Punjab-Haryana High Court
Sanjiv Kumar And Another vs State Of Haryana on 26 August, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRA-S-542-SB-2001 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-542-SB-2001 (O&M)
Date of Decision: August 26, 2013
Sanjiv Kumar and another
...Appellants
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. B.R. Vohra, Advocate,
for the appellants.
Mr. Anupam Sharma, AAG, Haryana,
for the respondent.
NARESH KUMAR SANGHI, J.
1. Present appeal has been filed by the appellants, namely, Sanjiv Kumar and Manjit Singh, challenging their conviction and sentences recorded by the learned Additional Sessions Judge, Ambala, vide his judgment dated 24.4.2001 and the order of sentence, dated 30.4.2001, whereby the following sentences were passed:-
Name Under Section Sentence Fine In Default of the (R.I.) (in `) (R.I.) convict Sanjiv 307, IPC 5 years 500/- 1 month Kumar 61/1/14 of the Punjab Excise Act 2 years 5,000/- 3 months Manjit 307 read with 109, IPC 5 years 500/- 1 month Singh 61/1/14 of the Punjab Excise Act 2 years 5,000/- 3 months All the sentences were ordered to run concurrently. Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order CRA-S-542-SB-2001 (O&M) 2 FACTS
2. The brief facts of the case are that on 14.5.1997, at about 2:30 - 3:00 p.m., when the police party headed by SI Harkesh Chand (PW-5) of Police Station, Baldev Nagar, District Ambala, along with Kuldip Chhibber, Assistant Excise and Taxation Officer (PW-3) and other persons was present at Sadhopur Barrier on Chandigarh - Ambala Highway, then a secret information was received by him (PW-5) that the appellants, Sanjiv Kumar and Manjit Singh, were to smuggle liquor from Chandigarh to Haryana in their Car No. DNH-7092 and they would pass through the above said Sadhopur Barrier and if timely raid was conducted, then both of them could be caught red-handed with huge quantity of liquor. The checking at the barrier was intensified. After some time, a Car bearing registration No. DNH- 7092 was seen coming from the Chandigarh side. ASI Kulbhushan (not examined) was also present on the spot and he gave signal to stop the said car. The driver of the car did not obey the signal and tried to hit him. The police official saved himself. Thereafter, Head Constable Krishan Chander (PW-4) also tried to stop the car and he was also attempted to be hit by the car, but he too saved himself. Head Constable Babu Ram, who was also present at the spot, threw an iron drum in front of the car, but in spite of that the car was not stopped and the drum was dragged to some distance and due to obstruction, the car had to stop. Before stopping the car, appellant No. 2, Manjit Singh, who was sitting by the side of the driver, asked appellant No. 1, Sanjiv Kumar, who was driving the car, not to stop the car Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order CRA-S-542-SB-2001 (O&M) 3 and to kill whosoever came in front of the car. The car was checked by SI Harkesh Chand (PW-5) and 17 boxes, each containing 12 bottles of Indian Made Foreign Liquor (IMFL) were recovered. One bottle from each box was taken out and a sample was drawn from each of the said bottles. In this manner, only 17 samples were drawn from 17 bottles. The samples and the residue were sealed with the seal "KS" and the seal after its use was returned to Kuldip Chhibber (PW-3), Assistant Excise and Taxation Officer. The appellants were arrested. The car and its documents were taken into possession by the police vide separate recovery memos. Police Memo (Ex. PA) was sent to the police station, on the basis of which SI Darshan Singh (PW-1) recorded the formal first information report (Ex. PA/1), for the offences punishable under Sections 307 and 109, IPC, and Sections 61/1/14 of the Punjab Excise Act. The case property was deposited with HC Rai Singh (PW-2) on the same day. 17 samples were sent to the Assistant Chemical Examiner, Ambala, for analysis. After completion of the investigation, the charge- sheet (report under Section 173, Cr.P.C.) was presented before the learned Area Judicial Magistrate, who in turn committed the case to the Court of Session for trial since Section 307, IPC, was exclusively triable by the latter Court.
3. The case was entrusted to the board of learned Additional Sessions Judge, Ambala, who found a prima facie case for the offences punishable under Sections 307 and 109, IPC, and Section 61/1/14 of the Punjab Excise Act and the charges were framed accordingly. Both the accused pleaded not guilty and Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order CRA-S-542-SB-2001 (O&M) 4 claimed trial.
