Punjab-Haryana High Court
Bakshish Singh Alias Pappu vs State Of Punjab on 2 April, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(i) Crl. Appeal No.D-554-DB of 2011
Date of Decision: April 02, 2013
Bakshish Singh alias Pappu
...Appellant
VERSUS
State of Punjab
...Respondent
(ii) Crl. Appeal No.D-804-DB of 2011
Bakshinder Singh alias Bhupinder Singh alias Bhinda
...Appellant
VERSUS
State of Punjab
...Respondent
(iii) Crl. Appeal No.D-605-DB of 2012
Makhan Singh alias Makha
...Appellant
VERSUS
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE INDERJIT SINGH
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
Present: Mr.Ashok Giri, Advocate, for the appellant
(in CRA No.D-554-DB of 2011)
Mr.R.S.Cheema, Senior Advocate with
Mr.A.S.Cheema, Advocate for the appellant.
(in CRA No.D-804-DB of 2011)
Mr.Karan Bhardwaj, Advocate for the appellant.
(in CRA No.D-605-DB of 2012)
Mr.B.S.Bhalla, Addl. Advocate General, Punjab
for the respondent-State.
****
INDERJIT SINGH, J.
This judgment shall dispose of three connected criminal Crl. Appeal No.D-554-DB of 2011 & connected appeals -2- appeals i.e. CRA No.D-554-DB of 2011, CRA No.D-804-DB of 2011 and CRA No.D-605-DB of 2012 arising out of the same judgment of conviction and order of sentence dated 23.05.2011 passed by Judge, Special Court, Amritsar convicting and sentencing the appellants to undergo rigorous imprisonment for fifteen years and to pay a fine of ` 1,50,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of one and half year each, under Section 15 of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. They were further held guilty and convicted and sentenced to undergo rigorous imprisonment for fifteen years and to pay a fine of ` 1,50,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of one and half year each, under Section 29 of NDPS Act. Both the sentences were ordered to run concurrently.
The brief facts of the prosecution case are that on 25.06.2007 SI Dalbir Singh, Special Narcotic Cell, Punjab, Amritsar was present in his office when he received information that Bakshinder Singh @ Bhinda, a known smuggler used to supply poppy husk in the area of Jandiala by bringing the same from JK, Rajasthan and MP and he is having one truck bearing registration No.PB-08M- 0807 loaded with poppy husk and had parked it on the G.T. Road, near weighing scale in front of grain market, Jandiala and he is waiting for customers and if raid is conducted, recovery could be made. The Investigating Officer immediately informed Sh.Tulsi Ram, SSP, Special Narcotic Cell, Amritsar on telephone and a team was constituted. Then the Investigating Officer along with other police Crl. Appeal No.D-554-DB of 2011 & connected appeals -3- officials reached near Baba Deep Singh weighing scale near hotel Hay Day side and found that one truck bearing registration No.PB- 08M-0807 was parked there and police party also parked their vehicle there. The driver of the said truck fled away from the spot. Police party found one Maruti car bearing registration No.CH-01V-4758 on the back of the truck and the driver of the said car also managed to flee away. They found that one person was handing over the load by standing in the truck towards another person who was standing on the ground, who was loading the same in the said car and they were apprehended at the spot. The person standing in the truck told his name as Makhan Singh alias Makha while person who was standing on the ground told his name as Bakshish Singh alias Pappu. The third one who managed to escape was Bakshinder Singh alias Bhinda whereas the car driver who also fled away from the spot was Ranjit Singh alias Rana. Thereafter, SI Dalbir Singh introduced himself firstly to Makhan Singh and then to Bakshish Singh and told them that they have a legal right for their search from him or from a Gazetted Officer or from a Magistrate. Both the accused replied turn by turn that they want to be searched in presence of a Gazetted Officer. Then the Investigating Officer called DSP Rajpal Singh, Special Narcotic Cell, who reached at the spot. One Kulwant Singh, independent witness was also joined in the police party. DSP Rajpal Singh also disclosed his identity to both the accused and he also told them that he has suspicion that they have narcotic in their truck, car or in their possession and they have a legal right for their search in the presence of any Gazetted Officer or Magistrate. Both the accused reposed Crl. Appeal No.D-554-DB of 2011 & connected appeals -4- confidence in DSP Rajpal Singh and their consent memos were prepared. Then, on the direction of DSP Rajpal Singh, the Investigating Officer conducted search of the truck, which led to the recovery of fifteen gunny bags loaded inside the truck containing 30 kgs. of poppy husk each. Two samples of 250 gms. each were separated from each bag and separate sealed parcels were prepared. The sealed parcels and remaining poppy husk in gunny bags were sealed with the seal impression of 'DS' and DSP also affixed his seal 'RS' on the sealed parcels and gunny bags. On search of the car bearing registration No.CH-01V-4758, two bags containing 30 kgs. poppy husk each were recovered. Two samples of 250 gms. each were separated and sealed parcels were prepared. The two recovered gunny bags were also sealed and parcels were prepared. Case property was taken into police possession vide recovery memos Ex.P5 and Ex.P6. Accused were arrested. The aforesaid truck and car were also taken into police possession vide memos Ex.P11 and Ex.P12 respectively. During investigating, the Investigating Officer prepared seizure report under