Nishan Singh Alias Shana vs State of Punjab

Affidavit of Sh. Gurpal Singh Sarowa, PPS, Superintendent District Sudhar Ghar, Nabha mentioning the period of imprisonment undergone by the applicant/appellant Nishan Singh alias Shana filed in Court today is taken on record. Heard counsel for the parties.

The Crl. Misc. application has been filed seeking suspension of sentence of imprisonment of the applicant/appellant Nishan Singh alias Shana during the pendency of the appeal.

The FIR in the case has been registered on the basis of secret information received by Inspector Harinder Singh who was on patrol and was present at the bridge of a drain in the area of village Pedni Kalan, Police Station Dhuri, District Sangrur. The secret information was to the effect that the applicant/appellant Nishan Singh alias Shana was employed as a driver on truck No. HR-39-7525 and he with the help of his brother namely Sarabjit Singh (appellant in CRA No. 188-DB of 2005) had been bringing poppy husk from Rajasthan on the said truck. Nishan Singh alias Shana (applicant/appellant) had been selling the same at villages namely Pedni Kalan, Bugra etc. On that day i.e. 17.5.2003 both the brothers were bringing poppy husk on the said truck for selling the same and in case a check-post was set up, huge quantity of poppy husk could be recovered from them. It was around 7.10 a.m. at that time and one Kulwant Singh son of Naranjan Singh came and he was joined in the police party by Inspector Harinder Singh. In the meantime, a truck came on the metalled road from the side of Pedni Kalan which was being driven by the applicant/appellant Nishan Singh alias Shana and his brother Sarabjit Singh was sitting by his side. Inspector Harinder Singh signalled the truck to stop. The same was stopped at some distance from the police party. The driver of the truck then jumped out of it and fled towards the fields. The other person was apprehended and on questioning, he disclosed his name as Sarabjit Singh. The name of the driver who had run away was disclosed as Nishan Singh alias Shana. Thereupon, Sarabjit Singh was informed by Inspector Harinder Singh that he had suspicion of some intoxicants in the boxes loaded in the truck. Sarabjit Singh was also informed that a search of the truck was to be carried out and that he had a right to get the search conducted in the presence of a Gazetted Officer or a Magistrate and they could be called at the spot. On this Sarabjit Singh replied that some Gazetted Officer be called at the spot. In this regard statement of Sarabjit Singh was recorded. Thereafter, a request was made to Rajinder Singh DSP (D), Sangrur to reach at the spot. Rajinder Singh, DSP (D) came at the spot on his Govt. vehicle. He was in uniform and introduced himself to Sarabjit Singh. Rajinder Singh DSP (D) also informed Sarabjit Singh that he could also call some other Gazetted Officer or Magistrate. However, Sarabjit Singh reposed confidence in DSP (D) Rajinder Singh and stated that a search could be conducted. In this regard, the consent statement of Sarabjit Singh was recorded. On the directions of DSP (D) Rajinder Singh, the bags lying in the truck were opened by Inspector Harinder Singh and on opening the bags, poppy husk was found. There were 36 bags in all and each bag contained 33 kgs of poppy husk. Two samples of 250-250 gms each were taken from each of the bags. The samples and the bulk parcels were sealed with the seal of DSP (D) Rajinder Singh bearing impressions ''RS''. Sample seal chit was also prepared and seal after use was entrusted to Kulwant Singh who had been associated with the police party. Then all the parcels, truck and the Registration Certificate were taken in possession by the police by a separate memo attested by the witnesses. A memo was sent to the Police Station on the basis of which formal FIR was registered.

The applicant/appellant Nishan Singh alias Shana as already noticed was not apprehended at the spot and he had fled away. During trial of Sarabjit Singh, brother of the applicant/appellant, the applicant/appellant Nishan Singh alias Shana was a proclaimed offender. He was subsequently arrested and tried. He has been convicted by the learned trial Court for the offence u/s 15 of the NDPS Act. He has been sentenced to undergo rigorous imprisonment for a period of 12 years, besides, pay a fine of Rs. 1 lac and in default of payment of fine, to undergo rigorous imprisonment for a period of two years.

In terms of the affidavit of Sh.Gurpal Singh Sarowa, PPS, Superintendent District Sudhar Ghar, Nabha, the applicant/appellant Nishan Singh alias Shana has undergone imprisonment of four years, one month and twenty-one days as on 8.8.2012. There were two other cases pending against him. In one case for the offences under Sections 307, 323 and 34 IPC, he has been acquitted by the learned Additional Sessions Judge, Fatehgarh Sahib on 31.1.2012. In another case for the offences under Sections 379, 420, 465, 468 and 120B IPC, he has been sentenced to imprisonment to the period already undergone by the learned Chief Judicial Magistrate, Fatehgarh Sahib on 7.1.2012. There is no other case pending against him.

In the present case, he was initially declared a proclaimed offender. However, during his imprisonment he availed of parole for 28 days and after expiry, he surrendered in jail. As per the said affidavit, he did not misuse the concession of parole. The case involves arguable points inasmuch as the applicant/appellant was not apprehended at the spot. Therefore, it is to be considered whether his identity is established. Besides, learned counsel for the applicant/appellant has submitted that Kulwant Singh who was joined as an independent witness has not been examined and even otherwise, it is submitted that he was a stock witness in several cases. A reference to which has been made in the impugned judgment and order of the learned trial Court. Besides, no identification parade of the applicant/appellant was conducted. It is also submitted by learned counsel for the applicant/appellant that the applicant/appellant should not be non-suited for being a proclaimed offender as he has admittedly surrendered after availing the period of parole and the initial circumstances of his being a proclaimed offender are to be established as it is the case of the applicant/appellant that he was not in the truck.

In response, learned State counsel has opposed the application seeking suspension of sentence of imprisonment of the applicant. It is submitted that the recovery of the contraband is quite substantial and the period of imprisonment undergone by the applicant/appellant is for about four years. Besides, the fact that Kulwant Singh has not been examined, it is submitted, is inconsequential as there is no reason for the prosecution or for the police officials to falsely implicate the applicant/appellant.

After giving our thoughtful consideration to the matter, it may be noticed that the applicant/appellant indeed was not apprehended at the spot. Therefore, it is to be considered at the time of final hearing as to whether he was present at the time when the incident occurred. The presence of the applicant/appellant is also to be considered from the point of view that Kulwant Singh has been cited as an independent witness and was not examined. It was contended on behalf of the appellant in the trial Court that Kulwant Singh is a stock witness and FIR numbers and the cases in which he has been cited as a stock witness were tendered in evidence. Besides, the applicant/appellant did not misuse the concession of parole that was granted to him. In two other cases that he was involved are not of the NDPS Act. Besides, in one case, for the offences under Sections 307, 323 and 34 IPC, he has been acquitted by the learned Additional Sessions Judge, Fatehgarh Sahib on 31.1.2012 and in another case, for the offences under Sections 379, 420, 465, 468 and 120B IPC, he has been sentenced to imprisonment to the period already undergone by the learned Chief Judicial Magistrate, Fatehgarh Sahib on 7.1.2012. In the circumstances, it would be just and expedient to suspend the sentence of imprisonment of the applicant/appellant during the pendency of the appeal. Accordingly, the Crl. Misc. application is allowed and the sentence of imprisonment of the applicant/appellant Nishan Singh alias Shana shall, during the pendency of the appeal, remain suspended subject to his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Sangrur.