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2010 DIGILAW 3379 (PNJ)

Prithvi Singh v. State of Haryana

2010-12-17

M.JEYAPAUL

body2010
JUDGMENT M. Jeyapaul, J. (Oral) - The first accused Prithvi Singh, who alone faced the trial, was convicted in respect of commission of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Act, 1985, (for short the NDPS Act) and was sentenced to undergo ten years rigorous imprisonment and to pay a fine of rupees one lakh, in default to undergo a further period of two years and six months rigorous imprisonment. The co-accused Rai Saheb has been declared as proclaimed offender. The driver of the truck, namely, Angrej Singh who allegedly fled from the scene of occurrence was never apprehended and he was not charge-sheeted by the investigating agency. 2. The sum and substance of the case of the prosecution as unfolded by the witnesses would read as follows :- a) On 22.07.1995, Jaipal Singh, the Sub Inspector of Police (PW6) was on patrol duty alongwith Constable Ram Phal (PW4) and others. At Nangthala canal bridge which fell within the jurisdiction of village Kuleri, PW5 Mohar Singh met the police party and he was associated for the recovery of the material objects in the present case. b) When PW6 alongwith PW4 and others were patrolling at the said location, a truck bearing registration No. RJ-31G/0019 covered with a tarpaulin came from Nangthala. PW6 gave a signal to the driver to stop the truck. The driver of the truck stopped the vehicle at some distance. The driver thereafter fled away from the scene of occurrence. The other two occupants also made an attempt to flee from the scene of occurrence, but they were apprehended. whereas the driver of the vehicle had escaped from the clutches of the police party. The occupants of the truck gave out their names as Prithvi Singh and Rai Saheb. They also disclosed the name of driver of the truck as Angrej Singh, resident of Darba. c) PW6 suspected that the truck was loaded with contraband. As per the request of the accused, Mr. Alok Rai, Assistant Superintendent of Police PW8, a gazetted officer, was also associated for the purpose of making a search. On search made in the presence of PW8, PW6 found 122 bags of poppy straw underneath 30 bags of fodder in the truck. Each of the bag weighed 46 kilograms of poppy straw. Sample of 250 grams from each of the bag containing poppy straw was taken. On search made in the presence of PW8, PW6 found 122 bags of poppy straw underneath 30 bags of fodder in the truck. Each of the bag weighed 46 kilograms of poppy straw. Sample of 250 grams from each of the bag containing poppy straw was taken. The samples as well as the remainder of 122 bags were separately parcelled and sealed. d) A ruqqa Ex.PD was sent to the police station through the Constable Dalip Singh. A formal First Information Report Ex.PD/1 was recorded by the Head Constable Ram Pal (PW3). PW6 prepared the cite plan. The case property was deposited with the Head Constable. The samples were sent to the Forensic Science Laboratory for the purpose of chemical analysis. PW6 having received the report from the Forensic Science Laboratory completed the investigation and filed final report as against the appellant herein and yet another proclaimed offender Rai Saheb. 3. On the side of defence DWI, the owner of the truck, was examined who has spoken to the fact that the truck owned by him was entrusted to his driver Angrej Singh for the purpose of transporting gypsum sand. 4. The trial Court having relied upon the evidence of PW3, PW4, PW6, and PW8 in the background of the Chemical Examiners report returned a finding that the accused/appellant committed the offence punishable under Section 15 of the NDPS Act. 5. The learned senior counsel Shri Atul Lakhanpal appearing for the accused/appellant would submit that the evidence of PW1 would establish that the second accused Rai Saheb sustained injury in the occurrence. No explanation was offered by any of the prosecution witnesses as to how the said accused sustained injury on his person. PW5, the only independent witness in this case, failed to support the case of the prosecution. As per the evidence of PW8, the occupants of the truck had already escaped. PW8 never whispered about the presence of any of the accused at the scene of occurrence. No attempt was made by the police party to overpower the driver despite the fact that the police party was armed with weapons. The sample was sent after a lapse of about seven days. Therefore, there is every chance of tampering with the samples collected by PW6. The Investigating Officer never investigated as to the ownership of the vehicle. No attempt was made by the police party to overpower the driver despite the fact that the police party was armed with weapons. The sample was sent after a lapse of about seven days. Therefore, there is every chance of tampering with the samples collected by PW6. The Investigating Officer never investigated as to the ownership of the vehicle. All the above facts and circumstances would go to show that the vehicle was found abandoned and the accused/appellant was hooked alongwith the absconding accused Rai Saheb, it is submitted by the learned senior counsel appearing for the accused/appellant. 6. The learned public prosecutor appearing for the State would vehemently submit that though PW 1 would speak about the injury sustained by the co- accused Rai Saheb but the latter had not appeared before the Court to establish that he sustained injury in the occurrence. No question was put to any of the prosecution witnesses with respect to the injury sustained by the co-accused Rai Saheb. Just because PW8 was silent about the presence of the accused, the evidence of PW4 and PW6 who have deposed to the presence of the accused cannot be brushed aside. Referring to Sections 35 and 54 of the NDPS Act, the learned public prosecutor appearing for the State would submit that once the possession of contraband was established, the culpable mental state of the accused and the commission of offence will have to be presumed. It is his further submission that there is no reason to reject the evidence of PW4 and PW6. who cogently spoke to the recovery of material objects and arrest of the accused/appellant and the co-accused. 