Balbir Singh @ Beera vs State of Punjab

Paramjeet Singh, J.—Accused Balbir Singh @ Beera was convicted u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act"). He has challenged the judgment of conviction and sentence dated 29.04.2002 passed by the Special Court. Brief case of the prosecution is that on 23.8.2000 when ASI Pritam Singh incharge police station Sultanpur Lodhi was present at the police station received a secret information to the effect that appellant accused is indulging in the sale of poppy husk and that on that day, the accused would be going on a Scooter No PCV 3883 towards village Tibba and Talwandi Chaudharian to sell poppy husk.

He could be apprehended with contraband. Taking the information credible, ruqa was sent to police station Sultanpur Lodhi, on the basis of which FIR was recorded by the MHC Jasbir Singh.

On receipt of information, wireless message was also sent to police station to send DSP near Bus Stand Village Tibba. Police party headed by ASI Pritam Singh laid a naka near the bus stand of Village Tibba. At bus stand Surinder Singh Sarpanch of Village Tibba met, he was joined in the police party. After some time DSP Ravcharan Singh Brar came there. Thereafter a scooter was sighted coming from the side of villge Boolpur. On a signal by the police party the scooter was stopped. On the rear side of its seat, there were two gunny bags. Investigating Officer enquired about the name of accused. The accused disclosed his name as Balbir Singh. DSP Ravcharan Singh disclosed his identity as DSP Sultanpur Lodhi. Offer was given to the accused whether he wanted to be searched by the gazetted officer or Magistrate. Accused reposed faith for his search before the DSP. Consent memo was prepared which was recorded by the DSP, signed by the accused and Surinder Singh Sarpanch and HC Kewal Singh. On the direction of DSP, investigation officer was directed to search the accused and on search of the accused two gunny bags containing poppy husk were recovered tied on the rear seat of the scooter. Two samples, each weighing 250 grams, were separated from each bag. The remaining quantity weighed 39.750 kgs. of poppy husk in each bag. The sample as well as the bulk quantity were separately parcelled and sealed with the seal of DSP bearing impression Rs. The seal after use was handed over by Surinder Singh. Accused was arrested. The samples, sealed parcels of gunny bags and Scooter recovered were taken in possession vide recovery memoes. On personal search Rs. 125/-were recovered. The accused as well as the case property were produced before SHO. SHO checked the case property and affixed his seals and under the supervision of SHO case property was kept with MHC. On the next day case property along with the accused was produced before the Illaqa Magistrate. The case property was seen by the Magistrate and the Magistrate signed the parcels. After producing before the magistrate case property was deposited with the MHC. The samples were sent to the Forensic Science Laboratory for examination. The Chemical Examiner returned the report that the sample was nothing but poppy husk. After completion of the investigation challan was produced in court.

The appellant was supplied the copies of documents thereafter special court framed charge u/s 15 of NDPS Act.

The prosecution to substantiate charge examined PW1 HC Sakattar Singh PW2 C. Gurcharan Singh, PW3 SI Pritam Singh, PW 4 C-Ravinderjit Singh, PW 5 ASI Iqbal Singh and PW7 HC Kewal Singh.

The statement of the accused u/s 313 was recorded, accused appellant denied all the allegations and pleaded innocence. Accused appellant was afforded opportunity to lead defence evidence. Mehar Singh Sarpanch was examined in defence.

The trial Court having analyzed the entire material on record held that the accused had committed the offence punishable u/s 15 of the NDPS Act and sentenced him accordingly.

I have heard the learned counsel for the appellant and learned State counsel and with their assistance have perused the record.

The only independent witness, Surinder Singh, Sarpanch, who was associated by PW-3 ASI Pritam Singh, was not examined by the prosecution. It is a case where PW-3 on the instruction of DSP, had made a search, recovered the case property, arrested the accused and investigated the case. Under such circumstances, the non-examination of the sole independent witness, Surinder Singh, proves fatal to the case of the prosecution. The learned counsel relied upon a decision of this Court in the matter of Balbir Kaur vs. State of Punjab, 2009(4) RCR (Crl.) 504.

The conduct of PW-3 Investigating Officer and PW-6 DSP in this case has to be taken note of by the Court. After the putting of seal of DSP on the bulk quantity as well as the sample, it was handed over to independent witness. The independent witness, Surinder Singh was, thus, according to proecution story, very much present at the scene of occurrence. But for the reasons best known to prosecution he has not been examined. Non-examination of the independent witness present at the spot, creates a doubt in the mind of the Court about the truthfulness of prosecution case.

There is no evidence on record regarding the deposit of seal impressions. Form No 29 was not filled at the spot. There is delay of 12 days in sending samples. So the possibility of tempering with the case property cannot be ruled out. PW2 C. Gurcharan Singh in his cross-examination has admitted that he had taken only one sample that day. From the statement of the PW-2 it is clear that only one sample was sent. This also creates doubt in the mind of the court.

Sample seals have been affixed on some a paper and then that paper has been pasted on the form No. 29. There is no evidence on record when the seal was returned by the independent witness, this also creates doubt in the prosecution story.

Recovery of the contraband was effected on 23.3.2000, the sample is said to have been handed over to PW-2 who ultimately handed over the sample to the Chemical Examiner on 05.09.2000. There is unexplained delay in sending samples to the laboratory. There are chances of tempering which cannot be ruled out. The evidence, as discussed above, would go to show that there was every opportunity for the police officials to tamper with the sample sent for examination. In my considered view, the prosecution has failed to establish beyond reasonable doubt that the accused-appellant was found in conscious possession of 80 kgs. of poppy husk. Therefore, the accused- appellant is entitled to acquittal. In view of the above, the present appeal is allowed and the judgment of conviction and sentence recorded by the trial Court is set aside. The accused-appellant is acquitted of the charge u/s 15 of the NDPS Act. Accused-appellant, if is in custody, is ordered to be set at liberty forthwith, if not required in connection with any other case.