Darshan Singh vs State of Punjab

Dr. Sarojnei Saksena, J.

Appellantaccused has assailed the judgment dated December 15, 1986, delivered by Shri Babu Ram Gupta, Additional Sessions Judge, Karnal, wherein he has convicted him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act) and sentenced to 10 years rigorous imprisonment with a fine of Rs. 1 Lac and in default of payment to undergo further rigorous imprisonment for five years.

In a nutshell, facts of the case are that on March 5, 1986 a police party consisting of Inspector Swaran Singh, ASI Shingara Singh, ASI Devi Singh, Head Constable Som Nath and three constables, officials of CIA Staff, Karnal were returning from the side of Red Light Chowk towards Bus Adda Panipat. On the way they met Madan Lal and Faquir Chand. At about 5.30 p.m. police party noticed accused coming from the side of Bus Adda Panipat. Seeing the police party the accused tried to evade, but on suspicion he was apprehended. The accused was carrying a Jhola. When it was checked, it was found that it contained 31/2 Kgs of charas. The accused was not having any licence in his possession. 50 grams of charas was taken out as sample. This sample and the remainder were duly sealed with the seal ''SS''. Seizure Memo. Exhibit P1 was prepared. Thereafter usual investigation was done and the contraband article alongwith the accused was taken to the police station. Property was deposited in the Malkhana. Later on, the sample was sent to the Chemical Examiner for analysis. After analysis he gave report Exhibit PF and opined that it contained charas.

On these facts, the accused was chargesheeted. He denied the guilt. His plea was that of false implication. He produced document in defence and examined Jai Singh also.

Prosecution examined three witnesses, namely, Madan Lal PW1, Faquir Chand PW2 and Inspector Swaran Singh PW3. Affidavits Exhibits PG and PG/1 and the report of Chemical Examiner Exhibit PF were also tendered in evidence.

Relying on the prosecution evidence, the lower Court held that accused was in possession of 31/2 Kgs of charas on the date of his arrest without any licence and thus he was convicted accordingly.

The learned defence counsel strongly stressed that this is a case of false implication. A day before his arrest, brother of the accused sent an application Exhibit DA to S.D.M. Panipat, wherein he expressed his apprehension that his brother (accused) would be implicated in some false case by the CIA Staff Panipat. This application is duly proved by Jai Singh DW1, who has stated that such an application was presented before S.D.M. Panipat. In this connection, he further pointed out that on the date of recovery the said Jhola was thrown away by one Yasin. Police Party went in search of him but could not trace him and ultimately this Jhola was planted on the accused and he was thus falsely implicated.

He further pointed out that Madan Lal PW1 has not supported the prosecution. Faquir Chand PW2 and even Inspector Swaran Singh PW3 have admitted that as soon as the Jhola was taken from the custody of the accused, it was given to ASI Shingara Singh, who took it away, came back after 15/20 minutes and disclosed that it weighted 31/2 Kgs. He also separated 50 grams of charas as a sample. This ASI Shingara Singh was not examined by Inspector Swaran Singh during investigation, nor was he examined in the court. Thus, it remains in dark that what was produced in the court is the very article which was recovered from the said Jhola allegedly seized from the accused.

His fast contention is that in the link evidence, two affidavits of HC Bhale Ram Exhibit PG and Constable Sunder Lal Exhibit PG/1 were tendered in evidence, but these affidavits are not in accordance with Section 297 Cr.P.C. as verification clause is defective. Further, this link evidence was not put to the accused when he was examined under Section 313 Cr.P.C. Thus, there is no evidence to believe that the allegedly recovered sample was kept in the Malkhana with seals intact and in the same condition was sent to the Chemical Examiner for analysis. Hence, according to him the report Exhibit PF cannot be read in evidence against the accused,

The learned Assistant AdvocateGeneral Haryana, supported the judgment and contended that the story of Yasin is cooked up by the accused to get rid of this offence. He deals in narcotic drugs, therefore, as a Peshbandi his brother submitted the application Exhibit DA before the S.D.M. Panipat. He also contended that no doubt, ASI Shingara Singh is not examined by the prosecution but from the statements of Faquir Chand PW2 and Inspector Swaran Singh PW3 it is duly proved that on the spot ASI Shingara Singh brought the charas after weighment. Sample of 50 grams was taken out. This sample and the remainder were duly sealed with the seal of ''SS'' and after use this seal was given to Madan Lal. Through link evidence the prosecution has proved that this sample remained with seals intact in the Malkhana till it was sent to the Chemical Examiner. Even in the report Exhibit PF there is a note that the seals on the sample were intact and they agreed with the sample seal sent. Hence, according to him, the prosecution has proved beyond doubt the aforesaid offence against the accused. He has been rightly convicted and sentenced.

