Punjab-Haryana High Court
Sukhdev Singh Alias Kaka vs State Of Punjab on 6 September, 2014
Author: K.C.Puri
Bench: K.C.Puri
CRA S-323-SB of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) CRA S-323-SB of 2004 (O&M)
Date of decision : 6.9.2014
Sukhdev Singh @ Kaka
...... Appellant
Versus
State of Punjab
...... Respondent
(2) CRA S-1098-SB of 2004 (O&M)
Harjit Singh and another
...... Appellants
Versus
State of Punjab
...... Respondent
CORAM: HON'BLE MR.JUSTICE K.C.PURI
Present : Mr. Baldev Singh, Sr. Advocate with
Mr. Sudhir Sharma, Advocate,
for the appellant in CRA S-323-SB of 2004.
Mr. Narinder Singh, Advocate,
for the appellants in CRA S-1098-SB of 2004.
Mr. K.D. Sachdeva, Addl. AG, Punjab.
K.C.PURI, J.
Vide this judgment, I intend to dispose of aforesaid two appeals arising out of common judgment dated 22.1.2004 passed by Sh. D.R. Arora, Judge, Special Court, Ludhiana vide which accused appellants Sukhdev Singh @ Kaka, Harjit Singh and Ranjit Singh were convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short - 'the NDPS Act') and were sentenced to undergo rigorous BANITA CHUGH 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -2- imprisonment for a period of ten years and to pay a fine of Rs.1 lac each and in default of payment of fine to further undergo rigorous imprisonment for a period of three years.
2. Brief facts of the prosecution case are that on 27.8.2001 SI Gurbachan Sihgh, In-charge CIA Staff Jagraon accompanied by SI Kulwant Singh, ASI Bakshish Singh and other police official was present on the bridge canal Akhara in connection with patrolling and checking of the suspects that he received a secret information that accused Bahadur Singh, Ranjit Singh @ Bhundi, Kaka and Harjit Singh resident of village Akhara had been loading the bags of the poppy husk in tractor make Mahindra No. PB-25-A-2832 attached with the trolley in the fields of Bahadur Singh grown with maize crop and if a raid was conducted, they could be caught red handed. At this SI Gurbachan Singh sent ruqa to the Police Station on the basis of which formal FIR was registered. Then SI Gurbachan Singh called DSP(D) Jagraon Sh. Ranbir Singh through wireless message and who accordingly reached the police party. Thereafter the police party left for conducting the raid at the disclosed place in the area of village Akhara. On reaching the fields of Bahadur Singh grown with maize crop, they found one tractor-trolley lying parked in the fields of accused Bahadur Singh. One person was sitting on the steering of the tractor and the other was sitting on the left side mudguard. Two more persons were standing, one of whom was standing on the eastern side of the fields of Atma Singh grown with the crop of moong while the other person was standing on the north of the tractor towards the canal minor. The said two persons on seeing the police party tried to run away. The two persons who were sitting on the BANITA CHUGH 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -3- tractor were successful in running away after jumping from the tractor. The two persons who were standing in the fields were apprehended by SI Gurbachan Singh with the help of his companions and who disclosed their names as Sukhdev Singh @ Kaka and Bahadur Singh son of Mit Singh. SI Gurbachan Singh under the directions of the DSP(D) got the bags unloaded from the trolley and which on being counted were found to be 45 in number and which contained poppy husk. Two samples of 250 gms each were taken out of each bag and the bulk of the poppy husk contained in 45 bags, on weighment was found to be 34 killo 500 gms in each bag. Different parcels of the samples and of the bulk were prepared and sealed. After completion of necessary investigation, challan against the accused was presented .
3. Copies of documents as relied upon by the prosecution were supplied to the accused under Section 207 Cr.P.C. Charge under Section 15 of the NDPS Act was framed against the accused to which the accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined PW-1 SI Gurbachan Singh, PW-2 Baldev Raj Clerk, Office of SDM, Jagraon, PW- 3 HC Baljit Singh, PW-4 C. Kewal Singh, PW-5 SI Nahar Singh, PW-6 DSP Ranbir Singh, PW-7 ASI Bakhshish Singh and closed the evidence.
