Punjab-Haryana High Court
State Of Punjab vs Kartar Singh on 19 February, 2014
Author: Jaspal Singh
Bench: Rajive Bhalla, Jaspal Singh
Criminal Appeal No.90-DBA-2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.90-DBA-2002
Date of decision:19th.02.2014
State of Punjab ... Appellant
Versus
Kartar Singh .... Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE JASPAL SINGH
Present: Ms. Manjri Nehru Kaul, Addl. A.G. Punjab.
Mr. Balwinder Singh, Advocate for
Mr. K.S. Dhaliwal, Advocate for the respondent.
Jaspal Singh, J.
1. Feeling dissatisfied against the judgment dated April 19, 2001 passed by the learned Judge, Special Court, Patiala, whereby the respondent-accused was acquitted in case bearing FIR No.19 dated January 24, 1996 registered at Police Station Samana under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"), the State of Punjab has preferred the instant appeal.
2. In nut-shell, the case of the prosecution is that on January 24, 1996, ASI Sanjid Ali accompanied by HC Ajaib Singh and some other police officials was going for checking of the persons having bad character. Bhupinder Singh-Sarpanch met them and he was Thakral Rajeev 2014.02.19 14:54 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.90-DBA-2002 -2- associated in the police party. When the police party was proceeding towards village Marori and crossed village Dhanetha, respondent- accused/Kartar Singh was seen coming from the side of village Shadipur carrying a plastic bag in his right hand. On seeing the police party, he tried to turn back. On the basis of suspicion, he was apprehended. Suspecting that he was carrying some contraband, ASI Sanjid Ali gave him option whether he intends to be searched before a magistrate or a police gazetted officer. However, he reposed confidence in him. Accordingly, consent memo Ex.PA was put into black and white which was signed by the respondent-accused and attested by HC Labh Singh, HC Ajaib Singh and Sarpanch Bhupinder Singh. Thereafter, ASI Sanjid Ali conducted the search of the bag carried by the respondent-accused which led to the recovery of opium wrapped in a glazed paper. On weighment, it came out to be 4.800 kgs. Two samples of 10 grams each were separated and put into small boxes which were converted into parcels. The remaining opium was put into another tin box. Both the samples and the tin box (Dabba) were sealed by ASI Sanjid Ali with his seal bearing impression 'SA'. Sample seal impression was prepared separately and the seal after use was entrusted to Sarpanch-Bhupinder Singh. Samples as well as recovered opium were taken into possession vide recovery memo Ex.PB witnessed by the aforesaid witnesses. Ruqa Ex.PC was sent by ASI Sanjid Ali to the Police Station on the basis of which, formal FIR Ex.PC/1 was recorded by ASI Gurcharan Singh. The Investigating Officer also prepared rough site plan of the place of recovery Ex.PD with correct marginal notes and recorded the Thakral Rajeev 2014.02.19 14:54 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.90-DBA-2002 -3- statements of the witnesses. The respondent-accused was also subjected to personal search. Currency notes to the tune of Rs.45/- were recovered which were taken into possession vide recovery memo Ex.PE signed by the respondent-accused and attested by the witnesses. Respondent-accused was arrested in this case. On return to the police station, the respondent-accused along with the case property was produced by him (ASI Sanjid Ali) before SI Rajwinder Singh who verified the investigation and sealed both the samples, case property and sample seal with his own seal bearing impression "RS". He also directed the ASI to deposit the case property with MHC Mahabir Singh.
3. On recipt of the report of the Chemical Examiner Ex.PH and completion of the investigation, the challan was presented in the Court of learned Jurisdictional Magistrate which was committed to the learned Judge Special Court, Patiala vide order dated July 18, 1996. There being a prima facie evidence appearing in the report under Section 173(2) Cr.P.C as well as the documents annexed with it, the learned Judge, Special Court, Patiala charge-sheeted the respondent-accused to face trial under Section 18 of the Act vide order dated August 7, 1996, to which, he did not plead guilty and claimed trial.
4. In support of its case, the prosecution examined HC Labh Singh/PW-1, ASI Gurdial Singh/PW-2, MHC Mahabir Singh/PW-3, ASI Sanjid Ali/PW-4, Constable Mukhtiar Singh/PW-5 and SI Rajwinder Singh/PW-6. Thereafter, the prosecution closed its evidence after tendering into evidence the report of the chemical Thakral Rajeev 2014.02.19 14:54 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.90-DBA-2002 -4- examiner Ex.PH.
