Punjab-Haryana High Court
Kulwant Singh @ Kanta vs The State Of Punjab on 6 February, 2014
Author: K.C.Puri
Bench: K.C.Puri
Verma Sunil
Criminal Appeal No.S.1145-SB of 2011 1 2014.02.25 14:34
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. S. 1145-SB of 2011
Date of decision 06.02.2014.
Kulwant Singh @ Kanta
...... Appellant.
versus
The State of Punjab
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment? yes
2. To be referred to the Reporters or not? yes
3. Whether the judgment should be reported in the Digest? yes
Present : Mr. D.N.Ganeriwala, Advocate for appellant.
Mr. S.S.Chandumajra, Senior DAG, Punjab.
K.C.PURI, J.
Kulwant Singh @ Kanta-accused-appellant has directed the present appeal against the judgment and order dated 23.02.2011 passed by Ms. Archana Puri, Judge Special Court, Patiala vide which he stood convicted under Section 15 of the Narcotic Drugs and Psychotropic Act ( in short - the NDPS Act) and sentenced to undergo imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two years. However, co-accused Balwinder Singh and Balbir Singh were acquitted from the charges levelled against them by the trial Court. Criminal Appeal No.S.1145-SB of 2011 2
2. In brief, case of the prosecution is that on 23.12.2007 Inspector Jassa Singh, along with his police companions in connection with checking of bad elements was present at the Chhanna Turning Bus Stand, Devigarh. There, Inspector Jassa Singh received secret information specifically against Paramjit Singh and Balbir Singh sons of Baldev Singh, residents of village Tajoke, PS Tappa, District Barnala, to be notorious smuggler of poppy husk and while using their Tata-709 bearing registration No. HR-37-A-5471, they bring poppy husk @ Rs.12,000/- per bag from Deedwal, Rajashtan, and sell the same in the area of Barnala. For this work, they obtained the services of Balwinder Singh @ Binda driver and Kulwant Singh @ Kanta son of Sardara Singh, resident of Kothe Guru Ke, Dhanaula Khurd, PS Sadar, Barnala. Paramjit Singh and Balbir Singh pay a sum of Rs.1000/- per bag to Balwinder Singh @ Binda and Kulwant Singh @ Kanta, information was also received that after loading poppy husk in Canter No. HR-37-A- 5471 at the instance of Paramjit Singh and Balbir Singh, they were proceeding towards Barnala via Pehowa-Patiala road and if nakabandi is laid, Balwinder Singh @ Binda and Kulwant Singh @ Kanta while in canter No. HR-37-A-5471 can be apprehended. Finding the said information to be reliable, Inspector Jassa Singh had informed Shri Manjit Singh, DSP (D), Patiala, and had made request to him to reach the spot. Inspector Jassa Singh also apprised his police companions regarding the said information and laid naka at the outskirts of village Chhanna. After some time, Harbans Singh son of Bant Ram, Bazigar, resident of village Rohar Jagir, had arrived there, who was apprised of the factual position and associated in the police Criminal Appeal No.S.1145-SB of 2011 3 party. Even Sh. Manjit Singh Brar, DSP (D), Patiala along with his companions, had reached the spot. At about 3.00 a.m, on 23.12.2007, one canter bearing registration No. HR-37-A-5471 had come from the side of Pehowa. Said vehicle was signaled to stop by Inspector Jassa Singh with the help of his companions. One of the occupants of the said vehicle, after opening driver's door, fled away successfully, whereas, the person sitting on the conductor side, was apprehended, who on inquiry, disclosed his name as Kulwant Singh @ Kanta son of Sardara Singh, resident of Kothe Guru Ke, PS Tappa, District Barnala and he had disclosed name of the person, who had fled away, to be Balwinder Singh @ Binda. Then, DSP Manjit Singh Brar, had disclosed his identity to Kulwant Singh and he had also stated to Kulwant Singh that there is information received qua poppy husk in the canter bearing No. HR-37-A-5471 and he intended to conduct search of the same. He also apprised Kulwant Singh of the right to get the search conducted in the presence of Magistrate or other Gazetted Officer, who can be called at the spot. However, Kulwant Singh @ Kanta reposed confidence in DSP Manjit Singh and expressed his desire to get the search conducted from him, upon which, consent memo was separately prepared.
