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2013 DIGILAW 1336 (PNJ)

Balwinder Singh v. State of Punjab

2013-10-03

DAYA CHAUDHARY

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Judgment Daya Chaudhary, J. The present appeal has been filed by appellant-Balwinder Singh against judgment of conviction and order of sentence dated 24.10.2005 passed by Special Court, Kapurthala, whereby, he has been held guilty for offence under Section 15 of Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentenced to undergo RI for a period of ten years and to pay a fine of Rs. 1 lac with default clause. The prosecution story in brief is that on 31.8.1997, ASI Santokh Singh along with ASI Avtar Singh and other police officials was going to village Lattianwala in connection with FIR No. 80/1997 under Sections 15/61/85 of the Act. On reaching Adda Khera Mandir, Arjan Singh was joined in the police party and on reaching near the gate of Bhanolanga, ASI Santokh Singh received a secret information to the effect that accused-Balwinder Singh was sitting in the tea shop near the gate of Bhanolonga. On reaching there, the appellant was apprehended and he made a disclosure statement that he had concealed 5 bags of poppy husk in a Tibba on the road from Siala to Village Sidhwan Dona. On the basis of disclosure statement made by the accused-appellant, an intimation was sent to DSP Puran Singh through wireless message who reached at the spot. The accused-appellant got recovered five bags of poppy husk from the disclosed place and 250 gms of poppy husk was taken as sample from each bag, which were converted into parcels. Remaining poppy husk when weighed came to 34 kgs and 750 grams in each bag and separate parcels were prepared. All the parcels were sealed with the seal of DSP, bearing letters PS and separate seal impression was also prepared. The case property was taken into possession and the same was attested by PWs. ASI Santokh Singh sent ruqa to the Police Station, on the basis of which a formal FIR was registered by SI Sarwan Singh. The statements of witnesses were recorded and on completion of investigation, the accused was arrested and samples were sent to Chemical Examiner, Jalandhar, which were found to be poppy head Chura. ASI Santokh Singh sent ruqa to the Police Station, on the basis of which a formal FIR was registered by SI Sarwan Singh. The statements of witnesses were recorded and on completion of investigation, the accused was arrested and samples were sent to Chemical Examiner, Jalandhar, which were found to be poppy head Chura. The challan was presented and documents were supplied to the accused-appellant as required under Section 207 Cr.P.C. After hearing counsel for the parties, accused-appellant was charge-sheeted for an offence under Section 15 of the Act, to which, he pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as six witnesses, namely, Lakhwinder Singh (PW1), Constable Nimral Chand (PW2), ASI Avtar Singh (PW3), SI Ram Dutt (PW4), DSP Puran Singh (PW5) and ASI Santokh Singh (PW6). In the statement recorded under Section 313 Cr.P.C., it has been stated by the appellant that he has falsely been implicated in this case as he was working as servant with Paramjit Singh @ Kala. Relatives of said Paramjit Singh filed a criminal case against SHO Lakhwinder Singh and in that case brother and other relatives of Paramjit Singh appeared as witnesses against said SHO and due to that grudge, the appellant as well as other persons were falsely implicated in a case under NDPS Act. Later on all the accused in the aforesaid case were acquitted of the charges by the Sessions Judge, Kapurthala vide its judgment dated 7.8.1999 and thereafter a false case was planted upon the appellant. On perusal of the evidence available on record and on hearing both the parties, the trial Court convicted/sentenced the appellant for offence under Section 15 of NDPS Act for a period of ten years with a fine of Rs. 1 lac vide its judgment dated 24.10.2005, which is subject matter of challenge in the present appeal. Learned counsel for the appellant contends that there is violation of Section 42 of the Act as raid was conducted on the basis of secret information but neither the same was reduced into writing nor a copy of the same was sent to the superior officer. The recovery was effected from the open place and it cannot be said that same was recovered from the conscious possession of the appellant. Learned counsel further submits that there is violation of mandatory provisions of Section 55 of the Act. The recovery was effected from the open place and it cannot be said that same was recovered from the conscious possession of the appellant. Learned counsel further submits that there is violation of mandatory provisions of Section 55 of the Act. There was delay of nine days in sending the samples. One Arjan Singh, who was shown to be an eye witness of the occurrence, has not been examined by the prosecution and rather he appeared as defence witness and deposed in favour of the appellant. Learned counsel also submits that there are material contradictions in the statements of PW3 and PW5 but all these contradictions have not been considered by the trial Court while passing judgment of conviction and order of sentence. Learned counsel has relied upon the judgment of Hon'ble Supreme Court in the case of Mohinder Kumar Vs. The State, Panaji, Goa 1995 (2) RCR (Criminal) 599 as well as judgment of this Court in the case of Jit Singh Vs. State of Punjab 2008 (2) RCR (Criminal) 655 in support of his contentions. Learned counsel for the respondent-State submits that the judgment of trial Court is well reasoned and prosecution has fully proved its case beyond reasonable doubt and no interference is required. Heard the arguments advanced by learned counsel for the parties and have also perused evidence as well as other material available on record. Admittedly, the raid was conducted on the basis of secret