Gurdip Singh vs State of Punjab

Jitendra Chauhan, J.—This judgment will dispose of two appeals, i.e. Criminal Appeals No. 239-DB of 2000 and 234-DB of 2000, as the same having been arisen out of a common judgment and order dated 30.5.1998 passed by Special Court (Additional Sessions Judge), Mansa.

Six persons, including the appellants Gurdip Singh and Vinod Kumar, were put up for trial for commission of offences punishable u/s 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short `the Act''). The trial Court acquitted two co-accused but convicted both the appellants u/s 15 of the Act and sentenced both of them to undergo rigorous imprisonment for a period of twelve years and pay a fine of Rs. two lacs, and in default of payment of fine to undergo further rigorous imprisonment for a period of three years u/s 15 of the Act. The other two co-accused absconded and did not face trial.

The brief facts of the case reflected in para 2 of the impugned judgment are as under :

...on 7.12.1995, the police party headed by SI Rupinder Kumar also with his police staff was on patrol duty and general checking in government Canter No. PB-31-6610, which was being driven by Constable Hari Singh No. 571. The police party started from the police station and was going towards Bus Stand of village Boha. When the police party reached the pucca mattled road, DSP Shri Mohinder Singh Mangat of Headquarter Mansa along with his security men joined them and in the meanwhile, Bhura Singh, Member Panchayat also met them who was also joined with police party. The police party proceeded further and when they reached near the bridge of same nullah within the area of village Malko. DSP Shri Iqbal Singh, Halqa Sardulgarh along with his security men met them in his government Gypsy, who was also joined in the police party. The police party then noticed that on one side of the bridge of the same nullah one car was found parked and its driver was changing the tyre of the car, while some other persons were standing near the car. On seeing the police party, three of the accused persons ran away from the spot, while remaining three persons were apprehended on the spot on doubt. Those who were apprehended on the spot, disclosed their names as Vinod Kumar son of Ram Sarup (accused No. 4). Ram Sarup son of Khiali Ram (accused No. 1), and Gurdeep Singh son of Santa Singh (accused No. 2). These accused persons also disclosed that those who have run away from the spot, were Sarwan Singh son of Man Singh resident of village Malki (accused No. 3), Makhan Singh son of Kashmir Singh resident of village Peeranwali now residing at Shanti Nagar, Hisar (accused No. 5), and Mithu Singh son of Jangir Singh resident of village Malko (accused No. 6). Some incriminating material was suspected in possession of the accused persons and those who were apprehended on the spot, were asked whether they wanted to be searched before a Magistrate or a Gazetted Officer and the accused disclosed that they wanted to be searched before a Gazetted Officer. As such, DSP Shri Iqbal Singh, who was already with the police party and was a Gazetted Officer was present there and in his presence and under his directions, the search of the car in possession of the accused persons, was conducted and in this car 9 (nine) bags of poppy husk were recovered, which were weighed and each bag was containing 35 kgs of poppy husk. 100 grams was taken as sample from each bag separately and their separate parcels were prepared, while the remaining poppy husk was packed in the same bag. The parcels of sample and the bags of poppy husk were scaled with the seal `RK'' and were taken into possession vide recovery memo Ex.PB. Accused Ram Sarup, Vinod Kumar and Gurdeep Singh were formally arrested on the spot and the arrest memo was prepared vide Ex.PG, in which, the reasons for their arrest were disclosed to them. The inventory memo Ex.PJ was also prepared and special report Ex.PH was sent to the higher Police Officers. The site pain Ex.PP was also drawn. Ruqa Ex.PC was sent to the police station on the basis of which, a formal FIR Ex.PC/1 was registered. The samples/bags of poppy husk and the accused were brought at the police station. The accused were confined in police lock up, while the samples and the case property were kept by SI Rupinder Kumar in his safe custody. On the next date, i.e. 7.12.1.995, the case property, the samples and the accused persons were produced before the learned Illaqa Magistrate vide application Ex.PK. The seals on the case property and the samples were duly verified by the learned Judicial Magistrate Ist Class, Mansa vide order Ex.PK/1. The samples, then were sent to Chemical Examiner, for their test on 13.12.95, who submitted his report Ex.PM stating there that the samples were of chura Poppy husk. Later on, the accused Sarwan Singh and Mithu Singh were arrested, while Makhan Singh was declared as proclaimed offender. The accused Ram Sarup, who was arrested along with accused persons on the spot, later on absconded and he was also declared as proclaimed offender. After the completion of the investigations, the challan was prepared before the court for the trial of the accused persons.

