Crl.Appeal No. 696-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.696-SB of 2004 Date of decision: 7.3.2011 Ranjit Singh … Appellant Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.Sameer Sachdev, Advocate, for the appellant. Mr.Raja Sharma, AAG, Haryana. … JORA SINGH, J. Ranjit Singh directed this appeal against the judgment of conviction dated 19.2.2004 and order of sentence dated 20.2.2004 passed by Special Court, Kurukshetra, in Sessions Case No.49 of 2003, arising out of FIR No.187 dated 14.7.2000 under Section 15 of Narcotic Drugs and Psychotropic Substances Act,1985 (for short `the Act’), PS, Pehowa. By the said judgment, he was convicted under Section 15 of the Act and sentenced to undergo RI for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for one year. Prosecution story, in brief, is that on 14.7.2000, police party headed by SI/SHO Satbir Singh was present near Bus Stand, Bodhni, in connection with patrol duty and excise checking, then received secret information that Ranjit Singh alias Rana along with Jaswant Singh alias Jassi in Truck No. HR-29-B-8705 is transporting cement bags along with Crl.Appeal No. 696-SB of 2004 2 bags containing poppy husk. In case there is a nakabandi, then they can be apprehended. As per secret information, police party was holding a nakabandi on the road leading to Dera Buta Singh. After some time, Truck No. HR-29-B-8705 was noticed while coming from the side of Bodhni and was signalled to stop. On seeing the police party, one person had fled away. Driver of the truck was apprehended and on enquiry, he disclosed his name as Ranjit Singh @ Rana, owner of the truck. Ranjit Singh alias Rana disclosed the name of the person, who had fled away from the spot as Jaswant Singh alias Jassi. IO suspected some intoxicant in the bags being transported in the truck. Offer was given to the accused as to whether he wanted search of the bags in the presence of any Gazetted Officer or a Magistrate. Reply of the accused was that he wanted search of the bags in the presence of a Gazetted Magistrate. After that, message was sent to Ranjit Singh, DSP, and Deep Kaushal, Tehsildar, to reach at the spot. After some time, DSP Ranjit Singh and Deep Kaushal, Tehsildar, Pehowa, came at the spot. As per direction of the Gazetted Officer, truck was searched. 280 bags of cement were found loaded in the truck. 65 bags containing poppy husk were found concealed underneath the cement bags. Two samples, each weighing 200 grams, were separated to serve as sample from each bag and remaining poppy husk in each bag on weighment was found to be 39.800 kgs. Samples and the bags containing the remaining poppy husk were separately sealed by the IO with his own seal bearing impression `SS’ and of Tehsildar bearing impression `DK'. Seal impressions of both the seals used were prepared separately. Seal of the IO after its use was handed over to ASI Darshan Lal, whereas Tehsildar retained his seal with him. Case property was taken into police possession vide separate memo attested Crl.Appeal No. 696-SB of 2004 3 by the witnesses. Cement bags were taken into police possession vide separate memo attested by the witnesses. Truck No. HR-29-B-8705 was also taken into police possession vide separate memo attested by the witnesses. On return to the police station, case property was deposited with the Incharge of Malkhana. 65 sample parcels were deposited in the laboratory and as per report of the laboratory, contents of the sample parcels were found to be poppy husk. After completion of investigation, challan was presented in the Court. Accused was charged under Section 15 of the Act, to which he pleaded not guilty and claimed trial. Prosecution examined number of witnesses. PW1 ASI Piara Singh stated that on receipt of ruqa (Ex.PA), he had recorded formal FIR (Ex.PA/1). Special report was sent to the Ilaqa Magistrate through Constable Umed Singh. PW2 Constable Umed Singh stated that he had handed over special report to the Ilaqa Magistrate, Pehowa, on 14.7.2000 at 11.30 PM. PW3 HC Ram Bilas tendered his affidavit (Ex.PB). PW4 HC Rattan Singh stated that report (Ex.PC) under Section 57 of the Act was received and the same was put up before DSP, Pehowa. PW5 Constable Man Singh tendered his affidavit (Ex.PD). PW6 Deep Kaushal, Tehsildar, stated that on 14.7.2000, he was serving as Executive Magistrate and was Gazetted Officer. Telephonic message was received from SHO, Pehowa, to reach at the spot. As per message, he had gone to the spot with DSP, where SI/SHO Satbir Singh along with other police officials was present. Truck No. HR-29-B-8705 with driver was also noticed at the spot. DSP, Pehowa, was also present at Crl.Appeal No. 696-SB of 2004 4 the spot. IO was directed to search the truck and on search, 280 bags of cement were found loaded. Underneath the cement bags, 65 bags containing poppy husk were also found. Two samples, each weighing 200 grams, were separated to serve as sample and remaining poppy husk in each bag on weighment was found to be 39.800 kgs. Samples and the remaining poppy husk in bags were separately sealed by the IO with his own seal bearing impression `SS’ and with his own seal bearing impression `DK'. Seal impressions of both the seals used were prepared separately. Seal