Punjab-Haryana High Court
Constable Gurmel Singh Son Of Munsha ... vs State Of Punjab on 26 August, 2008
Criminal Appeal No.642-SB of 2001 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Appeal No.642-SB of 2001
Date of Decision: August 26, 2008
1. Constable Gurmel Singh son of Munsha Singh, resident of
Village Rurki,Distt. Patiala
2. Constable Bhupinder Singh son of Kripal Singh,resident of
village Hawri,Police Station Pundri.
..............appellants/accused
V.
State of Punjab
...............Respondent
2. Crl.A. 708-SB of 2001
Nishan Singh son of Shgingara Singh,resident of village Daban Kheri
.....................Appellant/respondent
V.
State of Punjab
.........................Respondent.
3. Crl.A. No.728-SB of 2000
1. Constable Boota Singh son of Harbans Singh, resident of
Villager,Shadipur,Police Station Julkan.
....................Appellant/respondent
V.
State of Punjab .....................Respondent
Criminal Appeal No.642-SB of 2001 2
4. Crl. Appeal No. 785-SB of 2001
1. Rai Singh son of Jang Singh , resident of village Gajipur.
2. Karnail Singh son of Sondhi Singh, resident of Samana.
....... Appellants/accused
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: S/Shri Bipan Ghai , Senior Advocate with Sandeep
Gahlawat, and B.S.Dhaliwal, Advocates,
for the appellants, in Crl. Appeal No.642-SB of 2001.
Mr Bipan Ghai,Sr.Advocate with Mr. Sandeep
Gahlawat,Advocate and Mr. K.S.Dhaliwal,Advocate for
the appellant in Crl.A. No.708-SB of 2001.
Mr. Bipan Ghai,Sr.Advocate with Mr.Sandeep
Gahlawat,Advocate and Mr.Satinder Khanna,Advocate
for the appellant in Crl.A. 728-SB of 2001.
Mr. Bipan Ghai,Sr.Advocate with Mr.Sandeep
Gahlawat,Advocate, for the appellant in Crl.A. No.785-
SB of 2001.
Mr. S. S.Bhullar, DAG, Punjab
for the respondent-State.
____________
Sham Sunder, J.
This judgment shall dispose of Criminal Appeal No. 642-SB of 2001 filed by Gurmail Singh and Bhupinder Singh, Criminal Appeal No. 708-SB of 2001 filed by Nishan Singh, Criminal Appeal No. 728-SB of 2001 filed by Boota Singh and Criminal Appeal No. 785 of 2001, filed by Rai Singh and Karnail Singh accused (appellants), arising out of the judgment of conviction and the order of sentence dated 17.5.2001, rendered by the Criminal Appeal No.642-SB of 2001 3 Judge, Special Court, Patiala, vide which, he convicted them for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced them to undergo rigorous imprisonment, for a period of ten years each , and to pay a fine of Rs.1 lac each, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years each, for having been found in possession of seven bags each containing 30 kgs 250 grams poppy husk,without any permit or licence.
2. The facts, in brief, are that on 22.3.1994, Inspector Darshan Singh, CIA Staff, Patiala, along with other police officials, was present on the metalled road, in the area of village Kutbanpur, where he received a secret information against all the accused, that they were selling poppy husk, in a field, at the old tubewell of Sarpanch Didar Singh, in the area of village Achral Khurd, and if a raid was conducted, heavy quantity of poppy husk could be recovered from them. Believing this information to be reliable, Inspector Darshan Singh sent ruqa Ex.PA, to the Police Station,on the basis whereof formal FIR Ex.PA/1 was recorded by ASI Gurbachan Singh. Thereafter the police party went to village Majri and joined Sarpanch, Didar Singh. Then the police party raided, at the aforesaid place and found seven bags lying there, near which the accused were sitting. Inspector Darshan Singh apprehended them with the help of other police officials. On enquiry, they told their names, parentage addresses etc. The bags found were seven in number. On search, in accordance with the provisions of law, each bag was found containing 30 kgs 250 grams poppy husk. A Sample of 250 grams from each of the bags, was taken out. The remaining poppy husk was kept in the same bags. The samples and the bags were converted into parcels, duly sealed, and taken into possession, vide separate recovery memo. One more gunny bag, containing currency notes worth Rs.35,000/- was also recovered, which Criminal Appeal No.642-SB of 2001 4 was lying at the spot. Rough site plan, of the place of recovery, was prepared. The statements of the witnesses were recorded. The accused were arrested. After the completion of investigation, the accused were challaned.
3. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Constable Kuldip Singh,PW1, MHC Haripal PW2, ASI Gurcharan Singh,PW3, Didar Singh, PW4, HC Tarsem Lal PW5, Inspector Gurinderjit Singh, PW6, Inspector Jarnail Singh, PW7 and DSP Darshan Singh,PW8. Thereafter the Public Prosecutor for the State closed the prosecution evidence.
5. The statements of the accused under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was further stated that nothing was recovered from them. They also examined HC Tej Singh,DW1, Gurbachan Singh,DW2, Constable Shaukat Ali DW3, HC Sahib Singh DW4 and SI Baldev Singh,DW5. Thereafter they closed the defence evidence.
6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.
7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the accused/appellants.
8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellants, at the very outset, submitted Criminal Appeal No.642-SB of 2001 5 that the prosecution miserably failed to prove that the accused were in conscious possession of the bags, containing poppy husk. They further submitted that the mere fact that the accused were allegedly found sitting near the bags containing poppy husk at an open and accessible place, did not mean that they were in conscious possession of the same. They further submitted that the tubewell, in question, did not belong to any of the accused, nor any investigation was made by the investigating agency regarding the ownership of the place, where from the alleged recovery was effected. They further submitted that since the conscious possession of the accused in respect of the poppy husk was not proved, they could not be said to have committed any offence punishable under Section 15 of the Act. The submission of the Counsel for the appellants, in this regard, appears to be correct. Ex.PA is the ruqa, which was sent by Inspector Darshan Singh on receipt of the secret information. In the ruqa, it was recorded that the accused were sitting near the bags, containing poppy husk, in a field and were selling the same and if a raid was conducted, heavy quantity of poppy husk could be recovered therefrom. Inspector Gurinderjit Singh, PW6, a witness to the recovery, stated that at the tubewell they found that certain bags containing poppy husk were lying on which the accused were found sitting and were apprehended. He did not state that the accused were found selling the poppy husk at the time of alleged apprehension. He also did not state that any weighing scale and weights or any other instrument, were lying near the bags containing poppy husk, for the purpose of weighing poppy husk and sale thereof. Even the statement of Gurinderjit Singh,PW6, was contradicted by DSP Darshan Singh, PW8, Investigating Officer. Darshan Singh, PW8, the Investigating Officer, during the course of his statement stated that the bags were lying near the accused. He did not state that the accused were sitting on the bags containing poppy husk. The statement of Gurinderjjit Criminal Appeal No.642-SB of 2001 6 Singh, Inspector,PW6 was also contradicted by ruqa Ex.PA. From the overall assessment of the evidence produced, in the Court, by the prosecution, it was proved that the accused were allegedly sitting near the bags containing poppy husk, at an open and accessible place. It was also proved that they were not sitting on the bags containing poppy husk and even there was no scale and weights lying near the bags which could indicate that the same had been kept for weighing the poppy husk, for the purpose of sale thereof. It is for the prosecution to prove beyond doubt a reasonable that the accused were found in possession of the poppy husk. Their mere alleged presence near the bags aforesaid, that too at an open accessible place, which did not belong to them, could not by any stretch of imagination, be taken as their possession of the same. The accused might have been sitting at an open and accessible place in the fields, just with a view to take arrest. They might have gone there for some other purpose. As to who had kept the bags containing poppy husk in the fields i.e. an open and accessible place, was for the investigating agency to investigate. No investigation, in this regard, was conducted by the investigating agency. Had it been established beyond a reasonable doubt from the evidence of the prosecution witnesses, that the accused were actually sitting on the bags, containing poppy husk, then certainly an inference could be drawn that they were in possession of the same. In the absence of any such cogent and convincing evidence, possession