Kala Singh vs Punjab State

R.L. Anand, J.

Kala Singh son of Tek Singh son of Dalip Singh, a young boy of 26 years at the time of his conviction, has filed the present criminal appeal and it has been directed against the judgment and order dated 3.2.1996, passed by the court of Addl. Sessions Judge, Barnala, who convicted the appellant under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, the appellant was directed to undergo R.I. for two years.

The brief facts of the case as unfolded by SI Nachhattar Singh, SHO P.S. Mehal Kalan, PW4, while making his statement before the trial Court are that on the night intervening 29/30.6.1994, he along with ASI Jaswinder Singh, HC Jagtar Singh and other police officials was going towards village Sehjra for the purpose of patrolling the area. When he reached the Bus Stand, Sehjra, ASI Gurmel Singh, Incharge, Police Post Kalala along with other officials met them and he along with his party were joined in the police party and they started proceeding further and when they reached near the drain in the area of Mehal Kalan, accused was spotted sitting on the bags on the bridge of drain on the left side and on the basis of suspicion he was apprehended. Before apprehension of the accused, PW Jora Singh, who came on the bank of the drain was associated. The accused was sitting on the bags which were 10 in number. The appellant was arrested on the basis of suspicion and the search of the bags was conducted. Poppy husk weighing 36 kgs. in each bag, was found. Two samples of 250 grams each were taken out from each of the bags and those samples were sealed with the seal bearing inscription `NS''. The remaining poppy husk was separately sealed in those very bags. The seal after use was handed over to ASI Gurmel Singh. The accused could not produce any licence or permit for the possession of the poppy husk. Resultantly a ruqa was sent to the police station for the registration of the case, on the basis of which formal FIR was recorded. The entire case property was taken into possession vide separate recovery memo. From the personal search of the appellant, a sum of Rs. 50/ were also recovered and that currency was also taken into possession. The I.O. prepared the rough site plan of the place of recovery with correct marginal notes and recorded the statements of the witnesses in whose presence the recovery of opium was effected. On return to the police station, he deposited the case property with seals intact with the MHC Ranjit Singh. So much so, the special report of the case and the seizure of poppy husk was sent to the high authorities, i.e. the D.S.P. as well as to the Area Magistrate. The samples of poppy husk were sent to the Chemical Examiner, who vide report, Ex. PB, declared the contents as chura of the poppy head and on the completion of the investigation of the case and after completing other formalities, the appellant was challaned in the court of the Area Magistrate, who supplied the copies of the documents free of cost as required under the law and vide order dated 27.9.1994 committed the accused to court of sessions to face trial under Section 15 of the Act.

Vide order dated 11.10.1994, the accused was chargesheeted under Section 15 of the Act on the allegations that on the night intervening 29/30.6.1994 in the area of Mehal Kalan, he was found in conscious possession of 10 bags each containing 36 Kgs 500 grams of meconid acid and morphine without any licence or permit and thereby committed an offence punishable under Section 15 of the Act. The charge was read over and explained to the accused, who pleaded not guilty and claimed a trial.

In order to substantiate the charge, the prosecution examined MHC Ranjit Singh, PW1, who tendered his statement on affidavit, Ex. PA. ASI Gurbachan Singh was given up as unnecessary. PW2 Constable Jagjit Singh gave his statement on affidavit, Ex. PC. ASI Gurmel Singh appeared as PW3 while SI Nachhattar Singh appeared as PW4. HC Gulshan Singh appeared as PW5 and he deposed that the special report, Ex. PK, was sent in the office of DSP, Mehal Kalan on 30.6.1994 and it was sent by SI Nachhattar Singh. He identified the signatures of DSP Harbhajan Singh on endorsement, Ex. PK/1, which was on the special report. Jora Singh, independent witness, who was associated in the police party was given up as having been won over by the accused and the remaining witnesses were given up as unnecessary. The prosecution also tendered into evidence the report of the Chemical Examiner, Ex. PB. The gist of the documentary evidence can be described as follows :

