IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 771-SB of 1998 Date of Decision : March 31, 2010 Rupa Singh ....Appellant Versus State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Navkiran Singh, Advocate Mr. P.S. Sidhu, Additional Advocate General, Punjab T.P.S. MANN, J. The appellant was tried for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for being found in possession of 10 kgs. 100 grams of poppy husk on 24.4.1997, when he was apprehended by a police party headed by ASI Ujagar Singh of Police Station Jaurkian. Vide judgment and order dated 23.7.1998, learned Special Judge, Mansa convicted the appellant for the aforementioned offence and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he was sentenced to undergo further rigorous imprisonment for a period of one year. The said judgment of conviction and sentence has been impugned by the Crl. Appeal No. 771-SB of 1998 -2- appellant by filing the present appeal. According to the prosecution, on 24.4.1997 a police party headed by ASI Ujagar Singh of Police Station Jaurkian, while on patrol duty, was proceeding towards Chuhrian and Kusla villages. When the police party reached near Ulak crossing, they met Mahla Singh, who was joined with the police party. The police party proceeded further towards village Kusla. When it reached near village Kusla, the appellant was seen coming from the opposite direction and was carrying a bag on his head. On noticing the police party, he attempted to escape but was apprehended on suspicion. The appellant disclosed his whereabouts. ASI Ujagar Singh informed him that he was suspected to be carrying some contraband in the bag, which was required to be searched and whether he wanted to be searched in the presence of a Magistrate or a Gazetted Officer to which he replied that he be searched before a Gazetted Officer. The consent memo was prepared, which was signed by the appellant and attested by the witnesses. ASI Ujagar Singh then contacted Baljinder Singh, DSP, Sardulgarh on wireless and requested him to reach the spot. After sometime, DSP Baljinder Singh alongwith his gunman reached the spot. In his presence, the bag was opened and found to contain crushed poppy husk. 100 grams was taken out from the same as sample and the remaining when weighted came to be 10 kgs. A separate parcel was prepared. Sample parcel and the parcel of the bag were sealed at the spot by ASI Ujagar Singh with his Crl. Appeal No. 771-SB of 1998 -3- seal bearing inscription US. Sample impression of the seal was also prepared. The seal after use was handed over to HC Tajinder Singh. All the parcels were taken into possession by preparing memo. As the appellant was found in possession of poppy husk, he had committed an offence under Section 15 of the Act. Accordingly, ASI Ujagar Singh prepared a ruqa and sent it through PHG Darshan Singh to the Police Station, on the basis of which FIR No. 32 dated 24.4.1997 under Section 15 of the Act was registered against the appellant at Police Station, Jaurkian. The appellant was formally arrested. Rough site plan with correct marginal notes was prepared. Statements of PWs were recorded and inventory report was prepared. On return to the Police Station, the appellant and the case property were produced before SI Rattan Singh, SHO, Police Station Jaurkian, who also sealed both the parcels with his seal bearing inscription RS. Sample impression of the seal was separately prepared. The appellant was put in the lock up and case property kept by SI Rattan Singh in his custody. On the next day, SI Rattan Singh produced the appellant alongwith the case property before the Ilaqa Magistrate, who directed that the case property be deposited in the Judicial Malkhana. Though the case property was taken to the Judicial Malkhana yet it could not be deposited there due to shortage of the space. On 7.5.1997 the sample of poppy husk was handed over by SI Rattan Singh to Constable Tara Singh for depositing the same in the office of the Chemical Examiner, Patiala, who got the docket prepared Crl. Appeal No. 771-SB of 1998 -4- from the Senior Superintendent of Police, Mansa and then deposited the sample in the office of the Chemical Examiner, Patiala, on 8.5.1997. Alongwith the sample of the poppy husk, sample impressions of the seal were also handed over to Constable Tara Singh, who in turn deposited them with the Chemical Examiner. After receipt of report from the Chemical Examiner and completion of investigation, the appellant was challaned. On appearance of the appellant he was supplied with copies of challan and other documents as required under Section 207 Cr.P.C. Perusal of the prosecution case prima facie showed that the appellant had committed an offence under Section 15 of the Act, which was exclusively triable by the Court of Sessions. Accordingly, learned Judicial Magistrate Ist Class, Mansa committed the case to the Court of Sessions and directed the parties to appear before Additional Sessions Judge, Mansa. On 13.8.1997, Additional Sessions Judge, Mansa received the challan by commitment and after hearing the arguments found that a prima facie case for offence under Section 15 of the Act was made out against the