Union of India vs Mohinder Singh

Sanjay Kishan Kaul, C.J.—One Mohinder Singh son of S. Kartar Singh filed a petition under Article 226 /227 of the Constitution of India praying for issuance of an appropriate writ, order or direction for an adequate compensation for extreme physical third degree torture to Dalip Singh son of S. Kartar Singh leading to fracture of his both hip joints and despite treatment he having become handicapped person and unable to climb stairs with a life long disability. It is stated in the petition that the wife of Dalip Singh is illiterate and unable to pursue the case and that Mohinder Singh could not obtain the power of attorney on behalf of his sister''s son Dalip Singh and was, thus, filing the petition. The facts leading to the filing of the petition have been set out. Dalip Singh is stated to have gone to his in-laws at village Bhullar which was about 10-12 kms from his own village Chak Pandori when he was taken into custody in the evening from village Bhullar by one officer who described himself as an Intelligence Officer of Narcotics Control Bureau Ravi Kant Pawar impleaded as respondent No. 3. During the night of 07/08.04.2004, Dalip Singh is alleged to have been physically tortured and his legs were pulled apart leading to fracture to his hip joint. The nearest Court is stated to be 10 kms away from the place of arrest. No ground of arrest is alleged to have been disclosed to Dalip Singh. Dalip Singh is alleged to have been interrogated about one Head Constable Kali Dass, but Dalip Singh had no knowledge about him. Dalip Singh was produced before the Magistrate at 7.40 PM on 08.08.2004 till which time he had no idea of any FIR lodged against him. Dalip Singh was sent to judicial custody and though he was in acute pain, no one took adequate care to give him medical aid. Even after medical examination pursuant to the orders of the Magistrate, no treatment is stated to have been given and the first medical report was given only on 17.05.2004 in a guarded language. It is not necessary to go in detail qua the other allegations, but suffice to say that a compensation to the tune of Rs. 10 lacs was claimed on behalf of Dalip Singh as also for a direction to register the FIR against Ravi Kant Pawar.

It appears that this petition was converted to one u/s 482 of the Code of Criminal Procedure and was disposed of by a judgment dated 22.08.2006 by the learned Single Judge. This judgment shows the stand of the respondents that Dalip Singh was arrested for being found in possession of 3 kgs of heroin. The learned Single Judge was of the view that the matter in issue was not as to whether Dalip Singh was in possession of narcotics or was a habitual offender operating his gang in the border districts of Punjab, but whether there was custodial torture or third degree measure resulting in Dalip Singh being handicapped. A prima-facie finding has been reached that Dalip Singh became a handicapped person on account of third degree torture. We may, however, notice that other than setting out the averments in the petition and the defence of the respondents there is no other material discussion to arrive at this finding by the learned Single Judge. The learned Single Judge thereafter proceeded to refer to the judgments of the Hon''ble Supreme Court in D.K. Basu Vs. State of West Bengal, qua such issue and State of Madhya Pradesh Vs. Shyam Sunder Trivedi and Others

The learned Single Judge post-discussion of the judgments observed that it is not permissible for the Court to decide as to who was responsible for the alleged torture/atrocities in the petition u/s 482 Cr.P.C. for which evidence was required of both the parties and, thus, the same can be done only in civil proceedings. However, prima-facie observations were made that respondent No. 3/Ravi Kant Pawar had committed torture/atrocities upon Dalip Singh and, thus, the Court can apply balm by awarding an interim compensation of Rs. 50,000/- with liberty to take any other appropriate proceedings in accordance with law for claiming the damages.

We are informed that no other suit or claim has been filed for damages.

Learned counsel for the appellant has placed before us the judgment of the trial Court dated 20.11.2007 in respect of the FIR registered against Dalip Singh and others. A reading of the said judgment shows that a complaint under Sections 21, 23, 29 and 60 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) was instituted by the Intelligence Officer of the Narcotics Control Bureau on the allegations that acting on a specific information reduced into writing the officials of the Narcotics Control Bureau, Chandigarh, camped at Amritsar alongwith officials of the Border Security Force and two independent witnesses held naka in the area of Attari-Lopoke road on 07.04.2004 in the evening. At about 5.30 PM, the naka party noticed the accused Dalip Singh coming towards Amritsar side while driving LML dull yellow coloured scooter; he was signaled to stop and was surrounded from all sides. A coloured polythene packet in a basket attached with the handle of the scooter was found. Ravi Kant Pawar disclosed his identity. Personal search was carried out and when the packet containing the narcotics was found the contents thereof were enquired from Dalip Singh who got scared and puzzled and tried to run away, but fell on the ground sustaining some injuries in the process and was nabbed by the naka party. On further enquiry, he admitted to all the packets containing the heroin. On analysis of the evidence, the trial Court convicted Dalip Singh holding him guilty, while the other two accused were acquitted giving them benefit of doubt. Vide order of sentence dated 22.11.2007 Dalip Singh was sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 1 lac and in default of payment of fine to further undergo rigorous imprisonment for a period of 1 1/2 years u/s 21 of the Act.

