Gurdip Singh vs The State of Punjab

Sham Sunder, J.—This appeal is directed against the judgment of conviction, and the order of sentence dated 12.9.2005, rendered by the Judge, Special Court, Mansa, vide which it convicted the accused/appellant, for the offence, punishable u/s 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as ''the Act'' only) and sentenced him, to undergo rigorous imprisonment for a period of 10 years, and to pay a fine of Rs. 1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year, for having been found in possession of 70 Kgs. 200 grams, poppy-husk, without any permit or licence.

The facts, in brief, are that on 18.3.2004, Bhupinder Singh, SI, alongwith other police officials, was going from Sardulewala towards Tibbi Hari Singh, in connection with search of bad elements, in a Government Gypsy. Gurcharan Singh, independent witness, came across the policy party, on the way, and was joined therewith. When the police party reached near Government Hospital, Meerpur Kalan, a person was seen sitting under a tree, on two gunny bags. He was apprehended, by the Investigating Officer, on the basis of suspicion. On enquiry, he disclosed his identity as Gurdip Singh @ Pappu. Search of two gunny bags, was conducted, in accordance with the provisions of law, in the presence of Pargat Singh, DSP, who came to the spot, on receipt of a message, sent to him, as a result whereof, 70 kgs. 200 grams poppy-husk, was recovered. Two samples of 50 grams from each of the bags, were taken out. The remaining poppy-husk, was kept in the same bags. The samples, and the bags, containing the remaining husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The accused was arrested. After the completion of investigation, the accused was challenged.

On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge u/s 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial.

The prosecution, in support of its case, examined Pargat Singh, DSP (PW-1), Sukhwinder Singh, ASI, (PW-2), Bhupinder Singh, SI, (PW-3), the Investigating Officer, and Shupinder Singh, Constable, (PW-4). The Addl. Public Prosecutor for the State, gave up Gurcharan Singh, independent witness, as won over, and, thereafter, closed the prosecution evidence.

The statement of the accused, u/s 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, examined his mother Dalip Kumar (DW-1), and also tendered into evidence certified copies of FIRs Nos. 40 of 15.3.2000, P.S. Sardulgarh, and 84 of 27.8.2001 P.S. Sardulgarh, as Exs.D-4 and Ex.D-5, respectively. Thereafter, he closed the defence evidence.

After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused/appellant, as stated hereinbefore.

Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant.

I have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully.

The Counsel for the appellant, at the very outset, submitted that Gurcharan Singh, independent witness, though joined at the time of alleged search and seizure, yet was not examined, by the prosecution. He further submitted that, it could be said that the best evidence, in possession of the prosecution was not produced. He further submitted that, an adverse inference, could be drawn, that had Gurcharan Singh, independent witness, been examined, he would not have supported the case of the prosecution. He further submitted that even Gurcharan Singh, independent witness, was a stock witness of the police. It is, no doubt, true that Gurcharan Singh, independent witness, was joined by the Investigating Officer, at the time of effecting the alleged recovery from the accused. He was given up by the Addl. Public Prosecutor for the State, as won over, by the accused. The Public Prosecutor for the State, no doubt, is the master of the case. He can decide, as to which witness, he wants to examine, and as to which witness, he does not want to examine. However, he is required to exercise the discretion, in giving up an independent witness, in a bona fide manner. He cannot exercise such a discretion, arbitrarily and capriciously. In the instant case, the Public Prosecutor for the State, in my considered opinion, exercised such a discretion capriciously, and arbitrarily. The evidence of Gurcharan Singh, independent witness, in this case, was very essential to reveal the truth, as it was the case of the accused, right from the very beginning that an FIR under the Prevention of Corruption Act, had been registered against Sukhwinder Singh, ASI, prosecution witness, on the complaint of Bhajan Lal, and his (accused) wife Shila Devi, was a prosecution witness, in that case, and due to that reason, he was falsely implicated. When the accused took up the plea that Sukhwinder Singh, ASI (PW-2) was inimically disposed towards him, on account of the aforesaid reason, it became the bounded duty of the prosecution, to examine Gurcharan Singh, independent witness. Had he been examined, he would have certainly revealed the truth. Non-examination of Gurcharan Singh, independent witness, in the instant case, in view of the aforesaid reasons, must prove fatal to the case of the prosecution. It was, on account of the aforesaid reason, that Gurcharan Singh, independent witness, was not examined by the prosecution, and he had not been won over, as stated by the Addl. Public Prosecutor for the State, in his statement. In the instant, case, the evidence of the prosecution witnesses, also does not inspire confidence, in the mind of the Court. In this view of the matter, non-corroboration to the evidence of the official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In Masalti Vs. State of U.P., , a four Judge Bench of the Apex Court, held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material evidence, available to it, which is necessary for unfolding its case, but it would be unsound to lay down, as a general rule, that every witness must be examined, even though, his evidence may not be very material, or even if, it is known that he has been won over or terrorized. In State of Punjab v. Nachhattar Singh @ Bania 2007 (3) R.C.R. 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution, became doubtful. In the instant case, non-examination of Gurcharan Singh, made the case of the prosecution doubtful. The Trial Court, did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused.