3. Thereafter, as per directions of DSP Manjit Singh Brar, Inspector Jassa Singh, with the help of his companions, opened the rear shutter of the canter and from the secret chamber, prepared with the help of iron sheets in the said canter, 22 gunny bags were recovered. On search, the gunny bags were found to contain poppy husk. Sr. No.1 to 22 were assigned to the said gunny bags. From each gunny bag, two samples of 100 Criminal Appeal No.S.1145-SB of 2011 4 grams each were separated and parcels of the same were prepared and the residue poppy husk in each gunny bag, weighed to be 39 kgs. 800 grams. Separate parcels of the same were also prepared. Sample parcels were assigned Sr. No.1/1 to 22/1 and 22/2. All the 22 gunny bags as well as 44 sample parcels, were sealed with the seal impression JS of Inspector Jassa Singh and MS of DSP Manjit Singh. Sample sealss were separately prepared. Seal after use was handed over by Inspector Jassa Singh to private witness Harbans Singh, whereas DSP retained his seal. All the aforesaid articles were taken into possession vide seperatre memo. As Kulwant Singh @ Kanta, Balwinder Singh @ Binda, Paramjit Singh and Balbir Singh were indulging in the smuggling of poppy husk, ruqa was sent to the police station, on the basis thereof case was registered against the aforesaid persons. Various proceedings were conducted at the spot. Site plan of the place of occurrence was prepared. Statements of the PWs were recorded. After completion of necessary investigation, challan against the accused was presented.
4. On appearance of the accused, copies of documents were supplied to the accused free of costs. Charge under Sections 15 and 25 of the NDPS Act was framed against the accused to which they pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined DSP Manjit Singh (PW-1), Gurpreet Singh, Clerk, office of RTA, Ambala PW-2, MHC Lakhbir Singh (PW-3), HC Devinder Singh (PW-4), Inspector Harbhajan Singh (PW-5), Inspector Jassa Singh (PW-6), ASI Harbinder Singh (PW- Criminal Appeal No.S.1145-SB of 2011 5
7), Gurcharan Singh (PW-8), Balbir Singh (PW-9), Sahil, Clerk office of DTO (PW-10), ASI Ajaib Singh (PW-11) and closed the prosecution evidence.
6. In their statements recorded under Section 313 Cr.P.C., accused denied all the incriminating circumstances appearing against them. Accused Kulwant Singh has further stated that he has been falsely implicated in this case at the instance of high police official. In fact, his son namely Gurvinder Singh was studying in a vocational training instituite, known as Silicon Technology, at Patiala. His son had an affair with daughter of high ranking police official, whose name and identity had not been disclosed by him because he afraid of his liquidation as well as that of his son. Being offended, that high police official using his status got raided his house at Barnala to arrest his son Gurvinder Singh, since his son was not available, therefore, he was brought to Patiala on the assurance to be let off only when his son would appear. He advised his son to go away to U.P. to save himself. He had two sons. His younger son was suffering from cancer and he died and as such he cannot afford to risk the life of his son Gurvinder Singh. His house was raided on 19.12.2007 and he was detained illegally by the police at Patiala. In the meantime, the CIA staff people were informed by somebody that unclaimed canter in a damaged condition was standing at a distance of 100 yards from Pehowa road on a tube-well on the path leading to village Harigarh. The police took the canter and on search of the said canter, poppy husk was found. He had no connection with the canter nor he had any connection with Paramjit Singh, Balbir Singh or the Criminal Appeal No.S.1145-SB of 2011 6 driver who are shown as co-accused with him in this case. In his defence, accused Kulwant Singh had examined Gurwinder Singh his son as DW-1, Karan Kumar DW-2 and HC Budh Gir DW-3 and closed the defence evidence.
