Punjab-Haryana High Court
At Chandigarh vs State Of Punjab on 16 September, 2013
Author: K.C.Puri
Bench: K.C.Puri
Verma Sunil
2013.10.09 12:09
Criminal Appeal No.S.997 SB of 2010 1 I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court
Chandigarh
IN THE HIGH COURT OF PUNJAB AND PUNJAB
AT CHANDIGARH
Criminal Appeal No.S.997 SB of 2010
Date of decision 16 .9.2013.
Kala
...... Appellant.
versus
State of Punjab
...... Respondent.
Criminal Appeal No.S.1253 SB of 2010
Chhindo
...... Appellant.
versus
State of Punjab
...... Respondent.
Criminal Appeal No.S.1313 SB of 2010
Mohinder Singh
...... Appellant.
versus
State of Punjab
...... Respondent.
Present :- Shri P.P.S.Duggal, Advocate, Mr. Saurabh Chugh,Advocate
and Shri S.S.Rana, Advocate for the appellant, in all above
appeals.
Shri S.S.Chandumajra, Senior DAG, Punjab.
Criminal Appeal No.S. 608 SB of 2011
Jaswant Singh and another
...... Appellants.
Verma Sunil
2013.10.09 12:09
Criminal Appeal No.S.997 SB of 2010 2 I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court
Chandigarh
versus
State of Punjab
...... Respondent.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Shri Sidakmeet Sandhu, Advocate for
Shri S.S.Rana, Advocate for the appellant.
Shri S.S.Chandumajra, Senior DAG, Punjab.
K.C.PURI, J.
By this common judgment, I intend to dispose of Criminal Appeal No.S.997 SB of 2010 titled as Kala versus State of Punjab ; Criminal Appeal No.S.1253 SB of 2010 titled as Chhindo versus State of Punjab Criminal ; Appeal No.S.1313 SB of 2010 titled as Mohinder Singh versus State of Punjab and Criminal Appeal No. S. 608 SB of 2011 titled as Jaswant Singh and another versus State of Punjab; as all these appeals have arisen out of the same incident, judgment and order. For convenience, facts are being taken from Criminal Appeal No.S.997 SB of 2010 titled as Kala versus State of Punjab.
2. Appellants Basant Kumar @ Bhundi, Jaswant Singh alias Jassa, Balwinder Singh, Kala, Chhindo and Mohinder Singh have directed their separate present appeals against the judgment and order dated 1.4.2010 vide which they were convicted and sentenced to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Verma Sunil 2013.10.09 12:09 Criminal Appeal No.S.997 SB of 2010 3 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh Rs.1,00,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of two years each in a case FIR No.161 dated 13.5.2005 registered at Police Station Sadar Jalalabad under Section 15 of the Narcotic Drugs & Psychotropic Substance Act, 1985 ( in short - the Act).
