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2005 DIGILAW 539 (PNJ)

Nachhattar Singh @ Billu v. State Of Punjab

2005-04-27

S.S.SARON

body2005
Judgment S.S.Saron, J. 1. This order will dispose of the above two Criminal Appeal Nos. 25-SB of 1991 and 93-SB of 1991 as they arise out of the same case FIR No. 3 dated 4.1.1987 registered at Police Station Tapa, District Sangrur. 2. Case FIR No. 3 dated 4.1.1987 was registered at Police Station Tapa, for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`Act for short) on the allegation that the appellants were found in possession 56 gunny bags of poppy husk without any permit. As per prosecution case, Balwant Singh, SI, who was posted at Police Station Tapa on 4.1.1987 along with other Police Officials were present at old Bus Stand, Tapa in connection with patrolling in Government Matador. There he received secret information that Nachattar Singh alias Billu and Baldev Singh alias Mithu (appellants) were in the habit of selling poppy husk and they were in possession of heavy quantity of popply husk. If a raid was conducted at the tube-well of Nachhattar Singh (appellant), then heavy quantity of poppy husk could be recovered from their possession. The information was found reliable and FIR Ex. PA/1 was got recorded by ASI Gurdas Singh. The police party then went towards the new Bus Stand and met Karam Singh on the way who was joined with the Police party. The tubewell of Nachhattar Singh was raided where the appellants were found loading gunny bags in a tractor trolley. On seeing the Police party they ran towards Barnala-Bathinda road. They were chased, however, they sat in a car standing on the road and went towards Rampura. The Police chased the car in a Matador vehicle but the appellants could not be apprehended. The Police party then came to the spot where the appellants were loading the gunny bags in the trolley attached to a Ford tractor bearing registration No. PBC-5872. Twenty six gunny bags were unloaded from the trolley. Thirty gunny bags, which were lying in a deep pit near the tube-well, were also recovered. Each gunny bag contained 45 Kgs. of poppy husk. Sample of 250 Kgs. of poppy husk was taken from each gunny bag and remaining poppy husk was put in the gunny bags Ex. P-1 to P-56. All the 56 samples and 56 bags were made in separate parcels and sealed. Each gunny bag contained 45 Kgs. of poppy husk. Sample of 250 Kgs. of poppy husk was taken from each gunny bag and remaining poppy husk was put in the gunny bags Ex. P-1 to P-56. All the 56 samples and 56 bags were made in separate parcels and sealed. The registration of the truck was found in the name of Baldev Singh. ASI Balwant Singh prepared the rough site plan, Ex. PC of the place of recovery. The case property along with samples, seal intact were deposited with MHC Tara Singh. On 8.1.1987, Beant Singh Sarpanch of Village Tajoke produced the appellants the appellants before SI Balwant Singh and they were arrested in the case. The Police carried out the investigation and challan was filed in the Court. The learned Additional Sessions Judge, Barnala on 19.5.1987 charged the appellants for having been found in possession of 56 bags each containing 45 Kgs. poppy heads without any permit and thereby committing an offence punishable under Section 15 of the Act. The appellants pleaded not guilty to the charge and claimed trial. 3. The prosecution in order to prove its case examined HC Gian Singh, CIA Staff, Barnala (PW-1) and Balwant Singh, SI/SHO, P.S. Cantt, Jalandhar (PW-2). A report of the Assistant Chemical Examiner, Ex. PE along with analytical chart, Ex. PE/1 and affidavits Ex. PF and PG of MHC Tara Singh and Constable Ram Dhan respectively were tendered in evidence and the evidence of the prosecution was closed. The statements of the appellants under Section 313 Cr.P.C. were recorded. Nachhattar Singh (appellant) stated that he was innocent. The land from where the alleged recovery was stated to have been made did not belong to him. Baldev Singh (appellant) in his statement stated that he was innocent. The land from where the alleged recovery was stated to be made did not belong to him. The tractor trolley was brought by the Police from his house in his absence on 4.1.1987 in the presence of Lila Singh and later on he was falsely involved in the case at the instance of Karam Singh (PW), who was inimical towards him. Lila Singh (DW-1) was examined in defence. 4. The tractor trolley was brought by the Police from his house in his absence on 4.1.1987 in the presence of Lila Singh and later on he was falsely involved in the case at the instance of Karam Singh (PW), who was inimical towards him. Lila Singh (DW-1) was examined in defence. 