Crl.A. No.280-DB of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Crl.A. No.280-DB of 2007 DATE OF DECISION: May 16, 2011 GURBACHAN SINGH ...APPELLANT VERSUS STATE OF PUNJAB ...RESPONDENT 2. Crl.A. No.309-DB of 2007 SUKHPIAR SINGH ...APPELLANT VERSUS STATE OF PUNJAB ...RESPONDENT 3. Crl.A. No.391-DB of 2007 JAGMOHAN SINGH ...APPELLANT VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. H.S. RAKHRA, ADVOCATE AMICUS CURAIE, FOR THE APPELLANT IN CRL.A. NO.280-DB OF 2007. MR. D.N. GANERIWALA, ADVOCATE FOR THE APPELLANT IN CRL.A. NO.309-DB OF 2007. MR. NARINDER SINGH, ADVOCATE FOR THE APPELLANT IN CRL.A. NO.391-DB OF 2007. MS. MANJARI NEHRU KAUL, ADDL.A.G., PUNJAB. M. JEYAPAUL, J. 1. This common judgement would dispose of Crl.A. No.280-DB Crl.A. No.280-DB of 2007 -2- of 2007, Crl.A. No.309-DB of 2007 and Crl.A. No.391-DB of 2007. Accused Gurbachan Singh, Jagmohan Singh and Sukhpiar Singh who faced trial were convicted for offence under Section 18(B) of the Narcotic Drugs & Pschyotropic Substances Act (for short 'the Act') and were sentenced to undergo 12 years R.I. and to pay a fine of `1000/- each and in default to undergo a further period of 2 years R.I. each. Accused Gurbachan Singh was also convicted for offence under Section 419 of IPC and was sentenced to undergo 2 years R.I. Accused Jagmohan Singh was also convicted under Section 419 read with Section 120-B IPC and was sentenced to undergo 1½ years R.I. Each one of them has preferred separately the aforesaid appeals. 2. The case in brief of the prosecution is as follows:- On 22.10.2004, at 4.40 p.m., PW5 Inspector Balwinder Singh who was Station House Officer of Police Station Sangat proceeded alongwith other police officials. Near bridge of drain Doomwali an independent witness Nathu Singh also was associated by the police party. The car which came from the side of Dabwali was stopped by the police party headed by PW5 Inspector Balwinder Singh. Three occupants of the car tried to run away. They were apprehended at the spot on the basis of suspicion. Accused Sukhpiar Singh was the driver of the car. Accused Gurmit Singh whose real name was Gurbachan Singh was sitting besides the driver in the front seat. Accused Jagmohan Singh was sitting on the back seat of the car bearing registration No.PB-05-H-4156. A bag was lying under the feet of Gurbachan Singh and the same was in his possession. PW5 suspected that intoxicant was inside the bag. As per the request made Crl.A. No.280-DB of 2007 -3- by the accused PW4 DSP Sukhpal Singh was sent for. In his presence a search was made. A bag found under the feet of accused Gurbachan Singh was opened and it was found that the bag contained opium wrapped in a glazed paper. Two samples of opium of 20 gms. each were drawn from the parcel. The remaining content weighed 9 kgs.960 gms. The bulk parcel and two samples of 20 gms. each were converted into parcel. PW5 put his seal impression 'DS'. The specimen seal impression slip (Ex.P1) also was prepared. The case property alongwith the car and R.C. of the car were taken into possession vide memo Ex.PE. The independent witness Nathu Singh and ASI Gurdas Singh also subscribed their thumb mark in the memo Ex.PE. Based on the ruqqa Ex.PF sent by PW5, a formal FIR (Ex.PF/1) was registered by ASI Baldev Singh. PW5 also prepared rough site plan (Ex.PG). A sum of `1200/- was recovered from accused Gurbachan Singh, a sum of `145/- was recovered from accused Jagmohan Singh and `155/- and a mobile phone and driving licence were recovered from accused Sukhpiar Singh under search memo Ex.PH. Having disclosed the grounds of arrest, all the three accused were arrested by PW5. The accused were produced alongwith the case property before the Judicial Magistrate on 23.10.2004. On the direction of Judicial Magistrate, a sample of 20 gms. was drawn from the bulk parcel in Court and the bulk parcel and sample were sealed bearing impression 'JKD'. A specimen impression of seal used was also prepared. The case property except the two samples were deposited in the NDPS godown as per the directions of the Court. Two sample parcels were sent to the Chemical Examiner for examination. The Crl.A. No.280-DB of 2007 -4- Chemical examiner returned a finding that the sample contained opium. Having completed the investigation, PW5 laid final report as against three accused. 