Mangal Singh vs Punjab State

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 31.3.1999 passed by the Court of Addl. Sessions Judge, Mansa, who convicted the appellant u/s 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 are that on 25.8.1998, the police party headed by ASI Ajmer Singh was on patrol duty and they were going in a Govt. Gypsy No. PB316424 from village Dulowal towards village Nangal Kalan via link road. When the police party had covered a distance of only two furlongs from village Dulowal, one independent witness from the public namely Harnek Singh son of Nihal Singh, resident of village Dulowal, was joined with the police party. It was about 2.45 p.m. In the meanwhile, the accused came on his scooter from the side of village Nangal Kalan. He was carrying a bag on his pillion seat. On seeing the police party, the accused tried to escape but was apprehended on the basis of suspicion. Suspecting some incriminating material in the bag, the I.O. asked the accused as to whether he wanted to give the search before a gazetted officer or a Magistrate, upon which the accused disclosed that he wanted to give the search before a Gazetted Officer. Resultantly, a wireless message was sent to the DSP, Mansa, for coming at the spot. After reaching at the spot, the DSP gave his identity to the accused and told him that he was working as a DSP and was a gazetted officer and whether the accused wanted to give the search before him or not. The accused disclosed that he wanted to be searched before him. Thereafter, under the directions of the DSP and in the presence of the other members of the police party, including Harnek Singh, the search of the bag was taken and poppy husk was found in it. On weighing, it came to 20 kgs. The I.O. separated 100 grams of poppy husk by way of sample and sealed it with his own seal bearing inscription ''AS'' and the remaining poppy husk was separately sealed with the same seal. A sample seal was also prepared. The entire case property was taken into possession vide recovery memo. Accused could not produce any licence or permit for the possession of 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 accused was also supplied the grounds of arrest. The I.O. prepared the rough site plan of the place of recovery. Finally, the sample of poppy husk was sent to the office of the Chemical Examiner, who declared the contents as chura of poppy head and on the completion of the investigation of the case, 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 committed the accused to court of sessions to face trial u/s 15 of the Act.

Vide order dated 31.11.1998, the accused was chargesheeted u/s 15 of the Act on the allegations that on 25.8.1998 at about 2.45 p.m. in the area of village Dulowal, he was found in possession of 20 kgs. of poppy husk without any licence or permit and thereby committed an offence punishable u/s 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 SI Baljit Singh, PW1, who verified the investigation of the case and resealed the case property with his own seal bearing inscription ''BS''. Dharam Pal, PW2, gave his statement on affidavit, Ex. PC. HC Gurdev Singh, PW3, is a witness of recovery and he has supported the allegations of the prosecution. ASI Ajmer Singh, I.O., appeared as PW4, and he substantiated the allegations of the case as narrated in the earlier portion of this judgment. DPS Iqbal Singh, who was summoned at the spot at the instance of the appellant, appeared as PW5. Harnek Singh, PW, who was the independent witness associated in the police party by the I.O., was given up on the plea that he has been won over by the accused. Finally, the prosecution tendered into evidence the report of the Chemical Examiner and closed the case.

The documents which have been prepared in this case are Ex. PA, the application moved by the I.O. at the time of taking the remand through which the case property along with the sample seal were also produced before the Magistrate. Ex. PB is the report of the Chemical Examiner. Ex. PC is the formal affidavit of Constable Dharam Pal. Ex. PD is the consent memo through which the alleged compliance of section 50 of the Act has been done. Ex. PE is the memo of introduction. Ex. PF is the memo of recovery and Ex. PE/1 is the personal search memo. Through Ex. PG, grounds of arrest were supplied to the accused. Ruqa, Ex. PH was sent to the police station on the basis of which formal FIR Ex. PH/1 was recorded. Ex. PJ is the rough site plan and Ex. PK is the special report which was issued to the higher authorities.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 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 that he was innocent.

When called upon to enter into defence, the accused took the courage and examined DW1 Harnek Singh, the socalled independent witness, who was associated by the police party and this witness deposed as follows in the examinationinchief :

"About eight months back, I want to Police Station, Sadar, Mansa, for the entries of birth and death in the book issued to me for this purpose. For this purpose I often used to visit in Police Station, Mansa. I am illiterate and used to put my thumb impression on the documents. In Police Station Sadar, Mansa, my thumb impressions were obtained on blank papers. Nothing was recovered from the accused before me. No consent memo was prepared before me. No offer was given to the accused in my presence. I did not give any statement to the Police."

