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2023 DIGILAW 1634 (PNJ)

Gursev Singh v. State of Punjab

2023-05-04

SANJAY VASHISTH

body2023
JUDGMENT Mr. Sanjay Vashisth, J. .Appellant - Gursev Singh, aged 39 years (recorded at the time of conviction), has filed instant appeal against the judgment of conviction and order of sentence dated 01.03.2004, passed by the Ld. Judge, Special Court, Patiala (in short 'Ld. Trial Court'), in Sessions Case No. 19-T of 16.05.2002/04.12.2003, arising out of FIR No.17, dated 21.03.2002, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity 'the NDPS Act'), registered at Police Station Ghagga, Patiala. Accused-appellant was held guilty for commission of offence punishable under Section 15 of the NDPS Act, and was ordered to undergo sentence(s), as detailed hereunder in the tabulated form: Name of Convict Under Section Sentence Fine In Default Gursev Singh 15 of NDPS Act 10 years RI Rs. 1,00,000/- 01 year RI 2. Story propounded by the prosecution and mentioned in para No.2 of the judgment, is reproduced as under:- "on 21/3/2002 SI Bindu Bala along with her police party was present in Police Station Ghagga where she received secret information that accused Gursev Singh was selling poppy husk in Gurdialpura Beer and if raid is conducted he could be apprehended. SI Bindu Bala registered FIR (Ex.PB) on the basis of information and informed DSP Satvir Singh Atwal on phone to reach at the spot. Then the Police party proceeded to conduct raid and on the way Pala Singh P.W. met them in the area of village Kalawanu of the Bridge of Bhakra Canal. He was joined in the Police party after disclosing the facts of the case. DSP Satvir Singh Atwal met them at the Bus Stand of village Gurdialpura. On reaching the spot as per information the accused was found sitting on the bags under a tree. On seeing the police party accused ran away. He was identified by S.I. Bindu Bala, as he used to visit police station Ghagga in connection with the work of his companion. The police party found mouth of one bag open and remaining three bags were tied with the help of a jute string. On the direction of DSP, the Investigating Officer Bindu Bala conducted search of bags which were found to contain Chura Poppy heads. A plastic box was also lying in the bag, mouth of which was already open. The police party found mouth of one bag open and remaining three bags were tied with the help of a jute string. On the direction of DSP, the Investigating Officer Bindu Bala conducted search of bags which were found to contain Chura Poppy heads. A plastic box was also lying in the bag, mouth of which was already open. Two samples of 250 gms each out of all the bags were separated and remaining Chura Popply heads came to be 29 Kgs 500 grams each bag. Sample parcels and the residue parcels were sealed with the seal bearing impression BB of Bindu Bala, SI and SS of DSP Satvir Singh. Specimen impression of seal used (Ex.P1) was also prepared. Both the seals after use were handed over to P.W. Pala Singh. Seizure Memo (Ex.PC) of case property was prepared. Visual site plan (Ex.PD) was prepared. On return to the Police Station case property was produced before SI Ajaib Singh who verified factum of recovery and found the same to be correct. He also affixed his seal bearing impression AS on the case property and deposited the same with MHC Satnam Singh in presence of SI Bindu Bala. On the next day ASI Karan Singh was directed by SI Bindu Bala to produce the case property before Illaqa Magistrate vide request (Ex.PE) and he complied with the same. On 23/2/2002 SI Bindu Bala was present at bus stand Ghaga along with other Police officials where Surjit Singh produced accused Gursev Singh before her. Accused was formally arrested and grounds of arrest (Ex.PF) were conveyed to him. Information Memo (Ex.PF/1) regarding arrest of the accused was also prepared. Personal Search Memo (Ex.PF/2) was also prepared. The sample was sent to the Forensic Science Laboratory and vide report Ex.PG the same was found to be that of Churra Poppy heads." 3. After completion of investigation, final report under Section 173 Cr.P.C. was submitted, and later-on, vide order dated 07.06.2002, accused/appellant was charge-sheeted by the Court under Section 15 of the NDPS Act, for keeping in possession 120 Kgs of Churra Poppy heads, without any permit or licence. 