Criminal Appeal No.712-DB of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Akbar Khan and another APPELLANTS VERSUS State of Punjab RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE L.N.MITTAL Present:- Shri R.S.Rai, Senior Advocate with Shri Anurag Arora, Advocate for the appellants. Shri Satinder Singh Gill, Additional A.G. Punjab. MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 1.9.2006 of the learned Special Court, Barnala whereby he convicted Akbar Khan alias Pannu Khan and Mustaq Ali alias Timma Khan under Section 15 of the Narcotic Drugs and Psycotropic Substances Act (hereinafter referred to as the N.D.P.S. Act) and sentenced them to undergo RI for 20 years and to pay a fine of Rs.2 lac each, in default, to further undergo RI for 3 years. The case of the prosecution is that Inspector Surinder Pal Singh, Criminal Appeal No.712-DB of 2006 -2- S.H.O. Police Station Mehal Kalan received secret information that vehicle No.RJ-13G-9442 was carrying contraband. Inspector Surinder Pal Singh along with ASI Nazar Singh, ASI Randhir Singh, HC Randhir Singh, HC Joginder Singh, HC Purshotam Lal, HC Roop Lal and Constable Makhan Singh on Government vehicle No.PB-12B-9068 driven by Constable Ranjit Singh had already set up a picket/Naka for checking of suspected persons. The secret information had stated that Mustaq Ali alias Timma Khan son of Karam Deen alias Attu and Akbar Khan alias Punnu Khan son of Abdul Rehman were on the truck and were going to supply poppy husk in the villages of Mehal Kalan and Rai Kot. Further, the information stated that the truck would come from Rajasthan and go towards Village Kalal Majra, Kalsan side via Kacha in the jurisdiction of Police Station Mehal Kalan. The information was credible and true, as the said persons were smuggling poppy husk in Punjab after getting it from Rajasthan. They have committed an offence under Section 15 of the N.D.P.S. Act. Ruqa Ex.PK was sent to the police station through HC Purshotam Lal for registration of a case. After the case was registered, it was requested, that the information be given to him. Inspector Surinder Pal Singh along with his companions proceeded on the kacha path of Kalal Majra for Nakabandi to apprehend the truck. On the basis of this information F.I.R. Ex.PK/1 was registered and SI Surinderpal Singh was informed through wireless message. The prosecution to prove its case, brought into the witness-box MHC Ajaib Singh PW-1, HC Harjinder Singh PW-2, Davinder Singh Ghuman PW-3, SI Paramjit Singh PW-4, Gurmeet Singh PW-5, Inspector Surinderpal Criminal Appeal No.712-DB of 2006 -3- Singh PW-6 and ASI Nazar Singh. In their statements, the appellants pleaded false implication. Avtar Singh alias Bhola Singh was examined in defence as DW-1. Davinder Pal Singh Ghuman D.S.P. PW-3 has in his testimony before the Court stated that on 28.10.2005 at about 1.15 p.m. he received a call on his mobile phone from Inspector Surinder Pal Singh, S.H.O. Police Station Mehal Kalan that they have stopped a truck in the area of Village Kalal Majra and requested him to come to the spot. Davinder Singh Ghuman PW-3 went to the spot situated about 4 kms. away from Police Station Mehal Kalan, on the main road and further leading to the drain, via the kacha path in the said village. PW-3 disclosed his identity to appellant Akbar Khan. An independent witness Subhash Chand was also present. Appellant Akbar Khan was told about his rights under the law. Further, Davinder Singh Ghuman PW-3 asked him if he could search the truck or would like to have the same searched by a Magistrate or a Gazetted officer. Appellant Akbar Khan reposed confidence in him (PW-3). Consent Memo Ex.PC was prepared which was signed by Subhash Chand and ASI Nazar Singh. Before the search of the truck, S.H.O. Surinder Pal Singh offered himself to be frisked by appellant Akbar Khan. Thereafter the tarpaulin on the bags was removed and 30 bags were recovered. Serial numbers were given from 1 to 30 to the bags. Two samples each weighing 250 grams were drawn individually and separately and prepared into separate parcels. These parcels were given Serial No.1/1A to 30/30A. Thereafter they were sealed, with the seal bearing impression “SPS” of Inspector Surinder Pal Singh. Davinder Singh Ghuman PW-3 affixed his seal Criminal Appeal No.712-DB of 2006 -4- 'DS”. Each of the bags was weighed. It contained 38 kgs. each of poppy husk. Impressions of the seal were prepared. On the personal search of Akbar Khan Rs.6050/- was recovered. A driving licence was also recovered and memo Ex.PE was prepared. Inspector Surinder Pal Singh PW-6 has corroborated the version put forward by Davinder Singh Ghuman D.S.P. PW-3. He has also stated that on 28.10.2005 in the morning he received secret information that appellant Akbar Khan and Mustaq Ali were carrying poppy husk from Rajasthan on truck No.RJ-13G-9442. A Naka was laid on the bridge of the drain of Kacha path. At about 12 noon one Subhash Chand was joined as an independent witness. The truck was apprehended at about 12.15 p.m., which was coming from the side of Village Kalal Majra. The driver of the truck stopped the truck about 15 karams away from where the police Naka was. Both Akbar Khan and Mustaq Ali tried to run away, but Akbar Khan was apprehended, while Mustaq Ali was successful in running away. Thereafter going through all the formalities and on summoning the Gazetted Officer i.e. Davinder Singh