Delhi High Court
Gurcharan Singh @ Channi And Anr. vs State on 17 February, 1993
Equivalent citations: 1993CRILJ1622, 1993(2)CRIMES229, 49(1993)DLT659
JUDGMENT Mohd. Shamim, J.
(1) This appeal is directed against the judgment and order dated 26/05/1992 passed by Shri R.L. Chugh, Additional Sessions Judge, Delhi, whereby he found the accused Gurcharan Singh alias Channi (hereinafter referred to as the appellant No. 1 for the sake of convenience). guilty under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act), and under Section 353/34 of the Indian Penal Code. He sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac under Section 21 of the Act. Incase of his failure to clear the fine he was further directed to undergo simple imprisonment for one year. He was further sentenced to undergo rigorous imprisonment for two years and to a fine of Rs. one thousand under Section 353/34 of the Indian Penal Code. In default of payment of fine he was further directed to undergo simple imprisonment for ore month. Accused Avtar Singh (hereinafter referred to as the appellant No. 2 for the sake ofbrevity) was ordered to be released on probation on his furnishing a personal bond in the sum of Rs. 5.000.00 with one. surety in the like amount to keep peace and' be of good behavior for a period of two years under Section b 353/34 of the Indian Penal Code. Aggrieved and dis-satisfied with the said judgment and order the. appellants have approached this Court.
(2) Lbn Khaldun an eminent historian who lived and trod this terra firma like an ordinary mortal amongst the homosapiens, yet left his footprints on the sand uftime,has observed. "The rule of distinguishing what is true from what is false in history is based on its possibility or impossibility" in a given situation. The above principle mutates mutants is also applicable to the cases which the Courts are called upon to deal with, with the only distinction that a historian 16 concerned with unearthing the truth in regard to the events which took place in the hoary past, while the Judges have to as certain and cull the truth from facts and events in presenti.
(3) With the above exordium let us now see and try to find out as to whether the case of the prosecution as unfolded through the report under Section 173 Cr. P.O., F.I.R. (Ex. PW7/A), Ruqqa (Ex. PW7/B) and various other documents is plausible or probable and appeals to a reasonable prudent as a true narration of facts and could have happened in the way and manner as it is alleged to have taken place. This is a condition precedent for the prosecution to bring home the guilt to the accused. In case it fails in its primary duty, the Courts need not go any further and need not make anymore inquiry inasmuch as the said case is liable to be flung to the winds on this short ground alone.
(4) The case of the prosecution was set up in the Fir (Ex. PW7/A) and Ruqqa (Ex. PW7/B) is that Shri Shakti Singh (since deceased) had had an information that appellant No. 1 who was a resident of J.J. Colony, Wazirpur, Delhi, was dialing in smack. He developed the said information and came to the conclusion that in case someone was sent as a decoy customer then he was likely to sell the smack. Shri Shakti Singh deceased contacted ACP Crime Brands and formed a raiding party on 29/07/1987 on his instructions which consisted of Inspector Shakti Singh (Crime Branch), SI Mohinder Singh. Si Manmohan, Si Bal Kishan, Asi Prithvi Singh, who was armed with a revolver, (later on promoted as Sub Inspector), Hc Jagdish,Constable Ramesh, Constable Surinder Singh and PW3 Rajbir Singh, a pistalemployee. Shri Rajbir Singh (PW3) was assigned the role of a decoy customer. He was apprised of the facts of the present case. He was handed over a sum of Rs. 6000.00 vide entrustment memo Ex. PW3/ A. The above raiding party set out for the house of appellant No. 1 situated as alluded to above.Efforts were made to include some other members of the public in the raidingparty. In this connection, Shri Shakti Singh asked five or seven passers by to join the raiding party, but none of them agreed and left without even disclosing their names and addresses. Meanwhile, Si Bhup Singh, Asi Ram Kumar of Ps Ashok Vihar who were on their usual patrol duty of the area of PS Ashok Vihar also met the raiding party. They were also requested to join the raiding party and they acceded to the request. Asi Prithvi Singh (PW8)was instructed to act as a shadow witness to hear the proposed talks in between the appellant No. 1 and .the decoy customer PW3 Rajbir Singh and to give the appointed signal. The above raiding party reached the house bearing No. J-111/90. J.J. Colony. Wazirpur, Delhi. PW3 Rajbir Singh andPW8 Si Prithvi Singh were sent to the second floor of the above said house as the same was in occupation of the appellant No. 2- The other members of the raiding party took positions at different places near the said house on theroad. The raiding party heard a din and uproar from the side of the residence alluded to above. They also