Punjab-Haryana High Court
Balbir Singh And Others vs State Of Haryana on 15 May, 2012
Author: S.S. Saron
Bench: S.S.Saron, Naresh Kumar Sanghi
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA No.583-DB of 2007
Date of decision: 15.5.2012
Balbir Singh and Others
..... Appellants
Versus
State of Haryana
..... Respondent
CORAM: HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. A.S. Sullar, Advocate for appellants No.1 and 3.
Mr. Jagjit Singh Gill, Advocate for appellant No.2.
Mr. Dhruv Dayal, Deputy Advocate General,
Haryana, for the State.
***
S.S. SARON, J.
This appeal has been filed by the appellants Balbir Singh, Kuldip Singh and Lila Singh against the judgment and order dated 2.6.2007 and 6.6.2007 passed by the learned Special Judge, Sirsa whereby the appellants have been convicted for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" - for short) and sentenced to undergo rigorous imprisonment for 15 years, besides, pay a fine of Rs.1 lac each and in default thereof, to undergo further rigorous imprisonment CRA No.583-DB of 2007 [2] for 4 years.
The FIR (Ex.P18) has been recorded on the basis of writing (Ex.P17) sent to the police station by SI/SHO Kishori Lal, Police Station Rori (PW-10). It is stated by SI/SHO Kishori Lal (PW-10) that on 22.4.2005 at about 10.30 a.m., he along with other police officials was in a government jeep with registration No.HR24-D 6106. The jeep was being driven by EHC Dharamvir Singh. They were at the grain market of village Thiraj in connection with patrolling and detection of crime. A secret informer at that time met SI/SHO Kishori Lal (PW-10) there and informed him that Balbir Singh (appellant No.1), Lila Singh (appellant No.3) sons of Gurdev Singh and Kuldip Singh (appellant No.2) son of Balbir Singh (appellant No.1) residents of Panjmala had got unloaded large number of gunny bags and had concealed the same in the sheaves of harvested wheat in the fields which was near the village and near the metalled road leading to Jhorar Rohi. They were making preparations for supplying it in Punjab on a tractor. If a raid was conducted they could be apprehended and the gunny bags of poppy straw in huge quantity could be recovered. On the said information, SI/SHO Kishori Lal (PW-10) scribed a notice under Section 42 of the NDPS Act and sent the same to Deputy Superintendent of Police, Dabwali through Constable Pargat Singh. SI/SHO Kishori Lal (PW-10) formed a raiding party and he along with other police officials in a government vehicle proceeded to the spot in respect of which CRA No.583-DB of 2007 [3] information had been received. When he along with his companions turned towards the fields of Balbir Singh (appellant No.1), three persons were seen loading gunny bags of poppy straw in their tractor-trolley make 'Eicher'. On seeing the police jeep approaching, all three at once fled away in the fields. SI/SHO Kishori Lal (PW-1 ) with the help of his accompanying officials apprehended two of them. On asking their names and addresses, one of them disclosed his name as Balbir Singh (appellant No.1) son of Gurdev Singh and the other disclosed his name as Kuldip Singh (appellant No.2) son of Balbir Singh (appellant No.1) residents of Panjmala. On interrogation, they disclosed the name of the person who had fled away as Lila Singh (appellant No.3) son of Gurdev Singh. He had succeeded in escaping despite best efforts to apprehend him. After coming near the gunny bags and the tractor-trolley, notice under Section 50 of the NDPS Act was served upon Balbir Singh and Kuldip Singh (appellants No.1 and 2). They were informed by SI/SHO Kishori Lal (PW-10) that he suspected some narcotic substance or poppy straw was in the gunny bags lying on their 'Eicher' tractor-trolley. He wanted to search the same. If they wanted to get the search of gunny bags lying in the tractor-trolley and under the sheaves of wheat to be conducted before some Gazetted Officer or Magistrate, they could be summoned at the spot. The notice was read over and explained to the accused who after hearing and understanding it replied that SI/SHO Kishori Lal (PW-10) could carry out the search of the gunny bags CRA No.583-DB of 2007 [4] lying in the tractor-trolley and under the sheaves of wheat. They had full confidence in him. Notices and reply of notices were signed by the witnesses as also by Balbir Singh and Kuldip Singh (appellants No.1 and 2). On checking, ten gunny bags were found lying in the tractor-trolley. The gunny bags lying under the sheaves of wheat were counted and were found to be 90 in number. Poppy straw was found in the bags. On weighing with a spring actuated scale each gunny bag was found to contain 41 kilograms of poppy husk along with the weight of gunny bags. A couple of samples each weighing 100 grams were separated from the bags. Total 200 sample parcels and 100 gunny bags of poppy straw were sealed with seal 'KL'. The seal after use was handed over to ASI Partap Singh and a sample seal was retained. In the meantime, Sh. Ram Sarup, DSP, Dabwali (PW-9) along with his staff in his official Gypsy Jeep came at the place of the incident. Kishori Lal SI (PW-10) apprised him about the facts of the case. He checked the sample parcels of poppy straw and the residue bags. After making enquiries from the accused Balbir Singh and Kuldip Singh (appellants No.1 and 2) and the witnesses, he affixed his seal bearing impression 'RS' on all the sample parcels and the gunny bags. He retained his seal with him after use and he retained the sample seal. All the 100 gunny bags of poppy straw and 200 samples of poppy straw were taken in possession by the police vide seizure memo, which was signed by the witnesses and DSP Ram Sarup (PW-9). Balbir Singh, Kuldip Singh and Lila CRA No.583-DB of 2007 [5] Singh (appellants No.1 to 3), it is alleged, by keeping in their possession 100 gunny bags of poppy straw had committed offences punishable under Sections 15 and 16 of the NDPS Act. A memo was sent to the police Station through Virender Singh Constable for registration of a FIR. After registration of the FIR its number was asked to be communicated. The copies of the FIR and special report were asked to be arranged to be sent to the higher officers and the Ilaqa Magistrate through special messenger. SI/SHO Kishori Lal (PW-10) was busy with the investigation at the spot. During the proceedings, many respectable persons of the village had arrived at the spot and they were asked to join the investigation but they all expressed their inability and went away. The writing was recorded in the area of Panjmala. It was endorsed by SI/SHO Kishori Lal (PW-10) on 22.4.2005 at 6.15 p.m. Subash Chander MHC, Police Station Sadar Rori on the basis of the writing that was received at the Police Station registered FIR and a special report was sent to the Ilaqa Magistrate through Jagmal Singh EHC vide DDR No.28 at 8.05 p.m. SI/SHO Kishori Lal, Police Station Rori (PW-10) got unloaded the gunny bags, which were loaded on the trolley of the tractor. There were 10 bags in number. Besides, 90 gunny bags were lying under the sheaves of wheat. In this manner 100 gunny bags were recovered which on search were found to contain poppy straw. A couple of samples each weighing 100 gms were separated and were sealed with seal 'KL' after converting the same into separate parcels. The remaining poppy CRA No.583-DB of 2007 [6] straw after drawing the sample, on weighing was found to be 40.8 kilograms in each gunny bag along with the weight of the bag. The bags were converted into separate parcels and were sealed with the same seal 'KL'. SI/SHO Kishori Lal (PW-10) on return to the Police Station deposited the case property along with the tractor-trolley with the MHC with seals intact. The accused were put in the lock up of the Police Station.
On 23.4.2005, the accused Balbir Singh and Kuldip Singh (appellants No.1 and 2) were taken out from the lock-up and were separately interrogated. On interrogation, Balbir Singh (appellant No.1) suffered a disclosure statement (Ex.P21) to the effect that the recovered 100 gunny bags of poppy straw were brought by his brother Lila Singh (appellant No.3) and Farida Singh son of Harnek Singh resident of Bhima village from the State of Rajasthan and they along with him and Kuldip Singh (appellant No.2) had an equal share in the recovered 100 bags of poppy straw. The disclosure statement was objected to by the appellants. It was signed by Balbir Singh (appellant No.1) and attested by ASI Hans Raj (PW-11) and Vijay Singh. Thereafter, Kuldip Singh (appellant No.2) on interrogation made a disclosure statement (Ex.P22) that 100 bags of poppy straw were brought by his uncle Lila Singh (appellant No.3) and Farida Singh son of Harnek Singh in a truck during the intervening night of 21/22.4.2005. Kuldip Singh (appellant No.2) himself, Balbir Singh (appellant No.1), besides, Lila Singh (appellant No.3) CRA No.583-DB of 2007 [7] and Farida Singh had equal share in the said 100 gunny bags of poppy straw. The disclosure statement (Ex.P22) was signed by Kuldip Singh (appellant No.2) and was attested by Hans Raj ASI (PW-11) and HC Vijay Singh. On 23.4.2005 itself SI/SHO Kishori Lal (PW-10) prepared application (Ex.P23) for inventory and took the sample parcels and the residue bags, the tractor- trolley and the specimen seal impressions from the MHC of Police Station Rori. Both the accused were taken out from the police lock-up and produced before the learned Additional Chief Judicial Magistrate, Sirsa for inventory. The application (Ex.P23) for inventory was submitted. A photographer was also called at the Court campus, Sirsa. The photographer came to the Court of learned Additional Chief Judicial Magistrate, Sirsa and took photographs of the case property. The learned Additional Chief Judicial Magistrate, Sirsa passed formal order (Ex.P24) on the application for inventory. After inventory, SI/SHO Kishori Lal (PW-10) deposited the residue bags and 100 samples with the in charge of the Judicial 'malkhana' (store room), Sirsa. The remaining sample parcels of poppy straw i.e. 100 sample parcels and the specimen seal impressions were deposited with the MHC of Police Station Kalanwali with the seals intact. Report (Ex.P20) under Section 57 of the NDPS Act was sent to the DSP Headquarters, Sirsa. Sh. Mann Singh Sherawat, DSP, Sirsa saw and signed the report vide endorsement (Ex.P25). SI/SHO Kishori Lal (PW-10) identified the signatures of Sh. Mann Singh DSP, Sirsa on Ex.P25. The CRA No.583-DB of 2007 [8] photographs were produced before the learned Additional Chief Judicial Magistrate, Sirsa for attestation who passed order (Ex.P26) in respect of the photographs.
