Kala Singh vs State of Punjab

M. Jeyapaul, J.—Accused Kala Singh was convicted for the offence punishable u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ''NDPS Act''). Hence, he has challenged the judgment of conviction and sentence passed by the trial Court.

The brief case of the prosecution is that on 17.9.1999 PW4 SI Bachan Singh proceeded alongwith PW1 ASI Jagir Singh and other police officials armed with weapons for the purpose of performing patrolling duty. When the police party reached near the bridge of canal minor in the area of village Mastewala, the accused was found sitting on the bags under the bridge. The accused was not a stranger to the police party. The accused ran away from the spot. Five bags were found lying under the bridge. PW2 DSP Nachhattar Singh was contacted. He made himself present at the spot to facilitate the recovery. PW4 made a search of five bags found over there in the presence of PW1 ASI Jagir Singh and other police officials. Each bag contained 35 kgs. of poppy husk. The samples were drawn from the bulk quantity. The samples as well as the bulk quantity were separately parceled and sealed with the seals of PW2 and PW4. PW1 ASI Jagir Singh put his signature in the recovery memo. On reaching the police station, PW4 retained the case property with himself. Thereafter the accused as well as the case property was produced before the learned judicial Magistrate who ordered to keep the case property in the Malkhana. The sample was sent for examination. The Chemical Examiner''s report would go to show that the sample sent for examination was nothing but poppy husk.

The trial Court having relied upon the evidence of PW1, PW2, PW4 and PW5 in the background of the Chemical Examiner''s report returned a finding that the accused was found in conscious possession of the poppy husk.

The learned Amicus-curiae appointed by this Court to argue the case on behalf of the appellant would submit that the accused was not arrested at the spot in spite of the fact that the police party was armed with weapons. No independent witness was associated in spite of the fact that the police party remained present there for about five long hours. The CFSL form was not filled up at the spot. The seals found on the bulk quantity were found broken at the time when the case property was produced during the course of trial. The case property was also found in a Palliwithout proper packing. The case property was also in the custody of PW4 before ever it was produced before the learned judicial Magistrate. Therefore, it is her submission that the prosecution failed to establish beyond reasonable doubt that the accused was in conscious possession of the poppy husk as projected by the prosecution.

I heard the submission made by the learned Assistant Advocate General appearing for the State, supporting the verdict of conviction and sentence passed by the trial Court.

The case of the prosecution is that accused was found sitting on the gunny bags located underneath the bridge of a canal minor. PW4 has categorically deposed that the accused was found sitting on the bags kept under the bridge. But PW1 just to ward off the identity issue confronted by the defence has deposed during the course of chief examination that the accused was found sitting on the bags lying on a dry drain. But during the course of cross examination, he fumbled and stated that the bags were lying only under the bridge and the accused was found sitting thereupon.

If at all, the accused was found sitting on the bags under the bridge, the police party headed by PW4 would have no occasion to spot and identify the accused. Secondly, the accused would not have chosen to expose himself to the police party from under the bridge if at all he had kept all the contraband underneath the bridge. Thirdly, it is not the case of the prosecution that the accused was identified when he was taking to heels from under the bridge. Therefore, there is a serious issue of identity of accused confronting the prosecution. But the prosecution failed to clear the doubt as to the proper identity of the accused. Infact the accused was apprehended only after about five long months by PW5 who did not come out with a version that he was already known to the accused.

PW4 had gone to the site with the entire set of police officials armed with weapons. It is quite surprising that they had not used the weapons to cripple the accused whom they suspected. Therefore, I very much doubt the very presence of the accused at the relevant point of time at the scene of crime.

It is the version of PW4 that the police party headed by him was present at the spot for about five long hours. No-one from the public was associated for the purpose of recovery. The CFSL form was not filled up at the spot as admitted by PW4. The failure to fill up the CFSL form will have to be considered in the background of the fact that the samples as well as the bulk quantity were not straightaway taken to the Malkhanaattached to the police station. PW4 has candidly admitted that he kept in his custody the case property till it was produced to the learned judicial Magistrate for obtaining necessary orders. The seals on the bulk quantity during the course of trial also were found completely broken. That apart, the bulk quantity was not found in the pacca package made by PW4 at the spot. Admittedly, the bulk quantity was produced before the Court during the course of trial in a Palli. In such a form, anything could be introduced into the Palli.The above facts and circumstances would go to show that there is a material doubt in the case of the prosecution as to the charge of conscious possession of the poppy husk. Therefore, the accused is entitled to acquittal.

In view of the above facts and circumstances, the judgment of conviction and sentence passed by the trial Court is set aside. The accused is acquitted of the charge u/s 15 of the NDPS Act. He be set at liberty forthwith, if his custody is not required in connection with any other case. Consequently, the appeal is allowed.