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Punjab High Court · body

2009 DIGILAW 2026 (PNJ)

Amrik Singh v. State Of Punjab

2009-11-22

MEHTAB S.GILL, RAM CHAND GUPTA

body2009
Judgment Mehtab S. Gill, J. 1. This is an appeal against the judgment/order 17.5.2001 of the learned Special Judge (Additional Sessions judge), Mansa, whereby he convicted Amrik singh son of Gurdial Singh under Section 15 of the Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter referred to as the Act) and sentenced him to undergo r1 for 12 years and to pay a fine of rs.1,00,000, in default of payment of fine, to further undergo R1 for 2 years. 2. The prosecution case is that on 9.12.1996 Inspector Joginder Pal Singh along with ASI Ujagar Singh, ASI Mohinder singh, HC Gurnam Singh, Constable parminder Singh, Constable Atma Singh and Constable Hardial Singh were present at Bus Stand Bajewala, on a Government canter driven by PHG Harpal Singh, in connection with holding a Naka. A special informer, gave information to them that amrik Singh son of Gurdial Singh ahluwalia resident of Chhapianwali, now residing at Mansa is selling poppy husk on the link road, leading from village Bajewala to Uddat Bhagat Ram, at the brick kiln situated in the area of village Bajewala. Heavy quantity of poppy husk could be recovered from him. Ruqa Ex. PA was sent to the police station for registration of the F. I. R. Inspector Joginder Pal Singh along with his employees proceeded for the raid, on the government canter, driven by PHG Harpal singh. Ruqa Ex. PA was sent on 9.12.1996. at 8.40 p. m. to ASI Lai Singh Police Station jaurkian on the basis of which F. I. R. Ex. PA/1 was registered. A copy of the same was sent to Inspector Joginder Singh. 3. The prosecution to prove its case, brought into the witness-box/inspector joginder Pal Singh PW1, ASI Ujagar Singh pw2, Constable Surindcr Singh PW [5 and iqbal Singh D. S. P. PW4. Joginder Singh dw1, Constable Jasbir Singh, DW2 and IIC darshan Singh DW3 were examined in defence. 4. Learned counsel for the appellant has argued, that the raid to be conducted was in the brick kiln at night time. It was incumbent upon the Investigating Officer joginder Pal Singh PW1 to comply with the provisions of Sections 41 and 42 (2) of the act, since it was night time and the place to be raided was a private place. It was incumbent upon the Investigating Officer joginder Pal Singh PW1 to comply with the provisions of Sections 41 and 42 (2) of the act, since it was night time and the place to be raided was a private place. Learned counsel has further argued that as per Sections 41 and 42 (2) of the Act, as the search warrants could not be issued, it was incumbent upon the Investigating Officer to write the reasons as to why the warrant could be got issued from the competent Court, 5. He has further argued that appellant did not have exclusive possession of the contraband. Allegedly the appellant was sitting on the contraband. Relying upon the judgment of the Honble Supreme Court in State of Punjab V/s. Balkar Singh and another, (2004) 3 SCC 582. appellant could not have been held liable for conscious possession of the poppy husk. 6. D. S. P. Iqbal Singh PW 4, strangely did not fsut his seal, when the recovery was made, though it has come in evidence that all the proceedings were being done in his supervision after the appellant had given his consent to be searched by a Gazetted officer. 7. Constable Jasbir Singh DW2 who brought Register No.19 of the year 1996 ex. Dl and Register No.5 regarding the sending of post to the higher authorities, it is clear that no entry exists in the register regarding sending special report to the d. S. P. Sardulgarh superior officer ofs. H. O. Joginder Pal Singh PW 1. 8. Darshan Singh DW3 brought the Log book pertaining to Jeep No. PB-3.1-6421. It shows the movement of the said jeep on 9.12.1996. The Photostat copies of the same are Ex. DA. It has been stated by this witness that in the column for use of the jeep and the destination to which it was taken is not written, as to whether the vehicle was taken to village Bajewala, or not. The entries also do not bear the signatures of d. S. P. Iqbal Singh PW4. 9. Learned counsel for the State has argued that there was exclusive and conscious possession of the contraband, as the appellant was sitting on the bags of poppy husk. Appellant was in the know how on what he was sitting, possession has been clearly established. The entries also do not bear the signatures of d. S. P. Iqbal Singh PW4. 