Punjab-Haryana High Court
Avtar Singh vs The State Of Haryana on 13 December, 2011
Author: Rajive Bhalla
Bench: Rajive Bhalla, Naresh Kumar Sanghi
Criminal Appeal No. 65-DB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA,CHANDIGARH
Criminal Appeal No. 65-DB of 2007
Date of Decision: 13th December, 2011
Avtar Singh ..Appellant
Versus
The State of Haryana ..Respondent
and Criminal Appeal No. 94-DB of 2007 Babbi ..Appellant Versus State of Haryana ..Respondent CORAM:HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR JUSTICE NARESH KUMAR SANGHI Present:Mr. K.S.Dhaliwal, Advocate for the appellant. (Criminal Appeal No.65-DB of 2007) Mr. G.S.Sandhu, Advocate for the appellant (Criminal Appeal No.94-DB of 2007) Mr. S.S.Randhawa, Additional Advocate General, Haryana, for the respondent.
RAJIVE BHALLA, J By way of this judgment, we shall dispose of Criminal Appeal No.65-DB of 2007 titled as Avtar Singh versus The State Criminal Appeal No. 65-DB of 2007 2 of Haryana and Criminal Appeal No.94-DB of 2007 titled as Babbi versus State of Haryana, as they arise from the same judgment and order of conviction and sentence.
The appellants lay challenge to judgment dated 21.12.2006 and order dated 23.12.2006 passed by the Special Judge, Karnal. Avtar Singh, appellant, in Criminal Appeal No. 65-DB of 2007, was convicted under sections 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act") and sentenced as follows:
U/s 25 NDPS Act 15 years rigorous imprisonment and to pay a fine of Rs.1,00,000/-. In default of payment of fine, a further rigorous imprisonment for one year .
U/s 29 NDPS Act 15 years rigorous imprisonment and to pay a fine of Rs.1,00,000/-. In default of payment of fine, a further rigorous imprisonment for one year .
Babbi, appellant, in Criminal Appeal No. 94-DB of 2007, was convicted under section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act") and sentenced as follows:
U/s 15 ( C ) NDPS Act 15 years rigorous imprisonment and to pay a fine of Rs.1,00,000/-. In default of Criminal Appeal No. 65-DB of 2007 3 payment of fine, a further rigorous imprisonment for one year .
Both sentences have been ordered to run concurrently.
At 8.00 A.M. on 22.11.2002 SI Balbir Singh, SHO, Police Station, Sadar Karnal received a telephone call from ASI Karnail Singh, PW 8, that while he was on PCR duty at the toll plaza, in the area of village Uchana, truck no. HNK 9787, coming from Karnal side, was stopped for checking of documents at the truck driver Babbi son of Resham Singh, Lubana Sikh, resident of village Kachhwa, and the passenger, whose name he later came to know was Avtar Singh son of Bachan Singh, resident of village Kachhwa, have escaped towards the fields. The truck is standing at toll plaza and he suspects that some intoxicants are being transported in the truck.
Balbir Singh, SHO, left for the toll plaza, with Vishnu Dutt, ASI, HC Satya Parkash No.492, C Rajinder Singh 457 and C Niranjan Singh 349 in government vehicle No. HR05L-1733, which was driven by Constable Balkar Singh. ASI Karnail Singh along with police officials of PCR-7 were waiting near the truck. Balbir Singh informed Devender Singh, DSP, (AEC), PW 1, on telephone and requested him to reach the spot. After Devender Singh, DSP, PW 1, arrived, with his reader and Staff, Balbir Singh, SHO, searched the truck in accordance with directions issued by the DSP. A cabin, constructed in the body of the truck, was found to contain 36 bags of what appeared to be poppy husk. A spring balance was arranged and two samples of Criminal Appeal No. 65-DB of 2007 4 500 grams was separated from each bag. Upon weighment, each bag was found to contain 39 kgs of poppy husk. Sample parcels were prepared. The samples parcels and the remaining bags were sealed with a seal bearing the impression `BS' and were taken into possession along with the truck. DSP Devender Kumar, also affixed his seal `DY' on each sample parcel and on the bags. The DSP also attested the recovery memo. The seal after use was handed over to Vishnu Dutt, ASI. The original registration certificate of truck no. HNK 9787 was taken into possession and revealed that the registered owner of the truck is one Avtar Singh son of Bachan Singh, resident of village and post office Kachhwa, District Karnal.
