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2009 DIGILAW 2116 (PNJ)

Gurpal Singh v. State Of Punjab

2009-12-07

MAHESH GROVER

body2009
Judgment Mahesh Grover, J. 1. This judgment will dispose of above mentioned two appeals which have been preferred against judgment of conviction and order of sentence dated 25.4.2008 passed by the Judge, Special Court, Ludhiana (hereinafter described as the trial Court) vide which the appellants have been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act,1955 (for short, the Act) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. one lac each and in default of payment of fine, to undergo further rigorous imprisonment of one year each. 2. Brief facts of the ease against the appellants are that on 4.1.2004, a police party headed by Sub Inspector Dharam Pal, Station House Officer, Police Station, Raikot was present at Hari Singh Nalwa Chowk, Raikot in connection with special nakabandi. Assistant Sub Inspector Jaswant Singh, Incharge of Police Post, Jaladibad along with other police officials also came there. In the meantime, a secret information was received that the appellants and some other persons were habitual in bringing opium from Rajasthan and selling the same in that area and if nakabandies are conducted at various places, they could be apprehended. Therefore, different police parties were prepared. The party headed by Sub Inspector Dharam Pal was present at Seelowani Road, Raikot near the bridge of the drain. Kulwant Singh son of Major Singh, an independent witness, came and he was joined with the said police party. When the suspected persons were being checked, appellant-Gurpal Singh came on a scooter from the side of village Seelowani along with appellant-Amarjit Kaur riding on the pillion. They were signalled to stop. Appellant-Amarj it Kaur was carrying a jhola (bag) in her right hand. After introducing himself, Sub Inspector Dharam Pal desired to search the jhola and asked the appellants as to whether they wanted to be searched in the presence of some gazetted officer or a Magistrate, to which they replied that the search be conducted in the presence of a gazetted officer. Thereupon, a message was sent by wireless to the Deputy Superintendent of Police, Raikot, who came to the spot and after introducing himself, conducted the search of the appellants. Thereupon, a message was sent by wireless to the Deputy Superintendent of Police, Raikot, who came to the spot and after introducing himself, conducted the search of the appellants. Opium wrapped in a glazed paper was recovered from the jhola carried by appellant-Amarjit Kaur.; Two samples of 10 grams each were separated from the recovered opium and the remaining bulk came to be 4 kgs. 980 grams on weighing. The samples and the remaining opium were separated, made into parcels and were sealed with the seals of Sub Inspector Dharam Pal and Deputy Superintendent of Police, Shri H.S.Brar, bearing impressions DP and HSrespectively. The seal of Sub Inspector Dharam Pal, after use, was handed over to Kulwant Singh, witness. Separate impressions of the seals were also prepared. The samples, the remaining case property and the scooter were taken into possession vide recovery memo, Exhibit PB. The appellants were apprehended and after completion of investigation, a challan was presented against them. 3. The trial Court charged the appellants for having committed an offence punishable under Section 18 of the Act to which they pleaded not guilty and claimed trial. 4. To establish its case against the appellants, the prosecution examined as many as five witnesses and tendered the report of Chemical Examiner into evidence as Exhibit-PQ. 5. The entire incriminating material was put to the appellants when they were examined under Section 313 of the Cr.P.C. They pleaded innocence and alleged false implication. They denied the recovery of opium which was alleged to have been effected from them. 6. In their defence, the appellants examined DW1 -HC Gurcharan Singh. 7. After appraisal of the entire evidence on record, the trial Court convicted and sentenced the appellants in the manner noticed hereinabove. 8. Feeling aggrieved by the findings of the trial Court, the appellants have filed these two separate appeals. 9. Learned counsel for the appellants contended that the following points arise for consideration by this Court, which points to the innocence of the appellants :- (i) that the appellants were not found in conscious possession of the contraband; (ii) that no question was put to appellant-Gurpal Singh in his statement under Section 313 of the Cr.P.C. .about his being in conscious possession of the contraband and similarly, appellant-Amarjit Kaur was not questioned about the contraband being in her possession. (iii) That the link evidence which could satisfactorily explain the possession of the contraband has not been produced in Court while examining the witnesses as the samples were seized on 4.1.2004,but the same were sent to the Chemical Examiner on 28.1.2004, i.e., after delay of about 25 days without any cogent explanation for the delay; (iv) that the seal of Sub Inspector Dharam Pal, after use, was allegedly handed over to independent witness-Kulwant Singh, but he was never produced at the time of trial. (v) that Sub Inspector Dharam Pal has admitted in his testimony as P.W. 3 that he was having two seals of the same impression, out of which one was lying in the police station and the other was with him; (vi) that P.W.2-Assistant Sub Inspector Rajinder Singh admitted in his cross-examination that the seals on the case property were broken at the time of proceedings under Section 52-A of the Act; and (vii) that the case property was never deposited in the malkhana. 10. Learned counsel for the appellants, with reference to the aforesaid aspects of the matter, referred to the statements of P.W.I-Deputy Superintendent of Police, Harjit Singh Brar; P.W.2-Assistant Sub Inspector Rajinder Singh and P.W.3-Sub Inspector Dharam Pal, wherein they have, during the course of their testimonies, admitted that the samples were sent for chemical examination after a delay of 25 days and there is no explanation for the said delay. He further contended that these witnesses have also admitted that the seals were broken when the case property was sent for disposal. Learned counsel for the appellants submitted that as per the version of the prosecution, the seal of Sub Inspector Dharam Pal was handed over after use to Kulwant Singh, but he was never produced as a witness and that since the two seals of the same impression were available with the said Sub Inspector, one of which was lying in the police station,m the possibility of tampering with the samples cannot be rules out, and the benefit of the doubt which has crept in, should go to the appellants. 