Ex. PA is the affidavit of MHC Ranjit Singh. Ex. PB is the report of the Chemical examiner, Ex. PC is the affidavit of Constable Jagjit Singh. Ex. PE is the recovery memo attested by ASI Gurmel Singh and Jora Singh, independent witness. Ex. PF is the personal search memo. Ex. PG is the ruqa sent to the police station for the registration of the case on 30.6.194 at 1.30 A.M. on the basis of which formal FIR Ex. PG/1 was recorded under Section 15 of the Act, vide DDR No. 29 at 1.55 am and the special report of the case was received by the Area Magistrate on 30.6.1994 at 6 A.M. as is evident from the endorsement Ex. PG/1. Exh. PH is the rough site plan of the place of recovery and Exs. PJ and PK are the special reports, which were sent by the I.O. to the higher authorities.

On closure of the prosecution evidence, the 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 appellant. The appellant denied those circumstances and stated as follows :

"I am innocent. Police found certain bags from some place. I along with other persons were summoned to the police station where we were beaten to find out the ownership and possession of those bags. Relatives of those persons prevailed upon the police and they were released. I being Harijan could not prevail upon them. I was falsely implicated in this case."

In defence the accused examined DW1 Ajaib Singh, Lambardar, resident of village Chuhanke Kalan, who deposed that the police detained 5/7 persons for the purpose of interrogation and later on he came to know that the appellant has been implicated in this case. In the crossexamination, this witness stated that he was not in a position to tell the names of other persons or their addresses, who were allegedly detained by the police in the police station. He did not file any application against SI Nachhattar Singh nor did he make any application regarding the alleged false implication of the accused. So much so, he did not passing any resolution in the Gram Panchayat so as to plead the innocence of the appellant. DW2 Shivkaran Singh deposed that the appellant was arrested in his presence on the excuse that he was to be interrogated in some case. This witness was not in a position to tell the names of the police officials who took the appellant into custody. Further, it has been stated by this witness that he did not go to the police station to enquire about the accused personally. The brothers of the accused were also present in the fields when he was taken into custody.

The learned trial Court for the reasons given in the judgment relied upon the story of the prosecution and rejected the defence version and convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and order of sentence, the present appeal. The reasons of conviction have been enumerated in paras 16 to 19 of the trial Court judgment, which are reproduced as under :

"16. While assailing the prosecution version learned defence counsel contended with all force at his command that provisions of section 50 of the Act were not complied with, noncompliance whereof was simply fatal. He also relied upon authority in case Saiyad Mohd. Saiyad Umer Saiyad and others v. State of Gujarat, 1995 Crl.L.J. 2662. I have considered the submission made but find the same to be not free from fallacy. Reason is not far to seek. Prosecution evidence discussed above conclusively goes to show that recovery involved in the case before this court was simply a chance recovery and not the recovery on the basis of any prior secret information with the Investigating Officer and hence provisions of section 50 of the Act were not even attracted as has been authoritatively held by Hon''ble Supreme Court in case State of Punjab v. Balbir Singh, 1994(1) Recent Crl. Reports 736 which was successively relied upon in authorities in case Som Nath v. State of Haryana, 1995(2) Recent Crl. Reports 384 , Balkar Singh v. State of Haryana, 1995(2) Recent Criminal Reports 505.

The learned defence counsel next contended that prosecution version as has come to the court was devoid of independent corroboration and hence simply unsafe to base conviction. I have given due thought to this submission made as well but find the same to be not on sound footing under the circumstances. Prosecution examined SI Nachhattar Singh and ASI Gurmel Singh to substantiate the recovery from the accused in terms of the prosecution version and they both corroborated each other in all material particulars so far as recovery of 10 bags of poppy husk from the accused in terms of prosecution version in concerned. It may not be out of place to mention here that the both were crossexamined quite at length but it may be said that they stood the test of crossexamination quite boldly and nothing crept in which may malign the prosecution version as given by them in their examination in chief in this context. Their statements rather may be said to be wholly reliable so for as recovery involved is concerned. Their statements otherwise appear to be consistent, straightway, untainted and unbiased.