9. Learned counsel for the State has argued that there was exclusive and conscious possession of the contraband, as the appellant was sitting on the bags of poppy husk. Appellant was in the know how on what he was sitting, possession has been clearly established. The seal after use by ASI Ujagar singh IJW2 was handed over to the independent witness Joginder Singh DW2. 10. The D. S. P. on that day may not have taken the official vehicle, and that is the reason the Log Book was not filled in. There was no need to comply with the provisions of Sec.41 and 42 (2) of the Act. 11. We have heard the learned counsel for the appellant and the State and perused the record with their assistance. Sec.42 (1) ( d) of the Act envisages as under: "12. Power of entry, search, seizure and arrest without warrant or authorization- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Centra! Sec.42 (1) ( d) of the Act envisages as under: "12. Power of entry, search, seizure and arrest without warrant or authorization- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Centra! Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from per sons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset: (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act. Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun- set and sunrise after recording the grounds of his belief. " 12. It is clear from Sec.42 (d) of the act that if the officer has any reason to be-lieve that search warrant or authorization cannot bo obtained, he will have to put that in writing. " 12. It is clear from Sec.42 (d) of the act that if the officer has any reason to be-lieve that search warrant or authorization cannot bo obtained, he will have to put that in writing. In the case in hand, though there was no need for the officer to obtain a search warrant, but it was incumbent upon him to put this belief as to why he cannot obtain a warrant, in black and white. There is no document on record regarding compliance of Sec.42 (d) of the Act. 13. Learned counsel for the appellant has rightly argued while placing reliance up slate of Punjab V/s. Balkar Singh and another (supra) that merely sitting on the bags of poppy husk would not amount to conscious possession if the residence or place from where the recovery is made, is not in the ownership of the accused. The Honble Supreme Court in para 3 of the judgment in state of Punjab V/s. Balkar Singh and another (supra) has held as under; "3. We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimony of PW1 Balbir Singh and pw2 ASI Jam ail Singh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of village Bira Bedi in District Ilissar while respondent Munish chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the high Court. " 14. The case of the appellant is squarely covered by judgment of the Honble Supreme Court in State of Punjab V/s. Balkar singh and another (supra ). 15. D. S. P. Iqbal Singh PW4 who was supervising the search, did not put his seal on the alleged contraband seized. In fact, it seems he did not go to the place of occurrence which is clear from the statement of hc Darshan Singh DW 3, who brought the log Book of his official jeep No. PB-31-6421. The Log Book shows that the said jeep was not taken towards the area of village bajewala on 9.12.1996. It seems that all the paper work was done in the office of the d. S. P. where signatures were then obtained. 16. The sole independent witness joginder Singh DW1 has not supported the prosecution case. He resiled from his state-ment and was declared hostile. Nothing worthwhile could be taken out from his statement by the prosecution in his cross-examination. The special report as per reg isters Exs. Dl and D2 was not sent to the superior officer i. e. D. S. P. Sardulgarh by inspector/s. H. O. Joginder Pal Singh PW 1. 17. With the above discussion and observations and relying upon the judgment of the Honble Supreme Court in State of punjab V/s. Balkar Singh and another (supra), a doubt is created in our mind, the benefit of which is given to the appellant. 18. Appeal is allowed and appellant is acquitted of the charge framed against him. 17. With the above discussion and observations and relying upon the judgment of the Honble Supreme Court in State of punjab V/s. Balkar Singh and another (supra), a doubt is created in our mind, the benefit of which is given to the appellant. 18. Appeal is allowed and appellant is acquitted of the charge framed against him. If in custody, he be set free forthwith, if not needed in any other case. Appeal allowed.