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2005 DIGILAW 1001 (PNJ)

Sukhdev Singh Alias Sukha v. State Of Punjab

2005-09-20

BALDEV SINGH, J.S.NARANG

body2005
Judgment Baldev Singh, J. 1. Sukhdev Singh alias Sukha son of Hazura Singh, resident of Village Bhima, Police Station, Rori, District Sirsa (Haryana) has filed this appeal against the impugned judgment of conviction and sentence order, both dated December 22, 1999, passed by Sh. A.S. Kathuria, the then Judge, Special Court (Additional Sessions Judge), Mansa, in the case, First Information Report No. 13 dated January 26, 1995, under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act), registered at Police Station Sardulgarh. 2. The appellant was convicted under Section 15 of the Act and was sentenced to undergo rigorous imprisonment for a period of twelve years and to pay rupees one lac as fine and in default of payment of fine to further undergo rigorous imprisonment for two years. 3. The prayer made in this appeal is to set aside the impugned judgment and the sentence order by acceptance of this appeal and to acquit the appellant of the charge framed against him under Section 15 of the Act. 4. The facts of the prosecution case are that on January 26, 1995, Gurdeep Singh, Inspector/Station House Officer of Police Station Sardulgarh along with other police officials went for patrolling, in a government vehicle, bearing registration No. PB-03-3104. When then vehicle took a turn towards Village Ahlupur, P.W. Ranjit Singh son of Inder Singh resident of Village Makhawala had been joined in the police party. When they reached about 1 Km ahead of Village Khehra Khurd, they spotted the appellant sitting on bags lying in a field on the left side on the road. On seeing the police party, the appellant tried to conceal himself by taking a lying position on the bags. He was apprehended on suspicion. Six bags containing poppy husk were recovered, on which he was sitting. On inquiry, the appellant disclosed his name as Sukhdev Singh alias Sukha son of Hazura Singh resident of Village Bhima. Iqbal Singh, Deputy Superintendent of Police, was summoned at the spot by sending him wireless message. In his presence, 100 gms poppy husk was taken out as sample from each bag. Before drawing the samples, each bag was weighed and 32 Kgs of poppy husk was found in each bag. The samples were sealed by Gurdeep Singh, Inspector, with his seal bearing impression of letters `GS. In his presence, 100 gms poppy husk was taken out as sample from each bag. Before drawing the samples, each bag was weighed and 32 Kgs of poppy husk was found in each bag. The samples were sealed by Gurdeep Singh, Inspector, with his seal bearing impression of letters `GS. The remaining poppy husk was sealed in the same bags with the same seal. The samples and the bags were taken into possession vide recovery memo Exhibit P.A. It was attested by Iqbal Singh, Deputy Superintendent of Police, Ranjit Singh and Jang Singh, Sub Inspector. Sample of the seal was also prepared. The appellant was formally arrested vide vide memo Exhibit P.E. Site plan Exhibit P.D. was prepared showing the place of recovery. Ruqa Exhibit P.C. was sent to the Police Station, on the basis of which First Information Report was registered. Exhibit P.C/1 is copy of the First Information Report. The case property was brought to the Police Station and it was deposited in the `Malkhana. The appellant was also confined in the lock up of the Police Station. On the next day, Gurdeep Singh, Inspector, produced the samples and the bags of poppy husk before the Sub-Divisional Judicial Magistrate, Mansa vide application Exhibit P.G. and the Sub-Divisional Judicial Magistrate ordered that the said incriminating material be deposited in the `Malkhana. The samples were later on sent to the Chemical Examiner, Patiala, whose report Exhibit P.H was received. The contents of the samples were found crushed poppy heads (poppy husk). On completion of the investigation, challan was put in the Court against the appellant. 5. The Ilaqa Magistrate committed the case for trial to the Special Court empowered under the Act to try the offence. 6. Charge was framed under Section 15 of the Act against the appellant, to which he pleaded not guilty and claimed trial. 7. The prosecution, at the trial, examined four witnesses, namely, PW-1 Gurdeep Singh, Inspector, PW-2 Iqbal Singh, Deputy Superintendent of Police, PW-3 Constable Gurdeep Singh and PW-4 Jang Singh, Sub Inspector. 8. Exhibit P.A. is recovery memo. Exhibit P.B. is search memo. Exhibit P.C. is ruqa. Exhibit P.C/1 is copy of First Information Report. Exhibit P.D. is site plan. Exhibit P.E is arrest memo. Exhibit P.F is information memo. Exhibit P.G. is application for producing the case property. Exhibit P.H is report of the Chemical Examiner. 8. Exhibit P.A. is recovery memo. Exhibit P.B. is search memo. Exhibit P.C. is ruqa. Exhibit P.C/1 is copy of First Information Report. Exhibit P.D. is site plan. Exhibit P.E is arrest memo. Exhibit P.F is information memo. Exhibit P.G. is application for producing the case property. Exhibit P.H is report of the Chemical Examiner. Exhibit P.X is affidavit of Constable Gurdeep Singh. Exhibit P.Y is special report. Exhibits P-1 to P-6 are the bags of poppy husk. This is the entire evidence of the prosecution. 