On 1.5.2005, the investigation of the case was handed over to Hans Raj ASI, Police Station Rori (PW-11) as SI/SHO Kishori Lal (PW-10) had been transferred. Hans Raj ASI (PW-11) recorded statements of Subash Chander MHC and Raj Kumar Constable under Section 161 of the Code of Criminal Procedure ('CrPC' - for short). Thereafter, he (Hans Raj ASI PW-
11) on 10.5.2005 joined Avtar Singh and Lila Singh, Sarpanch of village Surtia in the investigation of this case. He recorded statements Ex.P6 and Ex.P7 of Avtar Singh and Lila Singh respectively. On 6.6.2005 he recorded the statement of Mahavir Parshad, Patwari (PW-3) and also obtained Akshajra (Ex.P4), besides, copy of Jamabandi (Ex.P5) from him.
After completing the investigation, police report (challan) was filed against Balbir Singh and Kuldip Singh (appellants No.1 and 2). The learned Additional Sessions Judge to whom the case was assigned on 14.02.2006 framed charges against Balbir Singh and Kuldip Singh (appellants No.1 and 2). In terms of the interim order passed by the learned trial Court on 14.2.2006, it is mentioned that supplementary challan (police report) titled State v. Balwant Singh No. 7 of 2006 was also fixed for the said date and was an off-shoot of the FIR in the present case. The trial of both the said cases were ordered to be CRA No.583-DB of 2007 [9] conducted together as earlier the accused Balwant Singh was declared a proclaimed offender but now he had been arrested and produced in the Court. The supplementary challan (police report) titled as State v. Balwant Singh was, therefore, clubbed with the main police challan (police report) and the proceedings were ordered to be conducted in the main police challan. After hearing on the charge, it is further mentioned that from the perusal of report under Section 173 Cr.P.C. and the documents referred to therein a prima facie case for the offence punishable under Section 15 and 15/29 of the NDPS Act was made out against all the accused. The accused were charge sheeted accordingly to which they pleaded not guilty and claimed trial. The prosecution witnesses were ordered to be summoned for 6.5.2006. On 14.2.2006 in fact two charge sheets were drawn up. It was alleged in one of them that on 22.04.2005 Balbir Singh and Kuldip Singh (appellants No.1 and 2) in the area of village Panjmala, District Sirsa along with one Lila Singh (since declared a proclaimed offender) kept in their conscious possession 100 bags of 'choora post' (poppy straw) containing 41 kilograms 'choora post' (poppy straw) in each bag including the weight of the bag in the tractor trolley without any permit, license or authority and thereby they both (Balbir Singh and Kuldip Singh) committed an offence punishable under Section 15 of the NDPS Act, which was within the cognizance of the Court. It was directed that they be tried by the said Court on the aforesaid charge. The contents of the charge sheet were read over and CRA No.583-DB of 2007 [10] explained to both the accused in simple Hindi. The other charge sheet was against Balbir Singh, Kuldip Singh (appellants No.1 and 2), Jaskaran Singh son of Karam Singh, Farida Singh son of Harnek Singh and Balwant Singh son of Bhoora Singh (since acquitted). It is alleged that on or before 22.4.2005 all the said accused named above along with one Lila Singh, (since declared proclaimed offender) hatched a criminal conspiracy with each other for smuggling and selling 100 bags of poppy straw which were later on recovered from the conscious possession of the accused Balbir Singh and Kuldip Singh (appellants No.1 and 2) and thus they all thereby committed an offence punishable under Section 15 read with Section 29 of the NDPS Act, which was within the cognizance of the Court and the accused were directed to be tried by the Court of the aforesaid charge. The respective accused had heard and understood the contents of the charge sheet and pleaded not guilty and claimed trial. Thereafter, Lila Singh (appellant No.3) was arrested in the case and a supplementary 'challan' (police report) was filed against him. The learned trial Court on 1.11.2006 heard arguments on the charge against Lila Singh accused and from perusal of the report under Section 173 Cr.P.C. and accompanying documents found a prima facie case for the alleged commission of offence punishable under Section 15 of the NDPS Act to be made out against Lila Singh and he was ordered to be charge sheeted accordingly. It was alleged against Lila Singh (appellant No.3) that on 22.4.2005 in the area of village CRA No.583-DB of 2007 [11] Panjmal, District Sirsa, he along with his co-accused Balbir Singh and Kuldip Singh (appellants No.1 and 2) who had already been charge-sheeted vide order dated 14.2.2006 kept in his conscious possession 100 bags of poppy straw containing 41 kilograms poppy straw in each bag including the weight of the bag in the tractor-trolley without any permit or license or authority and thereby committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, which was within the cognizance of the Court. Lila Singh (appellant No.3) was directed to be tried by the said Court of the aforesaid charge. Lila Singh (appellant No.3) had heard the contents of the charge and pleaded not guilty to the same and claimed trial.
The prosecution in order to prove and establish its case examined as many as 13 PWs; besides tendered documents in evidence.
Moola Ram (PW-1) ASI, Police Station City Fatehabad on 15.7.2005 was posted as ASI at Police Station Rori and on that day the file of the case was entrusted to him for investigation. He had conducted investigations in the case. On 24.7.2005, he recorded the statement of Gurcharan Singh Ex- Sarpanch of village Jhiri under Section 161 Cr.P.C. On 26.10.2005 he arrested Farida. On 16.12.2005, he arrested Balwant Singh who had surrendered in the st Court of learned Judicial Magistrate 1 Class, Sirsa. Balwant Singh and Farida both were interrogated. Besides, statement of HC Jagdish Singh under Section 161 CrPC as well as his supplementary statement was recorded. Statement of CRA No.583-DB of 2007 [12] Gurcharan Singh was also recorded by him.
Raj Kumar (PW-2) Constable tendered in evidence his affidavit (Ex.P3) stating that on 26.4.2005, Subhash Chander MHC of Police Station Rori handed over to him 100 sample parcels of poppy straw each weighing 100 grams sealed with seals 'KL' and 'RS' of the present case along with docket and sample seal for depositing the same with the Forensic Science Laboratory (FSL - for short) Madhuban. He took the same to FSL Madhuban, however, an objection was raised regarding deficiency of papers and he brought the same back and deposited the same. Then on 29.4.2005, the MHC again handed over to him sample parcels of poppy straw each weighing 100 grams sealed with seal 'KL' and 'RS'. On the same day, he deposited the sample parcels of poppy straw duly sealed with FSL Madhuban in an intact condition. The receipt regarding deposit was handed over to MHC of Police Station Rori on return. So long as the parcels of the case property remained with him he did not tamper with the same. He was cross-examined by the defence. It is stated that he had got recorded in his statement that sample seal was also given to him along with the sample. He was confronted with his statement Ex.D1 wherein it was not so recorded. The objections raised by the FSL Madhuban initially on 26.4.2005 were not given to him in writing.
Mahavir, Patwari, Halqa Thiraj (PW-3) stated that on 18.5.2005, he was posted as Halqa Patwari, Patwar Circle, Thiraj and Panjmala. He prepared CRA No.583-DB of 2007 [13] scaled site plan (Ex.P-4); besides, copy of jamabandi (Ex.P-5) of rectangle No.14 Killa No.11 on the asking of the Police of P.S. Rori. Both the documents were correct and according to the revenue record. In cross- examination it is stated that alleged place of recovery is situated at a distance of 4/5 killas (measurement of distance in acres) from village Panjmala. 'Pucca' (metalled) road leading from village Jhorar Rohi to Panjmala does not run parallel to the northern boundary of killa No.14/11. The place of recovery was at a distance of 2 kilometers from village Thiraj.
Avtar Singh (PW-4) stated that he knew nothing about this case. Jaskaran Singh, Farida Singh or Balwant Singh never approached him for producing them before the police in this case. He was got declared hostile and cross-examined by the learned public prosecutor. He had heard his statement (Ex.P-6) word by word. He stated that he never made any such statement. He denied the other suggestions put to him regarding the prosecution case.
Leela Singh (PW-5) also stated that he knew nothing about this case. Jaskaran Singh, Farida Singh or Balwant Singh never approached him for producing them before the police. He was cross-examined but he denied his statement (Ex.P7) and the suggestions put by the learned Public Prosecutor.
Shankar Lal, Ahlmad of the Court of learned District and Sessions Judge, Sirsa (PW-6) brought the summoned file of the case titled as State versus Jaskaran Singh relating to FIR No.11 dated 31.3.2005 registered at P.S. CRA No.583-DB of 2007 [14] Rori under Sections 17, 18, 25 and 27-A of the NDPS Act. The original of the disclosure statement of Jaskaran Singh was brought by him which was Ex.P-8, which was objected to being inadmissible in evidence.
