Crl.A. No.784-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.784-SB of 2001 DATE OF DECISION: November 29, 2011 JASPAL SINGH AND OTHERS ...APPELLANTS VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. JASPREET SINGH, ADVOCATE FOR THE APPELLANTS. MR. T.S. SALANA, DAG, PUNJAB. M.JEYAPAUL, J.(ORAL) 1. Accused Jaspal Singh @ Jagga, Dharminder Singh @ Kaka and Bikkar Singh were convicted for the offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'NDPS Act'). They have challenged the judgement of conviction and sentence passed by the trial Court. 2. Accused Jaspal Singh had died after filing the appeal. Therefore, the appeal qua accused-appellant Jaspal Singh abated. 3. The brief case of the prosecution is that on 14.6.1998, PW6 S.I. Baljit Singh who was the Station House Officer of Police Station Sadar Mansa proceeded alongwith PW2 S.I. Joga Singh and other police officials for the purpose of discharging patrolling duty. DW4 Mithu Singh was also joined in the police party. On that day at about 6.30 a.m. a truck bearing registration No.RJ31J-1141 came from the side of village Bruj Harike. On suspicion the truck was stopped. Accused Jaspal Singh who was found Crl.A. No.784-SB of 2001 -2- driving the said truck was apprehended. The other accused Dharminder Singh and Bikkar Singh having got down from the vehicle started running. They were also apprehended. As per the choice and preference of the accused, PW4 DSP Iqbal Singh was summoned to the spot. He arrived at the spot at about 8.30 a.m. In his presence a search of the truck was conducted. Six bags of poppy husk were recovered from the truck. A sample of 100 gms. from each of the bags was drawn separately and the remaining bulk quantity weighed 36 kgs. The samples as well as the bulk quantity were separately parceled and sealed with the seal of PW4 and PW6. The accused as well as the case property was produced before the Magistrate. On the basis of ruqqa, formal FIR was registered. 4. On side of the defence, 6 witnesses were examined. DW2 MHC Harpal Singh speaks to the fact that the case property remained with PW6 SI Baljit Singh, the SHO of the Police Station. He also spoke to the fact that yet another case in FIR No.43 of 14.6.1998, was also registered. The said FIR was marked as Ex.DC. Mithu Singh who was allegedly associated as independent witness by PW6 was examined as DW4 by the defence. He had spoken to the fact that there was no recovery made in his presence. 5. The trial Court having relied upon the material evidence on record returned a verdict of conviction as against all these accused. 6. I have heard the submissions made by learned counsel appearing for the appellants as well as learned DAG, Punjab appearing for the State. 7. PW6 SI Baljit Singh who headed the raiding party would speak Crl.A. No.784-SB of 2001 -3- to the fact that a search was conducted in the presence of PW4 DSP Iqbal Singh. As rightly pointed out by learned DAG, Punjab appearing for the State that Section 50 of the NDPS Act need not be complied with in this case, inasmuch as, the material search was conducted only on the truck and not on the person of the accused. Of course, after the contraband was recovered from the truck on search, a routine personal search was conducted and some cash was recovered from the accused. But the question is whether the search was conducted by PW6 in the presence of PW4 DSP Iqbal Singh, as projected by PW6. If the presence of DSP Iqbal Singh is not established by the prosecution, then the search allegedly conducted by PW6 is shrouded in controversy. PW4 DSP Iqbal Singh has deposed that he having received a message from PW6 at about 7.30 a.m. reached the spot at 8.30 a.m. on 14.6.1998. He would depose very assertively that he remained alongwith the police party at the spot upto 5.00 p.m. 8. DW2 MHC Harpal Singh has produced FIR No.43 of 14.6.1998 (Ex.DC) registered separately in the said police station under Section 15 of the NDPS Act. On a careful perusal of Ex.DC, it is found that there is a specific reference therein that the contraband was recovered by the investigating officer concerned in the very presence of PW4 DSP Iqbal Singh at about 2.50 p.m. It is on record that the scene of occurrence relating to the case in FIR No.43 of 14.6.1998 was located about 6 miles West of Sadar Mansa Police Station and the scene of occurrence of crime relating to present FIR No.42 of 14.6.1998 was located at about 20 kms. North of the said police station. If at all PW4 was present at the time of recovery that was effected in a narcotic drugs case relating to FIR No.43 of 14.6.1998 at Crl.A. No.784-SB of 2001 -4- about 2.50 p.m., he would not have made his presence in connection with the recovery made in this case. Therefore, the case of the prosecution that search was conducted very much in the presence of PW4 DSP Iqbal Singh is found to be highly doubtful. 9. On a careful perusal of evidence of PW6 SI Baljit Singh, it is found that he had retained the entire case property including the samples with him inspite of the fact that there was a specific order passed by the learned Magistrate on the application submitted by PW6 that the case property should be deposited in malkhana. PW6 has come out with a lame excuse that there was no space available in the malkhana and therefore, he kept the case property with himself. To substantiate such a plea set up by PW6, there is no evidence on record. DW2 Harpal Singh was the MHC, Head Constable Incharge of the said malkhana. Infact, he should have been examined to speak to the fact that there was no space available to keep the case property relating to this case in the malkhana. But quite unfortunately, he was examined by the defence as DW2. DW2 also has deposed that the case property was kept in the personal custody of PW6 SI Baljit Singh. To keep the case property in personal custody, PW6 need not maintain any record at all. There should be a record to establish the movement of the bulk quantity and the samples of the narcotic drugs. It is also to be noted that PW6 never cared to prepare Form 29 at the spot. All the above facts and circumstances would go to show that there had been every chance for fabricating the samples and the material objects. 10. Mithu Singh who was shown as the only independent witness in this case also deserted the case of the prosecution. Having aligned with Crl.A. No.784-SB of 2001 -5- the accused he had deposed when he was examined as DW4 by the accused that there was no recovery made in his presence. He has gone to the extent of challenging his signatures in the recovery memos prepared by PW6. No effort had been made by the trial Court to send his disputed signatures for comparison to haul up DW4 for perjury. At any rate, the case of the prosecution has not been established beyond reasonable doubt. The doubt writ large in the case of the prosecution is given to accused. Therefore, the accused are entitled to acquittal. 11. In view of the above, the judgement of conviction and order of sentence passed by the trial Court as against the accused-appellants is set aside. The accused Dharminder Singh @ Kaka Singh and Bikkar Singh are acquitted of the charge under Section 15 of the NDPS Act and as a result, their appeal is allowed. The appeal qua accused Jaspal Singh abated. November 29, 2011 (M.JEYAPAUL) Gulati JUDGE