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2013 DIGILAW 1024 (PNJ)

Gurnam Singh v. State of Haryana

2013-08-08

JITENDRA CHAUHAN

body2013
Judgment JITENDRA CHAUHAN, J. By this common judgment, three appeals noticed above are being disposed of, having arisen out of the common judgment of conviction and order of sentence dated 18.11.1998, passed by the learned Additional Sessions Judge, Kaithal, thereby, convicting the appellants for commission of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act'), in case FIR No.195 dated 24.09.1996, registered at Police Station Rajond, and sentencing them to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/, and in default of payment of fine, to further undergo rigorous imprisonment for a period of 02 years. 2. The brief facts of the present case as narrated in para 2 of the impugned judgment, are reproduced as under: “2. That on 24.9.1996, afternoon, when PW Ashok Kumar Sub Inspector/Station House Officer, Police Station Rajond along with Head Constable Kehar Singh, UGC Mohinder Singh and Constable Suresh Kumar, was present in the area of village Birthe Bahri in connection with detection of crime and patrolling and he was proceeding towards village Thal, in the Govt. Jeep, then he noticed two cyclists coming by the side of village Thal, who on seeing the police party, throw their cycles and ran away; that Inspector Ashok Kumar chased both the accused along with his other police officials, be he succeeded in apprehending accused Sarmail Singh and the other accused ran away; that the name of the accused, who ran away was disclosed by accused Sarmail Singh as Gurnam Singh s/o Mohinder Singh of his own village; that on both the cycles, plastic bags were tied. Sub Inspector Ashok Kumar suspected some narcotic substance in both these two plastic bags, so he served notice Ex.PD to accused Sarmail Singh seeking his option that whether he wanted to be searched through him or through Gazetted Officer or a Magistrate; that accused Sarmail Singh opted to be searched through Gazetted Officer vide memo Ex.PE; that notice and memo were thumb marked by accused Sarmail Singh and were attested by Head constable Kehar Singh and Constable Suresh Kumar. Then, DSP Sh. Hazari Singh was summoned through VT message. Then, DSP Sh. Hazari Singh was summoned through VT message. On his arrival at the spot, Ashok Kumar, Sub Inspector apprised him the facts leading to the apprehension of accused Sarmail Singh and recovery of plastic bags and running of accused Gurnam Singh and then on the direction of DSP, Sh. Ashok Kumar Sub Inspector searched both the bags. The bag carried by Sarmail Singh on the carrier of his cycle, on search was found containing crushed poppy husk, which was found to be 15 kg on weighment, out of which, 250 grams as sample was separated. Sample and residue were sealed separately in separate pulanda with seals AK and HS. The bag of accused Gurnam Singh tied with the carrier of his cycle, on search, was also found containing crushed poppy husk, which, on weighment, was found to be 10 kg., out of which, 250 grams as sample was separated. Sample and residue were sealed separately in separate palanda with seals AK and HS; that seal AK of Ashok Kumar Sub Inspector was entrusted to Kehar Singh Head Constable after its use and DSP retained his own seal HS, after obtaining the specimen impressions of the seal, then the sample and residue and cycles of both the accused were taken into police possession vide memo Ex.PE duly attested by the witnesses. Then, he recorded statements of PWs under Section 161 Cr.P.C. Then, accused Sarmail Singh was arrested after serving him notice Ex.PF. He then sent rukka Ex.PB to the police station through Constable Mohinder Singh and on receipt of the same in the police station, formal FIR Ex.PB/1 was reduced into writing. Then he prepared site plan Ex.PG showing correct marginal notes and on return to the police station, he deposited the case properties and sample with MHC in safe and sound condition. Accused Sarmail Singh was sent up to police lockup. Then accused Gurnam Singh was arrested in this case on 13.11.96 and after completion of formal investigation and on receipt of report of FSL Ex.PA, both the accused, named above, were challenged accordingly for having committed offence punishable under Section 15 of the N.D.P.S. Act, by Sub Inspector Banarsi Dass, Station House Officer, Police Station Rajond, and the challan was presented in the Court directly.” 3. Upon presentation of challan, copies of the documents relied upon by the prosecution were supplied to the accused. Upon presentation of challan, copies of the documents relied upon by the prosecution were supplied to the accused. The learned trial Court, after finding prima facie case against the accused, charged them for commission of offences punishable under Sections 15 of the NDPS Act, to which they pleaded not guilty and claimed trial. 