IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 65-SB of 1996 (O&M) Date of Decision : September 27, 2010 Harshvardhan and others ....Appellants Versus State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Gurcharan Dass, Advocate Mr. P.S. Sidhu, Additional A.G., Punjab T.P.S. MANN, J. The appellants were tried for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’) by Additional Sessions Judge, Jalandhar. Vide impugned judgment and order dated 14.12.1995, they were convicted for the aforesaid offence and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for two years each. According to the prosecution, on 20.4.1992 at about 5.15 p.m., SI Surinder Pal, alongwith ASI Gulzar Singh, HC Subash Chander, Constable Nirmal Singh and other police officials held naka at Barapind on the Atti bridge when a truck bearing registration No. PJX-9535 was spotted coming from the side of village Atti which was being driven by Criminal Appeal No. 65-SB of 1996 (O&M) -2- accused Harshvardhan whereas accused Tirath Singh was sitting by the side of the driver and accused Ashok Kumar was sitting on the body of the truck who managed to flee from the spot. Accused Ashok Kumar was identified by SI Surinder Pal and other police officials. The remaining accused were apprehended and when asked if they wanted to be searched in the presence of any Gazetted Officer or a Magistrate, reposed confidence in the Investigating Officer. However, a wireless message was sent to DSP Harmail Singh, who reached the spot. The search of the truck was conducted in which 25 bags of poppy husk were found lying. 250 gms. of poppy husk from each bag was taken out as sample and the remaining 39 kgs. 750 gms. in each bag were put back in the same bags. Thereafter, the Investigating Officer and the DSP affixed their seals on the case property and the samples. Seals after use were handed over to ASI Gulzar Singh. The Investigating Officer took into possession driving licence Ex. P1 and RC Ex. P2 vide memo. Ex. PA which was attested by ASI Gulzar Singh and DSP Harmail Singh. The Investigating Officer sent ruqa Ex.PB to the Police Station on the basis of which formal FIR Ex.PB/1 was registered by ASI Sarbjit Singh. The Investigating Officer prepared rough site plan Ex. PC of the place of recovery. Statements of the witnesses were recorded. Upon completion of investigation and presentation of challan, followed by the commitment of the case, charge under Section 15 of the Act was framed against the appellants, to which they pleaded not guilty and claimed trial. Criminal Appeal No. 65-SB of 1996 (O&M) -3- In support of its case, the prosecution examined PW1 SI Surinder Pal, PW2 DSP Harmail Singh and PW3 ASI Gulzar Singh. MHC Amarjit Singh was also examined, who tendered in evidence his affidavit Ex.PA. However, ASI Sarabjit Singh was given up as unnecessary. When examined under Section 313 Cr.P.C., the appellants denied the prosecution allegations and pleaded innocence. Accused Ashok Kumar and Harshvardhan took the plea that they had been falsely implicated in this case and that their truck was taken away by the police on 18.4.1992 and on 19.4.1992, Jiwan Kumar, Sarpanch of Barapind, Nathi Ram, Jagdish Mittar Rahi of Goraya, Lal Chand and Kamaldip Singh of truck union Goraya, accompanied them to the Police Station and requested the police to release the truck. They were made to stay back in the Police Station and were falsely involved in this case. They owned a brick kiln at Barapind and supplying bricks to Goraya Police Station and were promised that payments would be made. SI Surinder Pal was also supplied bricks on 2.9.1989. Similarly other police officials including the C.R.P.F. and DSP Phillaur were supplied bricks for their personal use. They demanded price of the bricks as a result of which the police resented. No poppy husk was recovered from their possession. Accused Tirath Ram took the plea that he had no concern with Ashok Kumar and Harshvardhan accused. One Tirath Ram of his village alongwith three others were killed by the terrorists and Rattan Singh son of Kartar Singh lodged report with the police. Gurdev Singh Kairon, married with Criminal Appeal No. 65-SB of 1996 (O&M) -4- the sister of his wife and resident of Barapind, was a suspect in that case but the police could not arrest him. On this, he was taken to Police Station Goraya on 16.4.1992 in the presence of Kharak Singh and Satish Kumar of Barapind to make enquiries regarding the whereabouts of Gurdev Singh Kairon. He was tortured and falsely implicated in this case. Deceased Tirath Ram aforesaid was related to Chaudhary Hari Ram, Financial Commissioner, Punjab and Gobind Ram, DIG Police. No incriminating article was recovered from him. Accused Tirath Singh examined DW1 Kharak Singh in his defence whereas accused Ashok Kumar and Harshvardhan examined DW2 Jiwan Kumar and DW3 Kamaldeep Singh, Transporter in their defence. After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court believed the prosecution version and convicted and sentenced the appellants, as mentioned above. I have heard learned counsel for the parties and perused the evidence with their able assistance. Learned counsel for the appellants has submitted that though SI Surinder Pal had given an offer to the appellants for the search of their vehicle in the presence of a Gazette Officer or a Magistrate yet it is reflected from the statement of DSP Harmail Singh that no such offer was ever made. There is, thus, violation of Section 50 of the Act. Criminal Appeal No. 65-SB of 1996 (O&M) -5- Admittedly, the contraband was not recovered from the personal search of the appellants. Rather, the recovery was effected from the truck. Therefore, as per the settled law, there is no requirement of giving of any offer to the accused in terms of Section 50 of the Act. As such, no dent is caused in the prosecution case if offer in terms of Section 50 of the Act had not been given to the appellants. Credibility of the official witnesses produced by the prosecution has been challenged on the ground that no attempt was made by the police party to join independent witness. However, from the testimony of PW1 SI Surinder Pal, it is made out that he had made an attempt to join independent person from the close-by villages but none was available. PW2 DSP Harmail Singh stated in his cross- examination that though there were tube-wells at a distance of one furlong from the place of recovery but there was no habitation on those tube-wells. He also termed it as incorrect that tube-wells of