Kuldip Singh vs State of Punjab

MANDEEP PANNU, J.

The present appeal has been preferred against the judgment of conviction and order of sentence dated 4^th December, 2007, passed by learned Special Judge, Faridkot, in case FIR No.42 dated 17^th April, 2005, registered at Police Station Sadar Kotkapura, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"), whereby the appellant has been convicted and sentenced as under:-

Brief facts of the case, as emerging from the record, are that on 17^th April, 2005, ASI Gurtej Singh, along with HC Sukhdarshan Kumar and other police officials, was proceeding in a Government vehicle for checking of suspects towards village Dhilwan Kalan, Srawan, Gurusar, Behbal Kalan and Behbal Khurd. At about 2.15 P.M., when the police party was at a distance of about one kilometer from village Ran Singh Wala, the appellant was allegedly seen coming from the opposite direction carrying a plastic bag in his right hand. On seeing the police party, he allegedly tried to slip away and was apprehended in the presence of Baldev Singh, Ex-Panch of village Ran Singh Wala. ASI Gurtej Singh informed the appellant that he was suspected to be in possession of some intoxicant and apprised him of his right to have his search conducted in the presence of a Gazetted Officer or a Magistrate. The appellant opted to be searched by a Gazetted Officer, pursuant to which a consent memo, Ex.PA, was prepared. A wireless message was, thereafter, sent and, after about 30 minutes, DSP Randhir Singh Uppal reached the spot. After disclosing his identity and again apprising the appellant of his right, the appellant reposed confidence in the DSP and consented to his search. The search of the polythene bag allegedly carried by the appellant resulted in the recovery of opium. Two samples of 10 grams each were separated and the remaining opium weighed 680 grams. Separate parcels of the samples and the remaining contraband were prepared and sealed with the seals of ASI Gurtej Singh bearing initials "GS" and DSP Randhir Singh Uppal bearing initials "RS". The sample seal was also prepared. After use, the seal of ASI Gurtej Singh was handed over to HC Sukhdarshan Kumar. The case property and sample seals were taken into possession vide recovery memo Ex.PC. A personal search memo was also prepared. Ruqa was sent to the police station, on the basis of which, formal FIR was registered. The rough site plan was prepared and statements of the witnesses were recorded. On return to the police station, the accused, the three parcels and the sample seal were produced before SHO Harbhajan Singh, who retained the case property and affixed his seal bearing initials "HS" on the parcels as well as the sample seal. The sample was subsequently sent to the Chemical Examiner and, after receipt of the report and completion of investigation, the challan was presented before the Court.

The appellant was thereafter charged under Section 18 of the Act, to which he pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined PW-1 HC Sukhdarshan Kumar, PW-2 HC Ashok Kumar, Photographer, PW-3 SI Gurtej Singh, PW-4 HC Ram Rakha Singh (formal witness), PW-5 DSP Randhir Singh Uppal and PW-6 SI Harbhajan Singh. Thereafter, the evidence of the prosecution was closed.

After the closure of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied all the incriminating evidence appearing against him. In his defence, the accused examined three witnesses, i.e DW-1 Dr. Jajbir Singh Sandhu, Orthopaedician, Civil Hospital, Ferozepur, DW-2 Daljit Kaur, Steno to Civil Surgeon, and DW-3 Baldev Singh.

Learned trial Court, after hearing learned Additional Public Prosecutor for the State as well as learned counsel for the accused, convicted the appellant under Section 18 of the Act. Learned trial Court observed that learned counsel for the accused did not argue the case on merits and, upon perusal of the record, found nothing on the basis of which the prosecution version could be disbelieved. The trial Court further relied upon the recovery of 700 grams of opium from the appellant and held that the said quantity was non-commercial in nature. Accordingly, the appellant was held guilty and convicted under Section 18 of the Act. On the question of sentence, learned trial Court took a lenient view on account of the physical disability of the appellant. It noticed that, as per the handicapped certificate, the appellant had 65% disability qua his left leg, though the remaining body and the other leg were found to be healthy. The trial Court also noticed the photographs taken at the time of preparation of the inventory, wherein the appellant was shown standing without the assistance of any person. Keeping in view his physical condition, learned trial Court sentenced him to undergo rigorous imprisonment for 02 years and to pay a fine of ₹1,000/- and in default of payment of fine, to undergo imprisonment for a period of 15 days.

Feeling aggrieved by the aforesaid judgment of conviction and order of sentence passed by learned trial Court, the present appeal has been preferred by the appellant.