4. The learned Additional Sessions Judge, Barnala found the appellants to be guilty of the offence under Section 15 of the Act and accordingly sentenced them to rigorous imprisonment of 10 years each and also to pay a fine of Rs. 1 Lac each. In default of payment of fine they were to undergo further rigorous imprisonment for one year. The tractor trolley which belongs to Baldev Singh alias Mithu (appellant) were ordered to be forfeited to the State as they were used in the commission of heinous offence. The appellants have filed Criminal Appeal No. 25-SB of 1991 against their conviction and sentence. Baldev Singh (appellant) in addition to the appeal against the conviction and sentence has filed Criminal Appeal No. 93-SB of 1991 assailing the order whereby the tractor trolley which belongs to him has been ordered to be forfeited to the State. 5. Mr. Bipan Ghai, learned counsel appearing for the appellants in the appeals submits that the appellants have been falsely implicated and the prosecution story is highly improbable. It is contended that the appellants were admittedly not apprehended at the spot and the story that they managed to escape in the presence of so many policemen was not believable. Even subsequently, the car in which they are stated to have escaped was not traced or produced by the prosecution. Besides, the independent witness Karam Singh who met the Police party while they were on their way to raid the tubewell of Nachhattar Singh (appellant) has not been examined. It is also contended that the place of recovery does not belong to the appellants but belongs to one Kalu Singh. Moreover, the provisions of the Act, particularly Section 57 was not complied with and the report regarding arrest was not conveyed in accordance with the procedure mandated by law. It is also contended that the place of recovery does not belong to the appellants but belongs to one Kalu Singh. Moreover, the provisions of the Act, particularly Section 57 was not complied with and the report regarding arrest was not conveyed in accordance with the procedure mandated by law. Insofar as the appeal against the forfeiture of tractor trolley of Baldev Singh (appellant) is concerned, it is contended that the appellant Baldev Singh has been falsely implicated and, therefore, as a consequence of his being acquitted, the order forfeiting the tractor trolley to the State is liable to be set aside. 6. In response, Mr. A.S. Ladhar, learned Assistant Advocate General, Punjab appearing for the State submits that the fact that Karam Singh was not examined is inconsequential as witnesses are normally won over by the accused. Besides, it is contended that there is no reason for the Police Officials to falsely implicate the appellants and there is no enmity between the appellants and the Police Officials. Therefore, it contended that the order of conviction and sentence recorded by the learned trial Court is liable to be maintained. Besides, the order of forfeiture of the tractor trolley is also liable to be maintained. 7. I have given my thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. The case of the prosecution is based on the statement of official witnesses and during trial only two witnesses i.e. HC Gian Singh (PW-1) and Balwant Singh, SI (PW-2) have been examined. There is no independent evidence in the case and Karam Singh one of the witnesses who was joined in the investigation was not examined. According to Balwant Singh, SI (PW-2), the version as given in the FIR has been reiterated regarding his receiving secret information of the appellants dealing in contraband and being in possession of heavy quantity of poppy husk. On receipt of the information a raid was conducted at the tubewell of Nachhattar Singh where the Police party saw the appellants loading gunny bags in a tractor trolley. On seeing the Police party, they ran away towards Barnala road. They were chased but they could not be apprehended. The Police party them came back to the spot and recovered 66 (56 ?) bags of poppy husk. Each bag weighed 45 Kgs. On seeing the Police party, they ran away towards Barnala road. They were chased but they could not be apprehended. The Police party them came back to the spot and recovered 66 (56 ?) bags of poppy husk. Each bag weighed 45 Kgs. It is further stated that he deposited the case property along with sample and sample seal in an intact condition with MHC Tara Singh and it was not allowed to be tampered. Thereafter, on 8.1.1987 Beant Singh, Sarpanch of Village Tajoke met him and he produced the accused before the Investigating Officer. In his cross-examination, it is stated that he had tried to join independent witnesses but nobody agreed to join them. He, however, could not tell the name of the person whom he tried to join. He denied the suggestion that Karam Singh was known to him or that he recovered any incriminating articles from him ever. It is further stated that no government official was informed about the secret information received against the accused. He also states that he did not consult any revenue record to see the ownership of the land from where alleged recovery was made. He also states that he did not prepare any CFSL form nor did he deposit any such form with the MHC on that date. It is also denied that no recovery was effected from the accused. 