Sher Singh ASI (PW-7) partly investigated the case. On 11.6.2005 he arrested Jaskaran Singh in FIR No.11 dated 31.3.2005 registered at Police Station Rori under the NDPS Act. Jaskaran Singh was interrogated in the presence of Roshan Lal Head Constable and Constable Satbir. During interrogation Jaskaran Singh made a disclosure statement (Ex.P8). Jaskaran Singh in his disclosure statement confessed before the police party that the bags of poppy straw recovered in the case belonged to him and his co-accused. The learned trial Court ordered the said disclosure statement (Ex.P8) to be excluded from the evidence being a confession of an accused made before the police and that too in some other case. Sher Singh ASI (PW-7) formally arrested the accused in this case. In cross-examination it is stated by Sher Singh ASI (PW-7) that investigation of this case was entrusted to him on 11.6.2005 and Hans Raj ASI (PW-11) was the Investigating Officer earlier to him. He had gone away to Rajashtan in some other case. Sher Singh ASI (PW-7) did not join any Sarpanch, Lambardar or any respectable including neighbour at the time the accused made his disclosure statement.
Subhash Chander Head Constable (PW-8) tendered in evidence his affidavit (Ex.P-9). The same is regarding deposit of 100 gunny bags of poppy CRA No.583-DB of 2007 [15] straw each weighing 40.8 kilograms with seals 'KL' and 'RS', one tractor make 'Eicher' along with trolley and 200 sample parcels of poppy straw in the 'malkhana' on 22.4.2005. Thereafter on 23.4.2005, Subhash Chander Head Constable (PW-8) took out the aforesaid case property along with the tractor trolley and 200 sample parcels of poppy straw and handed it over to Kishori Lal SI/SHO (PW-10) for inventory. Kishori Lal SI/SHO (PW-10) after making an inventory deposited the same with him in the 'malkhana' (store room) of the Police Station. Then on 26.4.2005, the sample parcels of poppy straw with seals 'KL' and 'RS' were taken out from the 'malkhana' (store room) and given to Raj Kumar Constable (PW-2) for depositing the same with the FSL Madhuban. Due to deficiency of papers, the sample parcels of poppy straw along with sample seal were not deposited but were brought back to the Police Station by Raj Kumar Constable (PW-2). Raj Kumar Constable (PW-2) on 29.4.2005 was then again given the sample parcels which he deposited with the FSL Madhuban and handed over the receipt to him (Subhash Chander HC PW-
8). He (PW-8) was cross-examined by the defence. It is stated that he had got recorded in his statement that the case property and samples etc. were again got deposited with him after inventory on 23.4.2005. He was confronted with his statement Ex.D2 wherein it was not so recorded. Again he said that the case property was deposited with him on 22.4.2005. He was confronted with his statement Ex.D2 wherein the date is not recorded. The objection raised by the CRA No.583-DB of 2007 [16] FSL was that copy of the FIR was not sent with the samples. There was no writing with him regarding the nature of objection raised by the office of FSL, Madhuban.
Ram Sarup DSP Dabwali (PW-9) was examined. It is deposed by him that on 22.4.2005 while he was posted as DSP Dabwali, he received a notice (Ex.P10) under Section 42 of the NDPS Act from Kishori Lal SI/SHO (PW-10) through Constable Pargat Singh. He made his endorsement (Ex.P11) on the said notice. Thereafter he along with his staff and Pargat Singh Constable went to the place of recovery situated in the fields of Balbir Singh (appellant No.1) in village Panjmala. He found there the police party headed by Kishori Lal ASI (PW-11) as also Balbir Singh and Kuldip Singh (appellants No.1 and 2). There were 100 gunny bags lying in the fields and 200 sample parcels, which had already been separated from the poppy straw. SI Kishori Lal (PW-10) informed him the facts of the case. Ram Sarup DSP (PW-9) disclosed his identity to both the accused (appellants No.1 and 2). The samples were weighed in his presence and each sample weighed 100 grams. The residue bags were also weighed in his presence and each gunny bag on weighing was found to be 40.8 kilograms along with the weight of the bags. Thereafter he (PW-9) affixed his seal 'RS' on each sample parcel and residue bags. The seal after use was retained by him. SI Kishori Lal (PW-10) took in his possession the sample parcels. The residue bags, specimen seal impressions CRA No.583-DB of 2007 [17] and the tractor make Eicher without any registration number with a trolley attached to it were taken in possession by the police vide recovery memo (Ex.P12), which was signed by Partap Singh and Hans Raj ASI (PW-11). The same was attested by him (PW-9). He also put his seal on recovery memo (Ex.P12). His statement under Section 161 Cr.P.C was recorded by the I.O. Thereafter, he returned to his office. Ram Sarup DSP (PW-9) was cross- examined by the defence. It is inter alia stated that the place of recovery is at a distance of about 60 kilometers from his office at Mandi Dabwali. It was towards west again said towards south from village Panjmala. He could not tell about the direction of village Jhorar Rohi from village Phaggu. When he reached at the spot, the police party was sealing the samples and the residue bags etc. The police party had consumed about one hour time in completing the sealing process which was already going on. No independent witness was available when he reached at the spot. He remained at the spot till 7.30 pm. He could not tell the particular direction where the accused persons were sitting.
Kishori Lal SI (PW-10) is the Investigating Officer in the case who received secret information, formed a raiding party and recovered the contraband. The accused Balbir Singh and Kuldip Singh (appellants No.1 and
2) were arrested by him. He was cross-examined by the defence. It is inter alia stated that he remained posted as SHO Police Station, Rori for about 10 days after the registration of the case. He had remained posted as SHO of Police CRA No.583-DB of 2007 [18] Station Rori about one month prior to the registration of this case. It is stated that many public persons were present in the grain market, Thiraj. Public persons were passing through the place where they were standing. The secret informant had come to the grain market from the side of grain market on foot. He had passed on information to him by taking him aside. It is stated that accused Balbir Singh, Kuldip Singh and Lila Singh (appellants No.1 to 3) fled towards different directions and out of them; two were nabbed at the spot. Balbir Singh (appellant No.1) ran towards village Panjmala. The accompanying officials had nabbed him after covering a distance of 3 killas. However, he could not say as to which official had nabbed him. Similar was his reply in case of accused Kuldip Singh (appellant No.2). Balbir Singh accused (appellant No.1) was apprehended just near the 'phirni' (circular road) of the village. Kuldip Singh (appellant No.2) was apprehended alongside to the accused Balbir Singh (appellant No.1). He may be 2/3 paces ahead of Balbir Singh (appellant No.1). The accused Lila Singh (appellant No.3) also ran away towards the village. He could not tell as to who followed Lila Singh (appellant No.3) when he was escaping. After apprehending both the accused, they were taken to the place of recovery. He had not shown in the rough site plan about the place where the accused were apprehended. He (PW-10) did not get the place of recovery photographed although he made efforts to call a photographer from the village but a photographer was not available in the CRA No.583-DB of 2007 [19] village.
Hans Raj ASI (PW-11) took over the investigation from Kishori Lal SI/SHO (PW-10). He was also part of the raiding party with Kishori Lal SI (PW-10) which had apprehended Balbir Singh and Kuldip Singh (appellants No.1 and 2). On 23.4.2005, he conducted the investigation of this case along with Kishori Lal SI/SHO (PW-10). Balbir Singh and Kuldip Singh (appellants No.1 and 2) on that day were taken out from the lock up of the police station and they were interrogated in his presence and in the presence of Vijay Singh Head Constable. On interrogation Balbir Singh (appellant No.1) suffered a disclosure statement (Ex.P21). It was objected to. The same was to the effect that the recovered 100 bags of poppy straw were brought by his brother Lila Singh (appellant No.3) and Farida Singh (since acquitted) from the State of Rajasthan. The same were concealed at the place of recovery by them. They along with Farida Singh and Kuldip Singh (appellant No.2) had equal shares in the recovered 100 bags of poppy straw. The disclosure statement was signed by Balbir Singh (appellant No.1) and was attested by him (PW-11) and Vijay Singh Head Constable. Thereafter, Kuldip Singh (appellant No.2) on interrogation made a disclosure statement (Ex.P-22) to the effect that 100 gunny bags of recovered poppy straw were brought by his uncle Lila Singh (appellant No.3) and Farida Singh (since acquitted) in a truck on the night intervening 21/22.04.2005 and he (Kuldip Singh appellant No.2), Balbir Singh CRA No.583-DB of 2007 [20] Singh (appellant No.1), Lila Singh (appellant No.3) and Farida Singh (since acquitted) had equal shares in the said 100 bags of poppy straw. The disclosure statement was signed by Kuldip Singh (appellant No.2) and was attested by Hans Raj (PW-11) and Head Constable Vijay Singh. At the time of inventory in the Court campus at Sirsa, he (Hans Raj ASI PW-11) was present with Kishori Lal SI (PW-10). Thereafter, on 1.5.2005, the investigation of the case was handed over to Hans Raj ASI (PW-11) as Kishori Lal (PW-10) had been transferred from Police Station Rori. Hans Raj ASI (PW-11) recorded the statements of Subhash Chander MHC and Raj Kumar Constable under Section 161 Cr.P.C. On 10.5.2005 Avtar Singh (PW-4) and Leela Singh, Sarpanch of village Surtia (PW-5) were joined in the investigation by Hans Raj ASI (PW-11). Statement (Ex.P6) of Avtar Singh (PW-4) and statement (Ex.P7) of Leela Singh (PW-5) were recorded by Hans Raj ASI (PW-11). He (PW-11) also recorded statement of Mahavir Parshad, Patwari (PW-3) and obtained Akshijra (Ex.P4) and copy of Jamabandi (Ex.P5) from him. In cross- examination it is stated by Hans Raj ASI (PW-11) that his statement was recorded by I.O. at the spot at 8.00 pm. He had got recorded in his statement that the tractor trolley was also taken in police possession. He was confronted with his statement (Ex.D3) wherein the fact of taking in possession the tractor trolley was not recorded. In the report under Section 57 of the NDPS Act, there was no reference to seizing the tractor trolley at the spot. It was incorrect CRA No.583-DB of 2007 [21] that entry No.3 in the recovery memo (Ex.P12) was added later on. They had checked the engine number and chassis number of the tractor in question. It is stated that many villagers had come to the spot and they remained throughout the proceedings of the case till they left the place of recovery. Many respectable persons were asked to become witness but they refused to do so. He could not tell their names and addresses etc. Their names were not recorded in the case diary. He could not tell the registration number, name of driver, make of the tractor and name of the owner of the tractor.