Learned counsel for the appellant has argued that the judgment of conviction is not sustainable either on facts or in law. It has been contended that the prosecution case is rendered doubtful on account of the physical disability of the appellant. According to learned counsel, the appellant was suffering from 65% physical disability, as proved from the disability certificate Ex.DB, and his left leg was affected by polio. It is argued that the appellant was unable to perform his daily chores without assistance and, therefore, the prosecution version that he was walking and carrying the alleged contraband bag is inherently improbable. Learned counsel has further submitted that learned trial Court itself noticed the disability of the appellant but did not properly appreciate its effect on the prosecution case.

Learned counsel has further argued that the testimony of DW-1, Dr. Jajbir Singh Sandhu, regarding the injuries found on the person of the appellant was not properly appreciated. According to him, the medical examination conducted on 02.02.2005 showed injuries on the person of the appellant and, therefore, the possibility of his having been subjected to maltreatment in custody could not have been brushed aside. It has also been argued that the sole independent witness, Baldev Singh, DW-3, did not support the prosecution case and specifically stated that no recovery had been effected in his presence and that the recovery memos had already been prepared by the police. Learned counsel submitted that learned trial Court erred in discarding his testimony merely by observing that he had signed the seizure memos and had been won over by the defence, particularly when there was no cogent material to establish that he was in fact won over.

It has also been argued that the prosecution failed to associate any other independent public witness with the alleged recovery despite the admitted availability of persons in the fields in the vicinity. Learned counsel submitted that the occurrence allegedly took place during the harvesting season, when farmers were present in the nearby fields, and yet no independent person was joined in the investigation. This omission, according to learned counsel, assumes significance in view of the fact that the entire recovery is sought to be established through official witnesses. Learned counsel has further pointed out several alleged contradictions and discrepancies in the prosecution evidence relating to the preparation of CFSL forms and other documents. It has been submitted that the prosecution witnesses gave inconsistent versions as to who filled up the CFSL form and when it was filled. Similarly, there were contradictions regarding the writing work, inasmuch as one witness stated that SI Gurtej Singh had done the writing work alone, whereas another stated that the same had been done jointly with HC Sukhdarshan Kumar. Learned counsel has also referred to the discrepancies regarding the weighing equipment. According to him, different prosecution witnesses gave different versions as to the availability and source of the weighing scales and weights used at the spot. It has been argued that the fact that the set of weights allegedly carried by the Investigating Officer, i.e 10 grams, 20 grams, 50 grams, 100 grams and 500 grams, totalled exactly 680 grams, corresponding to the alleged sampled/un-sampled quantity, creates a serious doubt about the genuineness of the alleged recovery and indicates the possibility of fabrication.

Learned counsel has further contended that the mandatory safeguards contemplated under the NDPS Act were not duly complied with. It has been submitted that the original seals were not sent along with the samples to the CFSL for comparison; the seal was not properly handed over to an independent witness after use; and no personal searches of the members of the raiding party were conducted or memo prepared in that regard. According to learned counsel, these omissions and lapses assume considerable importance in a case under the NDPS Act, where the prosecution is required to establish the sanctity of the recovery and the safe custody of the case property beyond reasonable doubt.

Lastly, learned counsel has urged that the appellant has been falsely implicated. It has been submitted that, according to the defence version, the police had chased some unknown motorcyclists who had allegedly dropped a packet near the field of the appellant and, thereafter, the appellant was falsely implicated when his father failed to meet the monetary demand allegedly made by the police. Learned counsel has referred to the representations allegedly made before the Punjab Human Rights Commission and the Hon'ble Chief Justice of this Court regarding the conduct of the police and has submitted that the same lends support to the defence version. On these grounds, learned counsel has prayed that the impugned judgment of conviction and order of sentence be set aside and the appellant be acquitted.

Learned State counsel, on the other hand, has opposed the appeal and submitted, in brief, that learned trial Court has rightly appreciated the evidence on record. It has been argued that the recovery of 700 grams of opium from the appellant stands duly established through the official witnesses and the documentary evidence, and the minor discrepancies pointed out by learned counsel for the appellant do not go to the root of the prosecution case. It has further been submitted that the independent witness was rightly disbelieved by learned trial Court and that the disability of the appellant, confined to his left leg, did not render the prosecution version impossible. Learned State counsel has, accordingly, supported the judgment of conviction and the sentence imposed by learned trial Court.

I have considered the rival submissions and have carefully gone through the record.

