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2008 DIGILAW 1627 (PNJ)

Bhola Singh v. State of Punjab

2008-09-19

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J. - This appeal is directed against the judgment of conviction dated 04.10.2006, and the order of sentence dated 05.10.2006, rendered by the Special Judge, Moga, vide which he convicted the accused (now appellant), for the offence punishable under Section 15(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as the Act only) and sentenced him, to undergo rigorous imprisonment, for a period of ten years, and to pay a fine of Rs. 1.00 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year, for having been found in possession of 70 Kgs. poppy straw, without any permit or licence. 2. The facts, in brief, are that on 21.05.2005, ASI Darshan Singh, alongwith other police officials, was on patrol duty. When the Police party was about half a kilometer ahead of village Langeana, Balwinder Singh, independent witness, met it, and he was associated with it. Thereafter, the Police party reached near the bridge of seepage canal, in the area of village Langeana. Accused Bhola Singh, who was seen sitting on two bags, lying in the dried seepage canal, tried to slip away, but was apprehended. The bags were searched. Each bag was found containing 35 KGs poppy straw. A sample of 250 grams, from each of the recovered bags of poppy straw, was taken out, and the remaining contraband was kept in the same bags. The samples and the bags, containing the remaining contraband, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. The accused was arrested. The site plan was prepared. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15(c) of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Ashok Kumar, H.C., (PW- 1), Dilbag Singh, ASI, (PW-2 ), Jaspal Singh, Photographer (PW-3), Jagdish Lal, ASI, (PW-4), Darshan Singh, ASI, (PW-5 ), Kirpal Singh, SI, (PW-6 ) and Ved Parkash, HC (PW-7 ). Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 5. 4. The prosecution, in support of its case, examined Ashok Kumar, H.C., (PW- 1), Dilbag Singh, ASI, (PW-2 ), Jaspal Singh, Photographer (PW-3), Jagdish Lal, ASI, (PW-4), Darshan Singh, ASI, (PW-5 ), Kirpal Singh, SI, (PW-6 ) and Ved Parkash, HC (PW-7 ). Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused, under Section 313 Criminal Procedure Code, was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He stated that no recovery was effected from him. He further stated that he was falsely implicated, in the instant case, at the instance of Baldev Singh, SHO, against whom, he had filed a complaint earlier. He also examined Sukhdev Singh, DW-1, and Gurmail Kaur, DW-2, in his defence. Thereafter, he closed the defence evidence. 6. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, contended that though Balwinder Singh, independent witness was joined, at the time of the alleged search and seizure, yet he was neither examined, nor given up as won over. He further submitted that, as such, it could be said that the prosecution withheld the best evidence, in its possession and, as such, an adverse inference could be drawn that had he been examined, he would not have supported the case of the prosecution. He further submitted that, on account of this reason, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, appears to be correct. In case, Balwinder Singh, independent witness, who was joined, at the time of the alleged search and seizure, had been won over, he could be given up by the Additional Public Prosecutor but he did not do so. Balwinder Singh, could be said to be a material witness of the prosecution. In case, Balwinder Singh, independent witness, who was joined, at the time of the alleged search and seizure, had been won over, he could be given up by the Additional Public Prosecutor but he did not do so. Balwinder Singh, could be said to be a material witness of the prosecution. It is also, no doubt, true that the Public Prosecutor for the State, is the master of the case. It is for him, to decide, as to which witness, he wanted to examine, and which witness he did not want to examine. The Public Prosecutor, for the State, is required to exercise the discretion, vested in him, in not examining a particular witness, on the basis of sound judicial principles. He cannot exercise such a discretion, vested in him, arbitrarily and capriciously. He is required to exercise such a discretion, in a bona-fide manner. In Masalti v. State of Uttar Pradesh, AIR 1965 (SC) 202, it was held that it is, undoubtedly, the duty of the prosecution, to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material or, even if, it is known that he has been won over or terrorized. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. The evidence of Balwinder Singh, independent witness, was very material to unfold the case of the prosecution. Had he been examined, he would have revealed the truth, and thrown light on the correct position. Balwinder Singh, independent witness was neither given up, nor examined without any rhyme or reason. Non-examination of Balwinder Singh, independent witness, without any rhyme or reason, cast a cloud of doubt, on the prosecution story, especially when the other evidence produced is unreliable. In State of Punjab v. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, the independent witness, though joined, was not examined. In these circumstances, it was held by a Division Bench of this Court, that the case of the prosecution became doubtful. The submission of the Counsel for the appellant, carries substance, and is accepted. 