3. Brief facts of the prosecution case are that on 13.5.2005 SI Harcharan Singh along with HC Salwinder Singh, HC Bhagwan Singh and other police officials was present at bus stand Mahalam in connection with patrolling where he received a secret information against accused Kala Singh, Chhindo, Mohinder Singh, Balwinder Singh and Jaswant Singh that they are habitual for selling poppy husk and if a raid is conducted on the seepage drain of village Kathgarh, they could be apprehended with poppy husk as they are bringing the same on a tractor trolley. Then ASI Harcharan Singh Investigation Officer sent request to the Police Station for registration of case against the accused, on the basis thereof FIR was registered. Thereafter a naka was held at the stated place and at about 2.15p.m. all the accused came on a tractor trolley from the side of village Palliwala. On suspicion signal was given to stop tractor trolley. On seeing the police party, accused Kala Singh, Mohinder Singh and Chhindo succeeded in running and despite efforts they could not be arrested. At that time accused Jaswnt Singh was driving the tractor trolley bearing registration No. PBM- 6438 and accused Balwinder Singh was sitting on the mudguard of the tractor. Then the Investigating Officer told accused Jaswant Singh and Balwinder Singh that he has suspicion that there is some intoxicant material in the plastic bags lying in the trolley and the search of the same is to be Verma Sunil 2013.10.09 12:09 Criminal Appeal No.S.997 SB of 2010 4 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh conducted. However, the accused were asked whether they wanted to get the search conducted in the presence of some Gazetted Officer and they preferred the search in the presence of a Gazetted Officer. Accordingly DSP Sarabjit Singh was called at the spot. On his arrival, DSP disclosed his identity to both the accused and further directed the investigating officer for conducting the search. On search four bags loaded with poppy husk were recovered from the trolley. One sample of 250 grams of poppy husk was separated from each of the bag and their parcels were prepared. The remaining poppy husk on weighment was found to be 35kgs in each bag. The same was put in the same bags and their parcels were prepared. Thereafter all the samples and all the four bags were sealed by the investigating officer with his seal bearing impressions HS and by the DSP with his seal bearing impressions SS. The above said case property was taken into possession. Site plan of the place of occurrence was prepared. Statements of the PWs were recorded. The accused were arrested. After completion of necessary investigation, challan against the accused was presented.
4. On appearance of the accused, copies of documents were supplied to the accused free of costs. Charge under Sections 15 © of the Act was framed against the accused to which they pleaded not guilty and claimed trial.
5. In order to prove its case prosecution examined Constable Karaj Singh (PW-1), ASI Harcharan Singh (PW-2), SI Hari Singh (PW-3), S.P. Sarabjit Singh (PW-4), HC Bhagwana Singh (PW-5) and the evidence of the prosecution was closed by order of the Court on 8.1.2010.
Verma Sunil 2013.10.09 12:09 Criminal Appeal No.S.997 SB of 2010 5 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh
6. After closure of the prosecution evidence statements of the accused were recorded under Section 313 Cr. P. C., and all the incriminating evidence were put to them to which they denied the same and pleaded their false implication. They did not lead any evidence in defence.
7. The trial Court after hearing the learned counsel for the parties convicted and sentenced the accused-appellants vide judgment and order dated 1.4.2010, as aforesaid.
8. Feeling dissatisfied with the aforesaid judgment and order dated 1.4.2010, present appeals have been directed by all the accused.
9. Learned counsel for the appellants Kala, Chhindo and Mohinder Singh have submitted that according to the case of the prosecution secret information was received against these three appellants along with other co-accused Jaswant Singh and Balwinder Singh that they are indulging in selling of intoxicants i.e. poppy husk. It is further submitted that appellants Kala, Chhindo and Mohinder Singh were sitting in the trolley whereas Jaswant Singh was driving the tractor-trolley and Balwinder Singh was sitting on the mudguard. It is further alleged by the prosecution that Jaswant Singh and Balwinder Singh were arrested at the spot whereas appellants Kala, Chhindo and Mohinder Singh ran away from the spot. The names of appellants Kala, Chhindo and Mohinder Singh were disclosed by Jaswant Singh and Balwinder Singh accused. It is further submitted that appellants Kala, Chhindo and Mohinder Singh were not previously known to any of the prosecution witnesses. The prosecution in order to prove its case examined ASI Harcharan Singh ( PW-2). In the Verma Sunil 2013.10.09 12:09 Criminal Appeal No.S.997 SB of 2010 6 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh cross-examination, this witness has admitted that no recovery was effected from appellants Kala, Chhindo and Mohinder Singh. He has further stated that accused fled away from the rear side of trolley. So, he could not identify them. The other star witness produced by the prosecution to prove its case is SI Hari Singh (PW-3) investigating officer. This witness in the cross- examination has categorically admitted that no test identification was got conducted. He has further stated in the cross-examination that these three accused were later on arrested on the basis of information given by Jaswant Singh and Balwinder Singh. It is submitted that the police party was consisted of five persons and they were armed with weapon. The occurrence took place in the day light. The story of running away all three three persons from the spot is not believable. SI Hari Singh Thakur had also no personal knowledge about these three accused namely Kala, Chhindo and Mohinder Singh. Appellants Kala and Chhindo were produced by ex-sarpanch on 11.7.2005 whereas Mohinder Singh was stated to be arrested on7.10.2005 i.e., about five months of the occurrence. So, it is submitted that there is serious dispute regarding identity of all the three appellants Kala, Chhindo and Mohinder Singh. In authorities Tara Ram @ Tara vs. State of Punjab reported in 2013 (2) RCR (Criminal ) page 734 and Devinder Kumar vs. State of Punjab reported in 2012(1) PLR page 419, Division Benches of this Court acquitted the accused where they were stated to have run away from the spot and no test identification parade was conducted and prosecution witnesses have no personal knowledge about these three accused. It is further submitted that single Bench of this court Verma Sunil 2013.10.09 12:09 Criminal Appeal No.S.997 SB of 2010 7 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh in authority Raja alias Raj Singh alias Sukhmeet Singh vs. State of Haryana reported in 2009 (5) RCR (Criminal) page 747 acquitted the accused under similar circumstances where the identity of the accused as the perpetrator of crime was not established and the accused were not previously known to any member of the police party though their name was mentioned in the ruka but identification parade was not arranged.
10. Learned counsel for all the appellants have further submitted that there is non-compliance of Section 42 of the Act as no information was sent to higher authorities regarding recovery.
11. Learned counsel for all the appellants have further submitted that prosecution has failed to prove the conscious possession of all the accused/appellants including Jaswant Singh and Balwinder Singh. No question regarding conscious possession was put to them under Section 313 of the Cr.P.C. and as such the conviction recorded by the trial Court is bad. It is further submitted that only one sample was drawn on that account also the prosecution story is doubtful.
12. Learned counsel for all the appellants have further submitted that investigating agency has not tried to find out the source of contraband. No step was taken to find out from where such a huge quantity of poppy husk has come into the possession of Jaswant Singh and Balwinder Singh.
12. Learned counsel for all the appellants have further relied upon authorities Gurnam Singh vs. State of Punjab reported in 2006 (3) RCR (Criminal) page 205 and Kashmir Singh vs. State of Punjab reported in 2006 RCR (Criminal) page 477.
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13. The learned State counsel has supported the judgment and order of the trial court.
14. I have considered the submissions made by both the sides and have gone through the records of the case.
15. In this case there are two sets of accused ; one consists of Jaswant Singh driver and Balwinder Singh, who is stated to be sitting on the mudguard of the tractor. Both of them were arrested at the spot and recovery of contraband stated to be taken place from the trolley attached to the tractor. The other set consisted of appellants Kala, Chhindo and Mohinder Singh, who were stated to have run away from the tractor-trolley. The name of all the accused find mention in the FIR.
16. First of all, cases of appellants Jaswant Singh and Balwinder Singh have to be considered.
17. The arguments advanced by the learned counsel for the appellants-Jaswant Singh driver and Balwinder Singh, that origin of poppy husk has not been investigated by the investigating agency is wrong on the fact of it. In the FIR itself it has been mentioned that poppy husk is being brought from Hindumalkot Rajasthan to be supplied in the village.
18. So far as the submission made by counsel for the appellants that there is non-compliance of Section 42 of the Act is concerned that submission is also without any substance.
19. According to the investigating officer Harcharan Singh SI, accused-appellants Jaswant Singh driver and Balwinder Singh, were given offer to be searched before Gazetted Officer or Magistrate and in this regard they executed memos Ex.P-5 and P-6 and thereafter DSP Sarabjit Singh, Verma Sunil 2013.10.09 12:09 Criminal Appeal No.S.997 SB of 2010 9 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh the Superior Officer was summoned at the spot and the recovery of the contraband has taken place in his presence. Jaswant Singh was driving the tractor and Balwinder Singh accused was sitting on the mudguard and contraband was found from the trolley attached to the tractor being driven by Jaswant Singh and in accordance with Section 35 and 54 of the Act, conscious possession of contraband is proved, therefore, it shall be presumed that those accused are in conscious possession of the contraband.
