Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 1431 (PNJ)

Rajpal Singh alias Raju v. State of Punjab

2012-10-08

NARESH KUMAR SANGHI

body2012
Judgment NARESH KUMAR SANGHI, J. Raj Pal Singh alias Raju has challenged the judgment dated 20.04.2005 and the order of sentence dated 21.04.2005 passed by learned Judge, Special Court, Moga, whereby he was held guilty for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced to undergo rigorous imprisonment for five years besides payment of fine of Rs.50,000/-; in default of payment of fine, to undergo further rigorous imprisonment for a period of six months. Brief facts in a nutshell are that on 03.01.2001, Sub Inspector Balbir Singh (PW3) along with other police officials was patrolling on kacha path leading to village Fathegarh Korotana from village Lohara. Two persons were coming on a bicycle and after seeing the police party, they tried to turn towards their left hand side. The person who was paddling the bicycle was identified as Gurnek Singh alias Neka son of Gurbachan Singh, resident of Fatehgarh Korotana, by Sub Inspector Balbir Singh and Head Constable Resham Singh. The person sitting on the carrier of the bicycle by holding a bag in his hand was apprehended. Sub Inspector Balbir Singh asked the name and address of the person apprehended at the spot and who disclosed his name as Raj Pal Singh alias Raju, resident of village Fatehgarh Korotana. Paramjit Singh son of Gurdeep Singh arrived at the spot who was joined in the police party. Gurnek Singh could not be apprehended in spite of efforts made by the police officials. Sub Inspector Balbir Singh suspected that Raj Pal Singh alias Raju (appellant) was retaining norcotic substance in the bag carried by him. He apprised the appellant of his right to get his search conducted in the presence of some Gazetted Officer. The consent memo was prepared in that regard and the same was signed by Raj Pal Singh alias Raju (appellant). Sub Inspector Balbir Singh requested Deputy Superintendent of Police Sarabjit Singh, Dharamkot to arrive at the spot. After his arrival, Sub Inspector Balbir Singh apprised him of the facts of the case and, thereafter, Deputy Superintendent of Police Sarabjit Singh narrated to Raj Pal Singh alias Raju (appellant) with regard to his status and posting and asked him as to whether he was ready to get his search conducted in his presence or in the presence of any Magistrate. Raj Pal Singh alias Raju (appellant) opted to be searched in the presence of Deputy Superintendent of Police. On instructions of the Deputy Superintendent of Police, search of the bag was conducted by Sub Inspector Balbir Singh and opium wrapped in polythene paper was found therein. In addition, a small balance and two weights of denomination value of 20 grams and 50 grams were also recovered. A sample of 10 grams was drawn from the recovered opium and a packet was prepared. On weighment, the residue opium came to be 490 grams, which was put in a packet, seals were affixed and packet was taken into police possession. Memo was sent to the police station on the basis of which, the FIR was registered. Appellant was formally arrested. After completing the formalities of the investigation at the spot, the case property and the appellant were produced before Assistant Sub Inspector/ Station House Officer, Gurcharan Singh, who verified the facts and took the case property into his possession. Sample was sent to Chemical Examiner for analysis and after receipt of the report and completion of the investigation, the charge sheet was presented in the court for prosecution of the appellant. In the meantime, Gurnek Singh alias Neka surrendered before the court below and, thereafter, the charges were framed under Section 18 of the NDPS Act against the appellant and Gurnek Singh alias Neka to which they pleaded not guilty and claimed trial. In order to substantiate its allegations, the prosecution examined the following witnesses:- 1. Constable Mehal Singh; 2. ASI Gurcharan Singh; 3. SI Balbir Singh; 4. DSP Sarbjit Singh; and 5. ASI Jagdish Rai. The prosecution proved the following documents:- Ex.P-1 Memo sent to the police station for registration of the FIR; Ex.P1/A First Information report; Ex. P-2 Sample seal; Ex.P-3 Recovery memo; Ex.P-4 Application presented before learned Area Judicial Magistrate; Ex.P4/A Order passed by learned Magistrate; Ex.P4/B. Statement recorded by Area Magistrate; Ex.P-5 and EX.P-6. Consent memos; Ex.P-7 Recovery memo; Ex.P-8 Personal search memo; Ex.P-9 Rough site plan; Ex.P-10 Arrest memo; Ex.P-11 Report of Chemical Examiner; and Ex.PA Affidavit of Constable Mehal Silngh. After completion of the prosecution evidence, the statements of the appellant and his co-accused were recorded in terms of Section 313 of the Code of Criminal Procedure, wherein they denied the circumstances appearing against them and pleaded innocence. After completion of the prosecution