CRR No. 124 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No. 124 of 2010 (O&M) Date of decision: 06.5.2011 State of Punjab ........ Petitioner Versus Mangat Ram and others ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH Present: Mr. Rajinder Mathur, AAG, Punjab. Mr. Bipan Ghai, Senior Advocate, with Mr. Deepak Garg, Advocate, for the respondents. JORA SINGH, J. CRM No. 2336 of 2010 Learned counsel for the respondents states that formal reply to the application under Section 5 of the Limitation Act, is not to be filed. In view of the averments made in the application, the same is allowed. Delay of 110 days in filing the instant revision is condoned. CRR No. 124 of 2010 State of Punjab, filed this revision to impugn the order dated 11.10.2008, passed by the learned Additional Sessions Judge, Ludhiana, in case FIR No. 346 of 2004, under Section 18 of the Narcotic Durgs and Psychotropic Substances Act (hereinafter referred CRR No. 124 of 2010 (O&M) -2- to as 'the Act'), at Police Station Jagraon, Ludhiana. By the said order, respondents-accused were discharged of the charge levelled against them. FIR No. 346 of 2004, was registered on the allegation that on 23.10.2004, police party headed by SI Gulzar Singh, while on patrol duty and checking of suspected persons, received a secret information to the effect that Gurdip Singh @ Kooka S/o Gurnam Singh R/o of Manuke, Police Station Jagraon, is carrying on the business of selling opium and in case there was a raid immediately at his residential house and room of electric motor installed outside, then opium could be recovered. Taking information to be credible, ruqa was sent to the police station on the basis of which formal FIR was recorded. As per secret information, after joining Mohan Singh, Member Panchayat and Hoshiar Singh, Chowkidar, house of Gurdip Singh @ Kooka was raided. Gurdip Singh, was found present and room of the electric motor was unlocked by him. On search of the room opium was recovered from the 'dabbi'. Two samples each weighing 10 grams were separated. Remaining was found to be 700 grams. Samples and the remaining opium were made into separate sealed parcels. Sealed parcles were taken into police possession vide memo attested by the witnesses. Seal impression of the seal used was prepared separately. Seal after its use was handed over to Hoshiar Singh, Chowkidar. Entire proceedings were got photographed by Des Raj S/o Chanan Singh of Khalsa Studio Village Hatoor. Rough site plan with its correct marginal notes was prepared. Statements of the witnesses were recorded. Gurdip Singh @ Kooka was interrogated and CRR No. 124 of 2010 (O&M) -3- on interrogation, explanation by Gurdip Singh was that opium was kept in the room of tube well by Mangat Ram @ Mangi. Mangat Ram @ Mangi, was working as Clerk with Malwinder Singh. DSP (D), Jagraon, came at the spot and directed SI Gulzar Singh, not to arrest Gurdip Singh @ Kooka. On return to the police station, case property was produced before Additional SHO Amarbir Singh. Additional SHO had also affixed his own seal on the sealed parcel. After completion of investigation, challan was presented against Mangat Ram, Sardul Singh, Malwinder Singh and Jaspal Singh @ Bhau. Gurdip Singh @ Kuka was kept in column No. 2. After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on the file, trial Court opined that no prima facie case is made out to frame charge under Section 18 of the Act. Ultimately, Mangat Ram, Sardul Singh, Malwinder Singh and Jaspal Singh @ Bhau, were discharged and Gurdip Singh @ Kooka was ordered to be summoned to face trial. Learned State counsel argued that 720 grams of opium was recovered from the kotha of tube well of Gurdip Singh @ Kooka but opium was kept in the kotha by Mangat Ram @ Mangi, Sardul Singh, Malwinder Singh and Jaspal Singh @ Bhau and this fact is clear from the statement of Baldev Singh, Ex. Sarpanch of village Manuke before whom Mangat Ram @ Mangi, made extra judicial confession. Baljit Kaur, wife of Gurdip Singh @ Kooka, in her statement under Section 161 Cr.P.C. stated that she had seen Mangat Ram @ Mangi, while keeping something near the engine fitted in a room of tube well. Argued CRR No. 124 of 2010 (O&M) -4- that kotha of tube well from where recovery was effected was owned by Gurdip Singh @ Kooka but opium was kept in the Kotha by Mangat Ram @ Magi with connivance of Sardul Singh, Malwinder Singh and Jaspal Singh @ Bhau. Learned counsel for the respondents argued that 720 grams of opium was recovered from the tube well kotha of Gurdip Singh @ Kooka but he was not challaned. Name of Gurdip Singh @ Kooka, was kept in column No. 2. Mangat Ram, Sardul Singh, Malwinder Singh and Jaspal Singh @ Bhau, were challaned without any reason. They were not present at the time of recovery. Recovery was not from Mangat Ram and others. Respondents were not the owners of the place of recovery. After recovery, it is very easy to introduce one person to state that Mangat Ram, made extra-judicial confession before him that he had kept opium in the tube well kotha of Gurdip Singh. Baljit Kaur, is the wife of Gurdip Singh @ Kooka. She is very much interested to implicate the respondents and save Gurdip Singh. Statements of Baljit Kaur and Baldev Singh, Ex. Sarpanch, under Section 161 Cr.P.C. were recorded. After recovery, it is very easy to produce some persons to state that opium was kept in the kotha of tube well owned by Gurdip Singh @ Kooka, by somebody else. When no recovery from the respondents and they were not the owners of the place of occurrence then they were rightly discharged by the trial Court. After going through file, I am of the opinion that submission of the learned counsel for the respondents seems to be correct one. Admittedly, place of recovery i.e. kotha of tube well was owned by Gurdip Singh. There was