The contentions raised by learned counsel for the appellant do not create any reasonable doubt in the prosecution case. Learned trial Court, after appreciating the evidence led by the prosecution as well as the defence, has recorded a categorical finding that there was nothing on the record from which the prosecution version could be disbelieved. Significantly, learned counsel for the accused before the trial Court did not argue the case on merits. Learned trial Court nevertheless examined the material available on record and found the prosecution evidence sufficient to establish the alleged recovery. The prosecution witnesses have supported the recovery and the contemporaneous documents have been proved. The mere fact that the witnesses may have given somewhat different versions with regard to the preparation of CFSL forms, writing work or the availability of weighing equipment is not sufficient, by itself, to discard an otherwise consistent prosecution case, particularly when such discrepancies do not establish that the alleged contraband was not recovered from the appellant.

The argument regarding the disability of the appellant also does not demolish the prosecution case. The disability certificate Ex.DB, as noticed by learned trial Court, shows 65% disability in respect of the left leg. The photographs Ex.PF and Ex.PF/1, taken at the time of preparation of the inventory in Court, further show the appellant standing without assistance. Thus, the disability, though a relevant circumstance, cannot by itself lead to the conclusion that the appellant was physically incapable of carrying the alleged contraband or of moving at the relevant time. Learned trial Court was, therefore, justified in not treating the disability as sufficient to reject the prosecution case.

The evidence of DW-1 also does not advance the case of the appellant. The medical examination relied upon by the defence was conducted on 02.02.2005, whereas, as noticed by learned trial Court, the appellant was arrested in the present case on 17.04.2005. Learned trial Court has specifically noticed that, at the time of the medical examination, the appellant was in custody in some other case and that the injuries were opined to be 48 to 72 hours old. Consequently, the said medical evidence does not establish that the injuries were suffered by the appellant while in police custody in the present case.

Likewise, the fact that DW-3 did not support the prosecution does not necessarily render the entire prosecution case doubtful. His testimony was considered by learned trial Court and was discarded for cogent reasons, including the fact that he had signed the seizure memos. The testimony of a hostile or unreliable independent witness cannot automatically outweigh otherwise trustworthy official evidence. The mere non-association of other public witnesses, in the circumstances of the case, is also not sufficient to discard the prosecution evidence when the recovery is otherwise proved through reliable evidence. For this, reliance has been placed upon Kailash Kumar vs. The State of Haryana, Criminal Appeal No.273 of 2014 decided on 06.03.2025, wherein the Hon'ble Supreme Court has held that non-examination of independent witness does not ipso facto entitle the accused to acquittal if the prosecution evidence is otherwise reliable and trustworthy.

The submissions regarding the alleged non-compliance with the statutory safeguards and the discrepancies relating to the CFSL forms, seals and weighing equipment have also been examined. These circumstances, individually or cumulatively, do not demonstrate any material break in the chain of custody or establish that the contraband produced before the Court was not the same substance allegedly recovered from the appellant. No material contradiction has been pointed out which would render the recovery itself wholly unreliable. Similarly, the defence allegation of false implication on account of an alleged demand of money remains a bare assertion and has not been established through any cogent evidence. The mere representations allegedly made by the appellant's side cannot displace the otherwise acceptable prosecution evidence.

It is also relevant that the quantity allegedly recovered from the appellant was 700 grams of opium, which was treated by learned trial Court as a non-commercial quantity, and the appellant was, accordingly, convicted under Section 18 of the Act. On an overall appreciation of the evidence, I find no perversity, illegality or material misappreciation of evidence in the finding of guilt recorded by learned trial Court. The conviction of the appellant, therefore, calls for no interference and is hereby upheld.

So far as the quantum of sentence is concerned, learned trial Court awarded rigorous imprisonment for 02 years and a fine of Rs.1,000/-, with a further sentence of 15 days' imprisonment in default of payment of fine. While the conviction does not warrant interference, the fact that the appellant is a physically disabled person and his left leg is affected by polio is a relevant mitigating circumstance for determining the appropriate quantum of substantive sentence. Learned trial Court had itself taken note of his physical disability while imposing the sentence. Having regard to the nature of the disability and the overall circumstances of the case, a sentence of rigorous imprisonment for 01 year would meet the ends of justice.

Accordingly, the appeal is dismissed qua the conviction. The conviction of the appellant under Section 18 of the NDPS Act is upheld. However, the sentence of rigorous imprisonment of 02 years imposed by learned trial Court is reduced to rigorous imprisonment for 01 year. The fine of Rs.1,000/- imposed by learned trial Court shall remain unaltered. The period already undergone by the appellant during investigation, inquiry and trial shall be set off against the substantive sentence in accordance with law. In case the appellant has already undergone the sentence of imprisonment as modified herein and is not required in any other case, he shall be released forthwith, subject to compliance with the remaining formalities.

The appeal is partly allowed in the aforesaid terms.

All pending applications, if any, also stand disposed of.