Resham Singh vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Resham Singh, appellant directed against the judgment and order of sentence passed by learned Sessions Judge, Faridkot dated 13.9.1994. By virtue of the impugned judgment, learned trial Court held the appellant guilty of the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ''Act''). By the subsequent order of sentence, the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was to further undergo rigorous imprisonment for 1 year.

The prosecution case rested on the facts that on 25.11.1992, ASI Gurcharan Singh was heading a police party. They were patrolling and reached in the area of village Mehna. At the bridge of the drain, the appellant was seen coming from the side of village Puranewala. He was carrying a gunny bag on his bicycle. On seeing the police party, he tried to slip away. On suspicion he was apprehended. ASI asked him whether be would like the search to be effected before a Gazetted Officer or a Magistrate. The appellant declined the offer and reposed confidence in the police officer. His statement was recorded in this regard. The gunny bag was searched and it was found to contain poppy husk. It weighted 40 kgs. 250 gms of poppy husk was separated as a sample. The sample and rest of the poppy husk were converted into different parcels and sealed with the seal of ''GS''. Both the packets were taken into possession vide a recovery memo. Ruqa was sent to Police Station on basis of which formal First Information Report was recorded. Rough site plan was prepared. The recovered poppy husk and sample were deposited in the Malkhana. Subsequently representative sample was sent for chemical analysis. On receipt of report that it was poppy husk, challan as against the appellant was filed.

Learned trial Court framed a charge against the appellant for the offence punishable under Section 15 of the Act. In support of its case, prosecution examined 4 witnesses. The incriminating evidence thereafter was put to the appellant. In his statement recorded under section 313 Criminal Procedure Code, the appellant stated that no recovery was effected from him. His precise defence was that he was brought from his house in the presence of respectable of the village and he was falsely implicated. In defence, the appellant examined Kirpal Singh, D.I. He was the member Panchayat of the village and stated that from the search of the house of the appellant, nothing was recovered. The police party took the appellant. After the few days, it was learnt that appellant has falsely been implicated.

Learned trial Court on appraisal of evidence concluded that it has been established and proved beyond all reasonable doubt that poppy husk was recovered from the person of the appellant. The defence version was rejected. With these basic findings, the impugned judgment and order of sentence were passed.

During the course of trial, Basant Singh, ASI PW3 was examined. He supported the prosecution case and added about recovery of the poppy husk from the bag carried by the appellant. He further testified that after taking the sample it was sealed with the seal of ''GS''. The seal after use was given to him by the Investigating Officer. During the course of crossexamination, the witness stated that he does not remember. During whether any official had gone to bring the public person or not. As per his version, there was no house near the village. The village was 23 kms. away from that place. Gurcharan Singh PW4, I.O. supported the prosecution case. He added that the sample and rest of the poppy husk were sealed with his seal with the impression of ''GS''. He had handed over the seal after use to ASI Basant Singh. The case property remained with him for about one hour. He handed over the same to ASI Basant Singh for producing before the Illaqa Magistrate. It was ASI Basant Singh, who deposited the property with the Maharrir Malkhana. During crossexamination, he explained that no public person met him on the way. They were at the spot for about 51/2 hours. No public person was passing that side. No person from the village was willing to join the police party.

Assailing the said evidence, it was argued that no public witness had been joined and learned trial court was in error in passing the order of conviction on the testimonies of official witnesses. One has to weigh and scan the evidence in individual cases. Though, it is not mandatory that public witnesses should be joined, an attempt must be made to join the same. If no public witness is joined, even the reason should be forthcoming as to why it was not so done. In the present caes the village is only about 23 kms. away. Seemingly no attempt was made to get a witness from the nearby village. It was not known as to who were the other persons who refused to join the police party and witnessed the said raid. In this process the explanation that attempt was made but no public witness was willing to join appears to be unsatisfactory. In these circumstances, it is difficult to act on the testimonies of official witnesses.

In additional to that, in the present case, chances of property being tampered cannot be ruled out. As a matter of fair play, it has always been insisted that the property and sample after being sealed should be handed over to a third person. This is to ensure that no tampering is to be done to the said property. In the present case, the evidence shows that seal after use was given to ASI Basant Singh. He was even handed over the said recovered articles and the sample by the Investigating Officer. The very sanctity of handing over the seal to third person in this process was put an end to. The chances of property, thus being tampered, could not be ruled out. In this process the appellant was entitled to the benefit of doubt.

For these reasons, the appeal is accepted. The judgment and order of sentence passed by learned trial Court are set aside. It is directed that appellant be released, if not wanted in any other case.