3. PW1 Krishan Singh was the Constable who handed over two sample parcels to the FSL. PW2 Jagtar Singh was the Clerk attached to office of Regional Transport Officer, Bathinda. He has been examined to establish the driving licence issued to accused Sukhpiar Singh. PW3 Ravinder Singh was the Clerk attached to the office of District Transport Officer. He proved the fact that the Indica car bearing registration No.PB05- H-4156 recovered in this case stood in the name of Dr.H.S. Dhulla. PW4 Sukhpal Singh, DSP, Bathinda spoke about his association in his capacity as Gazetted officer in the matter of search conducted by PW5. PW6 HC Major Singh spoke about yet another case bearing FIR No.20 dated 7.3.2004, registered under Section 15/61/85 of NDPS Act on the basis of recovery of 14 bags of poppy husk in a tractor-trolley bearing registration No.PB-30- 8024 by PW5 Balwinder Singh. PW7 Bachittar Singh is none other than the real brother of accused Gurbachan Singh. The prosecution establishes through PW7 that the real name of Gurmit Singh was Gurbachan Singh. PW8 Bajender Singh Rawat, Manager, Mohindra & Mohindra speaks about the fact that the car owned by Dr.H.S. Dhulla was sold with the financial credit facility from Mohindra & Mohindra Financial Services Ltd. to accused Sukhpiar Singh who took possession of the car on 25.6.2003 through the financier. 4. The accused were questioned under Section 313 Cr.P.C. Crl.A. No.280-DB of 2007 -5- Accused Gurbachan Singh responded saying that he was innocent. He had no connection with the recovery allegedly made from the car. The present case was planted upon him by PW5 Inspector Balwinder Singh as he had previous enmity with him. He had also registered a case earlier as against him when he was posted at Police Station Malout as Assistant Sub Inspector of Police. Inspector Balwinder Singh was known to him previously. He forcibly obtained his signatures on blank papers. He had no relationship with the co-accused. He never disclosed his name as Gurmit Singh before Inspector Balwinder Singh, PW5. 5. Accused Jagmohan Singh has stated that he had no relationship with the co-accused. He was running a pipe store in the name and style of Zimidara Pipe Store in Mandi Badni Kalan. On 21.10.2004, he had gone to Mandi Dabwali in connection with his business. He came to Dabwali- Bathinda crossing and sought a lift from Indica car bearing registration No.PB05H-4156 and boarded the vehicle driven by accused Sukhpiar Singh who was not known to him. He also paid a sum of `50/- to Sukhpiar Singh. When he boarded the car, he found that one more person was already sitting by the side of driver in the front seat. The police stopped the vehicle and the accused were taken to police station for questioning. He was falsely implicated in this case, even though nothing incriminating was recovered from his possession. 6. Accused Sukhpiar Singh would state that he was a taxi driver at Guru Teg Bahadur Taxi Stand at Bathinda. He was coming back to Bathinda. One person made a request to give lift for going to Bathinda. Crl.A. No.280-DB of 2007 -6- Accused Sukhpiar Singh obliged him and gave him lift. The said person had a bag in his possession. The other person took the lift from him at Dabwali for going to Bathinda. In the area of Police Station Sangat his car was stopped and the person who took the lift from him was checked. Accused Sukhpiar Singh had no knowledge about the alleged article in possession of the person who took the lift. He was falsely challaned alongwith other persons. He had nothing to do with the alleged recovery. He had no relationship with the accused. He was falsely implicated in this case, even though nothing was recovered from his possession. 7. On the side of the defence, four witnesses were examined. DW1 was examined by Jagmohan Singh to establish the fact that Jagmohan Singh was running a business in partnership with DW1. DW1 also spoke about the fact that accused Jagmohan Singh left for Dabwali in connection with the partnership business. DW2 HC Sarban Singh was examined to mark the records relating to the previous and subsequent cases registered on 19.10.2004, 22.10.2004 and 23.10.2004, just prior and subsequent to the registration of the present case. DW3 Charanjit Singh, Municipal Councillor, Bathinda was examined to speak about the conduct of accused Sukhpiar Singh. DW4 Ranjit Singh was the President of Taxi Operator Union, Bathinda. He also certified the good conduct of accused Sukhpiar Singh. 8. The trial Court having relied upon the evidence of PW4 and PW5, in the background of the recovery effected and the FSL report, returned a finding that all the three accused committed the offence as stated Crl.A. No.280-DB of 2007 -7- supra. 9. Sh. H.S. Rakhra, Advocate originally appeared for accused Gurbachan Singh. But when the case was taken up for final hearing, he submitted before us that the case file was taken away by accused Gurbachan Singh on the plea that he had a proposal to engage a senior counsel to effectively argue his case. The fact remains that none had put in appearance in place of learned counsel Sh. H.S.Rakhra. As the learned counsel Sh. H.S.Rakhra was well conversant with the appeal preferred by Gurbachan Singh, inasmuch as he was the counsel who in fact preferred Crl.A. No.280- DB of 2007 on behalf of Gurbachan Singh, he was appointed as Amicus Curaie to assist this Court. 