Section 57 of the NDPS Act, which was seen by DSP Rajpal Singh. Ruqa Ex.P13 was sent to the police station on the basis of which formal FIR was registered. Rough site plan was prepared. Statements of witnesses were recorded. On return, case property was produced before SHO Surinder Singh, who verified the facts, case property, accused and witnesses and affixed his seal impression 'SS' on the parcels and kept the case property in double lock-up. On the same day in the afternoon, the Investigating Officer took the above-said parcels along with case property and Crl. Appeal No.D-554-DB of 2011 & connected appeals -5- produced in the court of Illaqa Magistrate, who passed the order to produce the case property on 27.06.2007. Again, case property was redeposited with SHO Surinder Singh in intact condition. On 27.06.2007, the Investigating Officer again took the case property from SHO Surinder Singh and produced in the Court. Bulk of seventeen bags containing 29.500 kgs. poppy husk each and seventeen samples containing 250 grams poppy husk each were deposited in the judicial malkhana while other seventeen samples of 250 grams each were deposited with SHO Surinder Singh for sending the same to the office of Chemical Examiner.
On interrogation, Bakshish Singh suffered disclosure statement regarding parking of one scooter bearing registration No.PB-09C-8569 near grain market and then got recovered the same.
On 13.07.2007, Bakshinder Singh alias Bhupinder Singh alias Bhinda was arrested while trying to flee in Indica Car bearing registration No.PB-09G-7361. From the dashboard of the car, one RC No.PB-08M-0807 in the name of Bishan Singh was recovered and was taken into police possession. After necessary investigation, challan was presented against the accused-appellants, in the Court.
On presentation of challan, copies of challan and other documents were supplied to the accused-appellants under Section 207 Cr.P.C. Finding prima facie case, accused-appellants were charge-sheeted under Sections 15 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 SI Crl. Appeal No.D-554-DB of 2011 & connected appeals -6- Dalbir Singh, who is the investigating officer. He mainly deposed as per prosecution version and also regarding investigation conducted by him in the present case. PW-2 DSP Rajpal Singh, also deposed as per prosecution version and also regarding recovery effected from the accused. PW-3 Head Constable Nanak Singh mainly deposed that on 12.07.2007, SI/SHO Harkishan Singh handed over to him seventeen sealed sample parcels of poppy husk duly sealed with the seal of 'DS', 'SS', and 'RS' for depositing the same in the office of Chemical Examiner, Chandigarh along with sample seal impressions in the intact form and he deposited the sealed parcels on the same day without any tampering and handed over the receipt to SI Harkishan Singh. PW-4 Head Constable Puran Singh, is a formal witness, who tendered into evidence his affidavit Ex.P24. PW-5 SI Surinder Singh, who was working as SHO in police station on 26.06.2007 mainly deposed regarding production of case property, truck, car and the accused by SI Dalbir Singh, Investigating Officer and also deposed regarding verification of the facts by him. PW-6 Ramesh Kumar, Senior Manager, Punjab National Bank mainly deposed that bank account statement was attested by him and he has signed the same which is Ex.P33. Manjit Kaur (again marked as PW-6) mainly deposed that her husband Gurmit Singh had purchased one truck bearing registration No.DL-1GA-6332, which was sold to accused Bakshinder Singh for a consideration of ` 1,65,000/- and delivery of truck as well as documents pertaining to truck were handed over. In cross-examination, she stated that no writing was done in her presence. She did not know the exact terms and conditions of the Crl. Appeal No.D-554-DB of 2011 & connected appeals -7- agreement. She did not know accused Bakshinder Singh. She had never seen Bakshinder Singh on that day. She also stated that her statement was not recorded by the police. SI Harkrishan Singh (also marked as PW-6) mainly deposed regarding handing over the samples to Head Constable Nanak Singh for depositing the same with Chemical Examiner. PW-7 Shiv Kumar Sharma deposed that on 17.09.2005, a truck bearing registration No.DL-1GA-6332 was sold for ` 1,65,000/- by one Gurmit Singh to Bakshinder Singh and agreement to that effect was written in his presence. The photocopy of the same is Ex.P32 and delivery of the said truck was handed over to Bakshinder Singh. In cross-examination, he stated that he did not know Bakshinder Singh present in the Court, personally. He also did not know exact terms and conditions of the agreement. PW-8 Gurdip Singh, mainly deposed regarding taking of photographs Ex.P8/1 to PW8/4 of truck bearing registration No.PB-08M-0807 by visiting police station Jandiala, from its different locations/showing the hidden false cavities. PW-9 Head Constable Kulbir Singh is a formal witness, who tendered into evidence his affidavit Ex.PW9/A. PW-10 Inspector Sukhdev Singh mainly deposed that he gave application for verifying the ownership of Vespa scooter. PW-11 Prem Chand has not supported the prosecution version and was declared hostile. PW-12 Parkash Chand has also not supported the prosecution version and was declared hostile. Nirmal Kapur, Clerk (again marked as PW-12) mainly brought the record from DTO office regarding vehicle No.PB- 08M-0807 and as per record, this number was of the scooter, make of Bajaj and stood in the name of one Davinder Kumar. PW-13 Vineet Crl. Appeal No.D-554-DB of 2011 & connected appeals -8- Kumar, Inspector Food and Civil Supply office, mainly deposed regarding photocopy of ration card, which was verified by him and as per record, it was issued in the name of Bakshinder Singh. PW-14 Prem Lata wife of Nirmal Singh mainly deposed that Maruti car bearing registration No.CH-01V-4758 was registered in her name, which she had sold to her relative Tarlok Singh. She also stated that she has not got executed any affidavit or agreement from Tarlok Singh while selling the car. PW-15 Tarlok Singh has not supported the prosecution version and was declared hostile.