7. The trial Court, after hearing the learned counsel for the parties vide judgment and order dated 23.02.2011, convicted and sentenced the accused as aforesaid. However, co-accused Balwinder Singh and Balbir Singh stood acquitted from the charges levelled against them.
8. Feeling dissatisfied with the aforesaid judgment and order dated 23.02.2011, the present appeal has been filed.
9. I have heard learned counsel for the parties and have gone through the records of the case with their able assistant.
10. Learned counsel for the appellant has submitted that according to the prosecution, the poppy husk was found in the canter, which was in a moving condition. The said canter was stopped and thereafter recovery was effected. It is further submitted that Balwinder Singh was stated to be driver of the said canter and Balbir Singh was stated to be the owner of the said Canter. However, when the canter was produced in the court, it was in a damaged condition. So, the story of the prosecution falls to the ground. Otherwise co-accused Balbir Singh and Balwinder Singh have been acquitted. The case of the appellant is similar to that of these acquitted accused. So, the learned trial Court has wrongly convicted the accused.
11. I have carfefully considered the said submission but do not find any force in the said submission.
Criminal Appeal No.S.1145-SB of 2011 7
12. So far as Balbir Singh accused is concerned, he is stated to be the owner of the vehiccle but the prosecution has failed to prove the ownership of said vehicle. Balwant Singh was also not arrested at the spot. The accused was arrested along with 22 bags of poppy husk each containing 40kgs of poppy husk. Such a huge recovery cannot be planted. There is no evidence on the file that at the time of recovery the canter was damaged to such an extent that it was not proved worthy. The only evidence available on the file is that there was damage to front glass of canter. So, the above said arguments are without any substance and have been rightly repelled by the trial Court.
13. Learned counsel for the appellant has further submitted that there is non-compliance of Section 42(2) of the Act. Non-compliance of Section 42 of the Act leads to acquittal of the accused. To support this contention, learned counsel for the appellant has relied upon authorities Rajender Singh versus State of Haryana reported in JT 2011 (8) SC page 577 ; Karnail Singh vs. State of Haryana reported in JT 2009 (10) SC 360 ; State of Karnataka vs. Dondusa Namasa Baddi reported in JT 2010 (9) SC 444 that non-recording of secret information deprives accused as well Court to ascertain what precise information police received before proceeding to spot in deciding the extent of involvement of accused. Investigating Officer Inspector Jassa Singh (PW-6) has categorically stated that secret information was not reduced into writing nor sent to immediate superior officer. So, the accused is liable to be acquitted on this ground. Criminal Appeal No.S.1145-SB of 2011 8
14. I have considered the said submission but do not find any force in that submission.
15. The learned trial Court has dealt in this aspect of the case elaborately and the contentions of the defence counsel were repelled by the trial Court. Inspector Jassa Singh (PW-6) has categorically stated that he has given the information to DSP on telephone and DSP reached the spot after receiving the telephone message. The learned trial Court has rightly observed that provisions of Section 42 of the Act are not attracted as the recovery is not from any building or enclosed place. The vehicle was coming at a public place and was in transit and as such provisions of Section 43 of the Act would be applicable and the provisions under Section 42 of the Act are not applicable. The first anxiety of the police official is to get the recovery effected. Had I.O. been indulged in writing the information to the superior officer, in that case, the accused would have fled away from the spot. The learned trial Court has observed that subsequently the information was sent to higher authorities. The learned trial court has rightly relied upon authorities Harpret Singh vs. State of Punjab reported in 2005 (2) RCR (Criminal) page 127 and Piar Kaur vs. State of Punjab reported in 2009 (3) RCR (Criminal) page 403 wherein it was held that there is no necessity to reduce the secret information into writing and sending the same to the superior officer where the recovery was not effected from either a building or from an enclosed place or from vehicle parked in the enclosed place .
16. So far as the authority Rajender Singh's case (supra) is Criminal Appeal No.S.1145-SB of 2011 9 concerned in that case the recovery has taken place from the shed for storing fodder in the farm house. So, the above said authoritiy is distinguishable.
17. Authority Karnail Singh's case (supra) relates to a case where the accused was acquitted by the trial Court but was convicted by the Division Bench of High Court of State of Gujarat.