5. After the closure of the prosecution evidence, statements of the accused were recorded under Section 313 of the Cr.P.C and all the incriminating circumstances were put to accused to which they denied and pleaded false implication. Accused Sukhdev Singh put forth the plea that he has been involved in the case falsely due to his enmity with Sudagar Singh of his village, Harbans Singh son of Sudagar Singh and Man Singh Garcha BANITA CHUGH 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -4- brother of Jagdish Singh Garcha Ex. Minister, Punjab. He had remained Sarpanch of his village from 1983 to 1998 as also the member Block Samity for a period of five years and even the President of Agriculture Society of which he was still a member. He remained President of the Truck Union, Jagraon for two years i.e from 1994 to 1996. Liquor vends were auctioned in Ajitwal circle in favour of Harbhagwant Singh Bassi and Co. in District Moga. He was a partner in that firm and looking after the sale of the liquor. Aforesaid Maan Singh Garcha sold the liquor un-authorisedly through Ravinder Singh @ Pappu, Sarpanch of village Ramuwala Kalan so as to cause a financial loss to them. He had moved applications and telegrams against the said Pappu and Maan Singh on 13.12.2000. In order to take revenge he was implicated along with the Excise Inspector Ajay Kumar and Bhagwant Singh the owner of the said company vide FIR No.84 dated 17.9.2000 P.S. Mehna District Moga under the Act. They were discharged by the Court of Sh. G.S. Khaira, Additional Sessions Judge. It was further the plea of Sukhdev Singh that his co-accused Ranjit Singh @ Kaka Bhundi is his adversary. He had contested the election for the post of the Sarpanch of his village Akhara in the year 1993 and defeated him. He does not see eye to eye with him. On 03.12.1970 he had been challaned along with the others for the murder of Malkiat Singh and Kaka Singh of his village in which case he was acquitted along with the co-accused. The said Kaka Singh is the grand father of the co-accused Harjit Singh. His enmity is still persisting with the said family. On 26.08.2001 he was present in the congregation having taken place in the Gurudwara of his village, the congregation having started on 24.08.2001 and which lasted up to 27.08.2001, he was In-charge BANITA CHUGH 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -5- of the function and looking after the same. On 26.08.2001 at about 7/8 P.M. he was present in the Gurudwara. He was told by Swaran Singh son of Munsha Singh that his brother Gurcharan Singh and Baljit Singh who is the nephew of Swaran Singh were taken away by the police of CIA Staff Jagraon. At this he along with Swaran Singh, Darshan Singh member panchayat and Darshan Singh of village Swaddi had gone to CIA Staff Jagraon to know about the reasons for the arrest of his brothers. He had met Inspector Gurbachan Singh who asked him to come in the morning of the next day. In the morning on 27.08.2001 he had gone to CIA Staff accompanied by Darshan Singh member panchayat, Darshan Singh son of Rattan Singh and Swaran Singh at about 9.30 A.M. where he was made to sit and was implicated in this case. Darshan Singh son of Rattan Singh had moved the telegrams to the higher authorities regarding his false implication. His wife Smt. Nasib Kaur had also moved the applications in respect of his innocence and asked for an inquiry. S.P. Hartej Singh conducted the enquiry and found him as also Bahadur Singh to be innocent. In order to save the police, their arrest was shown in the fields falsely. He had sold his tractor- trolley much prior to 28.07.2001 to Malkiat Singh vide an affidavit.
6. Accused Ranjit Singh put forth the plea that he is innocent and is not on visiting terms with the co-accused. He had contested the election of the Gram Panchayat in the year 1993 against co-accused SukhdevSingh. This case was got registered against him because of the political rivalry. When he had come to know about the registration of the case he surrendered before the court.
BANITA CHUGH2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -6-
7. Similarly the accused Harjit Singh put forth the plea that he does not know the co-accused. The raids were being conducted by the police against him and therefore he surrendered himself before the court of the Illaqa Magistrate and thereafter he has been implicated in this case falsely.
