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2006 DIGILAW 4373 (PNJ)

Jarnail Singh v. State Of Punjab

2006-11-16

BALDEV SINGH, MEHTAB S.GILL

body2006
Judgment Mehtab S.Gill, J. 1. This is an appeal against the judgment dated 10.2.2004 of the Judge, Special Court, Faridkot whereby he convicted Jarnail Singh alias Jaila under Section 15 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter called as "NDPS Act") and sentenced him to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1,50,000/-, in default to further undergo rigorous imprisonment for two years. 2. The case of the prosecution is that on 2.7.2000 Jaspal Singh, Inspector/SHO, Police Station Gidderbaha along with ASI Baldev Singh, ASI Manjit Singh, LC Swaran Singh, Constable Bashamber Dass and PHG Angrez Singh were present at Village Butter Bakhua in the official gypsy, which was driven by Constable Balwinder Singh. Secret information given by an informer to Inspector Jaspal Singh was that one Jarnail Singh alias Jaila resident of Village Butter Bakhua (Dhani) was selling poppy husk after putting it in gunny bags, in the courtyard of his house. Upon this, Jaspal Singh along with the other police officials conducted a raid at the Dhani of Jarnaill Singh. An independent witness Amarjit Singh was joined. Jarnail Singh was apprehended while sitting on the gunny bags lying in his courtyard. Offer of search was made to Jarnail Singh as to whether he wanted to be searched by a Magistrate or a Gazetted Officer. Consent memo was prepared where Jarnail Singh put his signatures in Punjabi in token of its correctness. A Q.S.T. was sent to Sh. Ashok Bath, DSP Gidderbaha to reach the spot. Sh. Ashok Bath reached the spot at 7 a.m. After enquiring, the DSP asked the police party to search Jarnail Singh. Jarnail Singh was made to stand up from the gunny bags. Three full gunny bags of poppy husk were recovered. Samples of 250 grams of poppy husk were taken from each of the gunny bags. The bulk of the poppy husk was weighed separately and each bag contained 39 Kgs. 750 grams of poppy husk. Three sample parcels were made. Seal of "J.P." was put on the sample parcels and the gunny bags containing poppy husk. Specimen seal was prepared. Sh. Ashok Bath, DSP also fixed his seal "A.B." on the sample parcels and the gunny bags of poppy husk. Seal was handed over to ASI Baldev Singh. 750 grams of poppy husk. Three sample parcels were made. Seal of "J.P." was put on the sample parcels and the gunny bags containing poppy husk. Specimen seal was prepared. Sh. Ashok Bath, DSP also fixed his seal "A.B." on the sample parcels and the gunny bags of poppy husk. Seal was handed over to ASI Baldev Singh. On the basis of this, ruqa Ex.PD was sent and a formal FIR was recorded at 10.30 a.m. on the same day i.e. 2.7.2000. 3. The prosecution to prove its case brought into the witness box Ashok Bath DSP as PW1, HC Sukhdev Singh as PW2, LC Chamkaur Singh as PW3, Inspector Jaspal Singh as PW4, ASI Baldev Singh as PW5, HC Kashmiri Lal as PW6, Constable Sukhpal Singh as PW7. 4. Appellant also brought into the witness box Charanjit Singh Member Panchayat as DW1 and Ajit Sharma as DW2. 5. Learned counsel for the appellant has argued, that there are material discrepancies in the statements of both witnesses i.e. Inspector Jaspal Singh PW4 Investigating Officer and ASI Baldev Singh PW5. Inspector Jaspal Singh PW4 has stated, that there were no buffalos or cows present in the courtyard of the house of the appellant while ASI Baldev Singh PW5 has stated, that buffalos were present in the courtyard of the house. Both the witnesses have stated that the recovery was made at 6.30 a.m., but no family member of the appellant was present. No one from the neighbourhood came in the courtyard while the search was going on. They stayed in the house of the appellant for about 6-7 hours. 6. Appellant is a married man having children and it is strange that the official witnesses have stated that no one was present in the house. In fact the appellant was picked up from his house and taken to the police station and a false case was foisted on him for the reason that a few days earlier, appellant along with some villagers had come in conflict with the police. Section 42 of the NDPS Act was not complied with. Ruqa Ex.PD was sent to the police station after the formalities had been completed. The testimony of both defence witnesses Charanjit Singh DW1 and Ajit Sharma DW2 is truthful and they supported the case of the appellant that he was picked up from his house. 7. Section 42 of the NDPS Act was not complied with. Ruqa Ex.PD was sent to the police station after the formalities had been completed. The testimony of both defence witnesses Charanjit Singh DW1 and Ajit Sharma DW2 is truthful and they supported the case of the appellant that he was picked up from his house. 7. Learned counsel for the State has argued, that the discrepancies pointed out by learned counsel for the appellant do not materially affect the case of the prosecution. In the early hours at 6.30 a.m. Inspector Jaspal Singh PW4 and ASI Baldev Singh PW5 would not have noticed the buffalos or cows, as they were then concentrating on the recovery. Section 42 of the NDPS Act has been complied with. Ruqa was sent when the secret information was given to Inspector Jaspal Singh. 