4. In order to substantiate its case, the prosecution examined as many as seven following witnesses: PW-1 S.K. Nagpal, Senior Scientific Officer, FSL Madhuban, proved the FSL report, Ex.PA. PW-2 ASI Surat Kant, proved FIR, Ex.PB/1, on receipt of ruqa Ex.PB, on 24.09.1996. PW-3 MHC Ranbir Singh, tendered his affidavit, Ex.PC. PW-4 HC Kehar Singh, is a recovery witness. PW-5 DSP Hazari Singh. PW-6 S.I. Ashok Kumar, is the Investigating Officer of the case. He deposed regarding the prosecution case. PW-7 Constable Des Raj, tendered his affidavit, Ex.PH. PWs Suresh Kumar, UGC Mohinder Singh and SI Banarsi Dass, were given up as unnecessary. 5. When examined under Section 313 Cr.P.C., the accused denied the entire incriminating material appearing in the prosecution evidence and pleaded their false implication. 6. After hearing learned counsel for both the parties and considering material/evidence on record, the learned trial Court convicted and sentenced the appellants, as detailed at the outset of this judgment. 7. Feeling aggrieved from the judgment of conviction and order of sentence, the present appeals have been directed by the appellants, which were admitted by this Court on 04.12.1998 and 22.02.1999, respectively. 8. Initiating the arguments, Mr. B.S. Sidhu, learned counsel for the appellant-Sarmail Singh, submits that the alleged recovery was effected on a Pucca road in the area of Village Thal, at about 3.45 P.M. Therefore, non-joining of any independent witness at the time of alleged recovery makes the prosecution case doubtful. H.C. Kehar Chand, PW4, has also admitted in his cross-examination that many persons were available at that time, but none was associated. The learned counsel further argued that in the instant case, the link evidence is missing. Ex.P1 and Ex.P2, were not bearing any paper slips, showing particulars of the case, at the time of production before the Court. The seal was not decipherable. Merely on the ground that the above plastic bags of white colour were identified by all the three witnesses in the Court, is not sufficient to hold the appellants guilty. Ex.P1 and Ex.P2, were not bearing any paper slips, showing particulars of the case, at the time of production before the Court. The seal was not decipherable. Merely on the ground that the above plastic bags of white colour were identified by all the three witnesses in the Court, is not sufficient to hold the appellants guilty. He further states that it is the prosecution case that the cycles in question were recovered from the appellants. However, the same were also not produced before the Court. This fact also casts aspersion on the prosecution story. The learned counsel further contends that there is total noncompliance of the mandatory provisions of Sections 42 and 50 of the Act. The alleged offer under Section 42 of the Act is defective inasmuch as the accused was not told that he had a legal right to get his search conducted before the Gazetted officer or Magistrate. The learned counsel further contends that there is an unexplained delay of six days in sending the samples to the laboratory, therefore, the possibility of tampering with the sample cannot be ruled out. 9. Mr. Pawan Hooda, Advocate, appearing on behalf of the appellant-Gurnam Singh, in addition to the arguments already raised above, contended that the appellant-Gurnam Singh was not arrested from the spot. He was arrested on 13.11.1996. 10. On the other hand, the learned State counsel has vehemently argued that Sections 42 and 50 of the Act are not applicable in the instant case as it is not a case of personal search as the recovery was effected from a public place. The contraband was recovered from the plastic bags hanging on the carriers of the cycles. These bags were identified by as many as three witnesses in the Court. The seals were intact. 11. I have heard learned counsel for the parties and perused the record with their able assistance. 12. Insofar as appellant-Gurnam Singh is concerned, he was not apprehended from the spot. He is stated to have fled away from the place of recovery after leaving behind his cycle. The cycles produced in court did not bear chit number stating that a particular cycle belongs to appellant-Gurnam Singh. Cycles, Ex.P1 and Ex.P2, did not bear any paper slip at the time of production in the Court. Even the particulars of the case are not mentioned thereupon. The cycles produced in court did not bear chit number stating that a particular cycle belongs to appellant-Gurnam Singh. Cycles, Ex.P1 and Ex.P2, did not bear any paper slip at the time of production in the Court. Even the particulars of the case are not mentioned thereupon. No identification parade was held, so as to identify appellant-Gurnam Singh to be the same person who ran away from the spot. Although, the prosecution official witnesses stated that they knew Gurnam Singh earlier, but there is no explanation as to how those official witnesses knew Gurnam Singh before the alleged recovery. The principle of res gaeste will not be