Jeon Singh vs State of Punjab

T.P.S. Mann, J.—The Appellant is aggrieved of the judgment and order dated July 30, 2002 passed by Judge, Special Court, Bathinda

whereby he was convicted u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and

sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-and in default of payment of fine, to undergo further

rigorous imprisonment for two years.

The facts of the case, as stated in para 2 of the impugned judgment, are as under:

On 26.5.2000 SI Gurdeep Singh, alongwith ASI Gurdev Singh and other police officials, was present at ''T-point'' V. Jalal, Gumti and Bhairupa.

Jagjit Singh PW came there and he was associated in the party. At about 8.00 A.M., a scooter bearing No. PB-03G-4067 was seen coming from

the side of Village Jalal. Scooter was got stopped there by giving a signal. A theli was lying in the basket of the scooter. IO having suspicion of

some contraband in that theli asked the accused that he wants to search the theli and that he has a right to get the search conducted in the presence

of some Gazetted Officer or Magistrate, to which the accused replied for his search before some Gazetted Officer. Memo Ex.PE in this respect

was prepared, which was signed by accused and attested by P Ws. A wireless message was sent and after some time DSP Surjit Singh Khosa

reached at the spot. He disclosed his identity to the accused and he asked the accused that search of theli lying in the basket of scooter is to be

conducted and he has a right to get the search conducted before any other Gazetted Officer or Magistrate but the accused consented for his

search before him. Memo Ex.PA in this respect was prepared, signed by accused and attested by P Ws. Then on the direction of DSP, SI

Gurdeep Singh searched the theli lying in the scooter and it was found containing opium wrapped in a glazed paper. 10 grams of opium was

separated as sample and the remaining opium on weighment came to 2 kgs 990 grams. The sample and the remaining opium were then sealed into

two separate parcels and sealed with seal bearing impressions ''GS''. Sample seal Ex.P1 was separately prepared. Both the sealed parcels and

seal impression were taken into possession vide recovery memo Ex.PB, attested by P Ws. Grounds of arrest were disclosed to accused vide

memo Ex.PE. On personal search of accused Rs. 170/-were recovered and the same were taken into possession vide memo Ex.PD, attested by P

Ws. Ruqa Ex.PF was sent to the Police Station, on the basis of which formal FIR Ex.PF/1 was recorded by Gurjit Singh. Scooter alongwith its

RC was taken into possession vide memo Ex.PC attested by P Ws. Rough site plan Ex.PG was prepared. Statements of witnesses were

recorded. On the next day, accused and case property were produced before the Ilaqa Magistrate vide application Ex.PJ and learned Magistrate

passed order Ex.PJ/1. Later on the sample parcel was sent to the office of Chemical Examiner for analysis and on receipt of report and completion

of investigation, the challan against the accused was presented in the Court.

The Appellant was charged for the offence u/s 18 of the Act, to which he pleaded not guilty and claimed trial.

In support of its case, the prosecution examined PW1 DSP Surjit Singh Khosa, PW2 SI Gurdeep Singh, PW3 Harjit Singh, Clerk of D.T.O.

Office, Bathinda and PW4 C-I Subeg Singh. Report Ex.PM of the Chemical Examiner was tendered in evidence. Jagjit Singh was given up as

having been won over, whereas the remaining witnesses were given up as unnecessary.

After closure of prosecution evidence, statement of the accused u/s 313 Cr.P.C., to the circumstances appearing against him in evidence was

recorded, to which he denied and pleaded that he had been falsely implicated in this case at the instance of Balbir Kaur, Sarpanch, to whom he

opposed and passed a resolution against her. He further deposed that he was brought from the meeting of the Panchayat in the village alongwith his

scooter on the pretext of compromise with Balbir Kaur, Sarpanch. A resolution in this respect was also passed in the village Panchayat and nothing

was recovered from him. When he was brought to Police Station, Dialpura, Jagjit Singh son of Saggar Singh of village Aklia was also present

there.

In defence, the accused examined DW1 Jagjit Singh, DW2 Bhola Singh, Panchayat Secretary and DW3 Kuldeep Singh, Panch.

The trial Court believed the prosecution version and convicted and sentenced the Appellant, as mentioned above.

I have heard learned Counsel for the parties and perused the evidence with their able assistance.

According to the Appellant, he was a member of Gram Panchayat. On 25.5.2000 at 3.00 P.M, a meeting of the Panchayat had taken place

under the chairmanship of Kuldeep Singh, Panch. The Appellant was present in the said meeting and he appended his signatures at ''Mark-X'' in

the proceedings book. Whilst the meeting was going on, two police officials from Police Station, Dialpura Bhaika came and asked the Appellant to

accompany them on his scooter as he was summoned to the Police Station in connection with some urgent work. After the Appellant accompanied

those two police officials to the Police Station, Kuldeep Singh, Panch moved a resolution regarding the Appellant having left on a scooter

alongwith two police officials for Police Station, Dialpura Bhaika. After being taken to Police Station, his search was conducted and also that of his

scooter but nothing incriminating was recovered. He was, however, detained and on the next day involved in the present case on the allegations

that he was found in possession of 3 kgs. of opium while carrying it in the basket of his scooter.

