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2007 DIGILAW 1492 (PNJ)

Wassan Singh v. State Of Punjab

2007-08-16

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. Three persons, namely, Wassan Singh, Karnail Singh and Gurmukh Singh were convicted for having committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. One lac each, in default of which they were further directed to undergo rigorous imprisonment for one year. 2. The aforesaid conviction and sentence was awarded by the Additional Sessions Judge, Amritsar (hereinafter described as the trial Court) vide his judgment/order of sentence dated 27.3.1996, aggrieved by which the above- mentioned three persons have filed two separate appeals bearing Nos. 268-SB and 315-SB of 1996 which are being disposed of by this common order. 3. On the night intervening 22nd and 23rd of April, 1991, the police party under the supervision of Sub Inspector Chain Singh, had set up a nakabandi at the crossing on the road in the area of village Harike. The truck bearing registration No. PBN-6375 is said to have come from the side of village Sirhali, which was signalled to stop. It stopped at a distance of about 1/2 furlong from the nakabandi. In the process, two persons, namely, Karnail Singh and Wassan Singh are said to have made good their escape, while Gurmukh Singh, who was driving the truck, was apprehended at the spot. Upon search of the truck, it revealed the presence of consignment of 100 bags of poppy husk, each weighing 40 Kgs. Samples of 500 grams each were drawn from each of the bags. After drawing the samples, the bags were weighed again and each bags weight came to 39-1/2 Kgs. The samples and the bags were sealed with the seal bearing impression CS belonging to Sub Inspector Chain Singh, which, after use, was handed over to Assistant Sub Inspector Faqir Singh. The truck was also taken into possession vide a separate memo. On return to the police station, the case property with seals intact along with the truck was deposited with M.H.C. Jasbir Singh. 4. The police, thereafter, upon receipt of the report of the Chemical Examiner, submitted challan against the appellants, who were charged by the trial Court under Section 15 of the Act, to which they pleaded not guilty and claimed trial. 5. 4. The police, thereafter, upon receipt of the report of the Chemical Examiner, submitted challan against the appellants, who were charged by the trial Court under Section 15 of the Act, to which they pleaded not guilty and claimed trial. 5. The prosecution, in order to establish the guilt of the appellants, examined as many as four witnesses. 6. In their statements recorded under Section 313 of the Cr.P.C., the appellants denied the prosecution allegations and pleaded false implication. However, they stated that they were initially illegally detained by the police and subsequently involved in the present case. 7. The trial Court, after appraisal of the material on record, came to the conclusion that the appellants were guilty of having committed an offence under Section 15 of the Act and it convicted & sentenced them in the manner, the details of which have been given above. 8. While assailing the conviction and sentence, learned counsel for appellant-Gurmukh Singh, who was allegedly apprehended on the spot, contended that this appellant could not be said to be in conscious possession of the contraband. He argued with some emphasis that the conduct of Gurmukh Singh in not escaping after having stopped the truck at a distance of 1/2 furlong from the naka revealed complete absence of guilt because had he been aware of the illegal consignment, he was carrying, he would have certainly fled away. That apart, learned counsel contended that the samples were sent for chemical analysis after lapse of about 29 days of the alleged seizure and, therefore, the trial Court has gone wrong in awarding conviction and sentence to the appellants. He further argued that no independent witness was enjoined in the process by the police even though the area was stated to be a thoroughfare. Lastly, he contended that Register-19 in which an entry regarding the case property is to be made is silent about the seizure and even the particulars of the truck which was brought to the police station have not been mentioned therein. 9. Lastly, he contended that Register-19 in which an entry regarding the case property is to be made is silent about the seizure and even the particulars of the truck which was brought to the police station have not been mentioned therein. 9. The learned counsel for appellants-Wassan Singh and Karnail Singh, apart from making over-lapping submissions on the points of samples having been sent belatedly and the entry not being in Register-19, also contended that the identity of appellants-Wassan Singh and Karnail Singh was seriously in doubt as there is nothing on record to show that they were the persons, who were accompanying the contraband at the relevant time. He contended that appellant-Karnail Singh was more than 70 years of age in the year 1991 and it was highly improbable that he could have made good his escape especially when the police party was equipped with weapons and was also mobile enough to give a chase. Learned counsel further contended that there is absolutely no evidence on record to connect the appellants with the offence as even though it is stated that the truck belonged to Karnail Singh, yet, neither its registration certificate nor any other document relating to it has been produced to establish the fact that the truck actually belonged to him. 10. On the other hand, learned counsel for the State has emphasized that the recovery was heavy, but he had no answer to the queries posed by the Court regarding the samples having been sent belatedly and the case property not bearing the seals to link it with the seizure alleged to have been made from the appellants on the day in question. 11. I have heard the learned counsel for the parties at some length and have also perused the record. 12. Concededly, the consignment was seized on the night intervening 22nd/23rd of April, 1991 if the prosecution version is to be believed. There is no explanation worth the name as to why the samples, which were drawn on the same day, remained with the police for as many as 29 days. 13. A sample so seized is succeeded by a procedure prescribed by which the police is to send the same for chemical examination promptly. This is to obviate any tampering with the sample. 13. A sample so seized is succeeded by a procedure prescribed by which the police is to send the same for chemical examination promptly. This is to obviate any tampering with the sample. In a case such as the present one under the Act, a sample and its contents which are to be established subsequently by the report of the Chemical Examiner assume great sanctity as it is supposed to be the last nail in the coffin of the offender. Amazingly in this case, the samples have remained with the police or its officials without there being any explanation regarding their withholding. 14. The suspicion which arises on this account has only been fortified and established when this Court notices the testimony of PW3-Inspector Chain Singh, the Investigating Officer, who goes on to say in his cross-examination as follows : "Some gunny bags of the case property do not bear chits regarding particulars of the case and the seals are also missing on some of the gunny bags." 15. It is also evident from the cross-examination of this witness that during the course of trial, the case property was repeatedly not being produced before the Court on the pretext that it had been destroyed and ultimately, what was produced, was some sham property. 16. The Court is utterly helpless when confronted with such a piece of evidence where in the first instance, the doubt is cast in its mind that the samples are withheld for an inordinate long period and subsequently, the case property is produced with missing seals and torn bags which cannot, in any way, be connected to the contraband alleged to be seized from the, appellants. 17. I find support for the view taken by me from the observations made in Narain v. State of Haryana, 1997(1) RCR(Criminal) 414 : 1997(1) Recent Criminal Cases 429 (P&H); Jaswinder Singh v. State of Punjab, 1998(4) RCR(Criminal) 375 : 1998(3) Recent Criminal Cases 19 and Ramji Singh v. State of Haryana, 2007(3) RCR(Criminal) 452 (P&H). 18. There is also serious doubt about the identity of at least two of the appellants, i.e., Karnail Singh and Wassan Singh. They are said to have escaped in the dead of night under the cover of darkness. 18. There is also serious doubt about the identity of at least two of the appellants, i.e., Karnail Singh and Wassan Singh. They are said to have escaped in the dead of night under the cover of darkness. One of the witnesses, namely, PW2-Sub Inspector Raghubir Singh has stated that he recognized Wassan Singh in the street light as he had interrogated him in one of the murder cases, but this witness has conveniently not brought on record anything to show that Wassan Singh was actually involved in some murder case which was investigated by him. 19. The facts when taken in their totality lead to an irresistible conclusion that the prosecution has miserably failed to establish its case against the appellants. 20. Consequently, the appeals are accepted and the appellants are acquitted of the charge framed against them.