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2013 DIGILAW 1460 (PNJ)

Ram Lubhaya v. State of Punjab

2013-11-07

JITENDRA CHAUHAN

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Judgment Jitendra Chauhan, J. This appeal is directed against the judgment and order dated 9.10.2002, passed by the Court of learned Special Judge, Jalandhar vide which, the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/and in default thereof, to further undergo rigorous imprisonment for a period of three months, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity ‘the Act’). 2. The facts necessary for adjudication of the matter as narrated in para no.2 of the impugned judgment are as under: “On 23.2.1999, PW4, ASI Kulwant Singh alongwith HC Ashwani Kumar and other police officials was going towards Tandi Rajpura on GT Road, on a private vehicle. When the police party was at some distance from turning point of Tandi, accused Ram Lubhaya was seeing coming from Tandi side. On seeing the police party the accused tried to go back but he was apprehended with the help of other police officials. Balwinder Singh PW was joined in the police party. ASI Kulwant Singh told the accused that there was suspicion of his being in possession of some contraband, and whether he wanted to be searched in the presence of Gazetted Officer or Magistrate, but the accused reposed confidence in the police party. The consent memo Ex.PA of the accused was prepared, which was thumb marked by the accused, attested by the PWs. The search of the accused was effected and two small plastic bags containing poppy husk from the carrier of his cycle were recovered which on weighment came to be 30 kgs. 250 grams each. Sample of 250 grams poppy husk was separated from each bag and the same were reduced into parcels, while the remaining poppy husk was put in the same bag. The bags Ex.P1 and P2 and parcels were sealed at the spot with the seal bearing impression 'KS'. The seal after use was handed over to HC Ashwani Kumar. The case property alongwith sample were taken into possession vide recovery memo Ex.PB. Ruqa Ex.PD was sent to the police station and on its basis formal FIR Ex.PC was recorded. Rough site plan Ex.PF was prepared at the spot, with correct marginal notes. The seal after use was handed over to HC Ashwani Kumar. The case property alongwith sample were taken into possession vide recovery memo Ex.PB. Ruqa Ex.PD was sent to the police station and on its basis formal FIR Ex.PC was recorded. Rough site plan Ex.PF was prepared at the spot, with correct marginal notes. ASI Kulwant singh produced the case property and the accused before SI Dharam Pal, SHO, who verified the investigation, and sealed the case property with seal bearing impression 'DP'. The case property was deposited with the MHC Harbhajan Singh. 3. After completion of the investigation, the challan was presented in the Court. The accused was charged under Section 15 of the Act, to which, he did not plead guilty and claimed trial. 4. In order to substantiate the charges, the prosecution has examined the following witnesses: PW1 HC Ashwani Kumar, a member of the police party. He corroborated the version of the Investigating Officer. PW2 C.Resham Singh, handed over the special report in the Court of learned JMIC. PW3 C.Parkash Singh, tendered his affidavit in evidence as Ex.PD PW4 ASI Kulwant Singh, who headed the police party, recovered the contraband from the appellant. He after use his seal handed over to HC Ashwani Kumar. PW5 SI Dharam Pal, the then SHO of Police Station Bhogpur, before whom, ASI Kulwant singh produced the accused alongwith the case property, deposed that he, after verification, sealed the case property also with his own seal. PW6 C.Harbhajan Singh, tendered his affidavit in evidence as Ex.PH 5. When examined under Section 313 of the Code of Criminal Procedure, the accused-appellant denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication. Without examining any witness in defence, he closed his evidence. 6. The learned trial Court by observing that prosecution has successfully proved that the appellant was in possession of poppy husk, which is fully established from the statement of the PWs, and convicted the accused appellant and sentenced as noticed at the outset. 7. Feeling dissatisfied with the same, the accused-appellant preferred the present appeal, which was admitted on 13.1.2003. 8. It is averred in the grounds of appeal that the learned trial Court convicted the appellant without properly appreciating the evidence on record. 7. Feeling dissatisfied with the same, the accused-appellant preferred the present appeal, which was admitted on 13.1.2003. 8. It is averred in the grounds of appeal that the learned trial Court convicted the appellant without properly appreciating the evidence on record. There are material contradictions in the statements of the prosecution witnesses; mandatory provisions of the Act were not complied with at the time of recovery; no information was sent to the superior officer and the seal was not handed over to the independent witness. 9. On the other hand, the learned State counsel submits that the prosecution case is fully established and therefore, the learned trial Court has rightly convicted and sentenced the accused-appellant. 10. I have heard the learned counsel for the State and perused the record carefully. 11. PW1 HC Ashwani Kumar, who was a member of the police party, in his cross-examination has deposed that they were 2/3 persons in uniform. They were on Matadoor belonging to a private person. He did not remember the colour and number of the said vehicle. He further deposed that he did not remember from which taxi stand the vehicle was taken. They laid Naka on a road, which was a thorough fare. They joined farmers as well as independent person, but at present he does not remember the name of those persons. He has not seen the case property and the cycle in the Court. The accused was apprehended at 2 PM. The accused was illiterate. In Ex.PA, it was not written that the consent memo was read over to the accused. ASI Kulwant Singh, however, in his cross-examination has deposed that they were six officials in a private vehicle. The road is not a thorough fare. None else was present in the field. He had read over the consent memo to the accused. No special report was sent to the higher police officers. The CSFL form was not filled at the spot. 11. From the bare reading of the statements of PW1 and PW4 HC Ashwani Kumar and ASI Kulwant Singh respectively, material contradictions emerge from their statements. PW1 Ashwani Kumar stated that they were 23 persons, whereas, ASI Kulwant Singh stated that they were 56 persons. Ashwani Kumar stated that it was a thorough fare, but ASI Kulwant Singh stated that it was not a thoroughfare. PW1 Ashwani Kumar stated that they were 23 persons, whereas, ASI Kulwant Singh stated that they were 56 persons. Ashwani Kumar stated that it was a thorough fare, but ASI Kulwant Singh stated that it was not a thoroughfare. No special report was sent to the higher police officer with regard to the arrest of the appellant. On Ex.PA, it was not written that the consent memo was read over to the appellant. They joined Balwinder Singh as independent witness but he was not examined and so adverse inference is to be drawn against prosecution. 12. In re: State of Punjab vs. Surjit Singh, 2008(1) Recent Criminal Reports (Crl.), 266, the Division Bench of this Court held that when the prosecution alleged that a material witness has been won over by the accused, it is still necessary that such witness must be examined to elicit truth. 13. After use, the seal was handed over to HC Ashwani Kumar and not the independent witness. The recovery was effected on 23.2.1999, whereas the samples reached in the office of Chemical Examiner on 10.3.1999 i.e. after a lapse of sixteen days. There is no explanation with regard to the delay in sending the sample to the office of Chemical Examiner. The seal was in the custody of the police officials. These circumstances create a doubt with regard to tampering with the sample parcels. 14. In Bhola Singh vs. State of Punjab 2005(2) Recent Criminal Reports (Crl.) 520, it has been observed that “CFSL Form should be prepared at the spot and deposited in Malkhana. Where the seal remained with the police after use and the CFSL form was neither prepared on the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case. Filling of such form at the spot is a very valuable safeguard to ensure that the seal sample is not tampered with till its analysis by the F.S.L.” In the present case, from the statements of PW4 ASI Kulwant Singh and PW5 SI Dharam Pal, it reveals that CFSL form was not attached with the case property, which also creates a dent in the prosecution case. 15. In view of the infirmities referred to hereinbefore, this appeal is allowed and the impugned judgment and order is hereby set aside. The appellant is hereby acquitted of the charged offence.