Punjab-Haryana High Court
Dharambir Alias Dharma vs State Of Haryana on 28 April, 2009
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 2040-SB of 2008 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Appeal No. 2040-SB of 2008
Date of Decision: 28.4.2009
Dharambir alias Dharma
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Sandeep K. Sharma, Advocate
for the appellant.
Mr. S.S. Pattar, Senior Deputy Advocate
General, Haryana, for the State.
Kanwaljit Singh Ahluwalia, J. (Oral)
The appellant was tried by the Special Judge, Jhajjar, in case FIR No. 58 dated 18.3.2007 registered at Police Station Beri, under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act").
The appellant has been convicted and sentenced by the Court of the Special Judge, Jhajjar, to undergo rigorous imprisonment for five years and to pay a fine of Rs.50,000/-, in default whereof to further undergo rigorous imprisonment for one year.
The appellant was found in possession of 7 Kgs. of poppy husk. The FIR was registered on basis of ruqa Ex. PB sent by Attar Singh, Assistant Sub Inspector. FIR being translated read as under:- Criminal Appeal No. 2040-SB of 2008 2
"To The Station House Officer, Police Station Beri.
Jai Hind, Today, I (A.S.I.) and Balbir H.C. No. 579, Pardip Singh, H,C. No. 562 and Sukhbir Singh C.No. 853 were standing on Bridge of village Dujana minor in the area of village Gochhi in connection with patrolling and crime detection. A person having a plastic bag (gunny bag) was seen, while coming on foot. Seeing police party, standing on Simon minor bridge, he stepped back quickly and got down in bushes growing on the road. He threw his plastic bag which he had in his right hand. I (A.S.I.) with the help of other police personnel captured/empowered the aforesaid person on the ground of suspicion. On enquiry, he told his name as Dharambir alias Dharma son of Ram Sarup Caste Prajapat, resident of village Gochhi. Bag lying in bushes was taken and seen. Some quantity of poppy husk had been spreaded on the soil, from the bag. Lateron the plastic bag was checked and found that it was full of poppy husk. On measurement, 7 Kilo grams of poppy husk was found. Out of recovered poppy husk, 500 grams was taken twice as sample and taken into small polythene (plastic) bags, sealed the Criminal Appeal No. 2040-SB of 2008 3 same with the seal of monogram A.S. Seal after use was handed over to Balbir Singh, H.C. no. 579. The packets of samples and case property were taken into police possession vide memo, as a mode of proof. No independent witness (public witness) was found present/available on the place of occurrence. Dharambir alias Dharma son of Ram Sarup, caste Prajapat resident of village Gochhi having poppy husk of 7 Kg. in his possession without any license or permit, has committed an offence punishable under Section 15 NDPS Act. Hence, writing is sent to the police station through Sukhbir Singh, C. No. 853 for registration of case/FIR. After registration of case, its number be intimated and special reports be sent to the higher officers. I (ASI) am busy in investigation of the case. Permission for investigation of this case may be granted to me. Sd/- Attar Singh (In English) A.S.I. of Police Station Beri".
The matter was investigated. Report under Section 173 Cr.P.C. was submitted and the appellant was sent for trial. The Court of the Special Judge, Jhajjar, framed charges against the appellant on 17.10.2007. It was stated in the charge sheet that on 18.3.2007, in the area of village Gochi falling within the jurisdiction of Police Station Beri, the appellant was found in conscious possession of 7 Kgs. of poppy straw, without any license or permit and thus, he committed an offence under Section 15 of the Act.
Criminal Appeal No. 2040-SB of 2008 4
PW.1 Sheshraj, Head Constable, tendered into evidence his affidavit Ex. PA to prove link evidence. In cross-examination, he admitted that case property was deposited with him on 28.3.2007 at 7.00 P.M. And he had handed over the samples to Karambir, Constable, for its delivery to the Forensic Science Laboratory, Madhuban.
PW.2 Surender Kumar, Head Constable, is Photographer. He proved photographs Ex.P1 & ExP2 and negatives Ex.P3 & Ex.P4. The photographs were taken of the case property when the same was produced in the Court of the Additional Chief Judicial Magistrate, Jhajjar.
PW.3 Raj Singh, Assistant Sub Inspector, proved lodging of formal FIR Ex.PB/1.
PW.4 Jagat Singh, Criminal Ahlmad, proved production of case property in the Court of the Additional Chief Judicial Magistrate, Jhajjar, on 3.4.2007 and preparation of the inventory report Ex.PC.
