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2013 DIGILAW 1250 (PNJ)

Mukhtiar Singh v. State of Punjab

2013-09-17

JITENDRA CHAUHAN

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Judgment Jitendra Chauhan, J. Appellant-Mukhtiar Singh has filed this appeal against the judgment of conviction and order of sentence dated 22.02.2001 passed by Special Court, Mansa whereby he has been held guilty and convicted for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'the Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lakh and in default of payment of fine to further undergo rigorous imprisonment for one year. The case of the prosecution as per judgment of the trial Court is as under:- “On 18.12.1998, the police party headed by ASI Kulwant Singh was on patrol duty in a private jeep and they were going on the canal for path towards Farwahi. When the police party reached near the canal bridge, within the area of village Kishangarh Farwahhi, the accused was seen carrying a bag on his head. On seeing the police party, he tried to escape but was apprehended on doubt. He disclosed his name as Mukhtiar Singh. On suspicion, he was asked whether he wanted to be searched before a Gazetted Officer or before a Magistrate. At that time, Jarnail Singh son of Jit Singh resident of village Samaou also passed that way, who was joined with the police party. In the presence of the witnesses, the accused opted to be searched before a Gazetted Officer. The consent memo of the accused Ex.PF was prepared, which was signed by him and attested by the witnesses. Thereafter, a wireless message was sent to the DSP Iqbal Singh, Sub Division Mansa, to come to the spot. DSP Iqbal Singh also told the accused that he is a Gazetted Officer. The accused accepted to be searched before DSP Iqbal Singh. The identification memo and consent memo is Ex.PB. Thereafter, under the directions of DSP Iqbal Singh and in his presence, accused was searched and the bag in his possession was opened which contained poppy husk. Two samples of 100 grams each were taken from the recovered material and the remaining poppy husk was weighed which came out 14 kg 200 grams. The samples and the bag of poppy husk were sealed with the seal of 'KS' by the IO and the seal after use was handed over to PW Jarnail Singh son of Jit Singh. Two samples of 100 grams each were taken from the recovered material and the remaining poppy husk was weighed which came out 14 kg 200 grams. The samples and the bag of poppy husk were sealed with the seal of 'KS' by the IO and the seal after use was handed over to PW Jarnail Singh son of Jit Singh. Ruqa Ex.PA was sent to the police station, on the basis of which a formal FIR Ex.PA/1 was registered. The accused was formally arrested and the reasons for his arrest were disclosed to him, vide Ex.PK. The site plan Ex.PL was prepared and the case property along with samples and the accused were brought at the police station and were entrusted to the SI/SHO Paramjit Singh, who checked the case property and samples and affixed his seal 'PS' upon them. He kept the case property and samples in his custody, while the accused was confined in the police lockup. On the next day, the case property and the samples along with accused were produced before the Illaqa Magistrate, who checked the seals on the case property and the samples and they were found intact. The samples were sent to the Chemical Examiner for its test, who submitted his report Ex.PE, stating therein that the contents of the samples are of Chura Poppy heads. After the conclusion of investigation, challan against accused was presented in the Court.” On presentation of challan, the trial Court finding prima facie charge against accused-appellant Mukhtiar Singh, framed charge for the offence under Section 15 of the Act. The accused pleaded not guilty to above charge and claimed trial. In support of its case, the prosecution examined PW-1 SI Paramjit Singh; PW-2 Constable Rachpal Singh; PW-3 ASI Kulwant Singh; PW-4 Constable Balwinder Singh and PW-5 DSP Iqbal Singh PW-1 SI Paramjit Singh testified the case property after affixing his seal on the same. PW-2 Constable Rachpal Singh proved the prosecution version. PW-3 ASI Kulwant Singh, Investigating Officer of the case proved the recovery of contraband from the accused. PW-4 Constable Balwinder Singh also corroborated the entire story of prosecution. PW-5 DSP Iqbal Singh proved the recovery of contraband from the possession of accused. The statement of the accused under Section 313 Cr.P.C., was recorded. He pleaded innocence and alleged false implication. PW-3 ASI Kulwant Singh, Investigating Officer of the case proved the recovery of contraband from the accused. PW-4 Constable Balwinder Singh also corroborated the entire story of prosecution. PW-5 DSP Iqbal Singh proved the recovery of contraband from the possession of accused. The statement of the accused under Section 313 Cr.P.C., was recorded. He pleaded innocence and alleged false implication. In defence, the accused had examined MHC Angrej Singh as PW-1 and produced documents Ex.DA to DE. After hearing the Public Prosecutor for the State, the Counsel for the accused, and after going through the evidence on record, the trial Court convicted and sentenced the accused/appellant, as stated hereinbefore. Feeling aggrieved, against the judgment of conviction delivered by the trial Court, the