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2007 DIGILAW 2193 (PNJ)

Raghbir Singh v. State Of Punjab

2007-12-17

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. This appeal is directed against judgment/order of sentence dated 23.7.1996 of the Additional Sessions Judge, Sangrur (hereinafter described as `the trial Court) vide which the appellants have been convicted under the provisions of Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, `the Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac each, in default whereof, they have been required to undergo further rigorous imprisonment for one year each. 2. The prosecution case, in brief, is that on 31.1.1991 when a police party headed by Sub Inspector Bharat Singh was present on the bridge of drain in the area of village Tiba in connection with a `nakabandi. Some officials of Border Security Force were also with it. At about 2.00 A.M., the appellants are said to have come from the side of village Mangal on a tractor-trolley. The same was being driven by appellant-Raghbir Singh, while appellant-Badardin was sitting in the back of the trolly. On a signal being given by Sub Inspector-Bharat Singh, the tractor-trolley stopped. As some bags were lying in the trolley, the police officials expressed their intention to search the same. Simultaneously, an option was given to the appellants as to whether they wanted to be searched in the presence of a gazetted officer, but they reposed confidence in the police officials and offered themselves for search. 3. The search of the bags revealed that poppy straw was filled therein. They were then put on the ground and made homogenous. Thereafter, two samples of 250 grams each were taken out and the remaining bulk was filled in the bags, which weighed 35 Kgs. each, except the one bag which weighed about 34 Kgs. and 500 grams. 4. The sample parcels and the bags were sealed with the seal bearing impression of `BS and all the articles were taken into possession by the police. The seal, after use, was handed over to A.S.I. Sukhdial Singh. 5. A ruqa was sent to the police station, on the basis of which an F.I.R. was lodged and on return, Sub Inspector Bharat Singh produced the case property and the appellants before Deputy Superintendent of Police-Balbir Singh. The latter also put his seal `BS on the case property. Thereafter, the samples were sent for chemical analysis. 6. 5. A ruqa was sent to the police station, on the basis of which an F.I.R. was lodged and on return, Sub Inspector Bharat Singh produced the case property and the appellants before Deputy Superintendent of Police-Balbir Singh. The latter also put his seal `BS on the case property. Thereafter, the samples were sent for chemical analysis. 6. After completion of the investigation and on receipt of the report of the Chemical Examiner, the challan was presented and the appellants were sent up for trial for having committed an offence under Section 15 of the Act. 7. The trial Court accordingly charged the appellants to which they pleaded not guilty and claimed trial. 8. The prosecution, in order to prove its case, examined as many as seven witnesses. 9. The appellants, in their statements recorded under Section 313 of the Cr.P.C., stated that they have been falsely implicated in the instant case. 10. In their defence evidence, the appellants produced DW1-Gurdev Singh and DW2-Balbir Singh. 11. On appraisal of the entire evidence on record, the trial Court, vide the impugned judgment/order of sentence, convicted and sentenced the appellants as aforesaid. Hence, this appeal. 12. Learned counsel for the appellants contended that even though, the contraband was seized on 31.1.1991, the samples were sent on 18.2.1991 which were received by the office of the Chemical Examiner on 19.2.1991. The seal which was put on the samples remained with A.S.I. Sukhdial Singh as has come in the prosecution evidence and when read with the testimony of PW5-Sub Inspector Bharat Singh, who stated that the seals on the case property were neither legible nor intact, this casts a serious doubt on its version. Learned counsel further pointed out that PW5 has also stated that the seals on the second samples were also found to be broken. Lastly, learned counsel for the appellants contended that in so far as appellant-Badardin is concerned, he was stated to be sitting in the rear of the trolley and the prosecution has miserably failed to prove his conscious possession of the contraband. 13. On the other hand, learned counsel for the State contended that there was no enmity between the police and the appellants and there was no occasion to falsely implicate them. 13. On the other hand, learned counsel for the State contended that there was no enmity between the police and the appellants and there was no occasion to falsely implicate them. In this view of the matter, he contended that when there was heavy recovery of poppy straw from the appellants, the conviction and sentence awarded to them by the trial Court are justifiable. 14. I have heard the learned counsel for the parties and have perused the record. 15. Concededly, the contraband was seized on 31.1.1991, whereas the samples were sent to the Chemical Examiner on 18.2.1991. There is no explanation forth-coming as far as the inordinate delay in the sending of samples is concerned. This, when seen in the back-drop of the testimony of PW5 that the seals on the case property were either not legible or were broken, casts a doubt in the mind of the Court about the prosecution version. 16. The prosecution, when it seizes the samples and retrieves the case property of a contraband, has to accord due sanctity to the same by preserving them in a manner that when it is tested against its version, the same are not found wanting. 17. The punishment under the provisions of the Act is stringent and, therefore, the safe-guards, which have been prescribed and encapsulated in it, require strict adherence, the failure to do so causes sufficient doubt and the benefit of the same necessarily has to go to the accused persons. 18. In the instant case, the testimony of PW5 categorically reveals that after seizure had been effected and the samples had been sealed, the sample seal was handed over to A.S.I. Sukhdial Singh; that the second part of the samples, Exhibit P9 and that ruqa Exhibit-PB was sent to the police station for registration of the case, on the basis of which formal F.I.R., Exhibit PB/1 was recorded by the A.S.I. whose signatures he identified, but did not remember his name. 19. That apart, the jamabtalashi memo does not bear the signatures of PW5-Sub Inspector Bharat Singh nor does it bear the signatures of Constable Balbir Singh, who was one of the members of the police party and was present. It is pertinent to re-call here that PW5-Sub Inspector Bharat Singh was heading the police party, which allegedly intercepted the appellants. 20. That apart, the jamabtalashi memo does not bear the signatures of PW5-Sub Inspector Bharat Singh nor does it bear the signatures of Constable Balbir Singh, who was one of the members of the police party and was present. It is pertinent to re-call here that PW5-Sub Inspector Bharat Singh was heading the police party, which allegedly intercepted the appellants. 20. PW5-Sub Inspector Bharat Singh further goes on to state as follows :- "I have seen bags P.2 to P.8. On some bags, seals are broken. There are seals existing on some bags and seals on some bags are broken and are not legible. However, particulars of case property are written on bags. I have seen the sample. Seals are also broken on Ex.P9 sample. However, one seal is legible and other is not legible." 21. In view of above, the prosecution evidence is not free from taint and the case against the appellants does not stand proved beyond a reasonable shadow of doubts. 22. Consequently, without commenting on any other contention as raised by the learned counsel for the appellants, this Court is of the opinion that the appeal deserves to be accepted. Ordered accordingly and the appellants are acquitted of the charge framed against them.