Criminal Revision No.723 of 1990 & Criminal Revision No.729 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Date of Decision:08.07.2009 1. Criminal Revision No.723 of 1990 Jita Singh .....Petitioner Vs. State of Punjab .....Respondent 2. Criminal Revision No.729 of 1990 Mukand Singh .....Petitioner Vs. State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- None for the petitioners. Mr. T.S. Salana, Deputy Advocate General, Punjab. **** JUDGMENT HARBANS LAL, J. This judgment shall dispose of Criminal Revision No.723 of 1990 filed by Jita Singh accused as well as Criminal Revision No.729 of 1990 moved by Mukand Singh against the judgment dated 20.8.1990 passed by the Court of learned Additional Sessions Judge, Barnala whereby he dismissed the appeal preferred by the above-mentioned accused persons against the judgment/ order of sentence dated 3.8.1988 rendered by the Court of learned Judicial Magistrate Ist Class, Barnala vide which he Criminal Revision No.723 of 1990 & Criminal Revision No.729 of 1990 -2- convicted and sentenced Mukand Singh, Ajit Singh and Jita Singh each to undergo rigorous imprisonment for one and a half years and to pay a fine of Rs.2,000/- and in default of payment of the fine, the defaulter was to undergo further rigorous imprisonment for six months under Section 9(a) of the Opium Act (hereinafter to be referred as `the Act'). Shortly put, facts of the prosecution case are that on January 21, 1985, Sub- Inspector Sudesh Kumar among other police officials including Amar Singh ASI laid “Nakabandi” at the canal bridge in the area of Village Kot Duna. Around 10:15 A.M. Mangal Singh PW by chance turned up there and he was co-opted with the police party. At about 11:00 A.M., a truck bearing registration No.PUK-7217 was spotted approaching from Bhikhi side being driven by Mukand Singh accused. It was intercepted and stopped. Ajit Singh and Jita Singh were sitting by the side of Mukand Singh driver, who made a bid to run away from the spot after alighting from the truck. He along with Jita Singh and Ajit Singh was apprehended. One hundred gunny bags each containing 40 kilograms of poppy husk were found loaded in the truck. After observing usual formalities, the bags were seized. The case was registered. After completion of investigation, the charge-sheet was laid in the Court of learned Judicial Magistrate Ist Class, Barnala for trial of the accused. The accused were charged under Section 9 of the Act, to which they did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution examined Surinder Singh PW1, Sub Inspector Sudesh Kumar PW2, ASI Amar Singh PW3 and closed its evidence by tendering the affidavits Ex.PJ and Ex.PK of formal witnesses and Ex.PH, a Criminal Revision No.723 of 1990 & Criminal Revision No.729 of 1990 -3- report of Chemical Examiner. When examined under Section 313 of Cr.P.C, all the accused denied the incriminating circumstance appearing in the prosecution evidence against them. As set forth by the accused Ajit Singh, he was waiting at the Bus Adda Dhanaula for some vehicle. He was present there for the purpose of purchasing vegetables and fruits. The police took him to the Police Station by saying that he was having some stolen material with him and gave him beatings and falsely implicated in this case. Ajit Singh accused came up with the plea that Mukand Singh had a quarrel at Bus Adda from where the police of Dhanaula took him to the police station. When he went there, he was also made to sit in the police station and later on, this case was foisted upon him. Mukand Singh accused stated that he had never been the driver on the alleged truck nor he knows how to drive the truck and that on account of wordy duel, the police of police station Dhanaula whisked him away to the police station, where this case was foisted upon him. In their defence, they examined Constable Gurmeet Singh, 962 Police Station Dhanaula as DW1. The revisions under discussion were listed for arguments number of times besides being displayed on the net nonetheless, none had come forward to argue on behalf of the petitioners. I have heard the learned State Counsel besides, perusing the record with due care and circumspection. The common ground taken up by both the petitioners in their revision petitions are that the prosecution did not join any independent witness at the time of alleged recovery. One Mangal Singh was joined who is a police tout, but he too was given up as Criminal Revision No.723 of 1990 & Criminal Revision No.729 of 1990 -4- allegedly won over. The prosecution has badly failed to link the case property with the petitioners. The link evidence is totally missing. The case property, which