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2013 DIGILAW 1610 (PNJ)

Baldev Singh v. State of Punjab

2013-12-05

JITENDRA CHAUHAN

body2013
Judgment Jitendra Chauhan, J. The present appeal has been filed assailing the judgment and order dated 09.12.2003, passed by the learned Judge, Special Court, Patiala, (hereinafter referred to as the trial Court), whereby, the appellants have been convicted for the commission of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, (for short, 'the Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-, or in default of payment of fine, to further undergo rigorous imprisonment for a period of one year each. 2. The brief facts of the present case as narrated in para 2 of the impugned judgment, are reproduced as under: “2. Briefly, the prosecution story is that on 22.12.2001 SI Hans Raj alongwith some other police officials were present at Danipur Chowk Village Danipur in connection with the search of bad elements. There he received secret information that the accused were in habit of selling poppy husk in the area and on that day they were coming from Patiala in Tamker no. MP-09-D-8176 for supplying poppy husk in the area of Village Bijalpur, Tellewal etc and if a naka is held on main Patiala Samana road, they could be apprehended red handed. Believing the information as reliable, SI Hans Raj sent ruqa Ex.PA to the police station for the registration of the case, on the basis of which formal FIR Ex.PA/1 was recorded. Then SI Hans Raj alongwith the police party held nakabandi at T.point of Village Dhainthal, where PW Darshan Singh met them per chances, and he was joined in the police party. SI Hans Raj started talking with PW Darshan Singh and in the meantime at about 9.30 am Tanker no. MP-09-D-8176 came from Patiala side and was signalled to stop. The truck stopped at some distance from them and all the accused tried to make good their escape, but they were chased and apprehended by the Investigator with the help of his fellow officials. On enquiry, all the accused disclosed their whereabouts. SI Hans Raj told the accused that he suspected some contraband in their possession and wanted to conduct their search. On enquiry, all the accused disclosed their whereabouts. SI Hans Raj told the accused that he suspected some contraband in their possession and wanted to conduct their search. He also apprised the accused that if they so desire, their search can be conducted in the presence of some Gazetted Officer or Magistrate, at which the accused stated that their search be conducted in the presence of some Gazetted Officer. Dissent statements of the accused were recorded which were signed by accused Baldev Singh and Nishan Singh and thumb marked by accused Joginder Singh and attested by the witnesses. Then SI Hans Raj flashed message to DSP Satbir Singh requesting him to reach at the spot, who arrived there within few minutes and disclosed his identity to the accused being a Gazetted Officer and DSP(D), Patiala. The DSP also told the accused that if they so desire, their search can be conducted in the presence of some other Gazetted Officer or Magistrate, but they all reposed confidence in the DSP. Consent statements of the accused were recorded. Then on the direction of the DSP, Investigator SI Hans Raj conducted the search of the tanker, which led to the recovery of 40 bags of poppy husk from the tanker meant for oil. Two samples of 250 gms. from each of the 40 bags were separated and made into separate parcels. The remaining poppy husk in each bag on weighment came to be 19.500 kgm. which was put in the bags and made into separate parcels. All the bags were numbered as 1 to 40 and their samples 1,1A to 40, 40A. All parcels were sealed with the seal bearing impression 'HR' of the Investigator and 'SS' of the DSP. Specimen seal impression was also prepared. Seal after use was handed over to PW Darshan Singh. Entire case property was also taken into possession. ....... .” 3. Upon presentation of challan, copies of the documents relied upon by the prosecution were supplied to the accused. 4. The learned trial Court, after finding prima facie case against the accused, charged them for commission of offence punishable under Sections 15, of the NDPS Act, to which they pleaded not guilty and claimed trial. 5. ....... .” 3. Upon presentation of challan, copies of the documents relied upon by the prosecution were supplied to the accused. 4. The learned trial Court, after finding prima facie case against the accused, charged them for commission of offence punishable under Sections 15, of the NDPS Act, to which they pleaded not guilty and claimed trial. 5. In order to substantiate its case against the accused, the prosecution examined following witnesses: PW1 SI Hans Raj; PW2 Inspector Sewa Singh; PW3 HC Udham Singh; PW4 Constable Karnail Singh; and PW5 ASI Balwant Singh. 6. During their examination under Section 313 Cr.P.C., the accused denied the prosecution allegations and pleaded false implication. It was pleaded that they were taken away by the police from their villages in the presence of respectable persons and later on this false case was foisted upon them. However, they did not produce any evidence in defence. 7. After hearing learned counsel for both the parties and considering the evidence on record, the learned trial Court convicted and sentenced the accused-appellants as detailed at the outset, whereas, the case of accused-Nishan Singh, being juvenile, was forwarded to Juvenile Board at Ludhiana, for hearing him on the quantum of sentence. 