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2010 DIGILAW 450 (PNJ)

Niku v. State Of Punjab

2010-01-19

HARBANS LAL

body2010
Judgment HARBANS LAL, J. 1. This appeal is directed against the judgment/order dated 14.12.2001 passed by the court of learned Judge, Special Court, Jalandhar whereby he convicted and sentenced Niku accused to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1.00 lac under Sec.15 of the narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity the Act) and in default of payment of fine to further undergo rigorous imprisonment for three months. 2. The factual matrix as projected by the prosecution is that on 17.1.2001 ASI Dev Raj amongst other police officials happened to be present at bus Stand Dosanj Kalan, where he received secret information that the accused was having huge quantity of poppy husk on the bank of village Aur. On being asked Ashok Bath D. S. P. also came there. Ajaib Singh PW was also joined in the police party. When the raid was conducted at the disclosed place, the accused was spotted sitting on the gunny bags. The aforesaid D. S. P. by introducing himself asked the accused to tell as to Criminal Appeal No.57 SB of 2002 2 whether he wanted to have search of the bags in his presence or the Magistrate. He reposed confidence in him. On search of the five bags their contents were found to be poppy husk. A sample of 250 gms was drawn from each bag and converted into parcel. The residue of each bag when weighed came to 30 Kgs which was also turned into parcels. All these seals were sealed with seal bearing impression AB belonging to D. S. P. who retained the seal with him after its use. The case property including the sample parcels were seized vide recovery memo. The ruqa was sent to the police station where on its basis formal F. I. R. came to be registered. The 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 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 trial. The 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 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 trial. In order to substantiate its allegations, the prosecution examined Constable Paramjit Singh PW-1, D. S. P. Ashok Bath PW-2, ASI Dev Raj PW-3, HC Gurcharan Singh PW-4, Inspector Joga singh PW-5 and closed evidence by giving up Ajaib Singh PW as having been won over by the accused. 4. When examined under Sec.313 of the Code of Criminal Procedure, 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 examined Rup Lal DW-1. 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 earlier. 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. To begin with, the learned counsel for the appellant argued that the alleged recovery has been effected on the basis of the secret information, which admittedly has neither been reduced into writing nor forwarded to the immediate superior officer in adherence to the provisions of Sec.42 of the Act. This flaw in itself is sufficient to demolish the prosecution case. It is further argued that as is borne out from the prosecution evidence Ashok Bath D. S. P. kept his seal after use with him and the same was not entrusted to Ajaib Singh independent witness and thus, the possibility of the contents of the sample parcels being tampered with cannot be ruled out. The learned counsel for the appellant has been emphatic in the course of arguments that a meticulous perusal of the statutory statement of the appellant recorded under Sec.313 cr. P. C. would reveal that the affidavits of carrier of the sample parcels as well as the Mohar Head Constable with whom the case property was deposited, have not been put at all to the appellant, with the result, the link evidence is missing. 5. P. C. would reveal that the affidavits of carrier of the sample parcels as well as the Mohar Head Constable with whom the case property was deposited, have not been put at all to the appellant, with the result, the link evidence is missing. 5. He also pointed out that it is the specific case of the prosecution that the appellant was found sitting on the gunny bags, but the Investigator did not collect any evidence to the effect that these bags were the ownership of the appellant. So much so, he did not take the pains to ascertain as to who was the owner of such place. As against this, the learned State counsel pressed into service that the Investigator being simply of the rank of ASI could not be expected to plant such a huge quantity of poppy husk on the appellant. He could not reconcile the contentions raised on behalf of the appellant in a successful manner. 6. I have given a deep and thoughtful consideration to the rival contentions. 7. Jasbir Singh Constable No.3117 in his affidavit Ex. PA has solemnly affirmed that on 7.2.2001 MHC Gurcharan Singh, Police Station Goraya had handed over the sealed sample parcels of this case to him with seals intact and on the same day, he delivered these parcels in the office of Chemical examiner, Amritsar and on returning back to the Police Station he handed over the receipt to the aforesaid Mohar Head Constable. The prosecution has examined constable Paramjit Singh No.2049 as PW-1 who has tendered this affidavit Ex. PA in his evidence. Obviously, Jasbir Singh deponent of this affidavit has not been examined rather some other Constable has been produced at the trial. The numbers of both these constables are also distinct from each other. It is beyond comprehension as to under what circumstances Constable Paramjit Singh no.2049 instead of Constable Jasbir Singh No.3117 has been examined. It is not the case of the prosecution that Jasbir Singh Constable has expired and that Paramjit Singh Constable being conversant with his handwriting and signatures has been examined. To my mind, it speaks volumes of negligence on the part of the public prosecutor, whosoever was conducting the case. It clearly goes to show that it is a substitution. It is not the case of the prosecution that Jasbir Singh Constable has expired and that Paramjit Singh Constable being conversant with his handwriting and signatures has been examined. To my mind, it speaks volumes