Punjab-Haryana High Court
Sunder Singh vs State Of Haryana on 1 December, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1011-SB of 2010
Date of decision: 1st December, 2011
Sunder Singh
... Appellant
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Hitesh Verma, Advocate for the appellant.
Mr. Anupam Sharma, Assistant Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Sunder Singh son of Chatru, resident of village Kanhari, District Fatehabad was tried by the Court of Additional Sessions Judge, Fatehabad in a case arising out of FIR No.13 dated 08.01.2006 registered at Police Station City Tohana under Sections 15, 27A, 61 and 85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, 'the Act').
The appellant, as per prosecution, on 8th January, 2006 in the area of village Kanhari near his house was found in conscious possession of four bags i.e. 152.80 kilograms of poppy husk without any permit or licence and thus, he had committed an offence punishable under Section 15 of the Act.
The Court of Additional Sessions Judge, Fatehabad vide its impugned judgment dated 13th February, 2010 held the appellant guilty of an offence punishable under Section 15 of the Act and vide a separate order of even date sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine to further undergo simple imprisonment for one year.
Criminal Appeal No.1011-SB of 2010 2
The prosecution case can be gathered from ruqa Ex.P2 sent by SI Shubh Ram PW-3 to Police Station City Tohana for registration of the case. On the basis of ruqa Ex.P2, formal FIR Ex.P3 was registered. In ruqa Ex.P2, SI Shubh Ram PW-3 stated that on 8th January, 2006 he along with companion police officials was present at bus stand, Kanhari in a private jeep on patrol duty for detection of crime. A secret informer came and informed that Sunder son of Chatru caste Balmiki, resident of Kanhari and Dalbir @ Bhunda son of Ramu caste Saini, resident of village Kanhari jointly trade and sell poppy husk and at present Dalbir @ Bhunda has gone to the house of Sunder for delivering the poppy husk on a motorcycle and if a raid is conducted immediately, both the accused can be apprehended red-handed. SI Shubh Ram PW-3 along with the companion police officials prepared a raiding party and proceeded towards the house of Sunder son of Chatru, resident of village Kanhari. Many persons met him in the way and he made an attempt to associate them with the raiding party but they showed their inability. When the police party reached near the house of appellant- Sunder then Dalbir @ Bhunda and one boy were seen unloading the bags from a motorcycle. When the police party made an attempt to apprehend them, Dalbir @ Bhunda, who was earlier known to the investigating officer, succeeded in decamping from the spot. The police party apprehended the other person standing near the motorcycle and on interrogation that person disclosed his name as Sunder son of Chatru. Near the house of Sunder, the motorcycle was lying parked and on suspicion that the bags contained contraband article, a notice under Section 50 of the Act was served upon the accused so apprehended and he was called upon to get himself searched either from a Gazetted Criminal Appeal No.1011-SB of 2010 3 Officer or a Magistrate. The accused consented to get himself searched from a Gazetted Officer, whereupon, Chander Singh DSP Tohana was informed on telephone and he was requested to arrive at the spot. On arrival of DSP Chander Singh at the spot, search of the accused was conducted. In the four bags, poppy husk was found. Two samples of 100 grams each were separated from each bag, and the remaining poppy husk in each bag was weighed as 38 kilograms. The sample parcels and residue bags were sealed. Proceedings regarding seizure of recovery were carried out and the motorcycle was also taken into possession. In ruqa it was stated that Sunder has committed an offence punishable under Section 15 of the Act for having in his possession 152 kilograms and 800 grams of poppy husk. As stated earlier, the appellant was charged for an offence punishable under Section 15 of the Act for the recovery effected from him. He pleaded not guilty and claimed trial.
