Crl. Appeal No. 1390-SB of 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : Crl. Appeal No. 1390-SB of 2004
Date of Decision : November 04, 2009
Gulzar Singh .... Appellant
Vs.
State of Punjab .... Respondent
CORAM : HON’BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. K. S. Dhaliwal, Advocate
with Mr. Baljinder Singh, Advocate
for the appellant.
Mr. Gaurav Garg Dhuriwala, AAG, Punjab.
* * *
L. N. MITTAL, J. (Oral) :
By preferring this appeal, Gulzar Singh has assailed his
conviction and sentence ordered by learned Judge, Special Court, Patiala,
vide judgment and order dated 21.04.2004. The appellant stands convicted
under Section 15 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (in short – the Act) in FIR No.260 dated 06.10.1997, registered at
Police Station Samana, District Patiala and has been sentenced to undergo
rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- and in
default of payment of fine, to undergo further rigorous imprisonment for six
months. Mehal Singh and Balkar Singh, who were also tried along with the
appellant Gulzar Singh, have however been acquitted by the trial Judge.
Crl. Appeal No. 1390-SB of 2004 2
Prosecution case, in nut-shell, is as under :-
On 06.10.1997, police party headed by Inspector Devinder
Singh – Incharge CIA Staff, Samana and comprised of ASI Mohinder Singh
and other police officials, was present at Sehajpura Chowk, Samana in
government vehicle (TATA 407) driven by Constable Nathu Ram, for crime
detection. ASI Bir Singh and two other police officials of Police Station
Samana joined the aforesaid party. Meanwhile, Didar Singh Sarpanch of
Village Acharal Khurd also came there. A little while thereafter, secret
information was received that Gulzar Singh appellant, Mehal Singh and
Balkar Singh were shifting poppy husk to the dera of Gulzar Singh and on
raid, poppy husk in large quantity could be recovered. On this information,
Ruqa (Ex.P-M) was sent to Police Station Samana, where on its basis, FIR
Ex.P-M/1 was recorded. The police party along with Didar Singh
proceeded to the dera of Gulzar Singh. Intimation was also sent to Pritpal
Singh Thind – Deputy Superintendent of Police (DSP), Samana, who also
reached the spot. All the three accused were found digging a pit in the field
of Gulzar Singh to conceal poppy husk. Accused Balkar Singh and Mehal
Singh fled away, whereas Gulzar Singh appellant was apprehended at the
spot. Vide Memo Ex.P-C, Gulzar Singh agreed to search being conducted
in the presence of DSP Pritpal Singh Thind. There were lying 15 jute bags
at the spot in the field of Gulzar Singh. On search, the bags were found to
contain poppy husk. All the bags were emptied to make heap of poppy
husk. After mixing the same, sample of poppy husk weighing 250 grams
was drawn and sealed into parcel. Remaining poppy husk was put in the
same 15 bags. Poppy husk in each bag weighed 35 kilograms. The sample
parcel and the bags were sealed with seal bearing impression `PPS’ of DSP
Pritpal Singh Thind. Chit of specimen seal impression was also prepared.
Case property was seized by the police vide memo Ex.P-D. On
interrogation, the appellant made disclosure statement Ex.P-E that he had
concealed five bags of poppy husk in his paddy field and could get the same
Crl. Appeal No. 1390-SB of 2004 3
recovered and nobody else was aware of it. Pursuant to disclosure
statement, the appellant got recovered five bags of poppy husk. Same
procedure was repeated. Sample of poppy husk weighing 250 grams was
seized from the heap of poppy husk of these five bags. Remaining poppy
husk was put in the same bags. Poppy husk in each bag weighed 35
kilograms. The sample and the bags were sealed with same seal impression
and were seized vide memo Ex.P-F. Separate chit of specimen seal
impression was also prepared. Seal after use was retained by Inspector
Devinder Singh. All the aforesaid documents were attested by Sarpanch
Didar Singh, ASI Mohinder Singh, ASI Bir Singh and DSP Pritpal Singh
Thind. Statements of witnesses were recorded. Rough site plan Ex.P-N
depicting both the places of recovery was prepared. Gulzar Singh appellant
was arrested. On reaching Police Station, case property was deposited with
MHC Gurdev Singh. On the next day, case property was produced before
Sub Divisional Judicial Magistrate, Samana along with application Ex.P-O.
Learned Magistrate, after checking the case property with seals intact,
himself signed the sample parcels and returned the case property for being
deposited in Malkhana, which was accordingly deposited.
On 09.10.1997, Balkar Singh and Mehal Singh were arrested,
on being produced by Labh Singh and Gian Singh respectively. Mehal
Singh, after making disclosure statement (Ex.P-H), got recovered one bag of
poppy husk.