applicable in this case as observed by the trial court, in the absence of the statement of co-accused, Gurnam Singh, on oath indicating that this appellant was the same person who ran away from the spot. There is no plausible reason to believe the assertion of the co-accused, Sarmail Singh, that his accomplice, who ran away from the spot, was Gurnam Singh. So, the case against Gurnam Singh is doubtful and benefit thereof is to be extended to him. 13. Now, this Court adverts to the case of appellant, Sarmail Singh. Again the argument of the learned counsel for the appellant is worth accepting that neither the case property nor the cycles are proved to be connected with the present appellant. At the time of production of the case property and the cycles, Ex.P1 and Ex.P2, did not bear any paper slip showing the particulars of the case. The seals were also not legible. It is not proved that the case property recovered from the spot was the same which was recovered from the spot. 14. The recovery is during day time at about 3.45 p.m. on main pucca road of the village. Head Constable Kehar Chand, PW4, admitted in his cross examination that many people were available but nobody was joined in the investigation. Whenever an independent witness is available, it is the duty of the police to join a witness from the public to lend credence to the recovery. Non-joining of an independent witness from the public, though not mandatory, but wherever the witnesses are available, as admitted by this witness, it is the duty of the police to join them to witness the recovery or during the search proceedings. Non-joining of an independent witness from the public, though not mandatory, but wherever the witnesses are available, as admitted by this witness, it is the duty of the police to join them to witness the recovery or during the search proceedings. There is no evidence that the Police made an effort to join an independent witness at the time of recovery. 15. A bare reading of personal search memo Ex.PD/1, prima facie, reveals that there was noncompliance of section 42 of the Act. Appellant-Sarmail Singh, allegedly apprehended from the spot, was not given a clear, categoric and complete offer that “he has a legal right” to get his search conducted before a gazetted officer or a magistrate. The contents of Ex.PD reveal that accused-appellant Sarmail Singh, was only asked that as to whether he wanted his search to be conducted from him or by a gazetted officer or a magistrate. Thus, the appellant was not made aware of his legal right. 16. The provisions of Sections 50 and 57 of the Act were also not complied with. The investigator, Ashok Kumar, claims to have sent his special report to the Deputy Superintendent of Police, (Headquarters) which fact has not been supported by DSP Hazari Lal, PW5. DSP Hazari Lal, PW5, conceded in his cross examination that Investigating Officer, Ashok Kumar, did not dispatch a separate detailed report to him regarding arrest and recovery. Section 57 is mandatory in nature. The word ‘shall’ is there. To support this view, Vijaysinh Chandubha Jadeja vs State of Gujrat 2010 All Instant Judgment (SC) 49070 is referred. 17. Then there is delay in sending the sample to the laboratory. Admittedly, the alleged recovery is dated 24.09.1996. The sample was dispatched to the Central Forensic Science Laboratory, on 30.09.2013. There is delay of six days in sending the sample. The seals with which the samples and the case property were sealed, remained with the police officers posted in the same police station. There is no explanation as to why the samples were not immediately deposited to the laboratory for examination. The State machinery has a huge man power. There is delay of six days in sending the sample. The seals with which the samples and the case property were sealed, remained with the police officers posted in the same police station. There is no explanation as to why the samples were not immediately deposited to the laboratory for examination. The State machinery has a huge man power. If the interested police officers effecting the recovery of contraband are posted in the same police station till the dispatch of the samples to the laboratory, there is every possibility of tampering with the samples or the case property, because recovery by the police is a team work. The quantity allegedly recovered being small (15 kg of crushed poppy husk), the possibility of plantation cannot be ruled out in order to increase the number of cases. 18. Keeping in view the cumulative effect of all the circumstances, the prosecution case becomes doubtful against appellants, Gurnam Singh and Sarmail Singh. Hence, Criminal appeal Nos.1017SB of 1998 and 190SB of 1999 are allowed; judgment of conviction and order of sentence passed against appellants Gurnam Singh and Sarmail Singh, are set aside and both are acquitted of the charges framed against them. The appellants are stated to be on bail. Their bail bonds shall stand discharged. Allowed.