IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 187-SB of 2002 Date of decision: 29th April, 2010 Darshan Singh … Appellant Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Baljinder Singh, Advocate for Mr.K.S. Dhaliwal, Advocate for the appellant. Mr. Manish Deswal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been filed by Darshan Singh son of Gulab Singh. The challenge in the appeal is to the impugned judgment dated 16th January, 2002, whereby the appellant was held guilty of an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, ‘the Act’), as he was found in possession of 113 kilograms 250 grams of poppy husk without any permit or licence. Vide a separate order dated 17th January, 2002, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1.00 lac, in default of payment of fine to further undergo rigorous imprisonment for two years. The appellant was named as an accused in case FIR No.112 dated 11.12.1999 registered at Police Station Babain under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Criminal Appeal No.187-SB of 2002 SI Dharam Singh PW-8 on 11th December, 1999 at about 3.15 p.m. had sent a ruqa Ex.PD from the Kotha tubewell installed in the land of Sarwan in the area of village Babain. It was stated in the ruqa that SI Dharam Singh PW-8 along with his companion police officials was present at Sunaria Chowk, Babain in connection with detection of crime, where ASI Satpal Singh along with HC Pritam Singh came from the side of Kurukshetra and they were talking to each other. At that time, a special informant came and gave a secret information that one Darshan Singh son of Gulab Singh, resident of Ward No.3, Khatri Mohalla, Babain was habitual of consuming and selling poppy husk and he had taken the land of Sarwan Singh son of Prem on lease. It was further informed that there was a Kotha tube-well in the land, from where Darshan Singh was selling the poppy husk and in case raid was conducted, Darshan Singh could be apprehended at the Kotha tube-well along with poppy husk. Considering the information to be reliable, SI Dharam Singh had reduced the same into writing and proceeded to the spot to conduct raid. When he reached at the spot, he found one person sitting in the Kotha tube-well and that person was apprehended, who disclosed his name as Darshan Singh son of Gulab Singh. At that time, he was stitching a plastic bag with a rope. A notice under Section 50 of the Act was served upon Darshan Singh giving him an option to get himself searched in the presence of a Gazetted Officer or a Magistrate. A memo to this effect was also prepared at the spot. Darshan Singh opted to get himself searched in the presence of any Magistrate or a Gazetted Officer. The memo prepared to this effect was Ex.PG/1. An information was sent to the Police Station and in pursuance thereof, DSP Sahab Ram Nehra PW-6 accompanied by his gunman arrived at the spot. Then on the directions of the DSP, the search was conducted and four plastic bags and one gunny bag, which were lying inside the Kotha tube-well, were recovered. The plastic bags contained 18 2 Criminal Appeal No.187-SB of 2002 kilograms of poppy husk each and the gunny bag contained 40 kilograms of poppy husk. In this manner, 113.250 kilograms of poppy husk was recovered from the Kotha tube-well, which was allegedly in possession of Darshan Singh. Five samples of 250 grams each were prepared from all the bags. On receipt of ruqa Ex.PD, formal FIR Ex.PD/1 was registered at the Police Station. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted against the accused appellant and he was charged for offence under Section 15 of the Act. The appellant pleaded not guilty and claimed trial. Prosecution examined Shashi Pal constable from the SP office, Kurukshetra as PW-1, who stated that on 12th December, 1999, he was posted as a Reader to District Inspector, Kurukshetra in the SP Office, Kurukshetra. On that day, he had received report Ex.PA under Section 57 of the Act and the same was shown to Abey Singh, District Inspector, who made his endorsement Ex.PA/1. In cross examination, this witness stated that the report Ex.PA was not placed before the SP, Kurukshetra. HC Arjun Singh PW-2 tendered into evidence his affidavit Ex.PB, wherein it was stated that on 27th December, 1999 MHC Ishwar Singh had entrusted him five samples of poppy husk for depositing the same in Forensic Science Laboratory, Madhuban and on the same day, i.e. 27th December, 1999, he had deposited the samples in Forensic Science Laboratory, Madhuban. MHC Ishwar Singh appeared as PW-3 and stated that on the receipt of ruqa Ex.PD he had registered formal FIR Ex.PD/1. He also tendered into evidence his affidavit Ex.PC stating that on 11th December, 1999, he was in charge of malkhana at the Police Station and on the same day, i.e. 11th December, 1999, SI Dharam Singh PW-8 had produced the case property and the samples. On 27th December, 1999, this witness had 3 Criminal Appeal No.187-SB of 2002 handed over the samples to PW-2 Arjun Singh for depositing the same in the Laboratory and after depositing the same in the Laboratory, a receipt was handed over by HC Arjun Singh PW-2. Sarwan Kumar PW-4 stated that he had got some land nearby village Babain and that land was given on lease to the appellant. SI Ranbir Singh appeared as PW-5 and stated that he was posted as SHO of Police Station Babain on 11th December, 1999 and Dharam Singh SI PW-8 produced before him the accused along with the case property and the samples. After verification of the facts of the case, he had affixed his seal on all the five samples, i.e. four plastic bags and one gunny bag, and had directed SI Dharam Singh to deposit the same in the malkhana. On receipt of report Ex.PE