Punjab-Haryana High Court
Bikram Singh And Another vs State Of Punjab on 9 May, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(i) Crl. Appeal No.D-613-DB of 2007
Date of Decision: May 09, 2013
Bikram Singh and another
...Appellants
VERSUS
State of Punjab
...Respondent
(ii) Crl. Appeal No.S-1959-SB of 2009
Kuldip Singh
...Appellant
VERSUS
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL
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.J.S.Mehandiratta, Advocate
Legal Aid Counsel, for the appellants.
(in CRA No.D-613-DB of 2007)
Mr.G.S.Kaura, Advocate
for the appellant.
(in CRA No.S-1959-SB of 2009)
Mr.B.S.Bhalla, Addl. Advocate General, Punjab
for the respondent-State.
****
INDERJIT SINGH, J.
This judgment shall dispose of two connected criminal appeals i.e. CRA No.D-613-DB of 2007 and CRA No.S-1959-SB of Crl. Appeal No.D-613-DB of 2007 & connected appeal -2- 2009 arising out of the same judgment of conviction and order of sentence dated 10.04.2007 passed by Judge, Special Court, Jalandhar convicting and sentencing the appellant Bikram Singh to undergo rigorous imprisonment for twelve years and to pay a fine of ` 1,50,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of eighteen months, under Section 21 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, whereas appellants Harpal Singh and Kuldip Singh were convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ` 1,00,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year each under Section 21 of the NDPS Act.
The brief facts of the prosecution case are that on 25.11.2005, Inspector Ravinder Pal Singh, SHO, police station, Division No.2, Jalandhar along with other police officials was present on the bridge of canal on Kapurthala road, Jalandhar. A white colour maruti car bearing registration No.PB-02K-9465 was signalled to stop, which stopped at a distance of 50 yards. The driver of the car tried to run away but he fell down. Three persons were apprehended from the said car. The car was driven by Bikram Singh. Kuldip Singh was sitting on co-driver seat and Harpal Snigh was sitting on the back seat. Then, the Investigating Officer asked all the three persons that he suspect some contraband in their possession and asked if they wanted their search in the presence of some Gazetted Officer or Magistrate. All of them said that they wanted their search in the Crl. Appeal No.D-613-DB of 2007 & connected appeal -3- presence of Gazetted Officer or Magistrate. Thereafter, the Investigating Officer sent the message to control room for sending the DSP. At about 10.00 P.M. DSP City-II Harkawalpreet Singh Khakh and Tehsildar Sh.A.P.Verma reached the spot. All three accused were produced before them. DSP Harkawalpreet Singh Khakh introduced himself to all three accused separately that he is a DSP and a Gazetted Officer. He also introduced Tehsildar A.P.Verma and asked them that if they wanted their search, it can be conducted in the presence of some other Gazetted Officer but all of them reposed confidence on them. The consent memos Ex.PD, Ex.PE and Ex.PF of Bikram Singh, Kuldip Singh and Harpal Singh were prepared respectively. DSP then sent SI Joginder Singh to call some private witness and also to bring weights and scale, who returned back after some time but could not bring private witness. On the direction of the DSP, the Investigating Officer firstly conducted personal search of Bikram Singh. One packet was recovered from the dub of the pant. From the said packet, heroin was recovered. Two samples of 10 grams each were drawn separately. The remaining heroin came out to be 980 grams. Both samples and case property were sealed with the seal of Investigating Officer bearing impression "RPS", seal of DSP bearing impression "HPS" and seal of Tehsildar bearing impression "APV". Sample seal impressions were prepared. Case property was taken into police possession vide recovery memo Ex.PG. Thereafter, the Investigating Officer conducted search of Kuldip Singh and from one handbag which was hanging on his right Crl. Appeal No.D-613-DB of 2007 & connected appeal -4- shoulder, another packet was recovered. Two samples of 10 grams each were drawn separately and remaining heroin came to be 480 grams. These were also sealed as stated above and taken into police possession vide recovery memo Ex.PH. From the handbag of Harpal Singh, heroin was recovered and after separating two samples of 10 grams each, remaining heroin came to be 480 grams. All the parcels were sealed with the seal impressions of Investigating Officer, DSP and Tehsildar and case property was taken into police possession vide recovery memo Ex.PI. Rough site plan of place of recovery Ex.PM was prepared. Ruqa Ex.PN was sent to police station on the basis of which formal FIR was registered. Accused-appellants were arrested. Statements of witnesses were recorded. On return, the case property was deposited with MHC Vijay Kumar. On 26.11.2005, in the morning, case property was again taken back from the MHC and was produced before Sh.D.K.Chaudahry, Illaqa Magistrate. He also drew one sample each from the case property. Photographer was also called when the case property was produced before the Illaqa Magistrate. Photographs were taken. Again the case property was deposited back with MHC on 26.11.2005. On receipt of FSL report Ex.PO, challan was presented against the accused-appellants.
