Harpreet Singh vs State of Punjab

V.M. Jain, J.—This order shall dispose of above mentioned four criminal appeals, as all these appeals have arisen against the judgment and

order dated 23.8.2003, passed by the Special Court, Mansa, convicting the accused-appellants u/s 15 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as the Act) and sentencing them to undergo RI for 16 years and to pay fine of Rs. 2 lacs each and in

default of payment of fine to undergo further RI for two years each.

As per the case of the prosecution, on 22.3.2001, SI Hardevinder Singh, SHO along with ASI Gurtej Singh and other police officials had gone

in the area of Village Borawal on Bhikhi Budhlada Road in a government jeep to hold nakabandi on the bridge. In the meanwhile, Kuldip Singh,

Sarpanch arrived there on a scooter and on seeing the police party he stopped there and SI Hardevinder Singh was talking with him when at about

6.30 P.M., from the side of Village Borawal, one truck bearing No. HNN 4185 was seen coming. It was given signal to stop for checking. When

the truck was stopped, SI Hardevinder Singh asked the name of the driver and the person sitting on the left-side seat of the driver. The driver of

the truck disclosed his name as accused Satnam Singh while the other person sitting by his side disclosed his name as accused Randhir Singh @

Noni. While SI Hardevinder Singh was asking the name of these persons, in the meanwhile two persons who were sitting in the body of the truck

ran away towards the fields of village Borawal from the backside of the truck. Sub-Inspector Hardevinder Singh asked ASI Gurtej Singh and HC

Yadwinder Singh to follow them but after sometime these police officials came back and ASI Gurtej Singh informed him that those persons had

run away but stated that he knew both of them very well. He disclosed the names of those persons as accused Albel Singh and accused Harpreet

Singh. Accused Satnam Singh and accused Randhir Singh were apprehended on suspicion. On checking of the truck it was found that in the body

of the truck some gunny bags tied with jute string were lying underneath a blue-coloured tarpal. Sub-Inspector Hardevinder Singh told accused

Satnam Singh and accused Randhir Singh that the bags which were lying in the body of the truck were suspected to be of intoxicant substance and

were required to be searched and they had a right to be searched in the presence of a Magistrate or a Gazetted Officer, whereupon accused

Satnam Singh and Randhir Singh told SI Hardevinder Singh that the bags should be searched at the spot in the presence of a Gazetted Officer.

Thereupon, SI Hardevinder Singh prepared the consent memos which were signed by accused Satnam Singh and Randhir Singh and were attested

by ASI Gurtej Singh and Kuldip Singh aforesaid. Since no Gazetted Officer was readily available on account of late hours and the Government

offices already having closed, SI Hardevinder Singh asked the Wireless Operator through wireless set that any Gazetted Officer from Mansa may

be sent at the spot. After half-an-hour, 8.30 p.m., Sh. Baldevinder Singh Romana, DSP, Sub-Division Mansa, along with gunmen reached the spot

in Government Gypsy and he was told about the facts. Thereupon, DSP Balwinder Singh Romana told accused Satnam Singh and accused

Randhir Singh that he was a Gazetted Officer and wanted to search the gunny bags lying in the body of the truck covered with tarpal, whereupon

both the accused gave their consent that the bags may be searched in his presence. Consent memos were prepared separately and were signed by

accused Satnam Singh and Randhir Singh. Thereafter, SI Hardevinder Singh under the supervision of DSP Balwinder Singh conducted search of

the bags after removing the tarpal. On checking, it was found that there were 60 bags in all which were tied with the help of Jute string. After

opening said bags, those bags were found to be having poppy husk. From each of the bags, two samples of 100 grams each were separately

taken and the remaining poppy husk lying in the bags, was weighed with the spring balance and each bag was found containing 35 kilograms of

poppy husk, including the weight of the bag. After weighment, the bags were tied with the Jute string. The samples and the bags were numbered 1

to 60 and were separately sealed and sample seal was separately prepared and thereafter the seal after use was handed over to Kuldip Singh,

Sarpanch, From the cabin of the truck duplicate registration certificate of Truck No. HNN 4185, issued by D.T.O. Sirsa was recovered. All these

items including the truck and the case property were taken into possession vide separate recovery memos which were attested by Kuldip Singh,