Kulwant Singh and Sewak Singh were at a distance of 40 karms. PW3 ASI Gulzar Singh testified that he did not go to any near-by Deras to find out if any independent person was there or not as the SHO did not ask him to do so. The SHO did ask the person, who was sent for bringing weighing scale to bring independent persons with him but no independent person was brought. In the face of such evidence on the record it cannot be said that any independent person was available to be associated while conducting the recovery of the contraband and, thus, the prosecution case cannot be rejected only on the ground that it is based on the testimonies of official witnesses. Criminal Appeal No. 65-SB of 1996 (O&M) -6- The provisions of Sections 55 and 57 of the Act were duly complied with by SI Surinder Pal by sending ruqa Ex.PA about the interception of the truck from which the contraband was recovered. Even a message had been flashed on wireless to the control room and other officers about the recovery. Subsequent upon recovery of the contraband, the samples and the case property were deposited on the same day with the MHC. Statement made by PW2 DSP Harmail Singh lends further corroboration to the recovery of the contraband from the truck and the apprehension of its two occupants. Coming to the plea of appellants Harshvardhan and Ashok Kumar that they owned a brick kiln and supplying bricks to the police and when they demanded price of those bricks from the police, they were falsely implicated in the case, it may be worthwhile to refer to the testimony of DW2 Jiwan Kumar, Sarpanch of village Barapind, who did depose on the aforementioned lines but admitted that the bricks were not supplied by Ashok Kumar in his presence. No resolution was also passed regarding the incident in the proceedings of the Gram Panchayat. Therefore, it cannot be said that aforementioned two appellants were falsely implicated. Even otherwise, PW1 SI Surinder Pal denied about the supply of bricks by Ashok Kumar. Similarly, no benefit can be extended to Harshvardhan and Ashok Kumar appellants from the testimony of DW3 Kamaldeep Singh, who stated that their truck was detained by the police on 19.4.1992. However, in his cross-examination, he testified about maintaining regular register of members affiliated with Criminal Appeal No. 65-SB of 1996 (O&M) -7- the truck union but no such record was produced to show that the truck owned by Harshvardhan and Ashok Kumar was affiliated with his truck union or that they were even members of the truck union. Though he stated that resolutions used be passed by the union against the excesses committed by the police against any member of the union yet no such resolution was passed against the police of Police Station Goraya. As regards the defence of appellant Tirath Singh is concerned, it may be worthwhile to refer to the testimony of DW1 Kharak Singh, wherein he admitted that neither the wife nor the son of Gurdev Singh Kairon were taken into custody by the police nor they were ever interrogated to know about the whereabouts of Gurdev Singh Kairon. Thus, the pleas taken by the appellants about their false implication cannot be accepted. During the pendency of the appeal, appellant Ashok Kumar filed a miscellaneous application under Section 391 Cr.P.C. for bringing on record additional evidence by way of documents appended as Annexures A1 to A11 with the said application. Notice of the application was issued and subsequently, the State filed its reply. Vide order dated 17.9.2010, the Court ordered for taking up the said application for hearing at the time of final hearing of the appeal. As per Ashok Kumar appellant, the various documents sought to be brought on record by way of additional evidence would indicate that he, alongwith Mohan Lal, used to run a brick kiln in partnership. Bricks were Criminal Appeal No. 65-SB of 1996 (O&M) -8- supplied to the police officials as well as the officials of CRPF. Entries in that regard were made in the record maintained at the brick kiln. Further, copies of the deposit of State Sales Tax from time to time have also been appended. The plea of false implication on account of asking for payment of the bricks supplied from his brick kiln had already been put to the witnesses examined by the prosecution in support of its case. The additional evidence was necessary for just decision of the case and to advance the ends of justice. However, the fact remains that all the aforementioned documents pertained to the period which was earlier to the passing of the impugned judgment of conviction and sentence by the trial Court. Ashok Kumar appellant was in possession and in knowledge of the aforementioned documents when the trial was going on before the lower Court. Once he failed to produce those documents in evidence during the trial of the case, he cannot be now granted opportunity for bringing those documents on record by way of additional evidence. The application filed by him in that regard is, accordingly, dismissed. Out of the three appellants, Harshvardhan and Tirath Singh were apprehended at the spot. According to the prosecution, appellant Ashok Kumar was also one of the occupants of the truck from which the contraband was recovered. However, he had managed to run away from the spot and, therefore, could not be apprehended. He was identified by SI Surinder Pal and other police officials. However, in his cross-examination SI Surinder Pal stated that he did not mention in recovery memo. Ex.PA/1 that any one Criminal Appeal No. 65-SB of 1996 (O&M) -9- had run away after getting down from the truck. He also did not mention in the recovery memo. that Ashok Kumar had fled from the spot. Further, PW3 ASI Gulzar Singh, who was said to have identified appellant Ashok Kumar while fleeing from the spot stated in his cross-examination that he did not mention in his statement under Section 161 Cr.P.C. that Ashok Kumar was known to him. Under these circumstances, the possibility of false implication of Ashok Kumar in the commission of crime cannot be ruled out. In any case, extending of benefit of doubt to him would be in order. Resultantly, the appeal of Ashok Kumar appellant is accepted and he is acquitted of the charge against him. The appeal, in so far as it relates to Harshvardhan and Tirath Singh appellants is dismissed and their conviction and sentence upheld. The appeal is, accordingly, disposed of. ( T.P.S. MANN ) September 27, 2010 JUDGE satish Satish Kumar 2014.05.06 11:50 I attest to the accuracy and integrity of this document Chandigarh