Resham Singh vs State of Punjab

M. Jeyapaul, J.—Accused Resham Singh, Jagtar Singh, Paramjit Singh, Kulwant Singh, and Sohan Singh faced the trial before Special Court, Barnala, for the charge u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ''the NDPS Act''). Accused Jagtar Singh also faced the trial for the charge u/s 25 of the Arms Act. Accused Paramjit Singh, who was the owner of the truck allegedly involved in this case, was acquitted of the charge u/s 15 of the NDPS Act. But, accused Resham Singh, Kulwant Singh, Sohan Singh, and Jagtar Singh were convicted for offence u/s 15 of the NDPS Act and were sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of rupees one lakh each and in default of payment of fine, they were also directed to further undergo rigorous imprisonment for a period of two years each. Accused Jagtar Singh was also convicted for offence u/s 25 of the Arms Act. He was sentenced there under to undergo one year rigorous imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo a further period of two months. Both the sentences of accused Jagtar Singh are ordered to run concurrently.

Accused Resham Singh has preferred Crl. A. No. 1143-SB of 2008, challenging the conviction and sentence imposed for the offence u/s 15 of the NDPS Act. Accused Jagtar Singh has preferred Crl. A. No. 1330-SB of 2008, challenging the conviction and sentence imposed for the offence u/s 15 of the NDPS Act and also filed Crl. A. No. 1297-SB of 2008, challenging the conviction and sentence imposed for the offence u/s 25 of the Arms Act. Accused Kulwant Singh has filed Crl. A. No. 1029-SB of 2008 and accused Sohan Singh has filed Crl. A. No. 1145-SB of 2008, challenging the conviction and sentence imposed for the offence u/s 15 of the NDPS Act.

All the aforesaid five appeals have arisen out of the same judgment passed by the Special Court, Barnala. Therefore, all the five appeals were taken up for common disposal.

The brief story of the prosecution reads as follows:

a) PW1 SI Sukhdev Singh was on patrol duty alongwith police party at Thuliwal bus stand on 28.03.2003. He received secret information about the accused indulging in trafficking of poppy husk. Finding that the said information was reliable, a ruqua was sent to the police station for registration of a formal First Information Report (in short ''the FIR''). He proceeded alongwith police party to raid the place disclosed by the informer. One Kaka Singh was associated for the purpose of raid. The bridge of seepage drain was raided by the police party. Accused Jagtar Singh fled away with his truck. The back door of the truck was opened. There were two or three gunny bags in the truck. PW7 ASI Sampuran Singh identified accused Jagtar Singh who drove the truck. SI Sukhdev Singh alongwith the ASI Sampuran Singh apprehended the accused Kulwant Singh, Resham Singh and Sohan Singh alongwith three loaded bags as well as the tractor Sonalika. PW9 ASI Baljit Singh alongwith two other police officials gave a chase to the truck. PW9 returned with his companions empty handed. On interrogation, Resham Singh, Kulwant Singh, and Sohan Singh disclosed their names. They expressed their desire to get the search conducted by a gazetted officer. PW5 DSP Sushil Kumar was requested to come down to the place of occurrence. He being the gazetted officer gave a direction to make a search in his presence. The search led to the recovery of poppy husk. Three bags of poppy husk were recovered. Two samples weighing 250 gms from each of the bags were taken. The residue poppy husk in each of the bag weighed 40 kg. Separate parcel of samples and residue was prepared. On personal search of the aforesaid accused, some cash was recovered. On 08.04.2003, accused Jagtar Singh surrendered before the Court. With the permission of the Court, he was arrested in connection with the present case. On interrogation, he made disclosure statement. On 10.04.2003 based on the disclosure statement given by accused Jagtar Singh, one and half bags of poppy husk in his wheat field and one revolver of .455 bore alongwith 12 live cartridges were recovered. The case properties were produced before PW8/SHO Piara Singh. Having completed investigation, PW1 made final report as against all the accused.

b) In their respective statements u/s 313 Cr.P.C., the accused have contended that false recovery has been implanted upon them. No poppy husk was recovered from them. The Punjab Police registered various cases against the accused Resham Singh, but, he was acquitted in all the cases. He was declared as a sikh terrorist. They were implicated with the false case.

On the side of the defence, H.C. Jalaur Singh was examined as DW1, Kala Singh was examined as DW2, Jeon Singh was examined as DW3, Gurdas Singh was examined as DW4, and Constable Manjit Singh was examined as DW5. The judgments and orders relating to the cases booked against accused Resham Singh were marked as Ex.D2 to Ex.D13.

