Sukhwinder Singh alias Sukha vs State of Punjab

K.C. Gupta, J.

This appeal has been directed by the accused Sukhwinder Singh @ Sukha and Rasal Singh against the judgment dated 29.8.2001 and order dated 30.8.2001 passed by the Special Judge, Ferozepur, whereby they were found guilty and convicted under Section 15 of the NDPS Act and sentenced to RI for 10 years and a fine of Rs. one lac each. In default of payment of fine, the defaulter was further ordered to undergo R.I. for one year.

Briefly stated, the facts are that on 10.8.1991 ASI Joginder Singh, Incharge, Police Post Khosa Randhir under Police Station Dharamkot alongwith other police officials and employees of Border Security Force was returning to the Police Station. When they reached near the turning of link road leading to Village Nihalgarh, a truck bearing Registration No. PNO5540 was seen coming from the side of Village Nihalgarh. When it reached just on the main road, then it was stopped on suspicion. The truck was being driven by the appellant, Rasal Singh son of Chanan Singh. Pargat Singh (now deceased) and Sukhwinder Singh, appellant, were sitting on the body of the truck. All of them alighted from the truck and disclosed their identity. When ASI Joginder Singh was checking the body of the truck, then Rasal Singh, Driver of the truck, ran away from the spot towards the fields. Efforts were made to arrest him but in vain. The ASI gave notice to Sukhwinder Singh and Pargat Singh about the search of the truck in the presence of Gazetted Officer or Magistrate but they gave their consent to get the search of the truck conducted by Joginder Singh ASI. Consent memo to this effect was prepared. Thereafter, ASI Joginder Singh conducted the search of the truck, which was found to contain 55 gunny bags containing poppy husk. 100 grams of poppy husk was separated out from each of the gunny bag. The remainder in each gunny bag was found to contain 41 Kgs. 900 grams. The samples and the remainder in the 55 bags were separately sealed with the seal of `JS'' and the same were taken into possession vide recovery memo attested by the witnesses. The personal search of the appellants Pargat Singh (now deceased) and Sukhwinder Singh was also conducted and their search memos were prepared.

Case was registered on the basis of Ruqa sent by Joginder Singh ASI. Rough site plan of the place of recovery was prepared with correct marginal notes. The statements of the witnesses were recorded.

On return to the Police Station, ASI Joginder Singh produced Sukhwinder Singh and Pargat Singh before the SHO alongwith the case property and the witnesses, who verified the facts and sealed the entire case property with the seal bearing `SS''. Thereafter samples and the remainder in the gunny bags were handed over to the Moharrir Head Constable.

On receipt of the report of the Chemical Examiner and after completion of the formalities, the challan was put up in the Court.

Rasal Singh was also apprehended.

Having made out a primafacie case, they were charged under Section 15 of the NDPS Act, to which they pleaded not guilty and claimed trial.

In order to prove the allegations, the prosecution examined 5 witnesses.

After the closure of the prosecution evidence, statements of the appellants were recorded under Section 313 Cr.P.C., wherein they denied the allegations of the prosecutions and pleaded false implication. However, no statement of Pargat Singh was recorded as he had died before the framing of charge and the proceedings against him were dropped. In defence, the appellants produced DW1 Kulwant Singh, Constable and DW2 Joginder Singh. DW1 Kulwant Singh stated that he had brought the summoned record and Ex.D2 was the correct of entry No. 1665 dated 10.8.1991. DW2 Joginder Singh stated that about 10 years ago, he was Sarpanch of the Village and brother of Sukhwinder Singh had come to him and told that the police of P.S. Dharamkot raided their house and was enquiring about Sukhwinder Singh and then he went to the house of Sukhwinder Singh. In their presence, Sukhwinder Singh was taken by the police of Police Station Dharamkot. He also stated that Sukhwinder Singh never indulged in criminal activities. In crossexamination, he stated that he did not pass any resolution that Sukhwinder Singh had been falsely implicated. He further stated that he did not move any application to the higher authorities regarding false implication of Sukhwinder Singh.

After hearing learned PP for the State and the defence counsel, the appellants were found guilty vide judgment dated 29.8.1981 and convicted under Section 15 of the NDPS Act and sentenced vide order dated 30.8.1991 by the learned Special Judge, Ferozepur, as stated in the earlier part of the judgment.

Aggrieved by the said judgment and order, the accused have filed the present appeal.

I have heard Shri Bipan Ghai, counsel for the appellants, Ms. R.K. Nihalsinghwala, DAG, Punjab for the respondent and carefully gone through the record.

The case against the appellants rests on the testimony of PW3 ASI Nirmal Singh and PW5 ASI Joginder Singh. Admittedly, no independent witness was joined at the time of intercepting the truck. The police party was returning after laying an ambush from the side of Village Dollewala towards Kot Ise Khan. PW3 did not state that any effort was made to join any independent witness. Even the recovery was not got effected in the presence of a Gazetted officer or the Magistrate. PW5 ASI Joginder Singh stated that efforts were made to join independent witness but none was available. However, PW3 ASI Nirmal Singh did not state so. The alleged recovery had taken place at about 12.45 A.M. It is difficult to believe that in the dark night, the police had identified Rasal Singh, appellant. Admittedly, he was not arrested at the spot. It is also difficult that in the presence of number of police officials, Rasal Singh, appellant had run away and further he was not chased, although there were 6 police officials and 2223 personnel of BSF in the police party. ASI Joginder Singh was having service revolver with him. Admittedly, he did not fire on the appellant while chasing. PW3 admitted in his crossexamination that he and ASI Joginder Singh never arrested Rasal Singh earlier in any case. So, there was no question that they knew Rasal Singh earlier. The fact that Rasal Singh had himself disclosed his particulars and then ran away, is not believable. It is all a made up story. It was admitted by PW3 that during the stay on the place of recovery, 100 of people might have passed from that place. This shows that independent witnesses were available but not intentionally joined and this casts a doubt in the genuineness of the prosecution story and the conduct of the Investigating Officer. PW5 Joginder Singh admitted in his crossexmaination that the chits containing particulars of the case and the seals on the case property were not legible. Therefore, it could not have been said that the case property, which was allegedly recovered from the appellants, was produced in the Court. It was admitted by PW5 Joginder Singh that in those days, normally the people used to board the trucks and other vehicles plied on that road for reaching Hari Ke and Amritsar etc., so, Sukhwinder Singh and Pargat Singh might be just sitting in the truck and were not having the knowledge that it was loaded with bags containing poppy husk. Hence, conscious possession cannot be attributed to them. It has been observed by the Hon''ble Apex Court in Avtar Singh v. State of Punjab, 2002(4) RCR(Criminal) 180 that where 16 bags of poppy husk had been recovered from a truck and two accused were sitting on the bags and one was driving the truck, then it could not be said that the accused had custody and control of bags.

Hence, in view of the discussion above, I hold that the prosecution has not been able to prove the case against the appellants beyond reasonable shadow of doubt. Consequently, the appeal is allowed and the appellants are given benefit of doubt and are acquitted of the charges levelled against them.