Punjab-Haryana High Court
Ajmer Singh And Another vs State Of Punjab on 17 January, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-2062-SB of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-2062-SB of 2004
Date of decision: 17.01.2011
Ajmer Singh and another
........ Appellants
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
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PRESENT: Mr. K.K. Goel, Advocate, for the appellants.
Mr. R.S. Sidhu, AAG, Punjab.
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JORA SINGH, J.
Ajmer Singh and Hardeep Singh, preferred this appeal to challenge the judgment of conviction and order of sentence dated 22.9.2004, rendered by the Judge, Special Court, Sangrur, in Sessions Case No. 538 dated 30.7.2003, arising out of FIR No. 86 dated 27.5.2003, registered under Section 15 of the Narcotic Drugs and Psychotripic Substances Act, 1985 (hereinafter referred as 'the Act') at Police Station, Moonak.
By the said judgment, they were convicted under Section 15 CRA-S-2062-SB of 2004 -2- of the Act and were sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of ` 1 lac each and in default of payment of fine to further undergo rigorous imprisonment for a period of two years each.
Prosecution story, in brief, is that on 27.5.2003, police party headed by Baljit Singh, Inspector/SHO, Police Station Moonak, in connection with special nakabandi and checking of vehicles was present near highway picket in the area of village Rampura. In the meantime, truck bearing registration No. PB-13-F-0973, was noticed while coming from the side of Tohana and was signalled to stop. Driver was directed to alight from the truck for checking. Instead of alighting from the truck, driver tried to fled away from the spot. On suspicion, truck driver was apprehended. One person was sitting by the side of driver. Some bags were lying in the cabin near the feet of that person. On enquiry driver disclosed his name as Hardeep Singh S/o Rajinder Singh, Jat, R/o Chhandra, Police Station, Sahnewal, District Ludhiana and the second person who was sitting by the side of the driver disclosed his name as Ajmer Singh S/o Mohan Singh, Jat, R/o Rurka, Police Station, Dehlon, District Ludhiana. In the meantime, one person came from the side of Moonak and was signalled to stop. On enquiry, he disclosed his name as Gurmeswar Saini. He was joined by the police party. Investigating Officer, disclosed to the accused that he suspected some intoxicant in truck bearing registration No. PB-13-F-0973, so truck is to be searched. Offer was separately given to the accused as to whether they wanted to CRA-S-2062-SB of 2004 -3- be searched before any Gazetted Officer or any Magistrate. Accused replied turn by turn that they wanted the search of the truck in the presence of a Gazetted Officer. Consent memos were prepared separately and were signed by the accused in token of their correctness. A wireless message was sent to Police Station Moonak, to send some Gazetted Officer, at the spot. At about 6.00 p.m. Rajinder Singh, DSP (D), Sangrur came at the spot. He disclosed his identity to the accused as Gazetted Officer. Again offer was given to the accused as to whether they wanted to be searched before any other Gazetted Officer or any Magistrate then accused reposed faith in him (Gazetted Officer) for search of the truck. As per direction of the DSP, truck was searched by the Investigating Officer and on search of the truck four bags containing poppy husk were recovered. Two samples each weighing 250 grams were separated from each bag and the remaining poppy husk in each bag on weighment was found to be 29 Kg 500 grams. Eight samples and the remaining poppy husk in the four bags were separately sealed by the Investigating Officer with his own seal bearing impression 'BS'. Seal impressions were prepared separately. Seal after its use was handed over to Gurmeswar Saini. Case property was taken into police possession vide memo attested by the witnesses. Truck along with the registration certificate which was in the name of Ajmer Singh, was also taken into police possession vide separate memo attested by the witnesses.
On personal search of the accused Ajmer Singh ` 400/- was recovered and on personal search of accused Hardeep Singh ` 100/- was CRA-S-2062-SB of 2004 -4- recovered. Recovered currency notes were taken into police possession vide separate memo attested by the witnesses. Ruqa was sent to the police station on the basis of which formal FIR was registered. Rough site plan with its correct marginal notes was also prepared. Statements of the witnesses were recorded. Sample parcel was sent to the office of Chemical Examiner and as per report contents of the sample were found to be of poppy husk. Accused were arrested. After completion of investigation, challan was presented in the Court.
