Sukhjit Singh alias Santa Singh vs State of Punjab

R.L. Anand, J.

Sukhjit Singh alias Santa Singh son of Kirpal Singh son of Sunjder Singh, a young boy of 21 years at the time of his conviction, resident of village Madheka has filed the present criminal appeal and it has been directed against the judgment and order dated 3.6.1996 passed by the court of Sessions Judge, Faridkot who convicted the appellant under Section 15 of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. one lac and in default of payment of fine, to undergo further rigorous imprisonment for a period of one year.

The brief facts of the case are that on 30.10.1994 the police party headed by Shri Ram Singh ASI of Police Station Nihal Singh Wala was on patrol duty from village Patto Hira Singh and was going towards village Madheka via kacha path. When they were at a distance of 56 killas short of village Madheka, the accused Sukhjit Singh was found coming from the opposite side and he was having a gunny bag on his head. On seeing the police party, the accused tried to turn towards narma crop, but he was apprehended on suspicion. Shri Ram Singh told the accused that he suspected that he had some intoxicants in his gunny bag and whether he wanted his search to be taken before a Gazetted Officer or a Magistrate. The accused reposed confidence in the ASI for search and his consent memo to that effect was prepared. Gurdev Singh PW came there and he was joined in the police party. ASI Ram Singh took search of the gunny bag of the accused and found poppy husk in it. On weighment, it came to 10 kilograms. Thanedar separated 250 grams of poppy husk as a sample and sealed with the same bearing inscription RS and the remaining poppy husk was separately sealed in the same gunny bag Ex. P.1 with the said seal. Both the sealed parcels were taken into possession vide memo Ex.PD. The grounds of arrest were supplied to the accused. He was formally arrested. The accused could not produce any licence or permit for the keeping the same in his possession. Resultantly ruqa was sent to the Police Station on the basis of which formal F.I.R. was recorded. From the personal search of the accused a sum of Rs. 25/ was also recovered. Thanedar prepared rough site plan of the place of the recovery and on return to the Police Station produced the case property before S.H.O. Raghbir Singh who resealed the case property with his own seal bearing inscription RS. The sample along with specimen seal were sent to the office of the Chemical Examiner who vide report Ex.PH declared the contents as chura of poppy husk. On completion of the investigation, the accused was challaned under Section 15 of the N.D.P.S. Act in the court of Area Magistrate who supplied copies of the documents to the accused as required under the law and committed the accused to the court of Sessions.

Learned Trial Court framed charge under Section 15 of the N.D.P.S. Act. The charge was read over and explained to the accused to which he pleaded not guilty and claimed a trial.

In order to prove the charge, prosecution examined Jaspat Rai Head Constable as P.W.1 who gave his statement on affidavit Ex.PA. ASI Malkiat Singh (PW.2) received ruqa Ex.PB and recorded formal F.I.R. Ex.PB/1. Head Constable Nirmal Singh (PW.3) is a witness of recovery and he supported the allegations of the prosecution. Constable Dalwinder Singh (PW.4) gave his statement on affidavit Ex.PF. Raghbir Singh who resealed the case property appeared as PW.5. Investigating Officer Ram Singh appeared as PW.6. Shri Gurdev Singh member panchayat who was associated by way of independent witness was given up by the prosecution on the plea that he has been won over by the accused. Finally prosecution tendered in evidence, report of the Chemical Examiner and closed the case.

Statement of the accused was recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and stated as follows :

"I am innocent. I was brought from my house at the instance of my maternal uncle Natha Singh. I was detained in the police station and the present recovery was planted upon me. I am already having litigation with my maternal uncle Natha Singh of village Khote regarding the property of my maternal grandfather whose property was inherited by my mother and Natha Singh wanted to grab the property. Previously my brother was got involved in N.D.P.S. Act, but he was acquitted. I was brought from my house in the presence of Bheera Singh and Gurdev Singh my neighbourers."

When called upon to enter his defence, the accused examined Gurdev Singh member panchayat eye witness as DW.1 and he stated that he was joined in the police party and no recovery of poppy husk was made from the appellant in his presence. In the crossexamination this witness admitted his signatures on Ex.PC, Ex.PD and Ex.PE. Further in the crossexamination he stated that accused had dispute of land with his maternal uncle and at his instance, accused was falsely implicated by ASI Ram Singh. This is also the defence taken by the appellant in his statement under Section 313 Cr.P.C. Balbir Singh (PW.2) also deposed that the police took the accused from his house in his presence and that nothing incriminating was recovered from his possession. This witness also stated that mother of the accused had dispute with her brothers and at their instance, the accused was falsely implicated in this case. Finally the accused tendered in evidence certified copy of the judgment Ex.DA which would show that brother of the appellant was involved in a case under the N.D.P.S. Act and he was acquitted by the trial Court on 13.12.1993.

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

I have heard Mrs. H.K. Dhillon Advocate on behalf of the appellant and Shri S.S. Randhawa, DAG, Punjab on behalf of the State and with their assistance have gone through the record of this case.