7. The defence has come out with a plea that the truck seized by PW6 was found abandoned and the accused/appellant and the co-accused were falsely implicated to connected with the contraband which was found loaded in the truck. 8. PW5 the only independent witness associated by PW6, the Station House Officer, has completely turned hostile to the version of the prosecution. It is his evidence that no recovery was effected in his presence. 9. Of course, as submitted by the learned public prosecutor for the State PW4 the Head constable, and PW6, the Station House Officer, who were part of the patrolling team, have spoken about the arrest of the accused/appellant and the co-accused and the recovery of contraband. It is his evidence that no recovery was effected in his presence. 9. Of course, as submitted by the learned public prosecutor for the State PW4 the Head constable, and PW6, the Station House Officer, who were part of the patrolling team, have spoken about the arrest of the accused/appellant and the co-accused and the recovery of contraband. But the Court will have to test their veracity in the light of other facts and circumstances available on record in this case. 10. If an accused has sustained injury at the scene of occurrence, it is the duty of the prosecution to explain the injury sustained by the accused. As rightly pointed out by the learned senior counsel appearing for the accused/appellant, name of the witnesses examined on the side of the prosecution comes out with any explanation as to the injury sustained by the co-accused Rai Saheb. It is only the prosecution who has to establish the case beyond reasonable doubt that the accused committed the offence under Section 15 of the NDPS Act. No question need be put by the defence to any of the witnesses examined on the side of the prosecution as to how the co-accused sustained injury in the occurrence. It is only the prosecution which should come out with the real truth surrounding the injury sustained by the co- accused. 11. The evidence of PW1, the doctor who medically examined the co-accused has categorically stated that the co-accused sustained a bruise on his nose, another bruise on his right side forehead, yet another bruise on his left cheek and a laceration on his right cheek. The very case of the prosecution would go to establish that the co-accused Rai Saheb sustained as many as four injuries on his person. In tact, he was produced by the police official for the purpose of examination after the arrest was effected. When no explanation was forthcoming from the prosecution as to the injury sustained by the co- accused, the Court will have to give much credence to the defence version that the accused were booked falsely to connect with the contraband found in the abandoned truck. 12. PW4 and PW6 have spoken to the fact that the vehicle on receiving signal from PW6 did not Stop abruptly. It proceeded for a distance and thereafter it was stopped by the driver of the vehicle. 12. PW4 and PW6 have spoken to the fact that the vehicle on receiving signal from PW6 did not Stop abruptly. It proceeded for a distance and thereafter it was stopped by the driver of the vehicle. On stopping the vehicle, the driver thereof had fled away from the scene of occurrence. Unfortunately, the police party which was armed to the teeth had not taken any effort to apprehend him. They could have used their guns/rifles either to stop the vehicle or to cripple the absconding accused. 13. The Assistant Superintendent of Police (PW8) who was associated for the purpose of search has virtually buried the case of the prosecution at an abysmai depth. It is his version that he received a wireless message from Me that the occupants of the truck had already escaped. Quite strangely, PW4 and PW6 have come out with a case that the accused/appellant alongwith the co- accused Rai Saheb was apprehended, inspite of the fact that they made an attempt to escape. It is not the version of the PW4 and PW6 that the accused/appellant and the co-accused Rai Saheb had infact escaped at rifle time when the wireless message was given to PW8 and thereafter they were apprehended. Even assuming for the sake of argument that the accused/appellant and the co-accused Rai Saheb were apprehended by PW6 after the wireless message was given to PW8, PW8 should have spoken to the presence of those accused at the time when the search was conducted in his presence. Never has he whispered anything about the presence of the accused in his evidence. Therefore, the defence version that a false cave was foisted as against them to connect with the contraband found with abandoned vehicle cannot be simply brushed aside by this Court. 14. The sample was despatched as per the evidence of PW3 only after seven days of the recovery effected. There is every possibility of tampering with the samples collected from contraband as submitted by the learned senior counsel appearing for the accused/appellant. 15. The possession of the contraband by the accused/appellant was not established by the prosecution beyond reasonable doubt. Under such circumstances, the presumption of culpable mental state and the presumption that the accused/appellant has committed an offence under Sections 34 and 54 of the said Act cannot be raised. 15. The possession of the contraband by the accused/appellant was not established by the prosecution beyond reasonable doubt. Under such circumstances, the presumption of culpable mental state and the presumption that the accused/appellant has committed an offence under Sections 34 and 54 of the said Act cannot be raised. In view of the above, the decision in Dharm Pal Singh v. State of Punjab, 2010(4)RCR (Criminal) 504, pertaining to the presumption of culpable mental state and the commission of offence under the NDPS Act would not apply to the case on hand. The trial Court without adverting to the above material flaw in the case of the prosecution has convicted the accused/appellant under Section 15 of the NDPS Act. 16. In view of the above, the judgment of conviction recorded by the trial Court under Section 15 of the NDPS Act as against the accused/appellant and the sentence imposed thereunder stands set aside. Accordingly, the appeal is allowed. The bail bond if any, executed by the appellant shall stand annulled. As it has been established by the prosecution that the truck was loaded with contraband, the truck owned by DW1 shall be confiscated to the State. Appeal allowed.