The contents of the telephone call made by ASI Karnail Singh to SHO Balbir Singh at 8.00 A.M. were reduced into writing Ex P4, at 11.30 A.M. by SHO Balbir Singh for registration of an FIR. A formal FIR 336 dated 22.11.2002 was registered at 12.05 P.M. at Police Station Sadar Ambala. After completion of paper work, the case property and all relevant documents were deposited in the malkhana.
It would be appropriate at this stage to point out that memo Ex.P4 and the first information report, Ex.P5, clearly state that the driver of the truck is Babbi son of Resham Singh and the other occupant of the truck is Avtar Singh son of Bachan Singh.
During investigation, the police recorded the statement of one Kuldeep Singh son of Karam Singh, PW 7, on 18.1.2003 Criminal Appeal No. 65-DB of 2007 5 that two months ago, Nishan Singh son of Shingara Singh resident of Daban Kheri and Puran Singh son of Jagir Singh, resident of Chinar Heri approached him for supply of poppy husk. 4-5 days thereafter, they came to his house in a car and informed him that they had despatched the poppy husk in a truck, belonging to Avtar Singh. The truck is being driven by Babbi son of Resham Singh and Vinod Singh son of Jagat Singh. He was also informed that the truck will reach at night. The police also recorded the statement of Gurnam Singh, Ex Member Panchayat of village Kachhwa that the statement of Kuldeep Singh was recorded in his presence.
Avtar Singh, appellant, alleged owner of the truck, was arrested on 2.2.2003, whereas Babbi, appellant, was arrested on 24.3.2003. Vinod Kumar son of Jagat Singh, stated to be a driver of the truck, was declared a proclaimed offender. After receipt of the report from the chemical examiner, confirming the presence of poppy husk in the samples, the police filed a report before the Special Court, Karnal.
After consideration of the material on record, the Special Judge, Karnal framed charges against the appellants under sections 15, 25 and 29 of the Act, but as the appellants pleaded not guilty, the prosecution was directed to produce evidence.
In support of its case, the prosecution examined the following witnesses:
PW 1 DSP Devender Kumar
Criminal Appeal No. 65-DB of 2007 6
PW 2 Constable Ramesh Kumar
PW 3 Constable Umed Singh
PW 4 DSP Balbir Singh
PW 5 Sub Inspector Vishnu Dutt
PW 6 ASI Hukam Singh
PW 7 Kuldeep Singh and
PW 8 Sub Inspector Karnail Singh
ASI Siri Dutt was given up as unnecessary and PW Gurnam Singh was given up as having been won over. The report prepared by the Forensic Science Laboratory was tendered into evidence.
The incriminating circumstances appearing against the appellants were put to them under section 313 of the Code of Criminal Procedure but both appellants denied the allegations and pleaded their innocence. In defence, the appellants examined DW 1 Gurnam Singh son of Jodha Singh. After considering the material on record, the learned trial court convicted and sentenced the appellants as detailed in the second paragraph of the judgment.