of and control over the bags containing poppy husk, could not be attributed to the accused. Once the possession of the contraband, in respect of the accused, was not proved, presumption under the provisions of Sections 54 and 35 of the Act did not start operating against them. In Parminder Singh V. State of Haryana 2006 (4) R.C.R(Criminal) 495 , the accused was found standing near the car in which the opium was lying at an open and accessible place. On seeing the police party, he ran away. Ultimately, a Division Bench of this Court, held Criminal Appeal No.642-SB of 2001 7 that the mere fact that Parminder Singh was standing near the car did not mean that he was in possession of the opium lying therein. In State of Punjab vs. Balkar Singh 2004 S.C.C. (Crl.) 838, the accused were found present near 100 bags each containing 40 kgs poppy husk, at an open and accessible place. They belonged to different villages. No investigation was made as to whom those fields belonged. It was held by the Apex Court that mere presence of the accused near the bags containing contraband, was not sufficient to hold that they were in possession thereof. Ultimately the State appeal against acquittal was dismissed. In the instant case also, as stated above, the accused were allegedly found present near the bags aforesaid. They belong to different villages. The facts of the aforesaid cases are identical to the facts of the instant case. Relying on the observations made in these cases, it can be held that the accused were not found in conscious possession of the contraband. The submission of the Counsel for the appellants, to the effect that the prosecution miserably failed to prove that the accused were found in conscious possession of the contraband, and as such, they did not commit any offence punishable under Section 15 of the Act, carry substance and stands accepted.
10. It was next submitted by the Counsel for the appellants, that Didar Singh, independent witness, was examined, as PW4, but he did not support the case of the prosecution, in any manner. They further submitted that this clearly goes to prove that no recovery, whatsoever, of poppy husk from the accused was effected, nor they were found sitting near the bags containing poppy husk. They further submitted that had Didar Singh, PW4, independent witness, been present, at the time of effecting the alleged recovery, he would not have stated to the contrary. They further submitted that the statement of Didar Singh, PW4, an independent witness, proved the case of the prosecution to be false. The submission of the Counsel for the appellants, in this regard, appears to be correct. Didar Singh,PW4, in Criminal Appeal No.642-SB of 2001 8 clear-cut terms, stated that an Inspector of the CIA Staff, raided his house in the village on 15.3.1994 at about 6 am, and conducted the search thereof. He further stated that the police party took away Rs.35,000/- in cash, lying in his house, at that time. He further stated that he was not joined by Inspector Darshan Singh, as a witness on 22.3.1994, nor any recovery of poppy husk was effected by him, in his presence, from any one of the accused. He further stated that his signatures were obtained in CIA Staff, on blank papers, by the Inspector concerned. The mere fact that he did not lodge any complaint, against the Inspector, after release from custody, did not mean that he made a false statement. Since the case of the prosecution is based on the evidence of the official witnesses only, which is unreliable, non-corroboration thereof through the evidence of Didar Singh, independent witness, PW4, caused a dent therein. There was no reason with Didar Singh, independent witness to depose falsely. There is nothing, on record, that he was interested in the accused or was related to them. In Padam Singh Vs. State of Haryana, 1997(4) R.C.R.(Criminal) 172 (D.B.) (Pb& Hr), an independent witness was examined but he did not support the case of the prosecution. In these circumstances, a Division Bench of this Court, held that the case of the prosecution became doubtful. Not only this, in Jagdish Vs. State of M.P. 2003 (9) S.C.C. 139, a case decided by a three Judge Bench of the Apex Court, the conviction of the appellant was set aside, as the independent witness, did not support the case of the prosecution. On account of non-corroboration of the evidence of the official witnesses, through the evidence of Didar Singh, PW4, independent witness, the case of the prosecution become highly doubtful. The trial Court failed to take into consideration this aspect of the case, as a result whereof, it fell into a gave error, in recording conviction, and awarding sentence, to the accused. The submission of the Counsel for the appellants, in this regard carries substance and stands accepted. Criminal Appeal No.642-SB of 2001 9
