Punjab-Haryana High Court
Gulab Singh vs State Of Haryana on 2 June, 2011
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No.1619 SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1619 SB of 2008
Date of decision 2 .6.2011.
Gulab Singh
...... Appellant.
versus
State of Haryana
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Mr. Diwan S.Adlakha Advocate for the appellant.
Mr. Amit Rana, DAG, Haryana.
K.C.PURI, J.
Gulab Singh-appellant has directed the present appeal against the judgment dated 5.8.2008 and order dated 7.8.2008 passed by Shri Darshan Singh, learned Judge, Special Court, Yamuna Nagar at Jagadhri vide which appellant has been convicted under Section 15(c) of the Narcotic Drugs Psychotropic Substance Act, 1985 (hereinafter referred as -NDPS Act) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of `.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year whereas Criminal Appeal No.1619 SB of 2000 2 acquitted accused Ram Chander of the charges levelled against him.
2. Factual matrix comprising the FIR shorn of unnecessary details is that a police party headed by Inspector Baljeet Singh along with other police officials including ASI Dharamvir (PW-10) was present on Rampur Jattan-Chabutron road in connection with patrolling. Then he received a secret information that some persons indulged in smuggling of poppy husk would bring the poppy husk in a Maruti Esteem Car bearing registration No.HR-70-2543 from the side of village Chabutron and in the meanwhile a vehicle was found coming in a fast speed from that very side and when the said vehicle reached near the police party, a signal was made to stop the vehicle. The said vehicle had slowed down and in the head light of police gypsy, the registration number of the vehicle was found the same as disclosed by the secret informant. The said car was being driven by Gulab Singh and along with him, one Ram Chander was also sitting on the front seat. They were earlier known to the police party. Gulab Singh was earlier arrested in a case FIR No.168 of 2004 under Sections 420, 379 and 506 IPC registered at police station Bilaspur. On the rear seat of the car one more young boy was seated to whom they can identify on his appearance before them. The driver of the car namely Gulab Singh once slowed down the car on reaching near the police party but abruptly applied the race of the car. The car was chased by the police party. On reaching near village Rampur Jattan, within the phirini of village Rampur Jattan, Gulab Singh stopped his car by the side of the road and by taking advantage of darkness, the occupants of the car had slipped away. On the basis of suspicion about the availability of some intoxicant in the Esteem Car, SI Baljeet Singh gave Criminal Appeal No.1619 SB of 2000 3 telephonic information to Sajjan Singh DSP, Jagadhri that he was required to reach at the spot. By that time, Shakti Parshad, Karambir, Gurmej Singh, Sumer Chand and other villagers had attracted at the spot. The facts were disclosed to the DSP, Jagadhri and on the directions of the DSP, search of the car was conducted. Two gunny bags of jute were found in the dickey of the car and on checking the contents thereof were found to be poppy husk. Both the recovered bags along with car were photographed in the presence of the persons present there and they were asked to join the investigation but they showed their inability to become witness and they one by one slipped away from the spot. Two samples of 250 grams each were taken out of the recovered gunny bags, the samples and the remaining poppy husk, weighing 69kgs, were sealed into different parcels. The accused were arrested. Personal search memo of the accused was prepared. Rough site plan of the place of occurrence was also prepared. Statements of the witnesses were recorded. After completion of necessary investigation, challan against the accused was presented in the Court for trial.
3. On appearance of the accused, complete copies off challan papers were supplied to the accused. Charge under Section 15 of the Act was framed against the accused. The accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined Raj Pal (PW-
1), HC Jasbir Singh (PW-2), EHC Sher Singh (PW-3), HC Guljar Singh (PW-4), R.S.Dhanda, the then Judicial Magistrate Ist Class, Jagadhri as (PW-5), Roshan Lal (PW-6), Naresh Kumar (PW-7), ASP Sajjan Singh, Rohtak the then DSP, Jagadhri as (PW-8), Inspector Suraj Bhan as (PW-9), Criminal Appeal No.1619 SB of 2000 4 ASI Dharam Singh as (PW-10), Inspector Baljit Singh (PW-11), Darshan Singh as (PW-12) and closed its evidence after tendering into evidence certain documents.
5. After closure of the prosecution evidence, statements of the accused under Section 313 Cr.P.C., were recorded. The accused denied the incriminating evidence and claimed to be innocent.
