Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 498 (PNJ)

Bachittar Singh v. State Of Punjab

2005-04-06

S.S.SARON

body2005
Judgment S.S.Saron, J. 1. This appeal has been filed by the appellant against the judgment and order dated 5.12.1989 passed by the learned Additional Sessions Judge, Ludhiana whereby the appellant has been convicted for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act, for short) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year. 2. Case FIR No. 36 of 12.2.1987 (Ex. PC/1) was registered on the writing sent by Sub-Inspector Harbhajan Singh (PW-2). It was stated by SI Harbhajan Singh (PW-2) that on the date of the occurrence i.e. 12.2.1987 at about 1.30 p.m. he along with ASI Uttam Singh (PW-1) and other police officials were present at Tehsil Chowk Jagraon in a Government Jeep No. PUN 2509 driven by Malkiat Singh, Constable and a barricade (naka) had been set up at that time. A secret informer came to SI Harbhajan Singh (PW-2) and he informed that Bachhittar Singh (appellant) indulges in large scale sale of poppy husk and if a raid was conducted a large quantity of poppy husk and poppy heads could be recovered from him. The information was found reliable. Since Bachittar Singh aforesaid (appellant) had committed an offence punishable under Section 15 of the Act, a memo was sent to the Police Station for registration of FIR against the appellant for selling poppy husk and poppy heads. The writing was sent for registration of the FIR through Sukhwinder Singh Constable No. 884. SI Harbhajan Singh proceeded to the spot for conducting investigation. After that the police party went to the village Baba Manuke i.e. the village of the appellant from where Darshan Singh an independent witness was joined with the police party. They reached the house of the appellant at about 2.15 p.m. and he met them at the gate. He was taken in custody and interrogated. During his interrogation, the appellant made a disclosure statement that he had kept concealed 20 bags of poppy husk in a deserted well in the area of village Bhamipura and also offered to get the same recovered. The disclosure statement Ex. PA was recorded which was signed by the accused and attested by ASI Uttam Singh (PW-1) and the independent witness Darshan Singh. The disclosure statement Ex. PA was recorded which was signed by the accused and attested by ASI Uttam Singh (PW-1) and the independent witness Darshan Singh. In pursuance of the disclosure statement, 20 bags of poppy heads were recovered which on weighment came to 40 kg. each. Samples of poppy heads weighing 250 grams each were taken out from each of the bags. The sample and the remaining poppy heads in the bags Exs. P-1 to P-20 were separately sealed by the Investigating Officer and the seal was handed over to Darshan Singh, the independent witness at the spot. The recovery bag along with samples were taken in possession vide memo Ex. PB and attested by the witnesses at the spot. Rough site plan Ex. PD with correct marginal notes was prepared and the statements of the witnesses were recorded. The case property was deposited with MHC Piara Singh with the seal intact. Report of the Chemical Examiner Ex. P-1 was received. After the police had completed the investigation, the challan in the case was filed on 7.7.1989. 3. The case was entrusted to the Court of learned Additional Sessions Judge, who initially framed charge against the appellant on 1.8.1989 in which it was mentioned that the appellant was found in possession of 40 kg. of poppy husk without a valid licence or permit and thereby he committed an offence punishable under Section 15 of the Act. The prosecution to prove its case examined ASI Uttam Singh (PW-1), SI Harbhajan Singh (PW-2), HC Piara Singh (PW-3) and Constable Chamkaur Singh (PW-4). Darshan Singh the independent witness was given up as having been won over by the accused. The other witnesses were given up as unnecessary. Thereafter, the statement of the accused was recorded in terms of Section 313 of the Code of Criminal Procedure (Cr.P.C., for short) on 10.11.1989 in which he stated that he was innocent and nothing was recovered from him. It is further stated that he was brought under security proceedings, and falsely implicated in this case. 4. After recording the statement of the appellant under Section 313 Cr.P.C., the learned Additional Sessions Judge found that the charge had not been properly framed. It had transpired that inadvertently the charge could not be correctly framed. It is further stated that he was brought under security proceedings, and falsely implicated in this case. 4. After recording the statement of the appellant under Section 313 Cr.P.C., the learned Additional Sessions Judge found that the charge had not been properly framed. It had transpired that inadvertently the charge could not be correctly framed. The same was defective inasmuch as the case of the prosecution was that on 12.2.1987 in the area of Bhamipura the accused was found in possession of 20 bags each containing 40 kgs of poppy husk. However, inadvertently in the charge it was recorded that the appellant was found in possession of 40 kgs. of poppy husk only. The learned Additional Public Prosecutor and the defence counsel on 25.11.1989 stated that they had no objection to the amendment of the charge in accordance with the FIR. Accordingly, it was directed that the charge be amended in accordance with the FIR. An amended charge was framed on 25.11.1989 to the effect that the accused on or about 12.2.1987 in the area of Bhamipura, was found in possession of 20 bags each containing 40 kgs. of poppy husk without a valid licence or permit and thereby committed an offence punishable under Section 15 of the Act. The charge was read over and explained to the accused. He pleaded not guilty and claimed trial. The statements of the Additional Public Prosecutor and the defence counsel were recorded