Sarpanch, ASI Gurtej Singh and Balwinder Singh, DSP. Sub-Inspector Hardevinder Singh, prepared Ruqa Ex. PH at 7.30 a.m. on 23.3.2001

and sent the same to the police station, on the basis of which formal FIR Ex. PH/1 u/s 15 of the Act was recorded in PS Bhikhi at 8.10 a.m., on

23.3.2001 and special report was received by the Judicial Magistrate at 12.30 p.m. on 23.3.2001. Both the accused namely Satnam Singh and

Randhir Singh were formally arrested. Sub-Inspector Hardevinder Singh prepared the rough site plan Ex. PL of the place of recovery. On the

same day i.e. on 23.3.2001, SI Hardevinder Singh prepared the inventory and also produced the case property along with samples before the

Judicial Magistrate, who passed the order Ex. PM/1 and Ex. PP/1 and since there was no sufficient place in the judicial malkhana, case property

was kept by SI Hardevinder Singh in safe custody. Since accused Albel Singh and accused Harpreet Singh could not be arrested they were

declared as proclaimed offenders and after receipt of the FSL Report, final report u/s 173 Cr.P.C. was prepared and challan was submitted in the

Court.

Initially, accused Satnam Singh and Randhir Singh @ Noni were charged u/s 15 of the Act to which charge they pleaded not guilty and claimed to

be tried. Subsequently, the remaining two accused Albel Singh and Harpreet Singh, who were earlier declared proclaimed offenders, were also

arrested in this case and supplementary challan was submitted. Thereafter, all the four accused named above were charged u/s 15 of the Act to

which charge these accused pleaded not guilty and claimed to be tried. Prosecution produced evidence in support of its case. Thereafter, the

statements of the accused u/s 313 Cr.P.C., were recorded in which they denied the prosecution allegations against them and stated that they were

innocent and had been falsely implicated in this case. Accused Satnam Singh stated that nothing was recovered from him and the police had

planted false case upon him. Accused Randhir Singh @ Noni stated that he was driver on the jeep of Albel Singh and did not know about this

case. He stated that SHO Hardevinder Singh of Bhikhi stopped him when he was driving the jeep in Mansa and at that time nothing was recovered

from him but he was taken to the police station where he was falsely implicated in this case. Accused Harpreet Singh stated that he and his family

was residing as tenant at Mansa in the house of Ajaib Singh, brother of H.C. Darshan Singh and that Ajaib Singh and Bant Singh had taken

possession of the house forcibly by inflicting injuries on his father Thana Singh and a criminal case was registered against Ajaib Singh, Bant Singh

and others u/s 326/34 IPC and that the I.O. of that case was Hardevinder Singh, posted at P.S. City Mansa and he fried cancellation report in that

case and for that purpose the police wanted his statement and statement of his father Thana Singh for cancelling the said case and when he refused

to do so, the present case was falsely registered against him. Accused Albel Singh stated that the police had involved him falsely in this case

because his relations with the police were inimical. He further stated that there was a dispute of land of his brother Gunnel Singh with one Jagroop

Singh and the police used to help said Jagroop Singh. He stated that on 19.8.2000, he moved an application Ex. D-4 to Hon''ble the Chief Justice

of Punjab and Haryana High Court, Director General of Police and Chief Minister, Punjab against the police vide postal receipts Ex. D-1, D-2 and

D-3 and due to this reason he had been falsely implicated in this case. He stated that nothing was recovered from him. He further stated that in

those days Hardevinder Singh was posted at Mansa when he had moved the application against the police to the higher authorities, in their

defence, the accused examined DW-1 Jagdev Singh, DW-2 Shingara Singh, DW-3, Sushma Rani and DW-4 Gurjant Singh. Accused Harpreet

Singh tendered some documents in evidence and thereafter the accused closed their defence evidence.

After hearing both sides and perusing record, the learned Special Court convicted and sentenced die accused-appellants, as stated above, vide

judgment and other dated 23.8.2003. Aggrieved against the same; all the four accused-appellants filed the above mentioned four appeals

separately. Since all the four appeals are against the same judgment and order of the learned Special Court, all these four appeals are being

disposed of by single judgment.