The trial Court having relied upon the recovery of material objects at the scene of occurrence, the arrest effected at the scene of occurrence itself and the recovery of material objects on the basis of disclosure statements given by accused Jagtar Singh returned a verdict of conviction as against the accused/Appellants.

Learned Counsel appearing for the Appellants would contend that the seal used by PW1 was reportedly entrusted to PW7 ASI Sampuran Singh. The seal of PW1 was not entrusted to the independent witness Kaka Singh. Further, there is a delay in sending the sample to the Forensic Science Laboratory. Therefore, there is every chance of tampering with the samples collected from the alleged poppy husk. The material objects were not sent to the judicial custody. Kaka Singh and Jeon Singh who were shown as independent witnesses for the recovery of material objects were not examined. The secret information received by PW1 was not intimated to the higher official as per Section 42(2) of the NDPS Act within three days. The story of the prosecution that a police party headed by ASI Baljit Singh (PW9) was not found to be credible. PW7 ASI Sampuran Singh could not have identified the driver as the truck which was parked in front of the police party sped away on seeing the police party. When official weapons were available with the police party, they could have very easily seized accused Jagtar Singh alongwith the vehicle. CFSL from was not prepared at the spot. Therefore, it is his submission that the accused/Appellants are entitled to acquittal.

Per contra, learned DAG appearing for the State would vehemently submit that the recovery of material objects from the possession of the accused/Appellants was established. Therefore, there is a presumption under Sections 35 and 54 of the NDPS Act with respect to the culpable mental state of the accused. The arrest of the accused at the spot cannot be doubted. Minor discrepancies in the evidence led in by the prosecution would not dislodge the case of the prosecution. There was no reason for the police, more especially PW5 DSP Sushil Kumar, to implicate the accused/Appellants falsely. Therefore, it is his submission that the trial Court has returned a considered decision which does not warrant interference.

Accused Resham Singh, Jagtar Singh and accused Paramjit Singh are sons of Maghar Singh. Accused Resham Singh has produced Ex.D2 to D13 to establish that he faced many criminal cases launched by the police, but all those cases ended in acquittal. Accused Resham Singh and Jagtar Singh have also set up a plea in their statements u/s 313 Code of Criminal Procedure that their parents were shot dead. In the above background of the case, the Court has to find whether offence u/s 15 of the NDPS Act was made out against accused Resham Singh, Kulwant Singh, Sohan Singh and offences u/s 15 of the NDPS Act and u/s 25 of the Arms Act were made out against the accused Jagtar Singh.

PW1 SI Sukhdev Singh has led the police party to the scene of occurrence armed with the secret information received by him. But quite unfortunately, he would depose that the secret information relating to the involvement of accused/Appellants in trafficking of narcotic substances was not reduced into writing. Nor had he passed on the secret information to his higher police official.

Section 42(2) of the NDPS Act mandates an officer, who takes down any information in writing, to send a copy thereof to his immediate official superior within 72 hours. Apart from the non compliance of the mandatory provisions u/s 42(2) of the NDPS Act, the conduct of PW1 in not reducing the secret information into writing and not passing on the secret information to his higher official, shakes the very foundation of the prosecution case.

Of course, it is submitted by the learned DAG appearing for the State that a ruqua was sent by PW1 to SI Darshan Singh for the purpose of registration of a formal First Information Report. He also referred to the involvement of the Deputy Superintendent of Police in the matter of search of the contrabands found in the possession of accused/Appellants and the involvement of SHO Piara Singh (PW8), who was entrusted with the properties recovered in this case.

It is to be noted that PW5 DSP Sushil Kumar was involved only in his capacity as a gazetted officer to oversee the search being conducted by police officials. Further PW5 DSP Sushil Kumar was not the immediate official superior of PW1. The fact that he was associated for the purpose of making a search of accused/Appellants would not dilute the obligation on the part of PW1 to send the information he received to his immediate official superior. It is found that PW8 Inspector/SHO Piara Singh was the official superior of PW1. He had also not spoken about the receipt of any information in his capacity as immediate official superior of PW1 relating to this case from PW1. Therefore, I find that the non compliance of the mandatory provisions u/s 42(2) of the NDPS Act proves fatal to the case of the prosecution.

