Punjab-Haryana High Court
***** vs State Of Punjab on 8 December, 2011
Crl. Appeal. No. 202-SB of 2003 :1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
*****
Crl. Appeal. No. 202-SB of 2003
Date of decision : December 8, 2011
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Harjinder Kaur @ Billi and others
............appellants
Versus
State of Punjab
...........respondent
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CORAM: HON'BLE MR. JUSTICE GURDEV SINGH
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Present: Mr. Bipan Ghai, Senior Advocate with
Mr. Mandeep Kaushik, Advocate for the appellants.
Mr. A.S Brar, Sr. DAG, Punjab.
*****
GURDEV SINGH, J (ORAL)
The appellants/accused, Harjinder Kaur alias Billi, Bimla, Amarjit alias Ghugi and Gurdip Lal alias Deepa, have preferred this appeal against the judgment dated 13.12.2002 passed by the Judge, Special Court, Jalandhar, vide which he convicted all the accused for the offence under Section 15 of the Narcotic Drugs and Pshycotropic Substances Act, 1985 (for brevity `the Act') and sentenced them to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- each and in default thereof to further undergo rigorous imprisonment for a period of six months.
The prosecution story, in brief, is that on 16.3.2001, Swaran Singh SHO, SI, PW-5 along with Jagan Nath, ASI, PW-6 and other police officials was present in Talwan Chowk, Nurmahal where Crl. Appeal. No. 202-SB of 2003 :2: he received a secret information that all the accused indulge in selling poppy husk in wholesale and retail in their room meant for storing chaff, adjoining their residential house and in case a raid was conducted, such poppy husk in huge quantity could be recovered from their possession. On the receipt of that information, the SHO sent a message on wireless to DSP, Phillaur, and he along with his companions started towards house of the accused. Nirmala, lady SPO met the police party in bus stand Nurmahal and was joined in it. When they reached near Bus Stand, Nurmahal, Surinder Kaur, Municipal Councillor, met this police party and he was joined as an independent witness. When the raid was conducted at the house of Harjinder Kaur accused, she along with Bimla was found sitting on the bags in the room meant for storing chaff and other two accused were found standing by their side. However, both those accused managed to escape after scaling the wall. Amarjit Kaur and Bimla accused were apprehended. The other two accused were identified by Jagan Nath, ASI, as they were known to him earlier also and he disclosed their names as Gurdip Lal alias Deepa and Amarjit Lal alias Ghugi. In the meanwhile, Ashok Bath, DSP reached the spot, who disclosed his identity to these lady accused and told them that there was some objectionable substance in the bags for which the search was to be conducted and whether some Magistrate should be called to the spot for that purpose. Both of them reposed faith in the DSP and accordingly memos regarding their consent Ex.PC and Ex.PD were prepared, which were thumb marked by them. Thereafter, the DSP directed the SHO that the search be conducted Crl. Appeal. No. 202-SB of 2003 :3: in the presence of Nirmala, SPO. When the search was taken, seven bags were found at the spot which contained poppy husk. Sample of 250 gms of poppy husk from each bag was taken out and the remaining poppy husk of each bag was found to weigh 34.750Kgms. Samples were converted into parcels and the same and remaining contents of the bags were sealed by the SHO with his seal bearing impression SS and with the seal of the DSP bearing impression AB. The SHO after preparing specimen seals handed over his seal to the independent witness. The accused could not produce any licence or permit for keeping that poppy husk in their possession. The case property was taken into possession, vide memo Ex.PE. The SHO prepared the rough site plan Ex.PG of the place of recovery and on coming back to the police station deposited the case property with Harjinder Pal Singh, Moharrir Head Constable, PW-1 without tampering with the contents thereof. On 17.3.201, the case property was handed over by the said MHC to Jagan Nath, ASI for producing the same before the Illaqa Magistrate. After producing the case property before the Magistrate, the same was redeposited with that MHC on the same date. The sealed sample parcels, out of the case property, were sent to the Office of the Chemical Examiner on 21.3.2011 through Sukhraj Singh, Constable and were delivered at that place with seals intact. After analysis it was reported by the Chemical Examiner that those sampled parcels contained poppy husk. After the completion of investigation, the challan was put in before the Judge, Special Court for the trial of the accused, as aforesaid.