We have heard the learned counsel for the parties and have gone through the record carefully.

Learned counsel appearing for accused-appellants Satnam Singh and Randhir Singh submitted before us that no independent witness was

examined in support of the case of the prosecution. It was further submitted that nothing was recovered from these accused-appellants at the spot

and that they were falsely implicated in this case. It was submitted that the defence evidence produced by the accused-appellants supports them in

this regard.

However, we find no force in these submissions made before us by the learned counsel for accused-appellants Satnam Singh and Randhir

Singh. As referred to above, both these accused were apprehended at the spot along with 60 bags of poppy husk being carried in the truck which

was being driven by accused appellant Satnam Singh whereas accused appellant Randhir Singh @ Noni was sitting by the side of the truck driver.

PW1 SI Hardevinder Singh and PW4 ASI Gurtej Singh had fully supported the case of the prosecution with regard to the manner in which the 60

bags of poppy husk were recovered from the possession of these accused-appellants being transported in the truck bearing registration No. HNN

4185, which was driven by accused-appellant Satnam Singh while accused-appellant Randhir Singh was sitting by his side. Nothing has come on

the record to discard the testimony of these two witnesses about these accused-appellants being found in possession of 60 bags of poppy husk

being transported in the aforesaid truck and the fact that these accused-appellants were apprehended at the spot and were formally arrested in this

case. Learned counsel appearing for these accused-appellants could not point out any material from the record which may be sufficient to discard

the testimony of these witnesses about the recovery of 60 bags of poppy husk from the conscious possession of accused-appellants Satnam Singh

and Randhir Singh. Merely because Kuldip Singh, PW (independent witness) was not examined by the prosecution and was given up as having

been won over by the accused, in our opinion, would not be sufficient to throw away the case of the prosecution especially when both PW1 SI

Hardevinder Singh and PW4 ASI Gurtej Singh had fully supported the case of the prosecution. Nothing has come on the record to show as to

why these police officials would falsely involve accused appellants Satnam Singh and Randhir Singh in this case considering that these accused-

appellants were apprehended at the spot while transporting 60 bags of poppy husk in truck No. HNN 4185.

So far as statements of DW-3 Sushma Rani and DW-4 Gurjant Singh, examined by accused are concerned, in our opinion, no reliance

whatsoever, could be placed on the testimony of these witnesses. DW3 Sushma Rani had deposed that accused Randhir Singh was earning his

livelihood by driving vehicle and was residing near their house and had 5 children and was not doing any illegal activity and that he had been falsely

implicated in this case. In our opinion, such type of evidence cannot be made the basis for acquitting an accused especially when charge against

him is fully proved on the basis of evidence led by the prosecution. Similarly, DW-4 Gurjant Singh had deposed that on 22.3.2001, the police had

arrested accused Satnam Singh and that after 5-7 days they came to know that a false case had been registered against him. During cross-

examination he stated that later on he came to know that a case with regard to the recovery of poppy husk from a truck had been registered

against accused Satnam Singh. He admitted that no application in writing was given to the higher authorities and further stated that accused Satnam

Singh was alone and had no family members and stated that he was doing labour work. In our opinion, no reliance, whatsoever could be placed on

the testimony of DW4 Gurjant Singh, especially when even after coming to know about the involvement of accused Satnam Singh in a case with

regard to the recovery of poppy husk from a truck, he had not moved the higher authorities in writing about his false implication. Thus we would

reject the defence version.

Since recovery of 60 bags of poppy husk was effected from a truck, provisions of Section 50 of the Act would not apply to the present case.

Furthermore, since recovery was affected from a public place, provisions of Section 42 of the Act would have no application, whereas Section 43

would apply to the present case. Furthermore, even though the truck was stopped at about 6.30 p.m. on 22.3.2001, yet the ruqa Ex. PH was sent

to police station on the morning of 23.3.2001 at 7.30 a.m., since sufficient time was required for completing the formalities. In our opinion, accused

appellants Satnam Singh and Randhir Singh who were apprehended at the spot along with 60 bags of poppy husk, cannot take any benefit of the

delay in sending the ruqa to the police station. We are further the opinion that on the facts and circumstances of the present case, it could not be

said that accused-appellants Satnam Singh and Randhir Singh had been falsely implicated in this case. In our opinion, learned Special Court had

rightly convicted accused-appellants Satnam Singh and Randhir Singh of the offence u/s 15 of the Act.

