Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Date of Decision:25.08.2009 1. Criminal Appeal No.1746-SB of 2006 Sukhdev Singh .....Appellant Vs. State of Punjab .....Respondent 2. Criminal Appeal No.1949-SB of 2006 Jaswant Singh @ Satta .....Appellant Vs. State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. S.P.S. Sidhu, Advocate and Mr. D.N. Ganeriwala, Advocate for the appellants. Mr. T.S. Salana, Deputy Advocate General, Punjab. **** JUDGMENT HARBANS LAL, J. This judgment shall dispose of Criminal Appeal No.1746-SB of 2006 filed by Sukhdev Singh and Criminal Appeal No.1949-SB of 2006 filed by Jaswant Singh alias Satta against the judgment/ order of sentence dated 18.8.2006 passed by the Court of learned Judge, Special Court, Muktsar whereby he convicted and sentenced the accused Sukhdev Singh as Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -2- well as Jaswant Singh alias Satta to undergo rigorous rigorous imprisonment for ten years and to pay a fine of Rs.1 lac under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, `the Act') or in default of payment of fine, the defaulter to further undergo rigorous imprisonment for one year. The minimal facts are that on 1.12.2003, ASI Surjit Chand amongst other police officials happened to be present in Panniwala Chowk where he received secret information to the effect that the accused Sukhdev Singh as well as Jaswant Singh deals in the sale and purchase of poppy husk and at present they were selling poppy husk by keeping the same in the cotton fields of Jaswant Singh accused situated at Raniwala Aspal Path and if raid is conducted, huge quantity of poppy husk could be recovered. On the basis of the secret information, ruqa was sent to the Police Station where on its basis, formal FIR was recorded. The message was flashed to Manjit Inder Singh Bal DSP as well as official photographer to come at the spot. Thereafter, the police party proceeded towards the aforesaid place for conducting raid. On the way, PW Tarsem Lal came across. He was associated with the police party. When the police party reached the above said place, both the accused were found sitting on gunny bags in the fields of Jaswant Singh accused. They were apprehended. Meanwhile, aforesaid DSP and Constable Gurmail Singh, official photographer also reached the spot. The DSP disclosed his identity to both the accused that the search of the bags is to be carried out and they should tell if they want to have their search in his presence or some Magistrate. Both the accused expressed their faith in him. On the directions of the DSP, ASI Surjit Chand Investigator Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -3- conducted search of the recovered bags which were 12 in number and poppy husk was recovered therefrom. A sample of 250 grams was drawn from each bag which were converted into parcels. The contents of each bag when weighed came to 34 kg 750 grams, which were also turned into parcels. All the parcels were sealed with seals `SC' and `MIS'. The sample seal was prepared. The seal bearing impression `SC' was handed over to ASI Darshan Singh whereas the DSP retained his own seal bearing letters `MIS' with him. All the parcels were seized vide recovery memo. The rough site plan showing the place of recovery was prepared. The accused were put under arrest. On return to the police station, ASI Surjit Chand produced accused along with the case property before SI/ SHO Gurtej Singh, who also affixed his seal `GS' on the parcels. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused. The accused were charged under Section 15 of the Act, to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1 M.I. Singh Bal DSP, PW2 ASI Surjit Chand Investigating Officer, PW3 ASI Darshan Singh, PW4 Constable Major Singh, PW5 HC Gurmail Singh, PW6 MHC Harvinder Pal Singh, P7 Jagsir Singh, PW8 Constable Jaswinder Singh, PW9 SHO/SI Gurtej Singh and closed its evidence by tendering the reports Ex.P29 and Ex.P30 of the Chemical Examiner. When examined under Section 313 of Cr.P.C, both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. Accused Sukhdev Singh has put forth that he has no relation with co-accused Jaswant Singh. He has constructed his house in Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -4- the field, which is at a distance of about 15-20 acres away from the fields of Jaswant Singh. On 1.12.2003, Congress-I was the ruling party in Punjab State. He belongs to party of S.A.D. (Badal) for the last many years. On 30.11.2003, he was illegally taken away from his house at about 8:00 P.M by ASI Paramjit Singh, Police Post Panniwala, which falls under the jurisdiction of Police Station Sadar Malout and on that day, he was taken to Police Post Sadar Malout from where Surjit Chand ASI In-charge/CIA Staff, Muktsar took him away and after arranging some poppy husk bags, he brought the bags in a canter and