Criminal Appeal No.247-SB of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision : 14.11.2008 Bhagat Shah alias Ram Kumar …..Appellant Versus State of Punjab …..Respondent CORAM: HON’BLE MR. JUSTICE UMA NATH SINGH. Present: Mr.B.S.Kathuria, Advocate, for appellant. Ms.Gurveen H.Singh, Addl. Advocate General, Punjab. * * * UMA NATH SINGH, J. This criminal appeal arises out of a judgment dated 19.1.2005, passed by learned Special Judge, Hoshiarpur, in Sessions Case No.33 of 21.5.2003, holding accused-appellant Bhagat Shah alias Ram Kumar guilty of offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the NDPS Act’), for having been found in illegal possession of 3 Kgs. and 500 grams of Charas, and sentencing him to undergo 10 years' R.I. with a fine of Rs.1 lac; in default of payment of fine, to undergo further R.I. for 1 year. He was also held guilty of another charge for recovery of 500 grams Charas and sentenced to 3 years R.I. with a fine of Rs.2000/-; in default of payment of fine, to undergo further R.I. for 3 months under Section 20 of the NDPS Act. However, two other co-accused, namely, Kewal Kumar and Dinesh Prashad were acquitted of all charges. It appears that on 11.3.2002, Inspector Surjit Singh (PW5) of Kandhali CIA Staff, Hoshiarpur, alongwith SI Gurdial Singh (PW6), ASI Shivraj Singh (not examined), HC Buta Ram (also not examined), and other Criminal Appeal No.247-SB of 2005 2 police officials, was present in the Government vehicle and, they all were on patrol duty. While conducting search of persons of suspicious characters at Bus Stop, Mahilpur, on directions of S.P. (D), Hoshiarpur, a secret information was received that Kewal Kumar son of Joginder Rai and Dinesh Prashad son of Bhagwat Rai, both residents of village and police station Vakhtiarpur, District Patna (Bihar), and Bhagat Shah alias Ram Kumar resident of Hajiapur Ward No.3, Police Station Gopalganj (Bihar), were dealing in Charas and other contraband items after bringing such items from other States and were supplying the same in the area of Hoshiarpur and its adjoining towns. This was also informed that all three accused persons were coming on motor cycle No.PB-32-3985 (make Hero Honda) with Charas for supplying it to Mahilpur, and if they were checked, they could be apprehended with contraband articles red handed. Accordingly, Inspector Surjit Singh (PW5) and other police officials held a blockade/check post (naka) at the bridge over the Bahowal choe. They started checking the vehicles passing through the check-post and sent a wireless message regarding the secret information to Shri Dharam Singh Uppal, D.S.P. (Detective) (PW1) with the request to reach there. At that time, one member of public, namely, Mangat Ram who happened to be there, also joined the police party as a public witness. At about 12.15 p.m., from Hoshiarpur side, three persons with cut hairs came on a motor cycle on the road going towards Mahilpur side. Inspector Surjit Singh (PW5) immediately gave a signal to them to stop the vehicle when they reached near police check post. However, the driver of motor cycle became nervous on seeing the police party and suddenly applied the breaks and turned his motor cycle towards Criminal Appeal No.247-SB of 2005 3 village Bahowal in order to escape from police. However, the police party managed to apprehend him with motor cycle. Identity of the driver of motor cycle was revealed as Kewal Kumar son of Joginder Rai and the persons sitting behind on the pillion, disclosed their identity as Bhagat Shah alias Ram Kumar and Dinesh Prashad. Inspector Surjit Singh informed them about his suspicion that they were in possession of some contraband item and, therefore, their search was required to be conducted. He also made the accused persons aware of their rights that they could be searched in presence of some Gazetted Officer or a Magistrate. All three accused persons offered to be searched in presence of a Gazetted Officer. Their consents were reduced into writings vide memos Ex.PQ, Ex.P and Ex.PS. Consent memos were signed by Kewal Kumar and Bhagat Shah in Hindi while accused Dinesh Prashad put his thumb impressions instead of signatures. Their consent memos were attested by independent witness Mangat Ram alias Manga and SI Gurdial Singh (PW6). After sometime, Dharam Singh Uppal, DSP (Detective) (PW1), reached the spot in his official vehicle. He disclosed his identity that he was a Gazetted Police Officer and the search of accused persons was to be conducted on suspicion. If the accused persons wanted, their search could be conducted by him or before a Magistrate. All three accused persons reposed confidence in DSP Dharam Singh Uppal (PW1) and their consent memos Ex.PA, Ex.PB and Ex.PC were recorded which two accused persons namely Bhagat Shah and