20. In authority Karam Singh's case (supra) it has been held that the said presumption is rebuttable but accused Jaswant Singh and Balwinder Singh have failed to rebut that possession. Such a huge quantity of contraband cannot be said to be planted upon them.
21. So far as the arguments advanced by counsel for appellants Kala, Chhindo and Mohinder Singh to the effect that their identity has not been established by the prosecution carries weight and has to be accepted. No doubt, name of three accused appear in the secret information and the case of the prosecution is that they fled away from the place of occurrence and their names were disclosed by accused Jaswant Singh and Balwinder Singh but the story in this regard seems to be unnatural. It is not possible that in the day light in the presence of five police officials these three accused could run away from the spot. It is also not disputed during the course of argument that none of these three accused were previously known to any of the police official in the raiding. SI Hari Singh Thakur has stated that these three accused were arrested later on on the information given by Jaswant Singh and Balwinder Singh. It is also not disputed that no Verma Sunil 2013.10.09 12:09 Criminal Appeal No.S.997 SB of 2010 10 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh recovery was effected from these three accused. He has further admitted that no identification parade was conducted. Cross-examination of PW5 HC Bhagwan Singh, the recovery witness is also relevant in this regard. He has stated that it is correct that in his statement under Section 161 of the Cr.P.C. Name of Kala, Chhindo and Mohinder Singh, is not mentioned. According to his statement three persons ran away from the place of occurrence. Their names were not mentioned in the statement under Section 161 of the Cr.P.C., of HC Bhagwan Singh. In authorities Tara Ram @ Tara's case (supra) and Devinder Singh's case (supra) Division Benches of this Court acquitted the accused under similar set of circumstances. In both these cases name of the accused appear in the secret information and the accused arrested at the spot disclosed the name of the person ran away from the spot but none of the police official knew the accused who run away. These accused who were stated to run away were acquitted on the ground of identification in view of authorities Sham Lal Tara Ram @ Tara vs. State of Punjab reported in 2013 (2) RCR (Criminal ) page 734 and Devinder Singh's case (supra). Single Bench of this court in authority Raja alias Raj Singh alias Sukhmeet Singh's (supra) also acquitted the accused on the question of identity of the accused as the perpetrator of crime was not established. In that case also, the accused was not known to any member of the police party though there names appear in the ruka and identification parade was not arranged. So, it was held that identification of the accused as perpetrator of crime cannot be relied upon and their conviction was set aside.
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22. Similar view was taken in authority Gurnam Singh's case (supra) by this Court. So, following the earlier view of Single Bench and Division Bench of this court, I have no hesitation in holding that prosecution has failed to prove the identity of accused Kala, Chhindo and Mohinder Singh.
23. Consequently, their appeals i.e.,Criminal Appeal No.S.997 SB of 2010 titled as Kala versus State of Punjab ; Criminal Appeal No.S.1253 SB of 2010 titled as Chhindo versus State of Punjab Criminal ; Appeal No.S.1313 SB of 2010 titled as Mohinder Singh versus State of Punjab stand accepted. They stand acquitted by giving them benefit of doubt. Accused Kala is stated to be in custody. He be released forthwith in case they are not required in any other case.
24. So far as appeal preferred by Jaswant Singh and Balwinder Singh accused-appellants are concerned, their guilt stands proved beyond reasonable doubt. They were found in possession of the contraband. They were arrested at the spot. There is no dispute regarding their identification. Consequently, the appeal preferred by Jaswant Singh and Balwinder Singh accused-appellants is without any merit and the same stand dismissed.
25. A copy of this judgment be sent to the trial Court for strict compliance.
September 16, 2013 (K. C. PURI) sv JUDGE