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2013 DIGILAW 1461 (PNJ)

Gurnam Singh v. State of Haryana

2013-11-07

JITENDRA CHAUHAN

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JUDGMENT JITENDRA CHAUHAN, J. The present appeal has been filed by the appellants against the judgment of conviction and order of sentence dated 18/21.09.2004, passed by the learned Judge, Special Court, Karnal, 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'), 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 01 year each. 2. The brief facts of the present case as narrated in para 2 of the impugned judgment, are reproduced as under: “2. The brief facts of the case giving rise the prosecution are that on 1.9.1999 SI Parkash Chand along with other police officials was present at Gurudawara Chowk Nissing in connection with checking of crime. In the meanwhile, he received secret information that accused Gurnam Singh used to sell poppy husk and stored the same in the houses of Dharam Pal and Jai Pal and if raid is conducted all the three accused could be apprehended along with the poppy husk. Finding the secret information reliable, SI Parkash Chand sent ruqqa Ex.PB to the police station on the basis of which formal FIR Ex.PB/1 was recorded and in the ruqqa he also mentioned sending for a Magistrate or Gazetted Officer in the village Dachar. Thereafter, SI Parkash Chand formed a raiding party and first of all he went to the house of Jai Pal where he stopped his jeep at some distance. SI Parkash Chand went in the house of Jai Pal were the accused Jai Pal and Gurnam Singh were talking with each other in the court yard. SI Parkash Chand knocked the door and on seeing the police both Jai Pal and Gurnam Singh ran away from the spot. SI Parkash Chand found four bags lying under the neem tree fodder store. Suspecting some contraband in those bags, SI Parkash Chand left ASI Jagdev Singh and HC Ashok Kumar there, waiting for a Magistrate or Gazetted officer. Thereafter, SI Parkash then went to the house of Dharam Pal alias Pappu and he saw Dharam Pal accused sitting on the cot under the electric light and two bags were lying in the store of fodder. Thereafter, SI Parkash then went to the house of Dharam Pal alias Pappu and he saw Dharam Pal accused sitting on the cot under the electric light and two bags were lying in the store of fodder. On seeing the police, accused Dharam Pal ran away from the spot by jumping over the rear wall. SI Parkash suspected some contraband in those bags also and there SI Parkash Chand left constable Tek Ram and Balbir and he waited for Magistrate or Gazetted officer at the spot. After leaving those bags under the supervision of above said witnesses, SI Parkash Chand went to the house of Jai Pal and after sometime Om Parkash Executive Magistrate came at the spot and SI Parkash Chand narrated the facts to him and on his directions four bags lying in the house of Jai Pal were checked and were found to contain poppy husk. On weighing, each of the bag contained 39.500 kgs. poppy husk out of which samples of 250 grams each were separated. The samples and the residue were made into different parcels and were sealed with seal JS. The sample seal impression was also prepared and seal after use was handed over to Om Parkash Executive Magistrate. All the parcels were taken into police possession vide memo Ex.PD attested by witnesses.” 3. 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 the following witnesses: PW1Constable Ajit Singh, took away the sample parcels to FSL Madhuban. PW2HC Bal Kishan, the then MHC of the Police Station Nissing. PW3 Om Parkash, Naib Tehsildar, under whose supervision search was conducted and poppy husk was recovered. PW4Inspector Devinder Kumar, the then SHO of the police station. PW5SI Parkash Chand, the Investigating Officer of the case. PW6SI Jagdev Singh is a recovery witness. 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. They examined Shri Chander as DW1. 6. PW4Inspector Devinder Kumar, the then SHO of the police station. PW5SI Parkash Chand, the Investigating Officer of the case. PW6SI Jagdev Singh is a recovery witness. 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. They examined Shri Chander as DW1. 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 appeal has been directed by the appellants, which was admitted by this Court on 01.10.2004. 8. The learned counsel for the appellants contends that the identity of the accused appellants is not proved in the instant case. It has come in the evidence that none of the members of the police party knew the accused appellants previously. Therefore, the statement of the Investigating Officer, Parkash Chand, that on seeing the police, the accused appellants Jai Pal, Gurnam Singh and Dharam Pal, ran away from the spot, cannot be believed as at the time of the raid, the I.O. did not know their identity. The learned counsel further contends that once the prosecution has projected a story that the raid was conducted in pursuance of the secret information and the accused appellants were caught unaware, it is hard to believe that the police party allowed all the accused to run away from the spot. The learned counsel further contends that conscious possession of the contraband is not proved on record. In both the cases, the contraband was allegedly recovered lying in the fodder stores. The prosecution has not been able to prove that the houses in question belonged to the accused and how many other members had been sharing the premises. The learned counsel further contends that the non-joining of any independent witness at the time of alleged recovery also makes the prosecution case doubtful in the light of the fact that the I.O. himself has admitted in his cross-examination that various public persons were present. The learned counsel further contends that there are material contradictions in the statements of the prosecution witnesses. As per the statement of the Investigating Officer, Parkash Chand, PW5, the seals were broken. 9. The learned counsel further contends that there are material contradictions in the statements of the prosecution witnesses. As per the statement of the Investigating Officer, Parkash Chand, PW5, the seals were broken. 