Counsel for the appellants submit that the appellants have been falsely implicated on the basis of suspicion. The appellant Babbi has been convicted for transporting poppy husk by holding that the prosecution has proved that he was driving truck no. HNK-9787, laden with poppy husk . The prosecution has failed to prove by clear and cogent evidence the identity of the driver of the truck. The fact that the truck was being driven Criminal Appeal No. 65-DB of 2007 7 by Babbi appellant is sought to be proved by the telephone call made by ASI Karnail Singh at 8.00 A.M., reduced into writing as ruqa, Ex.P4, by Balbir Singh, SHO at 11.30 A.M. The ruqa names Babbi as the driver of the truck and Avtar Singh as the passenger but DDR No. 51 recorded at 7.40 A.M. while departing for the Toll Plaza does not record the names of appellants. The ruqa is not a substantive piece of evidence. The prosecution has not produced any other witness to establish the identity of the driver of the truck though a police party was present when the truck was apprehended. While deposing as a prosecution witness PW 8, SI Karnail Singh has not named the driver of truck, much less named Babbi, appellant, as the driver of the truck, thereby negating the entry in the ruqa Ex. P4 and the prosecution case, against Babbi appellant. The prosecution has not produced any evidence to prove as to how SI Karnail Singh knew that the driver of the truck is Babbi. The prosecution has not produced any evidence whether Babbi was known to Karnail Singh, SI. Karnail Singh's statement, that forms the basis of the FIR, is further falsified by the prosecution introducing, in the report filed after completion of investigation, Vinod Singh, as a driver. No explanation is forthcoming as to the role of Vinod Singh or how the name of Avtar Singh has been changed to Vinod Singh or whether all three were present. SHO Balbir Singh, PW 4, and SI Vishnu Dutt PW 5 have clearly deposed that SI Karnail Singh, PW 8, informed them that the truck was being driven by Babbi son of Resham Singh, but DDR No.51, Criminal Appeal No. 65-DB of 2007 8 recorded in the roznamcha at 7.40 A.M. does not contain the names of Babbi or Avtar Singh. In the absence of any explanation as to how ASI Karnail Singh or the prosecution came to the conclusion that Babbi, appellant, was the driver of the truck, the evidence adduced by the prosecution is doubtful and must, therefore, be rejected. It is further argued that the prosecution should have conducted a test identification parade and if not carried out, should have, at least, asked SI Karnail Singh to identify the driver in court. A perusal of the deposition by SI Karnail Singh, PW 8, reveals that he was not asked to identify Babbi, appellant, as the person who was driving the truck. The prosecution witnesses have admitted that no identification parade was carried out thereby clearly establishing that Babbi appellant has been falsely implicated. The truck was apprehended at 2.30 A.M., but the telephone call was made at 8.00 A.M. The Police Station, Sadar is at a distance of 5 KM from the toll plaza. SI Karnail Singh's explanation that he was busy in searching for the suspects, is clearly false as mobile phones are owned by everyone and telephones are available at every toll plaza. SI Karnail Singh should have informed the SHO of the Police Station at the latest, within an hour or two. The delay in making the telephone call, to the SHO, establishes that after the truck was apprehended, the police falsely implicated Babbi. It is further submitted that falsity of the police case is established from the site plan, which shows the truck is parked towards the Karnal side of the toll plaza, Criminal Appeal No. 65-DB of 2007 9 whereas SI Karnail Singh has deposed that the truck was coming from the Karnal side and was stopped after it crossed the toll plaza, i.e., towards Ambala side. It is further submitted that no independent witness was associated though employees of the toll plaza and a large number of members of the general public were available So far as Avtar Singh is concerned, counsel for the appellants submit that mere ownership of the truck does not translate into culpability in the absence of any evidence that Avtar Singh, knowingly permitted the use of his truck for transporting narcotics. The words "knowingly permits"
requires the prosecution to establish that the accused was aware that his vehicle was being used for commission of an offence by "another person". In the absence of any evidence as to the identity of the person who used the vehicle, mere ownership of the truck, does not give rise to an inference of a culpable mental state, as prescribed by section 35 of the Act. It is further submitted that as Section 29 of the Act provides for punishment for abetment and conspiracy it necessarily requires the prosecution to establish that the accused conspired with another person to commit an offence under the Act or abetted the commission of an offence by another. In the absence of any proof as to the identity of this other person or facts relating to abetment and conspiracy, the mere fact that Avtar Singh is owner of the truck, does not raise an inference of abetment or conspiracy. It is further argued that Kuldeep Singh, PW 7, who Criminal Appeal No. 65-DB of 2007 10 made a statement to the police that Nishan Singh and Puran Singh informed him that they would deliver a consignment of poppy husk in Avtar Singh's truck, has resiled. Gurnam Singh, in whose presence, his statement was recorded, has appeared as a defence witness, to depose that no such statement was recorded in his presence. PW 4 Balbir Singh, the Investigating Officer, has admitted that Nishan Singh and Puran Singh have been declared innocent during trial and that he has not mentioned the name of the person with whom Avtar Singh conspired. The learned trial court has, while convicting the appellants, ignored these facts, ignored the absence of any evidence to establish ingredients of an offence under sections
25 and 29 of the Act and has wrongly convicted the appellants merely on the ground that a huge quantity of poppy husk was recovered and that one Avtar Singh is recorded as owner of the truck.