4. In order to substantiate the allegations, the prosecution examined the following witnesses:
i. PW-1 SI Darshan Singh - He deposed that on 14.5.1997, he was posted as duty officer at Police Station, Baldev Nagar. On receipt of Memo. Ex. PA, through Constable Devinder Singh, FIR (Ex. PA/1) was recorded by him;
ii. PW-2 HC Rai Singh - He had tendered into evidence his affidavit (Ex. PB) with the averments that on 14.5.1997, SI Harkesh Chand of Police Station, Baldev Nagar, had deposited 17 boxes of IMFL, 17 nips of samples duly sealed, and one Maruti Car bearing registration No. DNH- 7092. On 19.5.1997, vide RC No. 422, he had handed over the samples to UGC/666, Prabhu Ram, for depositing the same with the Assistant Chemical Examiner, Ambala City, and after doing the needful, the receipt was handed over to him. By the time, the case property remained with him, neither he nor any other person tampered with the same;
iii. PW-3 Kuldip Chhibbar, Assistant Excise and Taxation Officer, Ambala Cantt., deposed that on 14.5.1997, he was posted as an Excise Inspector in District Ambala. On that day, he along with his peon Baljit Singh, was present on duty at barrier Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order CRA-S-542-SB-2001 (O&M) 5 in village Sadhopur, for checking. The police party, headed by SI Harkesh Chand, was also present there. SI Harkesh Chand received secret information that a Contassa Car No. DNH-7092, carrying liquor, was coming from Sector 20, Chandigarh. After some time the above said Contassa car came from Chandigarh side. It was made to stop by ASI Kulbhushan, who was also present being one of the member of the police party, but the driver of the car did not obey the signal and turned his car towards the right side and tried to hit Krishan Kumar, who was also member of the police party. Krishan Kumar took a jump from front of car to save himself. Babu Ram, yet another police official, standing next to Constable Krishan Kumar, tried to stop the car by pulling down the drum, which was placed on the road as barrier. Due to obstruction caused, the car stopped. He with the assistance of SI Harkesh Chand, checked the car and apprehended the accused and 17 boxes of liquor, each containing 12 bottles, were recovered from the boot of the car. The accused failed to produce any permit or authority. From each box, one bottle was separated and from each such bottle, one sample was drawn in a pint. The samples and Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order CRA-S-542-SB-2001 (O&M) 6 the bottles with the remaining liquor were sealed separately with the seal "KS" and taken into police possession vide recovery memo (Ex. PC). The case property was taken into police possession. He admitted in the cross-
examination that Ambala - Chandigarh road was a busy place. He also admitted that at the barrier the speed of a vehicle was minimized. He also admitted that ASI did not join any public person after receipt of the secret information till the arrival of the accused. The car dragged the drum up to 15ft., but no damage was caused to the car. After some time, he volunteered that he did not notice the same. He also admitted that the seal used for sealing the samples and the residue liquor belonged to ASI Kulbhushan and after its use, the same was retained by him (Kulbhushan);
iv. PW4-HC Krishan Chander deposed that he was present on the spot and also stated about receipt of secret information, the manner in which the car was stopped and the proceedings which had taken place at Sadhopur barrier. He also deposed that the seal was retained by Kuldip Chhibbar, AETO. He admitted in his cross-examination that several pedestrians and cyclists were also crossing Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order CRA-S-542-SB-2001 (O&M) 7 the barricade, but the investigating officer did not try to join any person from the public. He also admitted that there was a bus stop of village Sadhopur, near the barrier and the people were standing there at that time. SI Harkesh Chand had tried to join the public witness, but nobody was ready to become a witness. He also admitted that all the 17 nips used as sample were inside the investigation bag and were of the same type. The seal used was made of Silver;
and
v) PW5-SI Harkesh Chand. He being an
investigating officer deposed about the receipt of secret information and laying of barricade at Sadhopur barrier and arrival of the accused- appellants in a car and recovery of the liquor. He was unable to tell the make of the car. He also deposed regarding the investigation conducted by him. He too deposed that the seal after use was retained by the AETO himself. He also deposed regarding depositing of the case property with HC Rai Singh (PW-2). On completion of the investigation, he prepared the report under Section 173, Cr.P.C., and presented before the Court. He admitted in the cross- examination that he did not know as to whether the secret informer was Sikh or a non-Sikh Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order CRA-S-542-SB-2001 (O&M) 8 gentleman. He admitted that many pedestrians were also available on the road, but he did not join any person from the public, after the receipt of secret information or at the time of conducting the investigation. He also admitted that the window pane of the side of the driver was open, but the rear window panes were closed. The nips were arranged by the AETO Kuldip Chhibbar through his Peon Baljeet Singh. The seal of AETO was giving Silver look and same could be of Aluminium or other material as well.
5. After tendering the report (Mark X) regarding death of UGC Prabhu Ram, the prosecution evidence was closed by the learned Public Prosecutor.
6. Thereafter the statement of the appellants in terms of Section 313, Cr.P.C, were recorded. They denied the incriminating evidence appearing against them and pleaded false implication. No evidence in defence was led.
7. After hearing learned counsel for the parties, the learned Trial Court held both the appellants guilty and sentenced them, as has been described in the initial part of this judgment.