of the IO after its use was handed over to ASI Darshan Lal, whereas he retained his seal with him. Case property was taken into police possession vide separate memo attested by him. Cement bags and truck were taken into police possession vide separate memos. PW7 SI Paras Kumar had partly investigated the case in hand and prepared report under Section 173 Cr.P.C. PW8 HC Chanan Ram stated that he was with the party headed by SI/SHO Satbir Singh. Accused had produced RC, challan chit, permit, driving licence and billity and the same were taken into police possession vide separate memo attested by him. PW9 ASI Darshan Lal is one of the recovery witnesses. He has supported the version of PW6 Deep Kaushal, Tehsildar. PW10 Kamal Kishore stated that he was Clerk with M/s Hari Transport, Biawar. 280 bags of cement were loaded in Truck No. HR-29- B-8705 from Biawar. Driver of the truck was Sewa Singh. Ranjit Singh, owner of the truck, was also present at the time of loading of cement. PW11 Sinder Kaur stated that Truck No. HR-29-B-8705 is owned by her. Truck is on superdari. Sewa Singh was the driver. Crl.Appeal No. 696-SB of 2004 5 After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellant was that Sewa Singh was employed as driver. On the date of alleged occurrence, Sewa Singh along with Jaswant Singh @ Jassi was driving the truck. Sewa Singh and Jaswant Singh had fled away from the spot. He was brought from his house and was falsely implicated in this case. Documents were in the truck. In defence, DW1 Punjab Singh stated that he is from the village of the accused. On 14.7.2000, police came to his village and enquired about Ranjit Singh. He along with police had gone to the Dera of Ranjit Singh. He was present in his Dera. 10-12 persons from the village were also present there. Police told that truck of Ranjit Singh was apprehended from the custody of Sewa Singh, driver, and Jaswant Singh. Ranjit Singh was brought to the police station. They had also gone to the police station. Ranjit Singh was directed to stay in the police station and they were directed to enquire in the morning. In the morning, Sewa Singh and Jaswant Singh were not in the custody of police. Ranjit Singh was found locked. DW2 Gurmit Singh stated that accused is from his village. On 14.7.2000, police came to his village and enquired about Ranjit Singh by saying that his truck loaded with cement and the bags containing poppy husk was apprehended. Ranjit Singh was brought to the police station. Sewa Singh was the driver of Ranjit Singh. Police had earlier apprehended Sewa Singh and Jaswant Singh but they were released by the police. Ranjit Singh was falsely implicated in this case. After hearing learned PP for the State, learned defence counsel Crl.Appeal No. 696-SB of 2004 6 for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellant argued that police party had secret information and was holding nakabandi. Independent witnesses were available but no one was joined without any reason. Police party was headed by SI/SHO Satbir Singh but he was not examined. In fact, Sewa Singh was employed as driver by the appellant. On the date of occurrence, Sewa Singh along with one Jaswant Singh were apprehended by the police. But later on, they were let off with some ulterior motive. Appellant was falsely implicated in this case. Application (Ex.DA) was moved to release cement on superdari and in the heading, name of the accused was written as Sewa Singh. After cutting, name of the accused was changed from Sewa Singh to Ranjit Singh. Ex.DB is the copy of billity showing this fact that Sewa Singh was the driver. Sewa Singh and Jaswant Singh were apprehended by the police but later on, they were released. Appellant was implicated being owner of the truck. In fact, appellant was brought from his house on the intervening night of 14/15.7.2000 in the presence of Punjab Singh and Gurmit Singh, DWs. Learned State counsel argued that truck in question was owned by the appellant. Sinder wife of appellant appeared as PW11 but she did not state a word that the appellant was brought from his house on the intervening night of 14/15.7.2000. Appellant when examined under Section 313 Cr.P.C., then stated that Sewa Singh was the driver at the time of apprehension. Sewa Singh along with Jaswant Singh was arrested by the Crl.Appeal No. 696-SB of 2004 7 police but they were let off. Sewa Singh and Jaswant Singh had no say in the police department. There was no reason to leave them. Secret information was against the appellant and Jaswant Singh. As per secret information, police party was holding nakabandi. In the meantime truck in question was noticed and was signalled to stop. Appellant was apprehended at the spot but the second person accompanying the appellant had fled away from the spot. Appellant had disclosed his name as Jaswant Singh but Jaswant Singh was found to be innocent and was not challaned. According to DWs, appellant was brought from his house on the intervening night of 14/15.7.2000 at about 9/10.00 PM. According to DW1 Punjab Singh, when he came to the police station along with police party and the appellant, then Sewa Singh and Jaswant Singh were found in the police station but no complaint to any authority. DW2 Gurmit Singh stated that when