Counsel for the State of Haryana, on the other hand, submits that the identity of Babbi is established from the statement of SI Karnail Singh. When Karnail Singh appeared in the witness box, no question was asked as to how he identified the driver of the truck. It is further submitted that though prosecution documents state that the other person in the truck was Vinod Kumar, a proclaimed offender, this alone does not entitle Babbi, appellant, or Avtar Singh to benefit of doubt. The recovery of a huge quantity of narcotic clearly points to the guilt of the appellants. It is further submitted that as the registration Criminal Appeal No. 65-DB of 2007 11 certificate establishes that the truck was owned by Avtar Singh, he has been rightly convicted for allowing his truck to be used for transporting poppy husk and for abetment and conspiracy in terms of sections 25 and 29 of the Act with the aid of Section 35 of the Act. The fact that independent witnesses have not been associated, does not detract from recovery of 36 bags of poppy husk. The fact that the site plan is incorrect, is an error on the part of the Investigating Officer and therefore, does not entitle the appellants to any benefit. The delay in lodging of the FIR, has been satisfactorily explained and therefore, does not confer any benefit on the appellants.
We have heard counsel for the parties, perused the record, the judgment and order passed by the Special Judge, Karnal and the relevant statutory provisions.
At about 2.30 A.M, on 22.11.2002 SI Karnail Singh, PW 8, stopped truck no. HNK 9787, which was coming from Karnal, after it crossed the Toll Plaza. The driver Babbi and the other occupant Avtar Singh, of the truck, allegedly, ran away and despite the best efforts of SI Karnail Singh and the police party, they could not be apprehended. SI Karnail Singh, PW 8, telephoned SHO Balbir Singh PW 4 and informed him of the incident at 8.00 A.M. on 22.11.2000. As per the deposition of PW 4, SHO Balbir Singh, he recorded DDR at serial no.51 in the roznamcha and reached the spot at 9.00 A.M. He forwarded a request to DSP Devender Singh to come for search of the truck. After arrival of the DSP, the truck was searched under the Criminal Appeal No. 65-DB of 2007 12 latter's instructions. The truck contained 36 bags of poppy husk, weighing 39 kgs each, concealed in a separate compartment. Samples were taken, from each bag and were sealed as were the bags. Requisite paper work was completed and the truck was also taken into possession. The report prepared by the forensic science laboratory establishes that the material recovered by the police is poppy husk. SHO Balbir Singh reduced the telephone call made by Karnail Singh SI at 11.30 A.M. into writing Ex. P 4, leading to registration of the FIR, naming Babbi as the driver and Avtar Singh as the other passenger.
The recovery of the poppy husk need not detain us as counsel for the appellants have not challenged the recovery, but have addressed arguments on the failure of the prosecution to establish the identity of the driver, i.e., Babbi, appellant, and the culpability of Avtar Singh, owner of the truck.