Accused were charge-sheeted under Section 15 of the Act, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 Kirpal Singh, Clerk, DTO Office, Sangrur, stated that as per record truck bearing registration No. PB-13-F-0973, was registered in the name of Ajmer Singh S/o Mohan Singh R/o Mandi Ahmedgarh, Tehsil Malerkotla, District Sangrur. Ex. PA is the photocopy of the registration certificate.
PW-2 Constable Bhagwant Singh, PW-3 HC Jaggar Singh, PW-4 ASI Ajaib Singh, tendered their affidavits Ex. PB, PC and PD, respectively.
PW-5 Varinder Kumar, Photographer stated that he was summoned by the police to the Court Complex. He had taken the photograph of the accused and the case property. Photograph is Ex. P1 and negative is Ex. P-2.
CRA-S-2062-SB of 2004 -5-
PW-6 Rajinder Singh, DSP, stated that as per message received from Police Station, Moonak, he had gone at the spot. Appellants along with their truck were found in the custody of police party headed by Inspector/SHO Baljit Singh. He had disclosed his identity to the accused and gave offer as to whether they wanted to be searched before any other Gazetted Officer or any Magistrate but the accused reposed faith in him. Statements of accused were recorded separately. On his direction, the Investigating officer, had searched the truck. Four bags containing poppy husk were recovered from the truck. Out of each bag, two samples each weighing 250 grams were separated and the remaining poppy husk on weighment in each bag was found to be 29 Kg 500 grams . Samples and the remaining poppy husk were separately sealed by the Investigating Officer, with his own seal bearing impression 'BS'. Seal impressions were also prepared separately. Seal after its use was handed over to Gurmeswar Saini. Case property was taken into police possession vide memo attested by him and other witnesses.
PW-7 Inspector Baljit Singh, was the Investigating Officer. PW-8 ASI Balihar Singh, is one of the recovery witness. He was also with the police party headed by Inspector/SHO Baljit Singh. He has also supported the version of PW-7 Inspector Baljit Singh.
PW-9 HC Tejinder Singh, tendered his affidavit Ex. PV. PW-10 Smt. Priya Sood, Sub Divisional Judicial Magistrate, Khanna, stated that she was serving as JMIC at Sunam. On 28.5.2003, CRA-S-2062-SB of 2004 -6- she was Duty Magistrate and on that day eight sample parcels and four bulk parcels bearing seal impression 'BS', were produced before her. In view of the application Ex. PS moved by Baljit Singh, SHO, PS Moonak, she had seen the case property and signed the sealed parcels. Another application Ex. PW, was moved for taking photographs of the parcel. She identified her signatures on orders Ex. PW/1 and Ex. PW/2. Photographs were also attested by her.
After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. They denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of Ajmer Singh, was that he was arrested from his house when he came to collect meal from Guru Teg Bahadur Hosiptal, Ludhiana, where his brother Shamsher Singh, was lying admitted. Shamsher Singh, had died after few days after the present occurrence. He was arrested in the presence of his wife, Parminder Singh and Mohan Singh.
Defence version of Hardeep Singh, was that he had altercation with police officials at police picket Rampura. He was insisting that his search be conducted in the presence of nearby Panchayat member or villagers. ` 3500/- was snatched from him. He was brought to Police Station, Moonak. Police procured poultry feed with the said ` 3500/- and the same was shown as poppy husk.
DW-1 HC Chand Singh, stated that Ex. D-1, is the copy of entry No.24 dated 27.5.2003. Ex. D-2, is the copy of entry No.38 dated CRA-S-2062-SB of 2004 -7- 28.5.2003 and Ex. D-3 is the copy of entry No.359 dated 27.5.2003.