police came, then he had gone to the house of the appellant. Appellant was brought to the police station by saying that his truck was apprehended with cement and bags containing poppy husk. Sewa Singh and Jaswant Singh were earlier apprehended by the police. Complaint was sent to the higher authorities but copy of complaint is not on the file. No doubt, police party had secret information but nothing on the file that independent witnesses were available. Suppose, independent witnesses were available and no one was joined, then on this ground, story is not to be ignored. IO was not examined because he had died during the pendency of trial. So, non- appearance of IO is not fatal. Application (Ex.DA) was moved by Kamal Kishore for release of cement on superdari. Application is dated 29.7.2000. Name of Sewa Singh was written to create defence. Billity (Ex.DB) dated 11.7.2000 is on the file. According to billity, question is whether on Crl.Appeal No. 696-SB of 2004 8 14.7.2000, truck in question was being driven by Sewa Singh or the appellant. PW10 Kamal Kishore stated that at the time of loading of cement, appellant was also present along with Sewa Singh, driver. Sewa Singh was not produced in defence to state that at the relevant time, he was driving the truck. Jaswant Singh was also not produced in defence to state that he along with Sewa Singh was apprehended with Truck No.HR-29-B- 8705, but there was no recovery of poppy husk from the truck. First submission of learned defence counsel for the appellant was that police party as per secret information was holding nakabandi. Independent witnesses were available but no one was joined. So, non- joining of independent witness is fatal. But after going through the evidence on the file, I am of the opinion that submission of learned defence counsel seems to be not correct one. Police party headed by SI/SHO Satbir Singh received secret information that appellant and one Jaswant Singh in Truck No.HR-29-B-8705 was transporting bags containing poppy husk concealed underneath the bags of cement. In case, there is a nakabandi, then they can be apprehended. As per secret information, police party was holding nakabandi, then noticed Truck No.HR-29-B-8705 and was signalled to stop. On seeing the police party, one person sitting by the side of driver had fled away from the spot. Appellant was driving the truck at the relevant time and was apprehended. He disclosed his name as Ranjit Singh. On enquiry, appellant disclosed the name of the person, who had fled away from the spot, as Jaswant Singh. Jaswant Singh was found innocent and was not challaned. Only the appellant was challaned. Appellant was the owner of the truck in question. First of all, nothing on the file that independent witnesses were available. Suppose, independent witnesses Crl.Appeal No. 696-SB of 2004 9 were available and the IO failed to join any one of them, then on this short ground, appellant is not to be acquitted. When independent witnesses are available and no effort to join any one, then evidence on the file is to be scrutinized with great care and caution. Non-joining of independent witness available is one of the suspicious circumstance but on this ground, story is not to be ignored. In 2009(4) RAJ, 330, Balbir Kaur vs. State of Punjab, independent witness was joined. Seal after its use was not handed over to independent witness. Independent witness appeared in defence. Held that with the non-appearance of independent witness as PW, prosecution story is not to be ignored. In the present case, nothing on the file that independent witnesses were available and without any reason, no one was joined. So, non-joining of independent witness is not fatal. Second submission of learned defence counsel for the appellant was that SI/SHO Satbir Singh was the IO but he was not examined. Due to non-appearance of IO, story is to be ignored. But submission of learned defence counsel is without any force. No doubt, SI/SHO Satbir Singh was heading the police party. He was the IO but report on the summons shows that he had died on 13.11.2002. After the death of IO, it was beyond the control of the prosecution to produce IO. Two recovery witnesses, namely, ASI Darshan Lal and Deep Kaushal, Tehsildar, appeared in Court and categorically stated that appellant was apprehended while carrying poppy husk in Truck No.HR-29-B-8705. Next submission of learned defence counsel for the appellant was that Sewa Singh was employed as driver. At the relevant time, Sewa Singh was driving the truck. One person, namely, Jaswant Singh was accompanying Sewa Singh. Both were apprehended by the police but later Crl.Appeal No. 696-SB of 2004 10 on, they were let off with ulterior motive. Appellant was brought from his house on the intervening night of 14/15.7.2000 at about 9/10.00 PM and later on, was falsely implicated in this case. But after going through the evidence on the file, I am of the opinion that defence version seems to be not reasonable one. PW11 Sinder Kaur is the wife of the appellant and stated that she is the owner of the truck and the truck is on superdari. Her husband used to reside in the house. She has not stated a word that on the intervening night of 14/15.7.2000 at about 9/10.00 PM, her husband was brought from the house in the presence of Punjab Singh and Gurmit Singh, DWs. Ex.DB is the billity dated 11.7.2000. As per Ex.DB, Sewa Singh was the driver. 