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Judgment
Mohinder Pal, J.—This judgment will dispose of the afore-stated three appeals as they arise out of the same First Information Report.
Criminal Appeal No. 1102-SB of 2005 has been filed by appellants Baishakha and Darbara whereas Criminal Appeal No. 1357-SB of 2005 has been preferred by appellant Ram Kumar against the judgment of conviction dated 11.05.2005 and the sentence order dated 17.05.2005 passed by the Additional Sessions Judge, Jind, whereby they were convicted u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the 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 two years.
In Criminal Appeal No. 2406-SB of 2009 challenge has been made by appellant Munshi Ram alias Bachi to the judgment of conviction dated 2.6.2009 and the sentence order dated 3.6.2009 passed by the Special Judge, Jind, whereby he was convicted u/s 15 of the 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 two years.
It may be mentioned hear that when trial was in progress against appellants Baishakha, Darbara and Ram Kumar, appellant Munshi Ram alias Bachi absconded and was declared a Proclaimed Offender vide order dated 8.7.2004. It was after his arrest that he was put on trial, convicted and sentenced, as mentioned above.
As per allegations of the prosecution, on 01.01.2001, Sub-Inspector Ram Avtar of Police Station Garhi along with other police officials was present at Police Post Pipaltha in connection with patrolling and was holding a ''nakabandi'' in front of the Police Post. A Tata Sumo bearing registration No. HR-33/8547 was seen coming from the side of Dhabi Tek Singh. The Investigation Officer namely Inspector Ram Avtar signalled this vehicle to stop with the torch. Thereafter, the driver stopped the vehicle near the grave of ''Peerbaba''. On seeing the police, accused Baishakha and Darbara managed to escape from the spot. However, appellant Ram Kumar, who was driving the vehicle and appellant Munshi Ram alias Bachi were caught by the police. Thereafter police party checked the said vehicle which was found to contain five gunny bags giving smell of poppy husk. Sub Inspector Ram Avtar, Investigating Officer served notice upon Ram Kumar and Munshi Ram (accused-appellants) apprising them of their right to be searched before a Gazetted Officer or a Magistrate. Accused-appellants Ram Kumar and Munshi Ram replied that they wanted to be searched in the presence of a Gazetted Officer. Thereafter, Investigation Officer gave a message to Deputy Superintendent of Police, Narwana through V.T. Message and requested him to reach the spot. Deputy Superintendent of Police Sukhdev Singh, accordingly, reached the spot. On reaching there, he disclosed his identity to the accused-appellants. On the direction of Deputy Superintendent of Police, Investigating Officer searched the Tata Sumo and found five gunny bags containing poppy husk therein. 250 grams of poppy husk was separated from each of the bags. The remaining poppy husk, on weighing, was found to be 39.750 grams. The samples and the remaining poppy husk contained in the bags were separately sealed by the Investigation Officer and were taken into possession. The accused were arrested. The formal First Information Report was registered against the accused-appellants. Accused-appellants Baishakha and Darbara were arrested during investigation of the case. Appellant Ram Kumar was found to be the owner of the Tata Sumo wherein contraband poppy husk was being transported.
After completion of investigation and on receipt of the report of the Forensic Science Laboratory, challan against the accused was presented in the Court.
Charge was framed against the accused for the offence punishable u/s 15 of the Act. They did not plead guilty to the charge and claimed trial.
At the trial, the prosecution examined Head Constable Mahipal (P.W.1), Constable Abhey Ram (P.W.2), Assistant Sub-Inspector Phool Kumar (P.W.3), Deputy Superintendent of Police Sukhdev Singh (P.W.4), Inspector Ram Avtar (P.W.5) and constable Subhash Kumar (P.W.6).
In their statements recorded u/s 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded innocence. However, no evidence was led by the accused in their defence.
The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case against the accused beyond reasonable doubt and, accordingly, convicted and sentenced them, as mentioned above.