On completion of investigation, Samana police presented report
under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.)
for prosecution of all the three accused.
Charge under Section 15 of the Act was framed against all the
three accused. They pleaded not guilty and claimed trial.
To prove its case, the prosecution examined five witnesses.
Constable Raghbir Singh (PW-1) and MHC Gurdev Singh (PW-2) being
formal witnesses, tendered their respective affidavits Ex.P-A and Ex.P-B to
Crl. Appeal No. 1390-SB of 2004 4
prove that the case property was not tampered with. DSP Pritpal Singh
Thind (PW-3), Inspector Devinder Singh (PW-4) and ASI Mohinder Singh
(PW-5) broadly stated according to the prosecution version about recovery
of contraband poppy husk from the accused. Reports of Chemical Examiner
Ex.P-R, Ex.P-S and Ex.P-T were also tendered in evidence to prove that the
samples were of poppy husk. PW Didar Singh was given up as won over by
the accused . Other witnesses were given up as unnecessary.
Accused in their statements under Section 313 Cr.P.C. denied
all the incriminating circumstances appearing against them in the
prosecution evidence and claimed to be innocent. Appellant Gulzar Singh
alleged that he is resident of Village Dhanori and has Ration Card, Voter
Identity Card and land in that village. He was picked up by the police from
there in the presence of Sarpanch Gurdeep Singh and other respectables.
In defence, the accused examined two witnesses. Gurdeep
Singh Sarpanch (DW-1) broadly supported the version pleaded by the
appellant. Head Constable Dharam Pal (DW-2) proved entries Ex.D-3 and
Ex.D-4 of Register No.19 i.e. Malkhana Register. Copy of Jamabandi
Ex.D-1 and copy of Voter Identity Card Ex.D-2 were also tendered in
evidence.
Learned trial Judge, vide impugned judgment dated
21.04.2004, convicted Gulzar Singh under Section 15 of the Act, but
acquitted Mehal Singh and Balkar Singh. Vide order of even date, the trial
Judge sentenced the appellant as already noticed in the opening part of this
judgment. Feeling aggrieved, Gulzar Singh has preferred this appeal.
I have heard learned counsel for the parties and perused the
case file.
Huge quantity of contraband poppy husk has been recovered in
the case. The appellant was apprehended at the spot. All the prosecution
witnesses have broadly supported the prosecution case. There is no reason
why the police would implicate the appellant in a false case by planting
Crl. Appeal No. 1390-SB of 2004 5
such huge quantity of poppy husk. Even the appellant in his statement
under Section 313 Cr.P.C., or in cross-examination of prosecution
witnesses, has not stated or suggested any reason for his false implication.
Statements of prosecution witnesses inspire confidence. Material witnesses
DSP Pritpal Singh Thind (PW-3), Inspector Devinder Singh (PW-4) and
ASI Mohinder Singh (PW-5) were subjected to very lengthy and searching
cross-examination, but they have stood the test of cross-examination. The
prosecution evidence is thus sufficient to prove the guilt of the appellant.
Learned counsel for the appellant contended that according to
Inspector Devinder Singh (PW-4), they first went to the dera of the
appellant and then to the field, from where 15 bags of poppy husk were
recovered, but perusal of site plan Ex.P-N reveals that the only way to dera
was from near the place of said recovery and the police party would not
have, therefore, gone to the dera and would have stopped at the place of
alleged recovery on way to dera. The contention cannot be accepted being
devoid of any substance. No question was put to Inspector Devinder Singh
or any other prosecution witness in cross-examination that the only way to
the dera of the appellant was from near the place of aforesaid recovery, nor
the witnesses were put any question as to why they did not stop at the place
of recovery on way to the dera of the appellant. In this view of the matter,
the aforesaid contention raised by learned counsel for the appellant is
untenable. On the other hand, learned State counsel pointed out that secret
information was to the effect that poppy husk was being shifted to the dera
of the appellant and for this reason, the police party went to the dera of the
appellant and on learning from there that the appellant was in the field, the
police party went to the field. Consequently, it cannot be said that there was
any unnatural conduct of the police party in firstly going to the dera of the
appellant and then going to the field, from where the recovery was effected
and there is no discrepancy in the prosecution case on this account.
Learned counsel for the appellant next argued that there is no
Crl. Appeal No. 1390-SB of 2004 6
evidence to depict that the appellant was owner or in possession of the land,
from where recovery was effected and consequently, appellant could not be
said to be in conscious possession of the contraband poppy husk. To
strengthen this argument, it was contended that no statement of owner of the
land or of Patwari was recorded to the effect that the field, from where 15
bags of poppy husk were recovered, was on lease with the appellant, as
alleged by the prosecution, nor any revenue record has been produced in
evidence to establish this fact. The contention, although apparently
attractive, cannot be accepted. The appellant was digging a pit in the field.