8. The statement of HC Gian Singh (PW-1) is on the same lines as that of Balwant Singh, SI. In his cross-examination, the witness states that the land from where the alleged recovery was effected does not belong to the accused but it belongs to Kalu Singh, father of accused Nachhattar Singh. He did not know if Kalu Singh had died after the recovery. He did not know if SI interrogated Kalu Singh. It is further stated that the Police party reached the place of recovery at 11.45 a.m. and then chased the accused upto Bhatinda road and then they followed them upto Rampura in Matador. The Matador was in the fields and they reached back at the place of recovery at 12.45 p.m. and the recovery memo was prepared at about 3.00 p.m. He did not know if special report was sent by the Investigating Officer to the Illaqa Magistrate. No government officer was informed about the recovery by seeing any information from the spot. 9. No government officer was informed about the recovery by seeing any information from the spot. 9. In Pala Ram v. State of Haryana, 1999(4) RCC 252, the Investigating Officer on receipt of secret information apprehended the accused in the said case, who were found sitting on the poppy husk bags lying in the maize fields and 104 bags were recovered. While acquitting the accused in the said case, it said case, it was inter alia observed that the Investigating Officer did not associate any independent witness at the time of receiving secret information. Besides, it was observed that the fact that the Investigating Officer did not bother to join any independent witness on receipt of secret information and he did not try to associate any independent witness before serving the notice. These were held to be vital defects in the prosecution case. 10. In the case in hand also, there is nothing on record to show that SI Balwant Singh (PW-2) had made any serious attempt to associate independent witnesses. In fact, even when the recovery of 56 bags of poppy husk was being effected from the fields no serious attempt has been made to associate independent witness. According to the deposition of H.C. Gian Singh (PW-1), it has come on record that after chasing the accused, the Police party reached the place of recovery at 12.45 p.m. and the recovery memo was prepared at 3.00 p.m. Therefore, evidently the Police party took quite some time to effect the recovery and in unloading and taking in possession the 56 gunny bags substantial time must have been spent. However, despite this no independent witness was joined in the recovery proceedings. This is a circumstance which does cast doubt in the mind of the Court. 11. There has admittedly been non-compliance with the provision of Section 57 of the Act which enjoins 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 full report of all particulars of such arrest or seizure to his immediate superior. 11. There has admittedly been non-compliance with the provision of Section 57 of the Act which enjoins 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 full report of all particulars of such arrest or seizure to his immediate superior. In Gurbax Singh v. State of Haryana, 2001(1) RCR(Crl.) 702 (SC), it was observed that the provisions of Section 52 relating to disposal of persons arrested and article seized and Section 57 relating to report of arrest and seizure and directory and violation of these provisions would not ipso facto violate the trial or conviction. However, the Investigating Officer is not to tolly ignore these provisions and such violation would have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the articles. Therefore, it is to be seen in the over all context as regards the violation of the provisions of Section 57 of the Act. It is not in dispute that the Investigating Officer took no steps at all to comply with the provisions and when seen in the context of the fact that only official witnesses have been examined and no attempt was made to join any independent witness. Besides, no reasons have been given as to why Karam Singh who was joined as an independent witness has not been examined, it would, in my view, in the facts and circumstances of the case be unsafe to rely on the sole evidence of the official witnesses. This is more so for the reason that the appellants were not apprehended at the spot but were produced by one Beant Singh before the S.H.O. and the said Beant Singh has also not been examined. Therefore, in the circumstances it would not be safe to base the conviction of the appellants on the sole testimony of the official witnesses. 12. The tractor trolley in question was admittedly owned by Baldev Singh (appellant) and since the evidence on record as against him has been found to be not worthy of acceptance, the order of the trial Court ordering the forfeiture of the tractor trolley to the State is also liable to be set aside. 13. Consequently, for the foregoing reasons both the appeals are allowed. 13. Consequently, for the foregoing reasons both the appeals are allowed. The judgment and order dated 23.1.1991 passed by the learned Additional Sessions Judge, Sangrur is set aside and the appellants are acquitted of the offence attributed to them. Besides, the order forfeiting tractor trolley of the appellant Baldev Singh is also set aside.