DW-2 Manpreet Kaur, daughter of Ajmer Singh-appellant, stated that her uncle Shamsher Singh, was under treatment at Guru Teg Bahadur Hospital, Ludhiana, on 25.6.2003. Her father Ajmer Singh, was looking after her uncle in the hospital. On 26.5.2003, her father came back from the hospital. Hardeep Singh, driver of the truck had gone to Coimbatore. In the evening on 26.5.2003, police came to their house and took away her father. At that time her mother was also present. No incriminating article was recovered from her father.
DW-3 Dr. Jagdeep Madan, stated that as per record of Guru Teg Bahadur Hospital, Ludhiana, Shamsher Singh, was lying admitted in the hospital. He remained admitted in the hospital from 29.4.2003 to 18.5.2003, then from 27.5.2003 to 29.5.2003 and then from 17.6.2003 and he expired on 20.6.2003. Ajmer Singh is the real brother of Shamsher Singh. He was looking after the patient in the hospital. Ex. D-4 to Ex. D-6, are the photocopies of the entries of the record.
DW-4 Namepal Singh, stated that he is the Panch of village Rurka. Ajmer Singh, is known to him. Shamsher Singh was lying admitted at Guru Teg Bahadur Hospital, Ludhaina. Ajmer Singh, was looking after his ailing brother. On 27.5.2003, Ajmer Singh, was arrested from his house. No incriminating article was recovered from him. Three months earlier to the present occurrence Hardeep Singh, was appointed as driver of the truck.
DW-5 Avtar Singh, stated that he is the Panch of village CRA-S-2062-SB of 2004 -8- Rurka. Ajmer Singh was known to him. His brother Shamsher Singh, was lying admitted in Guru Teg Bahadur Hospital, Ludhiana. Ajmer Singh used to look after his brother. On 27.5.2003, Ajmer Singh, was arrested from his house. No incriminating article was recovered from him. Hardeep Singh, was the driver of the truck.
DW-6 Gurmeswar Saini, stated that Ajmer Singh or Hardeep Singh, are not known to him. On 27.5.2003, he was not with the police party of Police Station, Moonak. Truck bearing registration No. PB-13-F-0973, was not checked by the police in his presence. No recovery was effected from any person. Documents Ex. PF to Ex. PO were not scribed in his presence.
DW-7 Harinder Singh, stated that he is the Panch of village Chhandran. Hardeep Singh, driver is known to him. Hardeep Singh, was falesly implicated in this case.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellants, learned State counsel and carefully gone through the evidence available on file.
Learned defence counsel for the appellants argued that according to the prosecution story, recovery was effected from the truck bearing registration No. PB-13-F-0973. Hardeep Singh - appellant was driving the truck at the relevant time whereas Ajmer Singh, owner of the CRA-S-2062-SB of 2004 -9- truck was sitting by the side but no cogent and convincing evidence on the file that appellants were in conscious possession of the gunny bags containing poppy husk. When the appellants were examined under Section 313 Cr.P.C. then question was not put to them that they were in conscious possession of the poppy husk. Alternative charge under Section 8 of the Act, was not framed. One Gurmeswar Saini, was joined as independent witness but he was not examined by the prosecution. Gurmeswar Saini, appeared in defence and stated that in his presence poppy husk was not recovered from the appellants. Statement of Gurmeswar Saini, alleged to be joined as independent witness, falsified the prosecution story. Link evidence is also missing. Ex. PV, is the affidavit of HC Tejinder Singh and according to this affidavit case property was withdrawn from the malkhana on 28.5.2003, for production in Court. Ex. DA is the second affidavit of HC Tejinder Singh, and according to this affidavit case property was withdrawn on 29.5.2003 for production in Court. On 2.6.2003, sample parcels were handed over to Constable Bhagwant Singh, for depositing the same in the office of Chemical Examiner. There is delay in sending the sample parcels to the office of Chemical Examiner. Delay is fatal in view of the affidavits Ex. PV and DA. Possibility of tampering with the case property cannot be ruled out.