a secret information and as per secret CRR No. 124 of 2010 (O&M) -5- information, ruqa was sent to the police station on the basis of which formal FIR was recorded. Then after joining two independent witnesses, raid was conducted and on search of kotha of tube well of Gurdip Singh @ Kooka, opium was recovered. At the time of recovery, Gurdip Singh @ Kooka, was present. He had supplied the keys of the lock. Kotha was unlocked by Gurdip Singh @ Kooka himself and on search of the kotha opium was recovered but Gurdip Singh @ Kooka was not challaned. After recovery, statement of Baljit Kaur, under Section 161 Cr.P.C. was recorded to the effect that she had seen Mangat Ram @ Mangi, while keeping opium in the kotha of tube well. Baljit Kaur, is the wife of Gurdip Singh @ Kooka and she is very much interested to save Gurdip Singh @ Kooka and implicate Mangat Ram @ Mangi and others. Statement of Ex. Sarpanch, Baldev Singh, under Section 161 Cr.P.C. was also recorded and the same is to the effect that Mangat Ram @ Magi, had made extra-judicial confession before him that opium was kept by him in the kotha of tube well of Gurdip Singh @ Kooka but statement of Baldev Singh, was recorded after recovery. Recovery was in the presence of Mohan Singh, Member Panchayat and Hoshiar Singh, Chowkidar. Gurdip Singh @ Kooka, was present at the time of recovery and recovery was from the kotha of his tube well. Learned State counsel argued that Mangat Ram @ Mangi, was very close to Gurdip Singh @ Kooka. He was working as clerk with Malwinder Singh. Later on there was some dispute amongst Gurdip Singh @ Kook and Mangat Ram @ Mangi then he (Mangat Ram) had CRR No. 124 of 2010 (O&M) -6- threatened to implicate Gurdip Singh @ Kooka. Opium was kept by Mangat Ram @ Mangi in the kotha of the tube well of Gurdip Singh @ Kooka but submission of the learned State counsel seems to be not reasonable one. In case, Mangat Ram @ Mangi, had threatened Gurdip Singh @ Kooka then why Gurdip Singh @ Kooka, kept mum. He should have complained to different authorities. After the impugned order, Gurdip Singh @ Kooka, appeared before the Court and after going through the documents on the file , trial Court opined that a prima facie case is made out to frame charge under Section 18 of the Act, against Gurdip Singh @ Kooka. He pleaded guilty and did not claim trail. Vide judgment of conviction and order of sentence dated 10.2.2002, he was convicted under Section 18 of the Act and sentenced to undergo imprisonment already undergone (4 months and 7 days) and directed to pay a fine of ` 10,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two months. At the time of arguments, learned counsel for the respondents, produced copy of the judgment of conviction and order of sentence dated 10.2.2010 and the same was ordered to be taken on record. As discussed earlier, if opium was kept in the kotha of tube well by Mangat Ram @ Mangi, then there was no idea to confess the guilt. Instead of contesting the case of the prosecution, Gurdip Singh @ Kooka, confessed his guilt. He remained in custody for about 4 months and 7 days. After conviction he was directed to undergo imprisonment already undergone and to pay a fine of ` 10,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two months. Fine was deposited. On the one hand, Gurdip Singh @ CRR No. 124 of 2010 (O&M) -7- Kooka, confessed his guilt, on the other hand allegation of the prosecution was that opium was kept by Mangat Ram @ Mangi in the kotha of tube well of Gurdip Singh @ Kooka. To connect the respondents with the crime statement of Baljit Kaur wife of Gurdip Singh @ Kooka, was recorded under Section 161 Cr.P.C. but the statement was recorded after recovery. It is very easy for Baljit Kaur, to save her husband Gurdip Singh @ Kooka, by saying that she had seen Mangat Ram @ Mangi while concealing opium in the kotha of tube well. Second allegation to connect the respondents with the crime is the statement of Baldev Singh, Ex. Sarpanch. Statement of Baldev Singh, under Section 161 Cr.P.C. is to the effect that Mangat Ram @ Mangi, made extra judicial confession before him that he had kept concealed opium in the kotha of tube well of Gurdip Singh @ Kooka but statement of Baldev Singh, under Section 161 Cr.P.C. is also without any evidentiary value because he had not produced Mangat Ram before the police. Recovery was not in the presence of Baldev Singh. Recovery was in the presence of two independent witnesses namely Mohan Singh, Member Panchayat and Hoshiar Singh-Chowkidar. When there was no recovery from the respondents and respondents were not present at the time of recovery then in view of the statements of Baljit Kaur, wife of Gurdip Singh @ Kooka and Baldev Singh, Ex. Sarpanch, not safe to presume that opium was kept in the kotha by the respondents to implicate Gurdip Singh @ Kooka. In view of the judgment of conviction and order of sentence dated 10.2.2010, against Gurdip Singh @ Kooka, trial Court rightly opined that no prima facie case was made out to frame charge under CRR No. 124 of 2010 (O&M) -8- Section 18 of the Act, against respondents namely Mangat Ram @ Mangi, Sardul Singh, Malwinder Singh and Jaspal Singh @ Bhau. In view of all discussed above, there is no infirmity or illegality in the impugned order and the same is upheld. Revision petition without merits is dismissed. Copy of the judgment be sent to the Director General of Police, Punjab, to take legal action against SI Gulzar Singh and DSP (D), Jagraon, regarding registration of false case i.e. FIR No. 346 dated 23.10.2004, under Section 18 of the Act, at Police Station Jagraon, Ludhiana, against Mangat Ram @ Mangi, Sardul Singh, Malwinder Singh and Jaspal Singh @ Bhau and submit report within three months from the date of receipt of copy of the judgment. May 06, 2011 ( JORA SINGH ) rishu JUDGE