State of Punjab vs Kashmir Singh

Uma Nath Singh, J.—This application for leave to appeal and Appeal arise out of judgment dated 09.02.2008, passed by learned Special

Judge, Sangrur in Sessions Case No.92 of 25.05.2005, acquitting accused-respondent Kashmir Singh of charge punishable u/s 15 of the NDPS

Act, for having been found in conscious possession of 525 Kgs. of poppy husk without a valid permit or licence.

It appears from case file and arguments raised before us, that on 28.02.2005, a police party headed by SI Tejinder Singh PW2 which consisted

of ASI Gurcharan Singh PW4 and other police personnel, was present at canal bridge in the area of Balad Khurd in connection with patrolling

duty and checking of suspected persons. They were using a Government vehicle (No.PB13-M-2034) for their duties. In the meantime, one

Surinder Singh son of Joginder Singh also reached there, with whom the Investigating Officer got engaged in conversation. It was 5.30 A.M. when

a jeep (No.HR-22-C-6615) arrived from towards village Mataran. It was signaled to stop by the Investigating Officer, but it stopped only at some

distance. AH four inmates of the vehicle on seeing presence of police party, started running away, however, one of them was over-powered and

apprehended by the Investigating Officer with help of police party. On enquiry, that accused disclosed his identity as also of other three persons

who ran away from spot. He told that one of these three persons who ran way, was Ajmer Singh, Jat, r/o Naiwala and two others were Roshan

Lal son of Bagan and Dharama Singh son of Chuhar Singh. As police was suspicious about gunny bags lying in jeep, accused-respondent was told

that these bags were required to be searched. Accused was given an option regarding search to be made in presence of a Gazetted Officer or a

Magistrate. Accused-respondent opted to be searched in presence of a Gazetted officer, vide statement, Ex.P1. He marked his thumb impression

which was attested by witnesses. A wireless message was flashed to DSP, requesting him to reach that spot. DSP reached there and disclosed his

identity to accused. He gave separate option to accused as to whether he wanted to be searched before a Gazetted Officer or a Magistrate.

Accused-respondent reposed confidence in DSP, as per consent statement Ex.P2. On directions of DSP, the Investigating Officer conducted

search of 15 gunny bags and found them to contain contraband item poppy husk. From each gunny bag, the Investigating Officer took out two

samples of 250 grams each. Remaining bulk of each gunny bag, on weighment, was found to be 34 kgs. 500 grams. Two separate sets parcels

were drawn, namely, one for samples and other for bulk items, which were kept in gunny bags. They were sealed with impression ''TS'' of the

Investigating Officer and ''NP'' of the DSP. Case properties were taken into custody vide recovery memo Ex.P4. Vehicle was taken into

possession by the police vide recovery memo Ex.P5. Statement of accused-respondent in the nature of Farad Jamatalashi Ex.P6, was recorded by

following necessary formalities. He was also supplied grounds of arrest vide Ex.P7. A sample chit of seal Ex.P3, was prepared and the seal of

Investigating Officer, after use, was handed over to ASI Gurcharan Singh. Ruqa, Ex.P8, was sent to police station, which led to registration of

FIR, Ex.P9. During the course of further investigation, a rough site plan of the scene of recovery, Ex.P10, was drawn. On return to police station,

case properties were deposited with Moharar Head Constable Gurmel Singh. Investigating Officer made an application, Ex.PH, for attestation of

case property and on application, Ex.P12, case properties were deposited in judicial Malkhana vide order of Court, Ex.P13. After receiving

chemical examination report, Ex.P45, and completion of necessary investigation, a challan was laid against the accused-respondent. Finally,

learned trial Court framed a charge u/s 15 of the NDPS Act, against accused respondent. Accused pleaded not guilty and claimed trial.