Learned State counsel argued that police party was holding Nakabandi, when truck bearing registration No. PB-13-F-0973, was noticed while coming from the side of Tohana and was signalled to stop. CRA-S-2062-SB of 2004 -10- Instead of stopping the truck driver tried to fled away from the spot with the truck. Appellants were apprehended by the police party. On enquiry driver of the truck disclosed his name as Hardeep Singh. Ajmer Singh, was the owner of the truck in question. Four bags containing poppy husk were recovered from the cabin of the truck. Recovery of poppy husk is clear from the statements of PW-6 DSP Rajinder Singh, PW-7 Inspector Baljit Singh, Investigating Officer and PW-8 ASI Balihar Singh, one of the recovery witness. Once the recovery of poppy husk is proved then it was for the appellants to explain how they were found in possession of the poppy husk in four bags being transported in a truck bearing registration No. PB-13-F-0973. Independent witness was joined but he was given up as won over by the appellants. Appearance of independent witness as defence witness clearly shows that he was rightly given up. Statement of Gurmeswar Saini, as defence witness inspires no confidence. On 27.5.2003, recovery was effected from the appellants. On the next day appellants alongwith the case property was produced before the Illaqa Magistrate and this fact is clear from the statement of PW-10 Smt. Priya Sood, the then Sub Divisional Judicial Magistrate, Sunam. According to defence version Ajmer Singh was the owner whereas Hardeep Singh was the driver of the truck. Defence version of Hardeep Singh, was that he had a dispute with the police party near police picket Rampura. Police was requested to search the truck in the presence of nearby Panchayat members or the villagers that means truck was apprehended by the police party as per prosecution story with CRA-S-2062-SB of 2004 -11- Hardeep Singh, as driver. Defence version of Ajmer Singh, was that he was brought from his village and later on false implication but regarding false implication no complaint to any authority till today. DW-2 Manpreet Kaur, is the daughter of Ajmer Singh-appellant, but she has not stated a word that Ajmer Singh, was brought from his house in the presence of her mother, Parminder Singh and Mohan Singh. Parminder Singh and Mohan Singh were not produced in defence. Dr. Jagjit Madan, stated that Shamsher Singh, brother of Ajmer Singh, was lying admitted in Guru Teg Bahadur Hospital, Ludhiana, but he was not personally known to him. Name of the attendant was not written in the register. According to doctor, Ajmer Singh, was in the hospital whereas Manpreet Kaur, DW-2, stated that Ajmer Singh was brought from his house. Namepal Singh and Avtar Singh, DWs are from the village of Ajmer Singh, so they are very much interested in the acquittal of the appellants. No complaint to any authority by them regarding false implication. Evidence on file was rightly scrutinized by the trial Court.
First submission of the learned defence counsel for the appellants is that appellants were not in conscious possession of the poppy husk alleged to be recovered from the truck being driven by Hardeep Singh. While recording the statements of the appellants under Section 313 Cr.P.C., no question was put to the appellants that they were in conscious possession of the poppy husk. So when the appellants were not in conscious possession of the poppy husk then prosecution story is doubtful. In support of this contention learned defence counsel for the CRA-S-2062-SB of 2004 -12- appellants cited 2006 (1) RCR (Criminal) 4, Sukdev Singh @ Sukha Vs. State of Punjab. According to the prosecution story appellant was apprehended while sitting on the gunny bags lying in the fields then held that when the appellant was sitting over the gunny bags then it does not prove that he was in conscious possession of the bags. Police should have conducted further investigation to prove that accused was really in possession of these bags. Secondly, independent witness was not examined. Independent witness joined by the police party appeared in defence and did not support the prosecution story. Prosecution story was ignored. Seal after its use was not handed over to the independent witness. Possibility of tampering with the case property cannot be ruled out. Prosecution story was ignored.
