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2010 DIGILAW 3133 (PNJ)

Sukhdev Singh v. State Of Punjab

2010-11-23

MEHINDER SINGH SULLAR

body2010
Judgment Mehinder Singh Sullar, J. 1. Assailing the impugned judgment of conviction and order of sentence dated 4.6.1999 of Judge, Special Court, Sukhdev Singh- appellant-convict (hereinafter to be referred as "the appellant") has instituted the instant appeal, vide which, he was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years, to pay a fine of Rs. 1 lac and in default of payment of fine, to further undergo rigorous imprisonment for a period of two years for commission of offence punishable under section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short "the Act"). 2. The conspectus of the facts, culminating in the commencement, relevant for disposal of present appeal and emanating from the record, as unfolded during the trial, is that on 17.3.1997, a Police party headed by PW4 ASI Ujjagar Singh was going from village Jagatgarh Bander towards village Kushla, in connection with patrol duty. PW Ajaib Singh son of Gurbax Singh met the Police party. As soon as, the Police party was at it distance of one furlong from the bridge, within the area of village, Kushla, in the meantime, the appellant- accsued was seen coming from the opposite side, carrying a bag on his head. On seeing the police party, he tried to escape, but he was apprehended on the basis of suspicion. Suspecting some incriminating material in his possession the appellant was asked whether he wanted to be searched before a Magistrate or a Gazetted Officer. He desired that he be searched before a Gazetted Officer. The consent memo (Ex. PG) was prepared in this respect. 3. The case of the prosecution further proceeds that thereafter, DSP Sardulgarh was summoned through a wireless message. He reached the spot. Then, the search of the bag of the accused was conducted by P.W. 4 in the presence and on the direction of P.W. 2 D.S.P. Balwinder Singh. In the wake of search, one bag containing poppy husk was recovered. 100 grams was taken out as sample and the remaining residue of poppy husk, on weighing, came out to be 9Kg. 900 grams. The sample and the bag containing poppy husk, were separately sealed in parcels with the seal `US and were taken into possession by the Police, vide recovery memo (Ex. P.B.). The seal after use was handed over to P.W. Ajaib Singh. 900 grams. The sample and the bag containing poppy husk, were separately sealed in parcels with the seal `US and were taken into possession by the Police, vide recovery memo (Ex. P.B.). The seal after use was handed over to P.W. Ajaib Singh. The accused was formally arrested, vide memo (Ex. PD) and reasons for his arrest were told to him. The site plan (Ex. PH) was drawn and then ruqqa (Ex. PF) was sent to the Police Station, on the basis of which, the formal FIR (Ex. PF/1) was registered. On reaching the Police Station, the sample, the case property and the accused were handed over to SI/SHO of the Police Station on the same day. The accused was produced before the Illaqa Magistrate on the next day. The sample was sent to Chemical Examiner for its test, who submitted his report (Ex. PL) mentioning therein that the contents of sample were chur a poppy heads. 4. Levelling a variety of allegations, in all, according to the-prosecution that on 17.3.1997, in the wake of search, 10 kg. of poppy husk was recovered from the possession of the appellant without any permit or licence. On the basis of aforesaid allegations, the present case was registered against the appellant, by virtue of FIR No. 25 dated 17.3.1997, on accusation of having committed the offence punishable under Section 15 of the Act by the Police of Police Station Jaurkian, District Mansa, in the manner indicated here-in- above. 5. Having completed all the codal formalities, the appellant was charge sheeted for commission of the offence punishable under Section 15 of the Act by the trial Judge, vide order dated 22.7.1997. As he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 6. The prosecution, in order to substantiate the charge framed against the appellant, examined PW1 Constable Baldev Singh, PW-2 DSP Balwinder Singh, PW-3 Inspector Joginder Pal Singh and PW-4 ASI/Investigating Officer Ujjagar Singh in oral evidence. The prosecution has also tendered into evidence memo (Fard) jamatalashi Ex. PC, special report Ex. PE, application for depositing the case property in Judicial Mal Khanna Ex. PG/2, inventory report Ex. PPJ, information regarding arrest Ex. PK and affidavit of constable Baldev Singh Ex. PA in documentary evidence. The prosecution has also tendered into evidence memo (Fard) jamatalashi Ex. PC, special report Ex. PE, application for depositing the case property in Judicial Mal Khanna Ex. PG/2, inventory report Ex. PPJ, information regarding arrest Ex. PK and affidavit of constable Baldev Singh Ex. PA in documentary evidence. It will not be out of place to mention here that independent witness Ajaib Singh was given up by the prosecution as having been won aver by the appellant. 7. Thereafter, the entire incriminating material/evidence was put, to enable the appellant to explain any circumstance appearing against him in the evidence, as contemplated under Section 313 Cr.P.C., but he denied the recovery and the prosecution version in its entirety and pleaded false implication. However, he did not prefer to lead any evidence in his defence. 