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2007 DIGILAW 1056 (PNJ)

State of Punjab v. Jagtar Singh

2007-05-04

ADARSH KUMAR GOEL, H.S.BHALLA

body2007
JUDGMENT Adarsh Kumar Goel, J.:- The State is aggrieved by acquittal of the respondent of the charge under Section 15 of the NDPS Act (for short, “the Act”). 2. Case of the prosecution is that on 21.12.1993, Lekh Raj, ASI (PW-3) along with other police officials was present on Small Canal, Barwali Kalan, Chari Road on vehicle Allwyn Nissan No.PB- 10B-9445 in connection with nakabandi when secret information was received that respondent-accused, who was a famous smuggler of poppy husk and opium, was bringing bags of poppy husk in Tata Tempo 407 No.PB-13B-2695 by putting the same below the paddy for supplying the same to the customers in Punjab. He was bringing the contraband from U.P. by loading the same in his tempo and would pass through. 3. The accused was spotted coming in a tempo from Village Chari side. The vehicle was stopped and the driver was asked his name. His disclosed his name to be Jagtar Singh. Wireless message was sent to D.S.P., Samrala to come to the spot. After taking the consent of the accused for search in the presence of the DSP, search of the accused was conducted and then on search of the tempo, 10 bags of paddy were found. Below the bags of paddy, 21 bags of poppy husk were found. On weighment, each bag was found to be of 34 kgs. Two samples each of 250 grams were taken. The bags and sample parcels were duly stamped and were taken into possession in addition to 10 bags of paddy and the tempo. The DSP attested the recovery memos, Lal Chand, Inspector, SHO also came to the spot and the accused alongwith the goods was produced before the SHO, who put his own stamp on the bags of poppy husk and samples. PW-3 Lekh Raj, ASI after completion of investigation, challaned the accused. 4. The prosecution examined PW-1 Lal Chand, the then SHO, who deposed that the bags of poppy husk were produced before him by ASI Lekh Raj alongwith 42 sample parcels, the vehicle and the the accused. The said bags were produced before the Court as Ex. P-1 to Ex.P-21 and the samples were produced as Ex.P-22 to Ex.P- 42. The same were deposited with the MHC Manjit Singh. PW-2 Baljinder Singh corroborated the version of ASI Lekh Raj. The said bags were produced before the Court as Ex. P-1 to Ex.P-21 and the samples were produced as Ex.P-22 to Ex.P- 42. The same were deposited with the MHC Manjit Singh. PW-2 Baljinder Singh corroborated the version of ASI Lekh Raj. He was accompanying ASI Lekh Raj at the time of recovery and he corroborated the factum of recovery in his presence. PW-3 ASI Lekh Raj supported the version given by him in the FIR (Ex.PD). PW-4 Narinder Kaushal, the then DSP, Samrala further corroborated the version of his having received a wireless message from ASI Lekh Raj and his having reached the place of recovery. He also supported the factum of recovery from the accused in his presence. PW-5 MHC Manjit Singh proved his affidavit (Ex.PJ) about safe keeping of the contraband. Ex.PG, report of the Chemical Examiner was also produced to the effect that the contraband was poppy husk. Affidavit of Tarlochan Singh (Ex.PH) was filed about the samples having been taken by him and deposited with the Chemical Examiner on 4.1.1994, which were not tampered with in any manner. 5. The accused denied the prosecution allegations and stated that he was arrested from his house on 20.12.1993 alongwith the vehicle. 6. After considering the evidence on record, the trial Court held that case of the prosecution was not proved beyond reasonable doubt and acquitted the accused. The reasons given for acquittal are as under:- (i) Search was conducted by PW-3 ASI Lekh Raj and DSP Narinder Kaushal merely witnessed the same. He did not prepare the memo nor put his seal on the recovered substance and samples; (ii) Case property was not deposited by the SHO with the MHC; (iii) According to PW-2 HC Baljinder Singh, Paramjit Singh, witness left the spot at 7.30 A.M. while the DSP came to the spot at 7.00 A.M. The work of recovery could not have been completed within half an hour and on this account, recovery was doubtful; (iv) Grounds of arrest were not communicated to the accused; 7. Learned counsel for the State submitted that reasons for acquittal by the trial Court are perverse. The recovery of the contraband from the respondent-accused was fully established by the evidence of ASI Lekh Raj, which was corroborated by PW-2 HC Baljinder Singh who was accompanying ASI Lekh Raj. Learned counsel for the State submitted that reasons for acquittal by the trial Court are perverse. The recovery of the contraband from the respondent-accused was fully established by the evidence of ASI Lekh Raj, which was corroborated by PW-2 HC Baljinder Singh who was accompanying ASI Lekh Raj. The recovery was effected in the presence of DSP Narinder Kaushal (PW-4), who has fully supported the prosecution version. Lal Chand, SHO (PW-1) had also come to the spot as deposed by him. The case property was deposited with the MHC Manjit Singh who has been examined as PW- 5. The case property was duly produced before the Court. The report of the Chemical Examiner shows that the contraband was poppy husk and the articles were intact and in good condition. 