With regard to accused-appellants Harpreet Singh and Albel Singh, it was submitted before us by the learned counsel appearing for these

appellants that these appellants were falsely implicated in this case. It was submitted that these appellants were not apprehended at the spot and

were falsely involved. It was submitted that accused appellant Harpreet Singh was falsely implicated on account of his dispute with landlord, who

was connected with the police while accused appellant Albel Singh was having enmity with the police. It was submitted that frothing has come on

the record to show as to how PW4 ASI Gurtej Singh knew accused appellants Harpreet Singh and Albel Singh and there was absolutely no

occasion for ASI Gurtej Singh to identify these accused appellants considering that they had allegedly fled away from die behind of the truck. It

was further submitted that from the defence evidence in die form of statements of DW1 Jagdev Singh and DW2 Shingara Singh, it would be clear

that accused appellants Harpreet Singh and Albel Singh have been falsely implicated in this case. On the other hand, learned State Counsel

submitted before us that accused appellants Harpreet Singh and Albel Singh had rightly been convicted by the trial Court.

After hearing the learned counsel for the parties and perusing the record, in our opinion, the case against accused appellants Harpreet Singh

and Albel Singh is not proved beyond reasonable doubt. As referred to above, these accused were not arrested at the spot. According to the case

of the prosecution, these accused appellants namely Harpreet Singh and Albel Singh were sitting in the body of the truck and they ran away from

behind the truck when SI Hardevinder Singh inquired the name of the driver and thereupon SI Hardevinder Singh sent ASI Gurtej Singh to follow

them. PW1 Hardevinder Singh stated during cross-examination that whet) the truck was stopped neither of the police party was behind the truck

at that time and both the parties were on the other side. He stated that when the truck was stopped the other party also reached their side and

when he was inquiring from the driver the other police officials were standing on their side. He stated that he had gone behind the truck prior to the

running of the accused persons but stated that however, when there was hue and cry about the running of accused persons i.e. two persons from

the body of the truck, he had gone to the back of the truck, He stated that ASI Gurtej Singh and HC Yadwinder Singh were asked to follow them.

He stated that at the time of running of those two persons ASI Gurtej Singh had not disclosed their names to him and they disclosed the names of

these two persons after they came back after following them. He stated that they had not opened fire in the air. He stated that accused remained at

some distance till they disappeared and then it became dark. He stated that accused persons namely Albel Singh and Harpreet Singh were

identified when they had seen towards their back side. He stated that the police officials also called them by their names to stop otherwise they

would open fire but fire was not opened. He stated that accused Harpreet Sigh was earlier known to him as a case was earlier registered and he

had conducted verification of that case. He admitted that with regard to the inflicting of injuries on the father of this accused a case was registered

but volunteered to state that the. said case was cancelled. PW4 ASI Gurtej Singh stated that the two persons sitting in the body of the truck

jumped down from the truck and rail away and on the direction of the SHO he along with Yadwinder Singh chased those persons but they fled

away and were identified by him and HC Yadwinder Singh as Albel Singh and Harpreet Singh. During cross examination, he stated that only he

and Yadwinder Singh had chased the accused who fled away from the spot. He stated that faces of these accused were not towards them but

when they were running they used to see them. He denied the suggestion that accused Albel Singh and Harpreet Singh were not present at the spot

or that they were not identified by him. He stated that he was a resident of Fatta Maluka Tehsil and District Mansa, P.S. Jhunir. He also admitted

that HC Darshan Singh was of his village and was serving in Punjab Police Department and stated that he was serving in the Vigilance Department.

He denied the suggestion that Harpreet Singh had been falsely implicate din this case on account of his strained relations with HC Darshan Singh.