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, appellants were charge- sheeted under Sections 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which they pleaded not guilty and claimed Crl. Appeal No.D-613-DB of 2007 & connected appeal -5- trial.
In support of its case, the prosecution examined PW-1 DSP Jagjit Singh, who at the time of recovery was Inspector/Incharge CIA Staff, Jalandhar and had joined the police party headed by Inspector Ravinder Pal Singh, SHO. He deposed regarding the recoveries from the accused-appellants and also the facts as per prosecution version. PW-2 Head Constable Vijay Kumar mainly deposed that on 26.11.2005 Inspector Ravinder Pal Singh, SHO deposited with him six samples and three parcels duly sealed with seal bearing impression "HPS", "RPS" and "APV". He further deposed that case property was again handed over to the Investigating Officer to produce the same before the Illaqa Magistrate. Again the case property was deposited back with him in the evening. He also deposed that three more parcels and case property were also sealed by the Magistrate with his seal impression "DKC". On 30.11.2005, three samples were handed over to Head Constable Uttam Singh for depositing the same with the Director, Forensic Science Laboratory. PW-3 Head Constable Uttam Singh deposed that on 30.11.2005, Head Constable Vijay Kumar gave three parcels sealed with seals bearing impression "RPS", "HPS" and "APV" along with docket. The same were deposited at Science Laboratory, Chandigarh. He further deposed that so long the case property remained in his possession, it remained intact. PW-4 Mohinder Singh, Photographer mainly deposed regarding taking photographs which are Ex.P1 to P13 and one CD. PW-5 DSP Harkawalpreet Singh Khakh, who was Crl. Appeal No.D-613-DB of 2007 & connected appeal -6- summoned on the spot by the Investigating Officer on 25.11.2005, deposed regarding consent memos and also the recoveries from the accused-appellants. PW-6 Inspector Ravinder Pal Singh, SHO, is the Investigating Officer. He deposed same facts as stated above by giving brief facts of the prosecution case.
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. Accused-appellants further deposed that no recovery of any contraband had been effected from them. As a matter of fact, they were lifted by the police of P.S. Division No.2, Jalandhar from their house stating that police had the secret information that they had kept illegal arms and ammunition. Nothing was recovered from them on interrogation and police demanded money for their release. They further pleaded that one Lakha Lahoria a known smuggler of Jalandhar was in the custody in the recovery of huge amount of contraband. When they remained unable to pay the money, the police planted the contraband on them and Lakha Lahoria was let off by the police by some under-hand dealing. They further pleaded that they have no such previous record of indulging in such narcotic activity.
In defence, accused examined DW-1 Gurnam Singh, who deposed that on 25.11.2005, 5-6 persons came on a vehicle and enquired about Harpal Singh. He told them about Harpal Singh. Those persons went to the shop of Harpal Singh and asked him to sit in their vehicle. On the next day, telegrams were sent by the wife of Crl. Appeal No.D-613-DB of 2007 & connected appeal -7- Harpal Singh to Chief Justice of India, Chief Minister, Punjab and DGP which are mark X1, X2 and X3. He further deposed that in his presence, no recovery was effected from Harpal Singh. DW-2 Lakhwinder Singh mainly deposed regarding Bikram Singh that 6-7 persons in plain clothes came in gypsy. These persons enquired about Bikram Singh and asked him to come along with them. DW-2 enquired from them as to why they were taking him but they stopped him from talking. On the next day, he came to know about this case. He further deposed that prior to this, Bikram Singh was never involved in any other case. DW-3 Sarwan Singh also deposed almost the same facts regarding taking of Kuldip Singh. He also deposed that in his presence, no recovery was effected from Kuldip Singh. DW-4 Head Constable Rajiv Kumar brought the roznamcha. As per rapat No.28 dated 25.11.2005, there is entry regarding departure of police party at about 8.20 P.M. It is regarding patrolling duty. There is no reference of naka bandi at a particular place. As per rapat No.38 dated 26.11.2005, arrival of police party is shown at 2.30 A.M. in the police station but in this rapat there is no reference of wireless message given to the DSP and to the Tehsildar. In the rapat, there is no mention as to from where the recovery was effected and from where the accused were arrested. He also brought register No.19. As per entry No.453, there is no reference of depositing of sample seal impressions. DW-5 ASI Baldev Singh mainly brought the certificate regarding destruction of wireless message after one year.
