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2004 DIGILAW 649 (PNJ)

Hans Raj alias Hansa v. State of Punjab

2004-07-01

V.M.JAIN, VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Hans Raj alias Hansa, his father Bhajan Ram and his real brother Mohan Chand stand convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) vide impugned judgment of learned Judge, Special Court, Ludhiana dated 11.7.2002 and have been sentenced to undergo rigorous imprisonment for 12 years each and to pay a fine of Rs. 1 lac each, in default of payment of fine, each of the appellants is further ordered to undergo simple imprisonment for one and a half years. Aggrieved by their conviction and sentence, they have preferred the present appeal. 2. As per the prosecution allegations, on 24.11.1999, Inspector Jatinder Singh PW-6, SHO Police Station Civil Lines, Ludhiana along with ASI Kuldip Singh PW-5, ASI Abdul Rasheed PW-2, ASI Harjit Singh and other police officials were present in front of Bus Stand in connection with the general patrolling and checking of suspected persons. At about 6.40 P.M., PW-5 Kishan Lal son of Dukh Bhanjan Lal also met the police party and he was also associated. At that time Inspector Jatinder Singh received a secret information to the effect that Hans Raj appellant along with his father and other brother Mohan Chand alias Mohani appellants herein were bringing poppy husk in heavy quantity in truck bearing No. PB10-D-9976 from the side of Kohara towards the area of Jagraon and the said truck was being driven by Hans Raj. In case the nakabandi is held, the said truck carrying poppy husk could be apprehended. Since this information was found to be reliable, Inspector Jatinder Singh along with other police officials reached chowk Bhaiwala at about 7.05 P.M. and held a nakabandi and started checking the vehicles. At that time a truck bearing No. PB10-D-9976 came from the side of Bharat Nagar Chowk and the driver of the said truck stopped the same at some distance on seeing the police party. Two persons alighted from the truck and were able to escape taking the advantage of the darkness and traffic. The driver of the truck was apprehended at the spot who during interrogation disclosed his name as Hans Raj alias Hansa son of Bhajan Ram. The case of the prosecution is that later on names of those persons who had fled away from the spot were known as Mohan Chand alias Mohani and Bhajan Ram. The driver of the truck was apprehended at the spot who during interrogation disclosed his name as Hans Raj alias Hansa son of Bhajan Ram. The case of the prosecution is that later on names of those persons who had fled away from the spot were known as Mohan Chand alias Mohani and Bhajan Ram. It is then the case of the prosecution that Inspector Jatinder Singh then told appellant Hans Raj that he had suspicion that his truck was containing some contraband substance and as such he wanted to take its search and if he so desires any Magistrate or gazetted officer could be called for the search at the spot. Upon this, Hans Raj appellant showed his desire that the truck be searched in the presence of a gazetted officer and accordingly his statement was recorded in this regard which was signed by him and attested by the witnesses. Thereafter on the wireless message, Pawan Kumar Rai IPS PW-3 who was then ASP was requested to reach the spot. After Pawan Kumar Rai reached the spot, he disclosed his identity to appellant Hans Raj and further told him that if he so desire, some Magistrate could also be called at the spot. The appellant reposed confidence in him and in this regard also his consent Ex. PC was recorded which was signed by Hans Raj and attested by witnesses. Thereafter on the instructions of ASP Pawan Kumar Rai, the search of truck was conducted and it was found loaded with 15 bags concealed under the straw of paddy. The said bags were found containing poppy husk. Out of each bag, two samples weighing 250 grams were separated and the remaining contents of each of the bag were weighed which came to be 39-1/2 Kgs each. Thereafter, the parcels of the samples and the bags containing the remaining poppy husk were prepared and were sealed by Inspector Jatinder Singh with his seal bearing letters JS and with the seal of ASP Pawan Kumar Rai bearing letters PKR and the articles were taken into possession along with above said truck. The seal after use was handed over to ASI Abdul Rasheed PW-2. Since Hans Raj appellant could not produce any valid licence or permit for keeping the poppy husk in his possession, a ruqa Ex. The seal after use was handed over to ASI Abdul Rasheed PW-2. Since Hans Raj appellant could not produce any valid licence or permit for keeping the poppy husk in his possession, a ruqa Ex. PJ was sent to the concerned Police Station for the registration of the case and consequently the formal FIR Ex. PJ/1 was registered in Police Station, Civil Lines Ludhiana. Rough site plan was also prepared at the spot. Grounds of arrest were also disclosed to Hans Raj appellant. On returning to the police Station, the case property was deposited with the concerned MHC with all the seals intact. 