Kewal Kumar signed and thumb marked by third accused Dinesh Prashad. Again, it was attested by independent witness Mangat Ram alias Manga and PW2 SI Gurdial Singh. Dharam Singh Uppal, DSP, also attested it. Criminal Appeal No.247-SB of 2005 4 Thereafter, the Inspector himself conducted the search of blue bag hanging on right shoulder of accused Bhagat Shah. During the search, it was detected that the bag being carried by accused Bhagat Shah contained a contraband item, namely, Charas, which was wrapped in a glazed paper. Accordingly, two samples of 10 grams each were separated and the residue quantity on weighing was found to be 3 Kgs and 480 grams which was kept in a separate plastic container. The DSP affixed his seal impression as `DS’ and the Inspector as `SS’ and two separate seal impressions were also prepared. Inspector Surjit Singh Kandhali (PW5) after affixing his seal, handed it over to SI Gurdial Singh (PW6). These articles including the case property were taken into possession vide recovery memo Ex.PE. Same set of witnesses namely, independent witness Mangat Ram, SI Gurdial Singh (PW6) and DSP Dharam Singh Uppal, PW1, attested the recovery memo (Ex.PE). They also attested the recovery memo relating to seizure of motor cycle (No.PB-32-3985). Registration certificate of the vehicle was taken into possession vide recovery memo (Ex.PF) and it was found that the registration of vehicle stood in the name of one Avdesh Kumar son of Garbu Kumar, resident of Bahadurpur Chowk, Super Computer, Hoshiarpur. On personal search of accused persons, some currency notes were recovered and taken into possession. Investigating Officer also prepared site plan (Ex.PV) of the place of recovery, and sent a Ruqa (Ex.PT) in respect of search and seizure to police station through HC Buta Ram. On the basis of the ruqa, an FIR Ex.PT/1 No.42 dated 11.3.2003, under Section 20 of the NDPS Act was registered at Police Station by ASI Sukhwinder Singh (not examined). ASI also made endorsement below the Criminal Appeal No.247-SB of 2005 5 ruqa, Ex.PT/2. During the custody of accused persons, one of them namely Bhagat Shah, made a further disclosure statement regarding the concealment of another packet of Charas weighing half kg., kept concealed at a distance of one kilometer towards Hoshiarpur on the eastern side of the road in the wild growth of bushes, which was within his exclusive knowledge and which he could get recovered. His consent memo Ex.PK was reduced into writing and attested by the same set of witnesses who had also attested the other memos. Requirement of Section 50 of the Act, as regards the offer to the accused person to be searched in presence of a Gazetted Officer or a Magistrate, was given by the DSP. Accused Bharat Shah again reposed confidence in DSP Dharam Singh Uppal and his consent memo (Ex.PL) was recorded into writing which was attested by the aforesaid set of witnesses. Thereafter, the said accused person led the police party to the place where he had kept the contraband concealed and got it (Charas) recovered from the place of concealment in the wild growth of bushes which was also wrapped in a glazed paper. Again, two samples of 10 grams each were prepared and kept in a small plastic container. Residue quantity being 480 grams was put in a separate plastic container. Sample of Charas as also the residue quantity were sealed again with the seal of DSP Dharam Singh Uppal (PW1) as `DS’ and Inspector Surjit Singh (PW5) as `SS’. Specimen seal impressions were prepared and the seal after use was handed over to SI Gurdial Singh. It needs to be mentioned that at the time of affixing seal impressions, PW5 Inspector Surjit Singh had taken back his seal from SI Gurdial Singh which was again handed over to him. Case properties were taken into possession vide memo Ex.PM and again attested by the same set Criminal Appeal No.247-SB of 2005 6 of witnesses. All the three accused persons were formally arrested vide Ex.PQ/1, Ex.PQ/2 and Ex.PQ/3, which were attested now only by Mangat Ram and SI Gurdial Singh. Intimation regarding arrest of accused persons was given to them and they were also supplied the grounds of arrest. A rough site plan of place of recovery was prepared vide Ex.PU. Accused persons with case property were taken to police station, Mahilpur, where they were produced before SI/SHO Manjit Singh, who interrogated the accused persons and after verifying the case properties, affixed his seal `MS’ on the residue quantities of case properties and also on the samples and the specimen seals. Thereafter, case properties were deposited with the MHC and accused were locked in police lock up. On next day, accused as well as the case properties were produced in the Court of learned Illaqa Magistrate, who remanded the accused persons to