To establish ownership of the truck, the prosecution has produced the original registration certificate, Ex. P5, which records that truck no. HNK 9787 is owned by one Avtar Singh son of Bachan Singh, village and post office Kachhwa, District Karnal. The prosecution has not produced any evidence from the office of the Registration Authority, Karnal to prove that the registered owner recorded in the certificate, Ex.P5, is the appellant Avtar Singh. Accepting for a moment that there is no need to formally prove the certificate of registration as it is a document prepared by a government servant during the course Criminal Appeal No. 65-DB of 2007 13 of his official business, mere ownership of a truck does not translate into culpability for commission of an offence, whether under sections 25 and 29 of the Act. Avtar Singh, appellant, has been charged, convicted and sentenced for commission of offences under sections 25 and 29 of the Act, i.e. for "knowingly permitting" the use of his truck by another person for commission of an offence under the Act and for abetment and criminal conspiracy to commit an offence punishable under Chapter IV of the Act.
We, therefore, proceed to examine sections 25, 29 and 35 of the Act, in the context of the prosecution case against Avtar Singh, appellant.
Sections 25 and 29 of the Act read as follows:
" 25. Punishment for allowing premises, etc., to be used for commission of an offence.---- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence.
" 29. Punishment for abetment and criminal conspiracy.----(1) whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be Criminal Appeal No. 65-DB of 2007 14 not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which ----
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India."
Section 25 of the Act provides for punishment of the owner of a vehicle who "knowingly permits" his vehicle to be used for the commission, "by any other person" of an offence punishable under any provision of the Act. The essential ingredients of an offence under section 25 of the Act, are - (a) ownership of a vehicle, (b) knowingly permitting the use of the vehicle; ( c ) by any other person; and (d) for the Criminal Appeal No. 65-DB of 2007 15 commission of an offence under any provision of the Act.
The ownership of a vehicle has to be established by proving the registration certificate. The use of the word "knowingly" before the word "permits" translates into an onus upon the prosecution to prove that owner of the vehicle had knowledge that his vehicle would be used by a person to commit an offence under the Act. However, section 35 of the Act, absolves the prosecution of this onus as it raises an inference as to a culpable state of mind.
Section 35 of the Act reads as follows:
" 35. Presumption of culpable mental state.----(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution."
Explanation.------In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
Section 35 of the Act, postulates that in any Criminal Appeal No. 65-DB of 2007 16 prosecution for an offence under the Act that requires a culpable state of mind, a court shall presume such a mental state. The explanation to Section 35 of the Act further clarifies this presumption as it states that "a culpable mental state"
includes amongst others knowledge of a fact. Thus where a vehicle is used for commission of an offence under the Act, a court, shall, other factors having been proved, presume a culpable state of mind vis-a-vis the owner. It shall, thereafter, be for the owner of the vehicle to prove that he did not have such a culpable mental state. However, before a presumption of a culpable mental state is raised, the prosecution shall be required to prove another important ingredient, namely, the identity of the person who was "knowingly permitted" by the accused to use his vehicle for commission of an offence under the Act (section 25) or with whom the accused is said to have conspired or whose offence he has abetted (section 29). The identity of this person is a significant aspect for commission of an offence under sections 25 or 29 of the Act. The failure to prove the identity of this person who was allowed to use the vehicle, or with whom the accused has conspired or whose offence he has abetted, would not complete the offences under sections 25 and 29 of the Act.
Even if we accept that the prosecution has proved that poppy husk was being transported in a truck owned by Avtar Singh, the prosecution has to establish the identity of the person who was allowed, by Avtar Singh to use his truck for Criminal Appeal No. 65-DB of 2007 17 commission of an offence under the Act or with whom he conspired or whose offence he has abetted.
The prosecution, in an attempt, to prove that Avtar Singh, knowingly permitted the use of his vehicle by another person, introduced one Kuldeep Singh PW 7 as a witness who, in the presence of Gurnam Singh, is said to have stated that about two months ago, Nishan Singh son of Shingara Singh and Puran Singh son of Jagir Singh came to him and told him that they would bring poppy husk in a truck of their relative, Avtar Singh son of Bachan Singh. Nishan Singh and Puran Singh returned 4-5 days later and informed him that they have despatched poppy husk in a truck owned by Avtar Singh, driven by Babbi appellant and Vinod Singh son of Jagtar Singh. He has come to know that the truck has been apprehended.