It was next submitted by the Counsel for the appellant, that the case of the prosecution, was totally false. He further submitted that, according to Pargat Singh, DSP (PW-1), the measurement of the poppy-straw was conducted, at about 4.30 PM, whereas, the ruqa was sent at 4.00 PM, by the Investigating Officer. He further submitted that, in the ruqa, the quantity of the poppy-husk, contained in each bag, was recorded. He further submitted that when the ruqa had already been sent at 4.00 PM, and the quantity of poppy-husk, recovered from each bag, had been recorded therein, after weighment, how the same could be weighed again, in the presence of the DSP. This fact clearly goes to show that the DSP, was, in fact, was not present, at the spot, when the alleged recovery was effected. He apparently was introduced later on, with a view to provide genuineness to the proceedings, conducted by the Investigating Officer. Had the weighment of the poppy-husk been conducted, at 4.30 PM, at the time, stated by the DSP, then the quantity of poppy-husk, recovered from the bags, could not be mentioned, in the ruqa. This fact makes the case of the prosecution, to a great extent doubtful. The submission of the Counsel for the appellant, in this regard, being correct, is accepted.

It was next submitted by the Counsel for the appellant, that the accused, in this case, was falsely implicated, as Sukhwinder Singh, ASI (PW-2) was inimically disposed towards him, as his wife Shila Devi, was a witness, in a corruption case, registered against him (Sukhwinder Singh, ASI). The Counsel for the appellant, also placed reliance on Exs.D-1, D-2 and D-3, the representations, made by his mother, to the higher authorities, to the effect that her son Gurdip Singh, had been falsely implicated, in the instant case. The submission of the Counsel for the appellant, in this regard, appears to be correct. Sukhwinder Singh, ASI (PW-2), during the course of his cross-examination, admitted that an FIR, under the Prevention of Corruption Act, had been registered against him, on the complaint of one Bhajan Lal. He also admitted it as correct, that the wife of Gurdip Singh, accused, namely Shila Devi, was a witness, against him, in that corruption case. He also admitted it as correct, that Gurdip Singh, husband of Shila Devi, is an accused in this case, in which he is a witness to the recovery. He further stated that he did not know, if any complaint had been filed by the mother of the accused, or enquiry into that complaint was ordered to be held. Since, the wife of the accused, was a witness against Sukhwinder Singh, ASI, (PW-2), in a corruption case, which was registered against him (Sukhwinder Singh, ASI), earlier to the alleged recovery, certainly he must be pressurizing her, not to depose against him, and only when she refused to cave under his pressure, left with no alternative, the instant false case was apparently registered against the accused, at the instance of the said ASI. The defence version, set up by the accused was certainly more probable, than the prosecution version. The trial Court, however, failed to take into consideration the defence version, in its proper perspective, as a result whereof, it erred into recording conviction, and awarding sentence, to the accused. Once the defence version set up by the accused, duly proved from the evidence, on record, was found to be more probable, than the prosecution version, he was entitled to acquittal. The trial Court erred in recording conviction, and awarding his sentence.

No other point was urged, by the Counsel for the parties.

In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, are not based on the correct appreciation of evidence, and law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable u/s 15 of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside.

For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 12.9.2005, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required in any other case. The Chief Judicial Magistrate, Mansa, shall comply with the judgment, in accordance with the provisions of law, and send compliance report, within 2 months, from the date of receipt of certified copy of the judgment.

Note:

After the pronouncement of judgment, Mr. M.S. Uppal, Advocate, who was earlier appearing, on behalf of the appellant, but did not appear on 30.9.2008, when Mr. Bikram Jit Arora, Advocate, was appointed as Amicus Curiae, on behalf of the appellant, has come present.