appellant and, accordingly, the appellant was charged for the said offence, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 SI Rattan Singh, PW2 HC Tajinder Singh, PW3 ASI Ujagar Singh and PW4 Constable Tara Singh and then closed its evidence. Crl. Appeal No. 771-SB of 1998 -5- When examined under Section 313 Cr.P.C., the appellant denied the prosecution allegations and stated that he was innocent and falsely implicated in the present case. Initially, he opted to lead defence evidence but on 20.7.1998 he made statement closing his defence evidence without examining any evidence in support of his plea. As mentioned above, the trial Court believed the prosecution case and convicted and sentenced the appellant. Having heard counsel for the parties, this Court is of the considered view that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. Reasons for the same are non-examination of Mahla Singh, independent witness and DSP Baljinder Singh. It is the case of the prosecution that when the police party headed by ASI Ujagar Singh was proceeding towards Chuhrian and Kusla villages, it met Mahla Singh, who was joined with the police party. The police party proceeded further and when it reached near village Kusla, the appellant was seen coming from the opposite direction carrying a bag on his head. His conduct of attempting to escape led to suspicion against him of being carrying some contraband. Accordingly, he was apprehended and informed that the bag carried by him on his head was required to be searched. The appellant was given an option of being searched either in the presence of a Gazetted Officer or a Magistrate. In reply thereto, the appellant stated that he be searched Crl. Appeal No. 771-SB of 1998 -6- before a Gazetted Officer. His consent memo. Ex. PB was prepared which was attested by the police officials as well as by Mahla Singh. In view of the consent given by the appellant, a message was flashed to DSP Baljinder Singh, who reached the spot. In his presence, the search of the bag was conducted and poppy husk weighing 10 kgs. 100 grams was recovered. Sample weighing 100 grams was separated. The sample as well as the remaining contraband were made into parcels, which were duly sealed by ASI Ujagar Singh with his seal. The seal after use was entrusted to HC Tajinder Singh. Both the parcels were taken into possession vide memo. Ex. PC, which was attested by the police officials as well as by Mahla Singh. Personal search of the appellant was also conducted and cash was recovered, which was taken into possession vide memo. Ex. PD, which was also attested by the police officials and Mahla Singh. Arrest memo. Ex. PE was then prepared, which was similarly attested. From the above, it is made out that both Mahla Singh and DSP Baljinder Singh had witnessed the recovery of the contraband and attested various memos prepared at the spot. Once, they were shown to be present at the spot, the prosecution was duty bound to examine them as its witnesses. Both of them were duly cited as witnesses in the report under Section 173 Cr.P.C. but without assigning any reason, the prosecution did not examine them. PW3 ASI Ujagar Singh admitted in his cross-examination that DSP Baljinder Singh was alive but he was not present in the Court. The Additional Public Crl. Appeal No. 771-SB of 1998 -7- Prosecutor did not make any statement or offer any explanation as to why Mahla Singh, independent witness and DSP Baljinder Singh could not be produced before the trial Court for the purposes of recording their testimonies. Their non-examination casts a serious blow on the authenticity of the prosecution case regarding the apprehension of the appellant and recovery of the contraband from him. It is true that an accused can be convicted on the testimonies of the police officials only but the same may not be possible if there is material available on the file that the case property instead of being kept in the judicial Malkhana was kept in the Police Station. PW1 SI Rattan Singh, who was SHO of Police Station Jaurkian at the relevant time, admitted in his cross-examination that the sample of the case property and sample seal remained with him from 24.4.1997 till 7.5.l997. Further, the judicial Court had directed him to deposit the case property with the judicial Malkhana. If the sample of the contraband remained in the Police Station before it was despatched to the Chemical Examiner, possibility of tampering with the same cannot be ruled out. Further, PW3 ASI Ujagar Singh deposed that the seal after use was given to HC Tajinder Singh, who had returned the same on the next day. Possibility cannot be ruled out of the sample being tampered with especially when the seal which was used while converting the same into parcel was very much available with ASI Ujagar Singh from 25.4.1997 till 7.5.1997 when it was sent to the Chemical Examiner. Crl. Appeal No. 771-SB of 1998 -8- In view of the above, the appeal is accepted, impugned judgment of conviction and sentence is set-aside and the appellant is acquitted of the charge against him. The appellant is on bail. His bail bonds and surety bonds shall stand cancelled. ( T.P.S. MANN ) March 31, 2010 JUDGE ajay-1