evidence, the statements of the appellant and his co-accused were recorded in terms of Section 313 of the Code of Criminal Procedure, wherein they denied the circumstances appearing against them and pleaded innocence. Raj Pal Singh alias Raju (appellant) also stated that on 03.01.2001 at about 6.00/6.30 A.M. he was picked up from his house by Sub Inspector Balbir Singh of CIA Staff, Dharamkot, and detained there. Other persons apprehended by the police prior to the arrest of the appellant in this very case were let off and the present case was foisted upon the appellant. An application was moved to the higher authorities by the father of the appellant regarding his false implication. An inquiry was conducted by the Deputy Superintendent of Police, Crime Branch, Chandigarh, who found the appellant innocent. In defence evidence, the following witnesses were examined:- i) Dr. Gurpreet Singh-DW1; ii) Nirmal Singh-DW2; iii) Paramjit Singh-DW3; iv) Jawinder Singh-DW4; v) Surinder Singh; DW5; and vi) Constable Jaspal Singh After completion of evidence of both the sides, the learned trial court acquitted Gurnek Singh alias Neka. However, the appellant was held guilty and sentenced to undergo rigorous imprisonment for five years besides payment of fine of Rs.50,000/-; in default of payment of fine, to further undergo rigorous imprisonment for a period of six months. Learned counsel for the appellant submitted that only one sample was drawn. He further submitted that the sample was not sent to the Chemical Examiner within 72 hours of the recovery of the contraband. He further submitted that the independent witness though joined during the course of investigation but had not been examined by the prosecution. He further submitted that there was no compliance of Section 50 of the NDPS Act when the Deputy Superintendent of Police effected the search. He further submitted that the Deputy Superintendent of Police, Crime Brach, Chandigarh, had conducted an inquiry on the application presented by the father of the appellant and he found the appellant innocent. On the strength of these submissions, he prayed for acceptance of the appeal and acquittal of the appellant. On the other hand, learned counsel for the State submitted that all the witnesses examined by the prosecution had supported the prosecution version. On the strength of these submissions, he prayed for acceptance of the appeal and acquittal of the appellant. On the other hand, learned counsel for the State submitted that all the witnesses examined by the prosecution had supported the prosecution version. He further submitted that the evidence of the prosecution witnesses is consistent, natural, trust-worthy and after placing reliance on the testimonies of the prosecution witnesses, the learned trial court had rightly convicted and sentenced the appellant, therefore, no interference by this court is called for. I have heard learned counsel for the parties and with their active assistance perused the material available on record. The contention of the learned counsel for the appellant that only one sample was drawn from the recovered contraband, therefore, the benefit should be extended to the appellant, is not tenable. There is no requirement of law that more than one sample are to be drawn from the bulk of the contraband. In my considered opinion, no benefit can be extended to the appellant on the ground that only one sample was drawn. The contention of the learned counsel for the appellant that the sample was not sent to the Chemical Examiner within 72 hours of its seizure and hence the benefit of this lapse should be extended to the appellant, is also not sustainable. Though, learned counsel has placed reliance on instruction No.1-88 dated 15.03.1988 issued by the Narcotics Drugs Control Bureau that sample must be deposited to the laboratory within 72 hours of its seizure but those were only instructions and no sanctity of law can be attached to such instructions. Even otherwise, those instructions were to be observed by the officials of Narcotics Drugs Control Bureau only and the same are not binding on the police of a State. In the case in hand, the opium was recovered from the appellant by the Punjab police, therefore, no benefit can be extended to the appellant on this score. It is also apposite to mention here that the recovery was effected on 03.01.2001 and the sample was sent to the Chemical Examiner on 08.01.2001 which reached the laboratory on 09.01.2001. At the time of receipt of the sample, the seals were found intact and duly tallying with the specimen seal (Ex.P-2). It is also apposite to mention here that the recovery was effected on 03.01.2001 and the sample was sent to the Chemical Examiner on 08.01.2001 which reached the laboratory on 09.01.2001. At the time of receipt of the sample, the seals were found intact and duly tallying with the specimen seal (Ex.P-2). The next argument of the learned counsel for