In 2007 (2) RCR (Criminal) 596, Dayal Singh and another Vs. State of Punjab, both the appellants were apprehended while travelling in a Maruti Van and canter loaded with poppy husk. 10 bags containing poppy husk were recovered from the canter. Learned Single Judge, opined that recovery of contraband from canter merely because accused were found physically present in the canter, it cannot be said to be a ground to hold that they were actually in conscious possession of the contraband. Accused are the residents of different villages. Defence version of the accused was that real persons were let off by the police and they were falsely implicated. Seal was not handed over to the independent witness who was present at the spot. Case property was not produced in the Court till conclusion of the trial despite several CRA-S-2062-SB of 2004 -13- opportunities availed by the prosecution. No specific question was put to the accused in their statements recorded under Section 313 of the Code of Criminal Procedure for being called upon to explain the circumstances giving rise to the presumption that they were in conscious possession of the contraband under Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act but in 2009 (2) RCR (Criminal) 762, State of Punjab Vs. Ram Pal, Hon'ble Supreme Court held that once recovery of contraband from the possession of accused was established then the person who claims that it was not a conscious possession has to establish it, as to how he came to be in possession is within his special knowledge. Relevant paras No. 4 to 8 of the judgment are reproduced as under:
"4. The expression "possession" is a polymorphous term which assumed different colour in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhujja to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statues.
5. The word "conscious" means awareness about a particular fact, it is a state of mind which is deliberate or intended.CRA-S-2062-SB of 2004 -14-
6. As noted in Gunwantlal v. State of M.P. possession in a given case need not be physical possession but can be constructive, have power and control over the article in the case in question, while the person to whom physical possession is given holds is subject to that power or control.
7. The word "possession" means the legal right to possession. In an interesting case it was observed that whereas person keeps his firearm in his mother's flat which is safer then his own home, he must be considered to be in possession of the same.
8. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
In 2009 (4) RAJ 330, Balbir Kaur Vs. State of Punjab, again the matter came before the Hon'ble Supreme Court, to interpret as to what is the meaning of conscious possession. In this case police party was on patrol duty then apprehended the appellant while sitting on two CRA-S-2062-SB of 2004 -15- gunny bags. On seeing the police party, appellant turned face towards her village. Due to the conduct and behaviour of the appellant and on suspicion, enquiry was made by the Investigating Officer, about the contents of the bag. Reply by the accused was that bags contained poppy husk. Relevant para No.9 of the judgment is reproduced as under:
"9. In Madan Lal v. State of H.P., 2003 (4) RCR (Criminal) 100: 2004 (1) Apex Criminal 426: (2003) 7 SCC 465,it was held by this Court that the issue with regard to conscious possession is to be determined on the fact and situation of each case. The Court observed as follows in relevant paras:
"19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
20. Section 20 (b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences CRA-S-2062-SB of 2004 -16- for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.
21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja, 1979 (4) SCC 274 to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes.
23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
24. As noted in Gunwantlal v. State of M.P., 1972 (2) SCC 194 possession in a given case CRA-S-2062-SB of 2004 -17- need not be physical possession but can be constructive having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.
25. The word "possession" means the legal right to possession (see Heath v. Drown 6). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same.
(See Sullivan V. Earl of Caithness 7).
26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge.
Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
In the present case also police party in connection with special nakabandi was present near police picket Rampura, when truck CRA-S-2062-SB of 2004 -18- bearing registration No. PB-13-F-0973, was noticed while coming from the side of Tohana and was signalled to stop. Instead of stopping the truck, driver tried to fled away from the spot with the truck. On suspicion they were apprehended. Truck was being driven by Hardeep Singh. Ajmer Singh was sitting by the side of driver. As per PW-1 Kirpal Singh, Ex. PA registration certificate of the truck is in the name of Ajmer Singh. Defence witnesses also stated that Ajmer Singh, was the owner of the truck and Hardeep Singh was employed as driver of the truck. Hardeep Singh, had gone to Coimbatore. Hardeep Singh, when examined under Section 313 Cr.P.C. then stated that when he was near the police picket Rampura then he had a dispute with the police party and he insisted the police party to check the truck in the presence of nearby Panchayat Member or villagers. ` 3500/- was snatched from him and police procured poultry feed from the said ` 3500/- and the same was shown as poppy husk. He was falsely implicated in this present case that means police party was near the place of recovery. Truck came from the side of Tohana and was signalled to stop. Hardeep Singh, was driving the truck at the relevant time. When the appellants were examined under Section 313 Cr.P.C. then question was put to the appellants that they were arrested alongwith the truck and in the truck four bags were recovered containing poppy husk. Two samples each weighing 250 grams was separated from each bag. Samples and the bags were sealed with the seal of the Investigating Officer, bearing impression 'BS'. Earlier to the recovery police officials had no enmity with the CRA-S-2062-SB of 2004 -19- appellants. So there was no idea to falsely implicate the appellants. Once recovery of poppy husk is clear from the truck being driven by Hardeep Singh, then it was for the appellants to explain how the poppy husk was loaded in the truck. Ajmer Singh, was the owner of the truck. Appellants were to explain regarding poppy husk in the bags recovered from the cabin of the truck. So the appellants cannot argue that they were not in conscious possession of the bags being transported in the truck bearing registration No. PB-13-F-0973.
