Crl.Appeal No.395-DB of 1998 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision : 17.11.2008 Smt.Darshana .....Appellant versus State of Punjab .....Respondent CORAM : HON'BLE MR.JUSTICE UMA NATH SINGH. HON'BLE MRS.JUSTICE DAYA CHAUDHARY. Present : None for the appellant. Mr.Gurveen H.Singh, Addl. A.G. Punjab. -.- UMA NATH SINGH, J. No one appears on behalf of appellant, although this is an old Criminal Appeal of 1998. Appellant who was granted suspension of sentence way back on 21.9.1998, is in a position after her release from jail to pursue her appeal. She has also not made any request in writing for discharge of vakalatnama of her counsel on record, nor is there a request to provide assistance of a counsel from the Punjab State Legal Services Authority or an Amicus Curiae to be appoined by this Court. In this background, we proceed to dispose of this criminal appeal in terms of ratio of judgment of Hon'ble the Apex Court reported in 2008 (2) RCR (Crl.)- 133, Dharam Pal and others versus State of U.P., after scrutiny of appeal records with the assistance of learned Additional Advocate General, Punjab. This appeal arises out of a judgment dated 18.7.1998, passed in RBT/Sessions Case No.29 of 1997, holding accused-appellant guilty of offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the NDPS Act') and sentencing her to life Crl.Appeal No.395-DB of 1998 2 imprisonment with a fine of Rs.1.00 lac for recovery of 40 kgs. poppy husk after intensive interrogations in police custody, at her instance, from the premises alleged to be under her control. It appears from the appeal records that on 17.10.1994, a secret information was received by ASI Hardeep Singh, while he was posted as S.H.O., Police Station Mehtiana, District Hoshiarpur to the effect that accused-appellant Smt. Darshana was indulging in drug peddling by selling poppy husk and if a raid was conducted, the contraband could be recovered. ASI Hardeep Singh prepared a ruqa (Ex.PC) and sent it to Police Station Sadar, Hoshiarpur, for registration of a case. A formal FIR (Ex.PC/1) was recorded. Thereafter, ASI Hardeep Singh being accompanied by ASI Surinder Singh, Head Constable Sham Lal and some other police officials went towards village Bhungarni for conducting raid near a cremation ground within the area of village Bhungarni. He also met two independent witnesses there, namely, Balbir Singh and Sadhu Singh. They were joined in police party. ASI with the help of other police personnel conducted raids at the house of accused-appellant, who was present there. She was taken into custody on the basis of secret information and then interrogated. It appears from the prosecution version that during the course of interrogations, she made a disclosure statement about concealment of two bags of poppy husk each containing 20 kgs. contraband in a pucca bunker in a residential room of her house. As per further version of prosecution case, that place was closed with an iron plate and the accused-appellant alone had knowledge about the place, and she alone could get the recovery of contraband effected. Ex.PD, her disclosure statement was reduced into writing and Crl.Appeal No.395-DB of 1998 3 thumb impression was also taken. Ex.PD was attested by ASI Surinder Singh and independent witnesses, Sadhu Singh and Balbir Singh. This also appears from prosecution version that an option was given to appellant asking her as to whether she wanted to be searched before a Magistrate or a Gazetted Officer in terms of Section 50 of the NDPS Act. Finally, two bags of poppy husk were recovered from the place disclosed by accused- appellant. On weighing, each bag was found to contain 20 kgs. poppy husk. Both bags were sealed with seal bearing impression 'HS' and the seal after use was given to ASI Surinder Singh. The bags with contraband item were taken into possession vide Ex.PE. Thereafter, ASI sent a wireless message to DSP Mohinder Singh Chahal, who came to the spot. ASI produced accused Smt. Darshana and bags of poppy husk before the DSP for verification. DSP verified the case property and broke open the seal of bags and then took samples of 250 grams of poppy husk from each bag, which were kept in small packets. Thereafter, he sealed the packets (potlies) containing samples and bags containing the residue quantities of contraband with his seal impression `MS'. A sample of seal impression was also prepared. Thereafter, DSP Chahal handed over accused Smt.Darshana, both the packets of samples, sealed bags containing residue quantities of contraband, and sample seal impression of ASI Hardeep Singh vide memo (Ex.PF) to ASI Hardeep Singh, which were attested by the aforesaid witnesses. A rough site plan with correct marginal notes Ex.PG of place of recovery was prepared. On return to Police Station, ASI Hardeep Singh deposited the case property with seals intact with Moharir Head Constable and accused Smt. Darshana was put inside lock up. Finally, all incriminating Crl.Appeal No.395-DB of 1998 4 articles were sent to Chemical Examiner, Government of Punjab, Chandigarh, on 20.10.1994 for examination. Vide report of Deputy Chemical Examiner (Ex.PJ), presence of meconic acid and morphine was found, which are the relevant ingredients of contraband poppy husk. Thus, on receipt of chemical examination report, a challan was laid against accused Smt.Darshana. It appears that the said challan was filed before