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2012 DIGILAW 385 (PNJ)

Rupinder Singh v. State of Punjab

2012-03-01

VIJENDER SINGH MALIK

body2012
JUDGMENT Mr. Vijender Singh Malik, J.: - Rupinder Singh, appellant has brought this appeal against the judgment dated 06.01.2003 of his conviction for an offence punishable under section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 ( for short ‘the Act’) passed by learned Judge, Special Court, Patiala and the order on sentence of the same date vide which he has been ordered to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- with further rigorous imprisonment for six months in default of payment of fine. The case registered by Police Station Samana against the appellant by way of FIR No.513 dated 23.11.1999 is as under:- 2. On 23.11.1999 at about 9.30 PM Rajesh Kumar, Sub Inspector alongwith Head Constable Bhupinder Singh and some other police officials was present at Bhawanigarh Chowk Samana in connection with nakabandi. There he received a secret information to the effect that Rupinder Singh alias Rupa son of Joginder Singh, resident of Malkana Patti Majri Samana is in the habit of keeping and selling poppy husk and that if raid was conducted, then poppy husk in heavy quantity could be recovered. Finding the information to be reliable, Rajesh Kumar, SI had sent a ruqa to the police station for registration of the case and before starting for the place where the appellant was said to be available with poppy husk, he had sent information to DSP Gursharan Singh Bedi by way of wireless message to reach the spot, being a Gazetted Officer. On the writing received from Rajesh Kumar, SI, a case was registered at the police station by Darshan Singh, ASI. Rajesh Kumar, SI reached Malkana Patti Majri Samana. In the light of the vehicle, Rajesh Kumar SI was riding, he saw a man sitting on two bags. Rupinder Singh was apprehended and on inquiry he told his name as Rupinder Singh. Rajesh Kumar, SI told him that he suspected poppy husk in the bags he was sitting on and that he intended to conduct search of the same. The accused was given the option of search of the bags in the presence of some Gazetted Officer or Magistrate. The accused exercised the option for search in the presence of a Gazetted Officer. The option given to the appellant was reduced to writing, which was signed by the accused and attested by the witnesses. The accused was given the option of search of the bags in the presence of some Gazetted Officer or Magistrate. The accused exercised the option for search in the presence of a Gazetted Officer. The option given to the appellant was reduced to writing, which was signed by the accused and attested by the witnesses. In the meanwhile, DSP Gursharan Singh Bedi reached the spot. He disclosed his identity to the accused and told him that he was a Gazetted Officer. The accused was, however, given the option of his search by him or by a Magistrate. The accused had expressed confidence in the DSP for his search. Memo of this option was also prepared, which was signed by the accused and attested by the witnesses. In the presence of the DSP, Rajesh Kumar, SI conducted the search of the bags, which were found to contain poppy husk. Two samples from each bag weighing 250 grams were taken out from the two bags. They were converted into separate parcels. The remaining poppy husk was found to be 34 kg. 500 grams in each bag. The bags were also given the shape of parcels and they were sealed by Rajesh Kumar, SI with his seal bearing impression ‘RK’. The DSP had also affixed his seal ‘GS’ thereon. Seal after use was handed over by Rajesh Kumar, SI to HC Bhupinder Singh while the DSP retained the seal with him. The sealed parcels were then taken into possession by way of recovery memo. A rough site plan of the place of recovery was prepared by Rajesh Kumar, SI. He recorded the statements of the witnesses under section 161 Cr.P.C. and arrested the accused. In the meanwhile, special report of the case was sent from the police station to the Illaqa Magistrate through Sukchain Singh, Constable. Rajesh Kumar, SI produced the case property and the accused before SI Manjit Singh, SHO after reaching the police station, who had verified the investigation and had put his seal bearing impression ‘MS’ on the case property. Rajesh Kumar, SI then deposited the case property with the MHC and the accused was put in the lock up. 3. Rajesh Kumar, SI produced the case property and the accused before SI Manjit Singh, SHO after reaching the police station, who had verified the investigation and had put his seal bearing impression ‘MS’ on the case property. Rajesh Kumar, SI then deposited the case property with the MHC and the accused was put in the lock up. 3. On 24.11.1999 Bhupinder Singh, HC alongwith other police officials produced the accused before learned Judicial Magistrate Ist Class, Samana, who had made his endorsement on the application and Bhupinder Singh, HC had re-deposited the case property with the MHC with seals intact. On receipt of the report of chemical examiner to the effect that the samples were of crushed poppy heads and on completion of other formalities of investigation, challan against the appellant was prepared and presented in the court. 