8. The Judge, Special Court, after taking into consideration the evidence on record, convicted and sentenced the appellant, in the manner indicated here-in-above. 9. The appellant did not feel satisfied with the impugned judgment of conviction and order of sentence and filed the present appeal. That is how I am seized of the matter. 10. At the very outset, learned Counsel for the appellant has contended with some amount of vehemence that the story of the prosecution is highly improbable. The sole independent witness Ajaib Singh son of Gurbax Singh, to whom, the seal, after use, was handed over, was not examined by the prosecution. The argument further proceeds that the mandatory provisions of the Act have not been complied with by the investigating agency at the time of alleged recovery and the link evidence is completely missing. In this context, raising a variety of arguments, in all, according to learned Counsel for the appellant that since the evidence brought on record by the prosecution is discrepant and untrustworthy, is therefore, the appellant deserves to be acquitted. 11. On the other end, hailing the impugned judgment of conviction, the learned State Counsel has urged that the chain of evidence of the prosecution is complete by reliable evidence and thus its case is fully proved on record against the appellant. 12. Sequelly, the cardinal fundamental principles of criminal law/jurisprudence have to be kept in focus while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. 12. Sequelly, the cardinal fundamental principles of criminal law/jurisprudence have to be kept in focus while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any legal substantive evidence as the evidence is essential element in the criminal proceedings, notwithstanding the seriousness of the allegations alleged against the accused. Because criminal proceedings require strict proof of guilt. It is the evidence, on the basis of which, the decision of a criminal Court is based and is the requirement of criminal justice. Otherwise, in the absence of the same, the Courts have no option but to record an order of acquittal howsoever painful the same may be. 13. Likewise, the Honble Apex Court in case Man Bahadur v. State of J.P. 2008 (4) RCR (Criminal) 563 (para 8) has observed as under :- "(8) Recently, this Court in Noor Aga v. State of Punjab and Anr., 2008 (3) RCR (Criminal) 633 : 2008 (4) RAJ 381 : 2008(9) SCALE 681, categorically, held that as the provisions contained in the N.D.P.S. Act are penal in nature, all requirements laid down therein must be complied with strictly, stating : "149. Section 50 of the Act provides for an option to be given.. This Court,in Baldev Singh (supra) quoted with approval the decision of the Supreme Court of United States in Miranda v. Arizona, (1966) 384 US 436 in the following terms : "The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be right, just and fair." 150. Justness and fairness of a trial is also implicit in Article 21 of the Constitution. 151. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial. 152. Justness and fairness of a trial is also implicit in Article 21 of the Constitution. 151. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial. 152. The Courts, in order to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well known legal principles governing the same; where for the provisions of the Code of Criminal Procedure and Evidence Act must be followed. 153. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. 154. Article 12 of the Universal Declaration of Human Rights provides for the Right to a fair trial. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land. 155. It is one thing to say that even applying the. well known principles of law, they are found to be guilty of commission of offences for which they are charged but it is another thing to say that although they cannot be held guilty on the basis of the materials on record, they must suffer punishment in view of the past experience of otherwise." 14. What is not disputed here is that the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs. 2,00,000/-, even awarding of death penalty in certain cases and various other stringent provisions where the Statute confers such drastic powers. Therefore, burden of proof was very heavy on the prosecution in this relevant connection, which is completely lacking in the instant case. 15. 2,00,000/-, even awarding of death penalty in certain cases and various other stringent provisions where the Statute confers such drastic powers. Therefore, burden of proof was very heavy on the prosecution in this relevant connection, which is completely lacking in the instant case. 15. Such thus being the position of evidence on record and law, now the core question, that arises for determination in this appeal, is as to whether the prosecution was able to bring on record sufficient evidence against the appellant in this regard or not? 16. Having regard to the rival contentions of the learned Counsel for the parties and keeping into focus the provisions of the Act, to me, the prosecution has miserably failed to substantiate the charge brought on record against the appellant. 