Prosecution evidence emerges from the testimony of SI Shubh Ram PW-3. He reiterated as to what was stated in the ruqa Ex.P2. He further stated that he had prepared a rough site plan Ex.P8 and recorded statement of the witnesses. He had also produced the case property along with the accused before SHO Virender Singh. On the next day, i.e. 9th January, 2006 he had produced the case property and the accused in the Court of Area Judicial Magistrate and had filed an application Ex.P11 for inventory whereupon orders Ex.P12 and Ex.P13 were passed by the Magistrate. Thereafter, he deposited the case property with Moharrir Head Constable, Police Station City Tohana. In cross-examination, this witness stated that bus stand, Kanhari is at a distance of 4-5 kms from Police Station, City Tohana and the same is situated on the main road which runs from Tohana to Criminal Appeal No.1011-SB of 2010 4 Hissar. There are 1-2 shops at the bus stand and Abadi of the village starts at a distance of 400 yards. He further stated that the police party had reached at the spot at about 2.30 p.m. The secret informer came after ten minutes of arrival of the police party at the bus stand. Following portion of the cross-examination of this witness is required to be noticed:
"... ... ... I have not prepared the record regarding the secret information, nor I have sent any information regarding secret information to the higher officers. I have not mentioned the names of the public persons who were asked to join the investigation in the ruqa. I have not given any written notice to any person to join the investigation. The place of occurrence is about two farlang from bus stand Kanhari. The secret informer accompanied us and he pointed out the house and thereafter, he left the police party. Sunder was not known to me prior to the occurrence and the other accused who managed to escape from the spot was previously known to me. Till the investigation remained with me I had tried to arrest that accused. I have also obtained the arrest warrant of accused Dalbir but he was not traceable... ... ..."
He further stated in his cross-examination that 'I have not collected any evidence regarding ownership of the house that it belong to Sunder nor any document was found in the motorcycle to show the ownership of the motorcycle. There were female family members in the house. I have not searched the house'. However, this witness stated that they had left the spot at about 6.30 p.m. He had not filled form No.29 regarding preparation of sample of seals.
Randhir Singh, Retired Sub Inspector PW-6 was a member of the police party. He was examined to corroborate the testimony of SI Shubh Ram PW-3. In examination in-chief, he stated that SI Shubh Ram Criminal Appeal No.1011-SB of 2010 5 had tried to join the passersby with the raiding party but they had shown their helplessness. Thereafter, they had reached near the house of accused-Sunder. At that time, accused Dalbir @ Bhunda managed to escape and accused Sunder was apprehended. In cross-examination, this witness stated that the secret information was not reduced into writing. They had stayed at the bus stand, Kanhari for 15 minutes and the house of Sunder was at a distance of about 300 yards towards the eastern side. The secret informer had not accompanied the police party to the house of Sunder. He further stated as under:
"... ... I can not say if the investigating officer had sent any police official to summon Sarpanch or any respectable of the village. However, I was not asked to summon any public witness. All the police officials who left the Police Station remained at the spot and none of them was sent anywhere. No documentary proof was taken regarding the ownership of the house. All the weighing material was with the investigating officer... ..."
Chander Singh DSP CID, Panchkula, who was then posted as DSP, Tohana, appeared as PW-7 and stated that he received a telephonic message from SI Shubh Ram PW-3. He reached at the spot and effected the recovery. In cross-examination, this witness stated that he had received information from SI Shubh Ram at about 3.15 p.m. He had reached at the spot at about 3.35 p.m. He further stated that the place of recovery was at a distance of one-and-a-half kilometers from bus stand Kanhari. The bags were lying in a stack near the motorcycle. He summoned the Sarpanch and member Panchayat but nobody was ready to join the investigation. He remained at the spot upto 5.15 p.m. Criminal Appeal No.1011-SB of 2010 6 Mr. Hitesh Verma, Advocate, a young member of the Bar, has vehemently assailed the case of prosecution. He has mainly relied upon various discrepancies in the testimonies of witnesses. According to the counsel, it has come in the evidence of SI Shubh Ram PW-3 that the secret informer accompanied the police party and had pointed out towards the house of accused and thereafter, he had left the police party; whereas, another member of the police party SI Randhir Singh PW-6 stated that the secret informer had not accompanied the police party. Learned counsel has further stated that as per the testimony of DSP Chander Singh PW-7, HC Baljit Singh was sent to summon the Sarpanch and member Panchayat; whereas SI Randhir Singh PW-6 stated that he cannot say that the investigating officer had sent any police officer to summon the Sarpanch or any respectable of the village. He further stated that all the police officials remained at the spot and none of them was sent anywhere. Learned counsel has further submitted that investigating officer SI Shubh Ram PW-3 had stated that all the writing work was done by him; whereas SI Randhir Singh PW-6 stated that the same was done by 3-4 police officials.