Ishwar Singh SI/SHO (PW-12) arrested Lila Singh alias Gurmail Singh (appellant No.3) in this case. He was previously declared a proclaimed offender. He was joined in the investigation of the present case. On 23.10.2006, a supplementary challan (police report) was prepared against him and submitted in Court. In cross-examination, it is stated that he did not join any witness of this case in the investigation and did not record the statement of any witness of the present case. He had arrested Lila Singh at about 5.00 pm in the area of village Panjmala. He did not join any independent witness at the time of arrest of accused Lila Singh (appellant No.3) in this case. It was incorrect to suggest that he falsely entangled the accused in the present case and falsely challaned them.
Gurcharan Singh (PW-13) stated that he knew nothing about the case. Accused Lila Singh (appellant No.3) never approached him nor had he CRA No.583-DB of 2007 [22] ever asked him to produce him before the police in the present case. He had no knowledge of the present case. The police never recorded his statement. On request of the public prosecutor, Gurcharan Singh (PW-13) was declared hostile and he was cross-examined by the public prosecutor. He heard his statement (Ex.P29) word by word. It is stated that he never made such a statement before the police. It was incorrect that Lila Singh (appellant No.3) had met him and asked him for help to produce him before the Police. He denied the other prosecution case that was put to him.
The FSL report (Ex.P30) was tendered in evidence and the prosecution evidence was closed. In terms of the FSL report (Ex.P30) the samples 1 to 100 were identified as Poppy Straw (choora post) of papaver somnnerum. The statements in terms of Section 313 Cr.P.C. of the appellants were recorded by the learned trial Court and the substance of the evidence appearing against them was put to them.
Balbir Singh (appellant No.1) in his defence stated that he has been falsely involved in the case at the instance of Gurcharan Singh Sarpanch of village Panjmala. Nothing was ever recovered from him.
Kuldip Singh (appellant No.2) in his defence stated that he had been falsely involved in the present case at the instance of Gurcharan Singh Sarpanch of village Panjmala. Nothing was ever recovered from him. It is further stated that he was found innocent by the Deputy Superintendent of CRA No.583-DB of 2007 [23] Police during investigation and he was not challened by the SHO of Police Station, Rori.
Lila Singh (appellant No.3) in his defence stated that he had been falsely involved in this case at the instance of Gurcharan Singh Sarpanch of village Panjmala. Nothing was ever recovered from him.
The learned trial Court in terms of its order dated 7.3.2007 found no incriminating evidence against accused Jaskaran Singh, Farida Singh and Balwant Singh. Therefore, their examination under Section 313 Cr.P.C was dispensed with by an order passed on the said date. They were acquitted of the charges in view of the provisions of Section 232 Cr.P.C. The case was, however, ordered to proceed against the remaining three accused (appellants).
In defence, Diwan Singh SI (retired) was examined as DW-1. It is stated by him that on 7.7.2005, he was working as SI/SHO Police Station, Rori. Inquiry in this case was conducted by Shri Balbir Singh, the then DSP Headquarters, Sirsa. Kuldip Singh (appellant No.2) was found innocent in the inquiry. On the said basis, he had prepared discharge report (Ex.D4) of the accused Kuldip Singh (appellant No.2) and submitted the same in Court. On 7.9.2005, he had prepared 'challan' (police report) of this case on completion of investigation and he had not 'challaned' (charge sheeted) Kuldip Singh (appellant No.2). His name was placed in column No.2 of the police report under Section 173 Cr.P.C. The discharge report was forwarded by Shri CRA No.583-DB of 2007 [24] Dheeraj Setia, the then DSP, Sirsa on 7.7.2005. In cross-examination by the public prosecutor, it is stated by Diwan Singh SI (PW-1) that he had gone through the file of this case before submitting the discharge report in this case. It was correct that as per version of the prosecution, accused Kuldip Singh (appellant No.2) was arrested at the spot and 100 gunny bags of poppy straw were recovered in this case at the initial stage from him and his co-accused. He denied the suggestion that he had wrongly placed Kuldip Singh (appellant No.2) in column No.2 of the report under Section 173 Cr.P.C. It was wrong to suggest that the discharge report and the final report under Section 173 Cr.P.C were submitted by him without going through the case file and to help accused Kuldip Singh (appellant No.2).
Munshi Singh (DW-2) who is an agriculturist resident of village Alikan, Tehsil and District Sirsa stated that on 22.4.2005, he along with Nihal Singh (DW-3) had gone to the grain market Alikan to meet the Sarpanch there. Kuldip Singh (appellant No.2) was known to him earlier. He had come to the grain market on a tractor-trolley loaded with wheat at about 5.00 pm. He stayed at the grain market Alikan till 6.00 pm. Thereafter he went away to his field telling them that he was to take wheat chaff from the fields to his house on his tractor-trolley. Later on they came to know that he was falsely booked by the Police of Police Station Rori in a false case under the NDPS Act. He (DW-2) had also submitted an affidavit before DSP and joined the inquiry at CRA No.583-DB of 2007 [25] village Panjmala on 27.6.2004. His statement was also recorded by the DSP and at that time he had narrated the said story to DSP Balbir Singh and that he was convinced with their version. Munshi Ram (DW-2) was cross-examined by the public prosecutor. It is stated that Kuldip Singh (appellant No.2) met them in the grain market Alikan per chance. The distance between Panjmala and Alikan is 3 kilometers approximately. Kuldip Singh (appellant No.2) had unloaded the wheat in the grain market, Alikan immediately. He could not tell whether the wheat was sold out at the time or not. It was incorrect to suggest that he (DW-2) had deposed falsely to save Kuldip Singh (appellant No.2) being his relative. He denied the suggestion that the case was falsely cooked up.
Nihal Singh (DW-3) also an agriculturist of village Alikan stated on the same lines as Munshi Singh (DW-2). He had also submitted an affidavit before DSP and joined in the inquiry at village Panjmala on 27.6.2004. His statement was also recorded by the DSP and he had narrated the story to DSP Balbir Singh and that he was convinced with their version. In cross examination it is stated by Nihal Singh (DW-3) that Kuldip Singh accused (appellant No.2) met them in the grain market Alikan per chance. The distance between village Panjmala and Alikan is approximately 3 kms. Kuldip Singh (appellant No.2) had unloaded the wheat in the grain market Alikan immediately. His wheat was not sold out at that time. It was incorrect to CRA No.583-DB of 2007 [26] suggest that he had deposed falsely to save Kuldip Singh (appellant No.2) being his well wisher. It was incorrect to suggest that the accused Kuldip Singh (appellant No.2) never met them nor he unloaded any wheat in his (DW3's) presence or that he had cooked up a false story to save him in this case. It was incorrect to suggest that he was deposing falsely. He was not related to Kuldip Singh (appellant No.2).
Sadhu Singh (DW-4), Agriculturist resident of village Panjmala stated that his field adjoins the field of Balbir Singh (appellant No.1) and it has a common 'dole' (boundary ridge). On 22.4.2005, he was working in his field and Balbir Singh (appellant No.1) was handling the wheat chaff. Kuldip Singh (appellant No.2) had come to the fields on that day along with a tractor trolley at about 6.15 pm. Balbir Singh and Kuldip Singh (appellants No.1 and 2) were loading wheat chaff in the tractor trolley. At that time the police party reached in the fields and took them along with them and their tractor-trolley. Nothing was ever recovered from them. He (DW-4) appeared before DSP in the inquiry at village Panjmala on 27.6.2005. He submitted his affidavit before him and also narrated the above referred facts in his affidavit submitted before the DSP. Later on he came to know that both Balbir Singh and Kuldip Singh (appellants No.1 and 2) were booked by the police in a false case under the NDPS Act. In cross-examination by the Public Prosecutor, it is stated that he is not related to Balbir Singh and Kuldip Singh (appellants No.1 and 2) but he (DW-4) and both CRA No.583-DB of 2007 [27] the accused belong to the same village and have cordial relations with them. It was incorrect to suggest that on 22.4.2005, police party headed by Kishori Lal (PW-10) had raided the fields of Balbir Singh (appellant No.1) and recovered 100 bags of poppy straw from their fields and arrested both of them at the spot. It was incorrect to suggest that he (DW-4) had concocted a false story to save the accused persons in this case being a co-villager and being their field neighbour and due to his cordial relations with the accused. It was incorrect to suggest that he (DW-4) was deposing falsely to save the accused persons from legal punishment, which was likely to be awarded to them.