11. The Counsel for the appellants further submitted that the very presence of Darshan Singh, Inspector, the investigating Officer and Gurinderjit Singh, the then SI,PW6, a recovery witness at the time of the alleged search and seizure, was highly doubtful. They further submitted that in these circumstances, it could be said that the accused were falsely implicated. The submission of the Counsel for the appellants, in this regard, appears to be correct. Darshan Singh, the Investigating Officer when appeared as PW8, stated that the ruqa was written by HC Sahib Singh on his dictation. He further stated that all the consent memos, were recorded by HC Jaspal Singh. On the other hand, Gurinderjit Singh,PW6, stated that the Investigating Officer, namely, Darshan Singh, recorded the consent memos of the accused. He also stated that the personal search memos of the accused Ex.PK and Ex.PP were also recorded by the Investigating Officer. He further stated that the ruqa and the entire writing work was in the handwriting of the Investigating Officer. On the other hand HC Tej Singh,DW1 stated that ruqa Ex.PA was in his handwriting. He further stated that Ex. PC, recovery memo, the statement of Didar Singh,Sarpanch mark 'B', and the statement of Gurinderjit Singh S.I., mark 'D1' were in his hand. Sahib Singh, when appeared as, DW4, stated that no writing work was done by him during the investigation of this case. Baldev Singh, ASI, DW5, however, stated that Ex.PA, mark 'PB', Ex.PC, and Ex.PD were in the handwriting of MHC Tej Singh. He further stated that the documents Ex.PF, Ex. PG, Ex. PH, Ex. PJ, Ex. PK, Ex. PL, Ex. PM, Ex,.PN, Ex.PO Ex.PP and Ex.PW8/A, were in his handwriting. In the first instance, the statements of Gurinderjit Singh and Darshan Singh, Investigating Officer, as to who wrote the documents during the course of investigation, are clearly contradictory. Not only this, the statement of Gurinderjit Singh, recovery witness, that all the writing work was done by the Investigating Officer, is contradicted by Tej Singh, HC, DW1, Head Criminal Appeal No.642-SB of 2001 10 Constable Sahib Singh,, DW4 and Baldev Singh,ASI, DW5. The statement of Darshan Singh, Investigating Officer, was also contradicted by the defence witnesses. Since the case of the prosecution is based on the evidence of the official witnesses only, as the same was not corroborated by Didar Singh, independent witness, in any manner, such material contradictions, and discrepancies occurring in their own statements, as also vis-a-vis the statements of the defence witnesses clearly cast a cloud of doubt on the prosecution case. It, therefore, could be safely held that either one of the prosecution witnesses was not present, at the time of the alleged search or seizure, or no recovery, whatsoever, was effected from the accused, in the manner, deposed to by them. The contradictions occurring in the statements of Inspector Darshan Singh,PW8, the Investigating Officer and SI Gurinderjit Singh,PW4, a recovery witness, PW6 as also vis-a-vis the statements of the defence witnesses could not be said to be minor, in nature, which could be ignored. The contradictions and the discrepancies, aforesaid, affected the very fabric of the prosecution case. These material and significant contradictions and discrepancies exposed the falsity of the prosecution case. The submission of the Counsel for the appellants in this regard, carries force and stands accepted.
12. No other point was urged by the Counsel for the parties.
13. In view of the peculiar facts and circumstances of the instant case, discussed above, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based on the correct appreciation of evidence, and law on the point. The same are liable to be set aside.
14. For the reasons recorded, hereinbefore, all the four Criminal Appeals Nos. 642-SB, 708-SB, 728-SB and 785-SB of 2001, are accepted. The judgment of conviction and the order of sentence dated 17.5.2001, are set aside. The appellants shall stand acquitted of the Criminal Appeal No.642-SB of 2001 11 charge framed against them. If, they are on bail, they shall stand discharged of their bail bonds. If, they are in custody, they shall be set at liberty, at once, if not required in any other case.
August 26, 2008 (SHAM SUNDER) sks JUDGE