the appellant was that one Paramjit Singh was associated by the investigating officer at the time of alleged recovery but he was not examined during the trial, therefore, no reliance could be placed on the evidence of the official witnesses. Statement dated 17.12.2003 of the Additional Public prosecutor dated 17.12.2003 reveals that Paramjit Singh, a private witness, was given up as won over by the appellant. There is no requirement that every person associated in the investigation has to be examined during course of trial. It is the prerogative of the Public Prosecutor regarding the examination of the prosecution witnesses in the court. It is the quality of the evidence which matters and not the quantity. However, in the case in hand, Paramjit Singh who was given up by the Public Prosecutor was examined by the appellant as DW3. He deposed that 03.01.2001, the police party had gone to the house of the appellant and two/three more houses and picked up one more person but no contraband was recovered from their possession. He had left the police party and those two persons at the police station and went away. He further deposed that in the evening on 03.01.2001 he was called in the CIA, Staff, Dharamkot, and his signatures were obtained on four-five papers. He was very categoric in his deposition that no opium was recovered from the accused persons. He further deposed that two months after such incident, he appeared as a witness in an inquiry before the Deputy Superintendent of Police, Crime Branch, Chandigarh, and made his statement. The lengthy cross-examination conducted by the Additional Public Prosecutor could not extract any answer in favour of the prosecution. The deposition of Paramjit Singh (DW3) has totally changed the scenario of the whole case. Learned trial court had not discussed the evidence of DW3 while returning the verdict of guilt of the appellant. The Deputy Superintendent of Police, Crime Branch, Chandigarh, was examined as DW5. He deposed that the inquiry of the present case was marked to him. The deposition of Paramjit Singh (DW3) has totally changed the scenario of the whole case. Learned trial court had not discussed the evidence of DW3 while returning the verdict of guilt of the appellant. The Deputy Superintendent of Police, Crime Branch, Chandigarh, was examined as DW5. He deposed that the inquiry of the present case was marked to him. He recorded the statement of the witnesses and correctly submitted his inquiry report. Constable Jas Pal Singh was examined as DW-6. He had placed on record photo copy of the report of inquiry conducted by the Deputy Superintendent of Police, Crime Branch, Chandigarh, and the same was marked as mark A. The argument of the learned counsel for the appellant that there was no compliance of Section 50 of the NDPS Act does not find favour since the contraband was recovered from the bag and not from the person of the appellant. Section 50 of the NDPS Act would apply only when the search of the person is to be effected and not of the object, in any, held by the accused. It is now settled that where a statute confers drastic powers, seeks to deprive a citizen of his liberty and prescribes for undergoing stringent punishment, scrupulous compliance of the statutory provisions must be insisted upon. The evidence led by the prosecution in support of its allegation must be of high quality. The court should not sway with the allegation of the prosecution that particular contraband was allegedly recovered from the accused and as such he has to be convicted and sentenced. Unless and until, it is proved beyond the shadow of doubt that the recovery of the contraband was in fact effected from the conscious possession of the person arrayed as an accused, the slight dent created by the defence in the prosecution case would be fatal for prosecution and the same would entitle the accused to the benefit of doubt. In the case in hand, the inquiry was conducted by the Deputy Superintendent of Police, Crime Branch, Chandigarh, wherein the appellant was found to be innocent. The only private witness, namely, Paramjit Singh, has been examined as DW3 by the appellant. In the case in hand, the inquiry was conducted by the Deputy Superintendent of Police, Crime Branch, Chandigarh, wherein the appellant was found to be innocent. The only private witness, namely, Paramjit Singh, has been examined as DW3 by the appellant. He was very categoric in his statement that no recovery was effected from the appellant, therefore, a severe dent has been created in the prosecution version and the benefit of the same has to be extended to the appellant. Resultantly, the appeal is allowed and the impugned judgment and the order are set aside. Appellant Raj Pal Singh alias Raju is acquitted of the charge levelled against him. The amount of fine, if recovered, be returned to the appellant after expiry of the time of filing the appeal etc in accordance with law.