The learned defence counsel next contended that said two P.Ws. were discrepant on various aspects and hence they were apt to be disbelieved. I have thoroughly scanned their statements to examine the just referred contention advanced but am constrained to hold that there is no discrepancy in their statement which may go to the root of the prosecution case so as to demolish the same. Discrepancies that have come on record merely relate to the factum as to whether writing work was done while sitting on the bags or while sitting on the grassy place near the bank of the drain or in the point as to whether weighing material was sent back from the spot itself before police party left for the police station but they cannot be said to be material discrepancies even remotely so as to make the case of the prosecution reasonably doubtful; rather such like discrepancies are pointer to the fact hat witnesses examined were not tutored before they stepped into the witness box. Furthermore such like discrepancies touching minor details are always bound to creep in particularly when statements of the witnesses are recorded with a gap which in this case is roughly as large as 11/2 years. Authority in case Balkar Singh v. State of Haryana (supra) may be pressed into service at this juncture too.

The learned defence counsel lastly referred to the testimony of DWs Ajiab Singh, Shivkaran Singh to emphasise that accused was not arrested in the manner given in the prosecution version. I have considered this submission made too and have gone through the statement of defence witnesses, but come to conclude that defence witnesses are not truthful witnesses as their testimony inspires confidence least particularly when they failed to stand the test of crossexamination. DW Ajaib Singh as stated by him in his crossexamination did not know the names and other particulars of other persons detained in the police station when he met the S.I., if at all. His subsequent conduct is also not worth the mark as he did not file any application to any authority in writing about the false implication of the accused at any point of time. Furthermore, he is his examination in chief stated that he had once again gone to the Police Station after 57 days by then challan against the accused had been presented but this version stands falsified from the record before me when I find that challan had been presented in the court of Illaqa Magistrate not within 57 days of the recovery but much after i.e. after gap of about 2 1/2 months. DW Shivkaran Singh too stated having not known the names of headconstable or other police officials who had come to his field to take the accused with them. He in his crossexamination stated that at that time 15 other persons including brothers of the accused were also present but there is least to suggest as to why they all kept back without a murmur. Even otherwise defence version propounded by the accused may easily be manipulated with impunity."

I have heard Shri M.S. Gill, Advocate, on behalf of the appellant and Shri Randhir Singh, DAG, Punjab, on behalf of the State, and with their assistance have gone through the record of this case.

The first argument which was raised by the counsel for the appellant in this case is that section 50 of the Act has not been complied and, in these circumstances, the alleged seizure and the recovery of the poppy husk is doubtful and the trial stands vitiated.

On the contrary, the contention of the State is that it is a case of purely chance recovery. There was no secret information with the I.O. The police party was going on patrol and on the way per chance, the appellant was found in conscious possession of 10 bags of poppy husk when he was sitting over the bags during the dark hours of the night and thus, section 50 of the Act would not come into play.

I find merit in the contention of the counsel for the State. Section 50 of the Act will come into play when sections 41, 42 and 43 of the Act are made applicable. The recovery is from a public place. So, in this case, the case of the appellant is covered under Section 43 of the Act. There must be reasons to relieve (believe ?) on the part of the I.O. that the appellant was in possession of some narcotic drugs/psychotropic substances. As there was no secret information with the I.O. nor he could contemplate while on patrol duty that the appellant may be in possession of poppy husk, therefore, it was not obligatory on the part of the I.O. to comply with the provisions of section 50 of the Act. Therefore, I repel the first argument raised by the counsel for the appellant.

