Research › Search › Judgment

Punjab High Court · body

2010 DIGILAW 3001 (PNJ)

Balwinder Kaur v. State of Punjab

2010-11-09

NIRMALJIT KAUR

body2010
JUDGMENT NIRMALJIT KAUR, J. 1. The appellant has been convicted vide order and judgement dated 9.3.2010 passed by Special Judge, Moga, for the offence under Section 18 of the Narcotic Drugs And Psychotropic Substances Act, 1985 to undergo RI for a period of 1 ¼ year and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo further RI for three months. Aggrieved against the said order and judgment, the appellant has filed the present appeal. 2. In brief the case of the prosecution is that on 3.6.2007, Gurbhej Singh SI alongwith Gamdoor Singh and other police officials were going towards village Khosa Randhir Singh for the purpose of investigation in case FIR No.8/07 registered under Section 302 IPC and when their vehicle reached near the canal in the area of village Gagra, accused Balwinder Kaur was found standing there and on seeing their vehicle she started walking on the beam of canal. On the basis of suspicion SI Gamdoor Singh stopped their vehicle and the accused, who was stated to be carrying a bag, nabbed Crl. A. No.671-SB of 2010 -2and interrogated about her identity. SHO Gamdoor Singh told the accused that he suspected that some intoxicant material in her bag and thus it was to be searched. He apprised the accused of her legal right to opt the search either from him or some Magistrate or some GO. The accused opted her search in the presence of some GO. regarding which non-consent memo Ex. P-1 was prepared, which was signed by the accused and attested by SI Gurbhej Singh and lady constable Amarjit Kaur. DSP Jagjit Singh of Dhankot was called at the spot. In the meanwhile, Amarjit Singh private witness also reached at the spot. On his reaching at the spot, DSP Jagjit Singh introduced himself to the accused by disclosing his rank and identity. He also apprised the accused of her legal right to opt her search either from him or some magistrate. Accused opted her search in the presence of DSP Jagjit Singh. Regarding which consent memo Ex.P-2 was prepared, which was signed by the accused and attested by SI Gurbhej Singh, lady constable Amarjit Kaur, DSP Jagjit Singh and Amarjit Singh. He also apprised the accused of her legal right to opt her search either from him or some magistrate. Accused opted her search in the presence of DSP Jagjit Singh. Regarding which consent memo Ex.P-2 was prepared, which was signed by the accused and attested by SI Gurbhej Singh, lady constable Amarjit Kaur, DSP Jagjit Singh and Amarjit Singh. On the direction of the DSP, lady constable Amarjit Kaur conducted search of the bag of the accused from which I Kg Opium wrapped in a glazed paper was recovered. Two samples each of 20 grams were taken out from the recovered contraband and the same were converted into 2 separate parcels. The residue contraband was put in a separate box and its separate parcel was prepared. SHO Gamdoor Singh sealed all those parcels with his seal of Mark GS and the DSP sealed the same with his seal of Mark JS. Both of them prepared samples of their seals on CFSL form Ex.P-3. SI Gamdoor Singh handed over his seal to SI Gurbhej Singh and the DSP retained his seal with him. The case property was taken into possession vide memo Ex.P-4. Rs. 365/-were also recovered from personal search of the accused Crl. A. No.671-SB of 2010 -3conducted by C. Amarjit Kaur, regarding which memo Ex.P-5 was prepared, which was signed by the accused. As per the CFSL report, the recovered sample was of opium. The total recovery was 1 kilogram of opium. The same was stated to be found in conscious possession of the accused without any licence or permit. Accordingly, the FIR was registered. 3. The prosecution in order to substantiate the charge beside other formal witnesses examined PW-1 SI Gurbhej Singh, who was one of the witness to the recovery. PW-5 Investigating Officer Gamdoor Singh, PW-4 DSP Jagjit Singh, who testified that he reached at the spot on wireless message received from SHO Gamdoor Singh. Independent witness Amarjit Singh was given up being won over. Whereas, lady constable Amarjit Kaur was given up as unnecessary. 4. The statement of accused Balwinder Kaur under Section 313 Cr.P.C. was recorded. The plea of the appellant is that she has been falsely implicated in this case by the police at the behest of her husband with whom she is having matrimonial relation and a criminal case was also pending between the parties. 