Punjab-Haryana High Court
Baldev Singh @ Deba vs State Of Punjab & Ors on 28 January, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA No.836-SB of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.836-SB of 2009
Date of Decision:-28.1.2013
Baldev Singh @ Deba
.....Appellant
Versus
State of Punjab & Ors.
.....Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR
Present: Mr.Bhanu Pratap Singh, Advocate for the appellant.
Mr.K.S.Aulakh, AAG Punjab for respondent No.1-State.
Nemo for respondent Nos.2 to 5.
MEHINDER SINGH SULLAR, J. (Oral)
Assailing the impugned judgment of conviction & order of sentence dated 19.11.2008, appellant-convict Baldev Singh alias Deba son of Bawa Singh (for brevity "the appellant") has preferred the instant appeal, vide which, he was convicted & sentenced to undergo rigorous imprisonment for a period of ten years, to pay a fine to the tune of ` 1 lac and in default thereof, to further undergo RI for a period of one year, on accusation of having committed an offence punishable under section 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as "the NDPS Act") by the Judge, Special Court.
2. Tersely, the facts, material and evidence, unfolded during the course of trial, culminating in the commencement, relevant for disposal of CRA No.836-SB of 2009 2 the present appeal and emanating from the record, are that, on 8.8.1997, a police party headed by Mandeep Singh (PW3) SI/SHO of Police Station Sarhali received a secret information that Jaswant Singh, Hira Singh (acquitted accused) and Baldev Singh (appellant) were indulging and bringing some oil, used for preparing Heroin in a truck, bearing registration No.PB-02-D-9621. On the basis of secret information, a Naka was arranged near the Canal bridge of village Billianwala. On receiving the information, DSP Jarnail Singh (PW2) also reached the spot at 12.15 AM (mid night) and Rasal Singh son of Chanan Singh was joined as an independent witness in the raiding party.
3. The prosecution claimed that in the meantime, a truck came from the side of village Jamarai. Its driver was signaled by SI/SHO Mandeep Singh and the truck was stopped. Thereafter, three persons alighted from it and they ran away, taking the benefit of darkness. Rasal Singh, independent witness, identified Jaswant Singh alias Jassa accused, whereas the appellant was stated to have been identified by HC Gurbax Singh (PW4) and 3rd person could not be identified. In the wake of search, 40 Cans, containing 20 liters each and 2 Cans, containing 35 liters each of oil were recovered. 180 ML oil was separated as sample from each Can. The samples and the remaining bulk of recovered oil were separately sealed with the seals 'MS' and 'JS''. The samples and the residue of oil were taken into possession, vide recovery memo (Ex.PB). The oil was chemically examined and it was found to be Acetic Anhydride by the Laboratory, by way of report (Ex.PX). Subsequently, the accused were arrested on 19.8.1997 by PW3.
CRA No.836-SB of 2009 3
4. Leveling a variety of allegations and narrating the sequence of events, in all, according to the prosecution that 40 Cans, containing 20 liters each and 2 Cans, containing 35 liters each of oil were recovered from the truck. In the background of aforesaid recovery and allegations, a criminal case was registered against the indicated persons, by virtue of FIR No.118 dated 8.8.1997 (Ex.PD), for the commission of offences punishable u/ss 22 and 23 of the NDPS Act by the police of Police Station Sarhali, District Amritsar in the manner depicted here-in-above.
5. After completion of the investigation, the police submitted the final police report (challan) against the accused. Consequently, they were charged on accusation of having committed the offences punishable under sections 21, 22 & 29 of the NDPS Act by the Judge, Special Court, by means of charge-sheet dated 10.9.2005 and the case was slated for prosecution evidence.
6. The prosecution, in order to substantiate the charges framed against the accused, examined PW3 SI/SHO Mandeep Singh, who has, inter-alia, stated, on oath, that on 8.8.1997, he received a secret information and recorded the FIR (Ex.PD). He arranged a raiding party and the information was conveyed to PW2 DSP Jarnail Singh through wireless. He was requested to spare time to accompany the raiding party. He has also joined Rasal Singh PW as an independent witness. He signaled and the driver stopped the truck. Three accused, namely, Jaswant Singh, Baldev Singh and Hira Singh, again said Baldev Singh and Bhupinder Singh alias Bhinda s/o Buta Singh alighted from the truck and managed to run away from the spot. He stated that all the three accused CRA No.836-SB of 2009 4 were identified, again said Jaswant Singh and Baldev Singh were identified by Rasal Singh PW and HC Gurbax Singh. Thereafter, as per direction of DSP, he searched the truck and 42 Cans of Acetic Anhydride and each Can contained, again said 19 Cans again said 15 Cans 19 liters each oil, 25 Cans containing 18 liters each and 2 Cans containing 35 liters of the oil were recovered from its rear portion. 180 ML of oil from each Can was separated as sample in nip bottle and the remaining was put in the same Can. All the 42 nip samples and the Cans were sealed with the seals 'MS' and 'JS'. He handed over his seal to SI Baldev Singh and that of the DSP was retained by him. All the samples along with the Cans and sample seals were taken into possession, vide recovery memo (Ex.PB) attested by DSP Jarnail Singh, SI Baldev Singh & Rasal Singh PW. The truck was also taken into possession, by way of recovery memo (Ex.PC). He has also stated that he has seen the plastic Cans outside the Court, which are in a broken condition. The copy of RC (Ex.PA) was also taken into possession, vide recovery memo (Ex.PE) attested by the PWs. He prepared the rough site plan (Ex.PF) with correct marginal notes. The case property and truck were handed over to MHC of the police station. He arrested Jaswant Singh and Baldev Singh in this case on 19.8.1997. He has categorically admitted that he had not seen the case property in the Court when his statement was recorded.