4. Finding a prima-facie case against the appellant, learned Judge, Special Court, Patiala vide his order dated 15.03.2000 charged him for an offence punishable under section 15 of the Act. To the charge so framed against him, he pleaded not guilty and claimed trial. 5. The prosecution has examined five witnesses in all at the trial and accused was examined thereafter in terms of section 313 of the Code of Criminal Procedure. He has denied truth of the prosecution evidence put to him in the shape of questions. He has claimed himself to be innocent and has denied any recovery to have been effected from him. He has added that he has been falsely implicated in the case. He did not lead any evidence in his defence. 6. Hearing learned Public Prosecutor for the State and learned counsel for the defence, learned Judge, Special Court, Patiala, has found the appellant guilty of committing the offence punishable under section 15 of the Act, vide judgment dated 06.01.2003. Hearing on quantum of sentence was given on the same date and the sentence detailed as above was awarded to the appellant. 7. Aggrieved by the aforesaid judgment of conviction and order on sentence, Rupinder Singh, appellant has preferred this appeal. 8. I have heard Mr. Ashok Kumar, learned counsel for the appellant and Mr. Amandeep Singh Rai, learned Deputy Advocate General, Punjab for the State. I have gone through the record of the case. 9. Learned counsel for the appellant has submitted that the case against the appellant is false. 8. I have heard Mr. Ashok Kumar, learned counsel for the appellant and Mr. Amandeep Singh Rai, learned Deputy Advocate General, Punjab for the State. I have gone through the record of the case. 9. Learned counsel for the appellant has submitted that the case against the appellant is false. According to him, the poppy husk alleged to have been recovered from the appellant has been planted upon him. He has submitted that there are numerous circumstances appearing in the evidence of the prosecution wherefrom it could be gathered that the recovery has not been effected as alleged by the investigating officer. The first circumstance, he has argued, is that the secret informer passed on the information to Rajesh Kumar, SI at 7.30 PM that Rupinder Singh @ Rupa was in the habit of selling poppy husk and that he was having the same in his possession in front of his house in the open place and he could be apprehended with the same. He has further submitted that thereafter ruqa was sent to the police station and the investigating officer reached the spot to find the appellant to be sitting on the bags of poppy husk. He has submitted that the appellant cannot be believed to have remained sitting on the bags of the poppy husk for four hours. 10. He has further submitted that in the ruqa Ex.PB Rajesh Kumar, SI had clearly mentioned that a wireless message was given for reaching the spot to DSP Gursharan Singh Bedi, a Gazetted Officer. It is after mentioning this fact that Rajesh Kumar further mentioned in the ruqa about his starting from the spot. Learned counsel for the appellant then drew my attention to the statement of Rajesh Kumar (PW-4), who has stated that he had sent wireless message to DSP Gursharan Singh Bedi after recording the consent memo of the accused whereby he opted his search before Gazetted Officer. He has submitted that this circumstance also exposes his bias against the search before a Magistrate. According to him, even before starting for the place of recovery, he had prejudged the issue and had given message to DSP Gursharan Singh Bedi for reaching the spot being a Gazetted Officer. 11. He has submitted that this circumstance also exposes his bias against the search before a Magistrate. According to him, even before starting for the place of recovery, he had prejudged the issue and had given message to DSP Gursharan Singh Bedi for reaching the spot being a Gazetted Officer. 11. He has further submitted that in this case where there was reliable information about the accused having been in possession of poppy husk at the given place, the investigating officer should have joined a person from the public to witness the recovery. He has submitted that Bhupinder Singh, HC has clearly stated that no recovery witness from the public was tried to be joined despite the fact that two or three persons were available at Bhawanigarh Chowk Samana. He is also said to have admitted that no efforts were made to call any independent witness from the nearby locality/building. He then referred me to the statement of Rajesh Kumar, SI, (PW-4), who has stated that he tried to join some independent witness but nobody was ready. He has further said that he did not