police custody and found the seals on case properties to be intact. The case properties were re- deposited with MHC. The samples of contrabands were sent by the MHC to the office of Chemical Examiner, who after analysis, found the contents of said two samples to be of Charas vide his reports Ex.PW1 and Ex.PW2. Statements of witnesses under Section 161 Cr.P.C. were also recorded and a challan was filed against all the three accused persons. Learned trial Court repelled the submissions of learned defence counsel that secret information was not reduced into writing by holding that had there been delay in holding blockade by PW5, there was a chance that the accused persons would have slipped away, therefore, delay in writing secret information was caused only on account of paucity of time. Heard learned counsel for parties and perused the records. Criminal Appeal No.247-SB of 2005 7 Learned counsel for appellants reiterated the arguments raised before the trial Court that the secret information was not reduced into writing and, therefore, there was non compliance of mandatory provisions of Section 42 of the Act. Recoveries of contrabands were effected from two places, but the Investigating Officer did not join any independent witness. This is also a submission of learned counsel that the CSFL form required to be prepared on the spot was not prepared, which created a serious doubt about the credibility of recovery itself. This is also a submission of learned counsel that the Investigating Officer (PW5) did not offer his personal search before searching the accused persons. This is a further a submission of learned counsel that on the same set of evidence, two co-accused persons have been acquitted and in the facts and circumstances of this case, there could not have been a presumption of conscious possession of contraband in the case of accused. Furthermore, this is also submitted that the motor cycle in question did not belong to the accused. On the other hand, learned Additional Advocate General, Punjab, submitted that this is not a case where the secret information was not reduced into writing, but there was only a delay in writing the same, which is well explained. This is also his submission that the case of the accused-appellant is distinguishable from the other accused persons inasmuch as he was carrying the bag containing Charas and further during the investigation, he made a statement leading to further recovery of half kg. Charas from a thick growth of bushes in a deserted place. Provisions of Section 50 of the Act whereunder an offer is given to the accused asking him as to whether he wants to be searched before a Gazetted Officer or a Criminal Appeal No.247-SB of 2005 8 Magistrate, have also been complied with in the letter and spirit. This is also the submission of learned State Counsel that the Police Officials have not been attributed a motive for false implication of the accused persons. Learned State counsel further submitted that though a CFSL form was not filled up on the spot, but the seals of samples and sample seals which were sent to CSFL on 13.3.2003, were found to be intact. Thus, according to her, provisions of Section 42 of the Act, would not apply in the facts and circumstances of this case. On due consideration of rival submissions and perusal of records, I notice that the prosecution case is essentially based on the testimonies of Dharam Singh, DSP (PW1), Inspector Surjit Singh (PW5), who is Investigating Officer, and SI Gurdial Singh (PW6), who is witness to recovery, apart from the testimonies of other officials witnesses of formal nature. Besides, various recovery memos and the CSFL report also support the prosecution case. On the date of recovery, i.e. 11.3.2003, Inspector Surjit Singh (PW5), was posted as Inspector, CIA Staff, Hoshiapur. He was checking suspicious characters while being on patrol duty at Bus Stop, Mahilpur, under the directions of SP (D), Hoshiarpur. At that time, he received a secret information that accused Kewal Kumar, Dinesh Prashad and Bhagat Shah were indulging in a large scale supply of contraband items like Charas and other intoxicant drugs to Hoshiapur and other adjoining places. This was also informed that these three accused persons were coming on a Hero Honda Motor Cycle bearing No.PB-32-3985 with Charas for delivery in the area of Mahilpur, and if they were checked, they could be apprehended red handed. Believing in that information, a naka was laid on the bridge of Criminal Appeal No.247-SB of 2005 9 Bahowal Choe. A wireless message was also flashed to D.S.P. (D) Sh.Dharam Singh (PW1). He was requested to reach that place. A public witness Mangat Ram also joined the police party. At about 12.15 P.M.,three young men with hair cut, were noticed coming from Hoshiarpur side on a