4. In order to prove its case, prosecution examined total 05 witnesses (PW1 to PW5), details of which are as under:- HC Satnam Singh, who appeared as PW1, and being a formal witness, he tendered his affidavit Ex.PA. 4. In order to prove its case, prosecution examined total 05 witnesses (PW1 to PW5), details of which are as under:- HC Satnam Singh, who appeared as PW1, and being a formal witness, he tendered his affidavit Ex.PA. SI Ajaib Singh, who appeared as PW2, was posted as SHO at Police Station Ghagga, and before him, SI Bindu Bala produced the case property, Pws etc, which were verified by him in compliance of Section 55 of the NDPS Act. SI Bindu Bala, who appeared as PW3, proved the receipt of secret information at the Police Station, and after forming of the police party/raiding team, went to effect the recovery and nab the accused. However, on seeing the police party, accused ran away, who was sitting on the bags under a tree. Said accused (appellant herein) was identified by SI Bindu Bala. Thus, being an Investigating Officer (I.O.) of the case, she proved the proceedings of investigation conducted by her. ASI Karan Singh, who appeared as PW4, also proved the investigation proceedings being a member of the police party headed by SI Bindu Bala (PW3). Ct. Kuldeep Singh, who appeared as PW5, tendered his formal affidavit in evidence as Ex.PG. 5. DSP - Satbir Singh Atwal, and SI - Tajinder Singh were given up as unnecessary. Independent witness - Pala Singh was given up being won-over. Said fact is recorded in the zimni order dated 12.12.2003 of the trial Court. Witness - Surjit Singh was also not examined being won over, and thereafter, evidence of prosecution was closed. 6. In the statement recorded under Section 313 Cr.P.C., appellant - Gursev Singh, explained his defense to the question No.14. For convenience, same is reproduced as under:- "Q.14 Do you want to say anything else ? Ans. I am innocent. False case has been planted upon me. No recovery was effected from me nor I deal in narcotics. I was taken from my house in the presence of respectables and later on false case was foisted upon me. Application in this regard was also sent to the Chief Minister, Punjab, Chandigarh by my uncle Sukhdev Singh." 7. After considering the evidence and stand taken by the appellant (accused), Ld. Trial Court convicted and sentenced the appellant, as detailed in the initial part of the appeal. Application in this regard was also sent to the Chief Minister, Punjab, Chandigarh by my uncle Sukhdev Singh." 7. After considering the evidence and stand taken by the appellant (accused), Ld. Trial Court convicted and sentenced the appellant, as detailed in the initial part of the appeal. Thus, challenging the impugned judgment, present appeal had been filed before this Court, which was admitted vide order dated 27.05.2004. Subsequently, vide order dated 08.03.2007, appellant was granted bail by suspending his remaining sentence. This is how the appeal has come up for hearing today. 8. While assailing the conviction of appellant, first of all, counsel argues that in the cross-examination of Investigation Officer i.e. SI Bindu Bala (PW3), it has come on record that:- 'they themselves were total five police officials, who left the police station. There were four gunmen with DSP, who were armed with assault rifles. The police party accompanying her was also having weapons. There were Balwant Singh, Ram Dia, Gurinder Singh and Chhota Singh (driver) in the police party, apart from Karan Singh (ASI). Neither of the police party or in the police party of DSP, were of age group of more than 45 years. It took about three hours to complete the entire proceedings at the spot.' From the said deposition, counsel for the appellant argues that the plantation of a false case upon the appellant is clear from the fact that despite the presence of about 11 police personnel armed with rifles, and none of them being above the age of 45 years, accused noticed and identified by them succeeded in running away. This is beyond probability. Even there is nothing mentioned about making of an attempt to chase the accused. Thus, story propounded by the police of reaching of the police party, as projected by the Investigating officer and other witnesses i.e. ASI Karan Singh (PW4), appears to be concocted one. 9. I have considered this submission in specific to examine the truthfulness of the situation, as explained by the prosecution. 10. In the statement of ASI Karan Singh (PW4) recorded on 17.10.2003, it is mentioned that on seeing the police party, he (accused/appellant) escaped from the spot. He was identified by SI Bindu Bala (PW3), and we chased him for some distance, but Gurdialpura Beer being a jungle, accused succeeded in escaping. 10. In the statement of ASI Karan Singh (PW4) recorded on 17.10.2003, it is mentioned that on seeing the police party, he (accused/appellant) escaped from the spot. He was identified by SI Bindu Bala (PW3), and we chased him for some distance, but Gurdialpura Beer being a jungle, accused succeeded in escaping. This part of deposition is completely missing in the statement of Investigating Officer. It is also noticed by the Court that in the statement of SI Bindu Bala (PW3) (main Investigating Officer) also it is completely missing, which was recorded on the same day i.e. 17.10.2023. 