take any action against those persons, who refused to join the investigation. According to him, he was even unable to give their names and addresses. He is also there on the record admitting that he did not prepare any zimni in this regard. According to him, Raj Kumar, SI has admitted that the place of recovery is in the middle of Samana and there are houses around the place of recovery. He is said to have admitted that he did not try to call any person from that locality as it was night time. He has further submitted that in the face of these contradictory statements of the only two witnesses of the recovery in the case, the non-examination of DSP Gursharan Singh Bedi at the trial would assume a lot of significance and make the prosecution case doubtful. 12. He has further submitted that the only two witnesses of the recovery are contradicting each other on another material aspect of the recovery. He drew my attention to the statement of Bhupinder Singh, HC, who has stated in his cross-examination that the writing work was completed by him while sitting in the backside of Allwyn Nissan (a vehicle in the use of the police party). He drew my attention to the statement of Bhupinder Singh, HC, who has stated in his cross-examination that the writing work was completed by him while sitting in the backside of Allwyn Nissan (a vehicle in the use of the police party). He has stated that accused was sitting in the Allwyn Nissan during the writing work and that the DSP was also sitting in the same alongwith them. He has further stated that Rajesh Kumar, SI and other police officials were also sitting in Allwyn Nissan and he has lastly submitted that they remained sitting in the said vehicle for about 4/5 hours. He then drew my attention to the statement of Rajesh Kumar, SI who has stated that the entire writing work was done at the spot while sitting on the ground. He has stated that the DSP remained standing during this period and that he himself was sitting on the ground. He has also stated that it took about 4/5 hours in completing the writing work and during this period they remained sitting on the ground. According to him, the accused also remained sitting on the ground. 13. Learned State counsel has submitted in reply to the aforesaid submissions that it was a case of chance recovery and non-joining of independent witness in the investigation would have no adverse effect on the credibility of the prosecution witnesses. According to him, the DSP was not even required to be called in this case because the provisions of section 50 of the Act were not attracted to this case. According to him, the provisions of section 50 of the Act are attracted to a case of personal search and as the said provisions were not applicable to this case, non-examination of the DSP at the trial would have no effect on this case. He has further submitted that the contradictions are in the nature of minor variations which are natural in a case of truthfulness witnesses. He has further submitted that learned trial court has rightly held the appellant guilty of the offence punishable under section 15 of the Act and has awarded the minimum sentence prescribed for the same. 14. He has further submitted that the contradictions are in the nature of minor variations which are natural in a case of truthfulness witnesses. He has further submitted that learned trial court has rightly held the appellant guilty of the offence punishable under section 15 of the Act and has awarded the minimum sentence prescribed for the same. 14. In this case, where raid was conducted after receipt of secret information, which was reduced to writing and sent to the police station for registration of the case, I cannot agree with the submission of learned State counsel that it is a case of chance recovery. The investigating officer had ample time and opportunity to associate an independent witness from the public in the raid to witness the recovery of the contraband from the possession of the appellant. In a case where no independent witness has been associated in the proceedings of the recovery,it becomes necessary to see as to whether any attempt even was made to associate independent witness from the public. 15. Though Rajesh Kumar, SI, (PW-4) has stated that he tried to join some independent witness and that none was ready to join, the other member of the raiding party examined in this case, Bhupinder Singh, HC (PW-2) has denied any such attempt to have been made. Bhupinder Singh, HC has clearly stated that no recovery witness from the public was tried to be associated with the raiding party or during proceedings of the recovery inspite of the fact that two or three persons were available at Bhawanigarh Chowk Samana where secret information was received. He has also admitted that no efforts were made even to call any independent witness from the nearby locality/building. 