Punjab-Haryana High Court
Subhash Chander vs State Of Pb on 22 December, 2014
CRA-S-1410-SB-2001 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-1410-SB-2001
Date of decision : December 22, 2014
Subhash Chander @ Bhashi
......Appellant
Versus
State of Punjab
...... Respondent
CORAM : HON'BLE MR.JUSTICE GURMIT RAM
***
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
***
Present : Mr. D.S. Brar, Advocate,
for the appellant.
Mr. Dilsher Singh Mann, A.A.G. Punjab.
***
GURMIT RAM, J.
1. This appeal is of appellant Subhash Chander @ Bhashi filed against the judgment and order of sentence dated 01.10.2001 passed by the learned Judge of Special Court, Muktsar vide which the appellant was held guilty for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "Act") and convicted thereunder.
2. Concisely, the case of the prosecution before the learned trial Court was that on 12.02.1999, Swarn Singh, Incharge CIA Staff, Muktsar along with ASI Harnek Singh and other police officials was present at canal bridge in the area of village Fakkarsar Theri in connection with patrolling and checking of bad elements. One person was seen coming from the right side pavement of canal, who on seeing the police party bewildered and tried GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document CRA-S-1410-SB-2001 [2] to retreat, but he was apprehended on the basis of suspicion by SI Swaran Singh with the help of his party members. During interrogation, the said person told his name as Subhash Chander alias Bhashi son of Devi Lal resident of village Theri, Police Station Gidderbaha (hereinafter to be referred as the "accused"). Swaran Singh, SI, told the accused that he suspects that there is some intoxicant substance in his bag, he has a right to get his search conducted from any Gazetted Officer or a Magistrate. Upon this, he expressed his desire that his search be conducted in the presence of any Gazetted Officer and accordingly a memo with regard to his consent was prepared, which was signed by the accused and attested by ASI Harnek Singh. Request was made to Sh.Ashok Bath, Deputy Superintendent of Police, Gidderbaha (in short "DSP") through a wireless message to reach at the spot, who accordingly reached there along with his gunman on his Government Vehicle at about 5:00 PM. He was made conversant with the facts of the case. He also enquired from the accused. Thereafter search of the accused was conducted by SI Swaran Singh as directed by DSP and during search, opium was recovered from the rexin bag of black colour of the accused. Out of the recovered Opium, 10 grams opium was separated as sample and the remaining opium on weighment was found to be 1 kg 490 grams, which was put into a dibba plastic and was converted into a separate parcel. Both the sample parcel and bulk opium parcel were duly sealed with the seal of SI Swaran Singh bearing letters "SS" and of the DSP bearing letters "AB". Separate sample seal was prepared, which was also attested by DSP. After the use of seal, SI Swaran Singh handed over his seal to ASI Harnek Singh. Thereafter both the abovesaid sealed parcels alongwith sample seal were taken into police possession vide a separate memo, which GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document CRA-S-1410-SB-2001 [3] was attested by witnesses. Statements of witnesses were recorded. Ruka was sent to the Police Station, on the basis of which the instant case was registered against the accused, i.e. present appellant. Personal search of the accused was also conducted and a memo in this regard was prepared separately. Thereafter he was formally arrested in this case and grounds of arrest were disclosed to him vide a memo. Site plan of the place of recovery was also prepared. On returning to the Police Station, the case property was produced before the SHO Police Station Gidderbaha. On receipt of report of the chemical examiner with regard to the sample opium and on completion of all the formalities of investigation, challan in this case was presented before the learned trial Court.
3. Compliance of the provisions of Section 207, Cr.P.C., was made. On finding a prima facie case under Section 18 of the Act against the accused, he was charge-sheeted accordingly, to which he pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case examined seven PWs in total during the trial of the case before the learned trial Court.
5. Thereafter the accused was thoroughly examined as required under the provisions of Section 313, Cr.P.C. He denied all the incriminating evidence brought against him during trial of the case. Further he had taken the plea that he was innocent and that he had been involved in this case falsely. In this connection he also took the plea that he and his uncle Hakam Rai produced the witnesses against Swaran Singh before the team of C.B.I. in an inquiry, since he had murdered three persons in a false encounter case. The said Swaran Singh was posted as SHO, Police Station, Malout, at that time. The CBI team had also registered a murder and rape GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document CRA-S-1410-SB-2001 [4] case against ASI Swaran Singh and ASI Bahia, which was stated to be pending in the Court. Due to that grudge, SHO Swaran Singh had implicated him in this case falsely. A certified copy of the judgment dated 24.08.2001 Ex.DE was also tendered in defence evidence.
6. Then the learned trial Court after hearing learned counsel for the both the parties and going through the record as well held the appellant/accused guilty for the offence under Section 18 of the Act and convicted him accordingly vide the impugned judgment and order of sentence.
