Gurbachan Singh vs State of Punjab

S.S. Sudhalkar, J.

The appellant was an accused in Session Case No. 60 of 1993 decided by learned Additional Sessions Judge, Amritsar. The appellant was tried for the offence under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act''). The appellant was held guilty and was sentenced to undergo R.I. for ten years and to pay a fine of Rs. one lac and in default of payment of fine, he was ordered to further undergo R.I. for one year. Being aggrieved by the said judgment of conviction and order of sentence, the appellant has come up before this Court in appeal.

I have heard learned counsel for the appellant and learned Assistant Advocate General, Punjab for the State.

The case against the appellant is that on 8.6.93 S.I. Gurdev Singh along with S.I. Gian Chand and other police officials were going from village Pakhopura towards village Gharka in connection with search of suspected farm houses and when they reached near river bed in the area of village Gharka the accused was found sitting on the bags. On suspicion he was apprehended and the appellant was suspected to be possessing incriminating articles and, therefore, he was given option whether he wanted to be searched before a Gazetted Officer or a Magistrate but the appellant reposed confidence in the Investigating Officer. Consequently, the bags were searched and they were found to contain poppy husk. Weighing and other formalities were carried out.

The learned counsel for the appellant argued that no independent witness has been joined at the time of search. In this regard learned Assistant Advocate General has argued that the recovery was made at 6.30 a.m. from a deserted place at a river bank and, therefore, the people cannot be expected there and it was a chance recovery and, therefore, the nonjoining of the independent witness at the time of raid will not be fatal to the prosecution case. Learned counsel for the appellant has relied on the judgment in the case of Ram Phal v. State of Haryana, 1996(2) Recent Criminal Reports 522 , in which it is held by this court that even though statute does not make it obligatory but as a rule of prudence the Police Officer should carry out search in presence of respectable witnesses if possible and the Court will be extremely reluctant to uphold prosecution case which is solely based on recovery made as a result of search not witnessed by independent and respectable persons unless it was unreasonable and impracticable to procure the presence of such witnesses. Learned counsel for the appellant has also relied on the case of Kashmiri Lal v. State of Punjab, 1994(2) Recent C.R. 440 . In that case it was held that nonjoining of independent witness during day time introduces as infirmity in the prosecution version and leads to the conclusion that reasonable possibility of false implication of the accused cannot be ruled out. As against this learned Assistant Advocate General, Punjab relied on the case of Malkiat Singh v. State of Punjab, 1995(1) Recent C.R. 637 . It is held by this Court in the said case that even if there was no independent witness when there is no inconsistency in the evidence of the witnesses, the conviction could be upheld even though it was on the basis of evidence of official witnesses because there was no animus on the part of the official witnesses to falsely implicate the accused by planting huge quantity of poppy husk.

Learned counsel for the appellant has submitted that the prosecution has not only not joined the independent witness but there is also infirmity in the prosecution evidence and, therefore, not joining of the independent witness makes the prosecution case doubtful. He has relied on the oral evidence to point out the discrepancies. He has pointed out from the statement of PW1 S.I. Gian Chand that contents of the bags were weighed with the help of Takri Kanda, whereas PW4 Gurdev Singh Inspector states in his weighed by Farshi Kanda. Learned counsel for the appellant has submitted that Takri Kanda is a hand scale by which weighing is done by holding it in the hand while Farshi Kanda is a fixed scale or a weighing machine which is kept on the ground and the articles are then put on that scale and weighed. Learned Assistant Advocate General has argued that both Takri Kanda and Farshi Kanda are instruments of weighing and that there is no discrepancy in the evidence. However, when the instruments of weighing are differently mentioned by two witnesses, it was for the prosecution to establish that both the witnesses have stated about the same instrument. This is not done.

Learned counsel for the appellant has also pointed out that the evidence regarding the place of recovery is also shaky. P.W.2 Balwinder Singh M.H.C. has stated in his deposition that the place of recovery is G.T. Road and the buses usually pass on the road. This statement is made in the cross examination. As against this PW4 Gurdev Singh Inspector has stated that the land near the place of recovery was uneven and was not cultivable. He has also stated that there was no road or passage near the place of recovery and that he did not make any enquiry from the appellant as to how he had carried the bags to the place of recovery. Therefore, there is contradiction in the evidence of the prosecution witnesses itself as to whether the recovery is made from a place near G.T. Road or from a remote place.

PW1 Inspector Gian Chand has stated that no person was sent from the police officials to summon any independent witness. PW4 Inspector Gurdev Singh has also stated the same thing. No reason is shown as to why no independent person was called for.

Learned Assistant Advocate General has cited before me the case of Mahmood v. State, 1991(3) Recent Criminal Reports 137 in which the Delhi High Court has held that it is not proper to reject evidence on the ground of minor variation or infirmities in matter of trivial details and that even an honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. However, the above mentioned discrepancies cannot be said to be minor discrepancies. No doubt if a person is guilty of an offence he deserves stringent punishment but at the same time the court has to see that no person should be convicted for an offence on the evidence which is a shaky one. In view of the above mentioned discrepancies, the nonjoining of the independent witness at the time of recovery makes the prosecution case doubtful and in these circumstances, I am not in a position to uphold the judgment of conviction and order of sentence recorded by the trial Court.

As a result, this appeal is allowed and the judgment of conviction and order of sentence passed by the trial court are set aside and the appellant is acquitted of the offence he was charged with and is ordered to be set at liberty if not required to be in custody in another case. Fine, if paid, is ordered to be refunded.