Learned counsel appearing on behalf of the appellant has assailed the judgment and order of the learned trial Court firstly on the ground that link evidence in this case was missing. I have not been able to accept this contention raised on behalf of the learned Counsel for the appellant. The sample with seals intact and the specimen of the seal reached the office of the Chemical Examiner who vide report Ex.PH certified that the sample seal tallied with the specimen seal. So far as position of law is concerned, it is the duty cast upon the prosecution to preserve the case property right from the stage of its seizure till the sample of the incriminating article reaches the office of the Chemical Examiner. We cannot lose sight of the fact that the material used in sealing the case property is wax. It is very hard once it is fixed. With the handling of the case property the seals of the residue property can be broken with the passage of time. In these circumstances, Investigating Officer had deposed before the trial Court at the time of his examination that the seals of the residue case property are in broken condition. This fact cannot alone come to the rescue of the accused.

It was then submitted by the learned Counsel for the appellant that the recovery in this case is not proved beyond shadow of doubt because Independent witness Gurdev Singh has not supported the case of the prosecution. On the contrary, learned Counsel for the State has invited my attention to 1996(1) RCR 146 Roop Singh v. State of Punjab a Division Bench authority of our own High Court where it was in paras No. 11 and 12 as under :

"It is correct that Nirbhai Singh was an independent public person who was present at the time when the truck was intercepted and its search was conducted, and the contraband was recovered therefrom and also at the time when the samples were separated and the same were sealed. It is also correct that the prosecution gave up Nirbhai Singh as having been won over and the conviction of the appellant now stands upon the testimony of two police officials SI Bikramjit Singh (PW.2) and ASI Swaran Singh (PW.1). According to the learned Counsel for the appellant, the learned Court out (ought ?) to have drawn an adverse inference against the prosecution for nonproduction of Nirbhai Singh and should not have based the conviction of the appellant merely on the testimony of these two official witnesses, who had got the time and opportunity to join other independent public persons to witness the said search.

We are unable to agree with the aforesaid contention of the learned counsel for the appellant. A Panchwitness may turn hostile and not support the case of the prosecution or may be hesitant in appearing in the Court and depose against an accused for various reasons from fear to bribe. He is an average and ordinary human being and quite exposed and vulnerable to the human feeling of yielding, browbeating, theats, inducements etc. To figure as a Panchwitness at the stage of police investigation is one thing, and thereafter to give evidence before the Court is entirely a different thing. In fact, a Panchwitness generally thinks twice before entering into a witnessbox and if at all he enters the same, one would not be surprised if he does not support the prosecution because of variety of the reasons mentioned above. Therefore, the fact that the prosecution has given up the independent public person Nirbhai Singh having been won over by the accused person, is fully justified in the presentday situation prevailing in the Society and no adverse inference against the prosecution can be drawn in this case."

Every judgment has to be considered on its own facts. The observations made by the Hon''ble Division Bench were in context with the socalled independent witness who did not appear in defence but in the present case, Gurdev Singh appeared as defence witness. He has categorically stated that no incriminating article was recovered from the possession of the appellant. He further deposed that the appellant has been falsely implicated in this case at the instance of his maternal uncle who was having a dispute with the family of the appellant. Even statement of Balbir Singh (DW.2) corroborates the defence of the appellant. There is one more glaring factor on the record which shows that the police is after the family of the appellant. A reading of Ex.DA would show that earlier Baljit Singh son of Kirpal Singh a young boy of 20 years, brother of the appellant was implicated by this very Police Station i.e. Police Station Nihal Singhwala on the ground that he was found in possession of 40 kilograms of poppy husk. He was acquitted vide judgment dated 13.12.1993. This is suggestive of the fact that police of Police Station Nihal Singhwala was bent upon in spoiling family of the present appellant. In these circumstances, that the possibility cannot be ruled out that the present recovery might have been foisted upon the appellant. There is no long gap between the two recoveries i.e. recovery which was against Baljit Singh and the present appellant.

Even the signatures of Sh. Gurdev Singh on different recovery memos show that his signatures have been obtained in different set of circumstances. A close reading of ruqa would also show that the socalled consent statement was not recorded in the presence of Gurdev Singh. He appeared at the stage subsequent to the recording of statement under S. 50 of the NDPS. Act. All these lapses create reasonable doubt in the mind of the court about the genuineness of the recovery. In such like cases when the punishment is stringent, prosecution is under obligation to prove the charge by leading cogent, reliable and satisfactory evidence leaving no scope of reasonable doubt. Thus I hold that the story of the prosecution suffers from serious infirmities which has created reasonable doubt in the mind of the Court.

Resultantly, I allow this appeal and set aside the judgment and order of the trial Court and acquit the appellant of the charge framed against him. Let case property be confiscated to the State. The appellant is stated to be in custody and is serving sentence in Central Jail, Faridkot. Let intimation about acceptance of this appeal be sent to Superintendent, Central Jail, Faridkot so that the appellant may be released forthwith if not convicted or wanted in any other case.