7. Feeling aggrieved from this judgment and order of sentence, the appellant has come up with the instant appeal. Notice of the appeal was given to the respondent-State.
8. Record of the learned trial Court was also requisitioned and perused.
9. I have heard the learned counsel for the appellant, learned State Counsel and have also perused the record with their able assistance.
10. Learned counsel for the appellant has contended that the whole case of prosecution is based solely on the depositions of official witnesses. No independent witness was examined during search of the accused at the time of alleged recovery. The learned trial Court ignored the defence version of the appellant without assigning any valid and cogent reason. In this connection, he has also submitted that a case of murder of three persons in a false encounter was being investigated by the C.B.I. against SI Swaran Singh, Investigating Officer of this case and that the appellant along with his uncle Hakam Rai had produced the witnesses against SI Swaran Singh in that inquiry. For this reason, the Investigating Officer of this case, was GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document CRA-S-1410-SB-2001 [5] nursing a grudge against the present appellant and that he had entrapped him in this case falsely. In support of this defence version, he has referred to the judgment dated 24.08.2001, Ex.DE vide which Hakam Rai, uncle of the present appellant, was acquitted. Further the learned counsel for the appellant has referred to the non-compliance of provisions of Section 50 of the Act by the Investigating Officer during the search which led the recovery of alleged contraband. Even the offer made to the accused for his personal search is also stated to be improper. Link evidence of the prosecution case is also stated to be incomplete.
11. But on the other hand, the learned State Counsel has strongly refuted the above contentions of learned counsel for the appellant and has contended that the alleged recovery of Opium from the bag of the accused has been duly proved on the file in the statements of PWs examined by the prosecution and as such, the learned trial Court had rightly held the appellant guilty of the offence under Section 18 of the Act and convicted him in accordance with the law. Then it is also his contention that statement of an official witness is as good as that of a private witness, i.e. independent witness and as such, there is nothing wrong on the part of the learned trial Court in convicting the present appellant by relying upon the statements of the official witnesses. Then he has also contended that in the case in hand the alleged recovery of opium was made from the bag of the accused, which he was holding in his hand and in such like a case, there is no need to make compliance of the provisions of Section 50 of the Act.
12. Now I deem it necessary to analyse the evidence of the prosecution as led in this case in some brief.
13. PW-5 ASI Swaran Singh, the Investigating Officer of this case, GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document CRA-S-1410-SB-2001 [6] stated that he was posted as Incharge CIA Staff, Muktsar on 12.02.1999 and on that day, he along with ASI Harnek Singh and other police officials had laid Nakka on the bridge of canal in the area of village Theri. Accused Subhash Chander present in the Court was detected while coming from the upstream side on the left bank of the canal at about 4:30 PM, who on perceiving the police tried to return, but apprehended on suspicion. He told the accused that he suspected some contraband article in the bag held by him and that he intended to conduct search by giving him an offer about his search before any Gazetted Officer or Magistrate. Accused desired his search to be conducted before an Gazetted Officer vide consent memo Ex.PA which was signed by him and attested by ASI Harnek Singh. Then on request made by this witness, Ashok Bath, DSP, Gidderbaha reached at the spot at about 5:00 P.M., who disclosed his identity/status to the accused. Thereafter on his direction, the search of the accused was conducted by ASI Swaran Singh (PW-5) during which opium wrapped in polythene paper was recovered from the bag held by the accused. Ten grams of opium was separated as sample from the recovered opium and the remaining was found to be 1kg 490 grams on weighment. Bulk opium and sample opium were put into plastic containers and then their parcels were prepared, which were sealed with the seal of this witness bearing letters "SS" as well as with the seal of DSP bearing letters "AB" and the same were taken into police possession vide memo Ex.PB attested by ASI Harnek Singh, DSP Ashok Bath and C.Chhotu Ram. Sample seal Ex.P2 with regard to the seal used was also prepared. Further this witness also proved memo Ex.PC vide which `100/- recovered from the personal search of the accused were taken into police possession. Accused was arrested in this case and the grounds of GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document CRA-S-1410-SB-2001 [7] arrest were disclosed to him vide memo Ex.PD. Ex.PH is the memo vide which intimation about his arrest was sent to his relatives. Then this witness also proved ruka Ex.PJ, FIR Ex.PJ/1 and site plan Ex.PK. On returning to Police Station, accused and case property were produced before SI/SHO Gurchand Singh, who also put his own seal bearing letters "GS" on the case property. On receipt of report Ex.PL of Chemical Examiner, challan against the accused was presented.