The accused/appellants, Gurdip Singh and Vinod Kumar were charge- sheeted u/s 15 of the Act on 4.6.1996 by the Additional Sessions Judge, Mansa for having been found in possession of 9 bags of poppy husk, each bag containing 35 kgs of poppy husk without any licence or permit. Initially, charge-sheet was served against the accused persons namely Ram Sarup, Gurdip Singh and Sarwan Singh, but later on Ram Sarup absconded and was declared proclaimed offender while Vinod Kumar and Mithu Singh were arrested. Therefore, an amended charge-sheet was framed against Gurdip Singh, Sarwan Singh, Vinod Kumar and Mithu Singh along with Ram Sarup and Makhan Singh (proclaimed offenders). All the accused pleaded not guilty and claimed trial.

The prosecution, in order to substantiate the charges, examined PW1- SI/SHO Rupinder Kumar, PW2-Constable-I Dalel Singh, PW3-HC Jaswant Singh, PW4-ASI Jit Singh, PW-5-DSP Shri Iqbal Singh and PW6SI Cheta Singh.

The accused were examined u/s 313 of the Code of the Criminal Procedure. All the accused claimed to be innocent and alleged that the case had been planted against them. The accused-Mithu Singh made a specific assertion that he was innocent and nothing was recovered from him. He was arrested in the presence of Panchayat of his village on account of enmity with the co-accused-Gurdip Singh. He alleged false implication.

It was argued on behalf of the accused before the trial Court that Section 50 of the Act was not complied with as the offer for search, Ex. PA was jointly given which was a material procedural defect. Another argument raised was that PW5-Iqbal Singh, DSP, Sardulgarh who joined the police party had not given an offer to the accused persons u/s 50 of the Act. It was further argued that the independent witness-Bhura Singh, Member Panchayat who joined the police party did not support the case of the prosecution. Therefore, the version put forth by the prosecution could not be relied upon as it was solely based on the testimony of the official witnesses. It was further argued that the seal after use was not handed over to the independent witness by the Investigating Officer

The trial Court observed that the provisions of Section 50 of the Act are not required to be complied with as the persons of the accused were not searched, rather the search of the bags was done, which was lying in the car, and were spotted per chance by the police while on general checking. As regards the independent witness, the trial Court held that DW2-Bhura Singh was given up by the prosecution as having been won over by the accused persons. The said Bhura Singh had admitted his signatures on the documents prepared during the course of investigation. Regarding not handing over the seal after use to the independent witness the trial Court held that the samples and case property remained with the PW1-SI/SHO, Rupinder Kumar and were kept intact. PW2-Dalel Singh produced his affidavit Ex. PQ in which it was stated that the samples remained with him and they were not tampered with and the same were kept intact. The samples were received by the Chemical Examiner, Patiala who submitted his report Ex. PM. The trial Court observed that not handing over the seal to the independent witness does not breach the sanctity of the sample. The accused, Mithu Singh and Sarwan Singh were acquitted on account of there being insufficient proof to hold them guilty.

Learned counsel for the appellants contends that there was totally non- compliance of mandatory provisions of Section 50 of the Act. The impugned judgment and order is solely based on the evidence rendered by the official witnesses and the only independent witness-DW2-Bhura Singh did not support the case of the prosecution. There was delay of six days in sending the sample to Forensic Science Laboratory, so the possibility of tampering of the sample could not be led out. It was further argued that the offer made to the accused vide Ex. PA was jointly given which was a material defect in the prosecution story. It was further submitted that DSP-Mohinder Singh, Incharge, Mansa was member of the patrolling party and remained present during the course of investigation. But the proceedings were conducted at the instance of PW5-Iqbal Singh, DSP, Sardulgarh. No recovery memo regarding the car was prepared. The car used by the accused was not produced during the course of the trial. The owner of the said car was neither interrogated nor cited as witness.