heard the sound of firing emanating from the said house. On hearing the same to entire raiding party got alert and rushed to the place of occurrence. Meanwhile, PW3 Rajbir Singh i.e. the decoy customer jumped from the second floor of the house adverted to above in the lane by the said of the said house and handed over a packet of smack to Inspector Shakti Singh. All the members of the raiding party reached the second floor. They saw PW8 Si Prithvi Singh with a revolver in one of his hands and he was holding the appellant No. 1 in the other hand with a plaster on his right foot. The raiding party further saw two or three persons running away from the place of occurrence through the nearby roofs. SI Prithi Singh showed the money to convict Gurcharan Singh alias Channi. He immediately took out a packet from underneath his bedding and handed over the same to PW3 Rajbir Singh. When PW3 Rajbir Singh tenderedRs. 6000.00 to Gureharan Singh appellant. He demanded further money fromhim. It was at this juncture that Si Prithvi Singh (PW8) disclosed his identity and showed the appellant No. 1 his identity card. On hearing this Gureharan Singh raised an alarm "Catch bold, catch hold" whereupon two or three persons who were very sturdy and stout appeared at the scene from the adjoining house. One of them was aimed with a pistol like thing. The other one was armed with a knife. The third one was empty handed. They wanted to assault Si Prithvi Singh whereupon he put appellant No. 1 in front of him and in between him and the assailants. Si Prithvi Singh fired thrice in his selfdefense. He gave a signal to PW3 Rajbir Singh that he should jump down along with the packet of smack and the money and join other members of the raiding party. Appellant No. 1 handed over the aforesaid sum of Rs. 6000.00and two or three packets of smack to the above said persons who came to his rescue on hearing his alarm. However, all of them succeeded in making good their escape. Inspector Shakti Singh and other members of the raiding party chased the above said persons. However, they succeeded in apprehending only Avtar Singh i.e. appellant No. 2. resident of J.lll/89, J.J. Colony,Wazirpur, Delhi. The other persons i.e. Rajinder Singh alias Tarvinder Singh and Mahinder Singh could not be apprehended as they made good theirescape. On receipt of the information Si Raghbir Singh, Acp, Crime Branch,arrived at the spot. The smack which was seized was weighed whereupon it was found to be I Kg. It was seized vide Ex. PW3/C. 10 gram of smack was separated and taken out for the purposes of sample. The sample smack and the remaining smack were sealed in two separate packets. Both the packets were sealed with the seal of 'SSD'. Form CFSL was filled up. The seal after use was handed over to Si Mahender Singh. Meanwhile, Sho, Vihar known as Ram Prashad (PW6) also reached there. The entire facts with regard to the present case were narrated to him and after having satisfied himself with regard to the correctness of the said facts put his seal with the impression of 'RP' on the said two packets. Later on it transpired that a boy and a lady i.e. Pwi Sanjay and PW2 Smt. Vidyawati sustained injuries during the course of the aforesaid firing. Both the above named appellants were arrested at the spot. A report was sent to the Police Station for registration of a formal Fir whereupon the formal Fir was recorded vide Ex. PW5/A. The sample was sent to CFSL for Chemical analysis. The result of the analysis is Ex. PW7/A. The Chemical Examiner was of the view that the alleged sample smack gave positive test for heroin.
(5) Now, the most polemical question which comes to the tip of the tongue is as to whether the occurrence as narrated above can be said to be a probable and plausible version of the case of the prosecution. It is manifest from above that PW3 Rajbir Singh was handed over only a sum of Rs. 6,000.00. He is reported to have offered the said amount to the appellant No. 1 who accepted the same without any bargain and handed over a packet of smack which contained I Kg. of heroin. It is in the statement ofPW8, Si Prithvi Singh during the course of cross-examination that the smack in those days was being sold at Rs. 40,000.00 per Kg. Thus, no reasonable and prudent man or for that matter an alleged dealer in smack would have parted with I Kg. of heroin for a paltry sum of Rs. 6,000.00 which could have fetched only 150 gms. of smack.
(6) Furthermore, there is no mention of the talks which are alleged to have ensued in between PW3 Rajbir Singh and appellant No. 1, GurcharanSingh. It appears from the report Ex. PW7/B as' if Gurcharan Singh alias Channi held himself in readiness to hand over a packet of I Kg. of heroin whosoever approached him. Thus, the prosecution version to say the least,appears to be a ludicrous one.
(7) A close scrutiny of Ex. PW7/B and Ex. PW5/A further reveals that there is no recital with regard to the pre talks signal which was required to be given by the shadow witness i.e. Si Prithvi Singh, PW8.