10. In State of Punjab v. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, the independent witness, though joined, was not examined. In these circumstances, it was held by a Division Bench of this Court, that the case of the prosecution became doubtful. The submission of the Counsel for the appellant, carries substance, and is accepted. 10. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected, in this case on 21.05.2005, yet the sample parcels were sent to the office of the Chemical Examiner on 30.05.2005, and, thus, the delay of 09 days, in sending the same to the Laboratory, remained unexplained and, as such, the possibility of tampering with the same, until the same reached the Laboratory, could not be ruled out. No explanation, whatsoever, was furnished, as to why, the samples were not sent to the office of the Chemical Examiner, for about 09 days. Had any explanation been furnished, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, in this regard, the Court cannot coin any of its own. In Gian Singh v. State of Punjab, 2006 (2) RCR (Criminal) 611, there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. Under these circumstances, it was held that the possibility of tampering with the sample, could not be ruled out, and the link evidence was incomplete. Ultimately, the appellant was acquitted, in that case. In State of Rajasthan v. Gurmail Singh, 2005(1) Apex Criminal 521 (SC), the contraband remained in the Malkhana for 20 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. In Ramji Singh v. State of Haryana, 2007(3) RCR(Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, the seal remained with the police official, and had not been handed over to any independent witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Chemical Examiner. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. No doubt, the prosecution could lead other independent evidence, to prove that none tampered with the sample, till it reached the office of the Chemical Examiner. The other evidence produced by the prosecution, in this case, to prove the link evidence, is not only deficient, but also unreliable. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 09 days, in sending the samples to the office of the Chemical Examiner, and non-strict proof, by the prosecution, that the same were not tampered with, till the same were deposited in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 11. The accused, in his statement, under Section 313 Criminal Procedure Code, took up a specific defence, that he had filed a complaint against the SHO, Police Station, Moga, and due to that grudge, he was involved in this case falsely. Ex.D1 is the copy of complaint, which was filed by the accused (appellant) against Baldev Singh, SHO, Moga, under Sections 148, 364, 365, 342, 323, 324, and 506 read with Section 149 of the Indian Penal Code, as also under Sections 3 and 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Sukhdev Singh, DW-1, stated that about four years before 15.09.2006, Bhola Singh, was tortured by the SHO Police Station, Moga, his shoulder was fractured and he also received injuries on his neck. He further stated that he (appellant) filed a complaint against the SHO and other persons. Gurmail Kaur, DW-2, also stated that Thanedar gave beatings to Bhola Singh. It is settled principle of law, that the accused is not required to prove his defence, beyond a reasonable doubt. He is only required to probalize his defence. The version set up by the accused, in his statement, to the effect that he was tortured by the SHO, Police Station, Moga, and he filed a complaint Ex.D1, is duly corroborated from the statements of Sukhdev Singh, DW-1 Gurmail Singh, DW-2, and copy of the complaint Ex.D-1. He is only required to probalize his defence. The version set up by the accused, in his statement, to the effect that he was tortured by the SHO, Police Station, Moga, and he filed a complaint Ex.D1, is duly corroborated from the statements of Sukhdev Singh, DW-1 Gurmail Singh, DW-2, and copy of the complaint Ex.D-1. He was involved, in this case, by the police of Police Station, Bagha Purana, which falls within the purview of District Moga. The complaint, copy whereof is Ex.D-1, filed by Bhola Singh, against the SHO, Police Station, Moga was for very serious offences. Under these circumstances, the possibility of Bhola Singh, being falsely implicated, in the instant case, on account of that complaint, copy whereof Ex.D-1 by the police of Police Station Bagha-Purana, could not be ruled out. The defence version, set up by the accused, and the defence evidence, produced by him, in support thereof, are more probable than the prosecution version. The trial Court was wrong, in not placing reliance, on the same. Once the defence version is held to be more probable, than the prosecution version, then the accused, is required to be given the benefit of doubt. The trial Court, was, thus, wrong in recording conviction and awarding sentence to the accused. 12. No other point, was urged, by the Counsel for the parties. 13. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based, on the correct appreciation of evidence, and law, on the point. Had the trial Court taken into consideration, the aforesaid infirmities and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 15(c) of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 04.10.2006, and the order of sentence dated 05.10.2006, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required in any other case. Appeal allowed.