16. The statement of Rajesh Kumar, SI that he tried to join some independent witness and none was ready is, thus, clearly contradicted by the only other witness of the raid and recovery. Even the statement of Rajesh Kumar, SI does not appear to be believable. He has stated that the witnesses were though asked to join the investigation and they refused, yet no action was taken against those persons who refused to join the investigation. He neither bothered to take down their names and addresses nor mentioned this fact in the case diary. He has stated that the witnesses were though asked to join the investigation and they refused, yet no action was taken against those persons who refused to join the investigation. He neither bothered to take down their names and addresses nor mentioned this fact in the case diary. He has admitted that the place of recovery is in the middle of Samana town and there are houses around the place of recovery. He has admitted that he did not try to call any persons from the locality at that time because it was night time. 17. Had the statement of Rajesh Kumar, SI been to this effect only, it could be said that he did not try to disturb the sleep of the neighbours and in this way he had shown a gentlemanly gesture towards them. However, this cannot be believed to be the reason for Rajesh Kumar, SI for not calling the neighbours to witness the recovery. It is a case where the weights and scale had been procured from the spot by Constable Jaggu Ram. The only two witnesses of recovery in this case have stated that Constable Jaggu Ram brought the weights and scales within 10 to 15 minutes and that he had gone to procure the same on foot, which shows that he had brought the same from the neighbourhood of the place of recovery. So it is a clear case where the prosecution failed to prove that any attempt was made to join independent witness in the raid and recovery despite their being secret information about the accused keeping in his possession large quantity of poppy husk. 18. It has to be considered now as to whether non-joining of independent witness itself would prove the prosecution case as doubtful. There may be certain circumstances in which non joining of independent witnesses may not have any adverse effect upon the prosecution case. If the recovery is chance recovery and the place of recovery is at an isolated place, where there are no persons from the public available, non joining of independent witness would have no adverse effect. Another situation could be where the recovery is effected at odd hours in the night and persons from the public are not available at the place. Another situation could be where the recovery is effected at odd hours in the night and persons from the public are not available at the place. If there is evidence that witnesses were available and the investigating officer made efforts to join public witness in the search and seizure and they unreasonably refused to join the proceedings, then even the prosecution case cannot be held to be doubtful for non-joining of independent witness. In other circumstances also non joining of independent witness by itself may not be sufficient to knock out the prosecution case where the recovery is heavy and the chances of false implication are less. However, that would at least require the court to accept the statements of the official witnesses only when they are free from any doubt. 19. In the case in hand as is evident from the discussion made above, the only two official witnesses contradict each other on availability of persons from public as well as efforts to join them in the search and seizure. The contradictory statements of the only two official witnesses in this regard would definitely show that witnesses were available but no efforts were made to join them in the investigation. In this situation, the statements of the official witnesses have to be accepted very cautiously after satisfying itself that their statements suffer from no other infirmity. 20. In the case in hand besides the clear failure on the part of the investigating officer to join independent witnesses, the DSP, who had joined the investigation and had been at the spot during the search and seizure has also been withheld by the prosecution. He was a Gazetted Officer and more credit would have been given to his statement on the facts. His non-examination also goes against the prosecution case. 21. Alongwith these circumstances, there is an important contradiction in the statements of the official witnesses regarding the place where they remained sitting during the proceedings at the spot and how they conducted the writing work. Bhupinder Singh, HC (PW-2) says that the writing work was done by him while sitting in the back portion of Allwyn Nissan. Bhupinder Singh, HC has further stated that accused was also sitting in the said vehicle and DSP Gursharan Singh Bedi was also sitting therein. Bhupinder Singh, HC (PW-2) says that the writing work was done by him while sitting in the back portion of Allwyn Nissan. Bhupinder Singh, HC has further stated that accused