placed them in the fields near the road leading from his village to Village Aspal and later on, falsely implicated him in this case. That on 1.12.2003, there was agitation at Ropar regarding the arrest of P.S.Badal, President S.A.D. (Badal). The Akali leaders in large numbers including that of his neighbouring villages, were arrested as a preventive measure to prevent them from going to Ropar. He is Ex- Sarpanch of his Village and he was never involved in any other criminal case. Regarding his false implication, Gram Panchayat of Village Raniwala has also passed a resolution. The co-accused Jaswant Singh alias Satta has pleaded that nothing was recovered from him and he has been falsely implicated in this case. In their defence, they examined DW1 Angrej Singh and DW2 Krishan Lal. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved therewith, they have preferred the appeals Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -5- referred to earlier. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. On behalf of the appellants, it has been submitted by the learned counsel for the appellants in one voice that as alleged by the prosecution as many as 12 samples were drawn, whereas according to Ex.P2 Form M 29, only 10 samples were despatched for chemical analysis on 8.12.2003 and as revealed by another Form No. M-29, the remaining two parcels were sent to the Chemical Examiner on 8.3.2004. The prosecution has not given any satisfactory explanation for despatch of two sample parcels after a gap of about three and a half months. It gives an inkling that indeed the two sample parcels were not in existence earlier and the same were procured from here or there and then these were forwarded to the Chemical Examiner. It is further argued that as a matter of fact, the appellants being Akali Dal workers were picked up from their respective houses on 30.11.2003 in order to join the rally organised by Sardar Parkash Singh Badal and everything was fabricated in the Police Station by ASI Surjit Chand. It has been further argued that the provisions of Section 42, 50, 52A, 55 and 57 of the Act have not been complied with. Learned counsel for the appellants have further submitted that Tarsem Lal independent witness was joined, but the seal after use was entrusted to a police official. There is inexplicable delay of seven days in sending the ten parcels whereas there is delay of three and a half months in forwarding the other two sample parcels to the Chemical Examiner. This delay assumes greater importance, when the seal remained in the custody of Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -6- a police official. Thus, the possibility of changing the contents of the sample parcels cannot be ruled out. They further added to it that it is the prosecution version that both the accused were sitting on the bags. If it is assumed to be so, their conscious possession is not established in view of the observations rendered by the Apex Court in re: State of Punjab v. Balkar Singh and another, 2004(3) Supreme Court Cases 582. The learned State Counsel in a bid to gloss over the delay in sending two sample parcels later on, submitted that by way of inadvertence, the same could not be sent earlier along with other parcels. I have well considered the rival contentions. It is in the evidence of Surjit Chand PW2 Investigator that PW Tarsem Lal independent witness was joined in the police party. The seal after use was handed over to ASI Darshan Singh. It is in his cross- examination that “PW Tarsem Lal was not known to me earlier. The seal was not handed over to me.” This evidence is a pointer towards the fact that the seal after use remained with a police official ASI Darshan Singh. Harvinder Pal Singh PW6 with whom the case property was allegedly deposited has testified in his cross-examination that “In the first occasion, sample parcel was sent on 8.12.2003 in the office of Chemical Examiner. Volunteered only 10 sample parcels were sent in the first instance. Remaining two sample parcels were sent to the Office of Chemical Examiner on 14.3.2004. The case property is required to be sent to the Office of Chemical Examiner in one lot, but due to mistake in the first occasion, only 10 sample parcels were sent. When remaining two sample parcels were sent, I was posted in P.S. Sadar Muktsar and at that time MHC Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -7- Balbir Singh was posted in P.S. Sadar Malout. I did not make any entry in register No.19 at the time of sending the sample parcel in the Office of Chemical Examiner.” It emerges out of this evidence that one lot of ten samples was despatched on 8.12.2003, i..e, after a gap of 7 days of the recovery. The second lot of two samples parcels was despatched after 3 months and 12 days. To crown it all, the entry with regards to these sample parcels being sent to the Chemical Examiner