As per the positive case set up by the prosecution , Avtar Singh allowed Nishan Singh and Puran Singh to use his truck for transporting poppy husk, but strangely enough, PW 4 Balbir Singh, SHO, has deposed that during investigation, he found Nishan Singh and Puran Singh innocent, thereby putting paid to the persons who were knowingly permitted by Avtar Singh to use his truck. While appearing in the witness-box, Kuldeep Singh PW 7 denied that he made any such statement to the police and despite cross-examination by the Public Prosecutor, nothing worth-while could be elicited to indicate that Avtar Singh had knowingly permitted the use of his vehicle by Nishan Singh and Puran Singh for transporting poppy husk, Criminal Appeal No. 65-DB of 2007 18 Gurnam Singh, in whose presence, this statement was recorded, was given up by the prosecution as having been won over and subsequently appeared as DW 1 to deny that Kuldeep Singh PW 7 made a statement in his presence. The prosecution appears to have recorded the statements of Kuldeep Singh and Gurnam Singh so as to fulfil the ingredients of sections 25 and 29 of the Act. We are prima facie satisfied that this crude attempt, by the prosecution, to implicate Avtar Singh was necessitated by the original telephone message of SI Karnail Singh PW 8, naming Avtar Singh as one of the persons who escaped from the truck. After realising that they may not be able to prove the presence of Avtar Singh in the truck, they introduced Kuldeep Singh, PW, as a witness and got him to name the other person in the truck as as Vinod Kumar, a driver. The names of Nishan Singh and Puran Singh, as the persons, who were transporting poppy husk, were introduced to facilitate prosecution for offences under sections 25 and 29 of the Act. Nishan Singh and Puran Singh were found innocent by the police. The absence of any evidence to raise an inference that Avtar Singh knowingly permitted the truck to be used for the commission of an offence "by any other person", much less an identifiable person or by Nishan Singh and Puran Singh he could not be charged, much less convicted for an offence under section 25 of the Act. The prosecution has, in our opinion, failed to establish its case against Avtar Singh under section 25 of the Act.
Section 29 of the Act punishes a person for abetment Criminal Appeal No. 65-DB of 2007 19 and conspiracy of an offence committed under Chapter IV of the Act. The offence alleged against Avtar Singh is allowing the use of his truck, for commission of an offence under Chapter IV of the Act. Section 29 of the Act comes into play if an accused has conspired to commit an offence under Chapter IV of the Act, whether the offence is complete or not. An allegation of conspiracy or abetment translates into proof only if the prosecution establishes the identity of the person with whom the accused conspired and the person whose offence the accused abetted. PW 4 Balbir Singh, the Investigating Officer, has admitted in his cross-examination that the investigation has not disclosed the name of any person with whom Avtar Singh conspired or whose offence he has abetted. At this stage, we would like to once again refer to the statement of Kuldeep Singh PW 7, recorded by the police, in its attempt to prove its case of conspiracy and abetment. The statement, though disowned by Kuldeep Singh, while deposing in court and inadmissible in evidence, reveals that Nishan Singh son of Shingara Singh and Puran Singh son of Jagir Singh approached Kuldeep Singh for sale of poppy husk and informed him that poppy husk would be transported in the truck belonging to Avtar Singh. Accepting for a moment that the statement is correct, the prosecution should have arraigned Nishan Singh and Puran Singh as accused, but as admitted by Balbir Singh, Investigating Officer, they were declared innocent, during investigation. In the absence of any clear and cogent evidence Criminal Appeal No. 65-DB of 2007 20 as to the identity of the person with whom Avtar Singh conspired or whose offence he abetted, we have no hesitation in holding that the offence under section 29 of the Act has not been proved.