9. On the conclusion of the prosecution evidence, statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure and all the incriminating circumstances appearing against him were put to him. He denied the prosecution allegations and complained of his false implicity in the case. 10. The appellant examined two witnesses in defence, namely, DW-1 Jit Singh, Assistant Sub-Inspector and DW-2 Ranjit Singh. 11. Arguments of the Ld. Counsel for the appellant and of the Assistant Advocate General were heard and evidence was scrutinized with their help. 12. The Ld. Counsel for the appellant argued that in this case conscious possession of the appellant is not proved by the prosecution, even if it is established that he was physically present there. The facts of the prosecution case are that on January 26, 1995 Gurdeep Singh, Inspector/Station House Officer of Police Station Sardulgarh along with other police officials went for patrolling from Village Khehra Khurd to Village Ahlupur. When they took turn towards Village Ahlupur, P.W. Ranjit Singh was joined in the police party. When the police party reached about 1 Km ahead of Village Khehra Khurd, they noticed the appellant sitting on bags lying in field on the left side of the road. On seeing the police party, the appellant tried to escape by taking a lying position on the bags. He was apprehended on suspicion. The bags were impounded. Those were six in number, each containing poppy husk. The appellant, on inquiry, told his name as Sukhdev Singh alias Sukha son of Hazura Singh resident of Village Bhima. Iqbal Singh, Deputy Superintendent of Police, was summoned at the spot through wireless message. Then, in his presence, the bags were weighed. Each bag was found to contain 32 Kgs poppy husk. 100 gms poppy husk was taken out as sample from each bag. The samples were sealed. Iqbal Singh, Deputy Superintendent of Police, was summoned at the spot through wireless message. Then, in his presence, the bags were weighed. Each bag was found to contain 32 Kgs poppy husk. 100 gms poppy husk was taken out as sample from each bag. The samples were sealed. The remaining poppy husk was also sealed in the bags. Gurdeep Singh, Inspector, used his seal in sealing the samples and the bags, bearing impression of letters `GS. The seal, after use, was given to Jang Singh, Sub Inspector. Recovery memo Exhibit P.A. was prepared, which was attested by Iqbal Singh, Deputy Superintendent of Police, Ranjit Singh and Jang Singh, Sub-Inspector. The Ld. Counsel for the appellant argued that the alleged recovery was conducted in the area of Village Khehra Khurd in the jurisdiction of Police Station Sardulgarh. The appellant belongs to Village Bhima, which is within the jurisdiction of Police Station, Rori, District Sirsa. The police did not make any investigation as to how bags of poppy husk were transported to the place of recovery. They also have not adduced any evidence to show the ownership of the poppy husk. The presence of the appellant at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. The police, in all fairness, should have conducted further investigation to prove that the appellant was really in possession of these bags. The failure to give any explanation by the appellant for being present on that place itself does not prove that he was in possession of these articles. The Ld. Counsel for the appellant relied upon the case of State of Punjab v. Balkar Singh and another, 2004 SCC(Crl.) 838. Such a situation arose in this case. The accused were alleged to have been found present at the place where about 100 bags of poppy husk were recovered, sitting on such bags and failing to give any satisfactory explanation for being present at that place. The question arose whether it was proof enough of "conscious possession" of the prohibited substance. Such a situation arose in this case. The accused were alleged to have been found present at the place where about 100 bags of poppy husk were recovered, sitting on such bags and failing to give any satisfactory explanation for being present at that place. The question arose whether it was proof enough of "conscious possession" of the prohibited substance. It was held by the Apex Court that merely by being found to be present at the place where the poppy husk bags were found and the failure to give any satisfactory explanation for being so present did not prove that the accused persons were in possession of the said poppy husk bags. The accused belonged to different villages. In all fairness, the police should have conducted further investigation as to transportation of the poppy husk bags to the place of incident, ownership of poppy husk etc., to prove that the accused were really in possession of said articles. The Apex Court dismissed the appeal filed by the State of Punjab against the judgment passed by this Court. Para No. 3 of this judgment reads as under :- "3. We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimony of PW-1 Balbir Singh and PW-2 ASI Jarnail Singh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court." 