11. Otherwise also, it does not satisfy the conscious of the Court that in the presence of 11 armed police officials, and that too of young age, any accused almost of the same age group, would so easily succeed in running away from the spot. On this factual aspect, one judgment of this Court has been referred by Mr. H.S. Randhawa, counsel for the appellant, which was rendered in the case of Shashi Atwal and another v. State of Punjab, 2011(2) RCR (Criminal) 660, and is of much help to the appellant. Para No.10 of the same is reproduced hereunder:- "10. The story of absconding of the accused from the tenanted premises from its back-side does not appear to be plausible. About 12 police personnel, including the ASP had raided the premises in three vehicles (one police gypsy, one private jeep and one car). It has also come in evidence that nothing was visible from the main gate of the house. Therefore, the allegation that the police officers had seen the accused in the room, where Surender Singh was allegedly sewing the bag, cannot be believed. The room is the part of the big house. On two sides of the house in question, there are houses and on the third side there is a stadium. It has not been alleged as to through which side of the house, the accused succeeded in running by boarding the Car. Again, it is mentioned that the accused never knew that they could be apprehended and there was no passage or road on the back side of the house as per site-plan, then why they would park the car for the purpose of running from back-side. Again, it is mentioned that the accused never knew that they could be apprehended and there was no passage or road on the back side of the house as per site-plan, then why they would park the car for the purpose of running from back-side. It is also surprising that in presence of such big number of police personnel, the accused succeeded in running and the police party failed to nab them." 12. In the present case also there is no explanation that as to how and in what manner, accused succeeded in running away. Thus, argument addressed by counsel for the appellant, creates some doubt in the prosecution story. Ld. State counsel is unable to give any satisfactory reply to this argument. Observed accordingly. 13. Counsel for the appellant has further argued that police team/raiding party itself had joined one independent witness i.e. Pala Singh. But he has not been examined by the prosecution for authenticating the story propounded by them. Simply saying that the independent witness Pala Singh was not examined being won-over is not sufficient for prosecution, rather, to substantiate such allegation, there should be some material with the prosecution. On the other hand, Mr. Sandhu, AAG, Punjab argues that where huge quantity of contraband has been recovered, producing of independent witness is not a mandatory requirement. However, he could not point out any base of allegation of winning over of independent witness Pala Singh by the accused. Non-production of an independent witness without any substantial reason on record, would rather, create adverse inference that the witness was introduced in the case only for the sake of formality or the accused has been deprived of cross-examine to the said witness. In support of such submission, judgment of this Court rendered in CRA-S-433-SB- 2004, titled as, "Jaswinder Singh v. State of Punjab", decided on 21.12.2022, is worth to be relied upon, as similar proposition has already been dealt with by this Court. The relevant para No.11 of the said judgment says as under:- "11. Considering the submissions of Ld. Legal Aid Counsel for the appellant, this Court again find some force in it. First of all there are contradictions in the statements of the material witness, and that too of police witnesses, who are none other, but the members of the investigating agency right from the beginning. Considering the submissions of Ld. Legal Aid Counsel for the appellant, this Court again find some force in it. First of all there are contradictions in the statements of the material witness, and that too of police witnesses, who are none other, but the members of the investigating agency right from the beginning. Such discrepancies shows that no such recovery is affected from the alleged spot, rather, proceedings have been conducted at some other time and at some other place, may be by sitting in the police station. Moreover, no reason is available as to for what reason, independent witness - Om Parkash, was present at the time of recovery, and that too at 05:30 AM or 07:00 AM. In support of the non-examination of the alleged one independent witness, who was joined during investigation, Ld. Legal Aid Counsel also relies upon the judgment passed by this Court in case of Swaroop Singh v. State of Haryana, 2014(2) RCR (Criminal) 571. She further relies upon an another judgment of this Court rendered in case of Ram Pal Singh v. State of Punjab, 2017(4) Law Herald 3336, and submits that where the accused is facing allegations of serious crime with stricter provisions of punishment, in the absence of non-examination of independent witness, benefit of acquittal should be extended to the accused. Relevant para Nos. 13 and 14 of the aforesaid judgment, are reproduced hereunder: "13. There is no evidence that the police made any effort to conduct a raid at the house of the accused. This is a serious flaw in the prosecution case. The only independent witness Gurmail Singh was given up. He was the person to whom the seal was handed over. The prosecution also failed to produce the registration certificate of the scooter to show that it was owned by one of the accused. 