Crl. Appeal. No. 202-SB of 2003 :4:
On appearance of the accused, before the Judge, Special Court, mandatory provisions of Section 207 Cr.P.C were complied with by supplying them with the copies of the documents sent along with police report and relied upon by the prosecution. From the perusal of those documents and after hearing PP for the State and the accused in person, sufficient ground were found for presuming that they committed offence punishable under Section 15 of the Act. They were charged accordingly, to which they pleaded not guilty and claimed trial.
For proving the guilt of the accused, prosecution examined Head Constable Harjinder Pal Singh as PW-1, SI Vijay Kumar as PW-2, Constabel Sukhraj Singh as PW-3, DSP Ashok Bath as PW-4, Inspector Swaran Singh as PW-5, ASI Jagan Nath as PW-6.
After evidence was closed by the prosecution, the accused were examined by the Judge, Special Court and their statements were recorded under Section 313 Cr.P.C. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence and false implication. It was stated by Harjinder Kaur, accused that the place from where the recovery was effected does not belong to her and no such poppy husk was recovered from her house or from her possession. She is a widow. SHO, Swaran Singh, ASI Jagan Nath, HC Nirmal Singh and HC Sarabjit Singh of Police Station Nurmahal are on inimical terms with her and they had Crl. Appeal. No. 202-SB of 2003 :5: been usually using indecent words for her and her daughter Bimla, regarding which she had given application Ex. D1 to DSP, Phillaur on 25.9.2000 against the said police officials. All these police officials were summoned and reprimanded by the DSP and on that account they were nursing a grudge against her. On account of that, grudge, she herself and the other co-accused, who are his family members, have been falsely implicated. Similar plea was taken by the other accused. They were called upon to enter their defence. They examined Surinder Kaur, DW-1 in their defence evidence.
After going through the evidence so produced on the record and hearing PP for the State and learned defence counsel for the accused, the Judge Special Court convicted and sentenced the accused, vide the aforesaid judgment.
I have heard learned counsel for both the sides.
It has been submitted by the counsel for the accused that Swaran Singh SHO, SI PW-5 and Jagan Nath ASI, PW-6, who have deposed about the present recovery, were inimical towards the accused, as Harjinder Kaur accused had given application Ex.D1 against them before the higher authorities and they were called in connection therewith and were reprimanded. In order to take revenge, they manipulated the present recovery against them. There is total non-compliance of Section 42 of the Act as no information in writing after the receipt of the said secret information was sent by the SHO to his superior Officer. The recovery is said to have been made on account of the search of the house but no evidence has been produced by the prosecution for proving that any of the accused was Crl. Appeal. No. 202-SB of 2003 :6: the owner of the house. The story put forward by the prosecution is highly improbable as no person during the midnight would be sitting on the bags containing poppy husk, in his own house. The prosecution has failed to prove that the accused were in conscious possession of poppy husk. Amrajit Lal and Gurdip Lal accused are said to have slipped from the place of recovery, which is not believable, keeping in view the number of members of the raiding party. From the statement of ASI, Jagan Nath, it cannot be said that they were already known to him and he was in a position to identify them. The identification made by the prosecution witnesses for the first time in the Court is meaningless and no reliance can be placed upon the same. He further submitted that there is total non- compliance with the provisions of Section 100(4) Cr.P.C. No one from the locality was joined in the police party before conducting the search of the house. Therefore, no reliance can be placed upon such recovery. In the last it is submitted that there is a delay of five days in sending the sample parcels to the Chemical Examiner, which is fatal to the prosecution.
It has been submitted by the State counsel that from the statements of the prosecution witnesses it stands proved that all the accused were in conscious possession of the poppy husk contained in seven bags. Samples from those bags were taken out and sent to Chemcial Examiner and were found to contain poppy husk. The Investigating Officer joined Surinder Kaur before conducing search of the house and while appearing as DW-1, she admitted her signature on all the documents prepared at the spot and that fact is sufficient Crl. Appeal. No. 202-SB of 2003 :7: for proving that she was present when the seach of the house was conducted and the recovery was made. Subsequently, she was won over by the accused and deposed accordingly. He also submitted that the provisions of Section 42 of the Act are only directory in nature and no adverse inference can be drawn against the prosecution for the non-compliance thereof. The said application Ex.D1 was given in the year 2000, whereas the present recovery was effected in the year 2001 and it cannot be said that in order to take revenge, a false case has been planted upon the accused.
