies certainly dent the prosecution case to some extent. No other point has been urged before us. 29. As a sequel to the abovesaid discussion, we hold that the prosecution has miserably failed to prove the charge against the appellant. Consequently, the appeal is hereby allowed and the appellant is acquitted of the charge framed against him. No other point has been urged before us. 29. As a sequel to the abovesaid discussion, we hold that the prosecution has miserably failed to prove the charge against the appellant. Consequently, the appeal is hereby allowed and the appellant is acquitted of the charge framed against him. The appellant shall be set at liberty forthwith in case he is in custody and not wanted in any other case. 30. The case property shall be confiscated to the State. 31. Intimation of this judgment be sent to the learned trial court, learned Chief Judicial Magistrate, Patiala and the jail authorities at once. Appeal allowed.