Crl.A. No.626-DBA of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.626-DBA of 2001 DATE OF DECISION: November 5, 2009 STATE OF PUNJAB ...APPELLANT VERSUS KAUR SINGH AND ANOTHER ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE JITENDRA CHAUHAN. PRESENT: MR. A.S. GREWAL, ADDL.A.G., PUNJAB FOR THE APPELLANT. NONE FOR THE RESPONDENTS. ASHUTOSH MOHUNTA, J. State of Punjab has challenged the judgment, dated 25.2.1999, passed by the Additional Sessions Judge, Ludhiana, whereby Kaur Singh and Baljinder Singh (respondents) have been acquitted of the charge under Section 15 of the Narcotics and Psychotropic Substances Act, 1985 (for short `the NDPS Act'). Briefly stated the facts of the prosecution case are that on 16.6.1993, SI Shankar Dass, SHO of Police Station Payal was present in the Police Station, where he received a secret information to the effect that Kaur Singh and Baljinder Singh, accused were indulging in smuggling of poppy husk in a rented house of Ram Piari situated in Ward No. 4, Payal and they were in possession of poppy husk. Since the information was reliable, he recorded the formal FIR Exhibit PC. Thereafter he along with the HC Prem Nath and HC Gurmel Singh and Crl.A. No.626-DBA of 2001 -2- other police officials proceeded towards the place of secret information. Harinder Pal Singh met them near the Police Station and he was joined in the police party. Then they raided the house of Ram Piari where they found both the aforesaid accused present in the house. On seeing the police party, accused Baljinder Singh managed to escape, however, Kaur Singh accused was apprehended at the spot. SI Shankar Dass expressed his desire to accused Kaur Singh for effecting the search of the room and if he (accused Kaur Singh) wanted his search to be conducted in the presence of a Gazetted Officer or a Magistrate. However the accused Kaur Singh reposed his faith in SI Shankar Dass for effecting the search. In this regard, SI Shankar Dass recorded the statement (Exhibit PD) of accused Kaur Singh which was duly signed by him. Thereafter SI Shankar Dass searched the room of the accused. On search, 28 bags of poppy husk were found lying near the wall of the house and one bag of poppy husk was found lying on the opposite side of the wall. Two samples of 250 gms. each were taken out from each bag and the same were made into sealed parcel bearing seal impression `SD'. The remaining poppy husk was found to be 35 kg 500 gms. in each bag. The bags containing the remaining poppy husk were also sealed. The samples and the bags were taken into possession vide recovery memo Exhibit PB attested by Harinder Pal Singh, HC Gurmail Singh and HC Prem Nath. The seal after use was handed over to HC Prem Nath. From the personal search of the accused Kaur Singh, currency notes of Rs.5800, one dairy and one wrist watch were recovered, which were taken into possession vide recovery memo Exhibit PA attested by the aforesaid witnesses. Rough Site Plan Exhibit PE with correct marginal notes was prepared and Crl.A. No.626-DBA of 2001 -3- statements of the witnesses were recorded. The accused were arrested after disclosing the grounds of arrest. On reaching the police station, SI Shankar Dass deposited the case property with MHC Baldev Singh with seal intact. On 21.6.1993, Bant Singh, Sarpanch produced accused Baljinder Singh before him and he was also arrested in this case. After completion of the investigation, both the accused were challaned. Finding a prima facie case against the accused respondents, they had been charge sheeted under Section 15 of the NDPS Act. They pleaded not guilty to the charge and claimed trial. In order to prove its case, the prosecution examined PW1 ASI Prem Nath; PW2 SI Shanker Dass and PW3 HC Baldev Singh. Harinder Pal Singh, the alleged independent witness had been given up being won over by the accused. On closure of the prosecution evidence, statements of the accused under Section 313 of the Code of Criminal Procedure were recorded. All the incriminating evidence appearing against them was put to them. They denied allegations of the prosecution and pleaded innocence. They stated that they had been picked up by the police in the presence of the village panchayat and falsely involved in this case. In his defence, the accused examined DW1 Harinder Pal Singh and DW2 Vijay Kapoor, Ahlmad. We have heard the learned counsel for the State and perused the record. Learned counsel for the State has vehemently argued that the statements made by both the prosecution witnesses consisted of PW1 ASI Prem Nath and PW2 SI Shanker Dass are consistant and trustworthy. Both Crl.A. No.626-DBA of 2001 -4- the witnesses have corroboration the version of the