6. Accused Gulab Singh pleaded that he has been falsely implicated by the police in collusion with and at the instance of Balbir Singh son of Santu Ram resident of Jaroda with whom he and his family members are having dispute of land worth lacs of rupees. Earlier said Balbir Singh also had implicated him and his family members in a false case under Sections 420 and 379 IPC in which he was discharged.
7. The accused examined Dr.R.K.Mahajan as (DW-1) and HC Shiv Ram appeared as (DW-2) in his defence.
8. The learned Special Judge, after hearing the learned counsel for the parties, convicted and sentenced the accused/appellant- Gulab Singh only as aforesaid whereas acquitted accused Ram Chander of the charges levelled against him vide judgment 5.8.2008, as aforesaid.
9. Feeling dissatisfied with the aforesaid judgment and order, the appellant-Gulab Singh has preferred the present appeal.
10. I have heard learned counsel for the appellant and learned Assistant Advocate General for the State of Punjab and have also carefully perused the case file.
11. Learned counsel for the appellant has submitted that according to the case of the prosecution the appellant was driver of the car. He Criminal Appeal No.1619 SB of 2000 5 stopped his car by the side of the road and by taking advantage of darkness, the occupants of the car had slipped away. There is no test identification parade conducted by the prosecution. The case of the prosecution is not proved beyond reasonable doubt. ASI Dharam Singh (PW-10) has categorically stated that he was not known to the accused Ram Chander earlier and he was told about by the official accompanying him. This witness has stated that accused Gulab Singh was arrested in another case in the year 2005 but he does not remember date and month of his arrest. This witness has further stated that he has seen the accused for the first time in the Court. ASI Dharam Singh (PW-10) has further stated that they have not seen the accused when he ran away. So, in the absence of any plausible evidence, case against appellant-Gulab Singh is not proved.
12. Learned counsel for the appellant has further submitted that Chowkidar was alleged to be present at the time of recovery but he has not been joined. Although, it is a case of secret information but no independent witness was joined.
13. Learned counsel for the appellant has further submitted that similarly situated accused has been acquitted, therefore, appellant is also entitled to the benefit of doubt.
14. Learned counsel for the appellant has further submitted that CFSL form was not prepared at the spot and that fact creates doubt in the prosecution story.
15. Learned counsel for the appellant has further submitted that in the present case, there is non-compliance of Section 55 of the Act also. It has been further submitted that case property was not kept by Criminal Appeal No.1619 SB of 2000 6 the Station House Officer/Incharge of police station in his custody.
16. Learned counsel for the appellant has further submitted that there is material contradictions between the testimony of Inspector Baljit Singh (PW-11) and ASI Dharam Singh as (PW-10). Inspector Baljit Singh (PW-11) has stated that accused turned the car back and ran away. However, ASI Dharam Singh as (PW-10) has stated that car was taken straightway and has not stated about the turning of the car towards back side. Both these witnesses are also discrepant regarding arranging of weighing scale. ASI Dharam Singh as (PW-10) has stated that weighing scales were arranged from the village whereas Inspector Baljit Singh (PW-
11) has stated that weighing scales were in the bag of investigating officer. ASI Dharam Singh as (PW-10) has stated that search of the dicky was made prior to the arrival of Deputy Superintendent of Police whereas Inspector Baljit Singh (PW-11) has stated that dicky was searched after arrival of the DSP. Both these witnesses are also discrepant regarding use of source of light. ASI Dharam Singh as (PW-10) has stated that light of Gypsy and torch were used whereas Inspector Baljit Singh (PW-11) has stated that bulb from adjoining house was the source of light.
17. It is further submitted that appellant is 15% disabled person and as such was not in a position to run away. So, the story of running away is wrong on the face of it.