13. The Ld. Counsel for the appellant also referred to the case of Baldev Singh v. State of Punjab, 2005(1) RCR(Crl.) 823. Reliance was placed on the case of Syed Mohd. Syed Umer Syed and others v. State of Gujarat, JT 1995(3) SC 489 and Balkar Singhs case (supra), for deciding the above referred to case. Two bags of poppy husk were recovered. It was alleged that two accused persons were sitting over the bags. It was not established that bags belonged to the accused. It was held that merely because when the police saw the accused, they were sitting on the bags, does not infer that they were in conscious possession of those bags. Conviction recorded under Section 15 of the Act was set aside. 14. The Assistant Advocate General appearing for the respondent-State has not been able to repel the argument of the Ld. Counsel for the appellant by citing any authority applicable to the facts of this case. So, the contention of the Ld. Counsel for the appellant is tenable that in this case the conscious possession of the appellant is not proved. 15. The next argument of the Ld. Counsel for the appellant is that the prosecution has failed to prove that the case property (samples of poppy husk) remained intact till they were analysed by the Chemical Examiner. Counsel for the appellant is tenable that in this case the conscious possession of the appellant is not proved. 15. The next argument of the Ld. Counsel for the appellant is that the prosecution has failed to prove that the case property (samples of poppy husk) remained intact till they were analysed by the Chemical Examiner. Exhibit P.H. is the report of the Chemical Examiner. It shows that the samples were once received in the laboratory through Constable Gurdeep Singh on February 2, 1995. These were returned with some objection. Again, the samples were despatched and were received in the laboratory on February 6, 1995. P.W. Gurdeep Singh, Inspector, who is the Investigating Officer in this case, admitted in cross-examination that the seals of the samples were found broken. Hence, the samples could not be deposited, for the first time, due to the breaking of the seals. The Ld. Counsel for the appellant argued that the samples were tampered with. Hence, no sanctity is attached to them and the benefit of doubt goes to the appellant. It is also argued that PW Ranjit Singh, so-called independent witness, was present when the samples were drawn and sealed. The seal, after use, was not given by Gurdeep Singh, Inspector, to him. It was, rather, given to P.W. Jang Singh, Sub Inspector, who was posted in the same Police Station. The seal could be taken back from Jang Singh, Sub Inspector, at any time for re-using it before the samples were despatched to the laboratory. It creates a grave doubt. This contention of the Ld. Counsel for the appellant is also tenable. The seal should not have been available to the Investigating Officer and in the absence of such safeguard, the possibility of seal being tampered with, substance being changed and the containers being re-sealed, cannot be ruled out. 16. Last of all, the Ld. Counsel for the appellant argued that P.W. Ranjit Singh has not been examined by the police and this has upset the balance of the prosecution case, making the alleged recovery doubtful. P.W. Ranjit Singh, who was allegedly present at the place of recovery, was posted as Punjab Home Guard at Police Station Sardulgarh. This fact has been established from record by DW-1 Jit Singh, Assistant Sub Inspector. The prosecution gave up said P.W. Ranjit Singh on the facile plea of his having been won over by the appellant. P.W. Ranjit Singh, who was allegedly present at the place of recovery, was posted as Punjab Home Guard at Police Station Sardulgarh. This fact has been established from record by DW-1 Jit Singh, Assistant Sub Inspector. The prosecution gave up said P.W. Ranjit Singh on the facile plea of his having been won over by the appellant. The appellant was examined him as D.W.2. He deposed that he is in service of Punjab Home Guard since June 21, 1991 and his number is SI/765. He deposed that on January 26, 1995 (the date when the recovery was effected), he was posted as Punjab Home Guard at Sardulgarh and was attached with Police Station Sardulgarh. He did not join the police party on January 26, 1995. He identified his signatures on documents Exhibits P.A, P.D. and P.E. He denied that the appellant was found sitting on the bags of poppy husk in the area of Village Khehra Kurd. He denied that Iqbal Singh, Deputy Superintendent of Police was summoned and in his presence samples of poppy husk were drawn from the bags. He denied that six bags, each containing 32 Kgs of poppy husk, were recovered from the appellant and he attested the recovery memo at the spot. The very factum of the alleged recovery is rendered doubtful when P.W. Ranjit Singh, a Punjab Home Guard, which is a limb of the police force, denies the recovery having been effected from the appellant. 17. In view of the above-discussed infirmities in the prosecution case, the charge under Section 15 of the Act against the appellant is not proved beyond every reasonable doubt. Resultantly, we accept this appeal and acquit the appellant by setting aside the impugned judgment of conviction and the sentence order.