The learned trial court relied 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, which I am disposing of with the assistance rendered by Shri A.S. Jattana, Advocate, on behalf of the appellant and Shri S.S. Randhawa, DAG, Punjab, on behalf of the State, and with their assistance have gone through the record of this case.

The learned counsel for the appellant has assailed the judgment of the trial court by raising a frontal argument that the wind has been taken out from the sail of the prosecution with the examination of Harnek Singh, DW1. A village Chowkidar ordinarily remains under the influence of the police but still this official has taken the courage to speak the truth by stating that nothing incriminating was recovered from the possession of the appellant and that his signatures were obtained on blank papers in the police station where he had gone in connection with his official duty for the registration of births and deaths. The counsel submitted that once the statement of Harnek Singh is believed, then, the entire story of the prosecution falls to the ground like a house of cards.

On the contrary, the learned State counsel submitted that irrespective of the fact that Harnek Singh has been examined as DW, still the conviction can be maintained on the testimony of the police officials and as the counsel for the appellant has not been able to point out any animous against the official witnesses, therefore, the judgment of the trial court should be maintained.

An additional argument was also raised by the learned counsel for the appellant that even the association of the DSP as alleged by the prosecution in the present investigation appears to be doubtful. He has signed the important papers in a very haphazard manner. He has not put any day underneath his signatures and there is no convincing evidence about the association of Iqbal Singh, DSP, who was allegedly associated in the investigation by the I.O.

I have considered the rival submissions of the parties and am of the opinion that the prosecution has not been able to prove the charge against the appellant beyond a reasonable doubt. In such like cases the punishment is very hard. Stricter the punishment graver is the proof. In these circumstances, the prosecution has to take every care by leading cogent, reliable and satisfactory evidence. It was the specific case of the prosecution that Harnek Singh was associated in the police party and in his presence, the appellant was intercepted on suspicion. It was also the case of the prosecution that in his presence the compliance of section 50 of the Act has been done and in the presence of Harnek Singh everything including the search of the bag was taken. Harnek Singh, while appearing as DW1, has not supported the case of the prosecution. According to him, his thumb impression was obtained on blank papers and nothing incriminating was recovered from the possession of the appellant. The statement of the defence witness has to be treated in the same fashion as that of the prosecution witnesses. I have scrutinised the various documents which were allegedly prepared at the spot and there appears to be grain of truth in the submissions raised by the counsel for the appellant. The thumb impressions of DW1 have been obtained in such a manner that sometimes the same appear below the line and sometimes the same cut the line. Even the signatures of Iqbal Singh, DSP, appears to have been taken in a very casual manner. He has not given any date underneath his signatures. In such circumstances, it will be highly hazardous and risky to plainly rely upon the story of the prosecution and its witnesses irrespective of the fact that Gurdev Singh, PW3, ASI Ajmer Singh, I.O., PW4 and DSP Iqbal Singh, PW5, are official witnesses.

The learned State council relies upon the judgment of the Hon''ble Division Bench of this Curt reported as Roop Singh v. State of Punjab, 1996(1) Recent CR 146. The facts of this judgment are a little bit distinguishable. The independent witness was given up by the prosecution on the plea that he has been won over. In these circumstances, the Hon''ble D.B. was pleased to take the view that no adverse inference should be drawn against the prosecution. But, here is a case where the accused has taken the courage to examine the socalled independent witness Harnek Singh, who has deposed adversely. Even a trio would agree that the examination of Harnek Singh was very material. He knew the alleged facts of the case as in the view of the prosecution in his presence the alleged recovery of poppy husk was effected. In order to elicit truth and in order to assist the court, the accused examined Harnek Singh as DW1. He has knocked down the wickets of the prosecution. An opportunity to crossexamine Harnek Singh was also given to the prosecution but inspite of the crossexamination, the prosecution has not been able to dislodge the statement of DW1. Thus, there are two factors through which a reasonable doubt has been created in the mind of this court, i.e. the examination of Harnek Singh, the Village Chowkidar, who invariably remains under the control of the police and the doubtful presence of the DSP at the spot, which are enough on my part to hold that the prosecution has not been able to prove the charge against the appellant beyond a reasonable doubt. The citation which has been relied upon by the learned State counsel is also not applicable to the facts in hand.

Resultantly, I accept this appeal, set aside the judgment and order of the trial court and acquit the appellant of the charge framed against him. The case property stands confiscated to the State and shall be destroyed according to the rules. The information regarding the acceptance of this appeal be sent to the Superintendent, Central Jail, Bathinda, so that the appellant should be set at large forthwith, if not required in any other case.