18. In authority State of Karnataka vs. Dondusa Namasa Baddi's case (supra) the Hon'ble Apex Court while dealing with Section 42 of the Act held that if there is a delay in sending the information whether the same is explained or not, will be a question of fact in each case and it is to be concluded that mandatory enforcement of provisions of Section 42 Clause (b) of the Act, has been restricted only to the provisions of sending a copy of the information written down by the empowered officer to immediate superior official and not to any other condition of Section. So, the above said authority does not help the case of the appellant in any manner.
19. Learned counsel for the appellant has submitted that prosecution has falsely implicated the appellant. Son of the appellant was studying in institute namely Silicon Technology, at Patiala and he was having affair with daughter of high ranking police official. His son was not available at home, therefore, he had been brought to Patiala and kept in illegal custody. Some unclaimed canter was taken into possession by CIA Staff of which poppy husk was found and the accused has been falsely implicated in the present case. Gurwinder Singh DW-1 and Karan Kumar Criminal Appeal No.S.1145-SB of 2011 10 DW-2 have been examined by the accused. Learned trial Court has wrongly disbelieved the said version.
20. I have carefully considered the said submission but do not find any force in that submission.
21. The learned trial Court has also dealt in this aspect of the case and found these contentions meritless. The name of the police officer has not been even disclosed before this Court whose daughter is alleged to have been involved in affair with the son of the accused/appellant. The said false version has been concocted by the appellant in order to create a false defence in respect of recovery of huge quantity of poppy husk.
22. As per custody certificate the accused has been convicted in another NDPS Act in respect of FIR No.34 of 2002 under Section 15, 61, 85 of the Act registered at Police Station Mehal Kalan by a Special Judge, Barnala. DW-1 Gurwinder Singh and Karan Kumar DW-2 have come forward simply to favour the accused. No written complaint against the police officer or any other documentary evidence has been placed on the file. Statement of Shri Budh Gir DW-3, who has produced the movement register in respect of Inspector Harbhajan Singh does not help the appellant in any manner and no argument in this respect has been addressed by the counsel for the appellant.
23. Learned counsel for the appellant has further submitted that all memos Ex.PB, PC, PE, PF, PG, PH, PJ, PK and PL indicate the FIR number in the same ink and regular flow of handwriting in which the memos were written. It indicated that the exhibits were not prepared at the Criminal Appeal No.S.1145-SB of 2011 11 time of recovery at the spot but were prepared later on in the police station. Police official did not have the FIR number at the time of recovery. This creates doubt in the prosecution case. To support this contention learned counsel for the appellant has relied upon authority Didar Singh @ Dara versus State of Punjab reported in 2010 (3) RCR (Criminal) page 337 (Division Bench).
24. I have considered the said submission but do not find any force in that submission.
25. The prosecution case is that a constable was sent from the place of recovery for registration of the case giving detailed information. The appellant has not questioned the prosecution witnesses whether the constable with ruka with FIR number came at the spot. Mere fact that the writing work in the same ink, is not a ground to discard the prosecution story. In some of these documents, the FIR has been underlined which clearly shows that the same might have been filled after receiving the FIR number. The facts of authority Didar Singh's case (supra) are distinguishable and does not help the case of the appellant in any manner.
26. Learned counsel for the appellant has further submitted that presence of Manjit Singh DSP at the spot is doubtful. Manjit Singh DSP has stated in his cross-examination that accused Balbir Singh was arrested on the spot though he was arrested later on. There are no signatures of Manjit Singh DSP on Ex.PL, PE and PI, PJ and PK. Manjit Singh DSP has stated that he handed over the seal MS to independent witness Harbans Singh whereas Inspector Jassa Singh (PW-6) and ASI Harbinder Singh Criminal Appeal No.S.1145-SB of 2011 12 (PW-7) have stated that Manjit Singh DSP has retained his seal himself. DSP had seen the driver Bawlinder Singh whereas Jassa Singh (PW-6) and ASI Harbinder Singh PW-7 have stated that they had sought confirmation regarding identity of Balwinder Singh from co-accused Kulwant Singh.
