Balram and Another and Mohinder Singh vs State of Punjab

Mohinder Pal, J.—This judgment will dispose of the afore-stated two appeals as they arise out of the same First Information Report.

Appellants Balram, Mewa Singh and Mohinder Singh have filed these appeals against the judgment of conviction and the sentence order dated 11.11.2003 passed by the learned Judge, Special Court, Patiala whereby they were convicted u/s 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/- each, in default whereof to undergo further rigorous imprisonment for six months.

The prayer made in these appeals is to set aside the impugned judgment and the sentence order by way of acceptance of these appeals and to acquit the appellants of the charge framed against them u/s 15 of the Act.

The facts of the prosecution case are that on 24.04.2002, Sub Inspector Tejinder Singh along with Sub Inspector Ajaib Singh, Assistant Sub Inspector Bhagwan Dass, Head Constable Labh Singh, Constable Balwant Singh, Constable Faqir Chand, Constable Baljinder Singh and some other police officials were present at Bus stop of village Deftriwala in connection with the checking of suspected persons in compliance with the order of the Deputy Superintendent of Police, Samana.

At about 2 p.m, one Jeep bearing No. HR-04-55507 came from the side of Patran and there were three persons sitting in that jeep. The Jeep was signalled to stop. On inquiry, all the accused disclosed their whereabouts. At that time Mohinder Singh, accused was driving the jeep while accused Balram and Mewa Singh were also sitting in the jeep. There were six carton boxes in the said jeep. Sub Inspector Tejinder Singh conducted the checking of the carton boxes which were found to contain poppy husk. Because the recovery was effected per chance so the consent of dissent of all the accused could not be obtained. Two samples of 250 grams from each carton were separated and were made into separate parcels. On weighment, the remaining poppy husk came to be 15 kgs in each bag. During this process, P.W Mohinder Singh came at the spot and he was associated in the police party. The remaining poppy husk was put in the same carton boxes and then put in gunny bags, which were made into separate parcels. All the parcels were sealed with the seal of Sub Inspector Tejinder Singh bearing impression ''TS''. The sale after use was handed over to Mohinder Singh (P.W.). All these parcels and jeep were thereafter taken into possession by the police. Ruqa was sent to the Police Station for the registration of the case against the accused, on the basis of which formal First Information Report was recorded. Site plan was prepared showing the place of recovery. All the accused were then arrested by the police. Personal search of all the accused was also conducted. Sub Inspector Tejinder Singh, Investigating Officer recorded the statements of the witnesses.

On receipt of the report of Forensic Science Laboratory and after completion of investigation of the case, challan was presented against the accused in Court.

Charge u/s 15 of the Act was framed against the accused, to which they did not plead guilty and claimed trial.

In order to prove its case against the accused, the prosecution examined Assistant Sub Inspector Jarnail Singh (P.W.1), Sub Inspector Tejinder Singh (P.W.2), Sub Inspector Ajaib Singh (P.W.3), Head Constable Swantntarpal Singh (P.W.4) and Head Constable Satnam Singh (P.W.5).

In their statements recorded u/s 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded innocence. It was stated by them that no recovery was ever effected from them and they had been falsely implicated in this case by the police.

I have heard Mr. Rajiv Verma, Advocate appearing for the appellants Balram and Mewa Singh, Ms. Sonal Gupta, Advocate, appearing for Mr. V.M. Gupta, Advocate appearing for appellant Mohinder Singh and Mr. Vishal Munjal, Additional Advocate General, Punjab and have gone through the records of the case.

It has been argued by the learned Counsel for the accused that in this case an independent witness, namely, Mohinder Singh was associated in the police party to witness the recovery and seal after use was handed over to him, but the said witness has not been examined by the prosecution. It has been further pointed out that said Mohinder Singh is a stooge of the police as he had usually been cited as a witness for the prosecution. According to the learned Counsel, it makes the case of the prosecution doubtful.

After giving my careful thought to the argument raised by learned Counsel for the appellant, I find sufficient force in the same. As noticed above, the case of the prosecution is consisted of only official witnesses and the only independent witness, namely, Mohinder Singh was not examined. He was given up as having been won over by the accused. No doubt, the statements of the official witnesses cannot be discarded merely because of their official status, but when the totality of the facts and circumstances of the case creates a doubt in the prosecution version, it (the prosecution version) has to be scrutinized minutely.

