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2010 DIGILAW 1456 (PNJ)

Sant Singh v. State Of Punjab

2010-04-19

KANWALJIT SINGH AHLUWALIA

body2010
Judgment 1. Sant Singh has preferred the present appeal. He was convicted by Judge Special Court, Ropar vide his judgment and order dated 15.11.2002 for offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the Act) and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months. Since the quantity of poppy husk recovered from the appellant was non-commercial, therefore he was awarded sentence of two years. 2. Nobody has appeared for the appellant on February 08, 2010 and also on various other dates. Earlier, on April 09, 2008, Ms. Sadana Trikha, Advocate was appointed as amicus curiae. She has also not caused appearance. In these circumstances, Sh. Sunil Chadha, Advocate was appointed as amicus curiae. 3. FIR No.212 dated 24.11.1999 registered at Police Station Ropar under Section 15 of the NDPS Act, 1995 Ex.PK/1. It was registered on the basis of a Ruqa Ex.PK sent on 24.11.1999 at 2 PM by SI Pawanjit Singh CIA Staff Ropar. At that time, Investigating Officer was present in the revenue estate of village Ghanauli District Ropar along with his companion police officials in connection with the patrol duty and nakabandi. At that time, one Bajaj Chetak scooter bearing registration No.PB-27-6934 was stopped coming from the side of Nalagarh. On suspicion, it was stopped. Its driver disclosed his name as Sant Singh son of Norang Singh. On the front side of the scooter, one bag was lying. The Investigating Officer stated that there was a suspicion that the bag contained contraband article, therefore a search is to be conducted. An offer was made to the accused that if desired he can get the search conducted in the presence of a Gazetted Officer or a Magistrate. The accused gave his consent and stated that search be conducted from a Gazetted Officer. Consent memo was prepared. It was attested by the witnesses. Services of DSP (D) was requisitioned through wireless. Randhir Singh DSP (D) reached at the spot along with his gunman. The gunman checked and the poppy husk was found. Out of poppy husk, two separate samples of 250 grams each were prepared. SI Pawanjit Singh had affixed seal bearing impression PJ on the parcel of sample so drawn and the case property. Randhir Singh DSP (D) reached at the spot along with his gunman. The gunman checked and the poppy husk was found. Out of poppy husk, two separate samples of 250 grams each were prepared. SI Pawanjit Singh had affixed seal bearing impression PJ on the parcel of sample so drawn and the case property. DSP (D) has also affixed his seal having impression of "RS". Procedure regarding search, seizure and recovery was effected and ruqa was sent for registration of the case. 4. The abovesaid FIR was investigated and the report under Section 173 Cr.P.C. was submitted. 5. The appellant was charged on 24.02.2000 for offence under Section 15 of the Act. The charge stated that on 24.11.99 at about 11 a.m. in the area of village Ghanauli District Ropar, he was found in possession 10 kg. poppy husk. PW1 Head Constable Harji Ram stated that investigation of the case was entrusted to him. He had recorded the statements of Pws Constable Sushil Kumar, MHC Sukhdev Singh and Constable Jaswant Rai without any addition or omission. PW-2 Head Constable Shingara Singh was member of the police party. He deposed regarding search, seizure and recovery of the poppy husk. This witness deposed that accused claimed that search be conducted before a Magistrate. This witness further stated that seals were handed over to him. In cross-examination, this witness stated that on the next day, he handed over the seals to the Investigating Officer. This witness further stated that Investigating Officer made an attempt to join public as an independent witness but nobody agreed for the same. PW-3 Anita Clerk from the SDM office, Mohali proved the driving licence of Sant Singh appellant. PW-4 Harcharan Kaur Clerk of the office of SDM, Kharar stated that scooter was owned by Sohan Lal son of Sant Singh. PW-5 DSP Raminder Singh, Crime Branch, Chandigarh stated that on 24.11.1999 he was posted as SHO P.S. Sadar Ropar and on that day, SI Pawanjit Singh produced three parcels of the poppy husk. PW-6 Head Constable Sukhdev Singh tendered his affidavit Ex.PF. This witness stated that there were two samples. He was transferred so he was not aware as to whether in his absence any sample was received back from the Chemical Examiner or not. PW-7 Constable Sushil Kumar also tendered his affidavit Ex.PG to prove link evidence. PW-6 Head Constable Sukhdev Singh tendered his affidavit Ex.PF. This witness stated that there were two samples. He was transferred so he was not aware as to whether in his absence any sample was received back from the Chemical Examiner or not. PW-7 Constable Sushil Kumar also tendered his affidavit Ex.PG to prove link evidence. PW-8 Randhir Singh DSP (D) who arrived at the spot stated that the search was conducted in his presence and 10 kg. poppy husk was recovered. Two samples of 250 grams each were prepared. In cross-examination, he stated that when he reached at the spot the bag of poppy husk was in the hand of accused. There were some shops at some distance from the place of recovery. He had not counted but may be there were 25 shops. No independent witness was called, as accused reposed confidence in him. He admitted that sample was having a small hole. He further deposed that the hole may have been made by rats. PW-9 SI Pawanjit Singh Investigating Officer reiterated as to what was stated in ruqa Ex.PK. He deposed that place of recovery was on G.T. Road and there were several shops, including a big Dhaba. Nobody from the shop was cooperating. He deposed that there was a Sales Tax barrier and police were remained present all the time. 6. Thereafter prosecution closed its evidence. 