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2008 DIGILAW 945 (PNJ)

Sardara Singh v. State of Punjab

2008-04-29

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:-This appeal is directed against the judgment of conviction and the order of sentence dated 24.11.2001, rendered by the Judge, Special Court, Bathinda, vide which it convicted the accused/appellant Sardara Singh for the offence punishable under Section 15 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.l 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 10 bags each containing 32 Kgs. of poppy husk, without any permit or licence. 2. The facts, in brief, are that on 26.1.1999, ASI Pal Singh of Police Post Chowke, along with other officials, was present at the bus stand of Village Badhiala in a government canter. Kaka Singh, PW, met the police party who was joined with it. Thereafter, he received a secret information against accused Sardara Singh, that he was in the habit of selling poppy husk had brought 10 bags of poppy husk, and had concealed the same, in his fields, khown as Tibbi wala. On the basis of this information, ASI Pal Singh scribed the ruqa Ex.PE, and sent the same to the Police Station, on the basis whereof FIR Ex.PE/1 was recorded. Thereafter, he sent a wireless message to the Police Station, and Control Room, to send some Gazetted Officer, at the aforesaid place. Thereafter, the entire police party reached the place of recovery. On seeing the police vehicle, the accused ran away, from the spot, while he was putting earth on the bags. ASI Pal Singh, Boga Singh, Head Constable, and Kaka Singh, PW, were earlier known to the accused and they saw him running in the light. When the police party, reached near the place of recovery, they saw that a part of one bag was visible and the remaining part, was covered by earth. After some-time, DSP Sohan Singh Sandhu, reached the spot. ASI, Pal Singh disclosed him about the facts. As per the directions of the DSP, ASI Pal Singh removed the bags from under-neath the earth and they were found to be 10 in number. On opening all the ten bags, were found containing poppy husk. On weightment each bag was found containing 32 Kgs. of poppy husk. ASI, Pal Singh disclosed him about the facts. As per the directions of the DSP, ASI Pal Singh removed the bags from under-neath the earth and they were found to be 10 in number. On opening all the ten bags, were found containing poppy husk. On weightment each bag was found containing 32 Kgs. of poppy husk. A sample of 200 grams was taken out from each of the bags and the remaining poppy husk, was put into the same bags. The samples and the bags ,were duly sealed. with the seal, bearing impression ‘PS’. The seal, after use, was handed over to Kaka Singh. Thereafter, the samples and the bags aforesaid were taken into possession, vide memo Ex.PF, attested by the witnesses. Rough site plan EX.PG was prepared. The accused was arrested on 24.9.1999. 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 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 Harpal Singh, ASI, PW-l, lora Singh, Constable, PW-2, Mohinder Singh, Inspector, PW­ 3, Pal Singh, ASI, PW-4, and Sohan Singh Sandhu, PW-5. Kaka Singh, independent witness, was given up, as won over, by the accused; by the Public Prosecutor for the State, vide his statement dated 18.8.1999. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he was innocent and had gone to a pilgrimage on Lohri in the year 1999, including Patna Sahib and Hazur Sahib, and, on his return he came to know that he had been involved in a false case. He surrendered and claimed identification parade from the Pws. He further stated that the field in question, did not belong to him. He, being an old man, could not run away and could not escape from the police. He further stated that he had no concern with the poppy husk, and the same was planted against him. He, however, produced no evidence, in his defence. 6. He further stated that the field in question, did not belong to him. He, being an old man, could not run away and could not escape from the police. He further stated that he had no concern with the poppy husk, and the same was planted against him. He, however, produced no evidence, in his defence. 6. After hearing the 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 to order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/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 the alleged recovery was effected on 26.1.1999 at night. He further contended that the accused allegedly ran away from the spot. He further contended that he was not known to the police officials earlier. He further contended that as such, the identity of the accused, who allegedly ran away from the spot, could not be established. It was further contended by him, that the identification parade of the accused, as the perpetrator of crime, was required to be held, during the course of investigation, but it was not held. He further contended that since the identity of the accused, was not established, by the prosecution, as the perpetrator of crime, he was not connected with the case, in any manner. He further contended that even the ownership of the accused, in respect of the fields, from where the alleged recovery of poppy husk, was effected, was not proved by the prosecution. He further contended that since the accused was not connected with the instant case, the trial Court was wrong, in recording conviction and awarding sentence. 10. On the other hand, the Counsel for the respondent, submitted that the accused was identified by three persons, and was named in the FIR. He further contended that there was no necessity of holding the identification parade, for establishing the identity of the accused, he having been already named in the FIR. He further contended that the identity of the accused was established beyond a reasonable doubt, by the prosecution witnesses. He further contended that there was no necessity of holding the identification parade, for establishing the identity of the accused, he having been already named in the FIR. He further contended that the identity of the accused was established beyond a reasonable doubt, by the prosecution witnesses. He further contended that there was no enmity of the prosecution witnesses, with the accused, to falsely implicate him, in the instant case. He further contended that the fields, wherefrom, the poppy husk was recovered, belonged to the accused. He further contended that the trial Court was, thus, right in recording conviction and awarding sentence to the accused. 