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2006 DIGILAW 1209 (PNJ)

Bikkar Singh v. State Of Punjab

2006-03-22

K.S.GAREWAL, PRITAM PAL

body2006
Judgment Pritam Pal, J. 1. Appellant-Bikkar Singh (55 years) has filed this appeal against judgment and order dated July 17, 2001 whereby he was convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced to undergo Rigorous Imprisonment for a period of 13 years with a fine of Rs. one lac and in default of payment of fine to further undergo RI for a period of one year. The prosecution story is like this : 2. On June 10, 1993, at about 4.00 p.m., PW-2 SI Gurmail Singh, the Investigating Officer in this case, received a secret information at Police Station, Sudhar (Ludhiana) that the present appellant and three others, namely, Pritam Singh (P.O.), Joginder Singh (since acquitted vide order dated 22.3.2001) and Resham Singh (PO) were selling a large quantity of poppy-husk lying in the sugar-cane fields of one Ajaib Singh of Village Mohi and if a raid is conducted then they could be apprehended. On receiving this information, the Investigating Officer recorded the FIR (Ex. PA) and then raided the disclosed place after joining a public witness, namely, Gian Singh. When the police party reached at the aforesaid given place, there appellant Bikkar Singh and his co-accused Pritam Singh were found sitting on the gunny bags which were stacked in the sugar-cane fields of Ajaib Singh. They both were apprehended at the spot and then an option of search before a Gazetted Officer or Magistrate was given by the Investigating Officer. However, both of them reposed their trust in the Investigating Officer. Thereafter the gunny bags were counted which were found 120 in number. Each gunny-bag was found to have contained 35 Kgs. of poppy-husk. Two samples of 250 gms. from each recovered bag were taken. The samples as well as the remaining quantity of gunny bags were made into separate parcels and sealed at the spot by the Investigating Officer with the seal bearing letter "MS" belonging to ASI Mohinder Singh (PW-4). The bulky case property and the samples were taken into possession by the Investigating Officer vide recovery memo Ex. PB attested by ASI Mohinder Singh, ASI Karnail Singh and public witness, namely, Gian Singh. The seal after use was handed over to ASI Karnail Singh (PW-3). The bulky case property and the samples were taken into possession by the Investigating Officer vide recovery memo Ex. PB attested by ASI Mohinder Singh, ASI Karnail Singh and public witness, namely, Gian Singh. The seal after use was handed over to ASI Karnail Singh (PW-3). On reaching the Police Station, the Investigating Officer produced appellant Bikkar Singh and co-accused Pritam Singh along with the case property before DSP Paramjit Singh (PW-6) who also checked the case property and verified the facts of the case. He also put his own seal bearing letter "PS" on the case property. Thereafter, the case property was handed over to MHC Gurtej Singh (PW-5). 120 samples were got tested from the Forensic Science Laboratory, Punjab, Chandigarh and vide its report, Ex. PF, the same were found to be of poppy-husk. 3. Ultimately, the appellant along with his co-accused Pritam Singh and Joginder Singh was challaned for commission of offence and they were charge- sheeted vide order dated 26.4.1996 under Section 15 of the Act, to which they pleaded not guilty and claimed trial. 4. Prosecution, in order to substantiate its case, examined as many as 6 witnesses, namely, PW-1 Shamsher Singh Constable No. 299. On 12.8.1993 he had taken the parcels, docket and specimen of seals for depositing the same in the office of F.S.L., Punjab, Chandigarh; PW-2 SI Gurmail Singh, he is the Investigating Officer of this case; PW-3 SI Karnail Singh, and PW-4 ASI Mohinder Singh are witnesses to the recovery memo Ex. PB; PW-5 ASI Gurtej Singh, he was the AMHC of Police Station, Sudhar, with whom, case property was deposited on June 11, 1993; and PW-6 DSP Paramjit Singh. After effecting the recovery of case property, appellant Bikkar Singh along with co-accused Pritam Singh was produced before him and thereafter, he had also verified the facts of the case and then put his own seal bearing impression "PS" on each bag and each sample parcel. Gian Singh, a public witness, who was associated during the investigation of this case, was given-up as having been won over. 5. After closure of the prosecution evidence, the appellant was examined in terms of Section 313 of the Code of Criminal Procedure wherein he denied all the incriminating evidence appearing against him in toto. In this defence evidence the appellant examined DW-1 Const. Preet Inder Singh. 5. After closure of the prosecution evidence, the appellant was examined in terms of Section 313 of the Code of Criminal Procedure wherein he denied all the incriminating evidence appearing against him in toto. In this defence evidence the appellant examined DW-1 Const. Preet Inder Singh. From the record, he deposed that the substantive rank of SI Gurmail Singh (PW-2) was Constable Grade II and rank of Sub-Inspector was on account of his O.R.P. (Own Rank Promotion). Further, he also admitted it to be correct that said Gurmail Singh, who is the Investigating officer of this case, had never passed any course of Head Constable or that of Assistant Sub Inspector and ultimately, he was reverted to the post of Constable Grade II as per the decision of Punjab and Haryana High Court. 6. Learned trial Court after appraisal of the evidence and hearing learned counsel for the parties convicted and sentenced the appellant, as indicated in the opening part of this judgment. This is how feeling aggrieved, the appellant has come up in this appeal. 7. We have heard learned counsel for the parties and have gone through the entire record. 