14. Interestingly, Sarwan Singh made a casual statement in the examination-in-chief when he said that he knew the accused and had identified them. He was expected to disclose how he knew them. The accused were of different villages. He did not say that any case had been registered against either of them earlier. Such kind of statement could not have been accepted by the trial Court. He was expected to disclose how he knew them. The accused were of different villages. He did not say that any case had been registered against either of them earlier. Such kind of statement could not have been accepted by the trial Court. The prosecution had been unable to prove its case beyond all reasonable doubts and the trial Court had not given cogent reasons for accepting the statement of H.C. Sarwan Singh. The findings recorded by the Court below are set aside. The appeal is accepted. The accused is acquitted of the charges."." 14. The Gazetted Officer i.e. DSP Satbir Singh Atwal, who had been called by the Investigating Officer on the spot of raid, was also not examined, being unnecessary. This Court is unable to accept that how such an important witness was considered as unnecessary by the prosecution, who was the witness of the spot, after having been called by the Investigating Officer on receipt of the secret information, and after making up the mind to conduct raid for the purpose of recovery. Even DSP Satbir Singh Atwal was the witness of recovery, and was superior in rank to the Inspector/Investigating Officer, thus, by no means his statement can be considered as unnecessary for proving of the case of the prosecution. Rather, keeping such an important witness away from the witness-box would be considered that accused has been deprived to cross-examine the witness, so that truth may not be revealed. Thus, there is serious flaw in the case of the prosecution, where the Gazetted Officer has not been examined. 15. There is another submission made by Mr. H.S. Randhawa, counsel for the appellant that as per the case of the prosecution, accused was sitting on the bags. However, there is no material with the prosecution that how the bags were brought on the spot, and where those were found lying. In fact, source of transporting the bags should have been investigated by the Investigating Officer. Counsel relies upon the judgment of the Hon'ble Apex Court rendered in State of Punjab v. Balkar Singh, 2004(3) SCC 582 . The concluding part of the said judgment says as under:- "............. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The concluding part of the said judgment says as under:- "............. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of respondents at the place from where the bags of poppy husk was recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Session Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court. The appeal is dismissed." 16. To counter those arguments, learned State counsel submits that case law(s) cited by the appellant is relating to the situation where the recovery was of 100 bags. However, in the present case, there is recovery of only four bags. 17. I have considered this objection of learned State counsel, but still is of the view that one cannot carry four bags of 30 Kgs. each, together to make it total 120 Kgs. Thus, because of lack of investigation to find out the source of transportation, story propounded by prosecution becomes more doubtful, in the backdrop already doubtful circumstances projected by the defense side. 18. Another argument addressed by counsel for the appellant is that conscious possession of the bag is not proved. As per allegations, appellant was sitting on the bags under a tree, and on seeing the police party, he succeeded in absconding. 