Punjab-Haryana High Court
Gursewak Singh @ Sewak Singh vs State Of Haryana on 4 May, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.D-908-DB of 2007
Date of Decision: May 04, 2013
Gursewak Singh @ Sewak Singh
...Appellant
VERSUS
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL
HON'BLE MR. JUSTICE INDERJIT SINGH
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
Present: Mr.Pawan Girdhar, Advocate
for the appellant.
Mr.Kshitij Sharma, Asstt. Advocate General, Haryana
for the respondent-State.
****
INDERJIT SINGH, J.
The present appeal has been filed by the appellant against the judgment of conviction dated 14.05.2007 and order of sentence dated 17.05.2007, passed by the Special Judge under NDPS Act, Sirsa, whereby he was held guilty and convicted and sentenced to undergo rigorous imprisonment for twelve years and to pay a fine of ` 1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of four years under Section 15 of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, whereas co-accused Ranjodh Singh was acquitted. Co- accused Jarnail Singh was also acquitted vide order dated 24.04.2007 at the time of recording of his statement under Section 313 Cr.P.C. Crl. Appeal No.908-DB of 2007 -2-
The brief facts of the prosecution case are that on 10.02.2004 ASI Gurmeet Singh along with other police officials was going from Rori to Kalanwali in connection with patrolling and detection of crimes and on the way on the bridge of Malhri minor, SI/SHO Budh Singh of police station Rori along with other police officials met him. In the meantime, ASI Gurmeet Singh received a secret information that on the intervening night of 09/10.02.2004, Jaila Singh alias Jarnail Singh had unloaded poppy straw from a Canter with Jodha Singh alias Ranjodh Singh, Chhota Singh, Baldev Singh and Gursewak Singh. He was further informed that the said poppy straw was lying in the house of Baldev Singh and Gursewak Singh, who were residing separately in village Rohan and if a timely raid is conducted on their houses, they can be apprehended along with poppy straw. On receipt of this information, ASI Gurmeet Singh, Investigating Officer prepared report under Section 42 of the NDPS Act Ex.PE and sent the same to the DSP, Dabwali through Constable Sugreev Kumar for information. Thereafter, Investigating Officer and SI Budh Singh formed two separate raiding parties. The raiding party headed by ASI Gurmeet Singh, Investigating Officer went to village Rohan where Makhan Singh was joined as independent witness and a raid was conducted at the house of Gursewak Singh. The raiding party headed by SI Budh Singh reached the house of Baldev Singh. When the police party of ASI Gurmeet Singh reached the house of Gursewak Singh, the gate of the house was closed. Then through a hole, the Investigating Officer saw that couple of persons were shifting Crl. Appeal No.908-DB of 2007 -3- the gunny bags out of a heap of gunny bags from the courtyard inside the house. He gave a call to those persons to open the gate but they did not open the gate and tried to escape. The Investigating officer opened the gate of the house after putting his hand inside the door and apprehended accused Gursewak Singh in the house whereas other persons managed to escape by scaling the wall of the house and ran away towards the fields. On the spot, 20 gunny bags were found lying in the courtyard of the house of Gursewak Singh. The Investigating Officer suspected some type of contraband in the gunny bags and served notice Ex.PF as required under Section 50 of NDPS Act upon accused Gursewak Singh informing him of his legal right to get the search in the presence of some Gazetted Officer or Magistrate, if he so desired or they could be summoned to the spot or he could be produced before them. The accused declined the offer of being searched before some Gazetted Officer or Magistrate and reposed confidence in the Investigating Officer and opted to get the search of the gunny bags conducted from him. The Investigating Officer then conducted the search of the gunny bags upon which poppy straw was recovered from each gunny bag. On weighment, each gunny bag was found to be of 41 kgs. Samples each weighing 100 gms. were separated from each gunny bag and converted into sealed parcels which were sealed with the seal of Investigating Officer "GS". Separate sealed parcels of gunny bags were also prepared. The seal was handed over to Head Constable Rai Singh. The sample parcels, residue parcels and specimen seal impressions were taken Crl. Appeal No.908-DB of 2007 -4- into police possession vide recovery memo ExPG. Ruqa Ex.PH was sent to the police station, on the basis of which, FIR was registered. Rough site plan of place of recovery Ex.PI was prepared. Statements of witnesses were recorded. Accused Gursewak Singh was arrested on the spot. Report under Section 57 of the NDPS Act Ex.PD was prepared. SI/SHO Budh Singh reached the spot. Then the Investigating Officer produced accused Gursewak Singh, witnesses, parcels of samples, residue bags and specimen seal impressions before SI/SHO Budh Singh, who verified the facts of the case from accused and witnesses and checked parcels and he then affixed his own seal "BS" on each parcel. He also gave specimen seal impressions to the Investigating Officer. The report under Section 57 of the NDPS Act Ex.PD was prepared before SI/SHO Budh Singh, who made his endorsement Ex.PD/1 on it. Thereafter, on return to police station, case property was deposited with MHC with seals intact. Statement of witnesses were recorded. The report Ex.PD after making endorsement by SI/SHO Budh Singh Ex.PD/1, was sent to DSP Dabwali, who seen the report as per his endorsement Ex.PD/2. After necessary investigation, challan was presented against the accused-appellant and co-accused Jarnail Singh and Ranjodh Singh.