On the basis of the evidence produced by the prosecution, Crl. Appeal No.D-613-DB of 2007 & connected appeal -8- accused-appellants were convicted and sentenced as stated above by the Judge Special Court, Jalandhar.
At the time of arguments, learned counsel for the appellants argued that there was secret information with the Investigating Officer and the appellants were apprehended, as per prosecution version, on the basis of secret information but there is non-compliance of Section 42 of the NDPS Act in this case. He further argued that the documents in the present case are fabricated and prepared later on. FIR number is already on the recovery memos and other documents, which shows that the documents were prepared later on. He next argued that in the present case, PW-5 DSP Harkawalpreet Singh Khakh has stated that personal search of the accused was effected after the recovery, which creates doubt in the prosecution case. Learned counsel for the appellants further argued that Tehsildar, who was with the police party was not examined, which also creates reasonable doubt regarding the recovery. He next argued that inventory was not prepared on the spot. He further argued that PW-6 Inspector Ravinder Pal Singh had stated that contraband was in granule form whereas PW-5 DSP Harkawalpreet Singh Khakh had stated that it was in solid form. Learned counsel for the appellants argued that no independent witness was joined in this case, which further creates doubt in the prosecution version. Therefore, he argued that the accused-appellants are innocent and have been falsely implicated in the present case. Defence version is probable and appeals should be accepted.
Crl. Appeal No.D-613-DB of 2007 & connected appeal -9- On the other hand, learned Additional Advocate General, Punjab for the respondent-State has argued that case of prosecution has been duly proved. The Investigating Officer PW-6 Inspector Ravinder Pal Singh nowhere stated that they had secret information nor the FIR was registered on the basis of secret information. If any other PW says that they had secret information, it cannot be believed. In view of the documentary evidence on record, question of compliance of Section 42 of the NDPS Act does not arise. He further argued that FIR number was written on the documents after receiving the FIR registration number. Therefore, only on this ground, it cannot be held that documents were fabricated and prepared later on. There is no such evidence on record. Learned State counsel next argued that search was conducted in the presence of DSP and Tehsildar and contraband was not recovered before their arrival. He further argued that already a Gazetted Officer and recovery witness has been examined in the present case, therefore, there was no need to examine Tehsildar and this fact of non-examination of Tehsildar does not create any reasonable doubt in the prosecution version. Learned State counsel next argued that no independent witness was available to join in the investigation, therefore, question of examination of independent witness does not arise. He further argued that there is no material on the record to show that accused-appellants have been falsely implicated. There is no such cogent evidence to prove the defence version. Therefore, he argued that the appeals having no merit should be dismissed.
Crl. Appeal No.D-613-DB of 2007 & connected appeal -10- We have heard the learned counsel for the parties and with their assistance, have gone through the evidence on record minutely and very carefully.
From the evidence on record, we find no merits in the arguments of the learned counsel for the appellants. As per prosecution version, it is a case of chance recovery. The Investigating Officer PW-6 Inspector Ravinder Pal Singh nowhere has stated that he received any secret information. There is no document on the record to show that any secret information was received by the Investigating Officer. The mere fact that PW-5 DSP Harkawalpreet Singh Khakh voluntarily stated that they had secret information, cannot be believed. DSP was summoned on the spot after apprehending the accused-appellants and he came later on. Therefore, he cannot say as to whether there was any secret information prior to his arrival or not. Similarly, the statement of PW-1 DSP Jagjit Singh that they had secret information, also cannot be believed as this fact is not supported by any document on record nor this fact has been mentioned in his statement recorded under Section 161 Cr.P.C. Therefore, only on the basis of these statements in cross- examination of PWs, it cannot be held that police party was having secret information. Otherwise also, PW-1 DSP Jagjit Singh has nowhere stated that he received the secret information. He had only accompanied the police party headed by PW-6 Inspector Ravinder Pal Singh. It is nowhere the case of the prosecution that any other person was having secret information and he told that secret Crl. Appeal No.D-613-DB of 2007 & connected appeal -11- information to Investigating Officer. Therefore, from evidence on record, it cannot be held that the police party was having secret information against the accused-appellants. Hence, there was no need to reduce into writing any secret information and then to send the same to the senior officer etc. The mere fact that the FIR number has been written on the recovery memos etc. does not show that these documents were prepared later on. The recovery was effected at about 9.00 P.M. on 25.11.2005. As per DW-4 Head Constable Rajiv Kumar, police party returned to the police station at night at about 2.30 A.M. on 26.11.2005 and then case property