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2011 DIGILAW 1451 (PNJ)

Harchand Singh @ Chand Singh v. State of Punjab

2011-07-28

M.JEYAPAUL

body2011
JUDGMENT Mr. M. Jeyapaul, J. (Oral):- Aggrieved by the conviction recorded by the trial Court for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the first accused Jarnail Singh has preferred Criminal Appeal No. 2109-SB of 2010 and the second accused Harchand Singh has preferred Criminal Appeal No. 2399-SB of 2009. 2. On a perusal of the entire records, I found that the other accused Jarnail Singh has also preferred separately Criminal Appeal No. 2109-SB of 2010. In the interest of justice, both the Criminal Appeals arising out of the very same judgement will have to be taken up and disposed of by common judgement. The learned Counsel appearing for the appellant in Criminal Appeal No. 2109-SB of 2010 has no objection in taking up Criminal Appeal No. 2109-SB of 2010 alongwith Criminal Appeal No. 2399-SB of 2009 for final disposal as both the appeals are connected with each other. Therefore, both the appeals are taken up today for common disposal. 3. The brief case of the prosecution is that PW8 Inspector Sukhdev Singh having received secret information that accused Jarnail Singh and Harchand Singh were coming from Bhawanigarh side for selling poppy husk flashed the information to PW7 Shamsher Singh Bopa Rai, Deputy Superintendent of Police. He also dispatched a ruqa, on the basis of which, a formal First Information Report was registered by PW6 MHC Nirmal Singh. The Police party headed by PW8 Sukhdev Singh, accompanied by PW7 Shamsher Singh Bopa Rai and an independent witness Manjit Singh proceeded to the said spot. A truck bearing registration No. PH 10G 9358 was spotted coming from Bhawanigarh side. On seeing the Police party, the truck driver and other persons ran away from the spot, leaving the truck over there. As per the directions of PW7 Shamsher Singh Bopa Rai, a search of the truck was conducted. 30 bags each containing 30 kgs of poppy husk were found. Two samples of 100 gms each were separated from each of the bags and the residue poppy husk weighing 29.800 kgs remained in each bag. The seals of PW7 and PW8 were affixed. PW7 retained the seal with him after affixure of the same. PW8 handed over the seal after use to the independent witness Manjit Singh. Case property was taken into possession. Site plan was prepared and statements of witnesses were recorded. The seals of PW7 and PW8 were affixed. PW7 retained the seal with him after affixure of the same. PW8 handed over the seal after use to the independent witness Manjit Singh. Case property was taken into possession. Site plan was prepared and statements of witnesses were recorded. The case property was deposited in Malkhana. Accused Jarnail Singh was produced by Ujjagar Singh, Ex-Sarpanch of the village on 25.02.2004. Accused Harchand Singh was arrested by PW9 Assistant Sub Inspector Paramjit Singh on 24.04.2004 in terms of the production warrant and both of them were remanded to judicial custody. The report regarding the sample sent for examination was received from the Forensic Science Laboratory. The Forensic Science Laboratory report would disclose that the sample sent for examination was nothing but poppy husk 4. The trial Court having adverted to the evidence of PW7, PW8 and PW9 in the background of the Forensic Science Laboratory report returned a finding that both the accused committed the offence punishable under Section 15 of the NDPS Act. 5. The learned Counsel appearing for the accused/appellants would submit that PW7, PW8 and PW9 never identified the accused/appellants. It is not their case that those accused were known to them earlier. About 15 Police personnel formed part of the Police party. They were also armed with weapons, wireless sets and vehicles but the prosecution has come out with an unbelievable story that they could not track down these two un-armed accused. The only independent witness Manjit Singh who was allegedly associated for the purpose of search was also not examined by the prosecution. Therefore, it is their submission that the whole story of the prosecution does not pass the test of trustworthiness. 6. The learned Deputy Advocate General appearing for the respondent – State would vehemently submit that PW7, PW8 and PW9 have categorically spoken to the seizure of 30 bags each containing 30 kgs of poppy husk in the truck which was driven by one of the accused. Both the accused had given a slip to the Police party. Both of them were later on apprehended. The Forensic Science Laboratory report also would establish that the sample sent for examination was nothing but poppy husk. Therefore, it is his submission that the trial Court has rightly returned a verdict of conviction as against both the accused. 