8. Mr. B.R. Vohra, learned counsel for the appellants submitted that it was highly improbable that while driving a car at a national highway, the driver would try to hit the policemen standing by the side of the road and the said policemen would jump backward and save themselves without sustaining any injuries. He also submitted that the manner in which the whole Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order CRA-S-542-SB-2001 (O&M) 9 case was presented by the prosecution witnesses, was completely a bundle of lies. The evidence produced in the shape of five official witnesses, is highly contradictory and the contradictions are going to the root of the case. Therefore, the learned Trial Court should not have placed reliance on such evidence. It was also contended that in spite of being a busy place and availability of independent persons on the spot, no one was joined as a witness from the public. He also submitted that 17 boxes, each containing 12 bottles of IMFL, were allegedly recovered from the car being occupied by the appellants, but only one bottle was taken out of each box and a sample in a pint was taken from each bottle. The 17 samples were sent to the Assistant Chemical Examiner, Ambala City, but he examined only four samples and declared that the same were of liquor. In such an eventuality, it cannot be assumed that except those four samples, the residue was also liquor. He also submitted that according to the prevalent excise policy, a person was authorised to retain two bottles of liquor, therefore, if four bottles of liquor were recovered from two persons, then they were legally authorised to retain the same and could not be held guilty under Section 61 of the Punjab Excise Act. On the basis of the above submissions, Mr. Vohra prayed for setting aside the judgment of conviction and the order of sentence passed by the learned Additional Sessions Judge, Ambala, and acceptance of the appeal.
9. On the other hand, learned counsel for the State submitted that mere denial of the incriminating material emerging on record against the appellants would not entitle them Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order CRA-S-542-SB-2001 (O&M) 10 to earn acquittal. The prosecution witnesses have fully supported and proved the prosecution case. Therefore, the learned Trial Court had rightly returned the verdict of guilt against the appellants. He further submitted that minor contradictions were bound to occur in the deposition of the prosecution witnesses and the said fact would show that the prosecution witnesses were not tutored before they stepped into the witness box. He also submitted that non-joining of an independent person would not make the prosecution case unreliable since nothing has been alleged against the prosecution witnesses with regard to previous enmity or grudge against the appellants. He further submitted that it was unlikely for the police officers to plant such a huge recovery of liquor on the appellants without any basis. Therefore, he prayed for dismissal of the appeal.
10. I have heard learned counsel for the parties and with their able assistance gone through the whole record.
11. There is substance in the submissions of Mr. B.R. Vohra, learned counsel for the appellants that had the police official tried to save himself by jumping backward from a running vehicle, as alleged by the prosecution in this case, then in all probabilities he would have received injuries. There is also substance in his submissions when he submitted that there were severe contradictions in the inter se deposition made by the prosecution witnesses and the same were going to the root of the case. He pointed out from the statements of PW3-Kuldip Chhibbar, PW4-HC Krishan Chander and PW5-SI Harkesh Chander that there were severe contradictions with regard to the places Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order CRA-S-542-SB-2001 (O&M) 11 where the police officials and Kuldip Chhibbar were standing on the spot. He also pointed out that none of the prosecution witnesses could point out as to whether the car was damaged by throwing of a drum on its front side. It has also been pointed out and verified that there were serious contradictions with regard to make of seal, its use and after use to whom it was handed over. According to PW-Kuldip Chhibbar, AETO, the seal was handed over to ASI Kulbhushan, while PW4 and PW5 were very categoric in their depositions that the seal belonged to Kuldip Chhibbar and after its use the same was returned to him. Learned counsel for the appellants has also pointed out that PW3-Kuldip Chhibbar candidly admitted that 2-3 nips, which were used for sample, were with his Peon Baljit while PW4-HC Krishan Chander deposed that all the 17 nips used for storing the samples, were in the investigation bag.
12. According to the prosecution version the driver of the car had tried to hit the police officials, who were standing on the road after receiving signal from them to stop the car and the person sitting on the rear seat of the car had asked the driver to hit anyone who appeared in front of the car. It appears to be improper that the police officials would be able to hear the wordings used by the person sitting in the car, particularly when the window panes of the rear side of the car were closed. The presence of the person travelling in the car as a passenger, whether sitting on the front seat or the rear seat, is also debatable.
13. There is substance in the submissions of the learned Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order CRA-S-542-SB-2001 (O&M) 12 counsel for the appellants that out of 204 bottles, the samples were drawn from 17 bottles only and the Assistant Chemical Examiner had tested/analyzed only four nips containing the samples and, therefore, it cannot be assumed that the bottles from which the sample was not drawn and if drawn not tested or analyzed, were containing liquor. It is also clear that the four samples were not representative samples of all the remaining bottles. Therefore, by any stretch of imagination, it cannot be said that all the alleged bottles recovered from the appellants were of IMFL.
14. From the above discussion, this Court is of the firm opinion that the prosecution has miserably failed to connect the appellants with the offences punishable under Section 307 read with Section 109, IPC, and, as such, appellant No. 1, Sanjiv Kumar, is acquitted of the charge for the offence punishable under Section 307, IPC, while appellant No. 2, Manjit Singh, is acquitted of the charge for the offence punishable under Section 307 read with Section 109, IPC. Since the very substratum of the case has not been believed, therefore, as a matter of abundant caution, the appellants are also exonerated from the charge under Section 61/1/14 of the Excise Act.
15. In view of the above, the present appeal is allowed and both the appellants are acquitted of all the charges levelled against them.
(NARESH KUMAR SANGHI) JUDGE August 26, 2013 Pkapoor Kapoor Prashant 2013.08.30 10:56 I attest to the accuracy of this order