Having heard counsel for the appellant, this Court is of the opinion that the discrepancies, in themselves, may not be sufficient to discard the prosecution case. However, they too put the Court on guard to meticulously examine the case set out by the prosecution.
There are certain features of the case, which are required to be highlighted. In the present case, the appellant was found standing near the motorcycle. Case of the prosecution is that the motorcycle was parked near the house of the accused-appellant. The investigating agency has made no effort to prove ownership or possession of the Criminal Appeal No.1011-SB of 2010 7 house near which the accused was standing. No documents have been gathered. All the witnesses have emphatically stated that they made no effort to determine the ownership of the house and had gathered no documents regarding possession. No Sarpanch, Lamberdar or Chowkidar, or any respectable of the village was examined later-on to say that the house, near which the accused was standing, is owned or possessed by him. The investigating officer has stated in the Court that he knew Dalbir @ Bhunda, who ran away from the spot, but the accused-appellant was not known to him earlier. The only piece of evidence, which is incriminating against the accused, is that SI Shubh Ram PW-3 stated that the accused was unloading the gunny bags from the motorcycle along with Dalbir @ Bhunda; whereas SI Randhir Singh PW-6 stated that the accused-appellant was standing when Dalbir @ Bhunda was unloading the gunny bags from the motorcycle. It was Dalbir @ Bhunda, who seeing the police party, according to the witnesses, ran away from the spot and accused-appellant remained standing there. It was imperative for the prosecution to prove that the accused was conscious that he was unloading the gunny bags which contained narcotic substance. The evidence on record is that the accused was helping Dalbir @ Bhunda in unloading the gunny bags. The conduct of the accused to remain at the spot and not to make any attempt to run away therefrom is one of the indicators to infer his innocence.
In this context, non-association of the independent witness by the investigating agency assumes significance. The investigating officer SI Shubh Ram PW-3 stated that he had made an attempt to join various persons but they had shown their inability. As to who were those Criminal Appeal No.1011-SB of 2010 8 persons, there is no evidence on record. No mention has been made to this effect in the case diary. No notice has been served upon any person to associate him with the investigating agency. According to the witnesses, house of the accused is near the bus stand. SI Randhir Singh PW-6 stated that the house of accused is at a distance of about 300 yards on the eastern side of the bus stand; whereas DSP Chander Singh PW-7 has stated that house of the accused is at a distance of 1 ½ kilometers from the bus stand.
The matter does not rest here. This Court will have to further examine as to whether DSP Chander Singh PW-7 was present at the spot or his presence had been introduced in the record. As per SI Shubh Ram PW-3, DSP Chander Singh had attested only one recovery memo Ex.P7. He further stated in cross-examination that 'DSP had not signed any other document except recovery memo Ex.P7'. The evidence led by defence cannot be ignored. HC Ishwar Singh DW-1 stated that as per the log-book of Bolero bearing registration No.HR22C-2424, the said vehicle had left Tohana for village Kanhari at about 9.00 a.m. and left village Kanhari at about 4.00 p.m. for local city area Tohana. As per the evidence of SI Shubh Ram PW-3, the police party was in a private vehicle. The DSP has stated that he reached at the spot in the official vehicle. Therefore, it has been urged that the DSP came in the Bolero vehicle and remained at the spot from 9.00 a.m. to 4.00 p.m. To buttress this argument, reliance has been placed upon Ex.Dx, i.e. testimony of DSP Chander Singh PW-7 in a case against one Bhagwan Dass, where he appeared as PW-1. In that testimony, DSP Chander Singh stated that on 8th January, 2006 he was posted as a DSP. On that day, upon a message received from SI Nirmal Singh he Criminal Appeal No.1011-SB of 2010 9 reached in village Kanhari at about 4.45. Counsel for the appellant has stated that in the present case also, occurrence is of the same date i.e. 8th January, 2006. The DSP, as per his testimony, remained at the spot upto 5.15 p.m. Counsel has submitted that in the same