11. Coming to the identification of the appellant-accused, as the alleged perpetrator of crime, no doubt, in the ruqa Ex.PE, his name figured, on the basis of secret information, given by the secret informer. The secret informer could not be examined. Since, the alleged recovery was effected, in the month of January at about 7.30 P.M. when it was complete darkness, it was not at all possible to identify the accused, as the perpetrator of crime. No doubt, ASI Pal Singh, the Investigating Officer, PW-4, stated that the accused was known to him, Bogha Singh and Kaka Singh, independent witness, earlier to the alleged recovery. He also stated, in his examination­ in-chief, that he along with Bogha Singh identified the accused. However, during the course of his cross examination, he stated that he did not mention the fact of knowing the accused, prior to the occurrence, in any of the documents, prepared by him. He further stated, during the course of his cross-examination, that he did not know the names of the sister, brother, wife and neighbourer of the accused. He further stated, during the course of his cross-examination, that the accused was not wanted by him, in any other case. He further stated that they followed the accused to some extent, but he escaped due to darkness. He further stated that he did not see the accused, in the light of electric motor. He further stated that he did not know, if the accused was 70 years of age. As stated above, Kaka Singh, independent witness, was given up by the Public Prosecutor, for the State, vide his statement dated 8.12.1999, as won over by the accused. Vide the same statement Bogha Singh and Bhupinder Jot Singh witnesses were given up, as unnecessary. He further stated that he did not know, if the accused was 70 years of age. As stated above, Kaka Singh, independent witness, was given up by the Public Prosecutor, for the State, vide his statement dated 8.12.1999, as won over by the accused. Vide the same statement Bogha Singh and Bhupinder Jot Singh witnesses were given up, as unnecessary. It means that two other witnesses who allegedly knew the , accused, earlier to the alleged recovery, were not examined, by the prosecution. The case of the prosecution, therefore, was solely based on the bald statement of Pal Singh, regarding the identity of the accused. The statement of Pal Singh, PW-4, has been discussed above, on the aspect, as to whether he knew the accused earlier or not. On the basis of the statement of Pal Singh, it could not be safely held that the accused was known to him, earlier. He could not disclose as to how he knew the accused earlier. No other evidence was produced by the prosecution, with regard to the establishment of identity of the accused, as the alleged perpetrator of crime. Had any evidence been produced, on the record, that the accused was known to the Investigating Officer, or other officials of the raiding party, the matter would have been different. Since, the accused was not known to the Investigating Officer, and the other officials, who were members of the raiding party, earlier to the present occurrence, it was impossible for them to identify him, in the month of January, in the dark night/while running. The statement of Pal Singh, PW-4 regarding the identification of the accused, who allegedly ran away, is not at all reliable. In these circumstances, it was imperative, on the part of the Investigating Officer, to hold identification parade during the course of investigation, to pin-point identity of the accused, as the alleged perpetrator of crime. No such effort was made by the Investigating Officer. It was held in Budhsen and Another Vs. State of U.P., AIR 1970 SC 1321 that facts which establish the identity of an accused person, are relevant under Section 9. As a general rule, the substantive evidence of a witness is a statement made in the Court. The evidence of mere identification of the accused person, at the trial, for the first time, is from its very nature, inherently of a weak character. As a general rule, the substantive evidence of a witness is a statement made in the Court. The evidence of mere identification of the accused person, at the trial, for the first time, is from its very nature, inherently of a weak character. The evidence, in order to carry conviction, should ordinarily clarify, as to how, and, under what circumstances, the witness came to pick out the particular accused person, and the details of the part, which the accused played, in the crime, in question, with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence, to generally look for corroboration of the sworn testimony of witnesses, in the Court, as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. There may, however, be exceptions, to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades, belong to the investigation stage. They are generally held, during the course of investigation, with the primary object of enabling the witnesses, to identify persons, concerned, in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses, and also to furnish evidence, to corroborate their testimony in the, Court. Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail, or some other place, and they make statements either express or implied that certain individuals whom they point out are persons whom they recognize as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162 Cr.P.C. The principle of law, laid down, with regard to the test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under: “Identification parades have been in common use for a very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. The State of T.N. AIR 1978 Supreme Court 1204 was as under: “Identification parades have been in common use for a very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident but they claim that although they did not know him earlier, they could recall his features in sufficient details and would be able to identify him if and when they happened to see him. The holding of a test identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit, it saves the suspect or the accused form the sudden risk of being identified in the dock by the self same witnesses during the course of the trial. The line up of the suspect in a test identification parade is therefore a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice. “ The principle of law, laid down, in the aforesaid authorities, is applicable to the facts of the instant case. The statement of Pal Singh, ASI, for the first time in the Court, could not be relied upon. With a view to prove its case against the accused, it was obligatory, on the prosecution to establish his identity, as the perpetrator of crime, beyond a reasonable doubt. Since, the prosecution miserably failed to establish the identity of the accused beyond a reasonable doubt, as the perpetrator of crime, he was not at all connected with the present case. On re-appraisal of the evidence of Pal Singh, ASI, PW-4, it has been found that the same is not creditworthy, with regard to the identification of the accused. Since, the prosecution miserably failed to establish the identity of the accused beyond a reasonable doubt, as the perpetrator of crime, he was not at all connected with the present case. On re-appraisal of the evidence of Pal Singh, ASI, PW-4, it has been found that the same is not creditworthy, with regard to the identification of the accused. The trial Court was thus, wrong in relying upon the evidence of this witness for holding that the identity of the accused as the perpetrator of crime, was established. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 12. No doubt, in the ruqa, the name of the accused was recorded. As stated above, the name of the accused, in the ruqa, was recorded on the basis of the information, provided by the secret informer. Ruqa Ex.PE, did not constitute the substantive evidence. As stated above, the secret informer could not be examined, as a witness, to prove the identity of the accused, as the perpetrator of crime. The submission of the Counsel for the respondent, to the effect, that since the name of the accused was recorded, in the ruqa, on the basis of the information, supplied by the secret informer, there was no necessity of holding the identification parade, does not appear to be correct. If such a submission of the Counsel for the respondent is accepted, then the name of any person can be recorded, in the ruqa, by the Investigating Officer, on the basis of the information, supplied by the secret informer, and, even if, such a person succeeds in running away and his identity is not established as the perpetrator of crime, merely on the basis of the ruqa, he may be convicted. The prosecution is required to prove the identity of the accused, as the perpetrator of crime, beyond a reasonable doubt, by leading the cogent, convincing and reliable evidence. The Court has to act, on the basis of substantive evidence produced. As stated above, ruqa does not constitute the substantive evidence and, as such, no reliance could be placed thereon for proving the identity of the accused, as the perpetrator of crime. Had from the evidence of Pal Singh, PW -4, the identity of the accused been proved, beyond a reasonable doubt, then the ruqa would have been used for corroboration of the same. Had from the evidence of Pal Singh, PW -4, the identity of the accused been proved, beyond a reasonable doubt, then the ruqa would have been used for corroboration of the same. In my considered opinion, it was a fit case, in which the identification parade of the accused, was required to be held, but the Investigating Officer failed to do so, and, as such, his identity as the perpetrator of crime, was not at all proved. The submission of the Counsel for the respondent, in this regard, being without merit, must fail, and the same stands rejected. 13. Now coming to the factum, as to whether the fields, wherefrom the alleged recovery of poppy husk, was effected, belonged to the accused or not, it may be stated here, that no evidence worth reliance, was produced by the prosecution, to prove this factum. No Patwari was examined that the fields wherefrom the alleged recovery was effected, belonged to the accused. No jamabandi was tendered into evidence, to prove that the fields wherefrom the alleged recovery was effected, belonged to the accused. Pal Singh, ASI, PW-4, stated that there was a wheat crop, in the fields, around the place of recovery. He further stated that he did not take into possession any revenue record from the Patwari. Since, the prosecution miserably failed to prove that the fields wherefrom the alleged recovery was effected, belonged to the accused especially when he (accused) was not apprehended at the spot, it could not be said that the accused was in conscious possession of the bags, containing poppy husk. The fields where the bags containing poppy husk, were lying might be belonging to some other person. Had the accused been apprehended, at the spot, while sitting on the bags of poppy husk from near the same, in the fields, the matter would have been different. In those circumstances, he would have been attributed the knowledge with regard to the poppy husk recovered. No doubt, the alleged recovery effected, in this case, is heavy, yet that fact alone, in itself, is not sufficient, to connect the accused with the same, in the absence of cogent and convincing evidence. In those circumstances, he would have been attributed the knowledge with regard to the poppy husk recovered. No doubt, the alleged recovery effected, in this case, is heavy, yet that fact alone, in itself, is not sufficient, to connect the accused with the same, in the absence of cogent and convincing evidence. Since, the prosecution failed to prove that the accused was either the owner or in possession of the fields, wherefrom, the alleged recovery was effected it could not be said that he was in conscious possession of the bags, containing poppy husk. Thus, no offence under Section 15 of the NDPS Act, 1985, was committed by the accused. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 14. No other point was urged, by the Counsel for the parties. 15. In view of the above discussion, it is held that the judgment of the trial Court is not based on the correct appreciation of evidence, and, law, on the point, The trial Court also failed to take into consideration the aforesaid infirmities and lacunae, in the prosecution case, as a result whereof, it fell into an error in recording, conviction and awarding, sentence. The judgment of the trial Court, warrants interference, and is liable to be set aside. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of the bail bonds. If he is in custody, he shall be set at liberty, at once, if not required, in any other case. ——————————