280 bags of cement were loaded in the truck. At that time, appellant was also present and this fact is clear from the statement of PW10 Kamal Kishore. As discussed earlier, according to Ex.DB, Sewa Singh was the driver but at the time of loading of cement, appellant was also present. Appellant when examined under Section 313 Cr.P.C., then did not state a word that at the time of loading of cement, he was present with Sewa Singh at Biawar, District Ajmer, and on the way, truck was handed over to Sewa Singh and he came back to his house. PW11 Sinder Kaur, wife of the appellant, has also not stated a word that on 11.7.2000 when cement bags were loaded in the truck, appellant had not gone to Biawar. Appellant when examined under Section 313 Cr.P.C., then did not state a word that he was not present at the time of loading of cement bags on 11.7.2000 at Biawar or after loading of cement bags, he came back directly to his house by leaving Crl.Appeal No. 696-SB of 2004 11 the truck in the custody of Sewa Singh. No defence version of the appellant that on 14.7.2000 at about 9/10 PM, he was brought from his house in the presence of Punjab Singh and Gurmit Singh, DWs. Punjab Singh as DW1 stated that on 14.7.2000 at about 9/10 PM, police came to his village. Appellant was brought from his house. He had gone to the police station along with the appellant. Sewa Singh and Jaswant Singh were found present in the police station but on the next day, they were not in the police station. Appellant was falsely implicated in this case. Punjab Singh was from the village of the appellant. No complaint to any authority regarding false implication. Punjab Singh did not state a word that Gurmit Singh was also present when appellant was brought from his house. One thing is clear from the statement of Punjab Singh that truck in question was apprehended by the police but from the custody of Sewa Singh and Jaswant Singh. Sewa Singh and Jaswant Singh were not produced in defence to state that they were apprehended along with the truck but no recovery of poppy husk. DW2 Gurmit Singh is also from the village of the appellant. He stated that police came to the house of the appellant. Appellant was brought to the police station by saying that his truck was apprehended with cement bags and bags containing poppy husk. That means, poppy husk was recovered from the truck but question is whether at the time of recovery, truck was being driven by Sewa Singh or the appellant. In examination-in- chief, Gurmit Singh stated that earlier police had apprehended Sewa Singh and Jaswant Singh. In cross-examination, admitted that complaint in writing was sent to the higher authorities but copy of the complaint is not on the file. As per DWs, appellant was brought from his house on 14.7.2000 at Crl.Appeal No. 696-SB of 2004 12 about 9/10 PM but suggestion was given to PW9 ASI Darshan Lal that appellant was apprehended on 12.7.2000 with truck loaded with cement bags. PW10 Kamal Kishore in examination-in-chief stated that driver of the truck was Sewa Singh. Ranjit Singh, owner of the truck, was also in the truck when cement bags were loaded. In cross-examination, stated that besides Sewa Singh, there were two persons with him in the truck. He cannot tell whether Ranjit Singh was one of the said two persons with Sewa Singh. So, evidence on the file shows that when cement bags were loaded in the truck on 11.7.2000 as per billity (Ex.DB), then appellant was present. According to the defence version, Sewa Singh and Jaswant Singh were in the truck and they had fled away from the spot. Third person was also with Sewa Singh and Jaswant Singh as per PW10 Kamal Kishore. According to recovery witnesses, appellant was driving the truck at the relevant time. 65 bags containing poppy husk were found loaded in the truck. One of the persons accompanying the appellant had fled away from the spot on seeing the police party. As per information supplied by the appellant, that person was Jaswant Singh. As per DWs, appellant was brought from his house on 14.7.2000, whereas suggestion to PW9 ASI Darshan Lal was given that appellant was apprehended with cement bags on 12.7.2000. Copy of the complaint is not on the file. Sewa Singh and Jaswant Singh had no say in the police department. So, there was no reason to leave them. Appellant had no enmity with the police party. So, after leaving Sewa Singh and Jaswant Singh, there was no idea to implicate him. If for the sake of arguments, appellant was not driving the truck at the relevant time, then being owner of the truck, he was liable for punishment because without the knowledge of owner, no question of transportation of gunny bags Crl.Appeal No. 696-SB of 2004 13 containing poppy husk. So, defence version was rightly ignored by the trial Court. In the light of all discussed above, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is upheld. Appeal without merit is rejected. Appellant is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which, concerned authority/CJM, Kurukshetra, to issue re-arrest warrants to undergo remaining period of sentence. 7.3.2011 (JORA SINGH ) pk JUDGE