10. We have heard the submissions made by the Amicus Curaie Sh.H.S.Rakhra. He would vehemently contend that PW5, the Investigating Officer in this case has foisted the present case as against on accused Gurbachan Singh. It was just a post recovery process initiated as against the innocent accused. No independent witness was examined to establish the recovery allegedly made from the car. Form 29 was not prepared at the spot. If at all 10 kgs. of opium was kept in a car, the occupants of the car would have definitely objected to it as the smell would have become intolerable. Therefore, it is his submission that the Gurbachan Singh is entitled to acquittal. Learned counsel appearing for accused Jagmohan Singh and Sukhpiar Singh would submit that the prosecution has failed to establish that those two accused had conscious possession of the contraband. No knowledge of contraband in the bag kept under the feet of Crl.A. No.280-DB of 2007 -8- accused Gurbachan Singh was established by the prosecution. There was no material to establish that those two accused had wantonly suppressed the real name of accused Gurbachan Singh. Accused Gurbachan Singh and Sukhpiar Singh did know the real name and address of Gurbachan Singh prior to the occurrence. Therefore, they would submit that accused Jagmohan Singh and Sukhpiar Singh are entitled to acquittal. 11. Learned Addl.A.G., Punjab appearing for the State would submit that the enquiry report (Ex.PW2/A) would go to establish that there was a wanton suppression of the name and address of Gurbachan Singh by all the three accused. If at all Jagmohan Singh and Sukhpiar Singh had no knowledge of the contraband found under the feet of accused Gurbachan Singh, they would not have fled away from the scene of occurrence, the moment the police party stopped the vehicle and confronted them. The evidence of PW4 and PW5, in the background of the recovery of the contraband and the FSL report clinchingly establishes the conscious possession of the contraband by A1 to A3. Therefore, the trial Court verdict does not call for interference. 12. To rope in an accused under Section 18 of the NDPS Act, the prosecution is bound to establish beyond reasonable doubt that the accused was in exclusive and conscious possession of the contraband. In order to sustain the conviction for the offence of illegal possession of the contraband, the element of physical control over the contraband and the animus intent with which the control was exercised shall be established by the prosecution. It is conscious possession that is contemplated by the penal Crl.A. No.280-DB of 2007 -9- provision. 13. PW4 Sukhpal Singh, DSP, Bathinda who came up on request made by PW5 Inspector Balwinder Singh for the purpose of overseeing the search of the car would categorically speak to the fact that the bag containing the contraband was lying under the feet of accused Gurbachan Singh. The bag was not lying in a concealed place, rather the same was in the exclusive possession of accused Gurbachan Singh. PW5 Inspector Balwinder Singh also would candidly admit that a bag was lying near accused Gurbachan Singh who had taken his seat by the side of the driver and the same was in his exclusive possession. 14. PW4 and PW5 have deposed before the Court that the bag which was in the exclusive possession of accused Gurbachan Singh was opened and the same contained opium which weighed 10 kgs. Two samples have been duly drawn from the bulk quantity and the same were sent for chemical examination. The Chemical Examiner's report would indicate that the sample contained opium. 15. It is an admitted case that accused Gurbachan Singh was already involved in a case under NDPS Act. There is no reason to reject the evidence of PW4 and PW5 who have cogently spoken to the recovery of the contraband from the exclusive possession of accused Gurbachan Singh. The FSL report also would clinchingly prove that the contraband found in possession of accused Gurbachan Singh was nothing but opium. The opium weighed 10 kgs. which was of commercial quantity. 