to the effect that they do not want to produce any PW for examination, re-examination or cross-examination. Besides, the accused does not want to lead defence evidence. The Additional Public Prosecutor stated that after the amendment of the charge he does not want to recall any witness and that the evidence already recorded may be read. Similarly, statement of the accused was recorded, which is to the effect that after amendment of the charge he does not want to recall any PW for further cross-examination and that the evidence already on the record may be read. Besides, his statement already recorded under Section 313 Cr.P.C. be read and he did not want to produce any evidence in defence. The learned Additional Sessions Judge after considering the evidence and material on record vide his impugned order convicted and sentenced the appellant, which order is assailed by the appellant in this appeal. 5. Besides, his statement already recorded under Section 313 Cr.P.C. be read and he did not want to produce any evidence in defence. The learned Additional Sessions Judge after considering the evidence and material on record vide his impugned order convicted and sentenced the appellant, which order is assailed by the appellant in this appeal. 5. Learned counsel appearing for the appellant submits that the case of the prosecution is highly defective and independent witness i.e. Darshan Singh even though joined in the investigation was not examined. It is further submitted that the recovery was effected from a populated area and no efforts were made by the Investigating Officer to join independent persons from the area. Therefore, it is contended that the case set up by the prosecution is highly defective. Besides, it is contended that the alleged recovery of the contraband is from the well and it is not shown by the prosecution that the said well was owned by the appellant. In fact, it has come on record that the said well was owned by one Kishan Singh. Therefore, it is contended that on the basis of the evidence and material on record the appellant is liable to be acquitted after setting aside the judgment and order under appeal. 6. In response, learned counsel for the State submits that the prosecution has proved its case in all respects. It is submitted that the recovery in the case has been effected on the basis of disclosure statement of the appellant and there is no reason to falsely implicate the appellant. Besides, it is submitted that the recovery in the case is heavy which could not have been planted. Therefore, the judgment and order passed by the learned trial Court is liable to be maintained and the appeal is liable to be dismissed. 7. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties. It may appropriately be noticed that in the case in hand only the official witnesses have been examined. SI Harbhajan Singh (PW-2), who investigated the case and had effected the recovery has supported his version as given in the FIR and also the investigations carried out by him. It may appropriately be noticed that in the case in hand only the official witnesses have been examined. SI Harbhajan Singh (PW-2), who investigated the case and had effected the recovery has supported his version as given in the FIR and also the investigations carried out by him. He has stated that the appellant was apprehended at his house and interrogated and it is during interrogation that he made a disclosure statement that he had kept concealed poppy husk in a deserted well in the area of village Bhamipura which he offered to get recovered. On the basis of the disclosure statement Ex. PA, which was attested by ASI Uttam Singh and Darshan Singh the recovery was effected. The bags were exhibited as Exs. P-1 to P-20 and the seal was handed over to Darshan Singh, the independent witness at the spot. The recovered bags along with the samples were taken into possession. In the cross-examination, SI Harbhajan Singh (PW-2) accepts that after recovery no separate report was sent to any Gazetted Officer. He also states that the person giving secret information had arrived at the Tehsil Chowk but he did remember how he had come. It is also accepted by him that the place of recovery was owned by Kishan Singh of Village Bhamipura. Besides, while going to the spot some persons met them and they were directed to join the investigation but they showed their inability to join except Darshan Singh. It is stated that they had asked two or three persons to join the police party. It is also accepted that Tehsil Chowk was a busy locality. ASI Uttam Singh (PW-1) also supports the case of the prosecution and he was a member of the police party when the recovery was effected. In cross-examination, he states that he does not know the owner of the place of recovery, however, he accepts that it was not owned by the appellant. He also states that he does not know if any report was sent to the police station after the recovery. The appellant, he states was not informed about the grounds of arrest verbally. He also states that some persons had met them after the recovery when the accused was being taken to the police station. Some persons had passed when they were going from police station upto the time they reached the village of the accused. The appellant, he states was not informed about the grounds of arrest verbally. He also states that some persons had met them after the recovery when the accused was being taken to the police station. Some persons had passed when they were going from police station upto the time they reached the village of the accused. He states that none of the persons were directed to join the police party except Darshan Singh. It is also stated that the accused was not handcuffed. It is further stated that the chowk i.e. where the secret informer met the Investigating Officer is surrounded by thickly populated area. Besides, they had passed through villages