27. I have considered the said submission but do not find any force in that submission.
28. The material document in the present case is recovery memo Ex.PB of poppy husk. The said document Ex.PB has been duly signed by Manjit Singh DSP. Ex.PE is the memo of personal search and Ex.PI is the memo for informing the relatives and Ex.PJ is the memo regarding search on the person of appellant to find out whether there is any injury mark and Ex.PH is the memo regarding ground of arrest. These documents are not required to be signed by the DSP. The minor discrepancies regarding keeping the seal and regarding handing over the seal is not sufficient to discard the prosecution version. Minor discrepancies are bound to occur due to passage of time. The benefit of discrepancy in respect of Balwinder Singh has been given to Balwinder Singh and he has been acquitted by the trial Court. The statements of the material witnesses are consistent so far as the appellant is concerned.
29. Learned counsel for the appellant has further submitted that Inspector Jassa Singh (PW-6) has admitted that seal was handed over to independent witness. DSP Manjit Singh (PW-1) has also stated that seal was with the independent witness Harbans Singh and he was material witness for the prosecution but he has not been examined and non-examination of Criminal Appeal No.S.1145-SB of 2011 13 Harbans Singh PW has caused a serious doubt regarding prosecution story. To support this contention learned counsel for the appellant has relied upon authorities Kuldeep versus State of Haryana in Criminal Appeal No.473 SB of 2003 decided on 19.12.2012 ; Ritesh Chakervarti vs. State of Madhya Pradesh reported in JT 2006 (12) SC 416 and Virender Kumar vs. State of Haryana reported in MANU/PH/0530/2009.
30. I have considered the said submission but do not find any force in that submission.
31. It is settled law that the testimony of the official witnesses cannot be thrown away merely on the ground of their official status. Sometimes the Courts insist on independent corroboration where doubt has crept in the mind of the Court regarding authenticity of the case of the prosecution. The present case is such, which does not create any doubt in the prosecution story. It is normally seen that independent witnesses do not come forward as they do not want to buy enmity with the accused. So, non-examination of independent witness does not create any doubt in the prosecution story.
32. Learned counsel for the appellant has further submitted that link evidence is missing in the present case. The case property was deposited with the MHC on 23.12.2007 and the contraband produced on 24.12.2007 before Illaqua Magistrate are different as the link to connect them is missing. As per Ex.DW-3/A at 11.30a.m., case property is received without mentioning of any serial number for identification mark and without mentioning of PW-1 Manjit Singh DSP and Inspector Jassa Singh Criminal Appeal No.S.1145-SB of 2011 14 PW-6 investigating officer and even without seals affixed on it whereas as per document Ex.DW3/2, the next day i.e., 24.12.2007 case property is mentioned as having been sealed with seal bearing impression JS/HS/MS. Therefore, on 23.12.2007 the case property was not sealed but it gets sealed by investigating officer and DSP later on just before production of case property on 24.12.2007. To support this contention learned counsel for the appellant has relied upon authorities State of Rajasthan vs. Gurmail Singh reported in JT 2005 (2) SC page 574 and Thandi Ram vs State of Haryana reported in AIR 2000 SC page 468.
33. I have considered the said submission but do not find any force in that submission.
34. In entry Ex.DW3/A DDR, no doubt the factum of sealing is not specifically mentioned. However, that entry was regarding producing case property before SHO and by putting seal by SHO. The appellant has not dared to cross-examine the MHC that at that time the seals were not there. However, the fact remains that in Ex.DW3/B the factum of sealing the case property with JS/HS/MS is mentioned. So, the appellant cannot derive benefit of the above said arguments. There is nothing on the file to show that case property was tampered with at any stage of the trial. Authorities State of Rajasthan vs. Gurmail Singh's case (supra) and Thandi Ram's case (supra) are distinguishable to the facts of the present case as the link evidence was missing in the prosecution story, which is not there in the present case.