information and recovery was effected on the basis of disclosure statement. The main argument of learned counsel for the appellant is that there are violations of Sections 42 and 55 of the Act and there was a delay of nine days in sending the samples for chemical examination. It is also the argument of learned counsel that one Arjan Singh was joined as witness at the time of recovery but he was not examined but he appeared as DW6 and deposed in favour of the accused. It is also the argument of learned counsel that one Arjan Singh was joined as witness at the time of recovery but he was not examined but he appeared as DW6 and deposed in favour of the accused. Learned counsel has also submitted that the appellant has falsely been implicated as he deposed against Lakhwinder Singh, SHO in a criminal complaint filed by Paramjit Singh specific stand with regard to false implication as well as motive was taken by the appellant while recording statement under Section 313 Cr.P.C. The plea taken was that he was working as servant with Paramjit Singh @ Kala, who filed a criminal case against Lakhwinder Singh, SHO and in that case the brother and other relatives of Paramjit Singh appeared as witness. Due to this reason, a false case bearing FIR No. 80 dated 30.8.1997 was registered against Paramjit Singh and his other relatives under NDPS Act but later on were acquitted of the charges by the trial Court vide its judgment dated 7.8.1999. Thereafter the present case was registered against the appellant and his signatures were obtained on blank papers. Even an application regarding false implication of the appellant was submitted to SSP, Kapurthala which was duly signed by Onkar Singh, Sarpanch and other respectables of the village. It is also an admitted fact that the recovery was made on the basis of secret information and the same was neither reduced into writing nor a copy of the same has been sent to higher authorities. The independent witness was joined but he did not support the case of the prosecution rather while appearing as defence witness deposed in favour of the appellant. The accused under the similar circumstances was acquitted of the charges by this Court in the case of Jit Singh (supra). In the present case, the appellant was apprehended at a tea stall and on the basis of disclosure statement the recovery was effected. All these factors creates doubt in the prosecution story. It cannot be stated to be a case of conscious possession. In Mohinder Kumar (supra) the recovery was made from the house and there was violation of mandatory provisions of Section 42 and 50 of the Act and accused was acquitted of the charge by Hon'ble the Supreme Court. All these factors creates doubt in the prosecution story. It cannot be stated to be a case of conscious possession. In Mohinder Kumar (supra) the recovery was made from the house and there was violation of mandatory provisions of Section 42 and 50 of the Act and accused was acquitted of the charge by Hon'ble the Supreme Court. It was held that information was not sent to the superiors officers as required under Section 42(2) of the Act and the provision of Section 50 of the Act were not complied with. The provisions of Section 52 and 57 of the Act deals with the steps to be taken by the officer after making arrest or seizure which are mandatory in character. Apart from the above facts there are material discrepancies in the statements of prosecution witnesses. In case of judgment of this Court in Raghbir Singh and another vs. State of Punjab 2008(1) RCR (Criminal) 510, the samples were sent to chemical examiner after 18 days of seizure and the delay was not explained which was found to be fatal to the prosecution and the accused was acquitted of the charge. In case of judgment of this Court in Kaur Singh vs. State of Punjab 2007(2) RCR (Criminal) 630, the independent witness was not examined and the samples were given to A.S.I. of Police and it was held that there were material flaws in the prosecution version and the prosecution case could not be proved beyond reasonable doubt and the accused was acquitted of the charge by giving the benefit of doubt. Hon'ble the Supreme Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000(1) RCR (Crl.) 611, in regard to non-compliance of Section 42 of the Act has held : “When the same decision considered the impact of noncompliance of Section 50 it was held that “it would affect the prosecution case and vitiate the trial”. But the Constitution Bench has settled the legal position concerning that aspect in State of Punjab v. Balbir Singh (supra), the relevant portion of which has been extracted by us earlier. We do not think that a different approach is warranted regarding noncompliance of Section 42 also. But the Constitution Bench has settled the legal position concerning that aspect in State of Punjab v. Balbir Singh (supra), the relevant portion of which has been extracted by us earlier. We do not think that a different approach is warranted regarding noncompliance of Section 42 also. If that be so, the position must be the following: If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused.” In State of West Bengal and others Vs. Babu Chakraborty, AIR 2004 Supreme Court 4324, Hon'ble the Supreme Court again has gone into the aspect of violation of the provisions of Section 42 of the Act and came to conclude as under: “Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. This Court also held that failure to comply with S.42(1), proviso to S.42(1) and S.42(2) would render the entire prosecution case suspect and cause prejudice to the accused.” Accordingly, in view of the facts and circumstances as mentioned above, the present appeal deserves to be allowed and judgment of conviction and order of sentence dated 24.10.2005 passed by the trial Court is set aside. The appellant is acquitted of the charge against him. He is directed to be released forthwith, if not required in any other case.