16. It is true that an independent witness by name of Nathu Singh Crl.A. No.280-DB of 2007 -10- who was associated for the purpose of search and recovery was not examined by the prosecution, but it is found that such independent witness Nathu Singh was given up by the prosecution on the ground that he was won over by the accused. To test the plea that the important independent witness in this case was won over by the accused, the prosecution in all fairness should have examined him before the Court. If at all he turned hostile to the version of the prosecution, the prosecution with the permission of the trial Court should have cross-examined the said witness. The prosecution on its own cannot conclude behind the back of the accused and the Court that a witness was won over and therefore, he was not examined before the Court. At any rate, we find that PW4 and PW5 have very categorically spoken to the contraband found in the exclusive possession of Gurbachan Singh and the knowledge he had about the contraband and the recovery effected under his feet in the car. We do not doubt the veracity of PW4 and PW5 as to the recovery made by them from the possession of accused Gurbachan Singh. Therefore, non-examination of the independent witness does not go to the root of the matter. 17. It is found that accused Gurbachan Singh was involved in 6/7 other criminal cases. In fact PW5 registered a case as against accused Gurbachan Singh, when he was serving in Malout Police Station under Section 25 of the Arms Act. Just because many cases were already booked as against accused Gurbachan Singh, we cannot jump to a conclusion that the present case was foisted on accused Gurbachan Singh. No material was produced by accused Gurbachan Singh that there was a false implication by Crl.A. No.280-DB of 2007 -11- PW5 Inspector Balwinder Singh. It is submitted by the learned counsel appearing for accused Gurbachan Singh that the alleged recovery effected from him was a post recovery drama enacted by PW5. We do not find any substance in such a submission, inasmuch as there was no material to substantiate the aforesaid submission. No submission without any legal basis or factual position can be taken into serious consideration by the Court of law. 18. It is true that PW4 and PW5 candidly admit that Form 29 was not prepared at the spot. Inasmuch as the prejudice if any that has been caused to the accused on account of the non-preparation of Form 29 at the spot was not established by the defence, the failure to prepare Form 29 by the investigating officer at the spot does not turn out to be fatal to the case of the prosecution. No expert was examined by the defence to establish that such a quantity of opium carried in a car would emanate a strong smell which would have received resistance from the other inmates of the car. There is no material to show that a strong smell would emanate if the opium of said quantity was kept in a car. Even otherwise, rustic villagers who happened to be occupants of the car would not have minded a strange smell. 19. The prosecution has established beyond reasonable doubt that accused Gurbachan Singh was in conscious possession of 10 kgs. of opium which falls under commercial quantity category punishable under Section 18(b) of the NDPS Act. We do not find any reason to upset the decision of the trial Court as regards the conviction and sentence recorded under Crl.A. No.280-DB of 2007 -12- Section 18(b) of the NDPS Act against accused Gurbachan Singh. 20. Let us now take up the role of accused Jagmohan Singh and accused Sukhpiar Singh. Sukhpiar Singh was the taxi owner and driver of the Indica car bearing registration No.PB05-H-4156. PW4 and PW5 have not spoken to the fact that those two accused were in conscious possession of the contraband at the time when the recovery was effected from the exclusive possession of Gurbachan Singh. No other material is also available to establish that those two accused had knowledge of the possession of the contraband by accused Gurbachan Singh. Accused Jagmohan Singh and Sukhpiar Singh have come out with a plausible explanation in their statements under Section 313 Cr.P.C. that Gurbnachan Singh first boarded the Indica car driven by Sukhpiar Singh and Jagmohan Singh boarded the car last in point of time. If at all Sukhpiar Singh had knowledge about transportation of opium, he would have definitely kept that in a safe portion of the car. He would not have allowed such a large quantity of opium lie under the feet of Gurbachan Singh. Gurbachan Singh had sought a lift when the vehicle was proceeding to its destination and he boarded in the middle alongwith a package and occupied the seat by the side of the driver. If at all the driver had permitted Gurbachan Singh to board the vehicle with the knowledge that he was in possession of contraband, he would not have stopped the vehicle at the request of Jagmohan Singh to take him also along to the destination. The evidence on record would go to establish that all the three accused hailed from different locations. They were not connected with each other. Gurbachan Singh, of course, had many Crl.A. No.280-DB of 2007 -13- criminal cases. Sukhpiar Singh was the driver of the vehicle and Jagmohan Singh was running a partnership business. The criminal nexus amongst these three was not established by the prosecution. 