3. Bhajan Ram appellant was apprehended on 8.9.1999 whereas Mohan Chand the other co-accused was initially declared proclaimed offender. After the completion of the investigation, Hans Raj and Bhajan Ram were charged under Section 15 of the Act. Later on Mohan Chand was arrested on 2.5.2000 and as such the charge was reframed against all the three appellants. 4. In support of its case, the prosecution has examined as many as 9 witnesses in this case besides tendering the report of Chemical Examiner Ex. PX. 5. The case of the prosecution mainly hinges on the statement of ASP Pawan Kumar Rai PW-3, Inspector Jatinder Singh the Investigating Officer in this case PW-6, ASI Abdul Rasheed the other witnesses of the recovery as PW-8. (Certain witnesses have appeared at two stages and therefore, they have been described differently). 6. The defence taken up by the appellants is of false implication. The plea taken is that Hans Raj and one Jagiro wife of brother of Hans Raj appellant were picked up on 24.11.1999 by the police of Police Station Division No. 5, Ludhiana along with truck No. PB-10D-9976 and at that time police party had also taken a sum of Rs. 50,000/- from the house of Hans Raj, his father Bhajan Ram and other brother Mohan Chand. 7. In defence the appellants have examined HC Jatinder Singh DW-1. Bhajan Ram appellant has himself appeared as DW-2 to support the defence plea. Sukhdev Singh Clerk of Judicial Record Room was also produced as DW-3 to prove that one application was moved in the court of Sh. Rajeev Malhotra, the then Judicial Magistrate Ist Class, Ludhiana and the same was sent to the Court of learned Chief Judicial Magistrate, Ludhiana. 8. Sukhdev Singh Clerk of Judicial Record Room was also produced as DW-3 to prove that one application was moved in the court of Sh. Rajeev Malhotra, the then Judicial Magistrate Ist Class, Ludhiana and the same was sent to the Court of learned Chief Judicial Magistrate, Ludhiana. 8. After appreciating the entire evidence, all the three appellants stand convicted and sentenced as stated above. Hence, this appeal. 9. We have heard Mr. N.K. Sanghi, Advocate learned counsel for the appellants and Mr. S.S. Randhawa, learned Senior Deputy Advocate General, Punjab. With their assistance, we have also gone through the entire records of the case minutely. 10. Mr. Sanghi opening his submissions has very strenuously argued that so far as Bhajan Ram and Mohan Chand alias Mohani appellants are concerned, the prosecution has not been able to connect them with the alleged offence as their identity is not fixed in this case. Dwelling upon his arguments, he further submitted that in the initial ruqa Ex. PJ, which is the basis of the registration of the FIR the only fact mentioned therein is that two persons who had alighted from the truck slipped away from the spot taking the advantage of darkness and traffic and later on their names came to be known as Mohan Chand alias Mohani and Bhajan Ram. He then contends that this piece of evidence cannot bind Bhajan Ram and Mohan Chand appellants with the commission of the offence unless their identity is proved legally. 11. Mr. Sanghi then contends that Jatinder Singh Investigating Officer of this case and ASP Pawan Kumar Rai PW-3 have stated that no identification parade to fix the identity of Bhajan Ram and Mohan Chand was ever conducted by the prosecution. According to the learned counsel, this is an inherent infirmity in the prosecution case and would be enough to discard the case of the prosecution so far as Bhajan Ram and Mohan Chand appellants are concerned and as such they deserve acquittal on this basic count alone. 12. Pointing out other weaknesses in the prosecution case, Mr. Sanghi submits that there is non-compliance of Section 42 of the Act as the Investigating Officer has not recorded grounds of search as contemplated by the provisions of Section 42 of the Act and this is also fatal to the prosecution. 12. Pointing out other weaknesses in the prosecution case, Mr. Sanghi submits that there is non-compliance of Section 42 of the Act as the Investigating Officer has not recorded grounds of search as contemplated by the provisions of Section 42 of the Act and this is also fatal to the prosecution. Arguing further, the learned counsel submits that the defence set up by the appellants in this case is most probable and the same has not been taken into consideration by the trial Court. According to the learned counsel, the defence plea set up by Hans Raj alias Hansa appellant is strengthened by documentary evidence which indicates that he was initially detained in the police station much prior to the registration of the case and thereafter the present case was foisted upon him and his two co-accused. In support of his contentions, the learned counsel has drawn