The prosecution case in the Court was unfolded by Swaran Singh, SHO, PW-5. He deposed in detail about all the facts which constitute the prosecution case and are contained in para no.2 of this judgment. He stated that a secret information was received against the accused that they were habitual in selling poppy husk and in case a raid was conducted on their residential house, such poppy husk in large quantity could be recovered. Thereafter, wireless message was sent to DSP, Phillaur and Nirmala SPO and Surinder Kaur were joined in the police party before conducting a raid at the house of the accused. When the raid was conducted, Harjinder Kaur @ Billi and Bimla were found sitting on the bags, whereas, two young persons standing on their side managed to escape and were identified by Jagan Nath, ASI. After the DSP came to the spot, he disclosed his identity to the accused and asked if they wanted the search to be effected in the presence of a Magistrate. They reposed confidence in him. Thereafter, search was carried out which resulted in the recovery of poppy husk from the Crl. Appeal. No. 202-SB of 2003 :8: seven bags, on which the accused were sitting. He also deposed about the taking of the samples out of those bags, converting those into parcels and sealing the same and remaining contents of the bags with seals bearing impressions `SS' and `AB', preparing rough site plan and sending of those samples to the Chemical Examiner. Statement of the Investigating Officer has been fully corroborated by Jagan Nath, ASI, PW-6 and Ashok Kumar, DSP, PW-4.
According to the Investigating Officer, Surinder Kaur was joined by them in the police party as independent witness but she was not examined by the prosecution in the Court and was given up as having been won over by the accused. The accused examined her in their defence as DW-1. She stated that she is the Municipal Counsellor of Nagar Council, Nurmahal and the house of the accused is situated at a distance of about one kilometer from her house and they do not deal in the business of poppy husk. She was never joined in the police party by Swaran Singh, SHO and Jagan Nath, ASI nor she had gone to the house of the accused nor any such poppy husk was recovered from them. She also stated that the said police officers were on inimical terms with the accused and they have falsely implicated them in this case.
No doubt this witness during her cross-examination admitted her signatures on the memos and recovery memos but she volunteered to add that her signatures were obtained by the police on blank papers. According to her the date was written on the papers when her signatures were obtained. She denied the fact that she had joined the police party and the recovery was effected in her Crl. Appeal. No. 202-SB of 2003 :9: presence. From the circumstances, it appears that reliance is to be placed upon the statement of this defence witness. According to the Investigating Officer he had not handed over his seal, after sealing the case property, to the present defence witness. It is rule of caution, which has almost crystalized into a rule of law, that if the police party is accompanied by an independent witness, the seal used for sealing the case property must be handed over to such an independent witness so as to rule out the possibility of tampering with the contents thereof. The seal after use was handed over to another police official and not to this independent witness. When the explanation to that effect was asked from the police officer, during his cross-examination, he replied that she had refused to accept that seal. If that was the fact, he was required to record that fact in the police diary. He admitted that he had not mentioned that fact in the police diary. In case of refusal of the independent witness to receive the seal, he was to take proceedings against him but no such proceedings were taken. This fact is also to be judged in the light of the defence of the accused. According to them, a written application Ex.D-1 was given against the said two police officials to the DSP, Phillaur by Harjinder Kaur and on that account they were inimical towards her and her family members. When the factum of the presentation of that application to the higher authorities was put to the Investigating Officer, he could not deny that fact and merely showed his ignorance. Had the application not been given against him he must have denied that fact.
The story, as put forward by the Investigating officer, is Crl. Appeal. No. 202-SB of 2003 :10: highly improbable. It cannot be believed that at 11:00 p.m in the night, the accused would be sitting on the bags of poppy husk in their own house. Neither any evidence was collected during the investigation nor was produced during the trial to prove that any of the accused was owner of the house from where the recovery is alleged to have been effected. It appears that in order to make a false case for conscious possession, the story that two of the accused were sitting on the bags and the other two were standing by their side, was put up. Even if the story of the prosecution that Amarjit Lal and Gurdip Lal accused were standing by the side of the the accused and the bags, is believed, even then they cannot be said to be in the conscious possession of the contraband contained in those bags, in the absence of the evidence to the effect that they were either the owners or in possession, in any capacity, of the house, from where the recovery was effected. Therefore, they could not have been convicted for the aforesaid offence.