8. The main contention of learned counsel for the appellant is that here in the instant case, no conscious possession of contraband substance with the appellant is proved on the file. Not only that, he also argued that the gunny-bags containing alleged poppy-husk were recovered from the sugar-cane fields of one Ajaib Singh. The second limb of his argument is that PW-2 ASI Gurmail Singh, who is the Investigating Officer of this case, was also not competent to investigate this case under the Act as he was only a Constable Grade II at the relevant time i.e., the date of occurrence of this case. 9. At the last leg of his arguments, learned counsel for the appellant submitted that tampering of seals on the samples sent to the Forensic Science Laboratory is also not ruled out inasmuch as there was a delay of more than two months in sending the samples to the F.S.L. after the alleged recovery and no explanation in that behalf has been put-forth by the prosecution. In support of his aforesaid points of arguments, learned counsel also relied upon the following catena of authorities : 1. State of Punjab v. Balkar Singh and another, 2004 Supreme Court Cases (Cri) 838 2. In support of his aforesaid points of arguments, learned counsel also relied upon the following catena of authorities : 1. State of Punjab v. Balkar Singh and another, 2004 Supreme Court Cases (Cri) 838 2. Gopal v. State of Madhya Pradesh, JT 2001(10) SC 543 3.Avtar Singh v. State of Punjab, 2002(4) RCR(Crl.) 180 4. Narinder Singh alias Nindi v. State of Punjab, 2005(3) RCR(Crl.) 343 10. On the other hand, Mr. U.S. Dhaliwal, learned Deputy Advocate General, Punjab, submitted that in this case, PW-6 DSP Paramjit Singh had also verified the facts of the case and then had put his own seal on the samples and the case property with the letter "PS" and the same remained intact till last. So, there was no question of any tampering with the case property. According to him, appellant-Bikkar Singh was in possession of the land and he was found sitting on the gunny-bags which contained the contraband substance which was in a heavy quantity and as such, learned trial Court has rightly convicted and sentenced him (the appellant). In the end, he prayed for dismissal of the appeal. 11. We have given our thoughtful consideration to the above arguments and find that the points of arguments raised above by learned counsel for the appellant are not without force inasmuch as it is an admitted case that the sugar-cane fields from which the alleged contraband substance was recovered belonged to one Ajaib Singh and it is also nowhere the case of the prosecution that the said fields were in the possession of the appellant. The only allegation against the appellant was that he was found sitting on the gunny bags which contained poppy-husk. It is also there in the evidence that the said field of sugar-cane is situated nearby the side of kacha-path which leads towards village Khandoor. Further, in this case, one public witness, namely, Gian Singh was also associated at the time of effecting the recovery but he has not been examined in this case. No doubt, in such like cases conviction can be based on the basis of statements of official witnesses, but their testimony must inspire confidence. Here in the instant case, the Investigating Officer has not conducted any further investigation as to the transportation of poppy bags to the place of occurrence, ownership of the contraband substance etc. No doubt, in such like cases conviction can be based on the basis of statements of official witnesses, but their testimony must inspire confidence. Here in the instant case, the Investigating Officer has not conducted any further investigation as to the transportation of poppy bags to the place of occurrence, ownership of the contraband substance etc. to prove that the appellant was really in possession of the said substance. It is also evident that in this case, the appellant was not given any opportunity to explain his stand qua the gunny-bags containing contraband substance over which he was found sitting at the time of occurrence. In the absence of such opportunity, no presumption can be drawn against the appellant that he was in conscious possession of such substance. It has been held in Balkar Singhs case (supra) that merely by being found to be present at the place where the poppy bags were found and the failure to give any satisfactory explanation for being so present, does not prove that the accused persons were in possession of the said poppy bags or prohibited substance. Thus, taking an over all view of the facts and circumstances, as discussed above, the requisite element which could prove the custody and control of the appellant over the said substance in this case, appears to be doubtful. 12. Secondly, it is evident from the cross-examination of PW-1 SI Gurmail Singh, who is the Investigating Officer in this case, that he was ad hoc A.S.I. and had not passed the departmental course for promotion as A.S.I. Further, it is also admitted by him that he was receiving pay of Constable Grade II at the time of occurrence of this case. Not only that, DW-1 Constable Preet Inder Singh also proved from the summoned record that the substantive rank of SI Gurmail Singh was Constable Grade II and that his SI rank is only O.R.P. (own rank promotion). He also proved that SI Gurmail Singh had never passed any course for promotion as Head Constable or that of Assistant Sub Inspector. In his further cross-examination, he admitted it to be correct that before promotion to the rank of SI, one has to pass the course of Head Constable and also that of ASI. He also proved that SI Gurmail Singh had never passed any course for promotion as Head Constable or that of Assistant Sub Inspector. In his further cross-examination, he admitted it to be correct that before promotion to the rank of SI, one has to pass the course of Head Constable and also that of ASI. In this view of the matter, it can be safely inferred that he was not competent to exercise the powers and perform the duties specified in Sections 42 and 67 of the Act within the area of his jurisdiction. 13. Now adverting to the last point of argument, raised on behalf of the parties, in this case, recovery of contraband substance is alleged to have taken place on June 10, 1993 and thereafter samples and other case property were deposited in the malkhana of Police Station on June 11, 1993 and the samples of contraband substance were handed over to PW-1 Constable Shamsher Singh on 12.8.1993 for analysis at the Forensic Science Laboratory, Punjab, Chandigarh. This delay of more than two months in sending the samples for analysis has not been explained and hence the same also causes a dent in the prosecution story. In this view of the matter, tampering of the samples, which remained in the possession of the police for more than two months cannot be ruled out. 14. In the totality of the circumstances as discussed above, we are of the considered view that the prosecution has failed to prove the guilt of the appellant beyond reasonable shadow of doubt. The appeal is allowed. The conviction and sentence is hereby set-aside. The appellant is acquitted of the charge. The accused is in custody. He be set at liberty if not required in any other case.