4. The statement of accused Balwinder Kaur under Section 313 Cr.P.C. was recorded. The plea of the appellant is that she has been falsely implicated in this case by the police at the behest of her husband with whom she is having matrimonial relation and a criminal case was also pending between the parties. The said defence is built in her statement under Section 313 Cr.P.C supported by DW-1 Bhupinder Kaur her cousin. DW-1 Bhupinder Kaur cousin of the accused appeared and deposed that accused Balwiner Kaur had a dispute with her husband and she was implicated in this case at the instance of her husband. She further deposed that earlier the police had tried to enrope the accused Balwinder Kaur in some false case at the behest of her husband and they had also come to her house to search her house but nothing has been found. DW-2 HC Jagat Ram, who deposed that FIR No.109 dated 5.7.2006 under Sections 326/506 IPC was registered at the behest of Balwinder Kaur. 5. The impugned judgment while being challenged on various grounds, the learned counsel for the appellant inter alia raised two main arguments. Firstly, at the time of alleged recovery of opium, the police had joined independent witness Amarjit Singh who has not been produced in court for his deposition. This Amarjit Singh independent witness has given up by the prosecution on the pretext that he has been won over by the appellant-accused. The prosecution is duty bound to produce the independent witness in court for his cross-examination to depose veracity of the story of the prosecution and the recovery has not been produced by the prosecution. According to the Criminal Jurisprudence, a person cannot be convicted on the sole ground of testimony of official witnesses when there was independent witness available and therefore, independent corroboration is necessary to prove the prosecution case. 6. Secondly, the prosecution also failed to produce the lady constable Amarjit Kaur, who had conducted personal search of the appellant-accused and memo of recovery was prepared in her presence and she has also signed on the memo of search etc. and without the evidence/examination of lady constable Amarjit Kaur the memos could not be proved beyond reasonable doubt. 7. Thirdly, the sample was sent to the Chemical Examiner after 8 days. The delay of 8 days was not explained. and without the evidence/examination of lady constable Amarjit Kaur the memos could not be proved beyond reasonable doubt. 7. Thirdly, the sample was sent to the Chemical Examiner after 8 days. The delay of 8 days was not explained. The same too has caused a dent in the prosecution story. In the case of Kuba Ram @ Khuba v. State of Haryana, 1995(3) RCR (Crl.) 316 (P&H), the unexplained delay of 15 days in sending the sample to the laboratory was found to be fatal to the prosecution case. 8. On the basis of the aforesaid arguments, learned counsel for the Crl. A. No.671-SB of 2010 -5appellant prayed for acquittal. 9. While controverting the submissions of the learned counsel for the appellant, learned counsel for the State has submitted that since the official witnesses had duly supported the case and the link evidence, independent witness Amarjit Singh was not examined as he had been won over. Moreover, the official witnesses had duly supported the prosecution story and their evidence cannot be ignored just because they are official witnesses and further there was no need to examine Amarjit Kaur lady constable as she was only recovery witness and two other official witnesses who were also witnesses to the said recovery namely SHO Gamdoor Singh and SI Gurbhej Singh had duly been examined, who proved the recovery. Thus, it was not necessary to examine 3rd recovery witness. Accordingly, she was given up as not necessary. 10. After giving thoughtful consideration to the rival contention of either side and perusing the entire record very minutely, the Court is of the view that the prosecution has not been able to prove the charge against the appellant beyond reasonable doubt. As such, she deserves to be acquitted. It is own case of the prosecution that independent witness Amarjit Singh reached the spot. The consent memo was signed in front of Amarjit Singh. The search was conducted in the presence of Amarjit Singh. Section 114 (G) of the Indian Evidence Act reads thus: (a) ----- (b) ----- (c) ----- (d) ----- (e) ------ (f) ---- (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who holds it.” 11. An adverse inference, therefore, could be drawn for non-examination of material witnesses. 12. Section 114 (G) of the Indian Evidence Act reads thus: (a) ----- (b) ----- (c) ----- (d) ----- (e) ------ (f) ---- (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who holds it.” 11. An adverse inference, therefore, could be drawn for non-examination of material witnesses. 12. Learned Single Bench of this Court in the case of State of Punjab v. Surjit Singh 2008(1) RCR (Criminal) did not agree with the contention that evidence of official witnesses is as good as all public men and held that it was necessary to examine a witness to reveal the truth even though he is won over by the prosecution. 