8. The accused examined DW-1 Harjinder Singh Sr. Clerk office of ATEC Moga, DW-2 Rajinder Singh Clerk office of D.C. Moga, DW-3 C. Jaspal Singh No.434, SSP Office Moga, DW-4 Darshan Singh, DW-5 Swaran Singh, DW-6 Darshan Sigh son of Rattan Singh, DW-7 Maglesh Kumar @ Manga, DW -8 Balbir Singh, DW-9 Bhupinder Singh, DW-10 Gurcharan Singh, DW-11 C. Avtar Singh No.599, DW-12 AMHC Bharat Singh No.4, DW-13 Bikkar Singh Patwari, DW-14 Swaran Lal AG II Depot, FCI, ARDC Jagraon, DW-15 Avtar Singh AG-II(D) FCI, ARDC, Jagraon, DW-16 Ravinder Singh, Jr. Assistant, Writ Branch, Punjab & Haryana High Court, Chandigarh, DW -17 Malkiat Singh and closed the defence evidence.
9. The trial Court, after hearing the learned counsel for the parties convicted and sentenced the accused vide judgment and order dated 22.1.2004, as stated aforesaid. However, accused Bahadur Singh was acquitted.
10. Feeling dissatisfied with the aforesaid judgment and order dated 22.1.2004, the present two appeals have been directed by the accused-appellants.
11. I have heard learned counsel for the parties and have BANITA CHUGH gone through the records of the case with their able assistance. 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -7-
12. Learned counsel for the appellants have submitted that mandatory provisions of Section 42 (2) of the NDPS Act have not been complied with. It was the case of secret information. The secret information was not reduced into writing nor the same was sent to superior officer. So, on account of non-compliance of Section 42 of the NDPS Act, the trial is vitiated. To support this contention, learned counsel for the appellants have relied upon the authority reported as Rajender Singh vs. State of Haryana 2011 (3) RCR (Criminal) 856.
13. In reply to the abovesaid submission, learned State counsel has submitted that ruqa containing all the facts and circumstances of the case was sent to the police station from the spot from where the recovery was made. The FIR was registered on the basis of said ruqa. The copies of FIR were sent to the Illaqa Magistrate and higher police officials. Otherwise also, DSP was called at the spot and as such there is compliance of Section 42 of the NDPS Act. To support his contention, learned State counsel has relied upon authority reported as Bahadur Singh vs. State of Haryana 2010 (2) RCR Criminal) 586.
14. I have carefully considered the said submission and have also gone through the record of the case. The Hon'ble Apex Court in Bahadur Singh's case (Supra) has held that with the advancement of technology and the availability of high speed exchange of information, some of the provisions of the Narcotic Drugs and Psychotropic Substances Act, including Section 42 have to be read in the changed context. In the said authority, it has been further held that where the Investigating Officer BANITA CHUGH sent the ruqa narrating all the circumstances of the case from the spot to the 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -8- Police Station for registration of the FIR and FIR is sent to the Magistrate and higher police officials, in that case there is substantial compliance of Section 42 of the NDPS Act. Even in Rajender Singh's case (Supra) relied upon by counsel for the appellants, it has been held that delay in compliance of Section 42 of the NDPS Act is not fatal to the prosecution. There is recovery of huge quantity of contraband from Sukhdev Singh
-appellant. It cannot be stated that such a huge quantity of poppy husk can be planted without any strong motive. No strong motive has been proved on the file.
15. Counsel for the appellants have further submitted that according to the prosecution, recovery of contraband has taken place from Bahadur Singh and Sukhdev Singh - appellant. Bahadur Singh was acquitted by the trial Court, believing his representation that he was not present at the spot. Sukhdev Singh and other co-accused are in parity with Bahadur Singh. So, they are entitled to the concession of acquittal.