35. Learned counsel for the appellant has further submitted that Criminal Appeal No.S.1145-SB of 2011 15 sample was drawn before the Illaqua Magistrate but the same was not sent for analysis. The said sample was marked as RIK. However, the police had sent the sample which was drawn at the spot. So, there is a doubt in the prosecution story.
36. I have considered the said submission but do not find any force in that submission.
37. The accused has not moved an application either before the trial Court or even before this court that the sample taken in the Court be sent for analysis. There is nothing on the file that sample drawn at the spot were tampered at any stage of the trial.
38. Learned counsel for the appellant has further submitted that owner of the vehicle was not made accused and was allowed to go scot free. The vehicle in question was in the name of Sant Kumar and he was authorised to sell the vehicle. However, prosecution has shown that the vehicle has been sold by Balbir Singh son of Gurbax Singh to Balbir Singh son of Baldev Singh. However, Balbir Singh son of Gurbax Singh (PW-9) has been declared hostile as he had stated in the Court that he had sold the vehicle to one Raj Kumar. The prosecution had intentionally implicated Balbir Singh son of Baldev Singh instead of Sant Kumar. How, Balbir son of Gurbax Singh can sell the vehicle without being the registered owner is unimaginable. This fact shows that the intention of the police officials was to purposely save Sant Kumar from the vehicle and the possibility of poppy husk recovered from him cannot be ruled out. To support this contention learned counsel for the appellant has relied upon authorities Union of India Criminal Appeal No.S.1145-SB of 2011 16 versus Bal Mukund & Ors reported in 2009 (2) RCR (Criminal) page 574 and Criminal Appeal No. S. 473 SB of 2003 Kuldeep vs. State of Haryana decided on 19.12.2012.
39. I have considered the said submission but do not find any force in that submission.
40. The case of the prosecution is that Sant Kumar is a registered owner of the vehicle in question and he has given general power of attorney to deal with the vehicle and he had sold the same in favour of Balbir Singh son of Gurbax Singh and said Balbir Singh son of Gurbax singh has sold the vehicle to Balbir Singh son of Baldev Singh, who is an accused. However, Balbir Singh son of Baldev Singh has resiled from his previous statement and on that account Balbir Singh son of Baldev Singh accused has been acquitted by the trial Court. So, there is nothing wrong committed by the prosecution. Moreover, the accused should have been worried about his case and not regarding the involvement of others. So, the appellant cannot have the benefit of authorities Union of India versus Bal Mukund & Ors'case (supra) and Criminal Appeal No. S. 473 SB of 2003 Kuldeep vs. State of Haryana's case (supra).
41. Learned counsel for the appellant has further submitted that Form 29 was not prepared at the spot, which fact is admitted by Inspector Harbhajan Singh (PW-5) and Inspector Jassa Singh (PW-6). So, in view of authority Gurtej Singh vs. State of Punjab reported in 2011 (2) RCR (Criminal) page 461, the prosecution story is doubtful and the appellant is liable to be acquitted.
Criminal Appeal No.S.1145-SB of 2011 17
42. I have considered the said submission but do not find any force in that submission.
43. Mere fact that Forensic Science Laboratory Form has not been prepared at the spot is not a ground to discard the prosecution story. So far as the authority Gurtej Singh's case (supra) is concerned, the facts of that case are distinguishable to the facts of present case as the link evidence is missing
44. Learned counsel for the appellant has further submitted that in case this Court is not inclined to accept the prayer of acquittal of the appellant, in that case the sentence awarded in default clause may be reduced from two years to three months in view of authority Shanti Lal vs. State of M.,P. reported in 2007 (4) RCC page 617 (SC).
45. I have considered the said submission but do not find any force in that submission.
46. The accused has already been convicted in another case of Narcotic Drugs and Psychotropic Substances Act for ten years and as such he does not deserve any leniency regarding sentence in lieu of fine. The minimum sentence has been prescribed in respect of main offence.
47. No other point has been urged or raised before me.
48. In view of the above discussion, the appeal preferred by the accused-appellant fails and the same stands dismissed.
49. A copy of this order be conveyed to the trial Court for strict compliance.
( K. C. PURI )
February 06 , 2014 JUDGE
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