5. When the incriminating circumstances appearing in the prosecution evidence were put to the respondent-accused for eliciting their explanation as provided under Section 313 Cr.P.C., he denied them and pleaded innocence, It was specifically pleaded by him that he has been falsely implicated in this case. He was picked from his house by the CIA Staff, Patiala, on January 21, 1996 and handed over to Police Station, Samana who foisted upon him a false case. He opted to lead evidence in defence and examined Sarpanch- Bhupinder Singh as DW-1.
6. After hearing learned Public Prosecutor, learned defence counsel and appraisal of the evidence, the respondent-accused was acquitted of the charge as reflected in para No.1 of this judgment.
7. Feeling aggrieved, the State of Punjab preferred the instant appeal challenging the acquittal of the respondent which was admitted for hearing by this Court vide order dated February 04, 2002. Lower Court's record was also requisitioned and received.
8. While assailing the impugned judgment dated April 19, 2001 whereby the respondent has been acquitted of the charge framed under Section 18 of the Act, it has been ebulliently argued by the learned State counsel that the same is based upon conjectures and surmises. Mis-appreciation of the evidence adduced by the prosecution has resulted into miscarriage of justice. In fact, from the oral as well as documentary evidence available on file, it stands fully proved that the respondent-accused was found in possession of 4.800 kgs. of opium without any permit or licence. While discarding Thakral Rajeev 2014.02.19 14:54 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.90-DBA-2002 -5- the statements of the official witnesses who are as good as independent witnesses, much reliance has been placed upon the statement of DW-1/Sarpanch-Bhupinder Singh. He was given up by the prosecution during the course of its evidence as having been won over by the respondent-accused. Neither he passed any resolution in the village panchayat about the alleged false implication of the respondent-accused nor he lodged any complaint in this regard to the senior police officers or any other authority. He remained tightlipped for a period about more than 5 years and appeared in the witness box as defence witness on April 18, 2001. Non examination of witness as having been won over by the accused cannot be said to be without any plausible reason.
9. It has further been submitted by the learned State counsel that since the recovery of opium in the instant case is a chance recovery and without any prior information, provisions contained in Section 50 of the Act are not applicable. Even otherwise, a specific offer was made to the respondent-accused by ASI Sanjid Ali-PW-4 that if he intends to get himself searched in the presence of a Magistrate or a Gazetted Officer, an arrangement can be made in this regard but the respondent-accused reposed confidence in him. Accordingly, consent memo Ex.PA was put into black and white. Search of the bag carried by the respondent led to the recovery of opium.
10. Next submission made by learned State counsel is that learned trial Court had committed an error while observing that Section 57 of the Act is mandatory and the non compliance thereof is Thakral Rajeev 2014.02.19 14:54 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.90-DBA-2002 -6- fatal to the prosecution. In fact, by now it is pretty settled that Section 57 of the Act is directory in nature and the recovery of contraband cannot be doubted for the non compliance thereof especially when no prejudice is proved to have been caused to the respondent-accused.
11. While concluding her arguments, it has been stressed by learned State counsel that impugned judgment is not sustainable in the eyes of law being against the evidence and settled cannons of law. As such, the same is liable to be set aside and respondent- accused deserves to be convicted and sentenced for the commission of offence punishable under Section 18 of the Act.
12. On the other hand, learned counsel for the respondent- accused has supported the impugned judgment of acquittal and has submitted that since prosecution has failed to bring home the guilt of respondent-accused beyond any reasonable shadow of doubt, respondent-accused has been given the benefit of doubt. In fact, he was falsely implicated in the instant case by ASI Sanjid Ali-PW-4. Neither he was intercepted at the alleged place of recovery nor any incriminating article was recovered from him. He was picked up by the CIA staff, Patiala, from his house on January 24, 1996 and handed over to Police Station Samana who foisted upon him a false case. The testimony of Bhupinder Singh-DW-1 has rightly been accepted and relied upon by the learned trial Court while acquitting him. It has been categorically deposed by Bhupinder Singh-DW-1 that on January 24, 1996, he went to CIA Staff Samana where ASI Sanjid Ali-PW-4 met him and asked him to attest memoes. At that Thakral Rajeev 2014.02.19 14:54 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.90-DBA-2002 -7- time, Kartar Singh was also present there. ASI Sanjid Ali-PW-4 got his signatures on 2-3 blank papers. It was also told by ASI Sanjid Ali that he will not examine him in the Court and will be given up. Nothing incriminating was recovered in his presence from respondent-accused. The statement of Bhupinder Singh-DW-1 cannot be ignored, disbelieved or discarded simply on the ground that he has appeared as a defence witness. The evidentiary value of the defence witness is at par with that of any other witness. The testimony of DW-1 is a material piece of evidence who has knocked down the wickets of the prosecution. An opportunity to cross examine Bhupinder Singh-DW-1 was also afforded to the prosecution but inspite of the cross examination, the prosecution has not been able to dislodge his statement. Besides it, there is also non compliance of the provisions contained in Section 57 of the Act. ASI Sanjid Ali-PW- 4 in his statement has admitted that he did not send any special report which also made the case of the prosecution highly doubtful and suspicious. The learned trial Court has rightly recorded the acquittal of respondent-accused. Instant appeal being devoid of any merits deserves to be dismissed.
