Crl.A. No.2198-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.2198-SB of 2005 DATE OF DECISION: October 19, 2011 PAWAN KUMAR ...APPELLANT VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: MR. S.K. YADAV, ADVOCATE FOR THE APPELLANT. MR. T.S. SALANA, DAG, PUNJAB. M.JEYAPAUL, J.(ORAL) 1. The sole accused Pawan Kumar @ Pamma who was convicted under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'NDPS Act') has preferred the present appeal. 2. The brief case of the prosecution is that PW6 SI Dharam Pal and PW1 ASI Nasib Chand alongwith other police officials proceeded to Bilaspur road for performing patrolling duty. They spotted the accused coming on foot on the road side. He was apprehended on suspicion. Ram Kishan, Member Panchayat of village Kotla was associated by PW6 for the purpose of recovery of the contraband. PW5 DSP Varinder Singh Brar was requisitioned to assist the recovery. In the presence of PW5 a search was conducted. The accused was found possessing 2 kgs. of Charas in a polythene bag. Two samples weighing 10 gms. each were collected. The sample as well as the remaining quantity of contraband were separately parceled and sealed. The accused was arrested. Formal FIR was registered Crl.A. No.2198-SB of 2005 -2- based on the ruqqa sent by PW6. The sample was sent for examination. The chemical examiner's report would disclose that the sample sent for examination was nothing but Charas. 3. The accused has come out with a total denial of the incriminating circumstances spoken to by the material witnesses examined on the side of the prosecution. 4. The trial Court having relied upon the material witnesses examined on the side of the prosecution recorded conviction as against the accused. 5. Learned counsel appearing for the accused-appellant would submit that PW2 Ram Kishan, the alleged independent witness in this case was a stock witness even as per his own version. Therefore, the trial Court has rejected his testimony. No other independent witness was examined by the prosecution. The evidence of DW1 and DW2 would go to establish that HC Darshan Singh and HC Dharam Pal had not joined the patrolling party headed by PW6. It is his submission that the prosecution has come out with a false story as to the recovery of material object from the accused in the presence of HC Darshan Singh and HC Dharam Pal also. Therefore, he would submit that the accused is entitled to acquittal. 6. Learned counsel appearing for the State would submit that the trial Court having thoroughly analyzed the materials on record has rendered a verdict of conviction. 7. PW6 SI Dharam Pal and PW1 ASI Nasib Chand who were actually present at the time when the recovery was made from the accused have deposed cogently about the large quantity of 2 kgs. of Charas found in Crl.A. No.2198-SB of 2005 -3- possession of the accused. A search had been conducted in the presence of PW5 DSP Varinder Singh Brar. The chemical examiner's report would go to establish that the samples sent for examination were nothing but Charas. 8. Of course, the prosecution chose to examine PW2 Ram Kishan as independent witness in this case for the purpose of establishing the recovery. It is to be noted that PW1 and PW6 also have spoken to the recovery effected from the possession of the accused. Inasmuch as, PW2 Ram Kishan has admitted during the course of evidence that he was already cited in about 3 NDPS cases as witness for recovery, the trial Court has rightly rejected his testimony. In my considered view, the rejection of the testimony of PW2 does not affect the case of the prosecution as rightly held by the trial Court, inasmuch as, there is credible testimony available on record to establish the recovery of Charas from the possession of the accused. It may be a case where the investigating official had chosen to associate PW2 Ram Kishan who had already been cited as witness in about 3 NDPS cases as he was a Member Panchayat, but it is found that he was a stock witness. His testimony cannot be relied upon in the Court of law as already pointed out by me. Though the testimony of PW2 Ram Kishan was not trustworthy, the case of the prosecution does not fall to the ground. 9. Learned counsel appearing for the appellant would vehemently submit that no independent witness was examined on the side of the prosecution. It is true that the recovery was effected during the broad daylight by PW6 in the presence of PW1 and PW5. The Court cannot shut its eyes to the reality that public co-operation for the recovery of contraband is virtually nil. That was the reason why PW6 had to resort to the assistance Crl.A. No.2198-SB of 2005 -4- of a stock witness for the purpose of recovery of Charas from the possession of the accused. The law does not mandate that an independent witness would be associated for the purpose of recovery. But in case the official testimony available on record creates a doubt in the mind of the Court, then the Court will have to insist for independent version as to the recovery of the material object. But in this case, I do not entertain any doubt in the version of PW1, PW5 and PW6. 10. Of course, PW1 ASI Nasib Chand would depose that HC Darshan Singh and HC Dharam Pal were also associated for the purpose of patrolling. The fact remains that recovery of Charas from the possession of the accused was effected on 27.12.2002, but unfortunately, PW1 was examined before the trial Court only on 27.2.2004. In other words, PW1 was examined after about 1 year and 2 months. It is not as if PW1 deposed before the trial Court armed with any document showing the very presence of HC Darshan Singh and HC Dharam Pal during the course of recovery of the contraband from the possession of the accused. It is a matter of record as deposed by DW1 and DW2 that HC Darshan Singh and HC Dharam Pal had not accompanied PW1 and PW6 for the purpose of patrolling. But the testimony of DW2 would go to show that PW1 and PW6 had left for the purpose of such patrolling duty alongwith other police officials. PW1 might have referred to the names of HC Darshan Singh and HC Dharam Pal as police officials who also accompanied the patrolling party on account of oversight or due to lapse of time, but the fact remains that PW1 and PW6 had gone on patrolling duty, during which time recovery had been effected. Under such circumstances, the absence of HC Darshan Singh and HC Crl.A. No.2198-SB of 2005 -5- Dharam Pal during the course of recovery as per records produced by DW1 does not go to the root of the case. 11. In my considered view, the trial Court has rightly analyzed the material evidence on record and recorded conviction as against this accused. I do not find any reason to upset the verdict of the trial Court. 12. Therefore, the judgement of conviction and order of sentence recorded by the trial Court is confirmed and the appeal stands dismissed. October 19, 2011 (M.JEYAPAUL) Gulati JUDGE