Criminal Appeal No. 800-SB of 2000 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Criminal Appeal No. 800-SB of 2000 Date of decision : January 11, 2008 Darshan Ram alias Kala Vs. State of Punjab CORAM: Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia. Present: Ms. Promila Nain, Advocate, for the appellant. Mr. Mehardeep Singh, AAG, Punjab. K.S. Ahluwalia, J. (Oral) The instant appeal has been preferred by Darshan Ram alias Kala, son of Chura Ram, resident of village Bhungarni, District Hoshiarpur. He stands convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act ( hereinafter to be referred as `the Act') by the Court of Special Judge, Hoshiarpur and sentenced to undergo RI for ten years and to pay a fine of Rs.1 lac, in default of payment of which to suffer further RI for six months. He was prosecuted in case FIR No. 137 dated 25-7-1997 registered at police station Sadar Hoshiarpur. The FIR was registered at the instance of ASI Gurnam Dass, who stated that on 25-7-1997 he along with his companion Criminal Appeal No. 800-SB of 2000 2 officials was present on the Bus Stand of village Fuglana when a special informant relayed an information that Darshan Ram @ Kala indulges in the sale/purchase of poppy husk and if a raid is conducted, heavy quantity of contraband can be recovered. This information was reduced into writing and the same was sent to the police station for registration of the FIR. Thereafter ASI Gurnam Dass proceeded towards the spot. The appellant is said to have made a disclosure statement ( Exhibit PA) to the effect that he had kept concealed three bags of poppy husk in the pits of shalmlat land near a peepal tree. In pursuance of the said disclosure statement, 3 bags of poppy husk were recovered and the same were taken into possession vide recovery memo. Exhibit PB. The memo. Exhibit PC regarding handing over of the case property shows that each bag weighed 34 Kgs. After completion of investigation, report under Section 173 Cr.P.C. was presented. The appellant was charged under Section 15 of the Act, to which he pleaded not-guilty and was put to trial. Prosecution examined 5 witnesses in all: PW 1 MHC Vijay Singh has stated that he was posted as Moharrir Head Constable and ASI Gurnam Dass had deposited three bags of poppy husk along with three samples of 250 grams each, bearing seal `SK'. He further stated that on 7-8-1997 i.e. after more than 12 days the samples were handed over to Constable Shaminder Criminal Appeal No. 800-SB of 2000 3 Singh for onward deposit with the Chemical Examiner. In cross- examination, he has admitted that the case property and the samples were not handed over to the SHO and that the latter had not sealed the case property with his own seal. PW 2 Constable Shaminder Singh deposed that he took the sample to the Chemical Examiner. He has also given narration of the facts leading to receipt of secret information. PW 3 Sushil Kumar DSP was the gazetted officer, in whose presence the recovery was effected. He stated that he had prepared the sample seals and filled two CFSL forms at the spot and thereafter handed over the case property, CFSL forms and the sample seal to ASI Gurnam Dass. PW 4 HC Sardara Singh has corroborated the details regarding the proceedings carried out by the raiding party. PW 5 ASI Gurnam Dass is the Investigating Officer, details of whose investigation have already been stated in the preceding paras. After closure of the prosecution evidence, the accused/appellant was examined in terms of Section 313 Cr.P.C. He pleaded innocence and stated that he was falsely implicated in this case after being picked up by the police from the court complex , where he had come to meet his wife Gurdev Kaur, who was in police custody. In defence, the appellant examined two witnesses: Criminal Appeal No. 800-SB of 2000 4 DW1 Mota Singh has stated that Gurdev Kaur was involved in a case under the NDPS Act and the appellant had come to the court complex to meet his wife where she was being produced . The appellant was arrested from the court complex and no recovery had been effected from him. DW 2 Harbans Lal, Clerk, Judicial Record Room, Hoshiapur has testified that on 25-7-2007 Gurdev Kaur, wife of the appellant was remanded by the Court and photo copyof the remand paper is Exhibit DA. Smt. Promilla Nain appearing for the appellant has argued that in this case as admitted by PW1 MHC Vijay Singh, case property was not handed over to the SHO and the latter had not appended his seal thereon. She has further stated that PW 2 Constable Shaminder Singh has admitted that the accused was told at the spot that there was some secret information, but no grounds of arrest were prepared. She has further stated that PW 2 has admitted that no independent witness was associated on the ground that none was available. According to her, this is improbable as the witness has further admitted that the place of recovery was a public place and it was accessible to all and sundry. She has further brought to the notice of this Court that even though secret information was received at bus stand, but still no independent witness was joined despite the fact that there were various shops. She has taken me through the testimony of PW 3 DSP Sushil Criminal Appeal No. 800-SB of 2000 5 Kumar, who has admitted in cross-examination that the place of recovery is a thoroughfare and any one could visit that place. She has further brought to my notice that ASI Gurnam Dass ( PW5) has stated that he tried to join some independent witness but none was available. She has read out the cross-examination of this witness to the effect that it was correct that no seal was put on the bags Exhibits P1 to P3 and further that the chit pasted on the bags was fresh one. This witness has further admitted that the chits pasted on the bags do not bear the particulars of the case. After going through the evidence, once it has come in evidence that the place of recovery was a thoroughfare and accessible to all, in that case ASI Gurnam Dass was already having a secret information could have spotted the contraband at the place of recovery and there was no need for recording disclosure statement Exhibit PA. It seems that Exhibit PA is a crude padding and handiwork of the Investigating Officer. That, if the bags were stacked on the land which was accessible to every one, the Investigating Officer ought to have made efforts to find out from where these bags came, who transported and placed them in the fields. Therefore, it cannot be said that the bags, which were lying in a land, which is a thoroughfare, open and accessible to all and sundry, the appellant had a special knowledge of the same or was in conscious possession thereof. Hon'ble the Apex Court in a judgment rendered in State of Punjab Vs. Balkar Singh, 2004 SCC Criminal Appeal No. 800-SB of 2000 6 (Crl.) 838 has made observations, which are significant to the extent that the Investigating Officer in order to establish the possession of the accused must make all out efforts to gather evidence to connect the accused with the recovery. Where the recovery is made from a shamlat land, it is all the more important to gather evidence to show that the bags placed at such place belonged only to the appellant and to none else. From the statement read out under Section 313 Cr.P.C., it has no where been put to appellant that he was in conscious possession of the same. From the totality of circumstances, non-joining of independent witness coupled with the facts that the seal was not handed over to any independent witness, the sample was sent to the Chemical Examiner after more than 12 days and fresh chits were found pasted on the bags when the case property was produced in the Court, make the prosecution case doubtful. Mr. Mehardeep Singh, learned Assistant Advocate General appearing for the State has made various efforts to counter the arguments of counsel for the appellant, I am unable to accept his argument that lapses the part of the Investigating Officer should be overlooked because the cases under the Act are on the rise. Where minimum ten years' imprisonment has been prescribed and the sentence is stringent, prosecution should be put to strict proof. In view of the foregoing discussion, the present appeal Criminal Appeal No. 800-SB of 2000 7 succeeds, benefit of doubt is extended to the appellant, the conviction and sentence awarded by the Court below is set-aside and he is acquitted of the charge. [Kanwaljit Singh Ahluwalia] Judge January 11, 2008. `ask'