13. We have given an anxious thought to the rival submissions and have scanned the records available.
14. Before we proceed to delve upon the merits of this appeal, it would be desirable to consider the scope and jurisdiction of the appellate Court to interfere with an order of acquittal.
15. Section 378 of the Code of Criminal Procedure provides that the State may prefer an appeal to the High Court against an Thakral Rajeev 2014.02.19 14:54 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.90-DBA-2002 -8- order of acquittal passed by Appellate Court but sub-section 3 of Section 378 of Code of Criminal Procedure explicitly envisages that no appeal under sub-sections (1) and (2) shall be entertained except with the leave of the High Court which is an additional stage between the order of an acquittal and consideration of judgment by Appellate Court on merits as in the case of regular appeal. It depicts that the judgment of acquittal is annexed with definite value which cannot be ignored by the Court. There is presumption of innocence in favour of the accused which stands further fortified or re-inforced by an order of acquittal. No doubt, as an Appellate Court, it has every power to re-appreciate, review and re-consider the evidence before it but it is required to be exercised keeping in view the relevant principles of law to review, reweigh and re-appreciate the evidence in order to come to the independent conclusions. The scope of interference by Appellate Court in an order of acquittal was culled down by the Hon'ble Apex Court in case Sanwat Singh v. State of Rajasthan; 1961 SCR (3) 120 as follows:
"The foregoing discussion yields the following results:(1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as
(i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons", are not intended to curtail the undoubted power of an Thakral Rajeev 2014.02.19 14:54 appellate court in an appeal against acquittal to review I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.90-DBA-2002 -9- the entire evidence and to come to its own conclusion;
but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
16. This principle was further reiterated by the Hon'ble Supreme Court in case Govindaraju @ Govinda v. State by Sriramapuram P.S. and another; AIR 2012 SC 1292.
17. In the light of the aforesaid observations, it is evident that there is no embargo in law to re-appreciate, re-look and re-weigh the entire evidence which is the foundation of an acquittal. On scanning of the evidence on record, if the acquittal is found to be erroneous, perverse and against settled position of law should be set aside.
18. Reverting to the case in hand, a close scrutiny of the impugned judgment of acquittal dated April 19, 2001 transpires that the respondent-accused has been acquitted on the ground that Bhupinder Singh-DW-1, who was given up by the prosecution as having been won over by the respondent-accused, has been examined in defence and deposed that nothing incriminating was recovered from the respondent-accused in his presence. His signatures were obtained on 2-3 blank papers by ASI Sanjid Ali-PW-4 and there is non compliance of the provisions contained in Section 57 of the Act.
19. As regards non examination of Bhupinder Singh by the Thakral Rajeev 2014.02.19 14:54 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.90-DBA-2002 -10- prosecution and his examination as DW-1 by the respondent- accused, he has been given up by the prosecution for specific reason i.e. having been won over by the respondent-accused.