motor cycle, towards Mahilpur. Inspector Surjit Singh (PW5) signaled the vehicle to stop. Seeing the presence of police party, the driver of motor cycle became nervous and took a turn towards Bahowal to slip away from police. However, they were over powered and apprehended by the police on the basis of suspicion. On enquiry, motor cycle rider disclosed his name as Kewal Kumar and the pillion rider as Bhagat Shah. The third accused disclosed his identity as Dinesh Prashad. Pillion rider Bhagat Shah was hanging a blue coloured bag on his right shoulder. Police Inspector Surjit Singh told them about his suspicion that they were carrying some contraband item. He also told that the search of their person was required under law and made them aware of their right under Section 50 of the NDPS Act that they could be searched in presence of a Gazetted Officer or a Magistrate. Accused persons opted for search in presence of a Gazetted Officer. Their consents memos were separately recorded. These memos were attested by Mangat Ram and SI Gurdial Singh. Ex.PQ is the consent memo of accused Kewal Kumar. Dinesh Prashad gave his consent vide Ex.PR and consent memo of accused Bhagat Shah is Ex.PS. At that time, Dharam Singh, DSP (PW1), reached the spot. He disclosed his identity and made all the three accused persons aware of their right to be searched in presence of a Gazetted Officer or a Magistrate. All the three accused persons reposed their confidence in DSP (PW1), and their consents were recorded afresh vide Ex.PA in respect Criminal Appeal No.247-SB of 2005 10 of accused Bhagat Shah, Ex.PB in respect of Kewal Kumar and Ex.PC in respect of accused Dinesh Prashad. These consent memos were attested by SI Gurdial Singh (PW6), Mangat Ram (not examined), and DSP Dharam Singh (PW1). Thereafter, the search was conducted as per direction of DSP. On opening the bag being carried by accused Bhagat Shah, a contraband item Charas was found wrapped in a glazed paper. Two samples of Charas, 10 grams each were separated in a plastic container. The residue quantity on weighment was found to be 3 Kgs. and 480 grams, which was put in a separate plastic bag. Thus, the samples and residue quantity of Charas were made in separate parcels. These parcels were sealed with the seal impressions of Inspector Surjit Singh (SS) and DSP (DS). Seal of Inspector Surjit Singh was later handed over to SI Gurdial Singh (PW6), whereas DSP Dharam Singh retained his seal. Finally, these articles alongwith the bag were taken into possession vide recovery memo Ex.PD, which was attested by public witness Mangat Ram, SI Gurdial Singh (PW6) and DSP Dharam Singh (PW1). From the personal search of accused Bhagat Shah, currency notes of Rs.250/- and a driving licence were also recovered. These articles were also taken into possession vide recovery memo Ex.PG. Similarly, from the personal search of accused Kewal Kumar, currency notes of Rs.215/- were recovered vide the recovery memo Ex.PH and from accused Dinesh Prashad, Rs.155/- vide the recovery memo Ex.PJ. Motor cycle used in the offence was taken into possession vide Ex.PE and its registration certificate vide Ex.PF. Inspector Surjit Singh (PW5) also sent a ruqa (Ex.PT) to police station which led to the registration of FIR (Ex.PT/1) No. 42 under Section 20 of the Act, which was recorded by ASI Criminal Appeal No.247-SB of 2005 11 Sukhwinder Singh at Police Station Mahilpur. Arrest memos of accused persons, namely, PQ/1 for accused Kewal Kumar, PQ/2 for Bhagat Shah and PQ/3 for Dinesh Prashad, were prepared. Site plan Ex.PU, depicting the place of recovery, was also drawn. However, during the police custody, accused Bhagat Shah made a further disclosure statement (Ex.PK), on interrogation, which was signed by public witness Mangat Ram, SI Gurdial Singh (PW5) and DSP Dharam Singh (PW1). Thus, accused Bhagat Shah was again given offer under Section 50 of the Act, to be searched in presence of a Gazetted Officer or a Magistrate. He reposed confidence in DSP Dharam Singh (PW1) and his consent memo was recorded accordingly vide Ex.PL. As per his disclosure statement, accused Bhagat Shah led the police party to bus stop Jaitpur and from the bushes at a distance of 200 meters towards the eastern side, got recovered a further quantity of 500 grams Charas wrapped in a glazed paper. Two samples of contraband, each weighing 10 gram, were drawn separately. The residue quantity on weighment was found to be 480 grams. Two separate parcels, one for samples and the other for residue, were drawn and sealed with the seal impressions of Inspector Surjit Singh (SS) and DSP Dharam Singh (DS), and further the separate seal impressions were also prepared. Inspector Surjit Singh took his seal from SI Gurdial Singh for sealing the second case property and