was not made at all in Register No.19. Obviously, the explanation furnished by this witness is that inadvertently only 10 sample parcels were sent in the first lot. Under the stress of cross-examination, he has admitted that the case property is required to be sent to the Office of Chemical Examiner in the one lot. Now there are two things, firstly, that the two sample parcels were sent after a gap of 3 months and 12 days and the second one is that the entry in relation to the despatch of samples was not at all made in Register No.19 for the reasons best known to this witness. Had all the 12 sample parcels been in existence, this witness by no stretch of speculation would have forgotten to send these two sample parcels alongwith the other ten. This gives rise to the presumption that in fact remaining two samples were not in being and it is because of this reason, the same could not sent with the first lot. It is probable that these two samples were later on procured from somewhere and then these were sent to the Office of the Chemical Examiner. There is no vouch for the fact that these two sample parcels were also in existence, when the other lot of 10 was despatched. The prosecution cannot be relieved of its duty, by merely saying that due to mistake, in the first occasion, only 10 sample parcels were sent. It is obligated to give luculent Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -8- explanation. In re: Balwinder Singh alias Billa v. State of Haryana, 2009 (2) Recent Criminal Reports (Criminal) 730, the sample parcel was sent to the Forensic Science Laboratory after a delay of 6 days from the date of alleged recovery. The delay was unexplained. It was held by this Court that the possibility of tampering with the sample parcels cannot be ruled out. In re: State of Rajasthan v. Gurmail Singh, 2005(2) Recent Criminal Reports (Criminal) 58 (SC), the contraband was kept in malkhana. The malkhana register was not produced to prove that it was so kept till the sample was handed over to the Constable for deposited in the laboratory. The other evidence produced was also found to be unreliable. In these circumstances, it was held that the prosecution has miserably failed to prove that the sample was not tampered with, until it reached the office of the Chemical Examiner. In Gian Singh v. State of Punjab, 2006(2) Recent Criminal Reports (Criminal) 611, there was a delay of 14 days in sending the sample to the Office of the Chemical Examiner. Under these circumstances, it was held that “the possibility of the tampering with the sample could not be ruled out and the link evidence was incomplete.” Here in this case, the delay in sending the sample parcels in two lots raises the dimensions of tampering with the contents of the sample parcels in view of the fact that the seal remained with the above-mentioned police official and the same was not entrusted to Tarsem Lal public man, who was allegedly present at the time of recovery. As alleged by the prosecution, both the appellants were sitting on the bags at the time of recovery. Jagsir Singh PW7 has solemnly affirmed that “I prepared video movie of the proceedings conducted at the spot in my presence. One official photographer was also Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -9- present on the spot, but I do not remember his name. He took photographs on the spot. After about one month, some police officials took from me the video movie prepared on the spot.” It is in his cross-examination that “When I reached on the spot after two months thereupon one canter loaded by bags and both the accused present today in Court reached on the spot. The police officials unloaded the bags from the canter and placed it on the ground and then I prepared vide movie.” At this stage, this witness was got declared hostile and cross-examined by the learned Additional Public Prosecutor for the State. On being cross-examined by the learned Additional Public Prosecutor for the State, this witness did not budge even an inch from his firm stand or in other words, no material favourable to the prosecution could be wrenched out from him. On evaluating the above cross-examination of this witness, it transpires that the whole prosecution story is stage-managed and it did not occur as has been projected by the prosecution. It is apt to be borne in mind that it is the specific version of the prosecution that when the police party arrived at the spot, both the appellants were found sitting on the gunny bags containing poppy husk, whereas in terms of the evidence reproduced hereinbefore tricked from the mouth of this witness Jagsir Singh, the canter loaded with bags was brought to the spot and the same were unloaded on the ground and the accused also reached there. Thus, this version nullifies the prosecution story. At this juncture, it deserves to be pointed out here that Krishan Lal DW2 has