18. Another argument addressed by counsel for the appellant is that conscious possession of the bag is not proved. As per allegations, appellant was sitting on the bags under a tree, and on seeing the police party, he succeeded in absconding. Counsel submits that in this regard, no evidence/question has been put to the appellant that said bags were brought by you and you were having the knowledge of the contraband over which you were sitting, suggesting him to be in conscious possession of the contraband lying in the bag. In the statement made under Section 313 Cr.P.C., questions No.3 and 4, and its answers, as put to the appellant are reproduced hereunder for convenience:- "Q.3 It is further in evidence against you that on seeing the police party you ran away and before that were sitting on the bags under the tree. You were identified by SI Bindu Bala as you used to visit the police station Ghagga in connection with work of your companion. What have you to say in this regard ? Ans. It is incorrect. Q.4 It is further in evidence against you that the mouth of one bag was found open and the remaining three bags were found tied with help of threat (sebba). One plastic box was also found lying there. On the direction of DSP, SI Bindu Bala conducted search of the bags which were found to contain churra poppy heads. What have you to say in this regard ? Ans. It is incorrect." At best, it can be said that factual aspect of the prosecution story has been put to the accused, but from any angle, it does not mean that evidence of his being in conscious possession of the contraband i.e. of four bags of 30 kg each poppy chura heads/poppy husk has been put to the accused, as evidence of prosecution while submitting the same at the time of recording of statement of the accused. 19. In support of his submission, counsel relies upon the judgment of this Hon'ble Court in Ram Swaroop and others v. State of Haryana. Para No.21 of the said judgment is reproduced as under:- "21. A perusal of the charge framed against the accused-appellants on 8.4.1996 reveals that the word 'conscious' is missing. Similarly, in the statements of the accused recorded under Section 313 of the Code of Criminal Procedure, the word 'conscious' is missing. Para No.21 of the said judgment is reproduced as under:- "21. A perusal of the charge framed against the accused-appellants on 8.4.1996 reveals that the word 'conscious' is missing. Similarly, in the statements of the accused recorded under Section 313 of the Code of Criminal Procedure, the word 'conscious' is missing. The prosecution was duty bound not only to prove that the accused were in possession of the contraband but to specifically prove that the accused were in "conscious possession" of the contraband. The accused were not put to question as to whether they were in conscious possession of the poppy-husk. Such omission has also resulted to the prejudice of the accused." 20. There is another big lacuna in the case of the prosecution that as per the Investigating Officer, appellant had succeeded in running away from the spot, but was identified by the Investigating Officer. There is nothing detailed in the evidence that for what purpose appellant had been visiting to the Police Station, making it easier for the Investigating Officer to establish his identity. Without there being any satisfactory reason of identification, simply saying that one of the police officers identified the accused, is not sufficient to believe. Not only this, appellant was not directly arrested, but was produced by one witness Surjit Singh, who at best could be witness of Extra Judicial Confession (E.J.C.). Again, same proposition as observed qua non-examination of an independent witness, by declaring him as won-over, and already having been observed by this Court, would apply qua the witness of prosecution of the standard of E.J.C. also. Thus, simply saying the witness being won-over, though, there is no material to substantiate the allegation of winning over, is not sufficient for the prosecution for not producing such witness in the witness-box and depriving the accused to dig out the truth by affording him chance of cross-examination. In the present case, prosecution has failed to examine the star witness, who produced the accused before the police resulting into the arrest of accused. It is prosecution's case that before Surjit Singh (witness), accused had already confessed the guilt. Thus, arrest of the accused in itself is doubtful. 21. In the present case, prosecution has failed to examine the star witness, who produced the accused before the police resulting into the arrest of accused. It is prosecution's case that before Surjit Singh (witness), accused had already confessed the guilt. Thus, arrest of the accused in itself is doubtful. 21. After thoroughly examining the evidence led by the prosecution; taking into consideration the submissions made by both the sides; and relying upon the judgments cited by learned counsel for the appellants; I find that the prosecution has completely failed in proving the guilty of the accused/appellant beyond doubt. Rather, connectivity of the appellant with the recovered contraband is not established. Accordingly, judgment of conviction and order of sentence dated 01.03.2004, passed by Ld. Trial Court, are hereby set aside, and consequently, appeal is allowed by acquitting the appellant from all the charges levelled against him. Appeal stands disposed of.