Niranjan Singh vs State of Punjab

R.L. Anand, J. (Oral)

Shri Niranjan Singh son of Shri Sardara Singh, a young boy of 26 years, has filed the present criminal appeal and it has been directed against the judgment and order dated 3.7.1996 passed by Additional Sessions Judge, Barnala, who convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) and sentenced him to undergo R.I. for a period of ten years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was directed to further undergo R.I. for six months.

The brief facts of the case are that on 25.8.1995 SI Kuldeep Singh, incharge Police Post Mandiaya along with HC Mangat Rai, HC Yadwinder Singh and Constable Jagtar Singh was present in the area of Main Bathinda Road towards Khudi Khurd and when they reached the bridge of canal minor, appellant Niranjan Singh was seen coming from the side of village Handiaya via bank of the canal minor and on the basis of suspicion he was apprehended by SI Kuldeep Singh in the presence of other members of the police party. SI Kuldeep Singh enquired from the appellant as to whether the latter wanted to give the search in the presence of some Gazetted Police Officer or Magistrate, but the appellant reposed confidence in the Thanedar, who recorded his statement Ex. PF to that effect. Thereafter SI Kuldeep Singh took the search of the person of the appellant in the presence of the members of the police party and one Chhota Singh who happened to be one of the members of the police party and from the left dub of the Pajama of the appellant opium was recovered. On weighment it came to 620 grams. The Thanedar separated 20 grams of opium by way of sample and converted this quantity of opium into two samples of 10 grams each. The Thanedar put his own seal bearing inscription `KS'' on the sample parcels and the seal after use was handed over to HC Yadwinder Singh. The remaining opium was separately sealed with the seal bearing inscription `KS''. The appellant could not produce any licence or permit for the possession of the opium. Resultantly, ruqa Ex. PK was sent to Police Station Barnala for the registration of the case on the basis of which formal FIR Ex. PK/1 was recorded by ASI Ajit Singh. The Investigating Officer SI Kuldeep Singh took the case property into possession vide recovery memo Ex. PH. He prepared the jamatalasi memo Ex. PJ and the alleged consent statement of the appellant is Ex. PF on the record. Special report was also sent to the higher authorities under Section 57 of the Act. The Investigating Officer also prepared the rough site plan Ex. PL of the place of arrest and on return to police station he produced the case property and the appellant before Inspector Gurbans Singh, who resealed the case property with his own seal bearing inscription `GS''. The samples of the opium were sent to the office of the Chemical Examiner, who vide report Ex. PG declared the contents as opium and on completion of the investigation of the case, the appellant was challaned in the Court of Illaqa Magistrate, who supplied the copies of the documents to the appellant and vide commitment order dated 20.10.1995 committed the appellant to the Court of Session.

Vide orders dated 6.11.1996 the appellant was charge sheeted on the allegations that on 25.8.1995 in the area of Khudi Khurd he was allegedly found in possession of opium weighing 620 grams without any licence or permit and thereby he committed the offence under Section 18 of the Act. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined PW1 DSP Narjinder Singh, who proved the special report Ex. PA and endorsement Ex. PA/1 by stating that special report was received by him and on receipt of the same he made the endorsement on it. SI Gurbans Singh appeared as PW2, who resealed the case property with his own seal bearing inscription `GS'' and further he deposed that after the receipt of the case property he handed over the same to MHC Devinder Singh along with the samples for onward transmission to the office of Chemical Examiner. Constable Inderjit Singh appeared as PW3 and he gave his statement on affidavit Ex. PC. Similarly the affidavit Ex. PD of MHC Devinder Singh was tendered into evidence besides the report of the Chemical Examiner. HC Yadwinder Singh appeared as PW4 and Investigating Officer SI Kuldeep Singh appeared as PW5 and both these witnesses have supported the allegations of the prosecution as stated above.

On the closure of the prosecution evidence, statement of the appellant was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. The appellant denied those circumstances and stated as follows :

"I am innocent. I was employed as driver with Surinder Singh with whom I had quarrelled on account of dispute over payment of my wages. At his instance police took me to P.P. Handiaya and false case was planted upon me."

When called upon to enter in his defence, the appellant examined Chhota Singh as DW1, who was allegedly associated by the police at the time of the arrest of the appellant. According to this witness, Niranjan Singh appellant was not known to him. He even could not identify the appellant in the Court. Further this witnesses deposed that so far his memory goes, the appellant was not arrested in his presence. Explaining his thumb impressions on the recovery memos this witness has stated that he had gone to the police post for some personal work and there he was asked by the SHO to thumb mark some papers.

The trial Court relied upon the story of the prosecution and rejected the defence version and convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence the present appeal.

I have heard Shri A.S. Jattana, Advocate for the appellant, Shri Vikas Cuccuria, AAG for the State of Punjab and with their assistance I have gone through the records of the case.

