Pala Singh vs State of Punjab

A.N. Jindal, J.—Pala Singh appellant-accused (herein referred as ''the accused'') was prosecuted for the offence u/s 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein referred as ''the Act'') for getting in his possession 56 kgs. of the poppy husk without any permit or licence and ultimately vide judgment dated 12.3.2005, Special Judge, Bathinda, convicted and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- for the aforesaid offence. Case property including the moped bearing registration No. PB-04-C-1940 were also ordered to be confiscated to the State.

On 09.10.2003, PW3 ASI Mohari Lal (herein referred as ''the Investigating Officer'') alongwith other police officials was on patrolling in the area of Rampura on the road leading to village Rampura. The accused was seen coming on a moped bearing registration No. PB-04-C-1940. He, on seeing the police party, tried to take a turn. On suspicion, he was apprehended. After associating Babu Singh, a member Panchayat, the accused was given option of search from a Gazetted Officer or a Magistrate vide memo Ex.PC then in the presence of DSP Balbir Singh Khera, the accused was searched whereupon two bags of poppy husk were recovered from the moped. After drawing two samples of 25 grams each from each bag, the same were converted into parcels. On weighment, bags were found containing 28 kgs and 28.500 kgs of poppy husk respectively. Same were converted into parcels. All the parcels were sealed with the seal bearing impression "ML". Sample seal, so prepared, after use was handed over to ASI Baldev Singh. The investigating Officer took the sample parcels, the bags as well as the moped into possession vide memo Ex.PB and sent the ruqa Ex.PE to the police station on the basis of which FIR Ex.PE/1 was registered. On return to the police station, the accused alongwith case property was produced before Station House Officer Gurjit Singh, who after verifying the case property, sealed the same with the seal bearing impression "GS". He also prepared the inventory Ex.PJ and placed the same before Ilaqa Maghistrate on 10.10.2003 who also identified the case property. Completion of investigation was followed by a report u/s 173 Cr.P.C.

The accused was charged for the aforesaid offence to which he pleaded not guilty and opted to contest.

In order to substantiate the charges, the prosecution examined DSP B.S. Khehra (PW1), Constable Gurwinder Singh (PW2), ASI Mohri Lal (PW3), Sub Inspector Gurjit Singh, SHO, (PW4) and Jagtar Singh, Photographer (PW5).

When examined u/s 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. In defence, he examined Babu Singh (DW1), Yadwinder Singh (DW2) and Head Constable Gura Singh (DW3).

On appreciation of evidence, the trial ended in conviction.

Arguments heard. Record perused. The case hinges on the testimony of official witnesses alone. The only independent witness namely Babu Singh, Member Panchayat, quite respectable person, who joined at the time of attestation of recovery memo, has not been examined. The place of recovery is a thoroughfare. Despite the ample opportunity, no passersby was associated to attest the recovery memo. The investigation appears to have not been conducted at the spot as it is clear from the ruqa Ex.PE that accused came at the spot at about 8:00 p.m. The Investigating Officer, after preparing the search memo and recovery memo, completed the ruqa at 8:50 p.m. The first information report was recorded at the police station, which was at the distance of two kilometers from the place of recovery, within 15 minutes. The ruqa was sent through SPO Gobind Ram, who had no vehicle, as such, he must have taken half an hour to complete the distance to the police station on foot. Prosecution has not examined SPO Gobind Ram in order to ascertain as to through what conveyance he had gone to police station, therefore, in the absence of his examination, it could only be said that he would have gone on foot and must have taken at least half an hour but it is surprising that the FIR was recorded at 9:05 p.m. i.e. within 15 minutes of the occurrence. All this goes to show that the recovery was not effected in the manner and at the place as stated by the Investigating Officer.

The only witness Babu Singh, as joined by the police party, was not examined by the prosecution but when examined by the accused, he has supported the defence, stating that no recovery was effected in his presence.

Further the taking of the samples and depositing the same in the Malkhana on 09.10.2003 is doubtful. DW3 Head Constable Gura Singh No. 642, Police Station Rampura, while appearing in the witness box, has stated that Ex.D1, copy of Register No. 19 is highly tempered. The relevant entry of the register reveals that there is overwriting and cutting at Mark-B. The digit "1" has been converted into digit "2" but the cutting is unsigned. Similarly, there is cutting and overwriting in Mark-C and D and the said cuttings are without any initials. It means that Register No. 19 with regard to deposit of the samples does not depict the true picture. It appears that earlier one sample of 25 grams of poppy husk was deposited but later the register was tempered and it was made to appear that two samples of 25 grams each were deposited. Even if the cuttings are accepted then it falsifies the story of the prosecution as Ex.D1 reveals that two samples of 25 grams each and two samples of 200 grams each were deposited by the Investigating Officer with MHC on 10.10.2003. The date of deposit of the case property also appears to be tampered with so as the number of the FIR. As a matter of fact, according to the Investigating Officer, four samples were drawn but only two samples were deposited whereas Investigating Officer should have deposited all the four samples and not the two samples. In any case, 2 samples of 200 grams do not bear the seal of the Investigating Officer, thus, it appears to have been taken out in the absence of the Investigating Officer and the accused. Had these samples been drawn even by the Court then he would have drawn the same in the presence of the accused. The case was registered on 09.10.2003 whereas the case property was deposited in the malkhana on the next day. The delay in depositing the samples with M.H.C. has not been explained.

Under these circumstances, it appears that the trial Court has not taken the correct view of the situation and has not properly appreciated the evidence led before it, therefore, interference at my end has become inevitable.

In the wake of aforesaid discussion, I hereby accept the appeal, set aside the impugned judgment and acquit the accused of the charges framed against him. He is directed to be set at liberty forthwith. Bail bond/surety bond, furnished by him, stand discharged. Fine, if any deposited, be refunded.