prosecution on all the material aspects of the case. Learned trial court has erred in ignoring the consistent statements of the prosecution witnesses. The finding of acquittal recorded by the learned trial court be converted to the conviction of the accused/respondents and they be sentenced. As per version of the prosecution, the alleged recovery of 28 bags of poppy husk were recovered from the rented house of Ram Piari. The prosecution has not been placed on record any document or examine any witness to prove the fact that at the relevant time i.e. date of recovery 16.6.1993, the accused/respondents had taken the room on rent from Ram Piari. Even the said Ram Piari, whose room of house was allegedly taken on rent, has not been examined by the prosecution. In this way, it cannot be said that at the relevant time of recovery, the accused/respondents were in conscious possession of the contraband substance. The co-option of Harinder Pal Singh, the alleged independent witness, in the Police party is also doubtful for the reasons that the seal used by SI Shankar Dass, Investigating Officer was handed over to HC Prem Nath and not to the said Harinder Pal Singh. Further, vide memo Ex.PD Kaur Singh, accused had reposed confidence on SI Shankar Dass for effecting search of the room. This memo (Ex.PD) is not attested by any witness. Moreover, SI Shanker Dass PW-2, the Investigating Officer admitted in his statement that the joining of Harinder Pal Singh, (the alleged independent witness) in the police party has not been mentioned in the report under Section 173 Cr.P.C. Had Harinder Pal Singh, the alleged independent witness, been present at the spot along with the police party, he must had attested the said memo (Ex.PD) and seal after use could also Crl.A. No.626-DBA of 2001 -5- be entrusted to the said Harinder Pal Singh. The fact of joining the said independent witness Harinder Pal Singh should also have found mentioned in the report under Section 173 Cr.P.C. Further the aforesaid facts have been strengthened by DW1 Harinder Pal Singh, when he appeared in the defence wherein, he stated that his signatures were obtained by the Police on 3/4 papers and nothing was recovered from the possession of the accused in his presence. None of the prosecution witnesses stated in their statements that they knew Baljinder Singh, accused-respondent who had allegedly run away from the place of recovery. For the first time the accused Baljinder Singh was identified in the Court and on that account, his identity is stated to have been established. But, in the absence of identification parade, the identity of Baljinder Singh cannot be said to have been established. Moreover, Bant Singh, Sarpanch who had allegedly produced Baljinder Singh accused before SI Shankar Dass on 21.6.1993 has not been examined by the prosecution. SI Shankar Dass PW-2 is silent in his statement in Court that he had disclosed grounds of arrest to accused Baljinder Singh before effecting his arrest. Even no memo regarding disclosing of ground of arrest of accused Baljinder Singh has been proved on record. Further, accused Kaur Singh stated in his statement under Section 313 Cr.P.C., that his son had given telegrams about his illegal detention from 14.6.1993. PW- 1 ASI Prem Nath stated that he did not know if any application or telegram were moved by the accused regarding their illegal detention. In his defence, the accused proved on record an application dated 16.6.1993 Ex.DW2/A regarding illegal detention of the accused. A perusal of the application dated 16.6.1993 Ex.DW2/A shows that the Judicial Magistrate, Ist Class, Crl.A. No.626-DBA of 2001 -6- Ludhiana had called the report of the SHO for 17.6.1993. It is here mentioned that formal FIR Ex.PC was commenced to record on 16.6.1993 at 7 P.M., and it was concluded at 7.30 P.M., by SI/SHO Shanker Dass who was the Investigating Officer in this case. Thereafter SHO Shanker Dass along with the police party proceeded towards the place of information for effecting recovery. It clearly shows that the present case was registered against the accused after presenting of the application dated 16.6.1993 Ex.DW2/A before the Judicial Magistrate Ist Class, Ludhiana, in which it is mentioned that both the accused had been illegally detained by the police since 14.6.1993. The aforesaid facts and circumstances, cause a dent in the prosecution case and,therefore, it is held that the prosecution case is not free from doubt. In view of our above discussion, the finding of acquittal recorded by the trial Court cannot be interfered with. Resultantly, the appeal filed by the State is dismissed. (ASHUTOSH MOHUNTA) JUDGE November 5, 2009 (JITENDRA CHAUHAN) Gulati JUDGE