20. No doubt, the testimony of witness examined in defence is treated to be at par with the prosecution witnesses but before placing reliance, it is to be seen whether it is reliable and worthy of credence. The testimony of such a witness has to be examined with great care and caution before reliance is placed upon it by the Court. As per the case of the prosecution, respondent-accused was intercepted on January 24, 1996 in the area of village Shadipur by the police party headed by ASI Sanjid Ali-PW-4, of which, Bhupinder Singh-DW-1/Sarpanch was a member. He also appended his signatures on the consent memo Ex.PA, recovery memo Ex.PB and memo of personal search of the respondent-accused Ex.PE. He did not lodge any protest at the time when his signatures were allegedly obtained on 2-3 blank papers by ASI Sanjid Ali-PW-4. Rather, he attested the memos. There is nothing on record to suggest that as to why he did not extend any help to the respondent-accused when he was allegedly in illegal custody of CIA Staff, Samana prior to the date of recovery. Even after the arrest of the accused-respondent, he did not raise the issue of alleged false implication of accused-respondent at any point of time for a period of about 5 years to senior officers. Being Sarpanch, he could have brought the factum of alleged false implication of respondent-accused by ASI-Sanjid Ali to the senior officers of the police or to any other authority. Even no such protest was also ever lodged by the respondent-accused, though, he has Thakral Rajeev 2014.02.19 14:54 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.90-DBA-2002 -11- been claiming himself to be a member of Human Rights Commission. The silence on the part of the respondent as well as that of Bhupinder Singh-DW-1/Sarpanch belies defence version. So, no reliance can be placed upon the testimony of such a person. His testimony is not sufficient to discard or disbelieve the testimony of official witnesses who have been able to prove the recovery of 4. 800 Kgs. of opium from the possession of respondent-accused. Their statements are consistent on all material points.
21. As far as second limb of arguments in relation to non compliance of Section 57 of the Act is concerned, no doubt, ASI Sanjid Ali-PW-4 while subjected to cross examination has stated that no special report was sent by him but it is well-neigh settled that the compliance of Section 57 of the Act is not mandatory. In case Bahadur Singh v. State of Haryana; 2010(2) R.C.R. (Criminal) 586, following observation was made Hon'ble Apex Court in para-9:
"9. With regard to non-compliance of Section 57 of the above Act it was held that the same was not mandatory and that substantial compliance would not vitiate the prosecution case, since the copies of the FIR along with other remarks regarding the arrest of the accused and seizure of the contraband articles had been sent by the concerned officer to his superior officer immediately after registering the case. It was held that this amounted to substantial compliance and mere absence of such report could not be said to have prejudiced the accused. It was further held that since the Section was not mandatory in nature, when there were substantial compliance, it would not vitiate the prosecution case."
22. Thakral Rajeev Similarly, in case Sajan Abraham v. State of Kerala; 2014.02.19 14:54 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.90-DBA-2002 -12- 2001(3) R.C.R. (Criminal) 808; it was observed that the compliance of Section 57 of the Act is not mandatory and when substantial compliance has been made, it would not vitiate the prosecution case.
23. In another case State of Punjab v. Balbir Singh; 1994 (1) RCR (Crl.) 737 (SC), Hon'ble Apex Court has held as under:
"The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 and 44 are by themselves not mandatory."
24. In the present case, it is true that communication to immediate superior has not been made in the form of a report but we find that ASI Sanjid Ali-PW-4 has sent a copy of FIR and other documents to his superior officers which is an undisputed fact. After registration of the case, the accused as well as the documents prepared by the Investigating Officer were also produced before SI/SHO Rajinder Singh-PW-6, who verified the investigation and also affixed his seal on the case property bearing impression "RS". Accused as well as case property were also produced on the next day before learned Jurisdictional Magistrate. As such, all the necessary information to be submitted was given to the superior officers by ASI Sanjid Ali-PW-4 which constitutes substantial compliance and mere absence of any such report cannot be said to have caused prejudice to respondent-accused. So, when substantial compliance is there, it would not vitiate the case of prosecution. In fact, from the evidence available on record, we do not find the non compliance of Section 57 of the Act.
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25. In the light of the above discussion, we are of the considered view that learned trial Court has committed an error while relying upon the testimony of Bhupinder Singh-DW-1/Sarpanch and observing that there is a non compliance of mandatory provisions contained in Section 57 of the Act.
26. Resultantly, we allow this appeal and set aside judgment of acquittal dated April 19, 2001 passed by learned Judge, Special Court, Patiala. Respondent is convicted for the commission of offence punishable under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985. In this case, heavy quantity of opium is suggestive of the fact that he has been commercially dealing in narcotics. Such a person is not only an enemy of the nation but also a destroyer of the human race. Accordingly, he is sentenced to undergo RI for a period of 10 years and to pay a fine to the tune of Rs.1 lac and in default of payment of fine to further undergo RI for a period of one year.
(JASPAL SINGH) JUDGE (RAJIVE BHALLA) JUDGE 19th.02.2014 rajeev Thakral Rajeev 2014.02.19 14:54 I attest to the accuracy and integrity of this document High Court Chandigarh