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2003 DIGILAW 978 (PNJ)

Nirmal Singh v. State of Punjab

2003-07-17

K.C.GUPTA

body2003
JUDGMENT K.C. Gupta, J. - This appeal has been filed by Nirmal Singh son of Bara Singh against judgment and order dated 25.4.2000 passed by the Additional Sessions Judge, Ludhiana, whereby he was found guilty and convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. one lac; in default of payment of fine he was further sentenced to undergo R.I. for 1 year. 2. Briefly stated, the facts are that on 9.9.1993 PW3 Inspector Balwant Singh, S.H.O. of Police Station Sadar, Ludhiana along with HC Jagjit Singh and others was on patrol duty at Rahon road near the petrol pump of Ishar Singh where ASI Parminder Singh was joined in the police party. At about 10.30 A.M. from the side of petrol pump a tractor trolley came for going towards Ludhiana. Two persons were sitting on the tractor while the other two were sitting on the fodder loaded in the trolley. The tractor trolley was going at a fast speed. Inspector Balwant Singh on suspicion signalled the tractor trolley to stop. The driver of the tractor ran away while the other two person who were sitting in the trolley were apprehended. They told their names as Surjan Singh and Nirmal Singh. The persons who had run away were identified by HC Ajit Singh as Sant Singh son of Kartar Singh and Sukhwinder Singh son of Gulzar Singh. Upon removing the fodder, 30 gunny bags containing poppy husk were found. On weighment, each bag was found to contain 40 kgs of poppy husk. Two samples of 250 Gms. each were taken out from each of the gunny bags. The samples and the remainder in the gunny bats were separately sealed with the seal BS and were taken into possession vide recover memo Ex.PA, attested by the witnesses. 3. PW3 Inspector Balwant Singh sent information to DSP Kanwarjit Singh of P.S. Sadar, Ludhiana who reached the spot. He enquired from the appellant and his co-accused and verified the facts. Inspector Balwant Singh sent ruqa Ex.PE to the police station on the basis of which formal FIR Ex.PE/1 was recorded. The tractor trolley bearing registration No. PJI-4574 was taken into possession vide recovery memo Ex.PB. Rough site plan Ex.PC of the place of recovery was prepared. He enquired from the appellant and his co-accused and verified the facts. Inspector Balwant Singh sent ruqa Ex.PE to the police station on the basis of which formal FIR Ex.PE/1 was recorded. The tractor trolley bearing registration No. PJI-4574 was taken into possession vide recovery memo Ex.PB. Rough site plan Ex.PC of the place of recovery was prepared. The samples were sent to the Chemical Examiner Patiala who vide his report Ex.PJ opined that the samples were of chura poppy heads. 4. After completion of the necessary investigation, the challan was put up in the Court of Judicial Magistrate Ist Class, who in turn committed the case to the Court of Sessions. 5. Having made out a prima-facie case, the appellant and his co-accused were charged under Section 15 to which they pleaded not guilty and claimed trial. 6. Surjan Singh co-accused of the appellant jumped bail and after taking proceedings under Sections 82/83, Criminal Procedure Code he was declared a proclaimed offender on 29.11.1996. 7. In order to prove the allegations, the prosecution examined 6 witnesses. Shri Tejinder Singh Sarpanch P.W. was given up as having been won over. The report of the Chemical Examiner Ex.PJ was also tendered in evidence. 8. After close of the prosecution evidence, statements of the appellant and two co-accused Jaswant Singh and Sukhwidner Singh were recorded under Section 313, Criminal Procedure Code wherein they denied the prosecution allegations. In defence they examined DW1 Tejinder Singh who was cited as an independent witness by the prosecution and was given up as having been won over. He stated that he was Sarpanch of village Jagirpur in the year 1993 and on 9.9.1993 he visited the police station in connection with his own work where the S.H.O. got his signature on 6/7 written papers but no recovery of popply husk was effected from the possession of the appellant and his co-accused in his presence. 9. After hearing learned P.P. for the State and the learned defence counsel, the learned Addl. Sessions Judge, Ludhiana, vide his judgment dated 25.4.2000 acquitted Jaswant Singh and Sukhwinder Singh but found Nirmal Singh appellant guilty and convicted him under Section 15 of the Act and vide order of even date sentenced him as mentioned in the earlier part of the judgment. 10. Aggrieved by the said judgment and order, Nirmal Singh accused has filed the present appeal. 11. 10. Aggrieved by the said judgment and order, Nirmal Singh accused has filed the present appeal. 