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2011 DIGILAW 1887 (PNJ)

Lakhbir @ Giri & Manjit Kumar v. State of Punjab

2011-10-18

M.JEYAPAUL

body2011
JUDGMENT M. Jeyapaul, J 1. Accused Lakhbir and Manjit Kumar were convicted under Section1 15 of the Narcotic Drugs and Substances Act, 1985. Both of them have jointly preferred the present appeal. 2. The brief case of the prosecution is that on 6.10.2000, PW3 SI Jaimal Singh proceeded alongwith PW5 ASI Kuldip Singh and other ten police officials numbering about 12 to the sugarcane field of one Harjit Singh based on the secret information received by PW3. Before ever proceeding to the place of recovery, PW3 on the basis of the secret information, prepared a ruqa Ex.PB and sent the same to the police station for registering the formal First Information Report Ex.PB/1 (in short 'FIR'). An independent witness Balbir Singh was also associated for the purpose of recovery. A wireless message was sent to PW2 DSP Satinder Singh, who had coolly informed the police official that he would only come in the morning. 3. On seeing the police party flashing the light, both the accused took to heals. The contraband which was stored in the midst of sugarcane crop was guarded by PW5 ASI Kuldip Singh and other junior police officials, as per the direction of PW3. 4. The next day on 7.10.2000, PW2 DSP Satinder Singh leisurely came to the spot to associate himself for the purpose of recovery. 34 bags were found and two samples of 250 grams from each of the bags were collected. The remaining bulk quantity measured 34 kgs. 500 grams in each of the bags. The samples as well as the remaining bulk quantity of contraband were separately parceled and sealed. The samples were sent for examination. The Chemical Examiner submitted a report that the sample sent for examination was nothing but poppy husk. 5. The trial Court having relied upon the testimony of PW2, PW3 and PW5 in the background of the Central Forensic Science Laboratory (in sort 'CFSL') report passed a judgment of conviction as against these accused. 6. Heard the submissions made on either side. 7. To say the least, the prosecution has come out with a totally artificial version. The story projected by the prosecution, in my considered view, does not stand to reason. PW3 having received the secret information immediately prepared the ruqa and sent the same to the police for registering the formal FIR, even without verifying such a furtive information he received. To say the least, the prosecution has come out with a totally artificial version. The story projected by the prosecution, in my considered view, does not stand to reason. PW3 having received the secret information immediately prepared the ruqa and sent the same to the police for registering the formal FIR, even without verifying such a furtive information he received. It appears that he was very much sure of recovery based on such a furtive information he received. 8. It appears that DSP Satinder Singh was not at all in the wavelength of PW3 . PW2 was informed at about 11:00 pm about the recovery to be made. But the DSP very cooly informed PW3 that he would come down to the place of recovery only in the morning. I do not appreciate the conduct of the police officer on receiving such an information as to the recovery of bulk quantity of contraband. Even otherwise, PW3 a responsible police officer, who headed the raiding party, should have resorted to the assistance of some other gazetted officer for the purpose of immediate recovery of the material objects. Quite unfortunately, he had also to wait for the arrival of PW2 DSP Satinder Singh in the morning. There is every chance for replacement of the bags allegedly found in the scene of occurrence in between the time when the contraband was spotted and the time at which the contraband was allegedly recovered. 9. The accused/appellants had allegedly ran away from the scene of occurrence on seeing the flash light used by the police officials. PW3 and PW5 would categorically depose that about 12 police officials joined the raiding party. They came to the place of recovery in more than one vehicle. Some of them were armed with weapons and the others were armed with lethis. Very strangely, they would depose that they never thought of using the weapons for the purpose of securing the accused who had taken to heals. I fail to understand as to why these police officials had come armed with weapons having received secret information about the transportation of contraband. If at all the police party had spotted these accused running from the place of recovery, at least one of the police officials who was armed with weapon, would have definitely used the weapon to cripple the accused. If at all the police party had spotted these accused running from the place of recovery, at least one of the police officials who was armed with weapon, would have definitely used the weapon to cripple the accused. The conduct of the police officials throws doubt as regards the story projected by the prosecution. 10. The police officials had used more than one vehicle to reach the place of recovery. It is their version that the vehicles were parked about 200 yards away from the place of recovery. The persons who were sitting on the contraband would be very alert as they were doing illicit act. The accused would have definitely minded the vehicles parked just 200 yards away from the place of recovery. They would not have waited till the police officials came down to the exact place of recovery, flashing their lights. Therefore, the story of the prosecution that both the accused were found sitting on the contraband till they arrived very close by flashing their lights, does not look natural. 11. PW3 would depose that the owner of the field, namely, Harjit Singh was not associated for the purpose of recovery of the material objects from his field. But PW5 comes out with a totally contradictory version that the owner of the field was infact associated during the course of recovery of the material objects. But he was not aware whether any statement was recorded from him. 12. As rightly pointed out by the learned counsel appearing for the appellant No. 2, no question was put under Section 313 of the Code of Criminal Procedure that the accused were found in conscious possession of the contraband. The sugarcane field belonged to one Harjit Singh. No investigation was directed as against him. His role was not at all unearthed by the investigating agency. The accused were not apprehended at the place of recovery. Therefore, the prosecution has not established their conscious possession of the contraband in the field of Harjit Singh. 13. Less said is better as regards the independent witness Balbir Singh, who was allegedly associated for the purpose of recovery of the material objects. Firstly, he was not examined by the prosecution. Secondly, PW5 has categorically stated that Balbir Singh was cited as a witness in about three criminal cases under the Narcotic Drugs Psychotropic Act. In other words, the alleged witness was a stock witness. Firstly, he was not examined by the prosecution. Secondly, PW5 has categorically stated that Balbir Singh was cited as a witness in about three criminal cases under the Narcotic Drugs Psychotropic Act. In other words, the alleged witness was a stock witness. A stock witness cannot normally be won over by the defence. For the reason best known to the prosecution, the said witness was not also examined before the trial Court. The association of a stock witness by the police official creates a doubt in the very case of the prosecution. 14. The FSL form was not prepared at the place of recovery. It was prepared leisurely by PW3 on 17.10.2000, when the samples were despatched to the CFSL for examination. It is also to be noted that there is a delay of about 11 days in despatching the samples to the CFSL for examination. The delay was not at all explained by the prosecution. PW1, the police official who was entrusted with the samples to take it to the CFSL, would depose before the trial Court that he infact entrusted the sample to the Chemical Examiner attached to the office at Jalandhar, whereas PW3 would depose that it was despatched only to the CFSL at Chandigarh. The report has also been received from the CFSL, Chandigarh. The above facts and circumstances would go to show that the case of the prosecution is writ large with doubt. The benefit of doubt will have to be given to the accused/appellants. The trial Court has not adverted to the above aspects into account while scripting the judgment. Therefore, the accused are entitled to acquittal. 15. In view of the above, the judgment of conviction and sentence passed by the trial Court under Section 15 of the NDPS Act stands set aside. Both the accused are acquitted of the charge under Section 15 of the NDPS Act. Accused Lakhbir @ Giri is on bail. His bail bond stands discharged. Accused Manjit Kumar is presently undergoing the sentence in jail. He be set at liberty forthwith, if he is not required in connection with any other case. Consequently, the appeal is allowed.