stated in categoric terms that “I was working as driver of Canter No.DDL-3960. After 2 & 3/4 years back, I was coming from Ludhiana in the abovesaid canter after unloading the Ghee tins at Ludhiana. The police detained my Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -10- canter at Naka which was being held outside the Muktsar on that day. The police took my canter to CIA staff and loaded 12 bags of poppy husk in it and also made to sit two persons, who were accused present in the Court in the canter and took us to Raniwala. I drove the canter at that time. After reaching at Raniwala, the police prepared movie and conducted and took photographs and did some other proceedings. Thereafter, I had loaded the abovesaid bags of poppy husk in the canter and MHC Joginder Singh of CIA Staff gave me one receipt, photostat copy of which is already Mark A. DSP took original receipt from me during enquiry.” It is in his cross- examination that “In the movie my canter was not shown.” As the contents of Mark A proceed “today, i.e. on 1.12.2003, Canter No. DDL-3960 remained on begaar with CIA Muktsar.” This receipt purported to have been issued by CIA Staff, Muktsar. If this evidence is looked in the background of above-extracted cross-examination of Jagsir Singh PW, it boils down that it is a clear-cut case of plantation of poppy husk bags on these appellants. There is another factor which needs to be taken into consideration. Angrej Singh DW1 has stated in the following terms:- “I am Sarpanch of Village Raniwala. I know both the accused present in Court as they are residents of my village. They belong to Akali Dal Badal Party. About 2 & 1/2/3 years back, ASI Paramjit Singh took both the accused to Police Post Panniwala. The police falsely implicated them in the present case. The Panchayat passed resolution in this regard. I have seen the relevant resolution in the original proceedings book which I have brought today. This resolution is signed by me Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -11- again said thumb marked by me. Photostat copy of this resolution is Ex.D1. It is correct according to the original. The police illegally took the accused to P.P as they belong to Akali Dal Badal Party and on that day the Rally was to be organized by Akali Dal Badal Party. This witness could not be shattered or shaken in any manner. As per the contents of Ex.D1 dated 2.12.2003, the certified copy of the resolution purportedly passed by the Gram Panchayat of Village Raniwala, on 1.12.2003 ASI Paramjit Singh In-charge Police Post Panniwala took away both the appellants being Akali workers at 9:00 A.M to Malout, whereafter SI Surjit Chand Investigator – In-charge/ CIA Staff, Muktsar took them away and foisted this case upon them. This evidence further strikes a death knell to the prosecution version. Coming to the question of conscious possession, in re: Balkar Singh and another (supra), the accused were alleged to have been found sitting on 100 bags of poppy husk. They failed to give any satisfactory explanation for being present at that place. The Apex Court ruled that merely by being found to be present at the place where the poppy bags were found and the failure to give any satisfactory explanation for being so present did not prove that the accused persons were in possession of the said poppy bags. It was further held that in fairness, the police should have conducted further investigation as to transportation of poppy bags to place of incident, ownership of poppy husk etc., to prove that the accused were really in possession of the said articles. In the present one, firstly, it has not been demonstrated by the prosecution that the fields in which the alleged Criminal Appeal No.1746-SB of 2006 Criminal Appeal No.1949-SB of 2006 -12- bags lay was the ownership of Jaswant Singh appellant, secondly, it has not been established as to what mode of transportation was adopted by the appellants for bringing the alleged bags to the place of recovery. Thirdly, it has not been proved as to who was the owner of those bags, on the other hand, the appellants have proved the mode of their transportation to the alleged field. To add further to it, the place of recovery being a field was accessible to all and sundry and an identical view has been taken in Devinder Singh @ Binder v. State of Punjab, 2009(2) Recent Criminal Reports (Criminal) 13. In these premises, there can be no escape from the finding that the prosecution has utterly failed to prove the conscious possession of the appellants qua the poppy husk bags. As a sequel of the above discussion, it transpires that the prosecution has miserably failed to prove its case. Sequelly, both the appeals are accepted, setting aside the impugned judgment/ order of sentence. The appellants are hereby acquitted of the charged offence. August 25, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No