from the Forensic Science Laboratory, Madhuban, he had prepared a report under Section 173 Cr.P.C. In cross examination, this witness admitted that Sunaria Chowk is a busy chowk. There were many shops around it and many people used to come and go through this chowk. This witness further admitted that adjacent to Sunaria Chowk, there was a grain-market and in the grain- market there were offices of Tehsildar and BDO. SI Dharam Singh PW-8 reiterated as to what was stated in the ruqa. He further proved the preparation of notice Ex.PG, whereby an option was given to the accused appellant to get himself searched in the presence of a Gazetted Officer or a Magistrate. Vide Ex.PG/1, the accused appellant opted to get himself searched in the presence of a Magistrate or a Gazetted Officer. Thereafter, Farsi Kanta to weigh the contraband article was called at the spot. DSP Sahab Ram Nehra reached at the spot, search was conducted and four plastic bags containing 18 kilograms of poppy husk each along with a gunny bag containing 40 kilograms of poppy husk were recovered from the possession of the accused appellant and he was arrested. The procedure regarding search, seizure and recovery was 4 Criminal Appeal No.187-SB of 2002 followed and the accused along with the case property and the samples was produced before SI Ranbir Singh PW-5. In cross examination, this witness stated that the gunny bag Ex.P14 was having two big holes and two small holes and the poppy husk was oozing out of these holes. Two plastic bags were without seals but having their Mud number. This witness started from CIA Staff, Kurukshetra at 9.45 a.m. and reached Sunaria Chowk, Babain at 11.30 a.m. He stated that no person was working in the fields at that time, as it was 12.00 noon. He further stated that he had not taken any lease-deed of the property from the accused at the spot and had made no enquiry to the effect of taking the land on lease by the accused from any person. He did not enquire about the name of consumer of electricity of the tube-well from the accused or any other person. He also did not enquire from the Patwari about the ownership of the land and Kotha tube-well from where the recovery was effected. This witness further stated that he had also not gone to Haryana State Electricity Board, Babain regarding ownership of the electric connection, installed at the Kotha of the tube-well, from where the recovery was effected. The case property was affixed with three seals. DSP Sahab Ram Nehra had also affixed his seal. It took about three and a half hours to complete the formalities at the spot. This witness handed over the seal to ASI Satpal Singh PW-7. This witness denied that the accused was involved falsely at the instance of Sat Parkash and Sarwan Singh, who were owners of the property, from where the alleged recovery was effected. ASI Satpal PW-7 corroborated the testimony of SI Dharam Singh PW-8. He was a member of the police party, which had effected the search. He stated that the seal ‘DS’ after use was handed over to him and DSP Sahab Ram Nehra retained his seal. This witness further admitted that before proceeding to the spot, the information received was not reduced into writing and was not sent to the Police Station. He further 5 Criminal Appeal No.187-SB of 2002 stated that SI Dharam Singh PW-8 made an attempt to join independent witnesses after receipt of secret information but nobody from the public came forward. He further stated that SI Dharam Singh PW-8 had not called any Lambardar or Member Panchayat to join the raiding party. DSP Sahab Ram Nehra appeared as PW-6 and proved the recovery effected in his presence. In cross examination, this witness stated that he had received information at about 2.30 p.m. and he immediately went to the Police Station, Babain. He further stated that the distance between Sunaria Chowk and the Police Station was one furlong. He admitted that near the Sunaria Chowk, there was a grain-market, where offices of Tehsildar and BDPO were situated. Babain was also situated at a distance of 9/10 kilometers from the Ladwa in Ludhiana. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded and all incriminating circumstances were put to him. He denied the same, pleaded false implication and gave his version as under: “I am innocent. I have been falsely implicated in the present case. I was Paledar in the Sheller of M/s Rama Rice Mills, belonging to Sat Parkash and Swaran Kumar, who were real brothers. They have also Poultry Farm near the said M/s Rama Rice Mills, 17 bags of poppy husk were recovered from Sat Parkash from the premises of Rama Rice Mills. He being a rich man saved his skin in collusion with the police and I have been falsely involved in the present case. no poppy husk was recovered from me from the said tubewell Kotha, as alleged of Swaran Kumar. In fact, Swaran Kumar had no land and no tubewell Kotha, so question of taking his land on lease does not arise at all. I have been falsely implicated in this case at the instance of Sat Parkash and Swaran Kumar, owner of Rama Rice Mill, and being a rich man Sat Parkash and Swaran Kumar had saved their skin and involved me in the present false case. Nothing was recovered from me. My 6 Criminal Appeal No.187-SB of 2002 brother Jai Singh had moved the higher authorities regarding my false implication in this case.” In defence, Matu Ram was examined as DW-1. He brought the record regarding tube-well connection in the area of Babain. According to the record, Sarwan Kumar had no tube-well connection or any tube-well installed on his name. Zile Singh Patwari, Halqa Babain appeared as DW-2. He brought the Aks-Shajra pertaining to village Babain. As per the site plan Ex.PA, there was a tube-well of Suresh