Punjab-Haryana High Court
Nachhattar Singh vs State Of Haryana on 10 October, 2013
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
Crl. Appeal No.677-SB of 2003 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 677-SB of 2003 (O&M)
Date of decision: 10.10.2013
Nachhattar Singh
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr. Sandeep Punchhi, Advocate for the appellant.
Mr. Ajay Gulati, DAG, Haryana.
****
Jitendra Chauhan, J.
Convict Nachhattar Singh has filed this criminal appeal assailing his conviction and sentence ordered by learned Additional Sessions Judge, Sirsa vide judgment and order dated 20.03.2003, thereby convicting the appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the 'Act') and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of `1,00,000/- and in default of payment thereof, to undergo further rigorous imprisonment for two years.
The case of the prosecution as per judgment of the trial Court is as under:-
"On 01.01.1999, ASI Hans Raj, Police Station Baragudha, was present at bus stand of village Bhangu in Govt. Jeep No.HR-05-3589 in connection Sumit Kumar 2013.10.31 16:20 I attest to the accuracy and integrity of this document Crl. Appeal No.677-SB of 2003 (O&M) -2- with patrolling duty. On the basis of a secret information to the effect that accused Nachhattar Singh habitually sells poppy straw, ASI Hans Raj organized a raiding party. Thereafter, he raided the dhani of the accused. Accused Nachhattar Singh was found sitting on some bags in his kohta. Another person standing nearby fled the spot on seeing the police party. Accused Nachhattar Singh was apprehended at the spot. He was served with a notice under Section 50 of the NDPS Act asking him as to whether he desired his search before any gazetted officer or a Magistrate. Accused Nachhattar Singh desired his search before a gazetted officer or Magistrate. Sh. Pritam Singh, DSP (Headquarters) Sirsa was called to the spot. After his arrival, three bags recovered from accused Nachhattar Singh were searched. Each bag was found containing 35 kgs of poppy straw. Two samples each weighing 100 grams were removed from each bag. All the samples as well as residue bags were seized vide recovery memo Ex.PC after being duly sealed. Requisite FIR was got registered by sending a ruqa. Statements of witnesses were recorded. Rough site plan was prepared. The accused, alongwith case property and witnesses were produced before Vijay Kumar, SHO, Police Station Baragudha. He affixed his own seals upon the samples as well as upon the residue bags. Case property was deposited in police malkhana. After the conclusion of investigation, challan against accused was presented in the Court."
On presentation of challan, the trial Court finding prima facie charge against accused-appellant Mukhtiar Singh, framed charge for Sumit Kumar 2013.10.31 16:20 I attest to the accuracy and integrity of this document Crl. Appeal No.677-SB of 2003 (O&M) -3- the offence under Section 15 of the Act. The accused pleaded not guilty to above charge and claimed trial.
In support of its case, the prosecution examined PW-1 ASI Balwan Singh; PW-2 Head Constable Kishan Singh; PW-3 Head Constable Rajbir Singh; PW-4 Constable Chander Bhan; PW-5 ASI Hans Raj; PW-6 SI/SHO Vijay Kumar; PW-7 Gurbaksh Singh and PW-8 DSP Patram Singh.
The statement of the accused under Section 313 Cr.P.C., was recorded. He pleaded innocence and alleged false implication. In defence, the accused had examined DW-1 Constable Jagmal Singh; DW-2 Constable Raghbir Singh and DW-3 HC Hawa Singh.
After hearing the Public Prosecutor for the State, the Counsel for the accused, and after going through the evidence on record, the trial Court convicted and sentenced the accused/appellant, as stated hereinbefore.
Feeling aggrieved, against the judgment of conviction delivered by the trial Court, the instant appeal was filed by the accused/appellant which was admitted on 08.04.2003.
Learned counsel for the appellant has contended that the accused has been falsely implicated in the present case. Although there was secret information with the police, the same was not reduced into writing nor sent to the immediate superior officer and, therefore, there has been total non-compliance of Section 42 of the Act entitling the appellant to acquittal. Learned counsel has placed reliance upon Gurnam Kaur and others Vs. State of Punjab 2006(3) R.C.R. (Criminal) 984 Sumit Kumar 2013.10.31 16:20 I attest to the accuracy and integrity of this document Crl. Appeal No.677-SB of 2003 (O&M) -4- and Karnail Singh Vs. State of Haryana 2009(5) RCR (Criminal) 515.
Learned counsel has further argued that there is unexplained delay of 12 days in sending the sample to the chemical examiners, so the possibility of tampering with contraband cannot be ruled out. To support his contention, learned counsel has placed reliance upon Jagmohan Singh @ Jago Vs. State of Punjab 2007(3) RCR (Criminal) 900.
