-1- Criminal Appeal No.1900 -SB of 2004 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH -.- Criminal Appeal No.1900 -SB of 2004. Date of Decision: May 12, 2010. Bhola Singh ...Appellant VERSUS State of Punjab ...Respondent 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. R.K.Gupta, Advocate for the appellant and Mr. R.S. Chahal, Advocate as amicus curiae. Mr. Vishal Munjal, Additional Advocate General, Punjab for the State-respondent. -.- MOHINDER PAL, J. Bhola Singh(appellant) has filed this appeal against the judgment of conviction and the sentence order dated 03.09.2004 passed by the learned Judge, Special Court, Patiala, whereby he was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the -2- Criminal Appeal No.1900 -SB of 2004 Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay Rs.1 lac each, as fine, in default whereof to undergo further rigorous imprisonment for a period of one year. The prayer made in this appeal is to set aside the impugned judgment and the sentence order by way of acceptance of this appeal and to acquit the appellant of the charge framed against him under Section 15 of the Act. The facts of the prosecution case, in brief, are that on 21.06.2003, a police party headed by Sub Inspector Kuldip Singh was present at T-point of village Paharpur in connection with patrol duty. Sub Inspector Kuldip Singh received a secret information there against accused-appellant Bhola Singh to the effect that he had constructed a bunker in front of his 'chobara' and had kept huge quantity of poppy husk under the slap covered with earth and that if a raid was conducted, he could be apprehended with poppy husk. In the meantime, Piara Singh, an independent witness came there and was joined in the police party. A raid was thereafter conducted at the house of accused-appellant Bhola Singh. He (accused-appellant) was seen standing on the bunker. On seeing the police party, he (accused-appellant) ran away through the adjoining roofs of the other houses. However, accused was known to Head Constable Harjit Singh previously. Head Constable Inderjit Singh chased the accused but he could not be apprehended. The police party then removed the earth from the bunker. The slab was also removed. Three bags were recovered from the bunker which were found to contain poppy heads. Two samples of 250 grams were separated from each bag. -3- Criminal Appeal No.1900 -SB of 2004 These samples were converted into parcels and sealed. The residue poppy husk in the bags, on weighment, was found to be 34.500 Kgs. These three bags were also sealed. The parcels containing samples and the poppy husk contained in these bags were thereafter taken into possession. Ruqa was sent to the Police Station and on its basis formal F.I.R was registered against the accused. Rough site plan was prepared showing the place of recovery. Statements of the witnesses were recorded. On 23.08.2003, Head Constable Harjit Singh along with Head Constable Nazar Singh were in the police party of Sub Inspector Karmit Singh of CIA Staff, Nabha and were present on the turning point of village Sadho Heri on Malerkotal road. At the instance of Head Constable Harjit Singh, the accused-appellant was apprehended. On personal search of the accused, Rs.60/- were recovered, which were taken into possession by the police party. After receipt of the report of Chemical Examiner and on completion of investigation of the case, challan was presented against the accused-appellant in Court. Charge was framed against the accused for the offence punishable under Section 15 of the Act. He did not plead guilty to the charge and claimed trial. In order to prove its case against the accused, the prosecution examined Head Constable Harjit Singh (P.W.1), Sub Inspector Karmit Singh (P.W.2), Head Constable Surinder Singh (P.W.3), Inspector Harbhajan Singh (P.W.4), Constable Kuldip Singh (P.W.5) and Sub Inspector Kuldip Singh. Piara Singh, the -4- Criminal Appeal No.1900 -SB of 2004 independent witness, was not examined and given up by the prosecution. In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded innocence. Constable Harbhajan Singh (D.W.1), Lal Singh (D.W.2) and Sadhu Singh (D.W.3) were examined by the accused in his defence. I have heard the learned counsel for the parties and have gone through the records of the case. The learned counsel for the appellant argued that in this case identity of the appellant has not been established as he was not apprehended at the spot and the police officials fail to explain as to how they had identified the accused. It has also been argued that conscious possession of contraband poppy husk by the appellant is not proved by the prosecution. After giving my careful thought to the arguments raised by learned counsel for the appellant, I find sufficient force in the same. In this case, the appellant had not been arrested by the police and he had allegedly succeeded in running away from the spot. Sub Inspector Kuldip Singh (P.W.6) stated that the appellant was identified by Head Constable Harjit Singh as he (appellant) and was previously known to him. However, Head Constable Harjit Singh (P.W.1) did not tell anything as to how he identified the accused-appellant. It has, thus, not been explained on record as to how Head Constable Harjit Singh knew the appellant beforehand. Besides, it is obvious that police officials, -5- Criminal Appeal No.1900 -SB of 2004 while form a raiding party, carry with them the arms allotted to them so as to meet any eventuality of confronting with the criminals. It is not possible that appellant Bhola Singh would have been successful in running away from the spot in the presence of police officials, who were armed with their service weapons. These facts cast a serious doubt upon the veracity of the prosecution case. Under the circumstances, it was imperative for the prosecution to examine the independent witness Piara Singh in order to enable the Court to judge his demeanour. Besides, there is no evidence on record to show the ownership of the poppy husk by the appellant. The police, in all fairness, should have conducted further investigation to prove that appellant Bhola Singh was really in possession of these bags. The exclusive possession of the accused over the contraband poppy husk has not been proved on record in this case. There is no evidence to prove the charge of transporting the contraband poppy husk to the place of recovery by the accused. No investigation was made regarding the source of the contraband as to wherefrom it was brought and its destination. It casts a serious doubt on the prosecution version. Still further, neither the secret information, on the basis of which raid was conducted at the house of the accused- appellant, was reduced into writing nor Sub Inspector Kuldeep Singh forwarded the secret information to his senior officers. In view of the above, the charge under Section 15 of the Act against the accused-appellant is not proved beyond every -6- Criminal Appeal No.1900 -SB of 2004 reasonable doubt. Resultantly, I accept this appeal and acquit the appellant of the charge framed against him by giving him the benefit of doubt by setting aside the impugned judgment of conviction and the sentencer order. ( MOHINDER PAL ) May 12, 2010. JUDGE ak