Kaur Singh (DW-5) deposed on the same lines as Sadhu Singh (DW-
4) being a co-villager and having adjacent field to Balbir Singh (appellant No.1). He was cross-examined even on the same lines.
Balbir Singh, DSP, Jhajjar (DW-6) was examined. It is stated by him that in the month of April 2005, he was posted as Dy. S.P. Headquarters, Sirsa. An application of Smt. Amarjit Kaur wife of Balbir Singh (appellant No.1) was marked to him by the Superintendent of Police, Sirsa for inquiry. He (DW-6) went to the place of recovery for inquiry on 27.6.2005 and he conducted his inquiry at the spot. He (DW-6) recorded the statements of Jarnail Singh, Sadhu Singh (DW-4), Kaur Singh (DW-5), Ranjit Singh, Munshi Singh (DW-2) and Nihal singh (DW-3) at the spot. He (DW-6) had also gone CRA No.583-DB of 2007 [28] through the police file carefully before conducting investigation. The aforesaid persons had produced their affidavits before him. The affidavits of Kaur Singh (DW-5), Sadhu Singh (DW-4), Nihal Singh (DW-3) and Munshi Singh (DW-2) were Ex.D4/A, Ex.D5, Ex.D6 and Ex.D7 respectively. In view of the statements of aforesaid Kaur Singh etc. and their affidavits, Kuldip Singh (appellant No.2) was present in grain market Alikan at about 5/6.00 pm on 22.4.2005 along with his tractor-trolley. The inquiry conducted by him (DW-
6) disclosed that Kudeep Singh (appellant No.2) was not present at the time of alleged recovery and he found him innocent. He prepared the case diary and sent his inquiry report to the Superintendent of Police, Sirsa. The Superintendent of Police agreed with his inquiry and consequently the SHO Police Station Rori sent the discharge report forwarded by DSP, Sirsa. He (DW-6) was cross-examined by the public prosecutor. It is stated that he did not make any inquiry from Kishori Lal Investigating Officer (PW-10), Ram Sarup DSP (PW-9), Partap Singh ASI and Hans Raj ASI (PW-11), witnesses of the recovery. It was correct that as per investigation conducted by Kishori Lal SI (PW-10), the investigating officer of the case, accused Kuldip Singh (appellant No.2) was nabbed at the spot. His inquiry was based upon the statements of aforesaid Kaur Singh etc. and their affidavits. It was voluntarily stated that he (DW-6) had conducted secret inquiry in this case. It was incorrect to suggest that he had wrongly declared accused Kudeep Singh CRA No.583-DB of 2007 [29] (appellant No.2) innocent.
The learned trial Court after considering the evidence and material on record has convicted the appellants and sentenced them to undergo rigorous imprisonment for fifteen years; besides, pay a fine of Rs.1,00,000/- each and in default thereof to undergo rigorous imprisonment for four years for the offence under Section 15 of the NDPS Act. Aggrieved against the same, the appellants have filed the present appeal.
Mr. A. S. Sullar, Advocate for Balbir Singh and Lila Singh (appellants No.1 and 3) has submitted that the prosecution has miserably failed to prove its case against the appellants. It is submitted that Kuldip Singh (appellant No.2) was found innocent in the inquiry; therefore, the case was totally false. No independent witness was joined when the secret information was recorded and the contraband was recovered. It has come in the cross- examination of Ram Sarup (PW-9), Kishori Lal SI (PW-10), the investigating officer in the case and Hans Raj ASI (PW-11) that many persons were there in the village yet they did not join the raid. Even a photographer was sent for but has not been examined. Besides, there is no verification as to whom the tractor-trolley belonged. In any case it is submitted that Lila Singh was not arrested at the spot and nothing was recovered from him; besides, Gurcharan Singh (PW-13) before whom Lila Singh (appellant No.3) is said to have made CRA No.583-DB of 2007 [30] an extra judicial confession did not support the prosecution case.
Mr. Jagjit Singh Gill, Advocate for Kuldip Singh (appellant No.2) in addition to what is submitted by Mr. A. S. Sullar, Advocate submits that the case as against Kudeep Singh (appellant No.2) is different from that of appellants No.1 and 3 inasmuch as he was not sent up for trial in terms of the report under Section 173 Cr.P.C and was put in column No.2 of the police report. Therefore, the learned Special Judge who tried the case was not liable to proceed with the case as against Kuldip Singh (appellant No.2). It is submitted that procedure for trial before a Special Judge under the NDPS Act is that of a Sessions trial in terms of Section 36-C of the NDPS Act and the said Court is deemed to be a Court of Session. Therefore, when Kuldip Singh (appellant No.2) was not sent up for trial, he was liable to be proceeded against only in terms of Section 319 Cr.P.C. and cognizance of the offence only was taken and not of the offender. The procedure adopted as against Kuldip Singh (appellant No.2) is completely vitiated and it has materially affected the life and liberty of Kuldip Singh (appellant No.2) which is not curable even under Section 465 Cr.P.C as it has materially and seriously prejudiced his rights. It is submitted that in fact Kuldip Singh (appellant No.2) was not summoned as an accused and no process was issued against him and he being a simple rustic villager was asked by his counsel in the trial Court to attend the Court even CRA No.583-DB of 2007 [31] though he was not sent up for trial. It is submitted that he continued to appear in the Court and the trial Court framed charges against him treating him as an accused and on bail. Therefore, it is submitted that the entire proceedings as against him are vitiated.
In response, Mr. Dhruv Dayal, learned DAG, Haryana appearing for the State has submitted that the prosecution has led cogent and convincing evidence and established its case against the appellants beyond shadow of doubt. The fact that no independent witness was joined when secret information was recorded, it is submitted that generally witnesses are not associated at the time of recording secret information as it would deter the secret informer to give the complete version. At the time of recovery of the contraband, efforts were made to join independent witnesses but generally in such matters it is submitted that witnesses are reluctant to join. In any case, the police had no enmity against the appellants and neither has any been alleged. Therefore, merely because all witnesses are police officials would not be a ground to discard their sworn testimonies. The fact that there is no verification as to whom the tractor-trolley belonged, it is submitted is inconsequential as it was in the possession of the appellants at the time of recovery; besides, 10 bags of poppy straw were recovered from the trolley. The tractor is mentioned as of 'Eicher' make in the prosecution case; besides, it is submitted that the learned CRA No.583-DB of 2007 [32] trial Court has recorded that the tractor-trolley involved in the case are owned by Balbir Singh, Lila Singh (appellants No.1 and 3) and their brother Dharam Singh alias Bhola jointly as stated by accused Balbir Singh and Lila Singh (appellants No.1 and 3) in Court on 6.6.2007 at the time of their being sentenced. Accordingly, separate proceedings regarding confiscation of the tractor-trolley in question were ordered to be initiated against Balbir Singh, Lila Singh (appellatns No.1 and 3) and said Dharam Singh alias Bhola Singh sons of Gurdev Singh. Therefore, the ownership of the tractor-trolley is established to be that of Balbir Singh, Lila Singh (appellants No.1 and 3) and their brother Dharam Singh alias Bhola. Lila Singh (appellant No.3) it is stated though was not arrested at the spot, however, his involvement is otherwise established and he was identified as the person who had run away when the police party had conducted a raid leading to recovery of the contraband. As regards Kuldip Singh (appellant No.2), it is submitted that Kuldip Singh (appellant No.2) was found present at the time of the incident and the case against him is not in any manner different and neither is it improper. It is stated that though he was kept in the column No.2 of the police report that was filed under Section 173 Cr.P.C., however, he had appeared in the case on all dates and he was present when the charge was framed against him on 14.2.2006. Therefore, it is submitted that the Court could take cognizance of the case as against Kuldip Singh (appellant No.2) as well. It is submitted that CRA No.583-DB of 2007 [33] in the trial of a case under the NDPS Act, the case is not committed to the Court of Special Judge and the police report (challan) is directly filed in terms of Section 36-A (1) (d) of the NDPS Act. It is provided therein that a special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the central Government or a State Government authorized in this behalf, take cognizance of that offence without the accused being committed to it for trial. Therefore, the learned trial Court having taken cognizance of the offence and Kuldip Singh (appellant No.2) being tried and there being evidence on record against him, the error or defect, if any, is curable under Section 465 Cr.P.C. as at the most it was a mere irregularity.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the records of the case.