Second submission of the learned defence counsel for the appellants is that Gurmeswar Saini, was joined as independent witness but he was not examined. He appeared as defence witness that means there was no recovery. After going through the file I am of the opinion that appearance of Gurmeswar Saini as defence witness is not fatal. No prejudice was caused to the appellants if he was not examined as prosecution witness. While holding nakabandi Gurmeswar Saini, was joined as independent witness. Case property was sealed with seal of the Investigating Officer, bearing impression 'BS'. Seal impressions were also prepared separately. Gurmeswar Saini, was given up as won over by the appellants. Appearance of Gurmeswar Saini, in defence rather shows that he was rightly given up as won over by the appellants. Number of documents were prepared at the spot signed by Gurmeswar Saini. When he appeared in Court then did not state a word in examination-in-chief that signatures on all the documents are not his signatures. Question was put by the learned Public Prosecutor for the CRA-S-2062-SB of 2004 -20- State, then reply of Gurmeswar Saini, was that it is wrong to suggest that all the documents from Ex. PF to Ex. PO, were signed by him. Common experience shows that when there is nakabandi or when the police party is on patrol duty and there is a request to anyone to join as independent witness then no one agrees to join the police party. If anyone agrees to join as independent witness then fails to appear in Court. In case independent witness joined and appeared in Court then rarely supported the prosecution story. To avoid enmity with the appellants Gurmeswar Saini, appeared in defence.
In Balbir Kaur (supra) independent witness was joined but not examined by the prosecution and appeared in defence, then Hon'ble Supreme Court held that appearance of independent witness in defence cannot be said that the search and recovery are in any manner vitiated.
Next submission of the learned defence counsel for the appellants was that the recovery was affected on 27.5.2003 whereas sealed parcels were sent to the office of Chemical Examiner on 2.6.2003. Delay of 5 days in depositing the samples in the office of Chemical Examiner, shows that possibility of tampering with the case property cannot be ruled out, when as per affidavits Ex. PV and DA, story is not clear whether the case property was withdrawn on 28.5.2003 or 29.5.2003, for production in the Court but after going through the evidence on file, I am not in a position to agree with this submission of the learned defence counsel for the appellants. On 27.5.2003, recovery was effected from the appellants by the police party headed by CRA-S-2062-SB of 2004 -21- SHO/Inspector Baljit Singh, Police Station, Moonak. Case property was sealed by the Investigating Officer with his own seal bearing impression 'BS'. On return to the police station on 28.5.2003, case property was deposited with the incharge of the Malkhana namely, HC Tejinder Singh but on the same day case property was withdrawn from the incharge of the Malkhana for producing the same in the Court. Appellants along with the case property were produced before the Illaqa Magistrate and this fact is clear from the inventory report Ex. PS and order of the Court Ex. PS/1. Ms. Priya Sood, Sub Divisional Judicial Magistrate, Khanna appeared in Court and stated that on 28.5.2003, case property sealed with the seal of the Investigating Officer, bearing impression 'BS' was produced before her with appellants. Application was moved for preparing inventory. Another application was moved for taking the photographs of the sealed parcels. Seals were found intact. On 2.6.2003, sealed parcels were deposited in the office of Chemical Examiner. As per report of the Chemical Examiner, seals were found intact and found tallied with the seal impressions. Due to clerical mistake in the affidavit Ex. DA of HC Tejinder Singh, date of withdrawal was written as 29.5.2003 instead of 28.5.2003. So in view of all discussed above, nothing to presume that case property was tampered with.