At the close of prosecution evidence, the accused- appellants were examined under Section 313 Cr.P.C. and they denied the correctness of the evidence and pleaded themselves as innocent.
On the basis of the evidence produced by the prosecution, accused-appellants were convicted and sentenced as stated above by the Judge, Special Court, Amritsar.
At the time of arguments, learned senior counsel for the appellant Bakshinder Singh alias Bhupinder Singh alias Bhinda argued that there is no cogent evidence on record to show involvement of Bakshinder Singh in the present case. His identity has not been established beyond doubt. He further argued that the only evidence produced by the prosecution is some documents, which have been recovered from the truck but there is no mention of these documents in the ruqa or FIR or remand papers. These documents are photocopies. Therefore, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. He next argued that there is also no cogent evidence to prove that truck was owned by Crl. Appeal No.D-554-DB of 2011 & connected appeals -9- appellant Bakshinder Singh.
Learned counsel for the appellants Bakshish Singh and Makhan Singh argued that these accused-appellants have been falsely implicated in the present case. No independent witness has been examined in the present case. The accused are poor persons and labourers. Learned counsel for the appellants further argued that mandatory provisions of NDPS Act have not been complied with. Learned counsel for the appellants, in the alternative, argued that sentence imposed upon the appellants Bakshish Singh and Makhan Singh is excessive and prayed for lenient view and to reduce the sentence imposed upon them.
On the other hand, learned Additional Advocate General, Punjab for the respondent-State has argued that case of the prosecution has been duly proved. Recovery has been duly proved by the PWs. He further argued that all mandatory provisions of NDPS Act have been complied with. Therefore, learned State counsel argued that the appeals having no merits, should be dismissed.
We have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellants and learned Addl. Advocate General, Punjab for the respondent-State.
From the evidence on record, we find merits in the arguments of learned senior counsel for the appellant Bakshinder Singh. There is no cogent evidence on record produced by the prosecution to show involvement of Bakshinder Singh in the present case. As per prosecution version and the statement of Investigating Officer, the driver of the truck ran away from the spot by taking benefit Crl. Appeal No.D-554-DB of 2011 & connected appeals -10- of dark. There is no evidence on the record that any of the person from the police party identified accused-appellant Bakshinder Singh. None of the person was known to Bakshinder Singh earlier to the recovery. No identification parade was conducted in the present case. Accused-appellant Bakshinder Singh is named in the present case on the basis of secret information as well as his name appeared in the disclosure statement of other accused. The disclosure statement/confession made by co-accused is not binding upon Bakshinder Singh. The two documents i.e. statement of account and the photocopy of the ration card are not mentioned in the ruqa or FIR or in the remand paper as argued by learned senior counsel for the appellant Bakshinder Singh. Therefore, if these documents would have been recovered from the truck at that time, then there must be mention of the same in the ruqa or FIR. Otherwise also, these documents are photocopies and original documents were not produced. Similarly, the recovery of one RC from the dashboard of the car in the name of Bishan Singh at the time of arrest of Bakshinder Singh regarding the truck No.PB-08M-0807 also itself does not prove the guilt of the appellant Bakshinder Singh. In no way from these documents, it can be held that Bakshinder Singh was driving the truck and he ran away from the spot. Moreover, there is no cogent evidence on record to show that Bakshinder Singh is owner of the said truck. Again, copy of agreement is a photocopy and original document has not come on the record. Secondly, the witness who deposed regarding this agreement was not knowing Bakshinder Singh personally. The wife of Gurmit Singh namely Manjit Kaur also does Crl. Appeal No.D-554-DB of 2011 & connected appeals -11- not know regarding terms and conditions of the agreement. She also not knowing appellant Bakshinder Singh earlier. Even in cross- examination, she stated that her statement has not been recorded by the police. Therefore, in view of the facts on record, we find that prosecution has failed to prove the guilt of accused Bakshinder Singh beyond reasonable doubt. A reasonable doubt exists in the prosecution case regarding accused-appellant Bakshinder Singh and benefit is to go to the accused. Hence, giving him benefit of doubt, Bakshinder Singh alias Bhupinder Singh alias Bhinda, he is held not guilty and acquitted of all the charges framed against him.