Additional Chief Judicial Magistrate, Hoshiarpur, who committed this case to the Court of Sessions Judge, Hoshiarpur. On further assignment, it came to the Court of learned Special Judge. During the course of trial, prosecution side examined six witnesses, namely, Head Constable Gurmail Singh (PW1), Constable Gurpal Singh (PW2), SI Amarjit Singh (PW3), ASI Hardeep Singh (PW4), Sh.M.S.Chahal, DSP (PW5), and Surinder Singh (PW6). Accused appellant in her statement under Section 313 Cr.P.C., denied the charge and pleaded innocence and false implication. We have heard learned counsel for State and examined the records. On a careful scrutiny of case records, we notice that ASI Hardeep Singh (PW4) was posted as SHO, P.S. Mehtiana, on 17.10.1994. He received a secret information in police station against accused-appellant herein, that she was indulging in drug peddling by selling poppy husk and if a raid was conducted, recovery of contrabands could be effected from her place. He sent a ruqa Ex.PC, to police station Sadar, for registration of case. FIR (Ex.PC/1) was registered by SI Amarjit Singh. It has come in his evidence that cases of P.S.Mahtiana were registered in P.S. Sadar, Hoshiarpur. Thereafter, ASI Hardeep Singh (PW4) being accompanied by Crl.Appeal No.395-DB of 1998 5 ASI Surinder Singh (PW6), Head Constable Sham Lal (not examined) and other police personnel proceeded towards village Bhungarni for raids, near cremation ground of that area. In the area of village Bhungarni, two independent witnesses Balbir Singh and Sadhu Singh (not examined), met the police party and joined it. Police party then raided the house of accused Darshana, who was present inside her house. It appears in the examination- in-Chief of ASI Hardeep Singh (PW4) that only on the basis of secret information, accused-appellant Darshana was taken into custody and was interrogated. As per his further testimony, accused-appellant made a statement that she had kept concealed and buried two bags of poppy husk of 20 Kgs. each in a bunker in a residential room of her house which is closed with an iron plate and she alone had information about that concealment and could get the contraband recovered. Her statement (Ex.PD) was recorded. She put her thumb impression thereon which was attested by witnesses Balbir Singh, Sadhu Singh and ASI Surinder Singh. This also appears from the testimony of witness Hardeep Singh that she was given an option prior to interrogation asking her as to whether she wanted to be searched before a Magistrate or a Gazetted Officer. She reposed confidence in ASI Hardeep Singh. Thereafter, two gunny bags of contraband poppy husk were recovered from the place already disclosed. On weighment, each gunny bag was found to contain 20 kgs. of poppy husk. These gunny bags were sealed with seal impression 'HS'. These bags were then taken into possession vide Ex.PE, which was attested by PWs. Witness Hardeep Singh (PW4) sent a wireless message to Mohinder Singh Chahal, DSP, who came to the spot, and then sent a wireless message to Reserve Inspector, Police Line, Crl.Appeal No.395-DB of 1998 6 Hoshiarpur, for sending a lady constable. Accused Smt. Darshana was produced with case property before DSP Chahal, who verified the same and also broke open the seal of bags. He took a sample of 250 grams each from both the bags. Samples were then made into two separate small packets of parcel and the residue quantities of contraband were kept in the same gunny bags. DSP Chahal returned the seal after use and also prepared recovery memo (Ex.PF), which was attested by independent witnesses Sadhu Singh and Balbir Singh. Thereafter, accused Smt. Darshana and case property were handed over to ASI Hardeep Singh. ASI Hardeep Singh also recorded the statement of DSP and prepared a rough site plan (Ex.PG) with correct marginal notes on spot. Having returned to police station, he deposited the case property with seals intact to MHC. A lady Constable took personal search of accused-appellant Smt.Darshana, but nothing was found. Samples were sent to Chemical Examiner vide Ex.PH and report of the same was received vide Ex.PJ. In his cross-examinations, this witness has stated that accused Smt.Darshana was known to him from before. Earlier also, a case under the NDPS Act was registered against her. He did not recollect the outcome of that case. This witness admitted that no lady constable was associated at the time of raiding the house of accused-appellant and taking her in custody. He also admitted that accused-appellant Smt. Darshana was searched inside the police station after calling lady Constables Asha Rani and Raj Rani. This witness has further admitted that in the list of witnesses, he did not include the names of those lady Constables. He furthermore admitted that he did not prepare a separate memo regarding the search of house of accused- Crl.Appeal No.395-DB of 1998 7 appellant. DSP Chahal had not done any writing work and dictated the memo to ASI Surinder Singh. DSP Chahal also kept the seal samples on a piece of paper. DSP Chahal (PW5) admitted in his cross-examinations that the place of recovery is a thoroughfare and he did not join any public witness at the time of taking samples. Seal samples were kept by him in blank paper. ASI Surinder Singh (PW6) in his examination-in-chief stated that accused Smt. Darshana disclosed that she had kept concealed two bags of poppy