7. Sequelly, next to note is the testimony of PW2 DSP Jarnail Singh. Instead of reproducing his entire statement and in order to avoid the repetition, suffice it to say that he has unsuccessfully attempted to corroborate the statement of PW3. Likewise, PW4 HC Gurbax Singh has CRA No.836-SB of 2009 5 also, inter-alia, deposed that the three persons alighted from the truck and ran away from the spot. He identified the appellant as his father was of a bad character of the police station and he used to raid their house.
8. Similarly, PW5 C.Sanjeev Kumar has stated that on 5.9.1997 he handed over the samples/articles to FSL Punjab, Chandigarh. The testimony of PW1 Balraj Kaur, Clerk, DTO Office, is only to the effect that one Rachhpal Singh son of Boota Singh of village Marhana was the owner of the truck in question, as per copy of RC (Ex.PA). This is the entire oral as well as documentary evidence of the prosecution. It will not be out of place to mention here that the prosecution did not examine sole independent witness Rasal Singh PW.
9. Having closed the prosecution case, the statement of the appellant was recorded. The entire incriminating material appearing in the evidence, was put to enable him to explain any circumstance appearing against him in the evidence, as contemplated under Section 313 Cr.P.C. However, he has stoutly denied all the evidence of the prosecution in its entirety and pleaded false implication. The similar line of defence was adopted by the acquitted accused.
10. Taking into consideration the evidence on record, accused Jaswant Singh, Hira Singh and Gurdip Singh were acquitted. At the same time, the appellant was convicted & sentenced by the Judge, Special Court in the manner narrated here-in-above.
11. At the very outset, the learned counsel for the appellant has contended with some amount of vehemence that the story of the prosecution is highly improbable, which was disbelieved by the trial CRA No.836-SB of 2009 6 Court, qua the other accused. Rasal Singh son of Chanan Singh, the sole independent witness, who was stated to have attested the recovery memos, was not examined by the prosecution. The argument is that although the Judge, Special Court has acquitted the pointed co-accused, but convicted the appellant, without any cogent evidence and on speculative grounds. Raising a variety of arguments, in all, according to learned counsel that since the evidence brought on record by the prosecution is unreliable, discrepant and untrustworthy, so, the appellant is liable to be acquitted in this regard.
12. On the contrary, hailing the impugned judgment of conviction, the learned State counsel has urged that the chain of evidence of prosecution is complete by reliable evidence, thus, its case is fully proved on record against the appellant and the trial Judge has rightly convicted him for the pointed offence.
13. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant appeal deserves to be accepted in this context.
14. As is evident from the record that prosecution claimed that when PW3 SI/SHO Mandeep Singh signaled the driver and truck was stopped, then, the indicated persons alighted from it and fled away from the place of occurrence taking the benefit of darkness. Jaswant Singh alias Jassa accused was identified by Rasal Singh PW, whereas the appellant was identified by HC Gurbax Singh (PW4). That means, the case of appellant was on the same very footing as of Jaswant Singh CRA No.836-SB of 2009 7 accused. It is not a matter of dispute that the trial Court has acquitted Jaswant Singh, but convicted the appellant. The sole ground, which weighed with the trial Judge to convict him was that as his father was of a bad character, therefore, HC Gurbax Singh has identified the appellant and he was not cross-examined on his behalf.
15. True it may, but still, to me, the Judge, Special Court has committed a legal mistake in this respect. The perusal of the record would reveal that the statement of PW4 HC Gurbax Singh was recorded on 22.1.2004, wherein in the end of his statement, it was only mentioned that cross-examination Nil Opportunity given. It is apparent from the interim order of same day i.e. of 22.1.2004 that only the accused appeared in the Court, their counsel did not represent them on that day. It appears from the record that the trial Judge has recorded the statement of PW4 of his own and recorded cross-examination Nil Opportunity given in a routine manner without visualizing the fact that the accused were facing the trial under NDPS Act. In fact, no opportunity whatsoever to cross-examine PW4 was provided to the appellant because his counsel was not present in the Court on that day. The statement of PW4 was recorded in the absence of defence counsel. Under these circumstances, it was the mandatory duty of the trial Court either to adjourn the case for cross- examination of PW4 or ought to have appointed some counsel as amicus curiae to cross-examine the material witness PW4 HC Gurbax Singh on behalf of the appellant. It Cannot possibly be denied that cross- examination of a witness in such a case is of very vital, important, valuable right of an accused, integral part and essential ingredient of a CRA No.836-SB of 2009 8 fair trial in such criminal cases. Therefore, a great prejudice has been caused to the appellant in this relevant connection.