The case of Kuldip Singh (appellant No.2) may be considered in the first instance. It is admitted position on record that he was not sent up for trial and was kept in column No.2 of the police report (challan) filed under Section 173 (2) Cr.P.C. Kuldip Singh (appellant No.2) in his defence under Section 313 Cr.P.C. stated that he was found innocent by the DSP during investigation and was not 'challaned' (charge sheeted) by the SHO of police station, Rori. In CRA No.583-DB of 2007 [34] defence Balbir Singh DSP (DW-6) has been examined who has proved the affidavits of Kaur Singh (DW-5), Sadhu Singh (DW-4), Nihal Singh (DW-3) and Munshi Singh (DW-2) as Ex.D4/A, Ex.D5, Ex.D6 and Ex.D7 respectively; besides, Kaur Singh (DW-5), Sadhu Singh (DW-4), Nihal Singh (DW-3) and Munshi Singh (DW-2) have been examined in defence. According to the inquiry conducted by Balbir Singh DSP (DW-6), Kuldip Singh (appellant No.2) was present at grain market, Alikan at about 5/6.00 pm on 22.4.2005 along with his tractor-trolley. The inquiry conducted by him disclosed that Kuldip Singh (appellant No.2) was not present at the spot when the recovery had been effected and he (DW-6) found him innocent. In cross-examination, Balbir Singh DSP (DW-6) states that he did not make any inquiry from Kishori Lal (PW-10), the investigating officer in the case, Ram Sarup DSP (PW-9), Partap Singh ASI and Hans Raj ASI (PW-11). Diwan Singh (DW-1) who filed the police report (challan) in the case on completion of investigation states that he did not 'challan' (charge sheet) Kuldip Singh (appellant No.2) and his name was placed in column No.2 of the police report under Section 173 Cr.P.C. It may be noticed that during the investigation of the case by the police an order dated 15.7.2005 was passed by the learned Additional Sessions Judge, Sirsa, which reads as under:-
"Accused Kuldip Singh and Balbir Singh were remanded CRA No.583-DB of 2007 [35] to judicial custody by this Court vide order dated 01.7.2005 till 15.7.2005 in case FIR No.19 dated 22.4.2005 under Sections 15/16/61/85 of NDPS Act, Police Station, Rori. No request for further judicial remand of accused Kuldip Singh has been made. The SHO Police Station Rori through DSP, Sirsa duly forwarded by Shri Kheta Ram, Public Prosecutor filed an application for discharge of the accused Kuldip Singh of the offence punishable under Section 15 of the NDPS Act in case FIR No.19 dated 22.4.2005, Police Station Rori on the ground that during investigation the accused Kuldip Singh was found innocent and there is no evidence against him.
Since there is no request for further judicial custody of the accused Kuldip Singh and the SHO of the Police Station has filed discharge report on the ground of insufficient evidence, so, the accused Kuldip Singh be released at once in the present case. I am supported by case law titled as Shogin Singh Vs. State of Punjab 2004(1) RCR 47 and Sri Ram and another Vs. State of Haryana 2002 (4) RCR 105.
The SHO, Police Station, Rori has moved application seeking judicial remand of accused Balbir Singh. Heard. Pending investigation and producting of challan accused Balbir Singh is CRA No.583-DB of 2007 [36] remanded to judicial custody till 29.7.2005 on which date he be produced again. Now to come up on 29.7.2005 for awaiting of report also."
A perusal of the above order dated 15.7.2005 shows that there was no request for further judicial custody of Kuldip Singh (appellant No.2) and the SHO Police Station Rori had filed a discharge report against him on the ground of insufficient evidence. Accordingly, Kuldip Singh (appellant No.2) was ordered to be released. The said order is an order of release and not of discharge. In the case of Shoqin Singh (supra) referred to in the above order of the learned Additional Sessions Judge, Sirsa, it was held that release from custody does not amount to discharge of the accused. Such a release is in terms of Section 169 Cr.P.C and it is subject to the filing of police report (challan) under Section 173 Cr.P.C. In the police report (challan) that was filed admittedly Kuldip Singh (appellant No.2) was not sent up for trial and was kept in column No.2 of the report. The question, therefore, that arises is whether Kuldip Singh (appellant No.2) could be proceeded against as well especially when he was not sent up for trial and he was present when the charge was being framed. In this regard it is to be noticed that the procedure for trying offences under the NDPS Act is provided for under Section 36-A of the NDPS Act. Section 36-A (1) (a) and (d) of the NDPS Act read as under:- CRA No.583-DB of 2007 [37]
"36-A Offences triable by Special Courts:-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;
(b) xxxxxxxx
(c) xxxxxxxx
(d) a special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorized in this behalf, take cognizance of that offence without the accused being committed to it for trial."
The provisions of Section 36-C of the NDPS Act may also be noticed, which relate to application of the Code of Criminal Procedure to proceedings before a Special Court. The same read as under:- CRA No.583-DB of 2007 [38]
"36-C Application of Code to proceedings before a Special Court:- Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor."
A perusal of the above provisions of the NDPS Act show that proceedings before a Special Court are deemed to be that of a Court of Session. Even otherwise Section 4 Cr.P.C relates to trial of offence under IPC and other laws. The same reads as under:-
"4.Trial of offences under the Indian Penal Code and other laws. -
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying CRA No.583-DB of 2007 [39] or otherwise dealing with such offences."
In terms of the above, the offences under law other than IPC are to be tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of trying or otherwise dealing with such offences. In terms of the first schedule of Cr.P.C in respect of offences other than IPC is provided for in Para II thereof as under:-
II - Classification of Offences Against Other Laws Offence Cognizable or Bailable or By what non-cognizable non-bailable court triable 1 2 3 4 __________________________________________________________________________ If punishable with death, imprison-
-ment for life, or imprisonment for more than 7 years. Cognizable Non-bailable Court of Session. If punishable with imprisonment for 3 years and upwards but not more than 7 years. Cognizable Non-bailable Magistrate of the Ist Class If punishable with imprisonment for less than 3 years or with fine only Non-Cognizable Bailable Any Magistrate Therefore, the Court of Special Judge in terms of the provisions of Section 36-C of the NDPS Act conducts a Sessions trial relating to offences punishable under the NDPS Act. However, the provisions of Cr.P.C apply to it subject to the provisions of the NDPS Act to the extent they have been made CRA No.583-DB of 2007 [40] applicable for trial. Section 36-A (1) (a) of the NDPS Act envisages that the offences under the NDPS Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence had been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government. The present is a case which is punishable with imprisonment of more than three years. Therefore, the same is to be tried by a Special Court. However, a police report (challan) is not filed before a Magistrate but is filed directly in the Special Court. Therefore, when the police report (challan) is not filed before a Magistrate, the case even is not committed by a Magistrate as in the case of Sessions trial in respect of offences under the IPC in view of Section 36-A (1) (d) of the NDPS Act, which enjoins that a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorized in this behalf, take cognizance of that offence without the accused being committed to it for trial.
Learned State counsel has, therefore, contended that the Sessions Court, in view of the aforesaid position could take cognizance of the offence without the case being committed to it by a Magistrate and as such there is CRA No.583-DB of 2007 [41] nothing improper in case Kuldip Singh (appellant No.2) was also charge sheeted as he was already present in Court. In support of his contention, learned State counsel cites Raj Kumar Karwal versus Union of India, (1990) 2 SCC 409 wherein the provisions of Section 36-A (1) (d) of the NDPS Act were considered by the Supreme Court. After referring to the said provision it was observed that the said clause makes it clear that if the investigation is conducted by the Police, it would conclude in a police report (challan) but if the investigation is made by an officer of any other department including the DRI, the Special Court would take cognizance of the offence upon a formal complaint made by such authorized officer of the concerned Government. It was observed that it is needless to say that such a complaint would have to be under Section 190 Cr.P.C. The said clause, it was observed clinched the matter. Therefore, according to Shri Dhruv Dayal, learned counsel for the State, the learned Special Court having taken cognizance of the offences and proceeded against Kuldip Singh (appellant No.2) on the basis of material on record at the time of framing charges and thereafter on the basis of evidence adduced against him during the trial has rightly convicted and sentenced him.
In any case, it is submitted that even if there is any irregularity the same is curable in terms of Section 465 Cr.P.C. Indeed the provisions of the NDPS Act are applicable to the present case. The Special Court can take cognizance of the offence on the filing of the police report in view of the provisions of CRA No.583-DB of 2007 [42] Section 36-A (1) (d) of the NDPS Act as also held in Ram Kumar Karwal's case (supra). The Special Court would, however, take cognizance of the offences and not the offender. If cognizance of the offence is taken it would not amount to taking cognizance of the offender. In Mona Panwar versus High Court of Judicature of Allahabad (2011) 3 SCC 496, it was held that the phrase "taking cognizance" means cognizance of an offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies its mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a Police Officer. The position, however, when a Magistrate takes cognizance of the offence and when a Court of Session takes cognizance of the offence is somewhat different. In SWIL Limited versus State of Delhi (2001) 6 SCC 670, the question as to whether a person who was not included as an accused in the charge sheet under Section 173 Cr.P.C could be summoned after the cognizance the offence had been taken, was considered. It was held that at the stage of taking cognizance of the offence, provisions of Section 190 Cr.P.C would be applicable. As per the said provision, the Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the CRA No.583-DB of 2007 [43] offence, the Magistrate under Section 204 Cr.P.C is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether the process should be issued against particular person/persons named in the charge sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with the charge sheet. Further, upon receipt of the police report under Section 173 (2) Cr.P.C, the Magistrate is entitled to take cognizance of an offence under Section 190 (1)
(b) Cr.P.C even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of witnesses examined by the police. At this stage, there is no question of application of Section 319 Cr.P.C. That provision would come into operation in the course of any inquiry into or trial of an offence. The said provision of Section 204 Cr.P.C, it may be noticed is applicable to proceedings before a Magistrate and not before a Court of Session. In fact Section 204 falls under Chapter XVI Cr.P.C under the heading; "Commencement of proceedings before Magistrate", Section 204 Cr.P.C. relates to 'Issue of Process'. Sub Section (1) thereof provides that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be come (a) a summons-case, CRA No.583-DB of 2007 [44] he shall issue his summons for the attendance of the accused, or (b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. Therefore, the provision of Section 204 Cr.P.C. is applicable to commencement of proceedings before a Magistrate and not before a Court of Session. Before the Court of Session, the only manner by which an additional accused can be proceeded against is provided for under Section 319 Cr.P.C. In Ranjit Singh versus State of Punjab, AIR 1998 SC 3148, it was held that the powers of the Sessions Court under Section 193 Cr.P.C. to take cognizance of the offence does not include the summoning of the person or persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record. Once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court i.e. the Sessions Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 Cr.P.C can be invoked. There is, therefore, no power except Section 319 Cr.P.C by which a Court of Session can array a new person as an accused. There is no intermediary stage at which Court of Session can add to the array of an accused. It was held that till the stage of Section 230 Cr.P.C is reached, the Sessions Court can deal only with the accused referred to in Section 209 CRA No.583-DB of 2007 [45] Cr.P.C. In Ranjit Singh's case (supra), the Supreme Court disapproved the observation made in Kishun versus State of Bihar (1993) 2 SCC 16. The judgment of Ranjit Singh's case (supra) has since been referred to a larger Bench in Dharampal versus State of Haryana (2004) 13 SCC 9. However, in the present case, even if the contention of the learned counsel for the State is to be accepted that the Special Court could have proceeded against an accused not sent up for trial by taking cognizance of the offence on the basis of material filed with the police report (challan), the Special Court in any case was at least liable to go into the material that was placed before it for the purpose of consideration as to whether a process was liable to be issued to Kuldip Singh (appellant No.2) as he admittedly had not been sent up for trial. It is after examination of the material on record that the Special Court was liable to issue a process to the accused who had not been sent up for trial. The process is issued in terms of Section 204 Cr.P.C. In the present case, Sh. Jagjit Singh, Advocate learned counsel for appellant No.2-Kuldip Singh has contended that the counsel for Kuldip Singh (appellant No.2) in the trial Court had asked him to be present in Court and he on his instructions was present and happened to be present in Court along with his father Balbir Singh (appellant No.1) and his uncle Lila Singh (appellant No.3) even though he was not sent up for trial and had been placed in column No.2 of the police report (challan). Therefore, indeed no process was issued to Kuldip Singh (appellant No.2) summoning CRA No.583-DB of 2007 [46] him as an accused, which was liable to be issued even if the contention of the learned counsel for the State is to be accepted. In fact it is only due to the reason that he was present along with his father Balbir Singh (appellant No.1) and uncle Lila Singh (appellant No.3) that the learned Special Judge on 14.2.2006 proceeded to frame charges against him. A reference may be made in this regard to the order passed by the learned Special Judge on 14.2.2006 while hearing on the framing of charges, which reads as under:-
"Present: Smt. Usha Bishnoi, PP for the State.