(8) There is another aspect of the matter. There is a recital inEx. PW7/B that PW3 Rajbir Singh on receipt of signal from PW8, Si Prithvi Singh jumped from the second floor of the above said house Along with the money and the smack. It implies thereby that no money was handed over to appellant No. 1 i.e. Shri Gurcharan Singh yet he parted with the smack.Furthermore. PW3 Rajbir Singh is reported to have jumped from the second floor with the packet of smack yet he is not alleged to have sustained anyinjury. To my mind, this could not have happened to a man of flesh andblood. This could have been possible had PW3 Rajbir Singh would have been something more than a man i.e. either a jinn or a superman like Hercules.Such things could have happened in a fairy land or in a fairy tale. Such type of things are not possible to have happened in this real world inhabited by human beings of flesh and blood. In view of the above, I am of the view that the prosecution version does not inspire any confidence and it is liable to be discarded and ignored on this short ground alone.
(9) There is another aspect of the matter. PW3 Rajbir Singh who is the star witness of the case of the prosecution has nowhere asseverated even a single word in favor of the case of the prosecution. Even on being cross examined he failed to identify the appellants in the Court room. He has further asserted that lie did not sign any piece of the paper on the date of the occurrence. According to him, the police called him later on i.e. the next day after the occurrence and asked him to sign three or four papers. He further goes on to state that he did not make any supplementary statement.He has further denied the suggestion that Asi Prithvi Singh, PW8 asked him to jump down from the second floor Along with Rs. 6,000.00 and the smack.
(10) The next most material and important witness in the present case is PW8, Si Prithvi Singh. Curiously enough even he has failed to support the case of the prosecution in tola. According to him he met appellant No. 1i.e. Shri Gurcharan Singh on the-first floor. Every thing is alleged to have happened as per his statement on the first floor. Admittedly, the case of the prosecution as stated in the Ruqqa, Ex. PW7/B is that the raid was laid against the appellant No. 1 on the second floor. He is alleged to have been entrusted to hear the talks and to reproduce the same and to give the prefixed signal. Yet, astonishingly he is conspicuously silent with regard to the above said two important facts- Thus his statement is contradictory to and inconsistent with the statement of PW3 Rajbir Singh.
(11) PW6 Inspector Ram Prashad has deposed to the fact that he reached the spot after the seizure and put his seal on the two packets with the impression of 'RP'. However, his very much doubtful inasmuch as no document bears his signatures i.e. Ex. PW3/B, personal search memo in respect of the accused Gurcharan Singh, Ex. PW3/E i.e. the personal search memo in regard to the search of S.Avtar Singh. Moreover, the occurrence inthe instant case is admittedly dated 29/07/1987 yet the statement of PW6was recorded on 1/10/1987 i.e. nearabout two months after the occurrence and that, too, on an objection being raised by the Prosecution Branch.This all casts a suspicion on the entire case of the prosecution and renders it nugatory.
(12) Learned Counsel for the appellants Mr. K..K. Sud has vehemently contended that there is no compliance in the instant case with the mandatory provisions of the Act i.e. Suctions 52, 55 and 57. The learned Counsel has in this connection led me through the provisions of Section 52(3),55 and Section 57 of the Act. Section 52(3)(a) reads as under :-
"52.Disposal of persons arrested and articles seized.(2) Every person arrested and article seized under warrant issued under Sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant wasissued. '(3) Every person arrested and article seized under Sub-section (2)of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to-(a) the officer-in-charge of the nearest police station, or(b) ............(4) ...............
"55.Police to take charge of articles seized and delivered.An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
"57.Report of arrest and seizure. Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate officialsuperior."
(13) The learned Counsel on the basis of the above has contended that there is no compliance with the above said mandatory provisions of law inasmuch as the presence of Inspector Ram Prashad, PW6, is very muchdoubtful. Furthermore, there is nothing in his statement even remotely to suggest that he seized the said articles and kept them in his custody at the police station. I find myself in perfect agreement with the contention of the learned Counsel for the appellants. Admittedly, Inspector Ram Prashad has nowhere alleged that the said articles which are alleged to have been recovered from the possession of the appellants were taken possession of and he kept them in his safe custody at the police station till the further orders of the Magistrate. There is similarly no compliance with the provisions of Section 57 of the Act inasmuch as there is no evidence to show that the information with regard to the seizure of the smack and arrest of accused persons was ever given to the higher ups.