21. The investigating official has come out with a standard allegation that accused Jagmohan Singh and Sukhpiar Singh tried to flee from the car when the car was intercepted. As it is a routine allegation, we do not find any substance in the submission made by the learned Addl.A.G., Punjab appearing for the State that accused Jagmohan Singh and Sukhpiar Singh had attempted to flee from the car as they had consciously possessed the contraband. 22. The prosecution has not established that Jagmohan Singh and Sukhpiar Singh did possess exclusively the contraband, nor had they established that those two accused had knowledge about the possession of the contraband by Gurbachan Singh. PW4 and PW5 have candidly admitted the aforesaid factual position. We find that the trial Court has gravely erred in convicting accused Jagmohan Singh and Sukhpiar Singh under Section 18(b) of the NDPS Act. Therefore, these two accused are entitled to acquittal of the charge under Section 18(b) of the NDPS Act. 23. As far as impersonation is concerned, the prosecution should establish that an accused cheated some one by impersonation. In other words, the prosecution should bring out material to show that the accused pretended himself to be some other person or imaginary person and he knowingly substituted one person for another. 24. It is true that the investigating officer in this case, namely, PW5 Crl.A. No.280-DB of 2007 -14- Inspector Balwinder Singh was aware that about 5-6 cases criminal cases were already launched as against accused Gurbachan Singh, but quite unfortunately, Gurbachan Singh could not be identified by PW5 as the same Gurbachan Singh who was involved in those 5/6 cases. Not only the name, but the address of Gurbachan Singh had been falsely given by him in order to mislead and cheat PW5 to arrest him. After all PW5 being an Inspector of Police would have dealt with hundreds of criminals. Sometimes he would not have had personal knowledge about the accused who was involved in 5/6 cases. If the accused was found to be incorrigible or aggressive, quite probably the police officer would have knowledge about such an accused. If at all PW5 had known the name of accused Gurbachan Singh by his appearance, there was no reason for him to record wrong name and address furnished by him. Of course, we are not inclined to give much credence to the enquiry report (Ex.PW2/A) which deals with the story of impersonation committed by accused, inasmuch as, the persons who were examined during the course of such enquiry were not examined before the Court. At any rate the prosecution could establish through PW7 that real name of first accused was Gurbachan Singh and not Gurmit Singh. Accused Gurbachan Singh has impersonated with a view to mislead and misdirect the investigation taken up by PW5 and thereby cheated the investigating agency. We find that the trial Court has rightly convicted accused Gurbachan Singh under Section 419 IPC for the offence of cheating by impersonation. 25. We have already held that the enquiry report (Ex.PW2/A) has Crl.A. No.280-DB of 2007 -15- lost its probative evidentiary value, as the witnesses associated during the course of enquiry proceedings were not cited and examined before the trial Court. The report prepared behind the back of the accused without affording any opportunity to them cannot be accepted as evidence. Except such an enquiry report, there is virtually no evidence produced by the prosecution to establish that there was a criminal conspiracy hatched by accused Jagmohan Singh and thereby he aided cheating by impersonation committed by accused Gurbachan Singh. After all accused Jagmohan Singh hailed from a different place. He had been doing a partnership business. His association with main accused Gurbachan Singh was not established. In the above circumstances, we find that the prosecution has come out with an imaginary charge that there was a criminal conspiracy hatched by Jagmohan Singh with the principal offender Gurbachan Singh for the offence of cheating by impersonation by Gurbachan Singh. Unfortunately, the trial Court having heavily relied upon the enquiry report (Ex.PW2/A) has returned a finding that accused Jagmohan Singh hatched a conspiracy with the main accused Gurbachan Singh to commit the offence of cheating by impersonation. Therefore, we have no hesitation to conclude that the offence under Section 419 read