instant appeal was filed by the accused/appellant which was admitted on 01.06.2001. Learned amicus curiae for the appellant has contended that the accused has been falsely implicated in the present case. The alleged recovery was planted upon the accused. The seal after use was handed over to Jarnail Singh, an independent witness but he was not examined as a witness. This witness was only a stock witness and also joined as a witness by the police in another four FIRs. The evidence led by the prosecution without the testimony of independent witness, solely rests on the official witness, who are, of course interested in the conviction of the appellant to get reward. Learned counsel further argued that this is a case where a young man was picked up by the police and the recovery was planted upon him. On these premises, learned counsel seeks to argue that the prosecution has failed to prove its case beyond reasonable shadow of doubt, the benefit of which should be given to the accused and he be acquitted of the charges. On the other hand, learned Deputy Advocate General, Punjab has refuted the contentions and urged that the prosecution has established its case beyond shadow of reasonable doubt. He contended that proper procedure has been followed in the present case. Report of chemical examiner qua the content of the narcotic substance has been proved. Although, all the witnesses were officials but they have supported the case of the prosecution. Even, there was no previous enmity of any of the official witnesses against the accused before registration of the present FIR. Report of chemical examiner qua the content of the narcotic substance has been proved. Although, all the witnesses were officials but they have supported the case of the prosecution. Even, there was no previous enmity of any of the official witnesses against the accused before registration of the present FIR. He supports the judgment of the Court below and prayed for dismissal of the appeal. This Court has heard the arguments of the learned counsel for the appellant and the learned State counsel and has carefully gone through the record of the case. In criminal law, the Police plays a significant role. The powers in their hands are unfettered. To obviate false implication, certain safeguards either by way of enactments or by judicial pronouncements have been provided to the accused. Though the testimonies of Police officials are not waste papers of record but the Court while considering its probative value, must be at guard against false implication. The joining of independent witness is not a ritual. In its roots, lies an object. Here is a case where though the independent witness was joined but he was not examined. No explanation has been put forth by the prosecution as to why the independent witness was not examined. Such circumstance is very much fatal to the prosecution case. There is force in the contention of learned Amicus Curiae that Jarnail Singh, so called independent witness is a stooge of the police. He is a convenient witness, whenever the police requires his services, he is called to join the police party. Such like witnesses cannot be relied upon. In order to prove that Jarnail Singh is a stock witness and copies of FIRs Ex.DA, Ex.DB, Ex.DC, Ex. DD & Ex.DE have been proved to prove this fact. Surprisingly, all these FIRs relate to police station Bhikhi, the same police station in which the appellant has been booked for the NDPS Act. The prosecution has withheld this witness for the reasons best know to it. So, this Court draws adverse inference against the prosecution and doubt the prosecution story. The recovery in the instant case is about 15 kg of poppy husk. Where the recovery is of small contraband, the chances of plantation cannot be ruled out. It is believed that in order to raise the number of FIRs, sometimes, the police acts over jealously. So, this Court draws adverse inference against the prosecution and doubt the prosecution story. The recovery in the instant case is about 15 kg of poppy husk. Where the recovery is of small contraband, the chances of plantation cannot be ruled out. It is believed that in order to raise the number of FIRs, sometimes, the police acts over jealously. PW-3 ASI Kulwant Singh admitted in his cross examination that neither the DSP signed the case property nor pasted his seal on it. So, this can be inferred that the DSP was not present at the spot or that his signatures on the police papers were taken later on. The DSP also admitted in his cross examination that neither he fix his seal on the case property nor signed it. The object of the associating the Gazetted Officer is to ensure that there may not be any false implication. The Gazetted Officer who reached the spot has not only to supervise the investigation but also to see and ensure that all the necessary formalities are completed from where the accused may not be prejudiced. Their purpose is to ensure fair investigation, so adverse inference is also drawn on account of this fact. Keeping in view the facts and circumstances, the young age of the appellant and non examination of the independent witness, the appeal is allowed and the judgment of conviction and the order of sentence dated 22.02.2001, rendered by the Special, Court, Mansa is set aside. The Court appreciates the efforts of the learned Amicus Curiae who prepared and argued the matter effectively.