Criminal Appeal No. 99-DBA of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No. 99-DBA of 2008 Date of decision : 23.5.2008 The State of Punjab .....Appellant Versus Mehnga Singh ...Respondent 2. Criminal Appeal No. 1775-SB of 2007 Surjit Singh .....Appellant Versus State of Punjab ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. D.S. Brar, Deputy Advocate General, Punjab for the appellant. Mr. H.S. Rakhra, Advocate for the respondent S. D. ANAND, J. On account of commonness of the controversy under adjudication, both these appeals are being taken jointly for disposal. Criminal Appeal No. 99-DB of 2008 has been preferred by the State of Punjab to obtain invalidation of the finding whereby the learned Trial Judge exonerated respondent-Mehnga Singh of a charge under Section 15 (c), read with Section 25 of the Narcotic Drugs & Psychtropic Substances Act, 1985 ( hereinafter referred to Criminal Appeal No. 99-DBA of 2008 -2- **** as “the Act”) ; while the other Criminal Appeal No. 1775-SB of 2007 has been filed by Surjit Singh who was convicted by the learned Trial Jude under Section 15( c) of the Act on a charge of having been found in possession of 105 Kilograms of poppy straw. The prosecution allegation at the trial was that the police party headed by SI Jaspal Singh PW-3 was patrolling the Illaqa on 28.4.2004 for detection of crime when it came across the appellant who was sitting on gunny bags placed on the southern patri of the canal minor within the revenue limits of village Lohgarh. A scooter was parked nearby. The appellant, who was apprehended on suspicion, disclosed his identity and, in response to a querry whether he would like his person to be searched in the presence of Magistrate or a Gazetted Officer, responded in the affirmative. On that account, DSP, Moga Bhulla Singh PW-5 was summoned to the spot. The search of gunny bags followed. Each gunny bag was found to contain 34.750 Kgs. of poppy straw. A sample was drawn from each bag. Thereafter the samples were sealed and so also were rest of the contents contained in each bag. Investigating Officer and also the D.S.P. put their seals on the entire case property including samples and also retained sample seal impression. Investigating Officer handed over his seal, after use, to ASI Ved parkash PW-7; while the DSP retained his own seal. Learned Trial Judge placed implicit reliance upon the prosecution presentation in the statements of PW-1 Constable Jaswinder Singh, PW-2 Constable Iqbal Singh, PW-3 SI Jaspal Criminal Appeal No. 99-DBA of 2008 -3- **** Singh, PW-4 SI Kirpal Singh, PW-5 DSP Bhulla Singh, PW-6 Ashok Kumar, Photorgrapher, PW-7 ASI Ved Parkash and PW-8 HC Gurpreet Singh. The Trial Court discarded the appellant’s plea of false implication and also disbelieved the defence version that appellant had been falsely implicated and his mother had filed complaints (on 20.1.2003 and 10.3.2004) against the police of Police Station, Dharamkot. The testimony of DW-1 Gurdip Kaur (mother of the appellant) was disbelieved and so also was the testimony of DW-2 Hardayal Singh, Ex-Panch of village Kot Mohammad Khan, who also supported the allegations of malafides against the police. Though it is beyond the pale of controversy that no independent witness had been joined in the police party, it cannot be lost sight of that this fact, by itself, is not sufficient to out weigh the testimony of the official witnesses. Investigating Officer SI Jaspal Singh PW-3 and PW-7 ASI Ved Parkash detailed the sequence of events, starting from the receipt of information and culminating in the recovery of contraband from the gunny bags which were in the possession of the appellant. They are responsible public servants and they were available at the spot in the course of their duty of crime detection. Their clinching, categorical and unambiguous deposition on oath is fully cemented by that of PW-5 DSP Bhulla Singh who owned up attribution that he went to the spot on receipt of wireless message from SI Jas Pal Singh. He, too, was not proved to have any inimical inclination against the appellant. Criminal Appeal No. 99-DBA of 2008 -4- **** Insofar as the appellant’s allegation of malafides against the police is concerned, we have noticed that though DW-1 Gurdip Kaur claimed to have moved application (Photostat copy whereof is mark ‘A’) against the police before the SSP, Moga, there is no documentation available on the file to prove that application aforementioned had actually been moved. The same applies to Mark ‘B’ which purports to be the Photostat copy of an application which here husband is alleged to have moved against the police. It is in her testimony that on moving of both the aforementioned applications, Jaspal Dhami (obviously a reference to PW-3 SI Jaspal Singh) visited her house in the company of other police officials and held out a threat that she would be taught a lesson for moving the complaints against the police and that her husband and son would be implicated in a false case. If there was even an iota of truth in the plea in the relevant behalf, there is no reason why Gurdip Kaur DW-1 would not have forwarded the complaints to the higher authorities by registered post. She could very well anticipate that the police annoyed by her conduct would falsely implicate her husband and son. She, as a normal person, would have made complaints before the higher authorities and obtained authenticated documentation in the relevant behalf. She is not averred to have obtained any proof of having actually forwarded those complaints. Likewise, the testimony of DW- 2 Hardayal Singh is also not reliable. His testimony is to the effect that police had taken away the appellant from his house. The house of this witness is near the house of the appellant. When this witness Criminal Appeal No. 99-DBA of 2008 -5- **** called upon SI Jaspal Singh to indicate why the appellant was being taken along, SI Jaspal Singh was reported to have told him that appellant had moved application against him (ASI Jaspal Singh) and that he was being taken along to effect a compromise. On the next day, this witness went over to Police Station, Dharamkot, where he was informed that appellant had been implicated on a charge of having been found in possession of contraband. This witness contacted DSP, Romana, who promised enquiry into the matter but nothing was done thereafter. He conceded that no application had been forwarded to the higher authorities. He also conceded that no resolution was passed by the village Panchayat pleading innocence of the appellant. The testimony of DW-1 Gurprit Kaur and DW-2 Hardayal Singh had been held to be unreliable by the learned Trial Judge for appropriate reasons. Insofar as the appeal preferred by the State of Punjab against the exoneration of Mehnga Singh is concerned, it deserves no interference. The only allegation in the context is that Mehnga Singh was the registered owner of the scooter, which was found in possession of the appellant and it (scooter) was found parked near the place the appellant was sitting over the gunny bags containing poppy straw. Apart from the fact that there is no allegation that gunny bags aforementioned had been or could have been transported by a two wheeler, there is a complete want of evidence to prove that Mehnga was in the know of the fact that vehicle afore- mentioned was being used by his son i.e. appellant for transportation Criminal Appeal No. 99-DBA of 2008 -6- **** of contraband. In the light thereof, we do not find any perversity in the finding recorded by the learned Trial Court qua Mehnga Singh. The finding is affirmed. The Criminal Appeal No. 99-DB of 2008 filed by State of Punjab against exoneration of Mehnga Singh is held to be devoid of merit. The same shall stand dismissed; while the Criminal Appeal NO. 1775-SB of 2007 filed by Surjit Singh against his conviction shall stand dismissed. ( S. D. ANAND ) JUDGE May 23, 2008 (ADARSH KUMAR GOEL) Pka JUDGE