18. Learned counsel for the appellant has further submitted that trial Court has not properly appreciated the documents on the file. From the report of Warrant Officer dated 8.10.2005, it is clear that on 7.10.2005 at 9.10p.m. Darshan Singh was in Police Station Ladwa. As per petition Criminal Appeal No.1619 SB of 2000 7 Ex.DD filed by Kuldip Singh in the Punjab and Haryana High Court, it has been clearly mentioned that said Darshan Singh is in illegal custody in Police Station Ladwa since 3.10.2005. The report of Warrant Officer is Ex.DE. The trial Court has placed much reliance on the statement of Darshan Singh regarding identification of the appellant. In fact, Darshan Singh was allowed to go only after an undertaking that he would depose against the appellant. In the ruka, Baljit Singh SI has mentioned that he knew both the accused earlier. His testimony regarding Ram Chander has not been accepted by the trial Court. It was a dark night and on that account also the police official could not identify the appellant. Appellant was not arrested at the spot. So, the prosecution has failed to prove the conscious possession of the contraband against the appellant. As per custody certificate placed on the file appellant has undergone incarceration for a period of two years seven months and twenty one days out of the substantive sentence of ten years awarded by the trial Court.
19. Learned State counsel has supported the judgment of the trial Court.
20. I have carefully considered the rival contentions raised by the learned counsel for the parties and have gone through the records of the case with their able assistance.
21. The main question raised by the learned counsel for the appellant is regarding identity of the accused. During the course of arguments, it is not disputed that none of the accused was arrested at the time of recovery. The prosecution version is that on 4.10.2005 secret information was received that some persons indulged in smuggling of poppy Criminal Appeal No.1619 SB of 2000 8 husk in Esteem Car No. HR-70-2543. The vehicle was stopped. Gulab Singh was driving the car. Ram Chander was sitting on the front seat. They were earlier known to the police party. Gulab Singh was earlier arrested in FIR No.168 of 2004. On the rear side seat of the car, one more person was found sitting, who can be identified on his appearance. The car was slow down but abruptly the driver applied the race. The police party chased them and on reaching village Rampur Jattan, Gulab Singh stopped the car and by taking advantage of darkness, the occupant of the car had slipped away. The time of occurrence was at 9.30p.m. Deputy Superintendent of Police and many persons of the village assembled and 69kgs of poppy husk was recovered from the dicky of the car in two gunny bags.
22. The trial Court, after appraisal of the evidence returned a finding that prosecution has failed to prove that identity of Ram Chander whereas the identity of Gulab Singh-appellant stood established. In paragraph No.31 onwards, this aspect of the case has been dealt in. The reasoning for establishing the identity is that name of Gulab Singh is mentioned in the ruka Ex.P-5 itself.
23. So far as the above said reasoning is concerned that applied to the case of Ram Chander co-accused also, as his name also appeared in the ruka. The other reasoning given by the trial Court is the statement of PW- 11 Inspector Baljit Singh. He has stated that he identified Gulab Singh as he was accused in FIR No.168 of 2004. Regarding FIR No.168 of 2004, SI Baljit Singh has stated that he has not investigated the case registered vide FIR No.168 of 2004 nor he ever came into contact of Gulab Singh in connection with the said case nor he was posted in the said police station at Criminal Appeal No.1619 SB of 2000 9 that time. This witness has further stated that he did not know the result of FIR No.168 of 2004 nor he knew whether the accused was discharged in that case. So, in case his statement in cross-examination is taken as a whole, in that case, it cannot be said that accused in case FIR No.168 of 2004 could have any acquittance with this witness.
24. In paragraph No.33 of the judgment, the trial Court has observed that Darshan Singh (PW-12), registered owner of the car, has corroborated the prosecution version about the identity of the accused Gulab Singh. However, the trial Court has not properly appreciated the documentary evidence produced by the accused in this regard. Kuldip Singh filed Criminal Writ Petition No.590 of 2005 under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus for release of Darshan Singh son of Santokh Singh i.e. registered owner of the car with the allegation that he has been illegally detained by ASI Ishem Singh since 3.10.2005 at about 4.30p.m., along with other police officials. The Punjab and Haryana High Court appointed a Warrant Officer, who submitted his report Ex.DE. As per this report, Warrant Officer visited the police station Ladwa at 9.10p.m. on 7.10.2005 and that Darshan Singh prosecution witness, in the present case, was found to be present in the said Police Station. Darshan Singh has also made the statement before the Warrant Officer that he has been illegally detained in the police station since 3.10.2005. Now, same Darshan Singh has come forward to state that he has given the Esteem Car in question to appellant Gulab Singh, that too without any payment. SI Darshan Singh during cross-examination has stated that he has not interrogated the registered owner of the Esteem Car. Criminal Appeal No.1619 SB of 2000 10 It was the duty of the investigating officer to find out who is the registered owner and who was driving the car. The argument advanced by the counsel for the appellant is that Darshan Singh might have come forward with the understanding that he would not be involved in the case. When Darshan Singh himself was in illegal detention on 3.10.2005, as such he was not in a position to hand over possession of the vehicle to the appellant on 4.10.2005. The learned trial Court has observed that since Darshan Singh has stated that he has given the car to appellant without any charges and on that account it should be presumed that he has given the car to the appellant for illegal purpose. Statement of Darshan Singh was got recorded by the police under Section 164 Cr.P.C., which shows that police wanted to be sure that this witness may not resile. It cannot be believed that without payment of any charges he would lend the car to the appellant for many days. According to this witness, the car was given on 1.10.2005 and was to be returned on 4.10.2005. So, the documentary evidence Ex.DD and Ex.DE create a dent on the prosecution version.
