Gurmail Singh vs State of Punjab

Kanwaljit Singh Ahluwalia, J.—Gurmail Singh, by filing the present appeal, has approached this Court with a prayer that the impugned judgment dated 15th January, 2002, whereby the Judge, Special Court, Bathinda held him guilty of an offence punishable u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, ''the Act'') and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1.00 lac, in default of payment of fine to further undergo rigorous imprisonment for two years, be set aside and he be acquitted of the charges.

On 27th July, 1997 at about 2.30 p.m. the appellant was found in possession of two bags containing 35 kilograms of poppy husk each in the area of village Bhagi Bander and thus, case FIR No. 51 dated 27.07.1997 was registered at Police Station Talwandi Sabo u/s 15 of the Act. The FIR Ex.PF/1 was registered on the basis of ruqa Ex.PF sent by SI Jagjit Singh PW-3 of Police Station Talwandi Sabo, in which he stated that he and his companion police officials, on two different scooters, were going on a patrol duty from bridge of canal Jodhpur Pakhar to village Bhagi Bander. When they reached near the bridge of Bhagi Bander, one person was seen walking along with his cycle. On seeing the police party, the suspected person turned his cycle towards the banks of the canal. On the cycle, two gunny bags were loaded. One was being carried on the frame of the cycle, above the chain and the other was on its carrier. On the basis of suspicion, after stopping the scooters, name and address of the suspected person was asked, who disclosed his name as Gurmail Singh son of Hakam Singh, resident of village Mahi Nangal. The police officials suspected that the bags contained poppy husk, therefore, a written offer was extended to the accused to get himself searched in the presence of a Magistrate or a Gazetted Officer. After the consent memo was prepared and signed by the accused, through wireless the said information was relayed to the Police Station to send some Gazetted Officer. At 12.15 p.m. Amrik Singh, DSP, Bathinda arrived at the spot in a Govt. Gypsy along with the driver and a gunman. On the instructions given by the DSP, the gunny bags were opened and were searched. From each bag, 35 kilograms of poppy husk was recovered, out of which two samples of 100 grams of poppy husk each were drawn from each bag and the remaining poppy husk weighing 34 kilograms and 900 grams was separately taken into possession vide a recovery memo. On all the four parcels, SI affixed his seal ''TS''. The recovery memo was got attested from the witnesses. Arrest memo was prepared, personal search of the accused was carried and a ruqa was sent to the Police Station for registration of the case.

Report u/s 173 Cr.P.C. along with the accused was submitted to the Court of Judge, Special Court, Bathinda and the appellant was charged for an offence, for which he has been convicted. The appellant pleaded not guilty and claimed trial.

Prosecution examined four witnesses, namely DSP Amrik Singh as PW-1; Inspector Joginderpal Singh as PW-2; SI Jagjit Singh as PW-3 and HC Lakha Singh as PW-4.

HC Lakha Singh PW-4 had tendered his affidavit Ex.PK to prove link evidence. The report of the Chemical Examiner was tendered as Ex.PL.

SI Jagjit Singh PW-3 reiterated as to what was stated in the ruqa. The document Ex.PJ containing brief facts of the case was prepared on 27th July, 1997. A note was appended below the document as ''seen'' on 28th July, 1997. This witness stated that he could not tell the designation of the person who had seen and signed the said document. He further could not disclose through whom the said document Ex.PJ was sent. This witness further stated that the place of recovery was near Talwandi Sabo and they had reached at the place of occurrence at 12/12.15 noon. The DSP also reached at the spot at about 12.15 noon. They remained at the spot for about 1� hours. The memos were prepared in the presence of the DSP. This witness admitted that the place of recovery was a public thoroughfare. He had tried to join the persons who were passing by the roadside but nobody was willing to join. He had not initiated any action against them. He had not served any written notice to those persons u/s 160 Cr.P.C. This witness further admitted that the seals were not legible and were broken and the bags were partly torn.

DSP Amrik Singh PW-1 stated that on receipt of information, his services were requisitioned. He reached at the spot and found that one bag was lying on the carrier of the bicycle and the other was in its frame. The wireless message was received by him at 12.30 p.m. and he reached at the spot at 1.15 p.m and remained there upto 3.00/3.30 p.m. In his presence recovery was effected, the ruqa was drafted and personal search memo was prepared. He further stated that the statements of the witnesses u/s 161 Cr.P.C. were also recorded. He stated that regarding his reaching at the spot, an entry was made in the logbook but he had not brought the logbook. He admitted that the place of recovery was a thoroughfare. They had tried to join private persons but nobody was willing to join. This witness was unable to divulge any such private person to whom request was made to become a witness to the recovery.