From the testimony of PW1 SI Hardevinder Singh and PW4 ASI Gurtej Singh, in our opinion, the involvement of accused appellants Harpreet

Singh and Albel Singh at the spot does not stand proved on record, beyond reasonable doubt. As referred to above, nothing has come on the

record to show as to how ASI Gurtej Singh knew accused appellants Harpreet Singh and Albel Singh prior to the present occurrence. If that be

so, there was absolutely no occasion for PW4, ASI Gurtej Singh to identify accused Harpreet Singh and Albel Singh and to have given their names

and parentage to SI Hardevinder Singh. Furthermore, on the facts and circumstances of the present case, it is highly doubtful if PW4 ASI Gurtej

Singh would have identified accused appellants Harpreet Singh and Albel Singh, who allegedly ran away from the body of the truck from behind

and no police official was present there at that time. In our opinion, accused Harpreet Singh and Albel Singh could not have been identified from

their wearing apparels and as such testimony of PW1 SI Hardevinder Singh in this regard cannot be accepted. PW1 SI Hardevinder Singh had not

identified accused appellants Harpreet Singh and Albel Singh at the spot and his information was based on the information supplied to him by ASI

Gurtej Singh. However, as referred to above, nothing has come on the record to show as to how ASI Gurtej Singh knew these accused

previously. Furthermore, PW1 SI Hardevinder Singh had deposed that accused Harpreet Singh was earlier known to him as he had conducted the

verification of the earlier case and that case was registered with regard to the inflicting injuries on his father and had volunteered to state that the

said case was cancelled. If that be so, SI Hardevinder Singh would have identified accused Harpreet Singh at the spot, if he knew him. However,

there is nothing to show that SI Hardevinder Singh had identified accused Harpreet Singh at the spot.

Furthermore, from the documents Ex. D5 to D7, it stands proved on the record that on the statement of Thana Singh, father of accused

Harpreet Singh, FIR, copy Ex. D5 was registered against Ajaib Singh and his father Bant Singh under Sections 324/34 IPC and SI Hardevinder

Singh, SHO PS City Mansa had submitted cancellation report, copy Ex. D6 in respect of the said FIR and also initiated proceedings u/s 186 IPC

against him. Furthermore, the learned CJM, Mansa vide order dated24.2.2000, copy Ex. D7 had disagreed with the aforesaid cancellation report

submitted by SI Hardevinder Singh and accordingly he took cognizance u/s 190 Cr.P.C. for the offences punishable under Sections 325/324 IPC,

against Ajaib Singh and Bant Singh and they were summoned to face trial for the aforesaid offences. These documents would clearly show that SI

Hardevinder Singh had a grudge against the family of Harpreet Singh inasmuch as with regard to the FIR got registered by his father Thana Singh,

SI Hardevinder Singh submitted a cancellation report but the CJM, Mansa had not agreed with the same and had taken cognizance against the

other side.

From the detailed discussion above, in our opinion, it would be clear that the involvement of accused appellants Harpreet Singh and Albel

Singh on the spot is not proved on the record beyond reasonable doubt, inasmuch as the identity of accused appellants Harpreet Singh and Albel

Singh is not established beyond reasonable doubt. In our opinion, accused appellants Harpreet Singh and Albel Singh are entitled to the benefit of

doubt.

For the reasons recorded above, Crl. A.Nos. 744-DB of 2003, filed by Harpreet Singh and Albel Singh are allowed and accused appellants

Harpreet Singh and Albel Singh are acquitted of the charge framed against them. So far as accused appellants Satnam Singh and Randhir Singh are

concerned, their conviction for the offence u/s 115 Of the NDPS Act is upheld. However, taking into consideration the facts and circumstances of

the present case, in our opinion, the sentence of 16 years RI and fme of Rs. 2 lacs each upon accused appellants Satnam Singh and Randhir Singh

is on the higher side. Accordingly, the sentence imposed upon Satnam Singh and Randhir Singh is reduced from 16 years RI to 12 years RI and

the fine imposed upon them is also reduced from Rs.2 lacs each to Rs. 1 lac each. It is further directed that in case of non payment of said fine,

accused appellants Satnam Singh and Randhir Singh shall undergo further RI for two years each. With this modification on the question of

sentence, Crl.A. Nos. 77-DB and 792-DB of 2003 filed by accused appellants Randhir Singh @ Noni and Satnam Singh, respectively are hereby

dismissed.