Kumar son of Ram Chander and the tube-well of Suresh Kumar was at a distance of one kilometer from Sunaria Chowk. In cross examination, he stated that Sarwan Kumar son of Prem Nath had agricultural land in village Babain near a Sheller. He denied any knowledge as to whether Sarwan Kumar had leased out his land to the appellant. Chanda Singh, Lambardar appeared as DW-3 and stated that he had been the Lambardar of the village Babain from last 35 years. At the time when Girdawari was noticed, Patwari summoned the Lambardar. Sarwan Kumar was known to him. There was no land or tube-well on the name of aforesaid Sarwan Kumar in village Babain. However, Sarwan Kumar was having a rice-sheller and Darshan Singh accused was doing Palledari with Sarwan Kumar. Mr. Baljinder Singh, Advocate appearing for the appellant, has stated that the appellant is a poor person, who was engaged as a Palledar at the sheller belonging to Sat Parkash and Sarwan Kumar, who were real brothers. A huge quantity of poppy husk was recovered from them and they being rich and influential persons, to save their own skin, have implicated the present appellant. Learned counsel has submitted that from the defence evidence, it stands proved that no land on the name of 7 Criminal Appeal No.187-SB of 2002 Sarwan Kumar existed at the alleged place of recovery and there was no tube-well connection on the name of Sarwan Kumar. Counsel for the State has canvassed for the prosecution case and has urged that the judgment under challenge suffers from no infirmity and the same be upheld. I have given my thoughtful consideration to rival submissions. Even though, Sarwan Kumar had appeared as PW-4 and had stated that that the land was given on lease to the appellant, SI Dharam Singh PW-8 in his cross examination had admitted that no statement of Sarwan Kumar was recorded under Section 161 Cr.P.C. SI Dharam Singh PW-8 had specifically stated in his cross examination as under: “I did not record statement of Sarwan Kumar PW under Section 161 Cr.P.C.” It will be further appropriate here to notice the following portion of the cross examination of SI Dharam Singh PW-8: “I did not take any lease deed of the property from accused at the spot. I have not enquired this fact of taking of land and lease by accused from any other person. I also did not enquire about the name of consumer of electricity of tubewell from the accused, or any other person. I also did not enquire from the patwari about the ownership of land and tubewell Kotha from where recovery was effected. I also did not went to Haryana State Electricity Board, Babain regarding ownership of the tubewell electric connection.” In the light of this cross examination, evidence of three defence witnesses aspire confidence. Matu Ram DW-1 stated that there was no tube-well on the name of Sarwan Kumar. Zile Singh Patwari DW-2 stated that as per the Aks-shajra, no land, from where the recovery was effected, belonged to Sarwan Kumar. Lambardar Chanda Singh DW-3 had 8 Criminal Appeal No.187-SB of 2002 specifically stated that there was no land or tube-well on the name of aforesaid Sarwan Kumar in village Babain. This Court is conscious of the fact that the recovery effected from the appellant was 113.250 kilograms of poppy husk. Upto 50 kilograms of poppy husk is a non-commercial quantity. This Court cannot become oblivious of the fact that in the present case, no independent witness was examined. From the facts and circumstances of the case, where no effort was made to determine the ownership of the land, from where recovery was effected, the Court will be circumspect to evaluate the testimony of the official witnesses. It is in these kind of cases, the Court always looks for the corroboration from an independent source. Satpal had given an explanation that an attempt was made to join independent witness but nobody came forward. No name of such a witness has been noticed in the record or in any of the documents. No notice under Section 160 Cr.P.C. was served upon any such witness. SI Dharam Singh PW-8 had not stated anything regarding the effort made to join an independent witness. He stated that no Sarpanch, Lambardar or Mamber Panchayat was joined in the investigation after receipt of the secret information. He further stated that he tried to join 2/3 persons at Sunaria Chowk, Babain in the investigation, but they showed their inconvenience. In the present case, the seal was handed over to ASI Satpal PW-7. The samples were deposited in the Police Station on 11th December, 1999 but the same were sent to Forensic Science Laboratory, Madhuban on 27th December, 1999. No explanation is coming forward as to why the samples were not sent within 72 hours as per instruction No.1 of the Instructions issued by Narcotic Control Bureau in the year 1988. The samples were not produced before the Illaqua Magistrate. No effort was made by the police officials to determine, from where the recovered poppy husk had originated, as to how was it transported and who had stored the 9 Criminal Appeal No.187-SB of 2002 same at the place of recovery. Even no villager has been examined to say that the Kotha was in possession of the accused appellant. Lambardar of the village Chanda Singh DW-3 had specifically stated that the land, which allegedly came in possession of the appellant from Sarwan Kumar, was not owned by Sarwan Kumar. In these circumstances, due to various factors, which have been noticed above, this Court is of the opinion that benefit of doubt can be extended to the present appellant as a matter of abundant caution. Hence, present appeal is accepted, impugned judgment is set aside and the appellant is hereby acquitted of the charges. [KANWALJIT SINGH AHLUWALIA] JUDGE April 29, 2010 rps 10