Fifteen bags of poppy husk were lying there. Appellant’s two companions,
who were present with him at the spot, fled away on arrival of the police
party, but the police was successful in apprehending the appellant at the
spot. There is statement of Inspector Devinder Singh (PW-4) that the field,
from which 15 bags of poppy husk were recovered, was on lease with the
appellant. There is no rebuttal of this evidence. Moreover, the appellant,
after making disclosure statement, got recovered another five bags of poppy
husk from the nearby filed. It would show that the appellant was in
possession of the fields, from which both recoveries were effected. Conduct
of the appellant and his companions would also show that they were in
conscious possession of the contraband poppy husk. The appellant has also
not explained his presence at the spot. As already noticed herein above,
there is also no reason why the police party would pick up the appellant
from another Village Dhanori and would plant the poppy husk on him.
Learned counsel for the appellant next contended that DSP
Pritpal Singh Thind was not Gazetted Officer, as conceded by him. The
witness has stated that he was ad hoc DSP and his pay was of the rank of
Inspector, which was his substantive rank and no gazette notification had
been issued in his name. However, this contention has no bearing on the
merits of the instant case because presence of a Gazetted Officer was not
required by any provision of the Act.
Crl. Appeal No. 1390-SB of 2004 7
Learned counsel for the appellant contended that Section 42 of
the Act has not been complied with, as secret information, which was
reduced into writing in the form of Ruqa Ex.P-M sent to Police Station for
registration of the case, was not sent to superior superior officer, as required
by mandatory provision of Section 42 (2) of the Act. This contention is also
bereft of any merit. Firstly, Section 42 of the Act is not applicable to the
instant case. Section 42 of the Act applies where any search and seizure is
carried out in any building, conveyance or enclosed place. In the instant
case, however, search and seizure was carried out in open field and
therefore, Section 42 of the Act is not applicable to the instant case.
Learned counsel for the appellant submitted that the police party first went
to the dera of the appellant, which is a building and therefore, Section 42 of
the Act is applicable. This contention is also unsustainable because no
search or seizure was carried out at the dera. The search and seizure was
carried out in open field and Section 42 of the Act is, therefore, not
applicable. Moreover, copy of the FIR, registered on the basis of secret
information reduced into writing in the form of Ruqa Ex.P-M, was sent to
Illaqa Magistrate and superior police officers. Copy of FIR Ex.P-M/1
reached Sub Divisional Judicial Magistrate, Samana on 07.10.1997 at 10:05
A.M. i.e. within less than 24 hours of the recording of secret information,
whereas Section 42 allows a period of 72 days for sending the information
to the superior officer. Thus, Section 42 of the Act was also complied with
in the instant case.
Learned counsel for the appellant also argued that disclosure
statement Ex.P-E , pursuant to which five bags of poppy husk were
allegedly recovered, has not been signed by the appellant. However,
learned counsel for the appellant was unable to refer to any provision of law
or precedent requiring that disclosure statement has to be signed by the
accused making the same. Consequently, non-signing of the disclosure
statement by the appellant has no adverse bearing on the prosecution case.
Crl. Appeal No. 1390-SB of 2004 8
Learned counsel for the appellant pointed out that DSP Pritpal
Singh Thind stated that the appellant had signed the disclosure statement,
but he was confronted with disclosure statement Ex.P-E, which has not been
signed by the appellant. It was also pointed out that Inspector Devinder
Singh (PW-4) stated that he produced the case property before Illaqa
Magistrate at Samana on 07.10.1997 by making request Ex.P-O and learned
Magistrate passed order Ex.P-O/1 on the said application, but order Ex.P-
O/1 reveals that the case property was produced by ASI Mohinder Singh
and not by Inspector Devinder Singh. However, on the basis of these two
minor discrepancies, which do not go to the root of the case, prosecution
case cannot be doubted and the prosecution evidence, which is otherwise
reliable, cannot be discarded. Order Ex.P-O/1 passed by learned Illaqa
Magistrate reveals that the case property was actually produced before
Illaqa Magistrate, who found the seals intact and also signed the sample
parcels. It therefore becomes immaterial as to whether case property was
produced before Illaqa Magistrate by Inspector Devinder Singh or by ASI
Mohinder Singh. Moreover, some contradictions are bound to occur even in
the statements of most truthful witnesses with passage of time. Parrot like
statements without any contradiction would be prone to suspicion being
artificial ones. In the instant case, statement of DSP Pritpal Singh Thind
(PW-3) was recorded on 23.10.2001 and 04.04.2003 and statement of
Inspector Devinder Singh (PW-4) was recorded on 04.04.2003 and
22.07.2003. Thus, first part of statement of DSP Pritpal Singh Thind was
recorded more than four years after the recovery and second part of his
statement was recorded 5½ years after the recovery. Similarly, first part of
statement of Inspector Devinder Singh was recorded 5½ years after the
recovery and second part of his statement was recorded after another three
months. Due to lapse of such long period also, some minor contradictions
were bound to occur in their statements. The said contradictions do not go
to the root or substratum of the case and do not shake the foundation of the
Crl. Appeal No. 1390-SB of 2004 9
prosecution case in any manner. Such minor contradictions cannot be given
undue importance.