thereafter, again handed it over to him. However, DSP Dharam Singh retained his seal after use. Separate CSFL forms were prepared and case properties were taken into possession vide recovery memo Ex.PM, which was again attested by the same set of witnesses and the site plan for the recovery was prepared vide Ex.PV. Inspector Surjit Singh (PW5) Criminal Appeal No.247-SB of 2005 12 recorded statements of witnesses. Case properties in respect of two recoveries were brought to police station, Mahilpur and produced before S.H.O. Manjit Singh (PW7), who interrogated the accused and after verification, affixed his seal `MS’ on case properties including samples. Thereafter, case properties and samples were deposited with Mohrir Head Constable and accused were lodged in police lock up. Police Inspector (PW5) produced the case properties, Ex.P1 to P5, with seal impressions intact, and also the motor cycle, Ex.P6. Reports of Chemical Examiner in respect of both set of samples of two recoveries, were received vide Ex.PW/1 and PW/2. After completion of investigation, a challan was filed by S.H.O. Manjit Singh. Inspector Surjit Singh had verified the signatures of Manjit Singh. In his cross-examinations, this witness has accepted that no DDR was recorded in respect of the secret information received by him, nor any intimation in writing was sent to S.H.O., Police Station, Mahilpur, or to a superior police officer. Only a DDR was entered in CIA Staff record, before leaving for patrol duty. According to this witness, secret information was received at 10.00/10.15 a.m., and DSP Dharam Singh was informed on wireless after about 10 minutes. The DSP reached the spot at 1.00 p.m. and remained there upto 6.30 p.m. Police party reached the bridge of Bahowal at about 12.00 p.m. to hold blockade. Dharam Singh, DSP (PW1) has supported the statement of Inspector Surjit Singh (PW5). He has stated that he had given an option to the accused persons as to whether they wanted to be searched in presence of a Gazetted Officer or a Magistrate. Separate consent memos of accused persons were recorded. In his presence, search of the bag hanging on shoulder of accused Bhagat Shah was made by Criminal Appeal No.247-SB of 2005 13 Inspector Surjit Singh, and the contraband item, as aforesaid, was recovered. Accused Bhagat Shah made disclosure statement and a further recovery of Charas was effected which on weighing was found to be 500 grams. Two samples as per procedure were drawn and the samples and residue quantity were made into two separate parcels and sealed. Thus, this witness has supported the prosecution case that he received information at 12.15 p.m., in his office and then reached the spot at 1.15 p.m. He remained present on the scene of recovery for about 2½ hours. He has asserted that the accused persons were in the conscious possession of contraband items. He has denied all the defence suggestions which were contrary to the prosecution case. Gurdial Singh (PW6) is a witness of recovery. He has supported the recovery as reflected in the statement of Inspector Surjit Singh (PW5) and DSP Dharam Singh (PW1). He has categorically mentioned that accused Bhagat Shah made a further disclosure statement in the police custody vide Ex.PQ which was reduced in to writing. It was signed by accused Bharat Shah and attested by independent witness Mangat Ram, this witness (PW6) himself and DSP Dharam Singh (PW1). He has also stated that after the recovery, seal of Surjit Singh was handed over to this witness and for second recovery, the seal was taken back. Again, after the use, the seal of Inspector Surjit Singh was handed over to this witness, whereas, DSP Dharam Singh retained his seal. He has also stated that DSP Dharam Singh reached the spot at about 1.15 p.m. and remained there upto 6.00/6.30 p.m. Manjit Singh (PW7) was S.H.O. posted at P.S. Mahilpur on Criminal Appeal No.247-SB of 2005 14 30.11.2003. He stated that he interrogated the accused persons and after verifying the case property, affixed his seal and the case properties were deposited with Mohrir Head Constable. HC Ashwani Kumar (PW2) is a formal witness. He tendered his evidence on affidavit, Ex.PN. So is Constable Ravinder Singh (PW3), who also tendered his evidence on affidavit Ex.PO. Ashwani Kumar (PW2) received the case properties from Investigating officer. He was MHC of police station at that time. He handed over the case properties to Constable Ravinder Singh (PW3), to be deposited with Chemical Examiner, Punjab. Gopal Kishore Agnihotri (PW4) an Assistant in the office of D.T.O. Kapurthala, brought the registration record of motor cycle (No.PB-32-3985). It was initially in the name of one Satish Kumar son of Lekh Raj and then transferred in the name of Avidesh Kumar. Vide Chemical Examiner's Report (Ex.PW1)