9. On the other hand, the learned State counsel has vehemently argued that all the provisions enshrined in the NDPS Act, have been complied with in the instant case. On receipt of the secret information by PW5, Parkash Chand, he sent the intimation to the superior officer (Ex.PB). The question of making the offer to the accused appellants under Section 42 of the NDPS Act, does not arise as the accused fled away from the spot. The learned State counsel further contends that the identity of the accused appellants cannot be said to be doubtful inasmuch as their names find mention in the ruqa, Ex.PB, FIR, Ex.PB/1 and the recovery memo. The learned counsel further contends that the question of false implication of the accused appellants does not arise in the instant case in view of the heavy recovery and the fact that there was no previous enmity of the police officials with them. The learned counsel further contends that total 12 samples were drawn and only 6 out of them were sent to the FSL. Only the seals of the samples which were not sent to the FSL were found broken. 10. I have heard learned counsel for the parties and perused the record with their able assistance. 11. As per the prosecution story, on 01.09.1999, at about 11.00 p.m., the Investigating Officer, Parkash Chand, along with other police officials was on patrolling in the Nissing town. On receipt of secret information that Gurnam Singh used to sell poppy straw and stored it in the houses of Dharam Pal and Jai Pal, raiding party was formed and raid was conducted. Firstly, the police party raided the house of Jai Pal. SI Parkash knocked the door, on seeing the police, both Jai Pal and Gurnam Singh, ran away from the spot. After effecting recovery, the police party headed towards the house of Dharam Pal @ Pappu. He as well, on seeing the police party, fled away after scaling the rear wall. Firstly, the police party raided the house of Jai Pal. SI Parkash knocked the door, on seeing the police, both Jai Pal and Gurnam Singh, ran away from the spot. After effecting recovery, the police party headed towards the house of Dharam Pal @ Pappu. He as well, on seeing the police party, fled away after scaling the rear wall. Nothing has come on record to show that any effort, if at all, was made to nab the accused at the spot or as to how in the face of raiding party consisting of able bodied trained police officials, the accused succeeded in running away. Moreover, there is no reference of the steps taking by the police at the time of raiding the house of Dharam Pal, after the accused appellants, Jai Pal and Gurnam Singh. In the considered opinion of this Court, either the version put forth by the prosecution, as discussed above, is completely false, or it speaks volumes about the failure of the police in discharge of its duty. In both the eventualities, benefit thereof has to be extended to the accused appellants. 12. Another important aspect of the matter is regarding the identity of the accused-appellants. The prosecution story says that the secret informer had mentioned their names. During his examintion, PW5, Parkash Chand, Investigating Officer, stated that when they went to the house of Jaipal, they saw Jai Pal and Gurnam Singh talking to each other in the courtyard of the house of Jaipal. He has further stated that when they went to the house of Dharam Pal @ Pappu, he saw accused Dharam Pal sitting on the cot under the electric light. However, during his cross-examination, this witness has admitted that he did not know the accused persons prior to this case. He has further stated that some neighbourers, ladies were present inside both the houses, when they raided, but he did not record their statements. Even after their arrest, no test identification parade was carried out to ascertain their identity. In the circumstances, even if for the sake of argument, the prosecution story is believed, still it cannot be conclusively said that the persons who ran from the spot at the time of raid were the accused appellants. 13. In the instant case, the alleged recovery was effected on the basis of secret information received by the Investigating Officer. In the circumstances, even if for the sake of argument, the prosecution story is believed, still it cannot be conclusively said that the persons who ran from the spot at the time of raid were the accused appellants. 13. In the instant case, the alleged recovery was effected on the basis of secret information received by the Investigating Officer. The places of alleged recovery are the houses of the accusedappellants which are enclosed places. As per Section 100 (4) Cr.P.C., it was mandatory for the raiding party to associate two or more independent and respectable inhabitants of the locality where the search was to be conducted. From the statement of PW5Parkash Chand, it emerges that many persons were available at the time of raid but nobody was joined in the investigation. Mere statement by the Investigating Officer that he had tried to associate some respectables of the locality but none was available, is not sufficient to bypass the said provision. 14. Admittedly, the accused appellants were not apprehended on the spot. The recovery in both the incidents was effected from the fodder stores. No effort was made to ascertain the ownership of the houses wherein the raids were conducted. It has also not come on record as to who were the other occupants of the house, and whether any tenant was also staying there or not at the relevant time. In the circumstances, it can safely be concluded that conscious possession of the accused appellants is not proved in this case. 15 In the cases under the NDPS Act, the antecedents of the accused are of material consequence. From the perusal of the custody certificates already placed on record, it emerges that the accused appellants are not involved in any other case, much less under the NDPS Act. 16. As a cumulative effect of the above discussion, this Court is of the considered opinion that the prosecution has miserably failed to prove its case beyond reasonable shadow of doubt, therefore, the present appeal deserves to succeed. It is ordered accordingly. The impugned judgment of conviction and order of sentence, passed against the appellants, is hereby set aside and they are acquitted of the charges framed against them. The appellants are stated to be on bail. Their bail bonds shall stand discharged. Allowed.