Accused Kuldip Singh on bail whereas accused Jaskaran Singh, Balbir Singh, Fariada Singh and Balwant Singh in custody with S/Sh. J.S. Mann and S.L. Sidhu, Advocates. Supplementary challan titled Sate Vs. Balwant Singh No.7 of 2006 is also fixed for today and is the off-shoot of this very FIR. The trial of both these cases is to be conducted together as earlier the accused Balwant Singh was declared a proclaimed offender but now he has been arrested and produced in the court. Therefore, the supplementary challan titled as State Versus Balwant Singh is clubbed with the main police challan and the proceedings will be conducted henceforth in the main police challan.
Heard on charge. From the perusal of the report under Section 173 Cr. P.C. and the documents referred to therein a prima- facie case for the offences punishable under Sections 15 & 15/29 of CRA No.583-DB of 2007 [47] the NDPS Act is made out against all the accused. The accused have been charge-sheeted accordingly to which they pleaded not guilty and claimed trial. Let the prosecution witnesses be summoned for 6.5.2006.
Dated:14.2.2006 (R.K. Sharma),
Addl. Sessions Judge,
Sirsa"
A perusal of the above order shows that Kuldip Singh (appellant No.2) was present at the time of hearing for framing charge and it is mentioned that he was on bail. In fact he had been released from custody in terms of order dated 15.7.2005 passed by the learned Additional Sessions Judge, Sirsa as a discharge report had been filed as against him, a reference regarding which has been made above. Therefore, he was not on bail. In any case, the learned trial Court heard arguments on framing of charge. It was observed that from the perusal of the report under Section 173 Cr.P.C and the documents referred to therein a prima facie case for the offences punishable under Sections 15 and 15/29 of the NDPS Act was made out against all the accused. There is no independent consideration of the fact that Kuldip Singh (appellant No.2) was not sent up for trial and had been kept in column No.2 of the police report (challan) that was filed. It was not even considered by the learned trial Court that on the basis of material on record a process of liable to be issued to Kuldip CRA No.583-DB of 2007 [48] Singh (appellant No.2) for being tried along with the other accused. It was taken that Kuldip Singh (appellant No.2) was on bail and, therefore, he had to be charge sheeted and was charge sheeted. As such Shri Jagjit Singh Gill, Advocate, learned counsel for Kuldip Singh (appellant No.2) is not wrong in submitting that Kuldip Singh (appellant No.2) happened to be present in Court on the asking of his counsel and the learned trial Court proceeded to frame charges against him and tried him. Therefore, irrespective of the fact as to whether Kuldip Singh (appellant No.2) could be arrayed as an accused at the time of taking cognizance of the offence in terms of Section 36-A (1) (d) of the NDPS Act read with Section 190 Cr.P.C or only by resort to Section 319 Cr.P.C, it is quite evident that there has been no independent consideration as to whether a process was liable to be issued to Kuldip Singh (appellant No.2) for being tried along with his other co-accused. It is quite evident that Kuldip Singh (appellant No.2) was released from custody vide order dated 15.7.2005 and his further remand for custody was not taken. As such his trial along with the other co-accused without resort to the provisions of law is quite illegal and against the procedure provided for in law. In State of U.P. Versus Singhara, AIR 1964 SC 358, a second class Magistrate not specially empowered by the State Government to record a statement of confession under Section 164 Cr.P.C had purported to record a statement of the accused under the said provision. It was held that his oral evidence to prove the confession would be CRA No.583-DB of 2007 [49] inadmissible. It was further held that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods are necessarily forbidden. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. Therefore, when the procedure prescribed for adding an accused who has not been sent up for trial has not been followed either at the time of taking cognizance of the offence or during the trial by resort to section 319 Cr.P.C, it cannot be said that merely because Kuldip Singh (appellant No.2) happened to be present and had appeared before the learned trial Court, his being charge sheeted along with the other accused and tried, was proper. Therefore, it would not be a mere irregularity which can be said to be curable in terms of Section 465 Cr.P.C. The present is not a case where the accused had been sent up for trial and during the trial there was an error in charge sheeting him or there was an irregularity. In fact had Kuldip Singh (appellant No.2) not appeared or was not present before the learned trial Court, he would not have been charge sheeted at all except in accordance with the procedure provided by law. Therefore, by his mere presence along with his father Balbir Singh (appellant No.1) and uncle Lila Singh (appellant No.3) at the time of framing charge and thereafter being charge-sheeted has indeed resulted in a serious prejudice and manifest injustice being caused to him and the trial in the manner which has been conducted as against him has occasioned a failure of justice for want of CRA No.583-DB of 2007 [50] following the requisite procedure.
As regards the case against Balbir Singh (appellant No.1) and Lila Singh (appellant No.3), the contention of Shri A. S. Sullar Advocate learned counsel appearing for them is that Kuldip Singh (appellant No.2) had been found innocent, therefore, the case against Balbir Singh (appellant No.1) and Lila Singh (appellant No.3) is also false. As has already been noticed Kuldip Singh (appellant No.2), in terms of the inquiry conducted by DSP Balbir Singh (DW-6) was found to be present at the grain market, Alikan at about 5/6.00 pm on 22.04.2005 along with his tractor-trolley and not at the place of occurrence. Balbir Singh (DW-6) in his inquiry did not make any inquiry from Kishori Lal (PW-10) the investigating officer in the case nor was any inquiry made from Ram Sarup DSP (PW-9), Partap Singh ASI and Hans Raj (PW-11). Kuldip Singh (appellant No.2) was not sent up for trial and the case against him is not made out for want of following the required procedure. However, the principle of falsus in uno, falsus in omnibus is not applicable. Therefore, merely because the case is found to be not made out against Kuldip Singh (appellant No.2) from that it cannot by itself be said to be false as against Balbir Singh (appellant No.1) also.