What is material for our purposes, however, is the observations of the trial Court; the discussion of the testimonies in paras 24 to 30 as also the defence sought to rely on the impugned judgment herein. The plea advanced on behalf of Dalip Singh was that he was apprehended on 05.04.2004 due to missing of Constable Kali Dass, an employee of the Border Security Force, as the higher officers were doubting his abduction/kidnapping by Dalip Singh and in that connection he was lifted and tortured while he was in custody as a result of which he received injuries and the prosecution to shift the burden has involved him in a case of recovery of heroin. The findings of the trial Court are as under:-

I have closely considered the submissions made by the learned counsel for the parties. The prosecution evidence is reliable, consistent and without any discrepancy. Rather, it can be said that the prosecution has adduced cogent and convincing evidence that the naka was held on 07.04.2004 at 5.00 PM after receipt of secret information. Accused Dalip Singh came at the naka place and was apprehended. Accordingly, recovery of 3 kgs of heroin was effected from him. Three material witnesses have been examined by the prosecution. Accused Dalip Singh has tried to establish his defence plea very briefly only in cross-examination of PW1 Ravikant Pawar, but no defence plea has been established by him during the cross-examination of PW3 and PW4 who are the material witnesses and were present at the time of recovery. Not putting even a single question to the said witnesses by the learned counsel for Dalip Singh goes to prove that the defence plea taken by him is an after thought and without any merit. However, the accused has examined 4/5 witnesses in defence but nothing has come on the file which could suggest that Dalip Singh was in custody on 05.04.2004 or he received injuries during his alleged torture.

From the discussion made above, the prosecution has been fully able to prove the recovery/arrest of Dalip Singh dated 07.04.2004 and he (Dalip Singh) remains failed to establish his arrest dated 05.04.2004. Accordingly, both the points under discussion are determined against accused Dalip Singh and in favour of the prosecution.

(emphasis supplied)

A perusal of the aforesaid shows that the claim of being in custody on 05.04.2004 or being tortured during this process of detention has been disbelieved. It is, thus, the submission of learned counsel for the appellant that in the teeth of these findings post-trial there cannot be any question of sustaining the prima-facie findings of the learned Single Judge in the impugned order which were not based on any discussion of the material on record, but only on the allegations in the petition.

In view of the aforesaid position, we inquired from learned counsels for the parties as to whether any appeal has been filed against the order of the trial Court. Learned counsels for the parties expressed ignorance about the same, but on inquiry, we have found out that Criminal Appeal No. D-45-DB of 2008 was filed and was dismissed on 16.02.2012. We, thus, called for the said judgment of the Division Bench and have perused the same. A plea was advanced before the Division Bench on behalf of Dalip Singh that he was suffering from a fracture of hip joint and was, thus, unable to drive a scooter or run. This version is found not to have been put by Dalip Singh when he was examined u/s 313 Cr.P.C. that he had already suffered a fracture of his hip joint at the time of recovery. Rather, it has been observed that Dalip Singh had taken a plea that he had been tortured by the BSF and custom authorities and on this account his hip was fractured. A reference has also been made to the testimony of DW1 Dr. Surinder Singh who proved the examination report exhibit PM/1 dated 08.04.2004. The following injuries were found on Dalip Singh as referred to in the aforesaid judgment:-

An abrasion 4 cm x 0.25 cm present on upper 1/3rd of right leg.

Complaint of slight pain in upper part of left thigh.

These injuries are due to fall on ground/fields as alleged by the patient. However, there is no other injury present on body of a person. He was brought by Ravi Kant Pawar.

After observing so, the Division Bench has opined in its judgment as under:-

Thus, the appellant had not stated before the said doctor that his hip joint had been fractured. DW1 in his examination-in-chief has categorically deposed that he could not say if the patient had suffered any fracture on the day of examination by him. Further, the appellant was produced before the Magistrate on 08.04.2004 at 7.40 P.M. At that time, the appellant never raised his voice qua his torture by the BSF or by the bureau authorities. The doctor, who had examined the appellant, was an independent person and had no reason to give a false report. Further, from the statement of DW1 it does not transpire that he had not correctly given the report Ex. PM/1. In case, the hip joint of the appellant had been fractured by the bureau authorities or BSF, the appellant should have raised his voice when he was produced before the Magistrate in his house. Although it is evident from the statement of DW4 Dr. Iqbal Singh that on 04.06.2004, the appellant was operated and cemented bipolar modular hip arthroplasty was done, yet it is not substantiated on record that the said fracture was due to torture by the bureau authorities or BSF.

(emphasis supplied)

It is, thus, apparent from the aforesaid that the story of fracture due to torture by bureau authorities or BSF has been disbelieved in the said judgment.

The result of the aforesaid is that we are faced with the judgments both of the trial Court and the Appellate Court repelling the claim made in the petition filed before this Court at the stage of arrest alleging torture of Dalip Singh which is the foundation for the grant of interim compensation of Rs. 50,000/-. Not only that, a perusal of the impugned order shows that other than referring to the averments in the petition, the response of the respondents and the case laws, there is practically no discussion qua the prima-facie findings against the Narcotics Control Bureau and its officers. It has been presumed that the injuries as alleged exist and they are the result of torture and, thus, prima-facie findings have been given.

We may note in the end that as far as the sum of Rs. 50,000/- granted by an interim order dated 12.10.2010 is concerned, the same was required to be deposited in this Court in the name of the Registrar which in turn had to be kept in a short term fixed deposit till further orders. This order was passed modifying the earlier order dated 15.09.2008 of stay.

The result is that the appeal must be accepted and the judgment of the learned Single Judge dated 22.08.2006 set aside leaving the parties to bear their own costs. The amount of Rs. 50,000/- deposited in this Court alongwith the accrued interest thereon be returned back to the appellant.