17. As is evident from the record, the prosecution claimed that the Police party headed by PW-4 was present at the spot alongwith independent witness Ajaib Singh son of Gurbax Singh, when the appellant came there. On the basis of suspicion and in the wake of search, 10kg. of poppy husk was recovered from his possession, but the prosecution did not examine the sole independent witness, in order to prove the recovery of poppy husk from the appellant. The contention of the learned State Counsel that since the material witness Ajaib Singh was won over by the appellant, so, he was given up, pales into insignificance, because assuming for the sake of argument, he was won over by the appellant, still it was necessary on the part of the prosecution that such witness must be examined, so that he could be confronted with his earlier statement duly recorded by the Police to reveal the truth in. this context, as envisaged under Section 154 (1) of the Indian Evidence Act, 1872 . 18. An identical question arose before a Division Bench of this Court in case State of Puniab v. Sufi Singh, 2008(1) (Crl.) 266 (P&H) and Single Bench in case Basir Mohammad v. State of Haryana, 2008(3) RCR (Criminal) 244, wherein it was held that "even if the independent witness was won over, the prosecution was obliged to produce him in Court, so that he could be confronted with his earlier statement recorded by the Police to elicit the truth, in the prosecution version. The observations of aforesaid judgments "mutatis mutandis" are applicable to the facts of the present case. The observations of aforesaid judgments "mutatis mutandis" are applicable to the facts of the present case. Moreover, there was an ample opportunity with the Police party, during the period of apprehending the appellant at the spot, till the arrival of DSP from Sardulgarh to join other independent witness from the adjoining village/fields before the recovery was effected from the appellant. 19. As is clear from the statements of PW-2 DSP Balwinder Singh and PW-4 ASI Ujjagar Singh that the seal after use was handed over to independent witness Ajaib Singh, but he was not examined by the prosecution, so as to prove when he handed over the used seal to the Investigating Officer nor any evidence is forthcoming on record with regard to the handing over the-used seal to the Investigating Officer, which was essential to rule out the possibility of tampering of the parcels of sample and remaining poppy husk. 20. Not only that, the case property was not produced in the Court when the statement of PW3 Inspector/SHO Joginder Pal Singh was recorded. PW3 has categorically admitted that he kept the case property with him and did not deposit the same in Judicial Mal Khanna. He did not obtain any order from the area Magistrate for keeping the case property in his custody. So much so, PW4 has also admitted that the seal affixed on the case property are partially damaged and are not legible. No cogent evidence is forthcoming on record that why the case property was not deposited in the Judicial Mal Khanna or that the sample and the case property were not tampered when it remained in the Police Station. 21. Moreover, the presence of DSP (PW-2) at the time of recovery is highly doubtful. He (PW-2) admitted that he did not put his seal on the case property and sample at the time of alleged recovery. If he was actually present at the spot, he ought to have put his own seal on the sample as well as the case property, in order to avoid any possibility of tampering with the parcels. Absence of seal on the parcels creates doubt about his presence at the spot. Moreover, according to PW-2, his statement was recorded by the Investigating Officer himself and he did not state anything to him (Investigating Officer). 22. Absence of seal on the parcels creates doubt about his presence at the spot. Moreover, according to PW-2, his statement was recorded by the Investigating Officer himself and he did not state anything to him (Investigating Officer). 22. Above all, the possibility of plantation of poppy husk on the appellant, falling within the ambit of non-commercial quantity, cannot be ruled out in the obtaining circumstances of the case. It became the bounden duty of the Investigating Officer to observe all the safeguards provided under the Act, at the time of search and seizure, including Section 55 of the Act, which is totally missing in the present case and the appellant deserves acquittal, in view of the law laid down by this Court in case Gurdev Singh and others v. State of Punjab, 2009(2) R.C.R. (Criminal) 299. 23. Thus, it would be seen that if the facts of non-examination of sole independent witness Ajaib Singh, non-production of case property in the Court when the statement of PW-3 Inspector/SHO was recorded, partially damage of seals, the fact that the case property was not proved to be connected with the appellant and totality of other facts and circumstances, emanating from the record, as discussed here-in-above, are put together, then, to my mind, conclusion is inescapable and irresistible that the evidence brought on record by the prosecution falls short as is required to prove the criminal charge against the appellant under the Act. Therefore, it is held that it would not be safe to convict the appellant on the basis of such discrepant and contradictory statements of official witnesses alone and he deserves the benefit of reasonable doubt, in the obtaining circumstances of the case. 24. In the light of the aforesaid reasons, the appeal is hereby accepted and the impugned judgment of conviction and order of sentence are set aside. Having extended the benefit of reasonable doubt, the appellant is acquitted of the charge framed against him. Needless to state that all procedural consequences will follow accordingly.