7. Statement of the accused was recorded under Section 313 Cr.P.C. Accused gave his version that he was falsely implicated by Karnail Singh and Gurdev Singh who were inimical to him. 8. In defence, DW-1 Gurmukh Singh, Member Panchayat stated that no recovery was effected from the appellant. Karnail Singh and Gurdev Singh were tried in a murder case of eight persons and the present appellant is victim of false implication. DW-2 Lachhman Dass stated that appellant was picked up from his house by the police and was implicated in a false case. 9. Sh. Sunil Chadha, Advocate appearing for the appellant has stated that in the present case, meager recovery of 10 kgs. poppy husk was effected from the appellant. It is stated that it is a non-commercial quantity. Court must be put to guard to seek corroboration from an independent source. He further submitted that in the present case, samples of poppy husk were prepared on 24.11.1999 and were produced before the Magistrate on 25.11.1999. poppy husk was effected from the appellant. It is stated that it is a non-commercial quantity. Court must be put to guard to seek corroboration from an independent source. He further submitted that in the present case, samples of poppy husk were prepared on 24.11.1999 and were produced before the Magistrate on 25.11.1999. However, they were sent to the Chemical Examiner on 6.12.1999. Thus, there was a violation of standing instructions No.l of 1988 issued by Narcotic Control. Bureau. 10. Sh. J.S. Bhullar, AAG Punjab appearing for the State has submitted that when the evidence of the official witnesses is reliable, there is no need to examine any independent. witness. 11. The sentence of the appellant was suspended by this Court on 7.02.2003. The order states that appellant had undergone nine months out of two years sentence awarded to him. 12. In the present case, there are circumstances, which compel this Court to arrive at a conclusion that it is not safe to uphold the conviction of the appellant. Therefore, benefit of doubt can be granted to him. As per the prosecution case, the recovery was effected from the place which was a thoroughfare. At the place of recovery, there was a big Dhaba and about 25 shops were there. There was also a Sales Tax barrier and the police party remained present there. Nobody from the near vicinity was joined as an independent witness. An explanation to this effect has been furnished that persons were asked to join as independent witness but they had refused to do so. No notice under Section 160 Cr.P.C. was issued to any person. Furthermore, Head Constable Shingara Singh had stated that accused claimed that a search be conducted before a Magistrate. The compliance of Section 50 is not required in case of recovery from a scooter but this fact can not be ignored for appraisal of the testimony of the witnesses. DSP Randhir Singh has stated that accused had reposed trust in him. If the accused had asked for a search before a Magistrate then the DSP Randhir Singh cannot carry search and say that the accused had reposed trust in him. Thus, testimony of PW-2 Head Constable Shingara Singh is to be given due credence while appreciating deposition of DSP Randhir Singh. Furthermore, DSP Randhir Singh has stated that no independent witness was examined as accused had reposed trust in him. Thus, testimony of PW-2 Head Constable Shingara Singh is to be given due credence while appreciating deposition of DSP Randhir Singh. Furthermore, DSP Randhir Singh has stated that no independent witness was examined as accused had reposed trust in him. Regarding joining and non-joining of independent witness, all the three official witnesses, i.e. PW-2 Shingara Singh, PW-8 Randhir Singh DSP (D) and PW-9 SI Pawanjit Singh Investigating Officer contradict each other. Furthermore, as stated earlier, their explanation is not corroborated from any document on the record. It has come in evidence that the sample and case property was produced before the Illaqa Magistrate on 25.11.1999. Head Constable Shingara Singh stated that recovery was effected on 24.11.1999. Seal was handed over to him which was returned to IO on the next day. Thereafter, samples were produced before the Magistrate. Seal was with the Investigating Officer. The possibility that the samples were tampered with cannot be ruled out. Thus, it is not safe to rely upon the testimony of PW-2 Shingara Singh, PW-8 Randhir Singh DSP (D) and PW-9 SI Pawanjit Singh Investigating Officer. Once the testimony of police witnesses is held not reliable, the Court always looks for independent corroboration which in this case is not forthcoming. In the circumstances enumerated above, non-sending of sample for a period of 12 days assumes importance. If the sample was produced before the Illaqa Magistrate on 25.11.1999 as to why the same was not sent within 72 hours to the Forensic Laboratory, in consonance with the instructions issued by Narcotic Control Bureau. No explanation is coming forward thereto. 13. In these circumstances, this Court is of the view that the appellant can be granted benefit of doubt as a matter of abundant caution. 14. Present appeal is accepted. Appellant is acquitted of the charge.