Surinder Singh vs State of Punjab

K.S. Kumaran, J.

AppellantSurinder Singh, tried for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) in Sessions Case No. 57 of 10.5.1993 by the Additional Sessions Judge Sangrur was accordingly convicted and sentenced to undergo rigorous imprisonment for ten years, pay a fine of Rs. one lac and in default to undergo further rigorous imprisonment for one year. The accused Surinder Singh has come forward with this appeal.

The case of the prosecution is that on 9.11.1992 at about 7.00 PM when Jangir Singh, ASI, of Police Station, Dirba alongwith Head ConstableBalihar Singh, ConstableNirmal Singh, ConstableKrishan Kumar and others, was near a bridge of sem nallah in the area of village Toor Banjara on G.T. Road on patrol duty, Bant Singh met them and was talking with them. At that time, a truck was coming at a very high speed from the side of Dirba. On suspicion, ASIJangir Singh stopped the truck but, the truck driverSurinder Singh alias Chhinda, (the accusedappellant) jumped out of the truck and ran away. He was overpowered and questioned. ASI Jangir Singh informed him that he was to search the truck and asked him whether he wanted the search to be conducted in the presence of a gazetted officer/magistrate. Accusedappellant replied that they could make the search and his statement analyst (Ex.PA) was recorded. ASI Jangir Singh searched the truck bearing registration No. HR112181 after removing the tarpaulin. There were 40 gunny bags each containing 35 kgs. of poppy husk. The poppy husk in these 40 gunny bags was put on the tarpaulin in a heap, mixed and out of the same, two samples of 250 gms. each, were separately taken into parcels. The remaining poppy husk was put into 39 gunny bags each weighing 35 kgs and one weighing 34 kgs, of poppy husk. They were sealed and the seal was handed over to Bant Singh. The samples of poppy husk, the 40 gunny bags of poppy husk, the rope, the tarpaulin and the truck were taken into possession under Memo Ex.PB.

To establish its case, the prosecution examined ASI Jangir Singh (P.W.1), the then Head ConstableBalihar Singh (P.W.4). Sawaran Singh (P.W. 3) apart from marking the affidavits of MHC Bhupinder Singh (Ex.PH) and Constable Kishen Kumar (Ex.PJ) and report of the Chemical (Ex.PG). After analysing the evidence, both oral and documentary, the learned Addl. Sessions Judge convicted and sentenced the accused as mentioned already.

The question is whether the prosecution has been able to establish the guilt of the accused appellant beyond reasonable doubt.

Of course, P.W. 1Jangir Singh and PW 4Balihar Singh have spoken to about the case of the prosecution regarding the occurrence and the learned Addl. Sessions Judge has also very much relied upon their evidence and observed that no materials could be brought on record to discredit their testimony, that their evidence is consistent, inspiring confidence and is also corroborated by the evidence of the SubInspector Sawaran Singh PW, the affidavits of MHC Bhupinder Singh and Constable Krishen Kumar and the report of the Chemical Examiner.

The main contention of the accused/appellant is that the very occurrence which is alleged to have taken place on 9.11.1992, the alleged arrest, and recovery of poppy husk from him are not at all true. The accused/appellant contends that on 2.10.1992 itself, he along with the truck in question was taken into custody by the police for the purpose of patrolling, that when the owner of the truckJoginder Singh objected to the same and even moved an application to the higher authorities and sent telegrams, the police were annoyed and have foisted this case on him. The accused/appellant also contends that on 30.10.1992 itself, the owner of the vehicle, namely Joginder Singh moved an application before the Sessions Judge Sangrur for releasing the accused/appellant on bail in case of arrest, making a specific allegation that the truck bearing registration No. HR112181 along with the accused/appellant herein was in police custody from 2.10.1992 at Police Station Dirba and since then the police personnel were using the same for patrolling. The accused/appellant also contends that the owner had also alleged that when the owner requested the police to release the truck and the driver, they threatened to implicate the owner and the accused/appellant in a false case. The accused appellant has also mentioned in his statement under Section 313 Cr.P.C. about his having been taken into custody on 2.10.1992 along with a truck, the objection by the owner leading to the annoyance of the police and implicating him in this false case.

The bail application which came up for orders on 30.10.1992 before the Sessions Judge Sangrur has been marked Ex.DA before the trial court. Suggestions were made both to P.W. 1 Jangir Singh and P.W. 4Balihar Singh on these lines. It was denied by P.W. 1Jangir Singh that the truck in question was taken into custody on 2.10.1992 and was in their possession till 9.11.1992 for patrolling and also that Joginder Singh, the owner of the truck had asked the police to release the truck from their custody. He denied knowledge if an application was moved in the Court of Sessions on 30.10.1992 for the release of the accused Surinder Singh. Similar suggestion to P.W. 4Balihar Singh was denied and he also claimed ignorance of the application moved for granting anticipatory bail to the accused/appellant in the Court of Sessions, Sangrur, on 30.10.1992. But it has been clearly proved by Ex.DA that an application had been moved before the Sessions Court Sangrur on 30.10.92 itself specifically alleging that the vehicle in question and the driver, namely, the accused/appellant herein were in the custody of the police attached to Police Station Dirba from 2.10.92 and that when Joginder Singh, the owner, wanted the vehicle and the driver to be released, the police threatened to foist a case on them. This is long before the alleged occurrence on 9.11.1992. This aspect of the case of the defence has not been considered by the learned Addl. Sessions Judge. This fact along with certain other inconsistencies and infirmities, which I have pointed out below, clearly goes to show that the case of the prosecution is not true.