On presentation of challan, copies of challan and other documents were supplied to the accused-appellant and co-accused Jarnail Singh and Ranjodh Singh under Section 207 Cr.P.C. Finding prima facie case, appellant and above-said co-accused were charge- sheeted under Sections 15 of the Narcotic Drugs and Psychotropic Crl. Appeal No.908-DB of 2007 -5- Substances Act, 1985, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 Head Constable Kanwar Singh, who is a formal witness and tendered into evidence his affidavit Ex.PA. PW-2 ASI Kamal Singh mainly deposed regarding preparing of report under Section 173 Cr.P.C. against accused Gursewak Singh. PW-3 Head Constable Madan Lal and PW-4 Richhpal Singh, ASI (Retd.) are the formal witnesses, who tendered into evidence their affidavits Ex.PB and Ex.PC respectively. PW-5 SI Budh Ram deposed as per prosecution version. PW-6 ASI Gurmeet Singh, is the Investigating Officer, who mainly deposed regarding investigation conducted in the present case by him. PW-7 ASI Rai Singh, who was associated with ASI Gurmeet Singh deposed the same facts as deposed by the Investigating Officer. PW-8 Constable Jagjit Singh who was also associated with ASI Gurmeet Singh deposed as per prosecution version. PW-9 Mohan Singh alias Mohna mainly deposed that he did not know anything about this case. Jarnail Singh accused never took the police to the house of Gursewak Singh nor identified his house in his presence. This witness has not supported the prosecution version and was declared hostile. PW-10 ASI Moola Ram deposed regarding the arrest of accused Jarnail Singh. Learned Public Prosecutor tendered FSL report Ex.PL in the evidence.
At the close of prosecution evidence, the accused- appellant and co-accused Ranjodh Singh were examined under Crl. Appeal No.908-DB of 2007 -6- Section 313 Cr.P.C. and they denied the correctness of the evidence and pleaded themselves as innocent. Accused-appellant Gursewak Singh also pleaded that nothing was recovered from him. The house from which the recovery of poppy straw is stated to have been done, does not at all belong to him. He further pleaded that he was not present in the village on the day of alleged recovery and he was away to his relations.
On the basis of the evidence produced by the prosecution, accused-appellant was convicted and sentenced as stated above by the Special Judge under NDPS Act, Sirsa, whereas co-accused Ranjodh Singh was found not guilty and acquitted of the charge framed against him. Co-accused Jarnail Singh was acquitted vide order dated 24.04.2007 as mentioned above.
At the time of arguments, learned counsel for the appellant argued that prosecution has not duly proved its case by leading cogent evidence. A reasonable doubt exists in the present case. Makhan Singh independent witness was not examined in the present case. He further argued that DSP Dabwali, who received report under Section 42 of the NDPS Act, which was sent after receiving the secret information, has not been examined. Therefore, there is no compliance of Section 42 of the NDPS Act in the present case and accused is entitled for acquittal. Learned counsel for the appellant next argued that the Investigating Officer has not collected the documents of title of the house from where the recovery was made and that house was not of appellant Gursewak Singh. Therefore, on Crl. Appeal No.908-DB of 2007 -7- this ground also a reasonable doubt exists in the prosecution version. He further argued that there is delay in sending the samples of about 30 days, which also creates doubt in the prosecution version. Learned counsel for the appellant argued that accused-appellant is innocent and has been falsely implicated in the present case. Therefore, he argued that appeal should be accepted accordingly.
On the other hand, learned Asstt. Advocate General, Haryana for the respondent-State has argued that case of the prosecution has been duly proved by the PWs i.e. the Investigating Officer PW-6 ASI Gurmeet Singh, PW-5 SI Budh Singh and other recovery witnesses. Their statements have been duly supported and corroborated by the recovery of case property. There are no material contradictions or material improvements in the statements of the PWs. There is nothing on the record as to why accused would be falsely implicated in the present case. He further argued that accused- appellant has been apprehended on the spot. There is no evidence on the record that samples were tampered with. The Investigating Officer has made the compliance of provisions of Sections 42, 50, 52 and 57 of the NDPS Act. Learned State counsel next argued that non-examination of DSP Dabwali and Makhan Singh independent witness cannot be held fatal to the prosecution case. Therefore, he argued that the appeal having no merit, should be dismissed.
We have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellants and learned Asstt. Advocate General, Haryana for the respondent- Crl. Appeal No.908-DB of 2007 -8- State.