11. 11. Apart from this, learned counsel for the appellants urged that Exhibit-PN which is the affidavit of Head Constable Surjit Singh (P.W. 4), who is said to have taken the samples to the Chemical Examiner for analysis, reveals that he had taken the samples to Chandigarh, whereas the affidavit of P.W.5-Head Constable Sukhchain Singh, shows that the samples were taken to Patiala. He, thus, submitted that all this material when taken cumulatively together points to the innocence of the appellants. 12. On the other hand, learned counsel for the respondent-State contended that a specific question was put to appellant-Amarj it Kaur regarding her being in possession of the contraband and she did not deny the same and could not satisfactorily explain such possession and, therefore, the fact of her being in conscious possession stood adequately proved. He, however, could not satisfactory explain such a question being put to appellant-Gurpal Singh. He further contended that since the report of the Chemical Examiner shows that the seals on the samples were intact, no prejudice could have been caused to the appellants on that account. Learned counsel for the respondent-State submitted that the impugned judgment is perfectly in order and does not warrant any interference. 13. I have thoughtfully considered the rival contentions and have perused the impugned judgment, as also the record. 14. In so far as the question of conscious possession is concerned, if the statement of appellant-Gurpal Singh, which was recorded under Section 313 of the Cr.P.C, is to be seen, it reveals that no question regarding his being in conscious possession of the contraband was never put to him. Rather, a specific question as put to P.W.2-Assistant Sub Inspector Rajinder Singh was that the recovery was effected from his co-accused-i.e., appellant-Amarjit Kaur in his presence. This, in my. opinion, is not sufficient to satisfy the ingredients of the provisions of the Act as the possession of co-accused, even if, admitted, does not necessarily mean that appellant-Gurpal Singh was in conscious possession of the contraband. No knowledge was attributed to him and no material was collected that he was aware of the material being carried by appellant-Amarj it Kaur. 15. As regards appellant-Amarj it Kaur, indeed, a question was put to her about the conscious possession of the contraband and it was her bounden duty to explain such possession, which, however, she failed to do. 16. 15. As regards appellant-Amarj it Kaur, indeed, a question was put to her about the conscious possession of the contraband and it was her bounden duty to explain such possession, which, however, she failed to do. 16. But, in such an eventuality, the other contentions of the learned counsel for the appellants assumes great significance. A perusal of the statements of the prosecution witnesses shows that samples which were seized, were not free from the possibility of their being tampered with. It was stated by the witnesses, specially P.W.2-Assistant Sub Inspector Rajinder Singh, that after the samples were seized and sealed with the seals having impressions DP and HS, the seal of Sub Inspector Dharam Pal was handed over to Kulwant Singh, but strangely enough, this witness was not examined, although he could have provided a crucial link and would have enhanced the case of the prosecution. P.W.2-Assistant .Sub Inspector further stated that at the time of proceedings under Section 52-A of the Act, the seals already affixed on the case property were broken and he affixed his own seal RS thereon as per the orders of the Magistrate. Prior thereto, in his statement recorded in chief,he stated that the order regarding proceedings under Section 52-A of the Act is Exhibit-PN and the case property remained intact in his possession and neither he nor any body else tampered with it. This leaves a gaping-hole in the story of the prosecution, which is further compounded by the testimony of P.W.3-Sub Inspector Dharam Pal, who admitted and stated that it was correct that as per the judicial record, according to the investigation, there was nothing on record to suggest that appellant-Gurpal Singh was having any knowledge about the opium in the jhola allegedly being carried by appellant-Amarjit Kaur. He further stated that he received back his seal on the next day in the police station. He goes on to admit that he has two seals, one of which was lying in the police station and the other was with him at the time of seizure. If the impact of this testimony is assessed, then it is evident that the seal allegedly given to Kulwant Singh,who was never examined, was returned on the next day and the other was already lying in the police station. If the impact of this testimony is assessed, then it is evident that the seal allegedly given to Kulwant Singh,who was never examined, was returned on the next day and the other was already lying in the police station. For the reasons best known to the prosecution, the samples were sent for chemical examination after delay of 25 days, leaving ample room for manipulation and tampering. 17. Since sufficient doubt has been created about the handling of the samples, it cannot be said with certainty that the same could not have been tampered with in view of the facts which have been noticed above. 18. It is a settled proposition of law that once doubt is created in the case of the prosecution, then the benefit of such doubt certainly has to go to the accused persons. 19. The Court is, thus, of the considered opinion that in view of the fact that the prosecution has miserably failed to prove that appellant-Gurpal Singh was in conscious possession of the contraband and further the fact that the samples which were in the custody for almost 25 days with the seals also being in their possession, and also the fact that Kulwant Singh, independent witness to whom the seal was given, was also not examined, the possibility of samples being tampered with, cannot be ruled out. 20. Consequently, the appeals are accepted, the impugned judgment is set aside and the appellants are acquitted of the charge framed against them.