Criminal Appeal No. 70-SB of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 70-SB of 2005 Date of decision: February 26, 2008 Chand Singh …Appellant Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. S.S. Sidhu, Advocate for the Appellant. Mr. Mehardeep Singh, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. This criminal appeal has been preferred by Chand Singh resident of village Kotha Guru, Tehsil Phul, District Bathinda. He was named as an accused in case FIR No. 88 dated 01.09.2002 registered at Police Station Dialpura under section 15 of the NDPS Act. ASI Angrej Singh along with other police officials namely, ASI Gurparvinder Singh; Head Constable Sudesh Kumar; SPO Inderjit Singh and Home Guard Varinder Singh in a Government canter for the purposes of patrolling, were present near the gate of Grain Market on Kotha Guru road, when a secret information was received that the present appellant indulge in sale of poppy husk and sale is effected by him from his deserted cattle shed. In case raid is caused, poppy husk can be recovered. Believing the information to be trustworthy, Ruqa (Ex.PA) was sent to police station for registration of the case under section 15 of the NDPS Act and on the basis of information, police party proceeded to the cattle shed of the accused appellant. Criminal Appeal No. 70-SB of 2005 2 It is stated that police party joined by Mander Singh (public witness) proceeded towards the spot. It is stated that when the police party reached near the brick kiln of Prem Kumar, accused was spotted by them coming from opposite direction. It is further stated that on identification by head constable Gurparvinder Singh, the accused was apprehended by the police party and was interrogated. It is stated that during interrogation, he suffered a disclosure statement under section 27 of the Indian Evidence Act and disclosed that he had kept concealed two gunny bags each containing 35 kgs of poppy husk in deserted house meant for tethering cattle. Disclosure statement (Ex.PB) was reduced into writing and was signed by accused appellant and was attested by Mander Singh and head constable Gurparvinder Singh. Thereafter, recovery memo (Ex.PE) was prepared and the poppy in pursuance of disclosure statement (Ex.PB) was recovered. The FIR was investigated. Challan under section 173 Cr.P.C. was submitted and the appellant was put to trial. Thereafter, the appellant was charged by Special Judge, Bathinda on the ground that on 1st September, 2002 at about 6.00 p.m., he was found in possession of 70 kgs of poppy husk in two bags and thus he committed an offence punishable under section 15 of the NDPS Act. The appellant pleaded not guilty and claimed trial. ASI Angrej Singh appeared as PW-1 and stated regarding recording of ruqa (Ex.PA), disclosure statement (Ex.PB) and recovery memo (Ex.PE). He broadly stated the facts of the case, which have been enumerated above. He also gave details regarding search and seizure, and preparation and sending of the samples to the Chemical Examiner. He also stated that he produced the case property and four parcels along with sample seal to the SHO Police Station, Dialpura, who in his presence, affixed seal JS on the parcels. In the cross-examination, he admitted that Criminal Appeal No. 70-SB of 2005 3 he affixed one seal each on each bag and he has also prepared one sample seal on paper and had affixed the seal with the help of ink pad, but neither the DSP nor the independent witness attested the case property or sample seal. It has been stated by PW-1, Angrej Singh that the appellant was arrested at about 7.15 p.m. and was taken into police custody and recovery was effected at 8.00 p.m. He admitted that in the court he had said that accused was arrested earlier, i.e., before the recovery. He also admitted that prior to the recording of disclosure statement of the accused, no respectable was called from the village. He finally denied the suggestion that the place of recovery was in possession of Makhan Singh, who had broken the common wall and was using the same. He also denied the suggestion that buffalos and cows belonged to Makhan Singh. He also denied the suggestion that the poppy husk was recovered from Makhan Singh and the appellant had been falsely implicated at his place. PW-2, SI Janak Singh was posted as SHO, Police Station, Jaitu. He stated regarding the production of case property and stated that the four samples containing poppy husk were sealed with seal AS and thereafter, after verification he affixed his seal JS. He stated that out of four parcels, two were bulk parcels and two were sample parcels. He stated that on the next day, i.e., on 2nd September, 2002, he produced the case property along with four parcels and sample seal before Ilaqa Magistrate. He stated that before production to the Ilaqa Magistrate, he had kept the parcels in safe custody. PW-3 is C- II Malkit Singh. He is said to have taken two parcels along with sample seal to the Chemical Examiner. PW-4, DSP Balbir Singh Khehra is said to have supervised the investigation and given an option to the accused to get himself searched for him or by the Ilaqa Magistrate. All incriminating evidence was put to the accused. He denied pieces of evidences put to him and stated as under: Criminal Appeal No. 70-SB of 2005 4 “This is false case. No recovery was effected from my possession. The alleged place of recovery which is a deserted house is neither owned by me nor was ever in my possession. The said house belong to Lakhbir Singh son of Gura Singh of village Kotha Guru and he has sold the same on 16.1.2003 to Puran Singh s/o Karnail Singh r/o v. Kesarsinghwala. Makhan Singh of our village whose house adjoins the alleged place of recovery had occupied the said deserted house by breaking open the common wall and he used to tether his cattle in the said house. Makhan Singh connived with the police party in falsely implicating