From the evidence on record, we find that first of all, it is settled law that testimony of police official is as good as of any other witness unless some enmity or motive is alleged and proved. In the present case, no such enmity or motive of police officials against the accused-appellant has been alleged and proved on the record. There is nothing on the record as to why the police officials would deposed falsely against the accused-appellant. Further, we find that such a huge recovery of poppy straw cannot be falsely planted upon the accused. Though, Makhan Singh was joined as independent witness, but was given up by the Public Prosecutor on the police request that he has been won over by the accused. It is for the Public Prosecutor to examine the witness. It is not necessary to examine those witnesses also who have been won over by the accused and are not supporting the prosecution version. Otherwise also, from the evidence on record, we find that SI Budh Singh, came on the spot and the accused-appellant, witnesses, case property and sample seal impressions were produced before him and he has also verified the investigation. The other two recovery witnesses and the Investigating Officer have also deposed regarding the recovery of 20 gunny bags of poppy straw from the house and Gursewak Singh was apprehended on the spot, though, other persons, as per prosecution version, ran away from the spot by scaling the wall. All the PWs have consistently deposed as per prosecution version. There are no material contradictions or material improvements in the statements of PWs. Crl. Appeal No.908-DB of 2007 -9- The perusal of cross-examination of these PWs shows nothing which may make their statements unreliable. The case property was produced in the Court, which is a corroborative piece of evidence and also corroborates the prosecution version. As per prosecution version, after receiving the secret information, it was reduced into writing under Section 42 of the NDPS Act and was sent to the senior officer. Though the carbon copy Ex.PE is produced on the record but the DSP was not examined nor the person who took this report Ex.PE, was examined but the Investigating Officer specifically deposed that this report under Section 42 of the NDPS Act was sent through Constable Sugreev Kumar. We have gone through the documents Ex.PD and Ex.PD/1. It is a report under Section 57 of the NDPS Act, which was prepared by ASI Gurmeet Singh. In this report Ex.PD, all the facts in detail have been mentioned including the fact that secret information was reduced into writing and has been sent to DSP Dabwali. Then, the endorsement by SI Budh Singh has been made and he has also deposed while appearing in the Court regarding the same. The perusal of this document as well as statement of PW-5 SI Budh Singh shows that it was also sent to the DSP Dabwali and shows endorsement Ex.PD/2 of DSP Dabwali regarding the fact that he has seen this report, which means that DSP has received the report under Section 42 of the NDPS Act. Therefore, keeping in view these facts on record, it is duly proved that the compliance of provisions of Section 42 and Section 57 of the NDPS Act has been made. The case property along with the accused-appellant and Crl. Appeal No.908-DB of 2007 -10- witnesses were produced before PW-5 SI Budh Singh. Therefore, there is also compliance of Section 52 of the NDPS Act in this case. In the present case, 20 gunny bags of poppy straw were recovered from the house. There was no need for compliance of Section 50 of the NDPS Act in the present case as the recovery was not made from any personal search. Even then PW-6 ASI Gurmeet Singh Investigating Officer has given the notice to accused-appellant as to whether he wanted to get his search from him or from some Gazetted Officer or Magistrate and as per evidence, the accused-appellant reposed confidence in the Investigating Officer. Therefore, no reasonable doubt exists in the prosecution case and necessary compliance of all the provisions of NDPS Act has been made.
Further, we find that non-examination of Makhan Singh independent witness and DSP Dabwali cannot be held as fatal to the prosecution case. Again, accused-appellant Gursewak Singh has been apprehended on the spot and 20 gunny bags of poppy straw were recovered from his conscious possession, therefore, the mere fact that Investigating Officer had not collected the documents of title or ration card etc. regarding that house, does not create any reasonable doubt regarding the recovery of contraband from the possession of appellant Gursewak Singh.
We have also gone through the record carefully and minutely regarding sending of samples and depositing of case property etc. The formal PWs have tendered into evidence their respective affidavits. There is nothing on the record to show that the Crl. Appeal No.908-DB of 2007 -11- specimens were tampered with by these PWs or they have allowed any other person to tamper with the same. Otherwise also, as per FSL report Ex.PL, before examination of contents of the samples, the seals were compared with the seals impressions and these seals were found intact and tallied with the specimen seals. Therefore, there is nothing on the record that the case property or samples were tampered with at any stage. Hence, the delay in sending the samples has no effect on the prosecution case. Link evidence is complete.
In view of the above, we find that prosecution has duly proved its case beyond reasonable doubt. Therefore, we find no merit in the arguments of the learned counsel for the appellant. The judgment of conviction and order of sentence passed by learned trial court are upheld.
Resultantly, the present appeal is dismissed having no merits.
(M. JEYAPAUL) (INDERJIT SINGH)
JUDGE JUDGE
May 04, 2013
Vgulati