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2010 DIGILAW 263 (PNJ)

Jang Singh v. State Of Haryana

2010-01-12

HARBANS LAL

body2010
Judgment HARBANS LAL, J. 1. This appeal is directed against the judgment dated 31.1.2005/ order of sentence dated 5.2.2005 passed by the learned Additional Sessions judge, Fatehabad whereby he convicted and sentenced the accused Jang Singh to undergo rigorous imprisonment for a period of four years and to pay a fine of rs.20,000/- under Sec.15 of the Narcotic Drugs and Psychotropic Substances act, 1988 (for brevity the Act) and in default of payment of fine to further undergo rigorous imprisonment for a period of six months. 2. Shortly put, facts of the prosecution case are that on 29.6.2001 inspector Mohinder Singh amongst other police officials was proceeding to police Station Bhattu Kalan in a government jeep bearing registration No. HR-22b/0337 being driven by Constable Harbans Lal. When they neared the canal bridge in the area of village Bhodia Khera, the accused was spotted approaching from the side of fields carrying a gathri (bundle) on his head. On catching sight of the police party, he squatted near the sheesham tree on the pretext to urinate. On suspicion, he was apprehended. On search the gathri was found containing poppy husk. Two samples of 100 grams each were drawn from the bulk and were converted into parcels, which were sealed with the seal MS. The residue when weighed came to 20 kilograms of poppy husk which was turned into parcel and sealed with the same seal. The seal after use was handed over to constable Balbir. The sealed parcels were seized vide recovery memo. Ruqa was sent to the Police Station, where on its basis formal F. I. R. was recorded. Rough site plan showing the place of recovery was drawn. The accused was arrested. After completion of investigation, the charge-sheet was laid in the court of Ilaqa Magistrate, who committed the case to the Sessions Court for trial of the accused. 3. The accused was charged under Sec.15 of the Act to which he did not plead guilty and claimed a trial. In order to substantiate its allegations the prosecution examined PW.1 HC Jagdish Chander, PW-2 HC Sampuran Singh, PW-3 si Lal Singh, PW-4 Inspector Mohinder Singh, PW- 5 Inspector Jai Kishan (retired), PW-6 Inspector Som Raj, PW-7 Balbir Singh and closed its evidence. 4. When examined under Sec.313 of Cr. In order to substantiate its allegations the prosecution examined PW.1 HC Jagdish Chander, PW-2 HC Sampuran Singh, PW-3 si Lal Singh, PW-4 Inspector Mohinder Singh, PW- 5 Inspector Jai Kishan (retired), PW-6 Inspector Som Raj, PW-7 Balbir Singh and closed its evidence. 4. When examined under Sec.313 of Cr. P. C. the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. In his defence he did not adduce any evidence. 5. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. Madan Sandhu, advocate, appearing on behalf of the appellant strenuously urged that as per the evidence tendered by HC Jagdish Chander PW-1 the case property was deposited with him on 29.6.2001 and the sample was handed over to Constable sampuran Singh on 9.7.2001. Thus obviously, there is unexplained delay of as many as 9 days in sending the sample to the Chemical Examiner. He further puts that HC Sampuran Singh PW-2 through whom the sample parcel was sent for chemical analysis, has solemnly affirmed that only one sample parcel was handed over to him by the MHC whereas according to the story put forth by the prosecution, two samples were drawn. So palpably, the link evidence is missing. He further canvassed at the bar that no effort was made to join an independent witness. The evidence tendered by the official witnesses finds no corroboration from any independent source. That being so, it would be quite unsafe to place on reliance upon their statements. To tide over these submissions, Mrs. Neena madan, Additional Advocate General, Haryana maintained that the case of the prosecution cannot be thrown over-board merely because of non-joining of an independent witness. She further puts that, of course, two samples were drawn and according to HC Sampuran Singh PW-2 only one sample was sent for chemical analysis, but it hardly affects merits of the case. 6. I have given a deep and thoughtful consideration to the rival contentions. 7. She further puts that, of course, two samples were drawn and according to HC Sampuran Singh PW-2 only one sample was sent for chemical analysis, but it hardly affects merits of the case. 6. I have given a deep and thoughtful consideration to the rival contentions. 7. It is in the cross-examination of ASI Balbir Singh PW-7 the recovery witness that the place of recovery is at a distance of 100 yards from the abadi of village Bhodia Khera. It is deducible from this piece of evidence that the independent witness could be called from the said village for being joined in the investigation. It further surfaced in his cross- examination that weighing material was brought by Constable Rajinder from the village, who was also directed by the investigating Officer to call the respectables from the village, but he had forgotten to call the respectables from the village. It is unbelievable that if investigator had asked this witness to fetch respectables with him, he would have forgotten to do so. It is in the cross-examination of Mohinder Singh inspector PW-4 Investigator that "some persons were called from the village to join investigation, but they refused to join investigation. I cannot tell their names. No action was taken against them. " Axiomatically, both these Pws namely asi Balbir Singh (sic) as well as Investigating Officer are in sharp contradiction for the reason that according to the former, the Constable rajinder had forgotten to call the respectables, whereas according to investigator, the persons who were called from the village had refused to join investigation. Inspector Mohinder Singh (sic) lets the cat out of bag, by deposing in his cross-examination that people were coming and going through the place of recovery. If it was so, he was obligated to join the passersby in the investigation. He has not assigned any reason worth the name for non-joining of these persons in the investigation. It is in his further cross-examination that "seals are in broken condition. There is no visibility of seal impression. " The letters of the seals being invisible on the case property, it is very difficult to say with absolute certitude that the case property produced in the court was the same as was recovered from the appellant. 8. It is in his further cross-examination that "seals are in broken condition. There is no visibility of seal impression. " The letters of the seals being invisible on the case property, it is very difficult to say with absolute certitude that the case property produced in the court was the same as was recovered from the appellant. 8. It has to be borne in mind that the case of the prosecution is that the police party headed by Mohinder Singh Inspector was going towards Police station Bhodia Khera. They were in jeep. In his cross-examination, he has regretted his inability to disclose the number of the official jeep as well as the name of its driver. These are such stark facts regarding which he could not reasonably regret his amnesia. To put it differently, these stubborn facts could hardly escape from his memory. To me, it appears that he has deliberately suppressed these facts by pre-conceiving or anticipating that their disclosure would lead the accused to summon the log book of such jeep as well as the police official, who was driving the same at the relevant time. This cast a cloak of suspicion over the prosecution story. It is a specific case of the prosecution that two samples were drawn from the bulk of poppy husk, whereas HC sampuran Singh PW-2 who carried sample parcels to the office of the Chemical examiner under the stress of cross- examination has admitted that on 9.7.2001 only one sample parcel was handed over to him by the MHC for the stated purpose. In his affidavit Ex. P-1 Jagdish Chander HC PW-1 with whom the case property was deposited has solemnly affirmed that two sample parcels said to contain poppy husk were handed over by him to Sampuran Singh HC PW-2,though as per the contents of Ex. P-2 the affidavit of Sampuran Singh (sic), only one such sample parcel was handed over to him. Ostensibly, there is dent in the prosecution case. In the ultimate analysis, it boils down that the prosecution has dismally failed to bring home guilt against the appellant beyond a shadow of reasonable doubt. 9. Sequelly, this appeal is accepted, setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charged offence. 10. The Registry is directed to send a copy of this judgment to the court of learned Additional Sessions Judge, Fatehabad.