of negligence on the part of the public prosecutor, whosoever was conducting the case. It clearly goes to show that it is a substitution. Jasbir Singh Constable who in fact had carried the sample parcels to the office of the Chemical Examiner has been held back and sequelly the dent is caused in the prosecution case. On perusing the appellants statement recorded under Sec.313 of Cr. P. C. with due care and caution, it emerges out that neither this affidavit Ex. PA nor ex. PF of HC Gurcharan Singh PW-4 with whom the case property was deposited have been put to the appellant when he was Criminal Appeal No.57 SB of 2002 5 being examined under the said Section. In the case of Inspector of Customs, Akhnoor J and K Vs. Yash Pal and Anr.2009 (2) Recent Criminal Reports (Criminal) 514 it has been held by the Supreme Court that object to examine the accused under Section 313 of Cr. P. C. is to enable the accused personally to explain any circumstances appearing in evidence against him. Sec.313 of Cr. P. C. is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. A circumstance about which the accused had not been asked to explain cannot be used against him. That was also a case under Sections 21 and 8 of the Act. Here in this case the omission on the part of the trial Court to put the afore referred affidavits strike at the root of the prosecution case. These affidavits having not been put to the appellant, cannot be looked into evidence against him. Thus, there is no escape from the finding that the link evidence is incomplete. The appellant has been facing the agony of trial since 17.1.2001, meaning thereby, this incidence is more than 8 years old. So, it would not be in the interest of justice to remit this case to the trial Court for putting these affidavits to the appellant at this belated stage, particularly when there are number of other lacunae which strike death knell to the prosecution case. 8. So, it would not be in the interest of justice to remit this case to the trial Court for putting these affidavits to the appellant at this belated stage, particularly when there are number of other lacunae which strike death knell to the prosecution case. 8. Ashok Bath (sic) has stated in clear and unambiguous terms in his cross-examination that "the place of recovery was an open and had not any boundary wall. It is correct that the place of property is open and accessible to all. " ASI Dev Raj PW-3 Investigator has also stated in identical terms. These admissions are pointer towards the fact that the place of recovery was not in the exclusive possession of the appellant. An other flaw is that the investigator did not take the pains to collect the evidence Criminal Appeal no.57 SB of 2002 6 with regard to the ownership of the place of recovery. It is not the prosecution case that this land was owned by the appellant. The investigator has admitted in his cross-examination that the place of recovery is surrounded by wheat crop fields belonging to Gurmail Singh, Avtar Singh and joginder Singh and that he has not shown any field/dera belonging to the accused near the place of recovery. In the face of this evidence, it is very difficult to say that the conscious possession of the appellant qua the recovered poppy husk bags has been established by the prosecution. The evidence tendered by ASI Dev Raj (sic) as well as Ashok Bath DSP (sic) is absolutely silent about the fact that efforts were made to ascertain the ownership of the place of recovery. Merely because the appellant, was sitting on the bags ipso facto would not be enough to hold his conscious possession over the bags. In similar circumstances, the Honble Apex Court in State of Punjab Vs. Balkar singh 2004 Supreme Court Cases 838 held as under:- "the evidence by the prosecution consisted of the testimony of PW-1 balbir Singh and PW-2 ASI Jarnail Singh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in district Hisar while respondent Munish Chand is a resident of Farukahbad. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in district Hisar while respondent Munish Chand is a resident of Farukahbad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The Criminal Appeal No.57 SB of 2002 7 presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High court." 9. Herein this case, as put forth by the prosecution, the case property was produced before Joga Singh Inspector PW-5 for verification in compliance with the provisions of Sec.55 of the Act. This witness went on to say in his cross-examination that I had also stated in my statement that the case property was produced before me duly sealed with the seal bearing impression AB. When he was confronted with his statement Ex. DA it was not found so recorded therein. Further he stated that I have also recorded in my statement regarding preparation of sample seal. On being confronted with Ex. DA, it was found missing from there. Thus he too has materially Criminal Appeal no.57 SB of 2002 8 improved upon certain facts. When he was confronted with his statement Ex. DA it was not found so recorded therein. Further he stated that I have also recorded in my statement regarding preparation of sample seal. On being confronted with Ex. DA, it was found missing from there. Thus he too has materially Criminal Appeal no.57 SB of 2002 8 improved upon certain facts. Ajaib Singh public man has been given up on the pretext of his having been won over by the accused. Dev Raj ASI (sic) or Ashok Bath DSP (sic) did not apportion any cogent reason for not handing over the seal after use to this witness. As would be apparent on the face of Chemical Examiners report Ex. PG, the sample parcels of this case were received there after 20 days. When the seal remained with Ashok Bath DSP throughout, the possibility of the contents of the sample parcels being tampered with during this interregnum cannot be ruled out. The upshot of the above discussion is that this case is bristled with serious affirmities. Sequelly this appeal is accepted, setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charged offence by giving benefit of reasonable doubt.