Iqbal Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal filed by Iqbal Singh and has been directed against the judgment and order dated 17.9.1996, passed by the court of Addl. Sessions Judge, Amritsar, who convicted the appellant u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, the appellant was directed to undergo R.I. for one year for allegedly having been found in possession of 900 grams of opium on 26.6.1995 in the area of Amritsar, without any licence or permit.

The brief facts of the prosecution story are that on 26.11.1995, ASI Ajmer Singh along with HC Baldev Singh and Rakesh Batra, PW, and members of the police party was present in Chowk Khazana Gate, Amritsar. In the meantime, the appellant came from the side of Jhabal Road at about 7.45 p.m. On seeing the police party, he tried to take a turn but on the basis of suspicion, he was apprehended. He was given the option to be searched before the gazetted officer or the Magistrate and the appellant exercised his option to be searched in the presence of a gazetted officer. His statement to this effect, Ex. PA, was recorded. It was read over and explained to the appellant who signed the same in token of its correctness. The same was also attested by the witnesses. Thereafter, a wireless message was sent to the DSP Kanwaljit Singh, who came at the spot and in his presence the person of the accused was searched, which led to the recovery of 900 grams of opium wrapped in a glazed paper. Opium was found lying in the Jhola held by the accused. The ASI separated 10 grams of opium by way of sample and made a sealed parcel thereof by using the double seal of `AS'' and `KS'' and the remaining opium was separately sealed with the same seal and the entire case property was taken into possession vide recovery memo, Ex. PB. Accused could not produce any licence or permit for the possession of opium. Resultantly, Ruqa, Ex. PD, was sent to the Police Station `D'' Division, Amritsar, for the registration of the FIR, on the basis of which, formal FIR Ex. PD/1, was recorded by ASI Baldev Singh. The IO prepared the rough Site Plan, Ex. PE, of the place of recovery. From the personal search of the appellant, a sum of Rs. 121/ was recovered and this currency was also taken into possession vide recovery memo, Ex. PC. On return to the police station, the accused along with the case property was produced before the SHO, Police Station `D'' Division, Amritsar, who put the case property in double lock. The sample of the opium was sent to the office of the Chemical Examiner, who vide report Exh. PF, declared the contents as opium. On the completion of the investigation of the case, the appellant was challaned u/s 18 of the Act in the court of the Illaqa Magistrate, who supplied the copies of the documents to the appellant free of cost as required under the law and vide commitment order dated 15.9.1995, committed the appellant to the court of sessions.

Arguments on charge were heard on 30.10.1995 and the learned trial court came to the prima facie conclusion that the appellant was in possession of opium weighing 900 grams on 26.6.1995 in the area of Chowk Khazana Gate, Amritsar. Formal charge u/s 18 of the Act was also prepared against the appellant. The charge was read over and explained to the appellant who pleaded not guilty and claimed a trial.

In order to substantiate the charge, the prosecution examined ASI Ajmer Singh, PW1, Constable Rakesh Kumar PW2, who gave his statement by way of an affidavit, SI Prabdev Singh, PW3, and DSP Kanwaljit Singh, PW4. Constable Dilbagh Singh, HC Baldev Singh, ASI Baldev Singh and ASI Som Raj were given up as unnecessary. Rakesh Batra, witness joined by the police party was given up by the prosecution as having been won over by the accused.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and stated as follows :

"I am innocent. I was taken from my house, was illegally detained by the police and later on falsely implicated in this case."

In defence, the accused examined his wife Smt. Sharanjit Kaur, as DW1 and Ravinder Pal, Clerk of the Office of the Senior Superintendent of Police, appeared as DW2.

The learned trial court believed the prosecution story and rejected the defence version. The appellant was convicted and sentenced in the manner as stated above and aggrieved by his conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Shri P.S. Hundal, counsel for the appellant and Shri J.S. Brar, DAG, Punjab, appearing, on behalf of the State and with their assistance have perused the record of this case.

Before I touch the merits of this case, I would like to go a little backward and start the events from 26.6.1995. The present case is the subject matter of FIR 34 registered on 26.6.1995. FIR 33 was registered in Police Station `D'' Division, Amritsar, on 22.6.1995 against one Narinder Singh and the present appellant. It was the story of the prosecution in FIR 33 that the present appellant along with Narinder Singh was spotted on a Scooter at the same point from where the present recovery has been shown by the police. On seeing the police party, the present appellant Iqbal Singh fled away while his companion Narinder Singh was apprehended along with opium weighing 1 kg. Both Narinder Singh and the present appellant were tried for the offence u/s 18 of the Act on the allegations that they were in conscious possession of opium on 22.6.1995. Vide judgment, Ex. D2, Narnder Singh, the alleged companion of the present appellant, was convicted while the appellant was acquitted. A finding was also given by the trial court that the story of the prosecution regarding fleeing of the present appellant looks to be improbable.