16. I have carefully considered the said submission but do not find any force in that submission. It is settled principle of law that where there is slightest doubt in the mind of the Court that accused can be innocent, in that case, he should not be convicted, more so in respect of offence punishable with minimum sentence of 10 years. The trial Court has believed upon the evidence produced by Bahadur Singh in respect of his plea of alibi. No doubt, Sukhdev Singh has also taken the plea of alibi, but he has failed to prove the said plea. Sukhdev Singh is the registered owner of the vehicle from which the contraband was recovered and that fact further strengthens the prosecution story against him. No doubt, he has BANITA CHUGH 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -9- taken the stand that he had sold the tractor trolly, but no cogent evidence has been produced on the file in this regard.
17. Learned counsel for the appellants have further submitted that witnesses are highly discrepant regarding the place of presence of Bahadur Singh, Sukhdev Singh and other co-accused. PW-1 SI Gurbachan Singh Investigating Officer of the case has stated that Harjit Singh accused was sitting on the driver seat of the tractor trolly. Ranjit Singh was sitting on the mudguard of the tractor trolly. One person was standing in the Mungi fields of Atma Singh at a distance of about 18 karams from trolly, whose name was Sukhdev Singh @ Kaka. The fourth person was standing at a distance of 15 karams from the tractor trolly towards the canal side in the maize fields of Bahadur Singh, whose name was Bahadur Singh. However, PW-6 DSP Ranbir Singh has stated that accused Harjit Singh and Ranjit Singh were sitting on the tractor, whereas two persons were sitting on the bags, who were Sukhdev Singh and Bahadur Singh. So, the statements of these two material witnesses regarding the presence of the accused altogether is not reconcilable.
18. I have considered the abovesaid submission.
19. The recovery is stated to have taken place on 27.8.2001. PW-1 SI Gurbachan Singh was examined on 19.4.2002, whereas PW-6 DSP Ranbir Singh was examined on 17.2.2003. So, in view of the time lapse between the occurrence and examination of the witnesses in the court, there may be some discrepancy, more so such discrepancy cannot be said to go to the root of the case. The minor discrepancies are bound to occur in the statements of the truthful witnesses. It cannot be expected from the BANITA CHUGH 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -10- witnesses to give parrot like statements.
20. Learned counsel for the appellants have further submitted that the tractor trolly from which the contraband was allegedly recovered has not been produced before the SHO or JMIC. The Investigating Officer has made improvements regarding producing of the tractor trolly before the SHO/Investigating Officer.
21. I have considered the above said submission.
22. The Investigating Officer has categorically stated that tractor trolly, the case property was produced before the SHO and JMIC. PW-5 SI Nahar Singh the then SHO has also categorically stated that the case property was deposited by him with MHC with seal intact alongwith tractor trolly. So, it cannot be said that tractor trolly was not produced before the SHO/JMIC.
23. Mr. Baldev Singh, learned senior counsel, has further contended that prosecution has failed to prove the conscious possession. Specific question in statement under Section 313 Cr.P.C. regarding conscious possession was not put to the accused and consequently, the prosecution has failed to prove the conscious possession of the appellants. To support this contention learned counsel for the appellants has relied upon the authorities reported as Avtar Singh and other vs. State of Punjab 2002 Supreme Court Cases (Cri) 1769 SC, Sukhdev Singh and another vs. State of Punjab 2006 (4) RCR (Criminal) 263, DB, Jaswinder Singh and another vs. State of Punjab 2013 (1) RCR (Criminal) 257 and Ram Sarup and others vs. State of Haryana 2014 (2) RCR (Criminal) 157. BANITA CHUGH
24. I have carefully considered the said submission and have 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -11- also gone through the authorities referred to above. Sections 35 and 54 of the NDPS Act envisage that if the contraband is found in possession of the accused in that case, the onus shifts upon the accused that he was not in control of the substance recovered from him. The ratio of all the abovesaid authorities is that in case number of persons are traveling in a vehicle in that case, prosecution has to prove the conscious possession. In the present case all the accused were present at the spot where poppy husk was lying and they were not travelling in the vehicle. So, all the abovesaid authorities are distinguishable to the facts of the present case. The Hon'ble Apex Court in authorities reported as Gian Chand and others vs. State of Haryana 2013 (3) RCR (Criminal) 916 and Megh Singh vs. State of Punjab AIR 2003 Supreme Court 3184, has held that in case the accused are found in possession of the contraband, in that case the onus shifts upon them to prove that they are not in conscious possession.