In this case, it has been alleged in the grounds of appeal of Criminal Appeal No. 2280-SB of 2003 that Mohinder Singh, the independent witness being a stock witness of the police, had already appeared as a witness in various such like cases registered by the Police of Police Station Ghagga. The following three cases have been mentioned in the grounds of appeal of Criminal Appeal No. 2280-SB of 2003:

(i) F.I.R. No. 123 dated 9.8.2000, Police Station Ghagga (Dayal Singh v. State of Punjab);

(ii) F.I.R. No. 124 dated 9.8.2003 Police Station Ghagga (Daler Singh v. State of Punjab); and

(iii) F.I.R. No. 6 dated 7.1.1999, Police Station Ghagga (Bhola Singh v. State of Punjab).

Vide my interlocutory order of even date passed in Criminal Appeal No. 2280-SB of 2003, when learned Counsel for the appellants pointed out that in another case bearing F.I.R. No. 475 dated 16.3.2001 u/s 15 of the Act registered at Police Station Patran (State v. Jaswant Singh), subject matter of Criminal Appeal No. 1412-SB of 2004 after the conviction and sentence of said Jaswant Singh by the trial Court, C-II Kuldip Singh had appeared as D.W.1 to prove that said Mohinder Singh was a witness for the prosecution in four cases, this Court summoned the record of Criminal Appeal No. 1412-SB of 2004 and ordered that copy of the statement of said C-II Kuldip Singh (D.W.1) in Criminal Appeal No. 1412-SB of 2004 be placed on the record of this case.

The four cases mentioned by said C-II Kuldip Singh while appearing as D.W.1 in Criminal Appeal No. 1412-SB of 2004 are F.I.R. No. 6 dated 7.1.1999 Police Station Ghagga, F.I.R. No. 123 dated 9.8.2000, Police Station Ghagga, F.I.R. No. 124 dated 9.8.2003 and F.I.R. No. 32 dated 24.4.2002 Police Station Ghagga. Learned Counsel appearing for the State could not dispute that Mohinder Singh, cited as an independent witness in this case, was also cited as such in those cases.

As has been mentioned above, said Mohinder Singh was given up in this case by the prosecution and not examined as a witness in Court on the ground that he had been won over by the accused. When it stands proved on record that Mohinder Singh was a stooge of the police, in my opinion, it was imperative for the prosecution to have produced and examined him in court. It was then for the Court to judge the veracity of his version, particularly when the seal after use in this case was allegedly handed over by Sub Inspector Tejinder Singh, the Investigating Officer, to Mohinder Singh. Sub Inspector Tejinder Singh (P.W.2) stated that the seal was returned to him by said Mohinder Singh after two/three days in the Police Station. Under the circumstances, the prosecution, by withholding this witness from Court, has caused a dent in the prosecution version.

Besides, there are discrepancies in the statements of the prosecution witnesses. Sub Inspector Tejinder Singh (P.W.2), Investigating Officer, stated that Mohinder Singh, independent witness, had been called by him at the spot. On the other hand, Sub Inspector Ajaib Singh (P.W.3) stated that Mohinder Singh, when he was joined in the police party, was going on foot from Ghagga towards Patran and that he (Ajaib Singh) did not call him nor he could tell who called him. Sub Inspector Tejinder Singh (P.W.2) stated that the writing work was done by Sub Inspector Ajaib Singh (P.W.3) in his handwriting whereas Sub Inspector Ajaib Singh stated that some of the writing work was done by him and some of it was done by Sub Inspector Tejinder Singh. Sub Inspector Tejinder Singh (P.W.2) stated that the Constable who took ''ruqa'' to the Police Station had managed some scooter for the purpose whereas Sub Inspector Ajaib Singh (P.W.3) stated that he did not know the mode of conveyance used by that Constable for taking ''ruqa''. Further Sub Inspector Tejinder Singh (P.W.2) stated that there was a school near the place of recovery which was on the Western side whereas Sub Inspector Ajaib Singh (P.W.3) stated that there was no public place near the place of recovery nor there was any building.

In view of the above and without dilating any further on the point, I am of the opinion that the prosecution has not been able to prove its case against the accused beyond all shadows of reasonable doubts. Consequently, these appeals are accepted, the impugned judgment of conviction and the sentence order are set aside and the appellants are acquitted of the charge framed against them by giving them the benefit of doubt.

It is made clear that this judgment will not be treated as a condition precedent in other cases where independent witness Mohinder Singh has been cited as a witness by the prosecution because each case has its own facts.