It was, then, submitted by the counsel for the appellant that Jora Singh, independent witness has not been examined by the prosecution and he has been given up on the usual plea that he has been won over by the accused. In the absence of any independent witness, the benefit of doubt should be given to the appellant.

The argument may look alluring because Jora Singh, admittedly, has not been examined by the prosecution and he has been given up by the prosecution on the plea of having been won over. But is it fatal, is the point for determination.

This point has been considered and has been replied in Roop Singh v. State of Punjab, 1996(1) RCR 146 , in which it was held that if the independent witness has been won over and given up by the prosecution, no adverse inference should be drawn against the prosecution. The reasons given by the Hon''ble D.B. are that the witnesses are also human beings and they are quite exposed and vulnerable to human feelings of yielding, browbeating, threats, and inducements. The Hon''ble D.B. also held that the witnesses being won over is fully justified in the presentday situation prevailing in the society.

If the intention of the I.O. had been bad right from the very beginning, he would not have taken the assistance from Jora Singh at the time of the recovery. Rather, the association of Jora Singh in the present scenario itself suggests that the I.O. wanted to show the bona fide in the investigation and for that reason he took the assistance of Jora Singh. If, ultimately, Jora Singh was not inclined to support the case of the prosecution, what fault can be attributed to the law ? It is a case of recovery at night, i.e. on the night intervening 29/30.6.1994 from a public place. Many independent witnesses could not be available to the I.O. at that point of time. The Hon''ble Supreme Court dealt with such a situation in State of Punjab v. Labh Singh, 1997(1) RCR 565 , and held as follows :

"Each case should be considered in the light of the facts and circumstances in which the contraband was seized viz., time when the search was conducted, the place where it was seized, whether police had prior information of the contraband being in transport or place of concealment, whether there was proper opportunity to the police to secure the presence of a Gazetted Officer; whether the delay in search and seizure would result in the escape of the accused from arrest or contraband would be destroyed or whisked away and not of all relevant attendant circumstances. Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down. The Court has to consider each case on its own setting."

At the cost of repetition, it may be stated that in the present case, the services of Jora Singh were availed off. It is a different thing if for some extraneous reasons or inducement, he has not been examined by the prosecution but equally is true that the accused has also not taken any steps to examine Jora Singh. This court is cognizant of the fact that the primary duty is of the prosecution to prove the charge beyond a reasonable doubt but omission on the part of the accused coupled with the statements of the two police officials and also coupled with the fact that it is a case of recovery of 10 bags of poppy husk, each containing 36 kgs of poppy husk, which cannot be planted so easily, cannot be held not be fatal.

So far as the conviction on the testimony of the police officials is concerned, this point has also been answered by the Hon''ble Supreme Court in 1994(1) RCR 736 (State of Punjab v. Balbir Singh) (supra), when it was held as follows :

"....It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witness with the search and strictly comply with these provisions......"

Thus, it can be said that corroboration to the statements of the police officials is a rule of caution and not the rule of law. A searching cross examination has been conducted upon PW3 ASI Gurmel Singh and PW4 SI Nachhattar Singh but inspite of that no circumstance has come out as to why these two witnesses have deposed falsely against the appellant and why they have planted poppy husk upon him. It is not believable that the police would leave the real culprit and would try to implicate the present appellant for no reason. Even the defence witnesses did not advance the case of the appellant as their testimonies do not inspire confidence in the mind of this court on account of their conduct.

Resultantly, it is held that in the present cases section 50 of the Act would not come into play on account of pure chance recovery and further it is held that the recovery in this case is proved from the testimony of the police officials whose statements are as competent as that of nonofficial witnesses. Since, it was a night time recovery, what possible could be done by the I.O. has been done. Services of Jora Singh were taken and if he has not supported the story of the prosecution, no adverse inference can be drawn against the prosecution.

Resultantly, I do not see any merit in this appeal and the same is hereby dismissed.