It is a case where there is total non compliance of the mandatory provisions of Section 42 of the Act. As per that Section after the secret information was received by the SHO against the accused that they were having in their possession poppy husk, he was required to send information in writing to that effect to his superior officer. No such information in writing was sent by him. No doubt he stated that he had sent a wireless message to DSP, Phillaur, but neither he stated as to what were the details of that message nor any such writing or wireless message has been proved on the record so as to ascertain the contents thereof. Moreover, Crl. Appeal. No. 202-SB of 2003 :11: mere sending of information through wireless after the receipt of such secret information does not amount to compliance of the mandatory provisions of Section 42 of the Act. Reference in that record can be made to : Rajender Singh vs. State of Haryana 2011(3) RCR (Crl.)
856. There is catena of judgments of the Apex Court itself to the effect that the provisions contained in Section 42(2) of the Act are mandatory in nature. It was mandatory for the police official, who received such a secret information, to reduce the same in writing and forward the same to his Superior Officer and non-compliance thereof vitiates the trial itself. Reference in that regard may be made to State of Karnatka vs. Dondusa Namasa Baddi 2010 (4) Crl. Court Cases, 429 S/C and State of Rajasthan vs. Shanti 2010 (1) Crl. Court Cases 296 (S/C).
As per the prosecution story, it was Surinder Kaur who was joined in the police party as an independent witness before conducting the search of the house. No evidence has been produced for proving that she was a witness from the locality where the said house was situated. Rather it appears from her statement, as DW-1, that she belongs to other locality. As per Section 100(4) Cr.P.C, the house was to be searched in the presence of two respectables from the locality. The non-compliance with the provisions of that Section also creates a doubt in the recovery and is a circumstance against the prosecution. As per Section 42(1), the house could have been searched by the Investigating Officer without a search warrant but only during the day time meaning thereby that if Crl. Appeal. No. 202-SB of 2003 :12: the same was to be searched between sunset and sunrise, he was required to obtain authorization to that effect or search warrant. It is neither the case of the prosecution nor any evidence was produced before the trial Court that there was a search warrant or authorization for conducting the house search at 11:00 p.m. The non-compliance of that mandatory provision also vitiates the trial.
Admittedly, the sample parcels were sent to the Chemical Examiner on 20.3.2001, whereas the same were taken on 16.3.2001. However, this delay will become immaterial in case the prosecution ables to prove that the contents of those sample parcels were not tampered with during the intervening period. The prosecution has miserably failed to prove that aspect. According to Swaran Singh, Inspector, PW-5 he had deposited the case property with seals intact with Harjinder Pal Singh, MHC. When that MHC stepped into the witness box as PW-1, he proved on record his affidavit Ex.PA, in which he corroborated the statement of Investigating Officer. He also deposed therein that on 17.3.2001, he had handed over the case property to Jagan Nath, ASI for producing the same before the Illaqa Magistrate and it was redeposited with him on the same day by the said ASI. But when Jagan Nath, ASI made his statement in the Court as PW-6, he did not make his statement regarding those facts. Once the case property came to his possession he was to prove that he had not tampered with the contents thereof during the period the same remained in his possession. He failed to prove that fact. Thus, the possibility of tampering with the contents of the sample parcels during the intervening period cannot be ruled out and the delay in Crl. Appeal. No. 202-SB of 2003 :13: sending the samples to the Chemical Examiner assumes much importance. Therefore, it cannot be said that the sample parcels which were sent to the Chemical Examiner and were found to contain poppy husk were the same which were taken at the spot. In these circumstances, it cannot be held that the said bags contained poppy husk.
In view of the above discussion, the present appeal is hereby accepted. Conviction and sentence of the accused is set aside. In case they are in custody, they be set at liberty. The fine, if already deposited, be refunded to them. This order be certified to the Judge, Special Court for necessary compliance. Records be returned forthwith.
December 8, 2011 ( GURDEV SINGH ) ritu JUDGE