was also sitting in the said vehicle and DSP Gursharan Singh Bedi was also sitting therein. He then made a comprehensive statement to the effect that Rajesh Kumar, SI and other members of the police party including DSP Gursharan Singh Bedi were sitting in Allwyn Nissan and that they remained sitting in the said vehicle for about 4 or 5 hours. Rajesh Kumar, SI contradicts him on this aspect. He says that the entire writing work was done at the spot while sitting on the ground. According to him, the DSP, however, remained standing. Stating about himself, he has said that he was also sitting on the ground and that it took four or five hours in completing the writing work, which was done while sitting at the spot. 22. Rajesh Kumar, SI (PW-4) has stated that he was present at Bhawanigarh Chowk Samana at about 7.30 PM on 23.11.1999 and received the secret information there. Though he had not sent any special report regarding the secret information and from his statement, it does not appear as to when the secret information was received, yet the time of sending ruqa Ex.PB after sending wireless message to the DSP (HQ), Patiala and scribing the document is shown to have been done at 9.30 PM. Bhupinder Singh, HC alone was asked about the time of recovery and he has stated that the recovery was effected at 11.30 PM on 23.11.1999. Now the information which was received by Rajesh Kumar, SI from secret informer, sent by way of Ex.PB to the police station at 9.30 PM must have been received about half an hour earlier to that. The distance between the place of recovery and the place of where the police party was present at the time of receipt of secret information could be gathered from the statement of Bhupinder Singh, HC who has stated that it could be covered within 10 to 15 minutes. The secret informer not only gathered the information about the presence of the appellant at the spot, but also about the fact that he was having poppy husk in his possession. The secret informer not only gathered the information about the presence of the appellant at the spot, but also about the fact that he was having poppy husk in his possession. By any modest estimate, it can be said that the secret informer must have noticed the appellant at the spot with the poppy husk around 8.30 PM if not earlier to that. It is so because the time of despatch of ruqa Ex.PB is 9.30 PM, the secret informer must have taken 30 minutes in gathering the information, locating the investigating officer and reaching him. The investigating Officer would have taken 30 minutes in listening to the informer, sending wireless message to DSP Gursharan Singh Bedi and then scribing the ruqa. 23. Now as per Bhupinder Singh, HC (PW-2), the recovery of poppy husk was effected on 11.30 PM, the police party at the most be taken to have reached the spot at about 10.30 PM. It could not be earlier to that because as per Rajesh Kumar, SI, he did not call persons from the locality as it was very late in the night. It shows that during the course of two hours and that too in the night time, the appellant remained sitting on the two bags of the poppy husk in front of his house in an open place and till 10.30 PM he could not sell anything because the contents of the bags were found to be intact weighing 35 Kgs each. It is difficult to believe that a person would remain sitting on the bags in order to sell the poppy husk for two hours and would not be in a position to sell even a single gram of the same. 24. Having a look at the circumstances noticed above, it may be said that individually none of the circumstances mentioned above may be sufficient to hold the prosecution case as doubtful, however, taken collectively, they are sufficient to support the view that the prosecution case is doubtful. Learned Judge, Special Court, Patiala did not consider the aforesaid aspects while deciding the case and has mechanically believed the statements of the two official witnesses to hold the appellant guilty of the offence. 25. Accordingly, I reach the conclusion that reliance cannot be placed on the statements of the two official witnesses in this case. Learned Judge, Special Court, Patiala did not consider the aforesaid aspects while deciding the case and has mechanically believed the statements of the two official witnesses to hold the appellant guilty of the offence. 25. Accordingly, I reach the conclusion that reliance cannot be placed on the statements of the two official witnesses in this case. The prosecution clearly appears to have failed to bring home the guilt of the accused for the offence for which he was charged. Resultantly, the appeal is allowed and the judgment of conviction dated 06.01.2003 and the order on sentence of the same date are set aside. The appellant shall stand acquitted of the charge framed against him. If he is on bail, his bail bonds shall stand discharged and if he is in custody, he shall be set at liberty at once if not required in any other case. ------------------