SI Tejinder Singh PW2, is the I.O. Head Constable Gurmel Singh PW1 and Head Constable Jagdev Singh PW3 tendered their evidence on

affidavit. ASI Gurcharan Singh PW4 was examined as witness of recovery and Narinder Singh PW5, is the Gazetted Officer before whom search

was carried. Narinder Nagpal P W5, Clerk in SDM office, proved that the vehicle was registered in the name of one Bahadur Singh. He also

proved entry, Ex.PW5/A. Constable Ram Chand PW6 tendered his evidence on affidavit Ex.PW6/A. Similarity, Suresh Kumar PW8, Nazir, also

tendered his evidence on affidavit Ex.P17. Accused was examined u/s 313 Cr.P.C. and in answer to incriminating circumstances put across as

appearing in the prosecution evidence, he denied the entire allegation. He took the plea that due to enmity with Bhajan Singh and Mohinder Singh,

he was picked up from his house in presence of his wife and members of Panchayat and also the co-villagers. He had made complaints to the

Sessions Judge and other senior officers regarding false implication. In defence, he examined Balkar Singh DW1, to prove that there was a dispute

between accused-respondent and one Bhajan Singh, and Mohinder Singh, regarding some land. Police sided with opposite party. Hence, on

27.02.2005 the accused was picked up by the police. Two other defence witnesses namely, Pala Singh DW2 and Tarsem Singh PW3 also

supported the stand of DW1.

We have heard learned State Counsel.

Learned State Counsel submitted that this is a case of recovery of a huge quantity of contraband and accused was apprehended while running

away with three other co-accused-persons. This is the second submission of learned State counsel that official witnesses have supported the

prosecution case. Necessary formalities, as required u/s 50 of the Act, were completed at the time of search of vehicle. Accused-respondent was

given option to have search before a Magistrate or a Gazetted officer.

On a careful consideration of submissions on behalf of State and reading of judgment and materials put across during hearing, we notice that on

the same set of evidence, three other accused persons were declared innocent by the police, whereas, accused-respondent was prosecuted u/s 15

of the NDPS Act. There is no satisfactory explanation for such discrimination. Moreover, vehicle in question did not stand registered in the name

of accused-respondent, and one Bahadur Singh was found to be the owner of that. Bahadur Singh was not challaned u/s 25 of the Act for lending

his vehicle for carrying contraband items. Registration Book, brought by Clerk of DTO, Fatehabad, also proved that the vehicle was registered in

the name of Bahadur Singh. Accused-respondent and other three were named in the FIR, but police did not proceed against three co-accused

persons. Taking into account the findings recorded by trial Court and on a careful examination of submissions of learned State Counsel assailing the

same, we are of considered view that this impugned judgment does not suffer from any infirmity or perversity that could call for an interference.

This is quite obvious from case record as put across during submissions that accused Kashmir Singh was also similarly situated like other three co-

accused persons. It was 5.30 morning when all the four accused persons were being chased. Looking to circumstances of this case, it cannot be

said, and particularly so when accused-respondent was apprehended, that the other three accused could not have been identified, had an

identification parade been conducted. Normally, whenever, a person follows another, (who tries to run away) in order to apprehend the latter, he

would run with full concentration on the movements of his body and would thus be in a position to identify the body structure of that person who is

being followed. In this background, the least that could have been done was to put the co-accused to an identification parade. Moreover, the

vehicle in question was also not proved to be belonging to accused-respondent Kashmir Singh. Besides, prosecution has not brought any

document on record to prove that the vehicle was ever sold to the accused-respondent by its original owner Bahadur Singh. Thus, connection of

the accused-respondent with the contraband item is not proved beyond reasonable doubt nor was the destination of vehicle known so as to trace

out the person to whom it was to be delivered. In view of such infirmities, we are not inclined to accept the application for leave to appeal.

Hon''ble the Apex Court in various judgments on the question of interference against the order of acquittal including the ones reported in,

(i)2002(2) Apex Court Judgments 161 (S.C.): 2002(3) RCR(Criminal) 861, Harijana Thirupala and others v. Public Prosecutor, High Court of

A.P., Hyderabad, (ii)2005(1) Criminal Court Cases 68 (S.C.) : 2004(3) Apex Criminal 38 State of U.P. Vs. Gambhir Singh and Others, , State

of UP v. Gambhir Singh and others, has held that if two views are possible, the view taken by trial Court in favour of the accused for recording his

acquittal should be accepted as the reasonable and possible view.

Accordingly, application for leave to appeal and the accompanying appeal, both, are dismissed being devoid of merits.