Punjab-Haryana High Court
Basant Singh vs State Of Punjab on 29 September, 2010
Author: Jora Singh
Bench: Jora Singh
CRA-S-1408-SB of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-1408-SB of 2002
Date of decision: 29.9.2010
Basant Singh
........ Appellant
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
Present: Mr. Jasjeet Singh , Advocate, for the appellant.
Mr. Arshvinder Singh, Deputy Advocate General, Punjab.
JORA SINGH, J.
Basant Singh, preferred this appeal to challenge the judgment of conviction and order of sentence dated 4.9.2002, passed by the learned Additional Sessions Judge-cum-Judge, Special Court, Barnala, in Sessions Case No. 69 of 21.8.1997, arising out of FIR No. 65 dated 25.6.1997, registered under Section 15/61/85 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'the Act) at Police Station Tapa.
By the said judgment, he was sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of three months.
Prosecution story, in brief, is that on 25.6.1997, police party headed by ASI Gurmail Singh, Police Station Tapa, in connection with CRA-S-1408-SB of 2002 -2- patrol duty was going towards the side of village Tajoke. When the police party was present near Bus Stand, Tajoke, then Gurjant Singh S/o Chand Singh R/o village Tajoke, had met the police party. After joining Gurjant Singh, police party was going from village Tajoke to village Rureke Kalan. When the police party was present near the bridge of canal minor in the area of village Tajoke then sighted the accused while carrying bag on his head and on seeing the police party he became nervous and tried to retreat. On suspicion accused was apprehended. On enquiry accused had disclosed his name as Basant Singh. Investigating Officer suspected some incriminating material in the gunny bag. Offer was given to the accused as to whether he wanted to be searched before any Gazetted Officer or any Magistrate. Reply of the accused was that he wanted to be searched before a Gazetted Officer. On wireless SHO, Police Station Tapa, was requested to send Gazetted Officer at the spot. As per Investigating Officer, Shri Kamaldeep Singh, Deputy Superintendent of Police, Tapa, came at the spot with his gunman. In the presence of DSP Kamaldeep Singh, ASI Gurmail Singh, searched the bag of the accused, which was found containing poppy husk. On weighment the same was found to be 5½ Kgs. Two samples each weighing 250 grams were separated. Samples and the remaining poppy husk in the same bag were separately sealed with seal of the Investigating Officer bearing impression 'GS' and also with the seal of the DSP bearing impression 'KS'. Seal impressions of both the seals used were prepared separately. Seal of the Investigating Officer after its use was handed over to ASI Mohan Singh whereas seal of the DSP after its use was retained by him. Case property was taken into police possession vide memo attested by the witnesses. Ruqa was sent to the police station on the basis of which formal FIR was recorded. Rough site plan with correct marginal notes CRA-S-1408-SB of 2002 -3- was prepared. Statements of the witnesses were recorded. On return to the police station case property alongwith the accused was produced before SHO Sarabjit Rai. After verifying the facts of the case and checking the case property, SHO had affixed his own seal on the sealed parcels bearing impression 'SR'. Seal impressions were prepared separately. Case property was deposited with the MHC. Sample parcels were sent to office of Chemical Examiner and as per report of the chemical examiner contents of sample parcels were found to be of poppy husk. After completion of investigation, challan was presented in the Court.
Accused was charge-sheeted under Section 15/61/85 of the Act, to which he pleaded not guilty and claimed trial.
In order to substantiate its case prosecution examined PW-1 Constable Hari Singh, who tendered his affidavit Ex. PA.
PW-2 ASI Gurmail Singh was the Investigating Officer. PW-3 DSP Kamal Deep Singh, stated that he had joined the police party headed by ASI Gurmail Singh as Gazetted Officer and in his presence 5½ Kgs of poppy husk was recovered from the accused.
PW-4 SI Sarabjit Rai, was the SHO of Police Station, Tapa. Accused alongwith the case property was produced before him alongwith the seal impressions. After verifying the facts of the case from the accused and witnesses, he had affixed his own seal bearing impressions 'SR' on the sealed parcels and deposited the case property with the incharge of the Malkhana.
PW-5 ASI Mohan Singh, was present with the police party and in his presence recovery was effected.
