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2011 DIGILAW 1934 (PNJ)

Sunil Kumar son of Inder Mohan v. State of Punjab

2011-11-01

M.JEYAPAUL

body2011
JUDGMENT Mr. M. Jeyapaul, J.: - Accused Sunil Kumar, Labh Singh and Basant Singh were convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act,1985 ( for short “ NDPS Act”). Sunil Kumar has preferred Criminal Appeal No.26 of 2007 and Labh Singh and Basant Singh have preferred Criminal Appeal No.255-SB of 2007. 2. The brief case of the prosecution is that on 24.5.2005 PW5 SI Nek Singh proceeded along with PW2 ASI Rachhpal Singh and other Police officials to the bridge of Faridkot canal in connection with patrol duty. An independent witness Parveen Kala was also associated. Nakabandi was held on the said bridge. A white Maruti Car bearing registration No.DL-2CF-7802 was intercepted. Accused Sunil Kumar was found driving the car and other two accused Labh Singh and Basant Singh were sitting on the rear seat of the car. Underneath their feet, two gunny bags were found. PW3 DSP Bakhshish Singh was called at the spot. In his presence the car was searched. Two bags containing 38 kgs of poppy husk in each of the bag were recovered. Two samples of 250 grams from each of the bag were also drawn. Separate parcels of the samples and the bulk quantity were prepared. They were properly sealed. The seal used by PW5 was handed over to independent witness Parveen Kala. The accused were arrested. The material objects along with the accused were taken to the Station House Officer PW4 Harbhajan Singh. Samples were sent for examination. The Chemical Examiner report would disclose that the samples were nothing but poppy husk. 3. The trial Court having relied upon the evidence available on record returned a verdict of conviction as against all the three accused. 4. Heard the submissions made on either side. 5. The only independent witness Parveen Kala who was only associated for the purpose of effecting recovery and also for the purpose of entrusting the seal used by PW5 to him was not examined before the trial Court, not on the ground that he was won over but on the flimsy ground that he was a totally unnecessary witness. In my considered view the non-examination of such a material independent witness strikes at the very root of the prosecution case. 6. In my considered view the non-examination of such a material independent witness strikes at the very root of the prosecution case. 6. PW2 ASI Rachhpal Singh who associated for the purpose of recovery of the material object, PW3 DSP Bakhshish Singh who was associated in his capacity as Gazetted Officer and PW5 SI Nek Singh who led the patrol party, have categorically admitted that Parveen Kumar was a stock witness, inasmuch as he had been cited as a witness in so many similar cases. Association of a stock witness, but projecting before the Court as though he was accidentally associated, creates a doubt in the version of the prosecution. In my considered view, Parveen Kumar cannot at all be termed as an independent witness inasmuch as he has shown his loyalty to the Police officials in so many similar cases. 7. PW2 ASI Rachhpal Singh would depose that the weight and balance were readily available with the Police party. Contradicting such a version PW5 SI Nek Singh would say that he had in fact sent a Head Constable to procure the weight and balance. PW2 and PW5 were not sure as to how the weight and balance was procured. 8. As already pointed out by me the seal used by PW5 SI Nek Singh was entrusted to the so called independent witness Parveen Kala. Unfortunately he was not examined before the trial Court. PW4 SI Harbhajan Singh, the SHO to whom the contraband was entrusted by PW5 would come out with a damaging version. On a careful testimony of PW4 it is found that he had in fact kept the samples in his personal custody right from 25.5.2005 to 30.5.2005. It is not as if the samples were kept in the police malkhana. He has in fact clarified that he never handed over the samples to the MHC nor was any relevant entry made in Register No.19 maintained by the Malkhana. The seal used by PW3 DSP Bakhshish Singh was with him. The seal used by PW5 SI Nek Singh was left with the stock witness Parveen Kumar who had been associated in so many similar cases as a witness. The samples were in the personal custody of PW4 SI Harbhajan Singh, the SHO of this case. Therefore, tampering with the samples cannot be ruled out. 9. The seal used by PW5 SI Nek Singh was left with the stock witness Parveen Kumar who had been associated in so many similar cases as a witness. The samples were in the personal custody of PW4 SI Harbhajan Singh, the SHO of this case. Therefore, tampering with the samples cannot be ruled out. 9. PW4 SI Harbhajan Singh has further deposed before the trial Court that CFSL form No.29 was not handed over by PW5 to him at the time the contraband along with the samples was entrusted to him. He admits that it was he who prepared Form No.29 not on 24.5.2005 or 25.5.2005 but on 31.5.2005 when the samples were despatched to the Chemical Examiner. The non-preparation of Form No.29 at the site where the recovery was effected would go to strengthen the doubt haunting the mind of the Court, but unfortunately the trial court has not adverted to the aforesaid aspects. The benefit of doubt will have to be given to the accused. They are entitled to acquittal as the case was not established by the prosecution beyond reasonable doubt. 10. In view of the above, the judgment of conviction and order of sentence recorded by the trial Court is set aside. All the three accused stand acquitted of the charge under Section 15 of the NDPS Act. Consequently both the appeals are allowed. -----------------------