It is a basic law that it is for the prosecution to prove the charge beyond any reasonable doubt. Further, the law is "graver the offence, stricter the proof". If the counsel for the appellant creates a reasonable dent in the story of the prosecution, the benefit of such dent has to go to the appellant and not to the prosecution. The case which has been set up by the prosecution before the trial Court was that the alleged recovery of opium was effected in the presence of Chhota Singh. Further, it is the case of the prosecution that the statement given by the appellant in favour of the Investigating Officer was also made in the presence of Chhota Singh. In these circumstances, we have to examine minutely whether Chhota Singh was actually present at the place of occurrence or not. If the presence of Chhota Singh has become doubtful, there is no difficulty on the part of this Court to hold that the story of the prosecution as putforth before the trial Court is not trustworthy and that the learned counsel for the appellant has been able to make out a case for acquittal. For the convenient reason, the prosecution did not examine Chhota Singh, but the defence took the courage to examine Chhota Singh and according to this witness nothing was recovered from the appellant in his presence. This witness has even gone to the extent by saying that Niranjan Singh was even not arrested in his presence. He has explained his three thumb impressions on the recovery memos allegedly relied upon by the prosecution by stating that the SHO had obtained his thumb impressions on these papers. Here is a case which is solely based on the testimony of two police officials. The appellant was never produced before any Gazetted Officer. In these circumstances, we have to minutely examine the testimony of SI Kuldeep Singh and HC Yadwinder Singh especially when Chhota Singh is not inclined to support the allegations of the prosecution.

Persons may lie but the circumstances would not. I find grain of truth in the testimony of Chhota Singh when he stated that his thumb impressions were obtained in the police post and that he was never present at the place of alleged recovery. The first thumb impression of Chhota Singh is on recovery memo itself. A bare glance of this document would show that the thumb impression of Chhota Singh has been affixed on this document in such a manner from which a clear inference can be drawn that the writer of the recovery memo Ex. PH wanted to conclude the script above the thumb impression of Chhota Singh and that is the reason that the space of last three lines on this recovery memo is irregular as compared to the space above these three lines. The words (Chhota Singh son of Sadhu Singh Majhabi r/o Handiaya and the line underneath these words with the remarks LTI) have appeared above the thumb impression of Chhota Singh indicating clearly that the thumb impression of Chhota Singh appeared first on the document and thereafter the script. Assuming for the sake of argument that Chhota Singh being an illiterate might have put the thumb impression above the script but this mistake cannot be repeated on the other documents Ex. PF, the alleged statement of the appellant, and the jamatalashi memo Ex. PJ. Once a reasonable doubt is created that the Investigating Officer has manipulated the thumb impression of Chhota Singh under a different circumstance that the one stated by the prosecution, this Court will certainly clinch the issue in favour of the appellant by holding that Chhota Singh was not present at the time of alleged recovery and that the chances cannot be ruled out that the opium might have been recovered from a different set of circumstances. Repeatedly it has been held that the testimony of a defence witness has to be read in the same manner and the weight which has to be given to a defence witness should be in the same manner as that of a prosecution witness. The prosecution has not been able to dislodge the testimony of Chhota Singh. Firstly, the prosecution did not want to examine this witness but when he was examined as a defence witness, his testimony has not been shattered.

Even the compliance of Section 50 of the Act in this case has not been done in a proper manner. Assuming for the shake of argument that the appellant stated before the Investigating Officer SI Kuldeep Singh that he had full faith in the Investigating Officer who may take his search but the substantive statement which has been given by HC Yadwinder Singh PW4 before the trial Court is on different lines when this witness deposed as follows :

"SI Kuldeep Singh told the accused that his personal search was to be conducted and if he so desired the same could be done in the presence of a Gazetted police officer or a Magistrate but the accused reposed confidence in the police party and his statement to this effect was recorded as Ex. PF."

This clearly indicates that from the substantive statement of HC Yadwinder Singh it is not clear who was the member of the police party in whose favour the appellant reposed confidence. If the testimony of Yadwinder Singh is also taken to be a shaky one then we are only left with the statement of SI Kuldeep Singh. The point for determination would be whether it would be safe for the Courts to convict the appellant on the sole testimony of SI Kuldeep Singh in such like cases when the law demands a stricter proof as the man was going to be punished with a substantive sentence of ten years. The considered answer of this Court would be in the negative especially for the reasons that in this case the grounds of arrest were not supplied to the appellant at the time of his arrest and a serious prejudice had been caused to him with the nonsupply of this document. Coupled with the other facts which I have highlighted above, this Court is of the opinion that the appellant has been able to create a reasonable doubt in the mind of this Court about the genuineness of the recovery and the prosecution story.

The counsel for the appellant also made an endeavour to convince to this Court that the investigation in this case is not in accordance with law such as that only partial offer was given; that the seal was not entrusted to the independent witness; that the affidavits have not been sworn by the deponents strictly in accordance with law, but I am not convinced with any of the submissions raised by the learned counsel for appellant. However, the fact remains that the presence of Chhota Singh at the time of the alleged recovery is clearly doubtful. His services have been pressed into by the Investigating Officer in different set of circumstances than the one propounded by the prosecution.

Resultantly, I accept this appeal, set aside the judgment and order of the learned 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 rules.

Let the intimation about the acceptance of this appeal be sent to the Superintendent, Central Jail, Jalandhar, who is directed to set the appellant at liberty if not required or wanted in any other case.