Report of the chemical examiner Ex. PE and affidavit of MHC were tendered into evidence.
After close of the prosecution evidence, statement of CRA-S-1408-SB of 2002 -4- accused under Section 313 Cr.P.C. was recorded wherein the appellant denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused was that false implication at the instance of Gurjant Singh who was inimical towards him.
Opportunity was given to lead defence evidence but no defence evidence was lead.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and going through the record the appellant was convicted and sentenced vide judgment and order, as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and have carefully gone through the evidence available on the file.
Learned defence counsel for the appellant argued that as per prosecution story Gurjant Singh was joined as independent witness but seal of the Investigating Officer, after its use was not handed over to independent witness. Independent witness was not produced in the Court. Link evidence is not complete. According to prosecution story, after recovery accused alongwith the case property was produced before the SI/SHO Sarabjit Rai. SHO had sealed the case property with his own seal bearing impression 'SR' but SHO when appeared as PW-4 did not state a word that he had sealed the case property with his own seal bearing impression 'SR' and after sealing the case property seal impression was prepared separately. Investigating Officer stated that he had deposited the case property with the incharge of the Malkhana whereas SHO stated that he had deposited the case property with the MHC. MHC was not produced. Only the affidavit of MHC was tendered into evidence. Evidence is doubtful as to whether the case property was deposited by the Investigating Officer or by the SHO. Recovery is of CRA-S-1408-SB of 2002 -5- only 5½ Kgs of poppy husk. Possibility of false implication simply to raise figure work cannot be ruled out.
Learned State counsel argued that inadvertently SHO failed to state that he had sealed the case property with his own seal bearing impression 'SR'. Independent witness was with the police party. Seal was given to ASI Mohan Singh and ASI Mohan Singh appeared as PW-5. No evidence on the file that appellant was inimical towards Gurjant Singh. Gurjant Singh, had no say in the Police Department. When police party had no enmity with the appellant then there was no idea to implicate the appellant at the instance of Gurjant Singh.
First submission of the learned defence counsel for the appellant was independent witness was joined but he was not examined. Seals of the Investigating Officer and the Gazetted Officer after use were not handed over to the independent witness. So story is not natural one. After going through the evidence on the file I am of the opinion that submission of the learned defence counsel for the appellant seems to be reasonable one. Police party headed by ASI Gurmail Singh, Police Station Tapa, in connection with patrol duty was going towards the side of village Tajoke. When the police party was present near Bus Stand, Tajoke, then Gurjant Singh S/o Chand Singh R/o village Tajoke, had met the police party. After joining Gurjant Singh police party was going from village Tajoke to village Rureke Kalan. When the police party was present near the bridge of canal minor in the area of village Tajoke then appellant was apprehended while carrying gunny bag. Recovery is from the bag. Section 50 of the Act is not applicable but in the Court Investigating Officer stated that offer was given to the accused as to whether he wanted to be searched before any Gazetted Officer or any Magistrate. Officer was not reduced into writing. Case property was sealed with the seal of the Investigating Officer and the Gazetted CRA-S-1408-SB of 2002 -6- Officer, but seal of the Investigating Officer after its use was not handed over to Gurjant Singh. No explanation why the seal was not handed over to the independent witness joined by the police party.
In 2005 (4) RCR (Criminal)681 "Gurcharan Singh Vs. State of Punjab" recovery was of 8 Kgs of opium but the accused was acquitted on the allegation that seal after its use was handed over to Head Constable and not to public witness. CFSL form was not prepared at the spot. No explanation as to why independent witness was given up. Lastly, the police had failed to inform the accused that he had a legal right of being searched in presence of Magistrate or Gazetted Officer.
In 2008 (2) RCR (Criminal) 520 "Sewa Singh Vs. State of Haryana" seal after use by the Investigating Officer was handed over to his junior police official whereas the seal after its use by the SHO was retained by him. Delay of 19 days in sending the sample. Investigating Officer and the SHO could certainly tamper with the case property. Investigating officer did not report to his superior officer as required under Section 57 of the Act.
In the present case Gurjant Singh, independent witness was joined but no explanation by the Investigating officer as to why seal after its use was not handed over to him.