It is a case where accused is entitled to benefit of doubt. There are many dents in the prosecution story. Nonexamination of ASI Shingara Singh has not only created a dent but has created such a big hole in the prosecution story which has allowed the accused to escape. The accused has proved that a day before his arrest his brother sent a petition Exhibit DA to the S.D.M. Panipat expressing apprehension that his brother may be falsely implicated by CIA Staff Panipat. The presentation of this petition is proved by DW1 Jai Singh. As per the prosecution story, when the accused was apprehended Madan Lal PW1 and Faquir Chand PW2 were present. Madan Lal PW1 has not supported the prosecution. Faquir Chand PW 2 and Swaran Singh PW 3 have stated that when the police party and these witnesses were standing near West Hotel, accused came towards Bus Adda. Seeing the police party, he tried to escape, but on suspicion he was apprehended. He was carrying a Jhola. Both these prosecution witnesses have candidly admitted that after seizure this Jhola was given to ASI Shingara Singh, who took it away for weighment. He came back after 15/20 minutes and declared that he had got the charas weighed. It was 31/2 Kgs. According to Inspector Swaran Singh PW3 thereafter sample of 50 grams was separated, but Faquir Chand PW2 has categorically stated that when ASI Shingara Singh came back after weighment, he brought 50 grams of charas separately from the whole lot and he told that the remaining charas was 31/2 Kgs. Thus, it becomes doubtful whether this sample of 50 grams was taken out from the commodity which was found in the Jhola. Inspector Swaran Singh had to admit that he had not examined ASI Shingara Singh during investigation. He was neither cited as a witness nor was examined before the lower Court. Thus, it remains in dark as to what that Jhola contained, which was taken away by ASI Shingara Singh and this fact also becomes doubtful that the contraband which Shingara Singh brought disclosing that it was 31/2 Kgs. charas was the commodity which was found in this Jhola. Even this has become doubtful whether 50 grams of charas was separated from the bulk which was found in the Jhola, because, as stated above, Faquir Chand has specifically testified that ASI Shingara Singh had brought 50 grams of charas separately and had disclosed that remaining charas was 31/2 Kgs. If ASI Shingara Singh would have been examined, he could have proved that this charas was taken out from this Jhola and it weighed 31/2 Kgs. Even the presence of the independent witnesses is thereby made of no use because the contraband was not taken out from the Jhola in the presence of these witnesses. Hence, I find that this lacuna alone is sufficient to give benefit of doubt to the accused.

The defence plea is that this Jhola was thrown away by one Yasin near the Mazar and it was later on falsely implanted on the accused. This contention is also not groundless. Faquir Chand PW2 has not said a word about this Yasin because he pleads ignorance to these facts, but Inspector Swaran Singh PW3 has categorically admitted that he had sent ASI Shingara Singh and other police officials in Panipat town in search of Yasin. They came back and reported that they searched for Yasin at Bus Adda, Railway Station and the hotels but Yasin was not available. Of course, he has denied the suggestion that this Jhola was thrown away by Yasin, but this circumstance also makes the prosecution story doubtful. If really this police party was in search of Yasin in connection with some other offence, Swaran Singh PW3 could have stated so, but he has not explained as to why and for which offence Yasin was searched for.

Prosecution has tendered two affidavits of Head Constable Bhale Ram Exhibit PG and that of Constable Sunder Lal Exhibited PG/1. They are tendered in evidence by Additional PP. In both these affidavits, the deponents have stated that the contents of the affidavits are true to their knowledge and belief. Thus, it is obvious that these affidavits are not in accordance with the provisions of Section 297 Cr.P.C. and hence cannot be acted upon. In the order sheet dated November 20, 1986, it is mentioned that these two affidavits are tendered in evidence, but there is no mention that the deponents were kept present and the accused was given an opportunity to crossexamine these witnesses and he declined, though such a fact is mentioned in the statement of Additional PP recorded on the same date. Further, it is to be noted that no question was put to the accused when he was examined under Section 313 Cr.P.C. that sealed sample was deposited in the police Malkhana and later on it was sent through a constable to the Chemical Examiner for analysis. Fourth question is with regard to the seizure of these sealed parcels and fifth question is about the report of the Chemical Examiner. Thus, when this link evidence is not put to the accused under Section 313 Cr.P.C., this evidence cannot be considered at all for convicting the accused. Though it is called link evidence, but it is a very material piece of evidence to prove the facts that the sample was not tampered with, after the seizure it was duly sealed, it was kept intact in the police Malkhana and in the same condition it was sent to the Chemical Examiner for analysis. In my considered view, since this evidence cannot be considered, the report of the Chemical Examiner Exhibit PF can also be not read in evidence against the accused.

The learned defence counsel''s last contention was that the provisions of Section 50 of the Act are not adhered to. As the prosecution has alleged that it is a case of chance recovery, so that provisions of Section 50 of the Act are not at all attracted.

These very objections were raised before the learned trial Court, but surprisingly enough it has not considered these objections properly and has not cared to scan the prosecution evidence minutely. The burden of proof is always on the prosecution. It has to prove its case to the hilt beyond any shadow of doubt. In this case, the whole of the prosecution is under a dark shadow of various doubts enumerated above. Prosecution has utterly failed to dispel these doubts.

Accordingly, the appeal is allowed. The accused is acquitted as he has earned benefit of doubt. If he is in jail and is not required in any other case he be set at liberty forthwith.

Fine, if deposited, be returned to him.