Jangir Singh PW1 as well as Balihar Singh PW4 stated in their evidence that on 9.11.1992 they were on patrol duty, and that they were in a white private Ambassador car at that time. But both of them were unable to give either the registration No. of the car or the name of its driver. Normally this may not be a material factor but in the circumstances of the case where it is alleged that vehicle and the accused/appellant have been in custody of the police from 2.10.1992 to 9.11.1992 and this case was foisted on the accused/appellant, the fact that both PWs. 1 and 4 are not able to say the registration number of the car by which they were doing the patrolling at the time of the alleged occurrence or the name of the driver, certainly affects the case of the prosecution and goes to support the contention of the defence. Further, according to the case of the prosecution, at the time of the occurrence, Bant Singh, an independent witness, was talking to P.W.1 and others and had even attested some of the documents. But yet this witness was not examined and was given up by merely stating that he had been won over. The fact that the independent witness has not been examined on the mere allegation that he has been own over by the accused also go as against the prosecution. The prosecution cannot by making such a statement resile from their duty to examine an independent witness who was available to them.

There are certain other infirmities also in the case of the prosecution. According to the prosecution there were 40 gunny bags, each containing 35 kgs. of poppy husk, in the truck in question, that they were all heaped in the tarpaulin, mixed and two samples of 250 gms. each were separately taken and the rest was made into 39 bags of 35 kgs. each and one bag weighing 34 kg. This is what PW.1Jangir Singh stated in his evidence. But P.W. 4Balihar Singh who was allegedly accompanying P.W. 1 at the time of occurrence, stated in his evidence that two samples, each weighing 250 gms. were taken from each gunny bag. This is clearly a variation from not only the evidence of P.W. 1 but also the prosecution case. When a witness who allegedly was present at the time of the alleged occurrence makes such a material change in the case of the prosecution, it affects the case of the prosecution in the circumstances of this case.

This apart, the recovery of poppy husk was allegedly made on 9.11.1992, but the same was sent for chemical examination on 16.11.1992 and was received by the chemical examiner only on 17.11.1992. This is seen from the report of the chemical examiner (Ex.PG). There is no explanation whatsoever for keeping the alleged contraband for such a long time with the police before it was sent for chemical examination. In this connection, it is also noteworthy that Jangir SinghPW.1 stated in his evidence in crossexamination that before the recovery in question, they had recovered 100 bags of poppy husk. Admittedly, the alleged contraband was not produced before the court in spite of the fact that the case was adjourned for want of case property even while P.W.4Balihar Singh was being examined. Even on the adjourned date, P.W. 4Balihar Singh stated that he had not seen the case property on that day in court. P.W.4 also admitted that even the truck was not in court on that day, and that he can identify the truck and the bags of poppy husk if shown to him. So, we find that not even the case property had been produced before the court although Exhibit marks had been assigned to the 40 gunny bags allegedly containing poppy husk. This is a very strange, improper, and unhealthy procedure adopted by the learned Addl. Sessions Judge and requires to be deplored. In a case of this sort under the NDPS Act, where the convicted person is liable to be sentenced to a minimum of ten years of imprisonment and a fine of Rs. one lac, to assign the exhibit marks to material objects which were not before the Court is an unhealthy practice, which the trial court should not have adopted. Such practice if adopted by other subordinate courts should be stopped forthwith. No court should assign exhibit mark to any material object which is not before the Court, and not identified by the person concerned. This deprives the defence also of a fair opportunity of cross examination as to the material object. This is especially so, when P.W. Jangir Singh stated that he had previously seized 100 bags of poppy husk. Such a practice adopted by the trial court will give the police an easy handle to foist cases on innocent persons. Normally, when the quantity of the contraband allegedly seized is stated to be heavy, it is believed that the chances of foisting a false case are less, but this is a case where we find that, in fact, a false case has been foisted upon the accused/appellant in spite of the alleged recovery of a heavy quantity of contraband. This is also a serious matter which goes to the root of the case of the prosecution in view of the circumstances pointed out by me.

The learned counsel for the appellants also contends that MHC Bhupinder Singh and Constable Kishan Kumar (whose affidavits were marked as Ex.PH and PJ. respectively), were not produced before the court for crossexamination by the accused and that also affects the case of the prosecution, since the prosecution had by marking the affidavits attempted to provide the link evidence. The learned counsel for the appellant contends that since these persons who have sworn to the affidavits have not been produced for cross examination, the accused/appellant has lost valuable right to put questions about the link evidence and, therefore, it must be held that the prosecution has failed to provide the link evidence also. This objection of the learned counsel for the appellant is also well taken and deserves acceptance.

Therefore, taking into consideration all these factors I find that the prosecution has not been able to establish the guilt of the accused at all. On the contrary, there is sufficient material to come to the conclusion that this case has been foisted on the accused/appellant.

This appeal is accordingly allowed, setting aside the conviction of and the sentence passed against the accused/applicant and he is ordered to be released.