The other contention that no independent witnesses were joined when secret information was recorded is hardly of any consequence as CRA No.583-DB of 2007 [51] generally secret information is recorded by a police official from an informer in confidence and a police officer would not disclose the source of his information and neither are independent witnesses associated at that stage. Therefore, the contention that no independent witness was joined at the time of recording the secret information is inconsequential. As regards non-joining of witnesses at the time of recovery, it may be noticed that DSP Ram Sarup (PW-9), SI Kishori Lal (PW-10) the investigating officer in the case and ASI Hans Raj (PW-11) have stated that number of persons were there of the village at the spot but nobody joined. It may be noticed that independent persons are generally reluctant to join in the recovery of contraband for fear of having enmity with the accused and lack of protection for them. Non-joining of independent witnesses during a police raid and consequently their non- examination does indeed cast an added duty on the Court to adopt greater care and caution while examining the evidence of the police officers investigating a case. However, if the evidence and depositions of the concerned police officers are found acceptable and credible; besides, there is no enmity for the police officials to falsely implicate the accused and there is no material that it was being done only for preparation of data in the detection of crimes against narcotic drugs, it cannot be said that the non-joining and consequent non- examination of independent witnesses would in any manner affect the prosecution case. As a rule of prudence, however, the joining of independent CRA No.583-DB of 2007 [52] witnesses instills more weightage and credit worthiness to the truthfulness of the prosecution case. However, merely because no independent witness was joined would not mean that the prosecution case is to be thrown out altogether but it would depend on the facts and circumstances of each case. In the present case, the recovery is quite substantial i.e. 100 bags of poppy straw and it is quite unlikely that these would have been planted. A photographer was called in the Court complex at the time of weighing the bags and photographs (Ex.P26, Ex.P27 and Ex.P28) are on record. The photograph EX.P27 shows a bag being weighed with a spring actuated weighing scale and photograph Ex.P28 shows stocks of gunny bags with a truck standing behind them. Therefore, in view of the recovery, in the facts and circumstances it cannot be said that there has been any false implication of Balbir Singh (appellant No.1). The recovered contraband was sent to the FSL for examination and the FSL report (Ex.P30) is on record which is dated 27.5.2005. It relates to examination of parcels No.1 to 100 bearing seal and impression 3-KL, 1-RS on each. The tests were postive for presence of Morphine, codeine, Thebaine, Narcotine, Papaverine, Meconic Acid in samples No.1 to 100. In the opinion of the FSL, it was observed that the samples (1 to 100) were identified as poppy straw (chura post) or papaver of somniserum. Therefore, all the 100 samples that were recovered were identified as poppy straw. CRA No.583-DB of 2007 [53]
The manner in which the samples were taken and thereafter deposited with the MHC and then taken to FSL Madhuban completes the link evidence in the case. Raj Kumar Constable (PW-2) has deposed his affidavit (Ex.P3) that the sample parcels of poppy straw were brought to FSL Madhuban on 26.4.2005. Some objection was raised regarding deficiency of papers and he brought the sample parcels back and deposited the same with the MHC Subhash Chander (PW-8) of Police Station Rori. Then he again took them on 29.04.2005 from the MHC and deposited them with FSL Madhuban. The deposition of Raj Kumar Constable (PW-2) is corroborated by Subhash Chander MHC (PW-8) who tendered in evidence his affidavit (Ex.P9) regarding the deposit of 100 gunny bags of poppy straw each weighing 40.8 kgs with seals of 'KS' and 'RS' by Kishori Lal SI/SHO (PW-10) on 22.4.2005. Thereafter taking the same out from the 'malkhana' (store room) on the tractor trolley on 23.4.2005 along with 200 sample parcels along with sample seal and handing them over to Kishori Lal SI/SHO (PW-10) for inventory and as also deposit of the same with him in the 'malkhana' of Police Station after inventory. It is also stated that Kishori Lal SI/SHO (PW-10) after inventory deposited with him in the 'malkhana' of the police station 100 sample parcels of poppy straw along with the sample seal. On 26.4.2005, 100 sample parcels of poppy straw each weighing 100 grams sealed with seal 'KL' and 'RS' along with the sample seal after being removed from the 'makhana' of police station CRA No.583-DB of 2007 [54] were handed over to Raj Kumar Constable (PW-2). Due to objection on account of deficiency of papers, the aforesaid 100 sample parcels of poppy straw were not deposited and the same were brought back to the police station by Constable Raj Kumar (PW-2) and deposited with him (PW-8). On 29.04.2005 after completing the papers 100 sample parcels along with sample seals were handed over to Constable Raj Kumar (PW-2) who on reaching Madhuban on the same day deposited them with the FSL, Madhuban. Constable Raj Kumar (PW-8) handed over receipt to Subhash Chander (PW-2) on his return. Therefore, the link evidence regarding collection of sample and deposit of the same with the FSL is complete. As such merely because an independent witness or witnesses were not joined at the time of recovery would not in the facts and circumstances of the present case affect the prosecution case.
The other contention as regards the verification of tractor-trolley not being done may be considered. The same would also not affect the prosecution case. The contraband in the case was recovered from the tractor-trolley in possession of Balbir Singh (appellant No.1). It is when the police party headed by SI/SHO Kishori Lal (PW-10) had reached the place of occurrence, he apprehended Balbir Singh (appellant No.1). Contraband of poppy straw was recovered from him, which was on the tractor-trolley and under the sheaves of CRA No.583-DB of 2007 [55] wheat. Therefore, Balbir Singh (appellant No.1) was in conscious possession of the contraband and the same was partly recovered from the tractor-trolley in his possession. As such the mere fact that the verification of tractor-trolley was not done is inconsequential. It is somewhat a defective investigation. However, even if there is some remissness on the part of the police officials conducting the investigation and there is defect in the investigation conducted by the police, the Court can rely upon the other evidence led by the prosecution and connect the accused with the crime, if the same is found to be reliable and trustworthy. In the present case the recovery of the contraband coupled with the evidence led by the prosecution goes to establish the recovery of the contraband from Balbir Singh (appellant No.1). Besides, in the concluding paragraph of the order dated 6.6.2007 of the learned trial Court while sentencing the accused, it has been observed that the case property i.e. poppy straw be disposed of in due course of time and due process of law if the same had not been disposed till then. The tractor-trolley, it was observed involved in the case were owned by Balbir Singh, Lila Singh (appellants No.1 and 3) and their brother Dharam Singh jointly as stated by the accused in Court on that day i.e. 6.6.2007 at the time of sentencing. Separate proceedings regarding confiscation of the tractor-trolley were ordered to be initiated against Balbir Singh, Lila Singh (appellants No.1 and 3) and Dharam Singh alias Bhola Singh sons of Gurdev Singh. Therefore, the tractor trolley was found to be owned by CRA No.583-DB of 2007 [56] Balbir Singh, Lila Singh (appellatns No.1 and 3) and their brother Dharam Singh jointly. Therefore, the fact that it was not verified as to whom the tractor-trolley belonged would be inconsequential as the accused themselves have stated at the time of sentencing that it belonged to them.
The case of Lila Singh (appellant No.3) is, however, somewhat different. Admittedly he was not arrested from the spot and nothing has been recovered from him. The only evidence against him is that his co-accused Balbir Singh (appellant No.1) stated that the third person who had run away when the police conducted the raid was Lila Singh (appellant No.3). The statement of a co-accused by itself is not such an evidence to hold a person guilty. In Haricharan Kurmi versus State of Bihar, AIR 1964 SC 1184, it was held that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the CRA No.583-DB of 2007 [57] Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. Besides, Lila Singh (appellant No.3) according to the prosecution, made an extra judicial confession before Gurcharan Singh (PW-13). Gurcharan Singh (PW-13) while appearing in the witness box stated that he knew nothing about the case and the accused Lila Singh (appellant No.3) never came to him or approached him ever or asked him to produce him before the police. He had no knowledge about the present case. Gurcharan Singh (PW-13) was cross-examined by the learned Public Prosecutor for the State. He heard his statement (Ex.P29) word by word. He stated that he had never made such a statement before the police. He denied as incorrect that Lila Singh (appellant No.3) had met him and asked him to produce him before the police. It was incorrect to suggest that he told him that poppy straw recovered from Babir Singh and Kuldip Singh (appellants No.1 and 2) belonged to Lila Singh (appellant No.3) and Balwant Singh, Farida Singh etc. and Jaskaran Singh. It is also stated as incorrect that accused Lila Singh (appellant No.3) had told him that Kuldip Singh (appellant No.2) and Balbir Singh (appellant No.1) were arrested whereas he (Lila Singh-appellant No.3) escaped from the spot. It was incorrect to suggest that he had been won over by the defence and for that reason he made a false statement on that day before the Court. It was also incorrect that he was deposing falsely to save the accused from legal punishment likely to be awarded to the accused. Therefore, CRA No.583-DB of 2007 [58] Lila Singh (appellant No.3) having not been arrested at the spot, no recovery having been affected from him and the extra judicial confession said to have been made by him before Gurcharan Singh (PW-13) having not been established; besides, statement of co-accused Balbir Singh (appellant No.1) being by itself not being sufficient to convict him, the benefit of doubt is liable to be given to him.
In the circumstances, conviction of Balbir Singh (appellant No.1) is liable to be maintained and upheld. Balbir Singh (appellant No.1) has been sentenced by the learned trial Court to undergo rigorous imprisonment for 15 years; besides, pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo further rigorous imprisonment for four years. In the facts and circumstances, the sentence of imprisonment of Balbir Singh (appellant No.1) as also the period of imprisonment in default of payment of fine is liable to be reduced. It has not been shown that he has been a previous convict or had been earlier involved in any other case of similar nature. Therefore, it would be just and expedient to reduce the sentence of imprisonment of Balbir Singh (appellant No.1) from 15 years to 10 years with fine of Rs.1,00,000/- and in the event of default of payment of fine to further undergo imprisonment for one year. The conviction of Kuldip Singh (appellant No.2) for failure to follow the prescribed procedure of joining him in the trial is held to be vitiated which has resulted in grave prejudice and occasioned a failure of justice; besides, benefit CRA No.583-DB of 2007 [59] of doubt is liable to be given Lila Singh (appellant No.3).
Accordingly conviction of Balbir Singh (appellant No.1) is maintained and upheld and the appeal against his conviction is dismissed. However, his sentence of imprisonment is modified and is reduced from rigorous imprisonment of 15 years to rigorous imprisonment for 10 years; besides, he shall pay a fine of Rs.1,00,000/- and in default of payment of fine, he shall undergo rigorous imprisonment for one year. However, the appeal as against Kuldip Singh (appellant No.2) and Lila Singh (appellant No.3) is allowed and their convictions and sentences for the offences for which they were charged is set aside and they are acquitted of the same.
(S.S. SARON) JUDGE (NARESH KUMAR SANGHI) JUDGE
15.5.2012 amit/A.Kaundal