8. Hence, the present appeal, by accused-appellants, Baldev Singh and Joginder Singh, which was admitted by this Court on 06.04.2004. 9. The learned counsel for the appellants, at the very outset, submits that appellant-Joginder Singh, has since died. Accordingly, the present appeal qua appellant-Joginder Singh, abates. 10. The learned counsel contends that the only independent witness, Darshan Singh, was not examined by the prosecution. The recovery memos, which were signed by him, also remain unproved in the absence of his examination. He further contends that DSP Satbir Singh, who was called at the spot, was also not examined in the Court. The learned counsel further contends that the link evidence is completely missing in the instant case. The investigation is silent as regards the source of the huge contraband allegedly recovered from the accused. None of the accused was owner of the tanker in question, and the original owner thereof was not associated in the investigation. There is unexplained delay of nine days in sending the samples to the forensic science laboratory. Even the seal of Investigating Officer, SI Hans Raj, was returned on the next day by PW, Darshan Singh. None of the accused was owner of the tanker in question, and the original owner thereof was not associated in the investigation. There is unexplained delay of nine days in sending the samples to the forensic science laboratory. Even the seal of Investigating Officer, SI Hans Raj, was returned on the next day by PW, Darshan Singh. The learned counsel further contends that there are material discrepancies in the statements of the prosecution witnesses. 11. On the other hand, the learned State counsel, has vehemently argued that the prosecution has successfully proved its case against the accused-appellants. All the prosecution witnesses supported the case of the prosecution and were unanimous in their statements. The learned counsel further contends that keeping in view the huge recovery, there is no possibility of false implication. 12. I have heard the learned counsel for the parties and perused the record. 13. In the instant case, the most important aspect of the matter is the non-examination of the only alleged independent witness, Darshan Singh. The prosecution version says that he was joined in the police party beforehand. He had been shown present at the spot, at the time of alleged recovery. Seal after use was also handed over to this witness. The explanation rendered by the prosecution for his non-examination is that he was won over by the accused. However, if that was the case, the prosecution could have cross-examined him. The was a material witness who could have accorded credence to the prosecution version being the only independent witness. Moreover, another material witnesses, being DSP Sabir Singh, was also not examined by the prosecution for the reasons best known to it. This witness was called to the spot and recovery was effected in his presence. Therefore, for the non-examination of above material witnesses, adverse inference has to be drawn against the prosecution. 14. The accused-appellants are not the owner of the tanker from which the recovery was allegedly effected. The prosecution has not proved the ownership of the said tanker. There is nothing on record to explain as to how the appellants came into possession of the said tanker. There is no explanation of the source of such a huge quantity of the contraband. Therefore, the link evidence is completely missing in the present case. 15. The prosecution has not proved the ownership of the said tanker. There is nothing on record to explain as to how the appellants came into possession of the said tanker. There is no explanation of the source of such a huge quantity of the contraband. Therefore, the link evidence is completely missing in the present case. 15. A perusal of the custody certificate dated 15.05.2013, issued by the Superintendent, Central Jail, Patiala, which is already on the case file, reveals that the appellant-Baldev Singh, is not involved in any other case, either before or after the registration of the present FIR. Therefore, he does not have any criminal antecedents. There is no plausible explanation for not having examined the independent witness and the DSP who remained present at the spot during recovery. The State opted to give up DSP Satvir Singh, who was present in the Court on 01.09.2003, as unnecessary. The State also gave up PW Darshan Singh, as having been won over by the accused. The alleged recovery in this case is eight quintals of poppy husk, where stringent minimum punishment is provided in a special legislation, thus, it is the duty of the prosecution to produce material witnesses like a gazetted officer and an independent witness in the Court to test the truthfulness of the prosecution story. The prosecution has failed to prove its case beyond reasonable shadow of doubt. 16. Keeping in view the above facts and circumstances, this Court feels that the prosecution has failed to successfully prove its case against the accused-appellants, and therefore, they deserve the benefit of doubt. Accordingly, present appeal is allowed; impugned judgment and order dated 09.12.2003, passed by the learned trial Court, is hereby set aside; and the appellants are acquitted of the charges framed against them. The appellant-Baldev Singh, is stated to be on bail, his bail bonds shall stand discharged.