As regards the driver of the vehicle Babbi, the question that merits consideration is whether the prosecution has satisfactorily proved that he was the person who was driving the truck and escaped. It is the positive case of the prosecution that Karnail Singh, SI, PW 8, telephoned Balbir Singh, SHO, PW 4, at 8.00 A.M. that at 2.30 A.M, he had apprehended a truck, but the driver Babbi son of Resham Singh, Lubana Sikh, resident of village and post office Kachhwa, District Karnal and Avtar Singh who was sitting in the truck, escaped. The telephone call was reduced into writing Ex. P4 at 11.30 A.M. by PW4 Balbir Singh and records the name of Babbi as the driver, but surprisingly DDR No.51 recorded by the SHO immediately after receipt of the telephone call and before he left for the toll plaza, does not record any such name. The prosecution has not produced any evidence to prove that Babbi appellant was known to SI Karnail Singh, PW 8, so as to enable him to effect a positive identification of the driver of the truck. The matter does not rest here. While deposing as PW 8, SI Karnail Singh has not named Babbi as the driver and Avtar Singh as the other occupant of the truck but has simply deposed that the driver and the other occupant of the truck escaped. Admittedly, no test identification parade was carried Criminal Appeal No. 65-DB of 2007 21 out though Babbi, appellant, was arrested on 24.3.2003, almost three months after the occurrence. It would also be necessary to point out that SI Karnail Singh, PW 8, while deposing in court, was not asked to identify Babbi as the person who was driving the truck and Avtar Singh the person who escaped. SI Karnail Singh, PW 8, is the only person who saw the driver and the other person escaping. His failure to identify either of the appellants as the driver or the other person, during his deposition on oath, casts a serious doubt on prosecution evidence.
Another fact that needs pointed reference is that the prosecution has introduced another driver of the truck, namely, Vinod Singh son of Jagat Singh, who has been declared a proclaimed offender. The prosecution case as it stands has three occupants of the truck instead of the original two, i.e., Babbi and Avtar Singh appellants and Vinod Singh, a proclaimed offender. The prosecution was apparently not sure of the identity of the driver and the number of persons in the truck. It initially named two persons Babbi as the driver and Avtar Singh, as the passenger. During investigation, it shifted its stance, though without clarification and introduced a third person Vinod Singh. In the absence of any clear, cogent or conclusive evidence, to establish the identity of the driver of the truck, we find no reason to accept the prosecution version, or the finding recorded by the trial court that the appellant Babbi was driving Truck No. HNK 9787 when it was apprehended with Criminal Appeal No. 65-DB of 2007 22 poppy husk.
Another factor that casts a doubt on the identification of Babbi, appellant, is that SI Karnail Singh, PW8, apprehended the truck at 2.30 A.M. but informed the SHO only at 8.00 A.M.. His lame explanation that he spent this time searching for the driver and occupant of the truck who had escaped, in our considered opinion, is not tenable as he could not be expected to carry on the search for 5.30 hours. Even otherwise, cell phones are available with almost every person, particularly police officers and telephones are available at toll plazas. The fact that SI Karnail Singh informed the SHO at 8.00 A.M., raises a suspicion that though the truck was apprehended, the police were trying to establish the identity of the driver and named Babbi, appellant, on suspicion as he belongs to the same village as Avtar Singh, the owner of the truck, and happens to be a driver.
The other arguments relating to the failure to associate an independent witness with the recovery and the fact that the truck is shown to be standing at the wrong place in the site plan are irrelevant and we do not propose to express any opinion as to the legality of recovery of poppy husk.
In view of what has been held hereinabove, we are satisfied that the prosecution has failed to establish its case against the appellants beyond a degree of doubt. As a consequence, we allow both the appeals; set aside the judgment Criminal Appeal No. 65-DB of 2007 23 of conviction and order of sentence passed by the trial court and acquit the appellants of the charges. The appellants, in both the appeals, be set at liberty forthwith.
( RAJIVE BHALLA )
JUDGE
13th December, 2011 ( NARESH KUMAR SANGHI )
VK JUDGE