PW1 DSP Surjit Singh Khosa, who, according to the prosecution, was summoned to the spot after the Appellant was apprehended by SI

Gurdeep Singh, deposed that the Appellant was member of the Gram Panchayat, and having party faction with Balbir Kaur, Sarpanch of his

village. He also admitted that she was defeated by the Appellant with the help of other Panchayat members by moving ''no confidence motion''.

Though he denied that the Appellant was brought from his village by two police officials alongwith his scooter in the presence of some Panchayat

members and a resolution regarding his false implication had been passed on 25.5.2000 yet from the testimonies of DW2 Bhola Singh, Panchayat

Secretary and DW3 Kuldeep Singh, Panch, it stands established that the Appellant was picked up on 25.5.2000 when a meeting of the Panchayat

was going on and, thereafter, taken to the Police Station. In that regard they proved the resolutions Exs.DW2/A, DW2/B, DW2/C, DW2/D and

DW2/E. All those resolutions were written by DW2 Bhola Singh, Panchayat Secretary and signed by DW3 Kuldeep Singh, Panch, besides, a few

other Panches. Their testimonies could not be shaken by the prosecution while cross-examining them. Mere fact that DW3 Kuldeep Singh was a

co-villager of the Appellant or that DW2 Bhola Singh, Panchayat Secretary had not brought his appointment order as Panchayat Secretary, is no

ground to reject their versions when they stated that during the Panchayat meeting two Constables had come asking the Appellant to accompany

them to the Police Station.

The prosecution had associated Jagjit Singh of village Aklia Jalal to vouchsafe the recovery of the contraband from the Appellant. However,

said Jagjit Singh refused to toe the line of the prosecution. He was, accordingly, given up as having been won over. When produced by the

Appellant as DW1, he stated that on 25.5.2000, he went to the Police Station for some work where two Constables brought the Appellant, who

was having a scooter with him. In his presence, search of the Appellant and his scooter was conducted. Only Rs. 170/-were recovered from his

person. No opium or any other contraband was recovered either from the Appellant or from his scooter. His signatures were obtained by the

SHO on a few blank papers. He denied the suggestion that he had joined the police party headed by SI Gurdeep Singh in the revenue limits of

village Jalal or 3 kgs. of opium was recovered from the Appellant in his presence. He admitted his signatures on Exs.PA to PE but explained that

nothing was written on those documents at that time. He also stated that the Appellant was not known to him previously.

As regards the prosecution case, it may be noticed that the provisions of Section 57 of the Act were not complied by the prosecution. DSP

Surjit Singh Khosa, who stood posted as Circle Officer at Rampura Phul on 26.5.2000, admitted it as correct that the special report, which was

received by him, was not on the judicial file. The special report on the judicial file was signed by Jaspreet Singh Sidhu, DSP, Bathinda, who was

not superior officer of Police Station, Dialpura. Though, he volunteered that special report was sent to Headquarters, Bathinda but admitted that he

had received only copy of FIR but not special report u/s 57 of the Act. Even PW2 SI Gurdeep Singh stated towards end of his cross-examination

that he did not send any special report u/s 57 of the Act to DSP, Rampura Phul.

According to the prosecution, after the recovery was effected on 26.5.2000, SI Gurdeep Singh took the Appellant to the Police Station and

put him in the lockup. On 27.5.2000, he produced the Appellant and the case property before the Ilaqa Magistrate vide application Ex.PJ upon

which the Magistrate directed that the case property be deposited in the Judicial Malkhana. On 30.5.2000, he deposited the case property with

the MHC of Police Station, Dialpura. On 1.6.2000, he sent the sample to the Chemical Examiner, Patiala through C. Subeg Singh, who after

depositing the same produced the receipt. Till the case property remained in his custody, SI Gurdeep Singh did not tamper with the same nor

anyone was allowed to do so. From the above, it is clear that from 30.5.2000 to 1.6.2000 the case property, including the sample, remained with

MHC of Police Station, Dialpura. Said MHC has neither been produced by the prosecution as a witness nor his affidavit tendered in evidence.

Therefore, the link evidence regarding safe custody of the sample from 30.5.2000 to 1.6.2000 was missing.

In view of the above, it cannot be said that the prosecution has been able to prove the guilt of the Appellant beyond reasonable doubt.

Therefore, it would not be safe to sustain the conviction of the Appellant.

Resultantly, the appeal is accepted, conviction and sentence of the Appellant is set aside and he is acquitted of the charge against him. He is on

bail. His bail bonds shall stand discharged.