16. Not only that, PW4 maintained that since the father of the appellant was of a bad character, so, he used to raid their house and he knew the appellant. He has not mentioned in his statement as to how, when, in which case, in what manner and by whom, the father of the appellant was declared a "Bad Character". No evidence, muchless cogent, is forth coming on record even to suggest remotely that PW4 HC Gurbax Singh has ever raided the house of father of the appellant in any criminal case. In this manner, a bald assertion in the absence of any document/evidence that he (PW4) used to raid his house and he knew the appellant, is meaningless and no implicit reliance Can be placed on his solitary statement in this relevant behalf. Therefore, to my mind, the Judge, Special Court has slipped into a deep legal error in convicting the appellant on unreliable and untrustworthy evidence as discussed here-in- above.
17. This is not the end of the matter. The prosecution claimed that Rasal Singh independent witness was joined at the time of search/recovery and he signed the recovery memos, but the prosecution did not examine him in order to prove the recovery of oil from the truck. The celebrated contention of learned State counsel that as the material witness Rasal Singh was won over by the appellant, therefore, he was given up, pales into insignificance, because assuming for the sake of argument (though not admitted), if he was won over by the appellant, even then, it was necessary on the part of the prosecution that such CRA No.836-SB of 2009 9 witness must be examined, so that he could be confronted with his earlier statement duly recorded by the police to reveal the truth in this context, as contemplated u/s 154(1) of the Indian Evidence Act. This matter is no more res-integra and is now well settled.
18. An identical question came to be decided by a Division Bench of this Court in case State of Punjab v. Sufi Singh 2008(1) RCR (Crl.) 266 (P&H) and Single Bench in case Basir Mohammad v. State of Haryana 2008 (3) RCR (Criminal) 244, wherein it was held that "even if the independent witness was won over, the prosecution was obliged to produce him in Court, so that he could be confronted with his earlier statement recorded by the police to elicit the truth in the prosecution version. The ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
19. There is yet another aspect of the matter, which Can be viewed entirely from a different angle. The recovery of oil was effected from the appellant on 8.8.1997. The appellant was arrested on 19.8.1997. The samples were received by the FSL on 5.9.1997. In other words, there is a delay of about one month in sending the samples to the laboratory and possibility of tampering with the case property and the samples of parcels could not be ruled out, particularly when the seals, after use, remained with the police officials throughout. No explanation whatsoever has been furnished by the prosecution witnesses, with regard to delay of about one month in sending the samples to the office of Chemical Examiner. It was the duty of the prosecution to prove beyond reasonable CRA No.836-SB of 2009 10 doubt that no body has tampered with and the samples remained intact, till the same reached the office of Chemical Examiner, which is totally lacking in this case. Thus, it casts a heavy doubt on the prosecution version.
20. The matter did not rest here. The prosecution did not examine Rasal Singh independent witness and its version revolves around the testimony of police officials. Not only that, there are major inherent contradictions in their statements. According to PW2, he reached the place of recovery at about 12.30 AM, whereas the truck was stopped at 2.40 AM. PW3 stated that the DSP arrived at the spot at about 12.30 P.M. (noon) and truck in question arrived at 2.45 p.m. Meaning thereby, the prosecution is not sure as to whether the recovery of Oil was effected at 2.40 AM (midnight) as claimed by PW2 or 2.45 PM (afternoon) as stated by PW3. Moreover, Richhpal Singh was the owner of the pointed truck. He was neither arrayed as accused nor joined in the investigation to elicit the truth, for the reasons best known to the police. Even PW3 has categorically stated that he had seen the plastic Cans outside the Court in a broken condition on 24.9.2003, when his part statement was recorded. He has again not seen the case property in the Court on 17.4.2004 when his statement was completed. That means, the case property was not produced in the Court intact/sealed, which also demolishes the prosecution version. No cogent explanation for non-production of case property intact/sealed in the Court is forthcoming on record, which renders the prosecution version improbable and doubtful.
21. Therefore, it would be seen that if the fact of depriving the CRA No.836-SB of 2009 11 appellant from valuable right of cross-examining of PW4, non- examination of independent witness, absence of corroboration from independent source, improbability, contradictions in the statements of official witnesses, delay of about one month in sending the samples to the laboratory, non-production of case property in the Court and totality of other facts & circumstances, as discussed here-in-above, are put together, then, to me, an irresistible and inescapable conclusion is that the evidence brought on record by the prosecution falls short, as is required to prove a criminal charge against the appellant, where minimum stringent punishment is provided under the NDPS Act. Thus, since the prosecution has miserably failed to prove the charges framed against him, so, to my mind, the appellant deserves the benefit of reasonable doubt in this regard.
22. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
23. In the light of aforesaid reasons, the instant appeal is hereby accepted. Consequently, the impugned judgment of conviction and order of sentence are set aside. Having extended the benefit of reasonable doubt, the appellant is acquitted of the charges framed against him as well.
28.1.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No