Last submission of the learned defence counsel for the appellants was that Ajmer Singh was in Guru Teg Bahadur Hospital, Ludhiana, where his brother Shamsher Singh, was lying admitted. He CRA-S-2062-SB of 2004 -22- was brought from his house and later on he was falsely implicated as owner of the truck. In defence, DW-2 Manpreet Kaur, daugher of Ajmer Singh, appeared and stated that her uncle Shamsher Singh, was under
treatment at Guru Teg Bahadur Hospital, Ludhiana, on 25.6.2003. Her father Ajmer Singh, was looking after her uncle in the hospital. On 26.5.2003, her father came back from the hospital. Hardeep Singh, driver of the truck had gone to Coimbatore. In the evening on 26.5.2003, police came to their house and took away her father. At that time her mother was also present. No incriminating article was recovered from her father. Manpreet Kaur, being daughter of Ajmer Singh-appellant has supported the appellants. She is very much interested in acquittal of the appellants. She has not stated a word that Ajmer Singh, was taken away by the police party in the presence of Parminder Singh and Mohan Singh. Ajmer Singh, in defence stated that he was brought by the police party from his house in the presence of his wife, Parminder Singh and Mohan Singh. Wife of Ajmer Singh, had expired but Parminder Singh and Mohan Singh are alive. They were not examined by the appellants to state that in their presence Ajmer Singh was brought from his house.
Dr. Jagjit Madan, stated Shamsher Singh brother of Ajmer Singh, was lying admitted in the hospital and Ajmer Singh, was looking after his brother in the hospital but statement of doctor is without any evidentiary value because Ajmer Singh was not attending the doctor secondly there was no entry in the register so without mentioning the CRA-S-2062-SB of 2004 -23- name of Ajmer Singh, as attendant in the register, it is very easy to state that Ajmer Singh was present in the hospital. Suppose, Ajmer Singh was looking after his brother then question is whether Ajmer Singh was present in truck at the time of recovery alongwith Hardeep Singh, driver on 27.5.2003. Namepal Singh and Avtar Singh are the residents of village Rurka. Appellant-Ajmer Singh, was also from village Rurka. Both the DWs stated that Ajmer Singh, was present in his house on 27.5.2003. Namepal Singh and Avtar Singh are very much interested in the acquittal of the appellants because they are co-villagers. Ajmer Singh, when examined under Section 313 Cr.P.C. then did not state a word that he was brought by the police party in the presence of Namepal Singh and Avtar Singh. So their statements are without evidentiary value.
DW-7 Harinder Singh, is from village Chhandran. Hardeep Singh, driver is also from village Chhandran. He had not stated a word regarding recovery of poppy husk. He simply stated that Hardeep Singh, is a good man. Hardeep Singh, when examined under Section 313 Cr.P.C. then did not state a word that he was brought from his village in the presence of Harinder Singh. Defence version of Hardeep Singh, driver was that he was arrested by the police near police picket Rampura. ` 3500/- was snatched from him. He was brought to Police Station, Moonak. Police procured poultry feed with ` 3500/- and the same was shown as poppy husk and he was falsely implicated in the present case, then complaint in writing could easily be sent to different authorities but CRA-S-2062-SB of 2004 -24- till today no complaint to any authority. No question was put to the Investigating Officer or recovery witness that ` 3500/- was snatched from Hardeep Singh and with that payment feed was purchased.
No other submission was put forward.
In view of all discussed above, I am of the opinion that evidence on file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is ordered to be upheld.
For the reasons recorded above, appeal without merits is dismissed.
Appellants are on bail. They are directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which learned Chief Judicial Magistrate, Sangrur, is directed to issue re-arrest warrants against the appellants to undergo remaining imprisonment as ordered by the trial Court.
January 17, 2011 ( JORA SINGH ) rishu JUDGE