Ghuman D.S.P. PW-3, a search was made. Samples were taken and sealed as per law and the contraband d was taken into custody. Learned counsel for the appellants has argued, that the sample was taken on 28.10.2005 and deposited in the Forensic Science Laboratory on 8.11.2005 after a gap of 12 days. The seal of Davinder Singh Ghuman i.e. “DS” was retained by him as per his own statement. Tampering could have taken place. This itself is a big flaw in the case. The identity of Mustaq Ali could not be established as he had Criminal Appeal No.712-DB of 2006 -5- escaped. He was arrested on 2.12.2005 i.e. after a gap of more than a month by Paramjit Singh ASI PW-4. No test identification parade was held. Appellant Mustaq Ali could not be identified in Court by any of the official witnesses and not even by Inspector Surinder Pal Singh PW-6, the Investigating Officer. Davinder Pal Singh Ghuman PW-3 has not named Mustaq Ali in his testimony before the Court. This clearly shows that appellant Mustaq Ali was not present on the truck. If a false case can be made against appellant Mustaq Ali, similar is the case with appellant Akbar Khan. The independent witness Subhash Chand was not produced and no reason has been given for not producing him. In memos Exs.PD, PM and PI the name of Mustaq Ali is not mentioned. Learned counsel for the State has argued, that the identity of Mustaq Ali was established on the day the F.I.R. was recorded and his name, his father's name and his address has been clearly given that he was also on the truck along with appellant Akbar Khan. Test identification parade was not held as the witnesses had already seen him while he was running away. We have heard the learned counsel for the parties and perused the record with their assistance. The main thrust of the argument of the learned counsel for the appellants is on the statements of the Gazetted Officer, Davinder Singh Ghuman D.S.P. PW-3 and Inspector Surinder Pal Singh PW-6. In the F.I.R. Ex.PK/1 the name of Akbar Khan and Mustaq Ali is mentioned, their parentage is mentioned and also their address is mentioned. The registration number of the truck i.e. RJ-13G-9442 on which they were carrying the contraband, is also Criminal Appeal No.712-DB of 2006 -6- mentioned when the secret information was given. Akbar Khan was apprehended on the spot and searched in the presence of the Gazetted Officer i.e. Davinder Pal Singh Ghuman PW-3 after going through all the legal formalities. Inspector Surinder Pal Singh PW-6 went to the extent of even having himself searched by the appellant before he started searching the truck. It is thereafter that 30 bags of poppy husk were recovered. They were duly numbered, samples were taken and on 29.10.2005 as per the statement of Inspector Surinder Pal Singh PW-6, ASI Randhir Singh produced appellant Akbar Khan and the articles before the Illaqa Magistrate. Order Ex.PP/1 was passed by the Court after it had verified the contraband and the seals which had been put on them. There is no ambiguity in the case of the prosecution qua appellant Akbar Khan. As already discussed above, he was apprehended on the spot with 30 bags of poppy husk. As regards appellant Mustaq Ali, there are flaws in the case of the prosecution regarding his identity. Inspector Surinder Pal Singh PW-6 has stated that after the truck was stopped, both appellants tried to run away, but Akbar Khan was apprehended, while Mustaq Ali ran away. Further, in his testimony in Court he has stated that “I cannot definitely identify the person if he is the same person who ran away”. This he has said in regard to appellant Mustaq Ali. From his (PW-6) statement, it is clear that the Investigating Officer could not identity appellant Mustaq Ali in Court. Further, the name of Mustaq Ali is not mentioned on document Ex.PD memo of recovery of the poppy husk and Ex.PM the rough site plan. Further, this witness (PW-6) has stated that the police officials on that day (day of recovery) followed Mustaq Criminal Appeal No.712-DB of 2006 -7- Ali and kept searching for him for 1-1/2 hours. This itself is not believable as there were not less than six police officials accompanying Inspector Surinder Pal Singh. Recovery was in broad day light. He could easily have been apprehended if appellant Mustaq Ali on that day was accompanying appellant Akbar Khan. Davinder Singh Ghuman PW-5 in his testimony before the Court has named only appellant Akbar Khan and has not named appellant Mustaq Ali to be on the spot i.e. recovery of the contraband was done. We are of the considered opinion that the case against appellant Mustaq Ali is doubtful. He is acquitted of all the charges. If in custody, he be set free forthwith, if not wanted in any other case. As regards appellant Akbar Khan, as discussed above, the case of the prosecution stands proved beyond any reasonable doubt. His conviction is maintained, but sentence we feel, is on the higher side. Sentence of appellant Akbar Khan is modified from 20 years RI to 15 years RI. Fine shall remain intact, as ordered by the learned Special Court, but in default of payment of fine, he shall further undergo RI for 2 years instead of three years. Appeal qua appellant Mustaq Ali is allowed, but is dismissed qua appellant Akbar Khan, subject to above reduction in the sentence. ( MEHTAB S.GILL ) JUDGE ( L.N.MITTAL ) January 9, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO Criminal Appeal No.712-DB of 2006 -8-