8. Learned counsel for the respondent-accused apart from supporting the reasons given by the trial Court submitted that the samples were sent to the Chemical Examiner for chemical examination only on 4.1.1994 even though recovery was effected on 21.12.1993. Thus, there was delay of 14 days, which should be treated as a ground for creating a doubt about safe custody of the contraband recovered. 9. We have perused the record and considered the rival submissions carefully. 10. It stands established on record that PW-3 ASI Lekh Raj, who was posted as In charge of Police Post Barwalipur and was present at the Canal Bridge in connection with nakabandi alongwith the police party, received a secret information which was confirmed by arrival of the accused at the place of recovery and recovery of contraband on the spot in the presence of the accused, who was driving the vehicle. This version is fully corroborated by PW-2 HC Baljinder Singh, who was accompanying ASI Lekh Raj in connection with nakabandi duty. There is further corroboration by PW-4 Narinder Kaushal, DSP who received wireless message and came to the place of recovery and witnessed the recovery personally. PW-1 Lal Chand, the then SHO also reached the place of recovery. PW-5 Manjit Singh proved his affidavit (Ex.PJ) to the effect that the recovered contraband was deposited with him by ASI Lekh Raj. There is further corroboration by PW-4 Narinder Kaushal, DSP who received wireless message and came to the place of recovery and witnessed the recovery personally. PW-1 Lal Chand, the then SHO also reached the place of recovery. PW-5 Manjit Singh proved his affidavit (Ex.PJ) to the effect that the recovered contraband was deposited with him by ASI Lekh Raj. The question is whether all the witnesses should be disbelieved and recovery should be held to be planted only on the ground that the proceedings could not have been completed in 30 minutes and PW-2 HC Baljinder Singh stated that DSP arrived at 7.00 A.M. while Paramjit Singh, witness left at 7.30 A.M. or that investigation should have been conducted by DSP himself or that independent witness should have been examined or grounds of arrest communicated to the accused? The answer has to be in negative. There was no requirement for the DSP to himself conduct the investigation nor non- examination of any independent witness by itself is enough to throw out the case of the prosecution, if it is otherwise believable. The time of 30 minutes duration given by PW-2 HC Baljinder Singh is merely given on the basis of guess work and memory. Some delay in dispatching the samples for chemical examination is bound to take place and cannot always be fatal, if there is reliable evidence about the recovery having been effected from the accused and the case property having been kept in safe custody without any tampering. No question about reasons for delay was asked in cross-examination from the witnesses concerned. Reference may be made to the judgment of Hon’ble Supreme Court in State of Orissa v. Kanduri Sahoo AIR 2004 SC 833. 11. Recovery effected is huge and there is no enmity alleged, nor there is any reason given by the accused that he has been falsely implicated. Section 50 of the Act is applicable only to personal search. There is no reason whatsoever to disbelieve the factum of recovery of the contraband having effected from the accused, which is the ingredient of the offence. It has been held by the Hon’ble Supreme Court in Appabhai and another v. State of Gujarat AIR 1988 SC 696 that there is an apathy of the general public to be witness in such cases. It has been held by the Hon’ble Supreme Court in Appabhai and another v. State of Gujarat AIR 1988 SC 696 that there is an apathy of the general public to be witness in such cases. In the same judgment, in para 13, it was observed that undue importance could not be given to minor discrepancies which are due to normal error of perception or observation or lapse of memory. The relevant observations are quoted below:- “11. ......It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether -in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused.....” xx xx xx xx xx “13. .........The. Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy...” In Pradeep Narayan Madgaonkar etc. v. State of Maharashtra AIR 1995 SC 1930 it was observed :- “11. …Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the Investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation,requires greater care to appreciate their testimony………” For the above reasons, we have no option except to setaside the acquittal of the respondent. The case of the prosecution having been fully proved, the respondent is convicted under Section 15 of the Act for being found in possession of 21 bags of poppy husk containing 34 kgs. each from the tempo No. PB-13B-2695 without any licence or permit. We sentence the respondent-accused to undergo RI for 10 years and to pay fine of Rs.1 lac, in default, to undergo further RI for one year. The trial Court is directed to initiate proceedings for confiscation of the vehicle in accordance with law. The appeal is disposed of. —————————————