Learned counsel for the appellant also submitted that five bags
of poppy husk were allegedly recovered from a place near the dera, where
the police had gone in the first instance, and therefore, the said recovery
allegedly at the instance of the appellant by making disclosure statement is
doubtful. This submission also cannot be accepted. Paddy crop was
standing in the field and therefore, from outside the dera, bags of poppy
husk lying in the field at some distance, could not have been visible. The
recovery was got effected by the appellant by making disclosure statement
including the statement that nobody else was aware of the said poppy husk.
The fact that the said recovery was effected from an open field also would
not show that the appellant was not in possession of the said contraband
poppy husk because poppy husk had been concealed there by the appellant
in the standing paddy crop and nobody else except the appellant was aware
of it. The place of said recovery being at a small distance from the dera of
the appellant, anybody else could not have concealed five bags of poppy
husk there.
Learned counsel for the appellant also argued that Didar Singh
independent witness has not been examined by the prosecution. However,
the said witness had to be given up because he had been won over by the
appellant. It is not uncommon that independent witnesses in such cases do
not support the prosecution case because they have no personal interest in
the case. On the other hand, by deposing against the accused, independent
witnesses apprehend incurring wrath and enmity of the accused. Moreover,
there is no reason to discard or disbelieve the statements of DSP Pritpal
Singh Thind, Inspector Devinder Singh and ASI Mohinder Singh. They had
no animus against the appellant to implicate him in a false case. Their
statements cannot be disbelieved or doubted merely because of their official
uniform, particularly because there is no allegation of any malice or hostile
Crl. Appeal No. 1390-SB of 2004 10
attitude on their part towards the appellant. The fact that seal after use was
not given to independent witness Didar Singh would also not adversely
effect the prosecution case in any manner. There is no requirement of any
law or precedent that seal after use should always be handed over to
independent witness only.
Learned counsel for the appellant also argued that the appellant
owns land in Village Dhanori, as revealed by copy of Jamabandi Ex.D-1
and is also listed as voter in the said village, as depicted by Voter Identity
Card ExD-2 and as also stated by Gurdeep Singh (DW-1). This contention
does not help the appellant in any manner. Copy of Jamabandi Ex.D-1 is
for the year 2000-01 i.e. 3-4 years after the recovery, whereas Voter Identity
Card Ex.D-2 is dated 23.08.2003 i.e. almost six years after the recovery.
So, these documents do not depict that even on the date of recovery i.e. on
06.10.1997, the appellant was resident of Village Dhanori. Oral statement
of Gurdeep Singh (DW-1) would not be sufficient to give a finding to this
effect. Moreover, even if the appellant was resident of Village Dhanori, it
would not mean that he could not be in possession of land in another
village.
For the reasons recorded herein above, I find that prosecution
has successfully proved the guilt of the appellant beyond reasonable doubt.
Acquittal of appellant’s co-accused Mehal Singh and Balkar Singh has no
bearing on the prosecution case against the appellant because the appellant
is not on parity with Mehal Singh and Balkar Singh. The appellant was
caught at the spot, whereas Mehal Singh and Balkar Singh had allegedly
escaped from the spot. Head Constable Ajaib Singh, who was in the police
party, had allegedly identified the two escaping persons as Mehal Singh and
Balkar Singh, but Head Constable Ajaib Singh was not examined as witness
and therefore, there was practically no evidence on record to prove that the
two persons, who had escaped from the spot, were Mehal Singh and Balkar
Singh. Consequently, acquittal of Mehal Singh and Balkar Singh does not
Crl. Appeal No. 1390-SB of 2004 11
adversely effect the prosecution case against the appellant. Conviction of
the appellant is well founded and is accordingly upheld. Sentence imposed
on the appellant also does not warrant reduction because only minimum
sentence provided for the offence has been imposed on the appellant. There
is, therefore, no merit in the instant appeal, which is accordingly dismissed.
The appellant, if on bail, shall surrender to his bail bonds or
shall be arrested to undergo the remainder of his sentence.
November 04, 2009 ( L. N. MITTAL ) monika JUDGE