Akhara, Bhamipura and then reached Manukya Baba. The house of the appellant, it is stated, is in the village abadi. The other evidence on record is that of Head Constable Piara Singh who has tendered his affidavit Ex. PF. Besides, Constable Chamkaur Singh, who has tendered his affidavit Ex. PE. As already noticed Darshan Singh, the independent witness was given up. The case in hand is, thus based only on the statements of SI Harbhajan Singh (PW-2) and ASI Uttam Singh (PW-1). Besides, one Head Constable Piara Singh (PW-3) and that of Constable Chamkaur Singh (PW-4). After perusing the evidence and material on record it is appropriate to note that the same is based only the deposition of the police witnesses and one of the independent witness who was joined in the raid has not been examined by the prosecution. The secret information that was received by SI Harbhajan Singh (PW-2) at Tehsil Chowk, Jagraon. The said area is admittedly a busy and a thickly populated area. This fact is accepted by SI Harbhajan Singh (PW-2) and ASI Uttam Singh (PW-1). However, no effort was made to join an independent witness from the area where the secret information was received. Besides, Darshan Singh, who is the only independent witness even though he was joined was not examined as a witness. 8. This Court in Hukami v. State of Haryana, 2004(1) RCR(Criminal) 934 in a case relating to recovery of narcotic drugs acquitted the accused therein. It was observed that the police had intentionally not joined some independent witness of status and one Ranbir Singh, who was joined was not produced. No reason was assigned as to why he was not produced. This Court in Hukami v. State of Haryana, 2004(1) RCR(Criminal) 934 in a case relating to recovery of narcotic drugs acquitted the accused therein. It was observed that the police had intentionally not joined some independent witness of status and one Ranbir Singh, who was joined was not produced. No reason was assigned as to why he was not produced. It was observed that the only presumption is that if he had been produced, he would not have supported the prosecution version. In State of Punjab v. Jagjit Singh, 2002(4) RCR(Crl.) 442 : 2002(4) RCR 442, a Division Bench of this Court in a case relating to recovery of poppy husk under Section 15 of the Act observed that police had made no effort to join any independent witness although the recovery was effected from a busy thoroughfare. One witness who is said to be an independent witness was given up without justification. The acquittal of the accused in the said case was upheld. Similarly, this Court in Ranjit Singh alias Jita v. State of Punjab, 2003(2) RCR(Criminal) 280 relating to recovery of 150 grams of poppy husk from a big compound of the accused on receipt of secret information considered the circumstance where no independent witness was joined while effecting recovery from the accused therein on the basis of his disclosure statement. It was observed that the statement of the Investigating Officer that he asked many persons to join but no one was ready but he did not remember their names and no action was taken, was a mere bald statement of the Investigating Officer and was not liable to be believed. The accused therein was inter alia acquitted on the said ground. This Court in Rameshwar v. State of Haryana, 1995(3) RCR(Crl.) 716 : 1995(3) RCR 716, in a case of recovery of opium by a police patrolling party observed that the accused was arrested but the police party reached back after four hours which was 4 kms. away from the spot. It was observed that there was no occasion for the police party to stay at the spot for four hours and it cates shadow of doubt on prosecution case as no independent witness was joined and the accused was acquitted. 9. away from the spot. It was observed that there was no occasion for the police party to stay at the spot for four hours and it cates shadow of doubt on prosecution case as no independent witness was joined and the accused was acquitted. 9. Learned counsel for the State has, however, contended on the strength of Parminder Singh v. State of Punjab, 2000(3) RCR(Criminal) 154 that where one witness was joined but was not examined would not be fatal when the evidence of official witnesses was believable. In the said case, the official witnesses who had been examined were found believable. However, in the case in hand, there are inconsistencies in the statements of the official witnesses i.e. SI Harbhajan Singh (PW-2) and ASI Uttam Singh (PW-1). SI Harbhajan Singh (PW-2) states that the ground of arrest was informed to the accused when he was arrested, however, ASI Uttam Singh (PW-1) states that the accused was not informed about the ground of arrest. Besides, SI Harbhajan Singh (PW-2) states that the accused was handcuffed at the time of recovery whereas ASI Uttam Singh (PW-1) states that the accused was not handcuffed. Further, it is appropriate to note that SI Harbhajan Singh (PW-2) states that he did not remember how the secret informer arrived at the Tehsil Chowk, ASI Uttam Singh (PW-1), however, states that he arrived on foot. Besides, SI Harbhajan Singh (PW-2) states that the place of recovery was owned by Kishan Singh of village Bhamipura whereas ASI Uttam Singh (PW-1) states that he does not know who was the owner of the place of recovery. There are other discrepancies also in the statement of the two witnesses. Therefore, in my view, it would be unsafe to base the conviction of the appellant solely on the basis of the said evidence. 10. The investigating officer SI Harbhajan Singh (PW-2) has stated in his statement that after recovery no separate report was sent by him to any Gazetted Officer. Even ASI Uttam Singh (PW-1) states that he did not know, if any report was sent to the Police Station after the recovery. 