our attention to an application mark X moved by Bhajan Ram appellant which was submitted before the Court of Sh. Rajeev Malhotra, Judicial Magistrate Ist Class, Ludhiana on 24.11.1999. Reading the contents of that application, the learned counsel submits that it has been categorically mentioned in the said application that the police party had taken Hans Raj appellant and one Jagiro from their house on the pretext that they were wanted in a poppy husk case and in case a sum of Rs. 50,000/- is not paid to them (police) they would be implicated in a case. Our attention has also been drawn to another document Ex. D-3 which is the certified copy of the telegram which is also to the same effect. The learned counsel further submits that the telegram to the higher officials was sent at about 3.30 P.M. on 24.11.1999 much prior to the registration of the present case and this by itself is sufficient to throw doubt over the entire prosecution case. Our attention has also been drawn to telegrams Ex. D-4 and D-5 in this regard. 13. On the basis of the aforesaid submissions, the learned counsel submits that the prosecution has not been able to prove its case beyond shadow of reasonable doubt even against Hans Raj alias Hansa appellant and he too deserves acquittal. 14. Our attention has also been drawn to telegrams Ex. D-4 and D-5 in this regard. 13. On the basis of the aforesaid submissions, the learned counsel submits that the prosecution has not been able to prove its case beyond shadow of reasonable doubt even against Hans Raj alias Hansa appellant and he too deserves acquittal. 14. In the alternative, the learned counsel for the appellants submits that even the sentence of 12 years imposed upon the appellants is too harsh a view and the same may be reduced. 15. Opposing the submissions made on behalf of the appellant, Mr. Randhawa, learned Senior Deputy Advocate General, Punjab submits that so far as identification of Bhajan Ram and Mohan Chand is concerned, the learned trial court has relied upon the statement of Abdul Rasheed PW-2 who has stated that the persons who had escaped from the truck were later on identified as Mohan Chand alias Mohani and Bhajan Ram. This fact is enough to hold that Bhajan Ram and Mohan Chand were in fact the persons who were also travelling with Hans Raj when the truck was apprehended. Consequently, Bhajan Ram and Mohan Chand cannot escape from their involvement in the crime. He further submits that defence plea taken by Hans Raj alias Hansa appellant is neither here nor there and as such he cannot derive any benefit out of the same. The conviction of all the three appellants, thus, deserves to be maintained, the learned State Counsel so contends. 16. After rescanning the entire evidence minutely and hearing either side at length, we are of the considered view that so far as Bhajan Ram and Mohan Chand appellants are concerned, the prosecution has not been able to prove its case beyond a shadow of reasonable doubt and they deserve acquittal. So far as Hans Raj alias Hansa appellant is concerned, the case of the prosecution is proved to the hilt and his conviction as recorded by the trial Court deserves to be maintained. Our reasoning for arriving at said conclusion is set out as under:- 17. The case of the prosecution as emerges from the initial ruqa Ex. PJ which is basis of the FIR, Hans Raj alias Hansa appellant was apprehended at the spot. So far as other two appellants are concerned, the case of the prosecution is that they managed to escape taking the advantage of darkness and traffic. The case of the prosecution as emerges from the initial ruqa Ex. PJ which is basis of the FIR, Hans Raj alias Hansa appellant was apprehended at the spot. So far as other two appellants are concerned, the case of the prosecution is that they managed to escape taking the advantage of darkness and traffic. The ruqa further indicates that later on Jatinder Singh Investigating Officer came to know their names as Bhajan Ram and Mohan Chand but there is no evidence to the effect that as to from whom he came to know their names. The admitted position in this case is that after the arrest of Bhajan Ram and Mohan Chand, their identification parade was not conducted. The matter does not rest here. Jatinder Singh Investigating Officer when stepped into witness box has not even identified them in the Court. This, in our considered view, is a basic lacuna which goes to the root of the case. 18. Let us now appreciate the evidence of PW Abdul Rasheed also in this context as it weighed very heavily in the minds of the trial court for the purpose of convicting Bhajan Ram and Mohan Chand. Abdul Rasheed when stepped into witness box has categorically stated that on seeing the police party, the driver of the truck stopped the vehicle and that two persons managed to escape and they could not be apprehended on account of darkness and traffic. The driver of the truck was identified as Hans Raj. Hans Raj was also identified by Abdul