7. Both the accused had given a slip to the Police party. Both of them were later on apprehended. The Forensic Science Laboratory report also would establish that the sample sent for examination was nothing but poppy husk. Therefore, it is his submission that the trial Court has rightly returned a verdict of conviction as against both the accused. 7. As rightly pointed out by the learned Counsel appearing for the appellants, the prosecution has come out with a totally unbelievable story. As per the evidence of PW7, PW8 and PW9, about 15 Police personnel formed part of the Police party. They were armed with weapons, wireless sets and vehicles. The occurrence had taken place at 1.20 PM, on 30.01.2004. It is not as if the occurrence unfolded in a crowded residential locality. The vehicle was intercepted only in a thoroughfare. Under such circumstances, the story of the prosecution that these two accused alongwith others who were found in the truck alighted from the truck and ran away and the Police party could not catch hold of them does not appear to be credible. It is their admission that no Police official even attempted to open fire aiming the sky. The wireless sets could have been used to track down the accused. That was also not done by the Police party. About 15 Police personnel would not have gone in one vehicle. Therefore, they had sufficient vehicles at their disposal at the time of intercepting the truck but unfortunately their vehicle was also not used for the purpose of tracking down the unarmed accused. Therefore, the very foundation of the case of the prosecution that the Police encircled the vehicle intercepted by them but the occupants of the vehicle took to heels is found to rickety. 8. PW7, PW8 and PW9 would depose that the driver of the truck and others who were the occupants of the truck alighted from the same and ran away. None of them would depose before the trial Court that it was only these two accused who having joined with other occupants alighted from the truck and ran away. They also would admit that these two accused/appellants were not known to them earlier. No identification parade was ever conducted by the investigating agency. None of them would depose before the trial Court that it was only these two accused who having joined with other occupants alighted from the truck and ran away. They also would admit that these two accused/appellants were not known to them earlier. No identification parade was ever conducted by the investigating agency. Accused Jarnail Singh was apprehended as per the production warrant by the Ex-Sarpanch and the other accused Harchand Singh was arrested as per the production warrant by PW9. PW9 happened to arrest Harchand Singh only in terms of the production warrant issued to him. None of those witnesses also would depose before the trial Court that these two accused were the persons who actually ran away from the scene of occurrence. Therefore, the identity of the accused has not been established beyond reasonable doubt by the prosecution. 9. The investigating agency has not investigated as to who actually was the owner of the truck and who were all the other occupants of the truck. Based on the secret information received by PW8, the names of these accused had been cited in the First Information Report. Based on such information found in the First Information Report, production warrant had been issued by the Court concerned and both of them were arrested. 10. One Manjit Singh was the only independent witness allegedly associated by PW8 during the course of search of the truck. Unfortunately, the said Manjit Singh, the sole independent witness, in this case, was also not examined by the investigating agency. 11. PW8 has also not scripted the secret information he received and dispatched the same to his immediate official superior as mandated under Section 42(2) of the NDPS Act. 12. The above serious lacuna which completely damages the version of the prosecution has been completely lost sight of by the trial Court while recording conviction. In my considered view, the case of the prosecution that these two accused were found transporting 30 bags each containing 30 kgs of poppy husk was not established beyond reasonable doubt. Therefore, both the accused are entitled to acquittal. 13. In view of the above, the judgement of conviction and sentence recorded by the trial Court is set aside. Both the accused are acquitted of the offence under Section 15 of the NDPS Act. It is reported that accused Harchand Singh is still undergoing sentence. Therefore, both the accused are entitled to acquittal. 13. In view of the above, the judgement of conviction and sentence recorded by the trial Court is set aside. Both the accused are acquitted of the offence under Section 15 of the NDPS Act. It is reported that accused Harchand Singh is still undergoing sentence. He be set at liberty forthwith, if he is not required in connection with any other case. The bail bond executed by accused/appellant Jarnail Singh stands annulled. Both the appeals are allowed. ----------------