14. PW-1 ASI Harnek Singh was one of the members of the Police party headed by PW-5 ASI Swaran Singh at the time of alleged recovery. He had fully corroborated the prosecution version as stated by PW-5 ASI Swaran Singh, Investigating Officer. He also proved the consent memo of the accused Ex.PA, recovery memo Ex.PB, personal search memo Ex.PC and grounds of arrest memo Ex.PD. Further he stated that on the next date, he produced the case property as well as sample seal before the Magistrate vide request Ex.PF after taking the same from SI/SHO Gurchand Singh vide memo Ex.PE. The order passed by the Court in this regard was Ex.PF/1. On returning to Police Station, he handed over the case property to MHC with seals intact.
15. PW-2 Ashok Bath, DSP, as per the case of the prosecution was the Gazetted Officer before whom the alleged search of the accused was conducted, which led to the recovery of opium from his bag. He also corroborated the above-discussed statements of PW-1, ASI Harnek Singh and PW-5 ASI Swaran Singh. Further he proved the parcel containing remaining opium Ex.P1 and sample seal Ex.P2.
16. PW-3 SI Gurchand Singh, was the SHO Police Station Gidderbaha, on the relevant date. He had deposed about the production of GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document CRA-S-1410-SB-2001 [8] the case property before him by ASI Swaran Singh along with the accused on the said date. He also fixed his own seal bearing letters "GS" on both the parcels and retained the same in his possession. On the next date, he handed over both the abovesaid case property and the accused to ASI Harnek Singh, who produced the same before the Court vide application Ex.PF.
17. PW-4, HC Makhan Singh, PW-6 HC Jit Singh and PW-7 C.Jagga Singh were the formal witnesses in this case and they tendered in their evidence their respective affidavits, Exs.PG, PJ and PK.
18. The learned counsel for the appellant has contended that in the present case the alleged recovery of contraband is dated 12.02.1999 and whereas sample parcel of opium which was sent to the office of Chemical Examiner, Punjab, Chandigarh for analysis in this case is dated 06.02.1999. In order to elaborate his contention, he has submitted that sample of some other case had been sent to the office of Chemical Examiner, Punjab, Chandigarh, which is dated 06.02.1999 and as such, on the basis of test report Ex.PL submitted by the Chemical Examiner in this case, no finding qua the contents of the alleged sample parcel of this case could be recorded, since the sample parcel of this case had never been sent to the said office of Chemical Examiner. But on the other hand, the learned State Counsel has submitted that figure 6-0 before February, 1999 in the alleged test report Ex.PL is recorded to show the sample number and not as the date of the alleged recovery. He has further submitted that sample parcel of this case had very much been sent to the office of Chemical Examiner, Punjab, Chandigarh and the report submitted by this office Ex.PL is quite valid to record findings on its basis in this case. In order to adjudicate the above rival contentions of both the parties, I deem it expedient to discuss the GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document CRA-S-1410-SB-2001 [9] contents of this report in brief which are as under:-
"The sample seal chit bearing seal impressions of "AB"
"SS" and "GS" is pasted on the top of first front page of Form M-29. One sample Dabbi plastic containing 10 grams opium bearing seals of "SS" "AB" and "GS" is also recorded therein. Then the particulars of this case are recorded and it is mentioned that sample parcel of this case was sent to the office of Chemical Examiner, Chandigarh through C.Jagga Singh No.567, Muktsar. Then on the bottom, there is an endorsement bearing No.69/Exb. dated 15.02.1999 made from the office of Senior Superintendent of Police, Muktsar, regarding sending of sample parcel of this case to the office of Chemical Examiner, Punjab Government. Then on the reverse page of this form, there is endorsement 'report on the analysis of the sample of opium forwarded by SSP, Muktsar referred to his endorsement No.69/Exb. dated 15.02.1999'. Then it is also recorded that exhibit marked here 6-0-Feb-99 was received on 23.02.1999. This entry is also further made twicely with regard to the sample parcel.
From a careful perusal of this report Ex.PL of Chemical Examiner, Punjab it is found that figure 6-0 as pointed out by the learned counsel for the appellant is pertaining to the number of sample parcel and not with regard to the sample dated 06.02.1999. For the interpretation of the construction of any document, it is to be read as a whole and not in parts. So as a result thereof, the above contention of the learned counsel for the appellant is declined and disposed of accordingly. GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document
CRA-S-1410-SB-2001 [10]
19. The next contention of the learned counsel for the appellant is with regard to the delay of 11 days in sending the sample to the office of Chemical Examiner from the date of the alleged recovery. Herein he has contended that the alleged recovery of opium in this case was dated 12.02.1999 and whereas the sample parcel of this case was sent to the office of Chemical Examiner on 23.02.1999. Herein I deem it necessary to discuss the statement of PW-7 C. Jagga Singh through whom sample of this case was sent to the office of Chemical Examiner. He had tendered in his statement his duly sworn affidavit Ex.PK. As per his affidavit, the sample parcel of opium of this case was handed over to him on 15.02.1999 for depositing the same in the office of Chemical Examiner, Punjab Government, Chandigarh. He came to this office for the abovesaid purpose on 16.02.1999 on which date certain objections were raised by this office and parcel was returned. After removal of these objections, the sample opium parcel was again handed to him on 22.02.1999 which was deposited by him in the abovesaid office of Chemical Examiner, Punjab, Chandigarh on 23.02.1999. So in these circumstances, the delay of 11 days in depositing of sample parcel in the abovesaid office has been sufficiently explained and as such, it has no adverse effect on the merits of this case. Consequently, the above contention of learned counsel for the appellant is also turned down.