I have heard Mr. Satnam Singh, Advocate, appearing for appellants Baishakha Singh and Darbara Singh,Mr. Amandeep Singh Advocate, appearing for appellant Ram Kumar, Mr. Sukhdeep Parmar, Advocate, appearing for appellant Munshi Ram alias Bachi, and Ms. Sushma Chopra, Additional Advocate General, appearing for the State-respondent and have gone through the records of the case.
At the outset, it may be mentioned here that accused-appellants Baishakha and Darbara were not arrested at the spot. Investigating Officer Inspector Ram Avtar (P.W.5) stated that he knew appellants Baishakha and Darbara beforehand. In his cross-examination Inspector Ram Avtar (P.W.5) stated that he had spotted the Tata Sumo at a distance of 40 paces; that there were five Constables with him, who were young; that he had his service revolver with him at that time; and that the police officials had chased appellants Baishakha and Darbara. In the presence of five young Constables and the Investigating Officer being armed with his service revolver, it cannot be believed that accused-appellants Baishakha and Darbara could have been able to flee away from the spot. Besides, Inspector Ram Avtar (P.W.5) could not disclose as to how he knew accused-appellants Baishakha and Darbara before hand. It may also be pointed out that Constable Subhash Kumar (P.W.6), who was a member of the police party, in his cross-examination stated that there was darkness and that he did not chase the accused Darbara and Baishakha. He further stated that there were four employees on the spot and nobody chased the accused Baishakha and Darbara. These facts cast a serious doubt upon the veracity of the prosecution case so far as appellants Baishakha and Darbara are concerned. Accordingly, they are entitled to acquittal.
Insofar as appellants Ram Kumar and Munshi Ram alias Bachi, the facts of this case, as mentioned above, disclose that there is no doubt about the fact that they were in conscious possession of the quantity of poppy husk recovered from their possession.
Learned Counsel for appellants Ram Kumar and Munshi Ram alias Bachi argued that the case of the prosecution is based only on the statements of the official witnesses and no independent person was joined by the police party. According to the learned Counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. It has been submitted that non-joining of any independent witnesses has upset the balance of the prosecution case, making the alleged recovery doubtful.
After giving a careful thought to the argument raised by the learned Counsel, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the prosecution. Recovery in this case was effected per chance from the Tata Sumo belonging to appellant Ram Kumar, while the police party was patrolling the area. Otherwise also, normally the independent witnesses do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to create ill-will and enmity with criminals. In this case, the official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements qua the participation of appellants Ram Kumar and Munshi Ram alias Bachi in the commission of the instant crime. In this background, merely the fact that no independent witness was joined to witness the recovery, is not a good ground to discard the testimonies of the official witnesses. It is well-settled that the prosecution story cannot be discarded on the ground that independent witness has not been examined. To cap it all, the fact of recovery of five bags of poppy husk, each containing 40 kilograms of poppy husk, from the said accused, which cannot be planted by the police, weighs with the argument raised by the learned Counsel with regard to the non-joining of any independent witness. In these circumstances, non-joining of any independent witness by the police in this case does not at all affect the veracity of the prosecution case.
In this case, there was compliance of the mandatory provisions of Section 50 of the Act as Deputy Superintendent of Police Sukhdev Singh, a Gazetted Officer, was called to the spot and the recovery of poppy husk was effected from appellants Ram Kumar and Munshi Ram alias Bachi in his presence.
For the aforesaid reasons, Criminal Appeal No. 1102-SB of 2005 filed by appellants Baishakha and Darbara is allowed, the impugned judgment of conviction and the sentence order qua them are set aside and they are acquitted of the charge framed against them by giving them the benefit of doubt. Criminal Appeal No. 1357-SB of 2005 and Criminal Appeal No. 2406-SB of 2009 filed by appellants Ram Kumar and Munshi Ram alias Bachi, respectively, are dismissed being without any merit.
The Tata Sumo belonging to appellant Ram Kumar, in which the contraband poppy husk was being transported, is ordered to be confiscated to the State.