PW.5 Karambir, Constable, tendered into evidence his affidavit Ex.PD in which he stated that the samples were handed over to him by the Moharrir Head Constable on 28.3.2007 and he deposited the same to the Forensic Science Laboratory, Madhuban. In cross- examination, he stated that samples were handed over to him at 5.00 A.M. PW.6 Pardeep Kumar, Head Constable, stated that an elderly man was seen coming from the side of Beri. He was having a plastic bag in his hand and on seeing the police party, he tried to run away from the spot. He threw the plastic bag in the bushes. He was apprehended by the police party. He disclosed his name as Dharma alias Dharambir, resident of village Gochi. The contraband recovered Criminal Appeal No. 2040-SB of 2008 5 was found to be 7 Kgs., out of the same, for preparation of the samples 500 grams of poppy husk was taken. Ruqa was sent for registration of the case to Police Station. In cross-examination, he admitted that police party started patrolling from Police Station at 4.00 P.M. on foot and reached at Gochi at about 5.00 A.M. He admitted that some boys of village were doing exercise but very few persons came there. An attempt was made to join independent witness but everybody had refused. He further admitted that they remained at the spot for about two & a half or three hours and they returned to the Police Station at about 7.30 P.M. PW.7 Attar Singh, Assistant Sub Inspector has almost deposed on same lines as stated by PW.6 Pardeep Kumar, Head Constable. He stated that on same day, he produced the accused and the case property before the Sub Inspector/Station House Officer Ashok Kumar. In cross-examination he stated that proceedings of the case were done at the spot.
Counsel for the appellant has submitted that in the present case, recovery was effected on 18.3.2007 and the samples were received by the Forensic Science Laboratory, Madhuban, on 28.3.2007. Counsel has further submitted that in the present case, no CFSL Form was prepared. Counsel further stated that no explanation has been coming forward as to why for 11 days, sample was not sent to the Forensic Science Laboratory, Madhuban, for examination. Counsel further stated that seal after use was handed over to Balbir Singh, Head Constable, but he had not been examined. Counsel further submitted that Balbir Singh, Head Constable was given up as unnecessary. Counsel further stated that in the case of meager recovery, non-joining Criminal Appeal No. 2040-SB of 2008 6 of independent witness assume importance. He further stated that PW.6 Pardeep Kumar, Head Constable, has not divulged the name of any person who was requested to join investigation and who had refused to get himself associated with the investigation of the present case. Counsel for the appellant has further submitted that the case of prosecution is that the appellant was carrying a plastic bag containing 7 Kgs. of poppy husk and on seeing the police party, he had thrown it into the bushes. Counsel further stated that a convenient route has been adopted by the prosecution by saying that the appellant threw the bag, only to wriggle out of compliance of Section 50 of the Act. Counsel further stated that prosecution has to rely upon testimony of PW.6 Pardeep Kumar, Head Constable, and PW.7 Attar Singh, Assistant Sub Inspector, to infer that the appellant had thrown the plastic bag. Counsel further submitted that since the appellant has been deprived of a necessary safeguard to get himself searched from a Magistrate or a Gazetted Officer, therefor, it was necessary that this part of the testimony of official witnesses is corroborated by any independent source. Counsel further submitted that in the present case, so far as poppy husk is concerned, 50 Kgs. Constitute commercial quantity and 1 Kg. constitutes small quantity and from the appellant 7 kgs. of poppy husk has been recovered.
Counsel for the State has submitted that police officials had no enmity with the appellant.
There is merit in the submissions made by counsel for the appellant.
Taking into consideration various lapses on the part of the Criminal Appeal No. 2040-SB of 2008 7 Investigating Agency that no independent witness was examined, even though they were available, no record of the witnesses was kept who were requested and who refused to be associated during investigation, along with the fact that there is a delay of sending sample to the Forensic Science Laboratory, Madhuban and the person to whom seal was handed over has not been examined, especially the prosecution version that on seeing the police party accused had thrown 7 Kgs. plastic bag into bushes being unnatural, improbable and unconvincing, only to deny compliance of Section 50 of the Act, I am inclined to grant benefit of doubt to the appellant as a matter of abundant caution.
Hence, the present appeal is accepted and the appellant is acquitted of the charges.
(Kanwaljit Singh Ahluwalia) Judge April 28, 2009 "DK"