Balwinder Singh vs State of Haryana

L.N. Mittal, J.—Accused Balwinder Singh has filed the instant criminal appeal to challenge judgment of conviction dated 08.02.2005 and order of sentence dated 10.02.2005 passed by learned Special Judge, Rohtak, whereby the accused-Appellant stands convicted under Sections 15 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short - the Act) and has been sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/-and in default thereof, to undergo further rigorous imprisonment for two years for each of the two offences. However, both the sentences were ordered to run concurrently.

Prosecution case is that on 06.01.1989, police party headed by SI Pritam Singh, received secret information that truck bearing No. PJE-8677 loaded with bags of poppy husk was coming from the side of Bhiwani towards Kalanaur. Raiding party was prepared to intercept the truck. However, after a little while, PWs Sudershan Kumar and Harphool Singh came on a scooter and informed that just ahead of Village Lahli towards Rohtak, the aforesaid truck was lying overturned and some bags were lying scattered. The police party along with aforesaid witnesses went there. The bags were found containing poppy husk. There were 102 bags in all. Each bag contained 46 kilograms of poppy husk. Out of each bag, 200 grams of poppy husk was separated as sample. On search of the truck, opium weighing 50 grams wrapped in a polythene paper was recovered. Out of it, 10 grams was separated as sample. A bag containing 401/2 kilograms white powder was also recovered. Out of it, 100 grams powder was separated as sample. All the samples and remaining substances were sealed into parcels and were seized by the police. Ruqa was sent to the Police Station and thereupon, FIR was registered. On further search of the truck, a plastic bag containing some documents including an affidavit, a goods receipt, a bill and two driving licenses of Balwinder Singh accused and one Awatar Singh were recovered. Five shoes of three pairs were also recovered. All these articles were also seized by the police. Rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded. Case property was deposited with Moharrir Head Constable (MHC) in the Police Station.

Accused Balwinder Singh was arrested on 28.01.1989. Samples, on analysis, were found to be of poppy husk and opium. Police presented report u/s 173 of the Code of Criminal Procedure (in short - Code of Criminal Procedure) for prosecution of the accused under Sections 15 and 18 of the Act. Charge under Sections 15 and 18 of the Act was framed against the accused, who pleaded not guilty and claimed trial.

In support of its case, prosecution examined three witnesses.

SI Som Dutt (PW-1) simply stated that while posted as SHO, he prepared report u/s 173 Code of Criminal Procedure ASI Hardwari Lal (PW-2) and SI Pritam Singh (PW-3) broadly stated according to the prosecution version regarding recovery of contraband substances and other articles. SI Pritam Singh also stated that he arrested the accused on 28.01.1989 on being produced by transporter Amrit Singh, whose statement was also recorded.

Affidavits of formal witnesses Head Constable Rajender Singh, Head Constable Sukhi Ram and Constable Pal Singh were also tendered in evidence, but defence counsel did not want to cross-examine them.

PWs Sudershan Kumar, Harphool Singh and Amrit Singh were reported to have died before they could be examined in the case.

The accused, in his examination u/s 313 Code of Criminal Procedure, broadly denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that he was arrested on 21.01.1989 by Head Constable Lekh Raj and was wrongly shown to have been arrested on 28.01.1989. He also alleged that he had been made scapegoat to shield the actual truck owner and real culprits by showing false recovery of forged driving licenses. No. evidence was led by the accused in his defence.

Learned Special Judge, Rohtak, vide impugned judgment and order, convicted and sentenced the accused as already noticed. Feeling aggrieved, the convict has filed the instant criminal appeal.

I have heard learned Counsel for the parties and perused the case file with their assistance.

Learned Counsel for the Appellant vehemently contended that the accused-Appellant is not linked with the alleged contraband substances in any manner. It was contended that the alleged driving license of the accused, allegedly seized from the truck, is forged one and does not belong to the accused. It was also contended that even the shoes recovered from the spot have not been linked with the accused.

On the other hand, learned State counsel contended that huge quantity of contraband substances has been recovered from the truck, which was lying overturned and the truck was being driven by the accused because his driving license was recovered from the truck, although the accused was not present at the spot when the recovery was effected.

I have carefully considered the rival contentions. The prosecution has miserably failed to depict that the accused-Appellant was in possession of contraband substances in question. The accused was not present at the spot when the alleged recovery was effected. He is sought to be linked with the contraband substances only on the basis of alleged driving license allegedly recovered from the truck, which was lying overturned. However, merely on this basis, it cannot be said that the accused was driving the truck in question, when it overturned or that the accused was in conscious possession of the contraband substances found in the truck. The accused specifically pleaded that his alleged driving license has been planted and is forged one. In spite thereof, No. evidence was led to depict that the said driving license was in fact obtained by the accused from the concerned licensing authority. Address of the accused mentioned in the alleged driving license (Ex.P-1) is also not the same, as mentioned in report u/s 173 Code of Criminal Procedure, thereby further creating doubt about the genuineness of said driving license. It is also worth noticing that recovery memo of the driving license has been signed only by the police officials, whereas recovery memo of contraband substances has been signed by Investigating Officer SI Pritam Singh and two public witnesses Sudershan Kumar and Harphool Singh and not by any other police official. It is thus apparent that recovery memo of driving license etc. was prepared later on, creating doubt about the alleged recovery of driving license of the accused from the spot along with other documents. In this context, it would not be out of place to notice that after arrest of the accused-Appellant on 28.01.1989, remand application Ex.D-A was moved for obtaining police remand of the accused and even in the said remand application, there is No. mention of alleged recovery of driving license of the accused from the spot or recovery of other documents.

In the aforesaid context, it would also be significant to notice that driving license of one Awatar Singh was also allegedly recovered from the truck. However, the prosecution is silent about the role of said Awatar Singh. He was not arrested. Awatar Singh was also on the same footing, as Appellant Balwinder Singh, according to the prosecution version. There is No. explanation why Awatar Singh was spared and why only Appellant Balwinder Singh was arrested.

SI Pritam Singh - Investigating Officer also admitted in cross-examination that he did not join truck owner in the investigation. Truck owner was the best witness to link the accused with the possession of the contraband substances in question. There is No. explanation why the truck owner was not joined in investigation. Strong adverse presumption arises against the prosecution for this reason.

Shoes allegedly recovered from the spot have also not been linked with the accused. This circumstance also goes against the prosecution, although the converse might not have gone in favour of the prosecution a long way.

Mere alleged recovery of driving license of the accused from the truck is not sufficient to convict the accused when practically there is No. other evidence to depict that the accused-Appellant was in possession of the contraband substances in question. He was not apprehended from the spot, but was allegedly arrested after 22 days.

Unfortunately for the prosecution, Amrit Singh transporter, who allegedly produced the Appellant before the police, was also not examined in evidence as he has since expired. Benefit of this circumstance also goes in favour of the accused.

For the reasons recorded above, I have No. hesitation in concluding that the prosecution has failed to bring home the charge against the accused beyond reasonable doubt. It is not proved that the accused-Appellant was in possession of the contraband substances in question. The prosecution case is gravely doubtful and suspicious and therefore, the accused-Appellant deserves benefit of doubt. Impugned judgment of conviction and order of sentence cannot be sustained legally. Accordingly, the instant appeal is allowed. Impugned judgment and order of learned Special Judge, Rohtak are set aside and accused-Appellant is acquitted of the charge against him giving him benefit of doubt. The Appellant be released forthwith, if not required in any other case.