13. Lady Constable Amarjit Kaur was given up as not necessary. The same has proved fatal to the case in as much as PW-1 Gurbhej Singh in his statement had stated that he alongwith other police officials was going towards village Khosa Randhir Singh for the purpose of investigation in case FIR No.8/07 registered under Section 302 IPC and they had seen accused Balwinder Kaur. In cross examination, he submitted that “Lady constable was taken along because we were going to investigate the case of murder of a female”. However, in the same breath Gurbhej Singh went on to state that “ Murder was committed in January of that year. That was a blind murder and till then no lady was named as an accused.” 14. It is apparent that the story of a lady constable accompanying them is a concocted. 15. Even otherwise, the examination of lady constable Amarjit Kaur becomes necessary to establish compliance Section 50 of the NDPS Act. Sub Sections (1) and (4) of Section 50 of the NDPS Act read as under: 16. When any other officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (4) No female shall be searched by anyone excepting a female. 17. In the present case, the accused-appellant, who was searched, was a female. The search was not only from the bag, which was carried by her but personal search was also stated to have been conducted. (4) No female shall be searched by anyone excepting a female. 17. In the present case, the accused-appellant, who was searched, was a female. The search was not only from the bag, which was carried by her but personal search was also stated to have been conducted. PW-1 Gurbhej Singh deposed in his evidence as under: “On the direction of the DSP, lady constable Amarjit Kaur conducted search of the bag of the accused from which I kg opium wrapped in a glazed paper was recovered. ---------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- Rs. 365/-were recovered from personal search of the accused conducted by C. Amarjit Kaur regarding which memo Ex.P.5 was prepared.” 18. Thus, Amarjit Kaur is a material witness in the present case as she is not just a witness to the recovery but her examination was necessary to prove that she has actually conducted the personal search of the accused who was a lady to show compliance of Section 50. Failure to do so coupled with the fact that the story of lady constable accompanying the police party appeared to be concocted as already held above, lends the prosecution story doubtful. Beside, it is also an admitted position that the seal was not handed Crl. A. No.671-SB of 2010 -8over to the independent witness even though he was stated to be present at the spot, rather it was handed over to the official witnesses. Moreover, the sample was sent after almost 8 days. No explanation is forthcoming. 19. Hon'ble the Supreme Court in the case of Ritesh Chakarvarti v. State of Madhya Pradesh 2006(4) Criminal Court Cases 405 held in paras 26 and 27 as under: “26. An adverse inference, therefore, could be drawn for non examination of material witnesses. 27. Appellant has been gravely prejudiced by non-examination of Ms. Sabiha Khatun and Shri Bajpai. Moreover, if the seizure witnesses are to be believed, their signatures had been obtained on blank papers. In that view of the matter, seizure of the contraband becomes doubtful.” 20. In the present case, the independent witness was not examined as having been won over. In such circumstances, it was necessary to examine all the departmental witnesses. 21. The examination of 2 recovery witnesses itself is not sufficient in the facts of the present case. In that view of the matter, seizure of the contraband becomes doubtful.” 20. In the present case, the independent witness was not examined as having been won over. In such circumstances, it was necessary to examine all the departmental witnesses. 21. The examination of 2 recovery witnesses itself is not sufficient in the facts of the present case. Examination of lady constable Amarjit Kaur was necessary as she had conducted personal search of the accused and to show that the search was done the way it was stated to have been done i.e. by fully complying with the provisions of the NDPS Act. 22. Hon'ble the Supreme Court in the case of Ritesh Chakarvarti (Supra) while setting aside the order of conviction under the NDPS Act held in para 43 as under: 43. In Sharad Birdhichand Sarda v. State of Maharashtra, 1984(4) SCC 116, it was held: “We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however, great it may be, cannot take the place of legal proof. A moral conviction however strong of genuine cannot amount to a legal conviction supportable in law. It must be recalled that the well established that the well established rule of criminal justice is that “fuler the crime higher the proff. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made.” 23. In view of the above discussion, the appeal is allowed and the appellant is acquitted of the charge framed against her. Appeal allowed.