was deposited with MHC. All these facts show that the case property was deposited on return at the earliest in the malkhana and in no way, it can be held that documents were fabricated or prepared later on. Rather, documents; copy of DDR and the copy of register No.19 of malkhana shows that the police party went from the police station at 8.20 P.M. on 25.11.2005 and came back at about 2.30 A.M. on 26.11.2005 and the case property was deposited in the malkhana. Therefore, oral statements of the PWs have been duly supported by documentary evidence. After the recovery and police proceedings, ruqa was sent to the police station, on the basis of which FIR was registered. Therefore, appearing of number of FIR on these documents itself cannot be held sufficient to hold that the documents have been fabricated. Further, the FIR number is to be written on these documents to connect the documents with the case and particulars of FIR can be written later on but there is nothing on the record to show Crl. Appeal No.D-613-DB of 2007 & connected appeal -12- that the recovery memos or other documents have been prepared later on. PWs have deposed on oath regarding the recovery consistently and there are no material contradictions and material improvements in their statements, which may go to the root of the case or which may make their statements unreliable. Therefore, in view of the consistent statements of the PWs on oath, we find that they are truthful, trustworthy and reliable witnesses. Mere non- examination of Tehsildar, in no way, can be held fatal to the prosecution case. Already, PW-5 DSP Harkawalpreet Singh, PW-6 Inspector Ravinder Pal Singh, Investigating Officer and PW-1 DSP Jagjit Singh, who was also Inspector at the time of recovery, have been examined. Tehsildar A.P.Verma was also to depose same facts. It is quality of evidence and not quantity of evidence which matters. Again, the argument that PW-6 Inspector Ravinder Pal Singh had stated that contraband was in granule form and PW-5 DSP Harkawalpreet Singh had stated that it was in solid form, means the same thing. It cannot be held as discrepancy. Granules are also treated as solid form. In no way, it can be held in liquid form or gas form. The recovery in the present case is a chance recovery at about 9.00 P.M. on 25.11.2005 on the road. There is no evidence that independent witnesses were available and police had intentionally not joined the independent witness. Even, as per prosecution version, on the arrival of PW-5 DSP Harkawalpreet Singh Khakh, SI Joginder Singh was sent to call some private witness and also to bring weights and scale etc. but SI Joginder Singh could not bring private witness. Crl. Appeal No.D-613-DB of 2007 & connected appeal -13- It is also in the chief examination of Investigating Officer PW-6 Inspector Ravinder Pal Singh that effort was made to join some passerby as private witness but nobody agreed. Otherwise also, it is settled law that testimony of police official is as good as of any other witness unless some enmity or motive is alleged and proved. In the present case, there is no cogent evidence on record to prove enmity or motive of the police officials to falsely implicate the accused- appellants. The defence version that this heroin was recovered from Lakha Lahoria; he was let off after taking bribe etc.; bribe was also demanded from the accused-appellants and they have been falsely implicated, is not supported and corroborated by any cogent evidence. It is in the statement of DW-1 Gurnam Singh that wife of appellant Harpal Singh had sent telegrams to the Chief Justice of India etc. but those telegrams were not proved as per law nor wife of appellant Harpal Singh has been examined in the present case. The statement of the DWs that 5-7 person took away accused-appellants from their house, cannot be believed. Such type of witnesses can be produced at any time. They have not sent any representations or complaints to the higher authorities regarding false implication of the accused. Therefore, defence version is not believable. There is no cogent evidence on record to show that accused-appellants are innocent and have been falsely implicated in the present case. In the present case, there is heavy recovery i.e. 20 kgs. of heroin from the accused- appellants, which cannot be planted upon them falsely. As regarding the fact that PW-5 DSP Harkawalpreet Singh Khakh stated in cross- Crl. Appeal No.D-613-DB of 2007 & connected appeal -14- examination that he was not present when the accused were personally searched after the recovery, it means that PW-5 is deposing regarding the personal search memos prepared at the time of their arrest. After the recoveries in the presence of DSP, it is possible that after preparing sealed parcels, the DSP might have left the place. Therefore, this fact also does not create any reasonable doubt in the prosecution version.
In view of the above, we find that prosecution has duly proved its case beyond reasonable doubt by leading cogent evidence. There are no material improvements or contradictions in the statements of PWs. The witnesses are trustworthy and reliable witnesses. Therefore, from the above, the judgment of conviction passed by the learned Judge, Special Court, Jalandhar is upheld.
Resultantly, CRA No.D-613-DB of 2007 and CRA No.S- 1959-SB of 2009 stand dismissed.
As accused-appellants Harpal Singh and Kuldip Singh are on bail, their bail bonds stand annulled and they are directed to surrender themselves before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against them in accordance with law.
(M.JEYAPAUL) (INDERJIT SINGH)
JUDGE JUDGE
May 09, 2013
Vgulati