20. Then it is also submitted by the learned counsel for the appellant that CBI inquiry with regard to murder of three persons in a false encounter case was pending against SI Swaran Singh, the IO of this case. In the said inquiry, the present appellant and his uncle Hakam Rai had produced witnesses against said SI Swaran Singh and as a result thereof, he GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document CRA-S-1410-SB-2001 [11] was nursing a grudge against him and his uncle and had involved the appellant in the present case and his uncle Hakam Rai in an another case under the Act. His uncle Hakam Rai has been acquitted in that case, in which he was falsely involved by this Investigating Officer vide judgment dated 24.08.2001, Ex.DE passed by the learned Judge of Special Court, Muktsar. I have carefully gone through this judgment Ex.DE and found that Hakam Rai was the accused in this case, who has been acquitted vide this judgment in a case under Section 18 of the Act. The learned State Counsel has failed to show as to whether any appeal against the acquittal of Hakam Rai has been filed or not.
21. Then PW-1, ASI Harnek Singh in his cross-examination has admitted that a case under Section 302, IPC, was got registered against SI Swaran Singh by the CBI, which is pending. He does not know as to whether the accused and Hakam Rai had been pursuing that case against SI Swaran Singh and for this reason, he has been implicated falsely.
22. Then PW-5, ASI Swaran Singh, the Investigating Officer, in his cross-examination has also admitted that a case is registered against him, in which CBI had conducted an inquiry. This case relates to the time when he was posted as SHO at Malout. He does not know if witnesses were got examined by the accused. So the factum of CBI inquiry against SI Swaran Singh, Investigating Officer, is admitted by both the abovesaid PWs. Then they are not denying specifically the examination of witnesses by the present appellant and his uncle Hakam Rai in that inquiry. So as such, this plea of the learned counsel for appellant is held to be tenable and same is accepted accordingly.
23. Then the learned counsel for the appellant has pointed out GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document CRA-S-1410-SB-2001 [12] some material discrepancies in the statements of PW-1 ASI Harnek Singh and PW-5 ASI Swaran Singh, the Investigating Officer. According to PW- 1, ASI Harnek Singh, Gidderbaha is at a distance of 2 ½ / 3 kms. from the spot of recovery and whereas this distance as stated by PW-5, ASI Swaran Singh is of 5/6 kms.. Then according to PW-1, the Markfed factory is at a distance of about 1 ½ kms. from the spot of recovery and whereas the distance as stated by PW-5 qua this fact is of 3 / 4 kms. Then according to PW-1, Court complex Gidderbaha is at a distance of 2 ½ kms. from the spot of recovery and whereas according to PW-5, the said Court complex is at a distance of 4/5 kms. from the spot of recovery. Then according to PW-1, village Theri is at a distance of 1 km. from the spot of recovery, whereas according to PW-5 this distance is of 2 kms.. Then PW1 has stated that writing work was done by SI Swaran Singh, PW-5; whereas PW-5 has deposed that the writing work was done by ASI Harnek Singh under his dictation. Then PW-2 Ashok Bath DSP in this regard has deposed that writing work was done partly by PW-1 and partly by PW-5.
So the abovesaid material witnesses examined by prosecution are found to be discrepant on the material points, which certainly have an adverse effect on the case of prosecution. These also make their presence at the spot as well as the alleged recovery of contraband dubious.
25. In the light of above discussion and assessment of evidence of prosecution, it is held that prosecution has failed to establish the guilt of the accused beyond reasonable doubt. It is the well established law that more serious the offence, stringent the punishment, the stricter is the degree of proof. So this appeal is accepted. The impugned judgment and order of sentence under appeal are set aside. As a result thereof, the appellant is GAURAV SOROT 2015.01.09 10:34 I attest to the accuracy and authenticity of this document CRA-S-1410-SB-2001 [13] acquitted of the charge under Section 18 of the Act in this case by granting him benefit of doubt. He is ordered to be released in this case immediately if he is in custody and not required in any other case.
( GURMIT RAM )
December 22, 2014 JUDGE
Gaurav Sorot
GAURAV SOROT
2015.01.09 10:34
I attest to the accuracy and
authenticity of this document