me. I used to tether my cattle in my own residential house where I reside along with my wife and my children. I was taken away from my house in the presence of Gurmail Singh, Karnail Singh and Katar Singh and falsely implicated in this case. Even though nothing was recovered from my possession.” In defence, accused examined DW-1 Katter Singh @ Ikkatter Singh. He stated that the place from where the recovery was effected, was the house of Lakhbir Singh and house of Makhan Singh adjoins the deserted house. Makhan Singh was having possession of the deserted house from where the recovery was effected. It was further stated that Makhan Singh was an influential person and is a big landlord. In cross- examination, he admitted that Chand Singh is his brother. Mander Singh, who was joined as an independent witness appeared as DW-2. He stated that his wife is working in the police post. ASI, Angrej Singh took his thumb impression on the plain papers. In cross-examination, he denied the suggestion that any poppy husk was recovered at the instance of accused appellant. DW-3, Nahar Singh head constable of police post, Bhagta was examined to show that as per Daily Diary Register, ASI Angrej Singh could not be present at the scene of occurrence. DW-4, Lakhvir Singh stated that the accused appellant does not own any land and used to do labour work. He also stated that he earlier used to have a house, which is surrounded Criminal Appeal No. 70-SB of 2005 5 by the house of Makhan Singh and the deserted house belonged to him and Makhan Singh had taken possession of this deserted house as there was a common wall of the house of Makhan Singh and of the deserted house. DW-5 constable Balwinder Singh produced Daily Diary Register. He further stated that there is no mention of deposit of form No. 29 regarding sample seal in the Daily Diary Register. He further stated that sample seal was not deposited in the malkhana and the same was kept by the SHO. After the entire evidence was concluded, appellant was convicted and sentenced by the Court of Judge, Special Court, Bhatinda under Section 15 of NDPS Act to ten years RI and a fine of Rs.one lakh, in default of payment to undergo six months. Aggrieved against the same, appellant has filed present appeal. I have heard learned counsel for the appellant and for the State. The counsel has stated before me that Mander Singh, who was joined as independent witness has appeared as DW-2 and therefore the entire story of the prosecution regarding recovery of poppy husk at the instance of the appellant fall on the ground. It has been stated that it was mandatory for the prosecution under section 100 of Cr.P.C. to associate independent witness before the recovery was to be effected in the house and even no witness has been examined from the locality to justify the recovery. Reliance has also been placed on Pall vs. State of Punjab, 1996(1) RCR (Criminal) 802 to state that once the police party arrested a person on the basis of secret information, then there is no need to record statement under section 27 of Indian Evidence Act and if the statement is recorded under section 27 of the Indian Evidence Act, even though investigating officer had a secret information, it should be inferred against the prosecution that the investigation is tainted and disclosure statement is padding. Criminal Appeal No. 70-SB of 2005 6 Besides, it had been stated that the sample seal had been handed over to SHO and the sample and sample seal were taken into custody by SHO therefore, there is every possibility that the samples were tempered, prepared later and the appellant had been falsely implicated. There is a peculiar feature of this case that from the very first instance, the appellant had been denying his ownership and possession over the deserted cattle shed, from where the recovery was effected. He had taken definite stand that cattle shed was in possession of one Makhan Singh and the ownership was of one Lakhbir Singh. He has also stated that Makhan Singh is a big landlord and he is a labourer and the cattle tethered in the deserted cattle shed, from where the recovery was effected, belong to Makhan Singh. Prosecution has made no attempt to establish the ownership and possession of the appellant over the deserted house, where cattle were tethered and appellant had led the defence evidence to this effect. It was incumbent upon the investigating officer to examine independent persons from the village, who could state that the ownership and possession of the deserted house vested in the appellant. No effort has been made to discharge this onus by the prosecution. Neither the statement of Sarpanch/ Lambardar or Vilalge Chowkidar has been recorded nor any document or record to prove this has been produced. Whereas, appellant has taken a definite stand that the ownership vested in some other person and possession was with one Makhan Singh. Mander Singh has appeared as DW-2. He stated that his wife was working in a police post and his thumb impressions have been obtained on blank papers. Therefore, the disclosure statement (Ex.PB) cannot be relied against present appellant. This Court has, police witnesses to believe. They are highly discrepant on the material points regarding the time of arrest and when the disclosure statement was made and the recovery was Criminal Appeal No. 70-SB of 2005 7 effected. The only independent witness available stood as witness in defence. Therefore, disclosure statement (Ex.PB) cannot be considered and is to be ruled out. Prosecution has further miserably failed to prove the ownership and possession of the appellant over the place, from where the recovery was effected. Therefore, benefit of doubt is to accrue in favour of the appellant and the present appeal is accepted. Conviction and sentence awarded to the appellant is set aside and he is acquitted of the charges. [Kanwaljit Singh Ahluwalia] Judge February 26, 2008. rps