10. The investigating officer SI Harbhajan Singh (PW-2) has stated in his statement that after recovery no separate report was sent by him to any Gazetted Officer. Even ASI Uttam Singh (PW-1) states that he did not know, if any report was sent to the Police Station after the recovery. The provisions of Section 57 of the Act enjoin that whenever any person makes any arrest or seizure under the Act he shall within 48 hours next after such arrest or seizure make a report of all the particulars of such arrest or seizure to his immediate official superior. Learned counsel for the State submits that no prejudice has been caused to the appellant in not sending the report to the immediate official superior of the Investigating Officer which was required to be sent within 48 hours. In support of his contention, he has referred to the decision of this Court in Rameshwar v. State of Haryanas case (supra), wherein it was held that if report was not sent to immediate superior Officer, which was required to be sent within 48 hours, the trial would not be vitiated unless it has caused any prejudice to the evidence. The Honble Supreme Court, however, in Gurbax Singh v. State of Haryana, 2001(1) RCR(Crl.) 702 : AIR 2001 SC 1002 observed that the provisions of Section 57 of the Act are directory and violation of these provisions would not ipso facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the case in hand, the Investigating Officer SI Harbhajan Singh (PW-2) has stated that he did not send any report of arrest or seizure to the higher Officer which would mean that he may not even be aware of the requirement of sending such report. The case in hand being based only on the evidence of official witnesses, the failure to send the report to the immediate official superior as contemplated by Section 57 of the Act, in the facts and circumstances of the case, would in my view result in prejudice and has a bearing on the appreciation of evidence on record. The case in hand being based only on the evidence of official witnesses, the failure to send the report to the immediate official superior as contemplated by Section 57 of the Act, in the facts and circumstances of the case, would in my view result in prejudice and has a bearing on the appreciation of evidence on record. It is not a case of mere failure to send a report to the immediate official superior but where the provisions of the Act have not been complied with. The circumstances go to show that the Investigating Officer may not even be aware of the requirement of various provisions of the Act. This would evidently show that the investigation in the case has not been carried out in accordance with the provisions of the Act and was rather perfunctory. In a case which is based on the disclosure statement and no independent witness has been examined, a higher standard of investigation is expected which, would inspire confidence in the Court of the accused having committed the crime so as to record a finding of guilt. 11. Besides, the ownership of the well, which is the place of recovery and from where the contraband is alleged to have been recovered is also not proved in the case in hand. It is admitted position that Kishan Singh of village Bhamipura was the owner of the well and the appellant was not the owner. Besides, no person of village Bhamipura was joined in the search while effecting recovery of the contraband on the disclosure statement of the accused. This Court in Mani Ram v. State of Haryana, 1999(2) RCR(Criminal) 411 in a case where eight bags of poppy straw were recovered from the `nohra of the accused and there was no evidence to establish that the accused was in exclusive possession of the property and the independent witness also did not support the prosecution, observed that unless and until the prosecution establishes the exclusive possession of the appellant with regard to the property from where eight bags of poppy straw were recovered, the appellant therein cannot be convicted and he was acquitted. Besides, in Balwinder Singh v. State of Punjab, 1999(2) RCR(Criminal) 786 in a case of recovery of contraband from a `kotha which had no door on one side and the ownership of the accused therein in respect of the `kotha could not be established and the Investigating Officer therein gave a twist to the case and recorded statement of the accused under Section 27 of the Evidence Act to show that recovery had been effected on disclosure statement, it was held that the investigation conducted in the said case was not honest and the accused was acquitted. In view of the above, it is evident that the evidence in the case is based only on the official witnesses which does not inspire confidence to record a finding of guilt against the appellant. Their statements are discrepant in material particulars. The Investigating Officer did not send his report to the higher Officer in terms of Section 57 of the Act, though the said provision is directory in nature as observed in Gurbax Singh v. State of Haryanas case (supra), however, the same has a bearing on the appreciation of the evidence on record. The evidence on record has been observed to be discrepant. The ownership of the well which, is the place of recovery is admittedly not established to be owned or possessed by the appellant and no independent witness from village Bhamipura was joined to prove the recovery. Even otherwise the only independent witness who was joined in the case i.e. Darshan Singh has not been examined. No independent witness was joined from the place where secret information was received by the Investigating Officer at the Tehsil Chowk, even though the area is a thickly populated area. Therefore, the finding of guilt recorded by the trial Court is not liable to be sustained and the appellant is liable to be given the benefit of doubt. Accordingly, the appeal is accepted and the judgment and order passed by the learned Additional Sessions Judge, Ludhiana is set aside. The accused is acquitted of the offence under Section 15 of the Act.