Sukhdev Singh @ Gogi vs The State of Punjab

Sabina, J.—Sukhdev alias Gogi has filed this appeal against the judgment and order dated 8.12.2001/23.12.2004 passed by the Special Judge, Bathinda whereby the Appellant was convicted for an offence u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and was sentenced to undergo rigorous imprisonment for twelve years and a fine of Rupees one lakh.

Prosecution story, in brief, is that on 1.6.1996, S.I. Balwinder Singh along with other police officials were proceeding from village Teona Pujarian towards village Behman Kaur Singh. When the police party reached one kilometer ahead of Behman Kaur Singh, a person was seen coming from the opposite direction on a she-camel with gunny bags. On seeing the police party, he tried to turn towards left hand side. He was stopped on suspicion and was apprehended. On inquiry, the said person disclosed his name as Sukhdev Singh alias Gogi. Sukhdev Singh alias Gogi was told that the poppy husk was suspected in the gunny bags loaded on she-camel, and in case he wanted, search could be conducted by SI Balwinder Singh or he could get his search effected before a Magistrate or any other higher police officer. Memo in this regard was prepared . Sukhdev Singh alias Gogi opted to get his search effected before higher police officer. DSP Jaswant Singh was requested to reach the spot and thereafter, in his presence, five gunny bags loaded on the she-camel were opened and poppy husk was recovered from them. The gunny bags were numbered from 1 to 5. 200 grams of poppy husk was drawn out as a sample from each bag. On weighment the remaining poppy husk came to 39 kilograms and 800 grams in each gunny bag. The weighed poppy husk was again put back in the same gunny bags. Gunny bags and sample parcels were sealed with seal bearing impression ''BS''. Seal after use was handed over to ASI Nirmal Singh. Personal search memo of Sukhdev Singh @ Gogi was prepared. Since Sukhdev Singh alias Gogi could not produce any licence for keeping in his possession the poppy husk, a ruqa was sent for registration of case against him u/s 15 of the Act.

On the basis of the ruqa, formal FIR No. 50 dated 1.6.1996 was registered by the police of police station Talwandi Saboo.

After completion of investigation and necessary formalities, accused was sent up for trial. Charge against the accused was framed on 29.11.1996 by the Additional Sessions Judge Bhatinda u/s 15 of the Act. Accused did not plead guilty to the charge and claimed trial. At the trial, prosecution, in order to prove its case, examined SI Balwinder Singh (PW1), DSP Jaswant Singh (PW2) and DSP Tarsem Singh (PW3). An affidavit of Constable Sat Pal Singh was tendered in evidence as Exhibit PM. After the close of prosecution evidence, accused when examined u/s 313 of the Code of Criminal Procedure prayed that he was innocent.

In his defence, the accused examined Sukha alias Sukhdev Singh (DW1) and Leela Singh (DW2). Learned trial Judge believed the prosecution version and convicted and sentenced the accused u/s 15 of the Act. Hence, the present appeal.

Learned Counsel for the Appellant has argued that the prosecution had miserably failed to prove its case . Link evidence was missing in this case. Seal after use had not been handed over to the independent witness-Sukhdev Singh, who had been associated by the police party at the time of recovery and rather it was handed over to ASI Nirmal Singh. In these circumstances, the possibility that the samples might have been tampered with could not be ruled out. Samples were sent for chemical examination after four days. The bags which were produced in the Court has holes in them and seals were broken. Out of five bags, three bags did not bear any seal.

Learned State counsel, on the other hand, has argued that the official witness had no enmity against the accused. The Appellant has been falsely involved him in this case. There was nothing on record to suggest that the case property had been tampered with.

After hearing the learned Counsel for the Appellant and the learned State counsel and also going through the record of the case, we are of the opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt and as such, this appeal deserves to be allowed.

PW2-Jaswant Singh, DSP in his cross-examination deposed that the seals were broken on the bags and the bags were stitched and there were holes in all the bags. There were no seals on three bags. In these circumstances, it is difficult to say that the case property produced at the trial by the prosecution was the same which had been allegedly recovered from the accused.

As per the prosecution case, the seal after use was handed over to ASI Nirmal Singh, who, however, has not been examined at the trial but was given up unnecessarily. In the absence of his examination, it is difficult to assume that the seal was returned by him to the Investigating Officer after the sample parcels were despatched for chemical analysis. It is the prosecution case that Sukhdev Singh son of Sarwan Singh had been joined as independent witness at the time of recovery. In the presence of an independent witness, it was expected from the Investigating Officer to have handed over the seal after use to the independent witness and not to his subordinate colleague/police officer. Prosecution has not furnished any explanation for handing over the seal to a police official instead of independent witness- Sukhdev Singh. The very purpose of giving seal to an independent person is to avoid tampering of the case property. Hence, the possibility of seal being tampered with or the samples being resealed cannot be ruled out.

Sukhdev Singh, independent witness was given up by the prosecution as having been won over by the accused. The said witness was, however, examined by the accused as DW1 and he deposed that he did not know accused-Sukhdev Singh present in the Court. He denied his presence at the spot at the time of recovery. When he was cross-examined by the additional public prosecutor, he did not support the prosecution case.

The Apex Court in State of Rajasthan Vs. Gurmail Singh, held as under:

We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the Respondent.

Therefore, the prosecution case is not free from doubt and as such, the possibility that the accused had been falsely involved in this case cannot be ruled out.

Hence, the appeal is allowed and the impugned judgment and order of the trial Court are set aside. The accused is acquitted of the charge framed against him.