(14) There is another side of the picture. It is manifest from the documents adverted to above that none of them bears the signatures of Inspector Ram Prashad, PW6 which casts doubt with regard to his presence at the spot. A duty, as is evident from above, has been cast on the shoulders of the Officer-in-charge of the Police Station, to seize the articles recovered under the Act and to keep them in safe custody till the orders of theMagistrate. Thus, the perfunctory manner in which he dealt with the said articles can hardly be commended. He must have put his signatures on each and every memo which were prepared at the spot. The above view was given vent to in Shah Ashu Jaiwani v. The State of Maharashtra, 1951-75, Cr. A.No. 119 of 1971, Head Note B......."Prevention of Food Adulteration Act,1954-Section 10(7)-lack of signatures of witness on relevant documents prepared at the time of taking sample-violation, of statutory provision of Section 10(7)- effect of. "The signatures of witness are absent on all those documents on which they would have been present if Section 10(7) of the Act had been strictly complied with. It is more likely that the witness was not there at all to witness the occurrence. If that be so, the evidence of the prosecuting Food Inspector who said witness was there, cannot be implicitly relied upon in this case. It is quite unsafe to base the appellant's conviction on such shaky foundations."
(15) The provisions of Section 10 of the Prevention of Food Adulteration Act are in pari materia with the provisions of the Act inasmuch as their compliance is a must. Hence, the above observations are pari pass applicable to the facts and circumstances of the present case. It is a wellknown principle of jurisprudence that if a thing is required to be done inaccordance with certain law and rules, it must be done either in that manner or not at all.
(16) The defense as set up by the appellants in their statements under section 313 Cr. P.C. is that the appellant No. 1 was sitting in a park at about6.00 p.m. with a plaster on his leg Along with appellant No. 2 Avtar Singh.Some police officers tried to forcibly lift the appellant No. 1 from the park and on hearing the commotion a good number of members of the public collected there. The police party in order to frighten the public fired from their service revolver as a corollary whereof PW1 Sanjay and PW2 Smt.Vidya Wati were injured. The police thus implicated them in the present false case in order to save their skin. Pwi Sanjay has very categorically stated in his averment on oath before the learned lower Court that the bullet which had hit him was fired by a police officer. Similarly, PW2 Smt. VidyaWati has not at all supported the case of the prosecution that she sustainedinjuries from the bullets which came from the side of the house of the appellants. She has pretended her ignorance in regard to the above facts. It is well established principle of law that the accused persons' are under no obligation to substantiate their defense version. They are simply to come forward with a probable and plausible version which fits in with the circumstances of a particular case. I feel that the appellants in the instant case have put forward a probable and plausible version of their defense which is sufficient enough to cut at the very root of the case of the prosecution.
(17) The learned Standing Counsel, Mr. P.S. Sharma, has conceded with commendable fairness on his part that the prosecution witnesses have failed to substantiate the case of the prosecution under Sections 332/353/186and 307 of the Indian Penal Code. In view of the above I need not refer to the prosecution evidence on the said points. However, the learned Standing Counsel has contended that the PWs, Asi Rameshwar Dayal, PW5, Inspector Ram Prashad, PW6, Inspector Jai Singh, PW7, and Si Prithvi Singh, Pws, fully proved the case of the prosecution under Section 21 of the Act.According to him the prosecution version cannot be ignored simply on the ground that it has been substantiated and proved by the police officers only.The learned Counsel in this connection has led me through the observations a Single Judge of the Rajasthan High Court as reported in Ronald Markas Goonthar v. State of Rajasthan, 1988(3) Crimes 737..."Police Officers are citizens and the public servants. Generally, it is expected that they perform their duties faithfully and sincerely. A presumption under Section 114 of the Evidence Act can be drawn that they perform their duties in the ordinary course of business faithfully and sincerely. Their evidence cannot be discarded only on the ground that they are Police Officers. However, a note of caution will always have to be kept in mind looking to the law of the land;particularly Section 25 of the Evidence Act and Section 161, Cr. P.C."
(18) There is no dispute with the said proposition of law that the statements of the police witnesses are entitled to the same weight and the same consideration which is attached to the statement of a member of thepublic. However, the impugned statement must inspire, confidence to be relied upon in a particular case, I have already observed above that the evidence led by the prosecution in the instant case does not inspire any confidence.Thus, it is liable to be discarded and ignored.
(19) In the circumstances stated above the appellants are entitled tosucceed. The appeal is allowed. The judgment and order dated 26/05/1992whereby the appellants were convicted are hereby set aside. The appellantNo. 1 be set at liberty at once in case he is not wanted and required in any other case.