When this was the case of the prosecution in FIR 33 that the appellant fled away from the place of occurrence on 22.6.1995, it is highly improbable that the appellant would again appear at the same juncture and point on 26.6.1995 with the opium. Rather, he would be the first man to run away in order to save his life. There is a documentary evidence which proves that the present alleged recovery on 26.6.1995 is, on the face of it, a plantation. DW1 Sharanjit Kaur, wife of the appellant, gave a telegram on 25.6.1995 to the effect that her husband had been arrested by the police on 22.6.1995 at about 12 noon without any reasons and a request was made to the SSP, Amritsar, to intervene in the matter. No doubt, Sharnajit Kaur is an interested witness because her husband Iqbal Singh is the present appellant. I am also not going to agree with the entire contents of the telegram, Ex. D1. Probabilities are more that the appellant might have fled away from the spot on 22.6.1995 or he might be wanted by the police on the statement of Narinder Singh. The police must have been after Iqbal Singh, appellant. FIR 33 was recorded in the police station in the morning time. It is equally possible that Narinder Singh might have been apprehended during the later hours of 22.6.1995 and for this reason the telegram must have been given by the wife of the appellant on 25.6.1995 to the effect that her husband has been taken into custody. Even if it is assumed for the sake of arguments that some of the contents of Ex. D1 are not correct, still it is clear that this telegram had reached the office of the SSP, Amritsar, on 26.6.1995 and it was diaried at Sr. No. 1827. The recovery of the present case has been shown at 7.45 p.m. on 26.6.1995 after office hours. A reading of the telegram, Ex. D1, would show that it bears the postal stamp dated 25.6.1995. Under what circumstances, Smt. Sharanjit Kaur could even contemplate and dream that her husband is going to be arrested on 26.6.1995. When a person was saving his skin as he was wanted by the police since 22.6.1995, it is highly improbable that he would carry with him opium and would appear at the same point and juncture with the incriminating articles. In these circumstances, a reasonable inference can be drawn that on 22.6.1995, some opium was recovered by the police. It may be from Narinder Singh. The appellant must be the companion of Narinder Singh dealing in this trade. The police wanted to teach lesson to the present appellant. The possibility cannot be ruled out that it must have bifurcated the contents of the opium and some opium was planted upon Narinder Singh and some opium was kept in reserve so that it may be planted upon the present appellant on his arrest. The contents of telegram, Ex. D1, take out the wind from the sail of the prosecution. This document cannot be fabricated by Sharanjit Kaur. It clearly indicates that the appellant was already in the custody of the police prior to 25.6.1995 and the police thought proper to fix him in a case under the Narcotic Act like his alleged companion Narinder Singh and the recovery was shown on 26.6.1995 by the IO who must have been ignorant that on 25.6.1995, a telegram has already been given by the wife of the appellant to the SSP, Amritsar. Caught of that ignorance, the IO planted the present case upon the appellant. In these circumstances, the benefit of doubt has to be extended to the appellant.

Other arguments were also addressed by Mr. Hundal, such as, Rakesh Batra, independent witness, has not been examined by the prosecution; that the seal after use was not handed over to him; that the link evidence is missing in this case and that the provisions of section 50 of the Act have not been complied with by the prosecution, but none of these contentions raised by the learned counsel for the appellant finds favour with me. It is not the mandate nor is the intention of the law that the independent witness must be examined in all cases. In the present case, DSP Kanwaljit Singh was examined by the prosecution but his evidence and that of the IO cannot be accepted in view of the telegram, Ex. D1.

The link evidence in this case is not missing. There is a presumption of correctness with regard to the official acts u/s 140, Indian Evidence Act.

The net result is that it has not been established on the record that the appellant was arrested on 26.6.1995 with the opium. The prosecution is supposed to prove the charge beyond a reasonable doubt and to exclude of every possibility to the effect that the benefit of doubt cannot be given to the appellant. Present case is the one where the benefit of doubt can go to the appellant.

Resultantly, I allow this appeal, set aside the judgment and order of the trial court and acquit the appellant of the charge framed against him. The case property stands confiscated to the State and shall be destroyed according to law. Information about the acceptance of this appeal be sent to the Central Jail, Amritsar, so that the appellant may be released forthwith, if not wanted or convicted in any other case.