A team of police officials had formed part of the police party headed by PW1. PW7 ASI Sampuran Singh would depose that official weapons were with the police party. The prosecution has come out with an unbelievable story that Jagtar Singh, who was found in the truck, sped away. PW9 ASI Baljit Singh who was deputed with other police officials to track down Jagtar Singh could not apprehend him alongwith the truck. There was no reason for not using the official weapons held by the police officials forming part of the police party. At least, they would have used the weapons to cripple the vehicle. PW7 has further deposed that the police party was virtually behind the truck. In such a case, Jagtar Singh could not have been identified by PW7 ASI Sampuran Singh. The evidence of PW1 and PW7 that the police party could not even stop the vehicle inspite of the fact that they were armed with official weapons does not appear to be natural and trustworthy. The very foundation of the case of the prosecution is found to be shaky.

As per PW1 Sukhdev Singh, he had entrusted the seal used by him to PW4 ASI Nazir Singh, whereas PW4 ASI Nazir Singh would depose that seal of PW1 was retained by PW1 himself. It is not as if no independent witness was associated during the course of recovery of material. In fact Kaka Singh was associated by PW1 during the course of recovery of material objects. But unfortunately, the seal of PW1 was not entrusted to Kaka Singh.

In the aforesaid context, the Court will have to see whether there is any delay in sending the samples to the Forensic Science Laboratory. It is also relevant to note that none of the witnesses would speak to the fact that the material objects recovered in this case were produced before the Court concerned during the course of trial. Therefore, the entire contrabands were lying only in the police malkhana. The seal used by PW1 remained with him. One set of material objects were recovered on 28.03.2003 and the other set of material objects were recovered on 10.04.2003. Only after about twelve days, the material objects were dispatched to the Forensic Science Laboratory for examination. No explanation is forthcoming as to why such a delay had occasioned in sending the samples for examination by the FSL. Of course, every delay in not sending the sample in time would not go to the root of the case. But, in the instant case, the Court has to approach the delay of 12 days in sending the sample for examination in the background of the fact that the seal used by PW1 for affixing on the sample remained with himself. There is every possibility for tampering with the seal and implanting any new material. The above facts and circumstances create a doubt in the mind of the Court as to the genuineness of the sample sent for examination by the FSL.

As far recovery made at the instance of accused Jagtar Singh, I find that the revolver and one and half bags of poppy husk were recovered in the open field. Though, it is contended that the field belongs to the accused Jagtar Singh, the prosecution has not produced any material to establish that the said field, where the above recovery was made, belongs to Jagtar Singh. If the said field was not owned by Jagtar Singh, there was no reason for him to keep the revolver as well as one and half bags of poppy husk for about 18 days in the open field accessible to all. The above facts and circumstances would go to show that there is every chance of implanting such material objects in the open field in order to stage manage recovery.

Kaka Singh and Jeon Singh, the two independent witnesses for the recovery, were not examined by the prosecution on the ground that they were won over by the defence. In fact, they were examined on the side of the defence. They in fact supported the case of the defence. At any rate, lack of support on the part of the independent witnesses, namely, Kaka Singh and Jeon Singh to the case of the prosecution further weakens the case. Three blood brothers have been implicated in this case as though they were involved in trafficking of narcotic substances. Many cases have been booked as against accused Resham Singh and those cases had ended in acquittal as found from Ex.D2 to Ex.D13.

It is true that when possession of narcotic substance is established culpable mental state of the accused and commission of offence under the Narcotic Drugs and Psychotropic Substances Act could be presumed when no satisfactory explanation was forthcoming from the accused as per Sections 35 and 54 of the NDPS Act. In the instant case, I find that the very foundation of the case was not believable. The prosecution has come out with an artificial version that the police party armed with official weapons could not even intercept the vehicle driven by Jagtar Singh. The sample drawn from the poppy husk does not inspire confidence. The mandatory provisions u/s 42(2) of the NDPS Act was also not followed by PW1. Therefore, the question of drawing any presumption u/s 35 or u/s 54 does not arise for consideration.

In view of the above, I find that the prosecution has miserably failed to establish the charges framed as against the Appellants. But, the trial Court has mis-appreciated the evidence. Therefore, the Appellants are entitled to acquittal. Accused Resham Singh, accused Kulwant Singh and accused Sohan Singh are acquitted of the charge u/s 15 of the NDPS Act and accused Jagtar Singh is acquitted of the charges u/s 15 of the NDPS Act and u/s 25 of the Arms Act. As a result of which, the judgment of conviction recorded and sentence imposed by the trial Court as against the aforesaid accused/Appellants is set aside and all the appeals filed by the Appellants are allowed. The Appellants are directed to be set at liberty forthwith, if they are not required in any other case.