Next submission of the learned defence counsel for the appellant is that possibility of tampering with the case property cannot be ruled out because link evidence is missing. After going through the evidence on the file I am in agreement with the submission of the learned defence counsel for the appellant. Investigating Officer as PW-2 stated that two samples each weighing 250 grams were separated. Samples and the remaining poppy husk were separately sealed with his own seal and with the seal of the Gazetted Officer. CRA-S-1408-SB of 2002 -7- Rough site plan with correct marginal notes was prepared. On return to the police station he had produced the case property and the accused before the SHO. SI/SHO Sarabjit Rai, after verifying the facts of the case had sealed the case property with his own seal bearing impression 'SR'. Seal impressions were prepared separately. He had deposited the case property with the MHC. In cross-examination he admits that he did not prepare any consent memo. Seal was not handed over to independent witnesses. DSP Kamaldeep Singh, did not state a word that on return to the police station, SHO had sealed the case property with his own seal bearing impressions 'SR'.
SHO appeared as PW-4 then stated that accused alongwith the case property was produced before him. Case property had been sealed with the seals bearing impression 'GS' and 'KS'. He had verified the investigation from the witnesses then deposited the case property and seal impressions with MHC Tarsem Singh. SHO did not state a word that he had also sealed the case property with his own seal bearing impression 'SR' and seal impression of the seal used was prepared separately. According to SHO recovery was verified from the witnesses. ASI Mohan Singh is one of the recovery witnesses. He stated that he alongwith the police party headed by ASI Gurmail Singh had apprehended the accused while carrying a bag. Two samples each weighing 250 grams were separated. Samples and the remaining poppy husk were separately sealed with the seal of the Investigating officer and the DSP. Case property was taken into police possession vide memo attested by him. Seal of the Investigating Officer after its use was handed over to him. ASI Mohan Singh has not stated a word that on return to the police station accused alongwith the case property was produced before the SHO and in his presence on verifying the facts of the case, SHO had affixed his own seal on the case property. Seal CRA-S-1408-SB of 2002 -8- impression of the seal used was also prepared separately. In cross- examination ASI Mohan Singh also admitted that consent memo was not prepared. As per Investigating Officer case property with the incharge of Malkhana was deposited by him whereas SHO stated that he had deposited the case property with the incharge of the Malkhana.
According to the prosecution story, appellant alongwith the case property and witnesses were produced before the SHO. Investigation of the case was verified by the Investigating Officer and witnesses then SHO had affixed his own seal but in Court neither the Investigating Officer nor one of the recovery witnesses namely ASI Mohan Singh have stated a word that in their presence SHO had sealed the case property with his own seal bearing impression 'SR' and seal impressions of the seal used were also prepared separately.
Recovery was effected on 25.6.1997. Case property was deposited with MHC by SI Sarabjit Rai. Case property alongwith the accused was not produced in the Court. Constable Hari Singh had deposited the sample parcel in the office of the Chemical Examiner but only the affidavit of Constable Hari Singh was tendered into evidence. While tendering the affidavit there was no objection from the side of the appellant. No request to summon Tarsem Singh, MHC, for the purpose of cross-examination. But when MHC Tarsem Singh was in service and was available then he should have been produced in the Court for the purpose of cross-examination. MHC Tarsem Singh was to explain whether the case property was deposited with him by the Investigating Officer or by the SHO. Whether the case property was withdrawn from the Malkhana for production in the Court or not. When SHO did not state a word regarding sealing of the case property with his own seal bearing impression 'SR' then evidence is doubtful as to who had deposited the case property. Incharge of the Malkhana was expected to CRA-S-1408-SB of 2002 -9- appear to clear the doubt but only the affidavit of MHC was tendered into evidence, then I am of the opinion that possibility of tampering with the case property cannot be ruled out.
No other submission was put forward.
In view of all discussed above, I am of the opinion that evidence on the file was not rightly scrutinized by the trial Court. Impugned judgment suffers from infirmity and illegality and the same is ordered to be set aside. Appellant is acquitted of the charge levelled against him.
Accordingly, appeal is allowed.
September 29, 2010 ( JORA SINGH ) rishu JUDGE