The next contention raised by learned counsel for the appellant is that the seal after use was not given to the independent witness i.e. PW-7 Gurbax Singh, so the story of joining the public witness seems to be false. Further PW-7 Gurbax Singh admitted in his cross examination that his signatures were obtained by the police on blank papers and nothing was recovered in his presence.
Learned counsel has further submitted that as per the prosecution story the alleged recovery was effected from the dhani of the accused but there is no evidence regarding ownership of the said dhani. A raid was conducted on the house of the accused/appellant but no public person or neighbour was called at the time of house search, so there is non compliance of Section 100 of the Code of Criminal Procedure.
Lastly, the learned counsel for the appellant has contended that the appellant/accused has already undergone 01 years, 11 months and 13 days out of substantive sentence imposed upon him. Therefore, he may be acquitted from the charges leveled against him.
On the other hand, Mr. Ajay Gulati, Deputy Advocate General, Haryana, has submitted that as apparent from the FSL report, the specimen seal impression tallied with the seal affixed on the sample Sumit Kumar 2013.10.31 16:20 I attest to the accuracy and integrity of this document Crl. Appeal No.677-SB of 2003 (O&M) -5- parcel when it was received in the office of FSL, which nullifies the contention raised by learned counsel for the appellant. Even, there was no previous enmity of any of the official witnesses against the accused before registration of the present FIR. The appellant/accused has rightly been convicted by the trial Court. The appellant/accused was found in possession of the contraband and has rightly been convicted by the trial Court.
This Court has heard the arguments of the learned counsel for the appellant and the learned State counsel and has carefully gone through the record of the case.
The recovery was effected on 1st January, 1999 and the sample parcel was sent to FSL Laboratory on 13th January, 1999. Obviously, there is a delay of 12 days in sending the sample. As observed by the Division Bench of this Court in Parminder Singh vs. State of Haryana 2006(4) Recent Criminal Reports (Crl.), 495(DB), according to the Narcotic Control Bureau Instructions, the sample parcel should have been deposited within 72 hours with the Chemical Examiner. Herein, the prosecution has not given any explanation for withholding the sample for such a long time.
The next contention of learned counsel for the appellant is that the seal after use was not handed over to independent witness. A careful perusal of the prosecution evidence shows that there are certain loop holes which have not been plugged. The trial Court has convicted the appellant on the testimony of police officials. It is true that the Sumit Kumar 2013.10.31 16:20 I attest to the accuracy and integrity of this document Crl. Appeal No.677-SB of 2003 (O&M) -6- testimonies of police officials cannot be brushed aside being interested witnesses but while considering its probative value, the Court must also be cautious against false implication. There must be some independent corroboration also. Seal after use must have been handed over to the independent witness who was joined in the investigation but the same was not done which causes a dent in the prosecution story.
In the present case, the secret information was not reduced into writing and the copies of the same were not sent to the higher officer. Hans Raj PW-5, admitted in his statement that he did not reduce the secret information into writing, which amounts to non compliance of Section 42 (a) of NDPS Act. Further the presence of alleged public witness Gurbax Singh PW-7 is not established at the place of recovery because in the present case, seal after use was not given to him, rather, it was given to PW-2 Krishan Singh, so the story of joining the public witness seems to be false and proved fatal to the case of the prosecution.
PW-7 Gurbax Singh has stated that in his presence nothing was recovered and in his cross examination he stated that his signatures were obtained by the police on blank papers, so the whole case of the prosecution is shattered by the evidence of PW-7 Gurbax Singh. The recovery was allegedly effected from the dhani of the accused, but the prosecution fails to prove that who is the owner of the dhani. There is no evidence on file that the accused/appellant is the owner of the alleged dhani or the owner of the adjoining land, in which the dhani is situated. No document was procured by the prosecution from the revenue record Sumit Kumar 2013.10.31 16:20 I attest to the accuracy and integrity of this document Crl. Appeal No.677-SB of 2003 (O&M) -7- regarding the ownership of the dhani. The prosecution has failed to prove the conscious possession of the case property. The accused is said to have been sitting on the bag in his house which is quite impossible.
This is a case of house search as alleged by the prosecution and many houses were situated near the house of the accused/appellant and the house was raided on the secret information, but no public person or neighbour was called at the time of house search, which is mandatory as per Section 100 (4) Cr.P.C. At the time of house search, two or more persons must be joined from the same locality, but in this case, non compliance of Section 100(4) Cr.P.C. also proved fatal to the case of prosecution. The other family members of the family of the accused are residing in the same house, but they were not questioned regarding presence of contraband in the house.
In view of the foregoing discussion, this appeal is allowed. The judgment of conviction and order of sentence passed by the trial Court are set aside. The appellant is acquitted of the charge levelled against him. He be set at liberty if not required in any other case.
10.10.2013 (JITENDRA CHAUHAN)
sumit.k JUDGE
Note:- Whether referred to reporter or not - Yes / No Sumit Kumar 2013.10.31 16:20 I attest to the accuracy and integrity of this document