Inspector Joginderpal Singh PW-2 stated that on 27th July, 1997 he was posted as SHO, Police Station Talwandi Sabo. On receipt of ruqa Ex.PF, formal FIR Ex.PF/1 was registered. On the same day, SI Jagjit Singh produced the accused along with the case property and two sample parcels. All the samples were sealed with impression ''TS''. He tallied the seal, which was intact. Thereafter, he affixed his seal with impression ''JPS''. On 28th July, 1997, the accused along with the case property was produced in the Court of Sub Divisional Judicial Magistrate, Talwandi Sabo. The application so filed was proved as Ex.PG, the inventory as Ex.PH and the orders as Ex.PG/1. On 6th August, 1997, the sample parcel and the sample seal was sent to the office of Chemical Examiner, Patiala through constable Lakha Singh. Till the case property remained with this witness the same was not tampered with. In cross examination, this witness admitted that the seals were not legible, being broken. There were holes on one side of the bag. In the statement of the witness recorded u/s 161 Cr.P.C. the fact of tallying of the seal with the sample seal was not mentioned. The fact that the case property was produced in the Court was also not recorded in the statement recorded u/s 161 Cr.P.C., which was recorded on 10th August, 1997. This witness had neither opened nor weighed the parcels. He further stated that there was no carrier on the cycle Ex.P3.

Thereafter, prosecution closed its evidence and statement of the accused u/s 313 Cr.P.C. was recorded and all incriminating circumstances were put to him. He denied the same and pleaded that nothing was recovered from him and he was falsely implicated in the case.

I have heard counsel for the parties. There are numerous circumstances which compel this Court to arrive at a conclusion that the benefit of doubt can be granted to the present appellant and he is entitled to acquittal.

At the alleged time of recovery, SI Jagjit Singh was accompanied by various police officials. No such police official has been examined to corroborate his testimony that the accused was spotted coming on his bicycle, on which two bags of poppy husk were being carried. It is a case of the prosecution that one bag was in the frame of the bicycle and the other was on its carrier. Inspector Joginderpal Singh PW-3 and DSP Amrik Singh PW-1 have stated that the place of recovery was a thoroughfare and request was made to numerous persons to join as an independent witness. No notice was served upon any such person. The name of no such person has been recorded in the case diary. The witnesses have also not spelt out any person, who was asked to join as an independent witness and attest the recovery memo. In the present case, the recovery of 70 kilograms of poppy husk has been effected. More than 50 kilograms of poppy husk is a non-commercial quantity. Where recovery is a little more than the prescribed commercial quantity, the Courts always look for a safeguard, as a matter of abundant caution, that the independent witness should be examined. In the present case, SI Jagjit Singh PW-3 had only affixed his seal on the case property and the sample so prepared. DSP Amrik Singh PW-1 had appended no seal. It is stated that the seal Ex.P4 was handed over to DSP Amrik Singh PW-1, but he had not specifically stated that the seal, after use, was handed over to him. Inspector Joginderpal Singh PW-2 had stated that on the same night, he had appended his seal. Both SI Jagjit Singh PW-3 and Inspector Joginderpal Singh PW-2 had stated in the Court that the seals were not legible and were broken. SI Jagjit Singh PW-3 stated that the bags were partly torn. Inspector Joginderpal Singh PW-2 stated that there were holes on one side of the bag and the seal was not legible being broken. The fact that the seals were tallied by Inspector Joginderpal Singh PW-2, was not noticed in his statement recorded u/s 161 Cr.P.C. Furthermore, Inspector Joginderpal Singh PW-2 had appended his seal on 27th July, 1997. The sample was sent to the laboratory on 6th August, 1997. The statement of the witness was recorded on 10th August, 1997. Thus, there is no justification for delay in sending the sample. There is also no explanation as to why the statement of the Inspector Joginderpal Singh PW-2 was recorded after 13 days, especially when the samples were sent to the Chemical Examiner.

The sequence of doubtful circumstances is unending. Inspector Joginderpal Singh PW-2 had specifically stated that on 28th July, 1997 when he had produced the accused and the case property in the Court of Sub Divisional Judicial Magistrate, Talwandi Sabo, order Ex.PG/1 was passed. The said order reads as under:

28.7.97 Present: APP/Accused in custody.

Case property and the samples bearing seals ''TS'' and ''JPS'' seen. Case property be deposited in judicial malkhana.

Sd/- SDJM

After this order was passed by the Sub Divisional Judicial Magistrate, the case property and the samples were not deposited in the judicial malkhana. Inspector Joginderpal Singh furnished a lame explanation that there was no space in the judicial malkhana. If it was so, as to why this fact was not brought to the notice of the Sub Divisional Judicial Magistrate and as to why a fresh order to this effect was not obtained? This witness wanted the Court to believe that the samples and the case property were retained by him till 6th August, 1997, i.e. for a period of nine days, and till the same remained in his custody nobody had tampered with the same. On the day of occurrence, this witness was posted as SHO, Police Station Talwandi Sabo. As to why the samples were not deposited in the police malkhana, there is no explanation. No Moharrir Head Constable has been examined. There was no justification for Inspector Joginderpal Singh to keep the samples and the case property in his custody. Therefore, the broken seals assume importance. The possibility that the samples were tampered with, cannot be ruled out. It is in these cases, where the testimony of the police witnesses is doubtful, the Court always looks forward to the examination of an independent witness. At the cost of repetition, it is noticed that in the present case, no independent witness was examined and the story that an offer was made to join independent witness, in view of the circumstances spelt out above, is to be discarded. Taking totality of circumstances into consideration, this Court has no other option except to grant benefit of doubt as a matter of abundant caution.

Hence, the present appeal is accepted, conviction and sentence awarded to the appellant is set aside and he is acquitted of the charges.