8. We have heard the learned counsel for the parties and perused the record with their assistance. 9. After going through the statements of Inspector Jaspal Singh PW4 and ASI Baldev Singh PW5, we have no hesitation in coming to the conclusion that they did not stay for much time in the house of the appellant and the appellant was taken away from his house and a false case was foisted on him in the police station. All the paper work was done in the police station. 10. Inspector Jaspal Singh PW4, Investigating Officer has stated in his testimony before the Court, that he received secret information when he was standing at the bus stand of Village Butter Bakhua that the appellant has poppy husk in his possession and if a raid is conducted on his house, a huge quantity can be recovered. On the basis of the secret information, Inspector Jas Pal Singh PW4 joined an independent witness Amarjit Singh and conducted a raid on the house of the appellant. Offer of search, as to whether appellant wanted to be searched by a Magistrate or a Gazetted Officer was made. He has further stated that the police party remained at the spot for about 7 to 7 hours. During the stay in the house of the appellant, the police party did not come across any family member of the appellant. He (PW4) has further stated, that he does not remember if any cow/cattle/buffalo or any such animal was present in the house of the appellant. During the stay in the house of the appellant, the police party did not come across any family member of the appellant. He (PW4) has further stated, that he does not remember if any cow/cattle/buffalo or any such animal was present in the house of the appellant. DSP Ashok Bath PW1 has also stated, that three bags of poppy husk weighing 40 Kgs. each were recovered from the house of the appellant. During the time he stayed there for about three hours, he did not come across any family member of the appellant in the house. The statements of both these witnesses i.e. DSP Ashok Bath PW1 and Inspector Jaspal Singh PW4 are in direct contradiction to ASI Baldev Singh PW5, who has stated that there were buffalos and cows in the house at the time of the raid. Official witnesses DSP Ashok Bath PW1, Inspector Jaspal Singh PW4 and ASI Baldev Singh PW5 are not telling the truth regarding the raid. Allegedly the police party stayed at the house of the appellant for seven hours and it is strange that no family member of the appellant was seen by them in the house. 11. In fact the version put forward by the appellant that he was picked up from his house in the presence of Charanjit Singh DW1 and Ranjit Singh Lamberdar seems to be a truthful account. An altercation took place between the appellant and the police and the Investigating Officer foisted a false case on the person of the appellant. Charanjit Singh DW1 has stated that the police came and forcibly took away the appellant. He has further stated that 2-= months prior to the alleged recovery, the residents of the village had a fight with the local wine contractor, as they wanted his kiosk to be shifted from the place in front of the village Gurdwara. The police was helping the wine contractor and on the behest of the wine contractor, a case under Section 307 of the IPC was falsely registered against the villagers. The wine contractor and the police wanted the appellant to testify against the villagers, but the appellant refused to do so. 12. Section 42 of the NDPS Act was not complied with. The wine contractor and the police wanted the appellant to testify against the villagers, but the appellant refused to do so. 12. Section 42 of the NDPS Act was not complied with. It has come in the FIR Ex.PD/1 and the ruqa Ex.PD sent to the police station that a secret informer informed Jaspal Singh PW4, Inspector/SHO, Police Station Gidderbaha that if the house of the appellant is raided, a huge quantity of poppy husk can be recovered. Thereafter, a raid was conducted and after completing the formalities of checking of gunny bags and taking out samples of poppy husk, ruqa Ex.PD was sent, on the basis of which FIR Ex.PD/1 was recorded in Police Station Gidderbaha. It was incumbent upon the Investigating Officer to take down the information given by the secret informer at the bus stand of Village Butter Bakhua at 6.30 a.m. on 2.7.2000. Ruqa Ex.PD should have been sent from the bus stand itself and rest of the formalities of the raid should have been conducted thereafter. Honble Supreme Court in Ritesh Chakarvarti v. State of Madhya Pradesh, 2006(3) Apex Criminal Judgments 406 (SC) : 2006(4) RCR (Crl.) 480 (SC) has held that "An offence committed under the NDPS Act is a grave one. Procedural safeguards to the accused provided under a statute require strict compliance". 13. With the above discussion and observations, we hold that appellant has been falsely implicated. A doubt is created in our mind, the benefit of which is given to the appellant/accused. Appeal is allowed. Conviction and sentence of the appellant is set aside. Appellant is acquitted of the charge. He be set at liberty if not required in any other case.