village at two different places, the DSP had witnessed the recovery. In the case against Bhagwan Dass as per Ex.Dx, he remained near the School of the village for about 1-1¼ hours. Therefore, according to the counsel, the DSP had received information as per Ex.Dx at about 4.30 p.m. at Tohana and he arrived at village Kanhari at about 4.45 p.m. and left that place after about one-and-a-half hours, i.e. at 5.30/6.00 p.m. Counsel for the appellant has submitted that thus, the admission made by SI Shubh Ram PW-3 that the DSP had witnessed only one document, i.e. recovery memo Ex.P7, cannot be ignored and it can be safely said that signatures of the DSP on the document Ex.P7 were obtained when he was present for effecting recovery from another accused namely Bhagwan Dass in the same village. Counsel has further stated that in this context, assertion of SI Shubh Ram PW-3 that the police party left the spot in a private jeep at about 6.00 p.m. goes to the root of the matter, when log book for reasons stated in preceding para is taken into consideration.
In the statement recorded under Section 313 Cr.P.C., it has been put to the accused as under:
"Q.1 ... ... ... When the police party reached near your house, then they saw you and Dalbir were unloading the bag of poppy husk from the motor cycle and on seeing the police party, Dalbir @ Bhunda ran away from the spot and you were apprehended at the spot. What have you to say?"Criminal Appeal No.1011-SB of 2010 10
To the above question, the accused has answered that the same is incorrect. Nowhere, it has been put to the accused that he was conscious that the bags, which he was unloading, contained poppy husk.
In 'State of Punjab v. Hari Singh' 2009(2) RCR (Criminal) 143, it was held that recording of statement under Section 313 Cr.P.C. is not an empty formality and it is to be put to the accused that he is in conscious possession of the contraband article. A similar view has been reiterated by a Full Bench of this Court in 'Kashmir Singh v. State of Punjab' 2006(2) RCR (Criminal) 477, wherein it has been held as under:
"12. When the Trial judge records the statement of an accused person under Section 313 Cr.P.C. with regard to the circumstances which have appeared in evidence against him, the learned Judge gives the accused an opportunity to explain those circumstances. The accused generally denies the prosecution case against him but it is an opportune moment for him to plead any type of defence that he may like to take. Therefore, by extending the provisions of Section 313 Cr.P.C. and on first principles of fair trials as well, there is need to give every accused person an opportunity to explain the case against him. Wheresoever the presumption under Ss. 35 & 54 is to be raised, it would be advisable for the Trial Court to frame a question under S. 313 Cr.P.C. in order to give the accused a fair opportunity to rebut the presumption. Indeed Ss. 35 & 54 do entitle the accused to rebut the presumptions but it is strange that Trial Courts do not give the accused this opportunity. Unless the accused have been given the opportunity to prove that he had no such mental state as presumed under S. 35 or that he had satisfactorily Criminal Appeal No.1011-SB of 2010 11 accounted for the possession which was being presumed against him under Section 54, the respective presumptions cannot be raised against the accused.
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19. For the above reasons we would answer the
question raised by stating that no presumption under Sections 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement under Section 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of "possession" which needs to be resolved."
Taking totality of circumstances into consideration that the presence of DSP Chander Singh PW-7 at the spot is doubtful and it is later-on that his signatures were obtained on the sole document, i.e. recovery memo Ex.P7; coupled with the fact of non-joining of an independent witness for which no plausible explanation is there and non-proving of ownership and possession of the house near which the accused was standing; as also the improbability of the prosecution version are sufficient for this Court to extend benefit of doubt to the appellant in the light of discussion made above. Hence, the present appeal is accepted. Conviction and sentence awarded to the appellant are set aside and he is acquitted of the charges.
[KANWALJIT SINGH AHLUWALIA] JUDGE December 1, 2011 rps