11. I have heard Mr. G.S. Kaura, learned counsel for the appellant, Mr. S.C. Bhardwaj, learned AAG Punjab and carefully gone through the file. 12. DW1 Tejinder Singh was cited as an independent witness who was present at the time of alleged recovery. However, he (as DW1) had not supported the prosecution version. He stated that he was Sarpanch of village Jagirpur in the year 1993. He next stated that on 9.9.1993 he visited the police station inn connection with his own work and the S.H.O. got his signature on 6/7 written papers but no poppy husk was recovered from the appellant and his co- accused in his presence. He denied the suggestion that he was joined by Inspector Balwant Singh in the police party near the petrol pump where the appellant and co-accused came along with tractor trolley and were apprehended and 30 bags of peppy husk were recovered from there. In the absence of independent evidence, the case depends upon the testimony of PW3 Inspector Balwant Singh (now DSP) and PW4 ASI Parminder Singh. From their evidence, it is proved that on 9.9.1993 at about 10.30 A.M. a tractor trolley was intercepted near the petrol pump of Ishar Singh and on the tractor two persons were sitting but they ran away but the appellant his co-accused who were sitting in the trolley were apprehended. It is also proved that fodder was loaded in the trolley and after removing the fodder, 30 bags of poppy husk were recovered from the trolley. It is difficult to believe that two persons i.e. driver of the tractor and the other person who was sitting on the tractor had run away in the presence of a number of police officials who had intercepted the tractor trolley. The only interference is that the occurrence had not taken place as alleged. The very fact that Tejinder Singh Sarpanch of the village was not present but was falsely shown as a witness again suggests that the prosecution story is not true and the recovery has not been effected in the manner suggested by the prosecution. 13. The only interference is that the occurrence had not taken place as alleged. The very fact that Tejinder Singh Sarpanch of the village was not present but was falsely shown as a witness again suggests that the prosecution story is not true and the recovery has not been effected in the manner suggested by the prosecution. 13. The main contention of the learned counsel is that admittedly green fodder was loaded in the trolley and the appellant along with co-accused Surjan Singh was sitting on the green fodder and on seeing the police party they did not make any effort to run away and in fact the poppy husk belonged to the two persons who were sitting on the tractor and had run away. He further contended that they were just sitting in the trolley as they had taken a lift and they had no knowledge that the trolley contained gunny bags of poppy husk. Thus, he contended that conscious possession cannot be attributed to the appellant. The conduct of the appellant and his co-accused in not running away or having not made any effort to run along with co-accused suggests that they were sitting in the trolley innocently and had no knowledge that it was loaded with gunny bags of poppy husk because on the gunny bags green fodder was loaded. 14. Counsel for the appellant next contended that the case property which was alleged to be recovered from the trolley had not been produced and the bags of poppy husk which were produced in the court could not be linked with the case property. PW3 DSP Balwant Singh had admitted in his statement that there was no seal on the four gunny bags and 12 bags contained broken seals. He further stated that in fact there was no slip on any of the bags. Thus, it cannot be said that these bags were the case property of the present case. PW5 Constable Amrik Singh has stated in his cross-examination that sample of 250 Gms. of poppy husk each was taken from the gunny bags. However, the case of the prosecution is that sample of 200 Gms. each was taken from each of the bags. This discrepancy again suggests that recovery had not taken place in the manner suggested by the prosecution. PW3 DSP Balwant Singh could not identify the co-accused of the appellant correctly. of poppy husk each was taken from the gunny bags. However, the case of the prosecution is that sample of 200 Gms. each was taken from each of the bags. This discrepancy again suggests that recovery had not taken place in the manner suggested by the prosecution. PW3 DSP Balwant Singh could not identify the co-accused of the appellant correctly. He identified Nirmal Singh as Surjan Singh. This again suggests that he had not seen Nirmal Singh and Surjan Singh at the spot and the case had been planted while sitting in the police station. 15. PW3 DSP Balwant Singh stated that tractor trolley was intercepted at about 10 or 10.30 A.M. on 9.9.1993 and Tejinder Singh DW reached there after 5/7 minutes. However, PW4 ASI Parminder Singh contradicted him and stated that Tejinder Singh had reached the spot at about 11.30 A.M. and then search was conducted and recovery memo was prepared at 12 Noon. This discrepancy again suggests that Tejinder Singh Sarpanch was not joined in the police party but was falsely shown as a witness. 16. PW4 ASI Parminder Singh further stated that a Constable was sent with ruqa at 3.00 P.M. and DSP Kanwarjit Singh had reached at 2.30 P.M. However, he did not attest the memos. If the DSP had come at 2.30 P.M. then he would have attested the memos at the spot. This again suggests that the DSP did not reach the spot as alleged but he was made to sign certain papers afterwards. All these circumstances make the prosecution case doubtful. 17. In view of the discussion above, I hold that the prosecution has not been able to bring home guilt to the appellant beyond reasonable shadow of doubt. Consequently, the appeal is allowed and he is acquitted. Appeal allowed.