Rasheed PW-2 in the Court as well. He further states that the persons who escaped from the truck were later on came to be known as Mohan Chand alias Mohani and Bhajan Ram. He does not say a word to the effect that he knew them earlier or what was the source with the police for the identification of Bhajan Ram and Mohan Chand. The most interesting feature of the prosecution case is that even this witness does not identify Bhajan Ram and Mohan Chand in the Court. From the aforesaid evidence adduced on the file, the identification of Bhajan Ram and Mohan Chand remains under the clouds of suspicion and in the absence of any test of identification parade, in our considered view, these two appellants cannot be legally connected with the commission of offence. From the aforesaid evidence adduced on the file, the identification of Bhajan Ram and Mohan Chand remains under the clouds of suspicion and in the absence of any test of identification parade, in our considered view, these two appellants cannot be legally connected with the commission of offence. Admittedly, besides the evidence which has already been discussed above, there is no other piece of evidence against these two appellants. Consequently, we extend the benefit of doubt to Bhajan Ram and Mohan Chand alias Mohani and acquit them of the charge. 19. The argument advanced by the learned counsel for the appellants with regard to non-compliance of Section 42 of the Act falls on the ground for a very simple reason that in this case Section 42 of the Act is not at all applicable and instead Section 43 of the Act would be straight away attracted. Sections 42 and 43 of the Act contemplate two different situations. Section 42 of the Act contemplates entry and search of any such building, conveyance or place while Section 43 of the Act contemplates a seizure made in any public place or in transit. If the seizure is made under Section 42 of the Act between sunset and the sunrise, the requirement of proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the provision to Section 42 of the Act for searching the vehicle between sunset and sunrise. Our view is fortified by a latest judgment of Honble Apex Court rendered in State of Haryana v. Jarnail Singh and others, 2004(2) Recent Criminal Reports 960 (SC). We, thus, repel the argument advanced by the learned counsel in this regard. 20. Reverting back to the case of Hans Raj alias Hansa, the learned counsel for the appellant relies upon the application mark X but the same cannot be looked into as it is not legally proved. DW-3 Sukhdev Singh the Clerk has simply stated that one application was filed in the Court of Sh. Rajeev Malhotra, the then learned Judicial Magistrate Ist Class, Ludhiana and the same was sent to the learned Chief Judicial Magistrate, Ludhiana. DW-3 Sukhdev Singh the Clerk has simply stated that one application was filed in the Court of Sh. Rajeev Malhotra, the then learned Judicial Magistrate Ist Class, Ludhiana and the same was sent to the learned Chief Judicial Magistrate, Ludhiana. His statement does not prove that the application mark X was in fact the same application which was initially moved before Sh. Rajeev Malhotra in respect of illegal detention of Hans Raj and Jagiro. Similarly, the other documentary evidence in the shape of telegram produced on the file does not strengthen the case of Hans Raj appellant at all. The defence plea taken by Hans Raj appellant is weak and does not come to his rescue at all. On the other hand, there is no reason to disbelieve the statement of the official witnesses in which one of the witnesses of the recovery was an IPS officer. The truck also belongs to Hans Raj appellant and even his own case is that the truck was taken from his house on 24.11.1999 by the police. 21. As a sequel to the aforesaid discussion, in our considered view, the prosecution has been able to prove the fact beyond any shadow of reasonable doubt that on 24.11.1999, 15 bags of poppy husk were recovered from the truck No. PB10-D-9976 being driven by Hans Raj appellant for which he could not produce any valid licence or permit. The conviction as recorded by the trial Court, thus, deserves to be upheld. We order accordingly. 22. So far as the quantum of sentence is concerned, in our view, Hans Raj alias Hansa appellant deserves some reduction in his sentence. We accordingly, reduce the substantive sentence from 12 years already awarded to 10 years. However, the fine as awarded by the trial Court shall remain intact, the same being the minimum. So would be the position in respect of the default clause. No other point has been urged before us. 23. The net result, thus, is that the appeal stands partly allowed. Bhajan Ram and Mohan Chand alias Mohani appellants have been acquitted of the charge. They are hereby discharged of their surety bounds. The appeal qua Hans Raj alias Hansa appellant stands dismissed with the modification in the quantum of sentence, as indicated above. Appeal partly allowed.