was produced in the Court was without any seal and produced with broken seals. Both the Courts below did not record a finding to the effect that the petitioners were in conscious possession of the poppy husk, which further makes the case of the prosecution weak. The possibility of tampering with the case property cannot be ruled out. The sworn affidavits of the witnesses, namely, Moharrar Head Constable Manjit Singh and Constable Ranjit Singh are not correctly attested and verified. The solitary argument raised by Mr. Salana on behalf of the State is that this heavy recovery, by no stretch of speculation, could be planted upon the petitioners. This contention merits rejection for the discussion to follow hereunder. A careful delving into the evidence would reveal that there are inherent infirmities in the prosecution evidence. It is in the cross- examination of Sudesh Kumar Sub Inspector/ SHO PW2 that “I had prepared 100 chits in total bearing his seal at the spot and such chits did contain particulars of the case and all such chits hundred in number were affixed on the bags Ex.P5 to Ex.P104. Today, none of the bag produced as case property bear any such chit, which were glued on the bags with the aid of gum. It is correct that the particulars of the case have not been written on any bag of the case property.” This evidence can be well construed to mean that Ex.P5 to Ex.P104 neither bear the said chits nor item number of the malkhana or particulars of the case. In such a sorry state of affairs, by no stretch of imagination, it can be said that the bags produced at the trial were Criminal Revision No.723 of 1990 & Criminal Revision No.729 of 1990 -5- the same as were recovered from the truck. There could be every possibility that the case property of some other case or cases was produced at the trial. In the absence of any mark worth the name or mention on any bag of the case property, it is very difficult to say that the bags produced as case property were the recovered bags. This sole infirmity strikes a death knell to the prosecution case. To add further to it, as surfaces in the cross- examination of the Investigating Officer, the seals on certain bags were found in broken condition. Another lacunae which demolishes the prosecution edifice like a house of cards is that as testified in his cross- examination by Sudesh Kumar (sic.), he did not prepare any such chit at the spot as would have been bearing his seal or signatures of a witness. It implies that the specimen seal impression was not brought into being at the spot. Gurmeet Singh Constable DW1 has solemnly affirmed that “I have brought with me Register No.19 and the case property of this case was deposited vide Sr. No.364. There is no mention with regards to the deposit of specimen seal in this entry.” This documentary evidence coupled with the afore-extracted cross-examination of Sudesh Kumar (sic.) go a long way in proving that the specimen seal impression was not prepared. If it was so, it has been left in the womb of mystery by the prosecution as to from where came the specimen seal impression allegedly sent to the Chemical Examiner, who in his report Ex.PH has mentioned with specificity that the seals of exhibits agreed with the specimen seal sent. It leads to the conclusion that the specimen seal impression, which was sent to the Chemical Examiner was fabricated, later on. It is also in the testimony of Constable Gurmeet Singh DW1 that in the Entry No.364, weight of each Criminal Revision No.723 of 1990 & Criminal Revision No.729 of 1990 -6- bag has been converted to 39 kgs. 750 grams from 40 kgs by making cuttings. It conclusively prove that the case property as well as the entry relating to its deposit with the Moharrar Head Constable were tampered with. As follows from the record, on 31.8.1987 Jita Singh accused made a statement before the Court that police of Police Station Dhanaula has brought Mangal Singh PW, but he is being precluded from giving evidence and that being so, he is being given up. It gives an inkling that if this witness Mangal Singh had been examined in defence by the accused, the Cat would have been let out of the bag. To put it differently, this witness would have shed light on reality exposing the working of the investigator Sudesh Kumar, who under the stress of cross-examination has admitted that “I can recollect that in my (Sudesh Kumar Investigator) two cases, only Mangal Singh has been cited by me as a witness and of these, one case is `State v. Piara Singh' under Section 9 of the Act and the title of the other one is not remembered to me and that Mangal Singh is a constant visitor to the Police Station. Mangal Singh had been