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2013 DIGILAW 338 (PNJ)

Tara Ram @ Tara v. State of Punjab

2013-03-12

HEMANT GUPTA, RITU BAHRI

body2013
JUDGMENT HEMANT GUPTA, J. (Oral) This order shall dispose of aforementioned three appeals arising out of the same first information report, but two separate judgments. CRA No.977-DB of 2009 has been preferred by Tara Ram @ Tara against the judgment of conviction and order of sentence dated 19.10.2009 passed by the Judge, Special Court, Nawanshahr, whereby he was convicted for an offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as “the Act”) and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs.1,00,000/-and in default of payment of fine to further undergo rigorous imprisonment for one year. CRA Nos.1373-SB of 2007 and 1423SB of 2007 have been preferred by accused-appellants Gurdev Singh and Sham Singh respectively against the judgment of conviction and order of sentence dated 06.07.2007 passed by the Judge, Special Court, Nawanshahr, whereby they were convicted for an offence punishable under Section 15 of the Act and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/-each and in default of payment of fine to further undergo rigorous imprisonment for six months. Since all the appeals have arisen out of F.I.R No.54 dated 28.05.2003 and have identical facts, the same are taken up for decision together. However, for facility of reference, the facts are taken from CRA No.977-DB of 2009. While patrolling in the area of bus stand village Garcha at about 6 P.M. on 28.05.2003, S.I. Satnam Singh received a secret information to the effect that four persons namely Nimma, Sham Singh, Gurdev Singh and Tara Ram @ Tara were sitting on the bank of Satluj River and that they were having a huge quantity of poppy husk in their possession. On receipt of such information, he sent the ruqa Ex.PC to the police station, on the basis of which FIR Ex.PD was lodged. Thereafter, the police party headed by SI Satnam Singh proceeded towards the bank of Satluj river. It is the stand of the prosecution that when the police party was about 40 yards from the above named persons, the named persons jumped into the river and escaped from the arms of law. After the accused escaped from the police, the poppy husk contained in 13 bags weighing 35 kgs each was taken into possession vide recovery memo Ex.PE. After the accused escaped from the police, the poppy husk contained in 13 bags weighing 35 kgs each was taken into possession vide recovery memo Ex.PE. The samples of such poppy husk was sent for chemical examination and vide report Ex.PH, it was reported that the samples were of poppy husk. Gurdev Singh and Sham Singh were arrested on 09.04.2004 and 23.08.2004 respectively, whereas Tara Ram @ Tara and Nimma were declared proclaimed offender. However, accused Tara Ram @ Tara was arrested on 17.07.2007. After completion of the investigation and necessary formalities, they were made to stand trial separately. To prove its case, the prosecution examined SI Satnam Singh – the Investigating Officer as P.W.2, ASI Surinder Singh as P.W.1 and DSP Jagtar Singh – a Gazetted Officer as P.W.4 apart from examining the other witnesses of formal nature. While appearing in the witness-box, PW-2 SI Satnam Singh – the Investigating Officer has deposed that when the police party was at a distance of about 40 yards from the spot, the accused ran away from the spot by jumping into the river. He identified accused Tara. ASI Surinder Singh and SI Varinder Kumar identified all the accused. Jeet Ram, an independent witness joined in investigations, had also identified all the accused, who ran away from the spot. He deposed that the accused are the same persons, who ran away from the spot. In the cross-examination, he stated that he did not know the accused prior to the recovery. No test identification parade was got conducted by him. They were 9-10 persons in the raiding party and were armed with weapons. They did not fire upon the accused. They were physically fit to chase the accused. The river was at a distance of 1/2 km from the place of recovery. ASI Surinder Singh while appearing as P.W.1 deposed that the accused were identified by him and Jeet Ram. In the cross-examination, he stated that he did not know the accused personally and that the area of river where the water flows is about 1 km from the place of recovery. P.W.4 DSP Jagtar Singh stated that the accused were identified by Jeet Ram, SI Varinder Kumar, ASI Surinder Singh and SI Satnam Singh. In the cross-examination, he stated that he did not know the accused personally and that the area of river where the water flows is about 1 km from the place of recovery. P.W.4 DSP Jagtar Singh stated that the accused were identified by Jeet Ram, SI Varinder Kumar, ASI Surinder Singh and SI Satnam Singh. In the cross-examination, he admitted that the police party was consisted of 1112 persons and all of them were in uniform and they did not use any fire arm to apprehend the accused. After going through the evidence on record, the learned trial Court convicted and sentenced the accused separately, as mentioned above. However, we find that the reasoning given by the trial Court that since all the accused were identified by SI Varinder Kumar and ASI Surinder Singh, therefore, there is no doubt regarding the identity of the accused persons, suffers from patent illegality and perversity. In fact, P.W.2 SI Satnam Singh, author of the F.I.R and the Investigating Officer deposed that the accused were identified by him and Jeet Ram and that he did not know any of the accused prior to the recovery. Similarly, ASI Surinder Singh when appeared as PW-1 shifts the burden of identification on SI Satnam Singh – the Investigating Officer and SI Varinder Kumar and Jeet Ram in cases against Gurdev Singh and Sham Singh though in case against Tara Ram, he stated that he identified the accused. The independent witness namely Jeet Ram was given up. Therefore, there is a material contradiction as to which police official identified the accused. None of the police official knew the accused prior to the recovery, as stated by them in their statements on oath before the Court. The mere fact that the secret informer has given the names of the accused, which find mention in the F.I.R, is not sufficient to infer that the four persons namely Nimma, Sham Singh, Gurdev Singh and Tara Ram @ Tara are the same persons, who were sitting on the bags of poppy husk and that after seeing the police party, they jumped into the river. In the absence of proof of identification and the fact that appellant Gurdev Singh was arrested after 10 months; appellant Sham Singh was arrested after 15 months and appellant Tara Ram @ Tara was arrested after 4 years of the recovery, it is impossible to believe that the appellants were the same persons, who were at the place of the recovery and escaped in the presence of 9-10 armed police officials. In view of the above, by giving benefit of doubt, we acquit all the appellants from the charges framed against them. They shall be set at liberty forthwith, if not required in any other case.