As regarding other appellants Bakshish Singh and Makhan Singh, we find that they were apprehended on the spot. Search was made in the presence of DSP Rajpal Singh, who has also appeared in the witness box in the present case and has proved the recovery of fifteen bags from the truck containing 30 kgs. of poppy husk each and two bags also containing 30 kgs. of poppy husk each from the car. PW-1 Dalbir Singh, Investigating Officer and PW-2 DSP Rajpal Singh made compliance of Section 50 of the NDPS Act. Otherwise also, there is no need for making compliance of Section 50 of NDPS Act. The recovery was not from the personal search of accused but from the truck and car. There was no need for recording the secret information in writing as Section 42 of NDPS Act will not apply in the present case. Rather, the recovery was from the truck and car, which were parked at public place. The Investigating Officer has also duly complied with the provisions of NDPS Act by producing the case property etc. before SHO Surinder Singh on return, after the recovery Crl. Appeal No.D-554-DB of 2011 & connected appeals -12- and further by producing the same before the Duty Magistrate and by also preparing the seizure report under Section 57 of the NDPS Act. The mere fact that independent witness has not been examined in the present case will not create any reasonable doubt. It is settled law that testimony of police official is as good as of any other witness unless some enmity or motive of the police official against the accused is alleged and proved. In the present case, there is no cogent defence evidence on the record to prove enmity or motive of police official against accused-appellants. PW-1 Dalbir Singh, who is of the rank of Sub Inspector and PW-2 DSP Rajpal Singh, have consistently deposed regarding the recovery of poppy husk from the accused. Conscious possession of the accused-appellants has also been duly proved. Prosecution has duly proved its case by leading cogent evidence regarding illegal possession of poppy husk by both above-said accused-appellants and offence under Section 15 of the NDPS Act has been duly proved beyond reasonable doubt. Therefore, we upheld the conviction of appellants Bakshish Singh alias Pappu and Makhan Singh alias Makha under Section 15 of the NDPS Act.
As regarding conviction under Section 29 of the NDPS Act, we find that there is no cogent evidence on the record regarding criminal conspiracy or abetment. Otherwise also, recovery has been effected from Bakshish Singh and Makhan Singh and therefore, question of abetment or criminal conspiracy between them does not arise. Therefore, conviction of Bakshish Singh and Makhan Singh under Section 29 of the NDPS Act is set aside.
Crl. Appeal No.D-554-DB of 2011 & connected appeals -13- As regarding the prayer for reduction of sentence, we find that, as argued, accused Bakshish Singh and Makhan Singh are first offenders and there is no previous conviction against them. They are poor persons and labourers and have to maintain their families. Keeping in view these facts, we order accused-appellants Bakshish Singh and Makhan Singh to undergo rigorous imprisonment for twelve years instead of fifteen years and to pay a fine of ` 1,00,000/- each instead of ` 1,50,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months each instead of one and half year, under Section 15 of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.
In view of the above, CRA No.D-804-DB of 2011 filed by Bakshinder Singh alias Bhupinder Singh alias Bhinda is allowed. He be released forthwith if he is not required in any other case.
Further, CRA No.D-554-DB of 2011 and CRA No.D-605- DB of 2012 are partly allowed by upholding the conviction under Section 15 of NDPS Act with the above-said modification in the sentence and setting aside conviction under Section 29 of the NDPS Act.
(JASBIR SINGH) (INDERJIT SINGH)
JUDGE JUDGE
April 02, 2013
Vgulati