known to me perviously. I do not know if Mangal Singh had been cited as a witness in opium/ liquor cases numbering 25/30 of Police Station Dhanaula. I also do not know if Mangal Singh had been declared as a bad character by Police Station Dhanaula before my posting.” Mangal Singh PW having been declared as such, would have certainly been to the pointed notice of this witness for his having been posted in the same police station. The fact of Mangal Singh having been cited as a prosecution witness in 25/30 cases referred to above would have also been to his knowledge. It shall appear in the cross-examination of the investigator that “That man had died in Civil Hospital. Perhaps his name Criminal Revision No.723 of 1990 & Criminal Revision No.729 of 1990 -7- was Mukhtiar Singh. He was got admitted in the Hospital by H.C. Raj Pal. I do not know, if in relation to it, a complaint case under Section 302 of IPC is pending or not in this Court. It is correct that magisterial inquiry was conducted against me in this regard.” In all human probabilities, it would have been to his knowledge as to whether or not he was facing a trial in the said case. Thus to say the least of it, he was not giving answers properly for the reasons best known to him. It is also in his cross-examination that two or three persons had passed by their side at the spot, whereas according to ASI Amar Singh PW3, no public man came to them at the spot. Thus both these witnesses are discrepant and contradict each other on this point. Nay this, the Investigator has not given any explanation for non-joining of such passers- by. Mangal Singh PW being a pliable and convenient witness seems to have been introduced in the story. There is no cogent, convincing and clear evidence to the effect that the recovery was really effected within his view. In the absence of evidence of sterling character, it is very difficult to say that this recovery was effected from the truck. In re: Kashmir Singh v. State of Punjab, 2006(2) Recent Criminal Reports (Criminal) 477, the Full Bench of this Court ruled that “there is presumption that the accused was in conscious possession. This presumption, however, will not apply unless an opportunity is given to the accused to rebut and explain the presumption by putting question under Section 313 of Cr.P.C. Presumptions are, however, rebuttable. These presumptions will not be available to prosecution unless trial Judge gives an opportunity to accused to rebut the presumption by putting question under Section 313 of Cr.P.C. Therefore, the accused should be given an Criminal Revision No.723 of 1990 & Criminal Revision No.729 of 1990 -8- opportunity to lead evidence in defence in support of his stand. A fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a pre- ponderance of probabilities.” Adverting to the facts of the instant case, the question of conscious possession has not been put to the accused persons, when they were being examined under Section 313 of Cr.P.C. Consequently, it is very difficult to draw presumption against the petitioners that they were in conscious possession of the stated contraband. There is no gainsaying the fact that there is delay of as many as seven days in sending the samples to the Chemical Examiner. The affidavit Ex.PJ of MHC Manjit Singh with whom the case property was deposited has been tendered in evidence by the prosecution, without affording an opportunity to the petitioners to cross-examine him. So, is the state of affidavit Ex.PK of Constable Ranjit Singh who had allegedly carried the samples to the Chemical Examiner. Thus, the petitioners have been robbed of their valuable right of cross-examination. There is also no offer of such cross-examination to the petitioners. Hence, these affidavits cannot be read in evidence against the petitioners. Sequelly, there is dent in the prosecution case. As observed by the Division Bench of this Court in re: Parminder Singh v. State of Haryana, 2006(4) Recent Criminal Reports (Criminal) 495, according to the Narcotic Central Bureau Instructions, the sealed parcels should be deposited within 72 hours with the Chemical Examiner. Only MHC Manjit Singh probably could explain the afore- referred delay allowed to creep in despatching the samples. He has been withheld for the reasons best known to the prosecution. Criminal Revision No.723 of 1990 & Criminal Revision No.729 of 1990 -9- In view of the infirmities/ lacunae catalogued hereinbefore, both the revision petitions are accepted, setting aside the impugned judgments/ order of sentence. The petitioners are hereby acquitted forthwith of the charged offence. July 08, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No