25. The counsel for the appellant has pointed out material discrepancies between the testimony of ASI Dharam Singh as (PW-10) and Inspector Baljit Singh (PW-11). Inspector Baljit Singh (PW-11) has stated that appellant turned the car back and ran away whereas ASI Dharam Singh as (PW-10) has stated that car was taken straightway. Both of them are also discrepant about weighing scales also. ASI Dharam Singh as (PW-10) has stated that weighing scales were arranged from the village whereas Inspector Baljit Singh (PW-11) has stated that weighing scales were in the bag of investigating officer. Both of these witnesses are discrepant about Criminal Appeal No.1619 SB of 2000 11 source of light. ASI Dharam Singh as (PW-10) has stated that light of Gypsy and torch were used whereas Inspector Baljit Singh (PW-11) has stated that bulb from adjoining house was the source of light. No doubt the minor discrepancies are bound to occur, however, when the recovery witnesses are discrepant in respect of material point in that case the prosecution story becomes doubtful. The car was stopped at 9.30p.m. and at the place of recovery it was pitch dark. Ram Chander, the other accused against whom there was also secret information, - has been acquitted by the trial Court by giving him benefit of doubt regarding identification. Therefore, I am of the considered view that the same benefit should have been given to the appellant also. The reasoning given by the trial Court for identification of the appellant are not creditworthy. The evidence of ASP Sajjan Singh (PW-8) does not advance the case of the prosecution as he reached at the spot after the occupants of the car have run away. According to the prosecution version many persons from the village collected at the spot including Shakti Parshad, Karambir, Gurmej Singh, Sumer Chand, but none of them has been examined by the prosecution. Both recovery witnesses have stated that no identification parade was conducted in their presence. The reason for fleeing away the occupants of car was the darkness. So, identification of the occupants of the car at 9.30p.m., when there was a dark, does not appeal to the reason. The CFSL form was not prepared at the spot. The material witnesses are also discrepant regarding handing over the seal back to Inspector Baljit Singh (PW-11), who has stated that seal was returned on the next date when ASI Dharam Singh as (PW-10) has stated that seal was returned after 4-5 days. Criminal Appeal No.1619 SB of 2000 12
26. In authority Raghbir Singh @ Bhira and others vs. State of Haryana 2008(2) AICLR 115, a Division Bench of this court has held that prosecution story is doubtful when accused ran away from the spot in a complete darkness at 4.00a.m. and their identity could not be established. The story of the prosecution that accused were already known to the police was not accepted in the absence of identification parade.
27. In authority Balwinder Singh alias Billa vs. State of Haryana 2009(2) R.C.R.(Criminal) 730, this Court has held that although the provisions of Section 55 of the Act are directory in nature yet that does not mean that the same should be deliberately and intentionally breached. In that case prosecution story becomes doubtful.
28. In the present case, Inspector Baljit Singh (PW-11) has not kept the case property with him and therefore, there is non-compliance of Section 55 of the Act.
29. In authority Randhir Singh vs. State of Haryana 2010(2) R.C.R. (Criminal) 388, this Court has held that although joining of independent witness is not the rule of law but if the evidence of official witness is found to be un-cogent, unconvincing, unreliable and untrustworthy, in that case, non-corroboration by independent witness create dent in the prosecution version.
30. So, in view of the above discussion, the appeal is accepted and the judgment and order of the trial Court stand set aside and the accused stands acquitted of the charges levelled against him by giving him benefit of doubt.
Criminal Appeal No.1619 SB of 2000 13
31. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI ) JUDGE June 2, 2011 sv