25. Counsel for Harjit Singh and Ranjit Singh has submitted that although their names appear in the secret information, but they were not apprehended at the spot. It is submitted that in the presence of police party, it was not possible for Harjit Singh and Ranjit Singh to run away from the place of occurrence. It is further submitted that there is sworn enmity between Sukhdev Singh on the one hand and Ranjit Singh and Harjit Singh on the other hand. Malkiat Singh and Kaka Singh were murdered. Malkiat Singh was grandfather of Ranjit Singh. Sukhdev Singh was one of the accused, although he has been acquitted. So, it cannot be stated that Ranjit Singh, Harjit Singh and Sukhdev Singh could be present at one place at the time of recovery of contraband. No test identification in respect of Ranjit BANITA CHUGH 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -12- Singh and Harjit Singh was conducted. Identification of the official witnesses in the Court is meaningless. Moreover, ASI Bakshish Singh has stated that he knows Ranjit Singh as he was accused in another criminal case the detail of that case has not been given. So, the identification of Harjit Singh and Ranjit Singh is not established.
26. I have considered the said submission and have gone through judgment Exhibit D-14 in which Sukhdev Singh was accused. From the perusal of the said judgment, it is revealed that no eye-witness was examined by the prosecution and the case was based upon dying declaration and that dying declaration was not believed. Moreover, the said judgment is of year 1971 and accused have not produced any evidence that at the time of recovery there was any enmity. Previous enmity might have been settled. ASI Bakshish Singh has categorically stated that Ranjit Singh and Harjit Singh were previously know to each other as they were accused in another criminal case. Investigating Officer, DSP and ASI Bakshish Singh have identified Ranjit Singh and Harjit Singh in the Court. DSP and other police officials have no axe to grind against the appellants. So, the abovesaid arguments are without any merit. Moreover as discussed above, such a huge quantity of poppy husk cannot be planted without any strong motive which motive is missing in the present case.
27. Learned counsel for the appellants have further submitted that FSL Form was not prepared at the spot. The sample was sent on 30.8.2001. There is delay in sending the sample and that is fatal for the prosecution. In support of the abovesaid contention, learned counsel for the appellants has relied upon the authority reported as Rajender vs. State of BANITA CHUGH 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -13- Haryana 2013(4) RCR (Criminal) 50.
28. I have carefully considered the said submission and have gone through the record of the case.
29. Counsel for the appellants have not pointed out whether any specific cross examination was conducted on the Investigating Officer regarding the preparation of FSL form at the spot. So, in the absence of cross examination of Investigating Officer in this regard, counsel for the appellants cannot raise the abovesaid argument that FSL form was not prepared at the spot. The delay of few days in sending the sample is not fatal for the prosecution. The report of the Chemical Examiner proves the fact that samples were found intact. Consequently, the above said argument is without any substance.
30. Counsel for the appellants have further submitted that there is discrepancy regarding preparation of sample bags.
31. However, I have considered the said submission, but as discussed above, minor discrepancies regarding preparation of sample bags does not disprove the prosecution case, more so when huge quantity of contraband has been recovered.
32. No other point has been urged before me.
33. In view of the above discussion, both the appeals are without any merit and the same stand dismissed.
34. Accused in both the cases are stated to be on bail. They be taken into custody to undergo the remaining part of the sentence awarded by the trial Court.
BANITA CHUGH 2014.09.22 12:52 I attest to the accuracy and authenticity of this document chandigarh CRA S-323-SB of 2004 -14-
35. A copy of the judgment be sent to the trial Court for compliance.
( K.C. Puri )
September 06, 2014 Judge
SN/chugh
BANITA CHUGH
2014.09.22 12:52
I attest to the accuracy and
authenticity of this document
chandigarh