husk containing 20 kgs. each inside her residence under a cot where a bunker is made and that she could get the same recovered. This witness also stated that DSP Chahal kept sample seals and filled two FSL forms on the spot. He further stated that he cannot tell as to who was the owner of that house from where the alleged recovery was effected and the house only consisted of two rooms. Though several ladies of the locality of accused Smt. Darshana were present, but none of them was associated with recovery and further accused-appellant Darshana alone was present in her house when the police party had visited there. ASI Hardeep Singh could not answer as to whether the secret information was sent to a senior officer. In her statement under Section 313 Cr.P.C., accused-appellant Smt. Darhsana pleaded innocence and false implication. She denied that she had made any disclosure statement to police. She was not put across a question as to whether any other case under NDPS Act, had been registered against her, as deposed by ASI Hardeep Singh (PW4). Despite the aforesaid infirmities, learned Sessions Judge has recorded conviction of accused-appellant Darshana by holding that association of independent witness with investigation was not necessary and Crl.Appeal No.395-DB of 1998 8 if independent witnesses associated with police were not produced in witness box, then accused should have produced them in her defence. He has also held that this was not necessary, in his opinion, to hand over the seal to independent witness. Learned Sessions Judge also held that the recoveries were made from the house of accused. These findings of learned Sessions Judge appear to be perverse in so far as he has ignored the procedural safeguards required to protect the rights of accused before recording conviction and sentence. Absence of an independent witness despite being available and deletion of name of such witness in list of witnesses certainly create doubt about the bonafide of Investigating Agency. Moreover, this is not proved that the accused-appellant herself was the owner of premises wherefrom the recovery was effected. Besides, the learned trial Judge has put the burden on the accused to prove that she was not the owner of the house and has only placed reliance on the testimony of Investigating Officer and other police officers without testing the veracity of their evidence, in the light of procedural infirmities. Even the seal used on the articles was not handed over to any independent witness. The accused was not put across a question in the Court to show that she was facing trial in another case under the NDPS Act so as to establish that she was a habitual drug paddler. That apart, the disclosure statement was recorded when accused-appellant Darshana was in police custody and though her search was taken in presence of lady police personnel but they were not cited as witnesses. It appears from the analysis of all the aforesaid prosecution evidence as also the careful reading of the judgment of trial Court that Crl.Appeal No.395-DB of 1998 9 accused-appellant has been convicted under Section 15 of the NDPS Act and sentenced to life imprisonment with a fine of Rs.1.00 lac, without proper appreciation of evidence. It seems that learned Special Judge has rather shifted the burden on accused to establish that she was not the owner of premises in question and also that she was not in conscious possession of contraband which should have been proved by the prosecution. Moreover, DSP Chahal has admitted that the place wherefrom the recovery was effected, was a thoroughfare and he also did not associate an independent witness with the proceedings of search and seizure. The DSP has categorically admitted that he was not aware as to who was the owner of house in question, wherefrom the contraband was recovered. It is also noticed from the testimony of DSP that he retained his seal after use. This is further noticed that no senior police officer was informed about the receipt of secret information, which is mandatory, and only a ruqa was sent to police station for recording the FIR. As per evidence of ASI Hardeep Singh (PW4), DSP Chahal was informed from the spot after recovery of contraband items. This has also come in the evidence of PW-4 that the personal search of accused-appellant, a lady, was conducted inside the police station by two lady Constables, but since they were given up and not produced in the witness box, it is not clear as to whether the search was actually conducted in the presence of lady police personnel. The accused appellant has not only been convicted on the basis of such evidence which does not inspire confidence of Court, but also visited with the sentence of life imprisonment only for keeping a non-commercial quantity of 40 kgs. poppy husk which was never provided under the statute, before and after the Crl.Appeal No.395-DB of 1998 10 amendment incorporating classifications like commercial and small quantities. In view of all the aforesaid analysis of evidence, we set-aside the impugned judgment and allow the present appeal. Bail bonds of accused-appellant Darshana, who was granted suspension of sentence vide the order dated 21.9.1998, shall stand discharged. Thus, this Criminal Appeal No.395-DB of 2008 is allowed. (UMA NATH SINGH) JUDGE 17-11-2008 (DAYA CHAUDHARY) *mohinder JUDGE Whether this judgment be referred to Reporter or not? YES/NO