Learned counsel for the State has argued that DW2-Bhura Singh was rightly not cited as a witness as having been won over by the accused. No adverse inference can be drawn for not exhibiting and producing the car during the course of trial. The quantity recovered from the accused was heavy one, therefore, the trial Court after considering all the material available on record has rightly passed the judgment and order under challenge.

We have heard the learned counsel for the parties and perused the record.

Admittedly, DSP, Mansa, had the territorial jurisdiction. It is not disputed that DSP, Mansa was not present during the course of investigation. It has not been explained by the prosecution as to why the proceedings were conducted by the officer who did not have the territorial jurisdiction particularly when the officer competent and authorised to record the proceedings was present as is clear from the testimony of PW1- SI/SHO Rupinder Kumar, Investigating Officer in the present case.

Case of the prosecution cannot be discarded simply on the ground that only the official witnesses supported the case. In the present case, it has come on record in the statement of PW1- SI/SHO Rupinder Kumar that he knew the independent witness Bhura Singh. This admission acquires great insignificance when read with the statement of said Bhura Singh. He appeared as DW2 and had made a categorical statement that he very often used to visit the police station, Boha. The police used to take his thumb impressions and signatures as witness on blank papers.

It is further admitted in the cross-examination of PW1-SI/SI-IO- Rupinder Kumar that it was not mentioned in the ruqa which of the accused was standing near the car. In the cross-examination, it was admitted that the grounds for arrest were not mentioned in the ruqa Ex. PC. In the absence of the driving licence, it is also not clear as to who was driving the vehicle. The accused/appellant, Vinod Kumar was stated to be the driver of the said car but there is nothing on record to suggest that he was driving the car as no driving license was recovered from. Even if he was changing the tyre of the vehicle, in the absence of any driving licence, it cannot be said that he was driver of the car as no eye witness had seen the car being driven by any of the accused. The statement of PW5 Iqbal Singh, DSP, Sardulgarh is also relevant in this regard as he admitted that the place of recovery did not fall within his jurisdiction. The prosecution has failed to explain the exceptional circumstances under which the investigation was carried out by the Officer not being In charge of the area particularly when the Officer having the territorial jurisdiction was present.

As per record, recovery was effected around mid-night at 12''O clock. As per the statement of PW5-Iqbal Singh, DSP, Sardulgarh, the car was spotted from the distance of 5 karams. This does not appeal to reason as to why the police did not make any effort to chase those accused who ran away from the spot.

As per the prosecution version the alleged recovery of the poppy husk was effected from the car. This also remains undisputed that car was not recovered nor the car was produced during the course of trial. It is further to be noted that the owner of the car was neither interrogated nor cited as witness. Coupled with the deficiencies in the case of the prosecution, the manner in which the recovery was effected under the supervision of the Officer not having jurisdiction by ignoring the presence of the Officer who had jurisdiction of the area, casts shadow on the entire exercise of recovery and the case of the prosecution.

In view of the above, we think that the learned trial Court committed an error in the evolution of the prosecution evidence. The view taken by the learned trial Court can be said to be against the weight of evidence collected by the prosecution and has resulted in gross injustice. In our view, the evolution of the prosecution evidence by the trial court in the context of recovery from the appellants is not proper as serious doubt has arisen regarding the truthfulness of recovery and thus, calls for interference by this Court.

In view of the findings recorded above, there is no necessity to deliberate on the issue whether there was compliance of Section 50 of the Act or not.

In the circumstances, the benefit of doubt must go to the accused/appellants. We, therefore, hold that the prosecution has failed to prove its case. Resultantly, both the appeals are allowed. The impugned judgment and order 30.5.1998 passed by Special Court (Additional Sessions Judge) Mansa, is set aside. The bail bonds of the accused/appellants stand discharged.