IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.142-DB of 2004
Date of Decision: 19.01.2009
Joginder Singh @ Munna
Appellant
Versus
State of Haryana
Respondent
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr.D.N.Ganeriwala, Advocate for the appellant
in Criminal Appeal No.142-DB of 2004
Mr.Atul Lakhanpal, Senior Advocate with
Mr.R.S.Chahal, Advocate for the appellant
in Criminal Appeal No.145-DB of 2004
Mr.K.S.Dhaliwal, Advocate for the appellant
in Criminal Appeal No.193-DB of 2004
Mr.S.S.Randhawa, Addl.A.G. Haryana for the State-respondent
....
Jasbir Singh, J.
This judgment will dispose of three appeals bearing Criminal
Appeal No.142-DB of 2004, Criminal Appeal No.145-DB and Criminal
Appeal No.193-DB of 2004, arising out of the common judgment and order
dated 17.12.2003 and 20.12.2003 respectively. To dictate order, facts are
being extracted from Criminal Appeal No.142-DB of 2004.
Appellant-Joginder Singh along with Bakshish Singh son of
Arjan Singh, Bhal Singh son of Singhara Singh, Bhupinder Singh son of
Prithvi Pal Singh, Partap Singh son of Arjun Singh, Balwinder son of
Darbara Singh and Darshan Lal son of Durga Dass, was an accused in FIR
No.166 dated 27.9.1995, recorded against them for commission of offences
punishable under Sections 15 and 25 of Narcotic Drugs and Psychotropic
Criminal Appeal No.142-DB of 2004 2
Substances Act, 1985 (in short, the Act). Vide the impugned judgment, the
appellant in this appeal- Joginder Singh and Bakshish Singh -appellant in
Criminal Appeal No.145-DB of 2004 were convicted for commission of an
offence under Section 15(c) of the Act. Bhal Singh – appellant in Criminal
Appeal No.193-DB of 2004 was convicted for commission of an offence
under Section 25 of the Act.
During trial, Bhupinder Singh, accused jumped bail and was
declared a proclaimed offender. Vide judgment, referred to above, the trial
Court, acquitted Partap Singh and Balwinder Singh of the charges framed
against them.
It is necessary to mention here that during pendency of criminal
proceedings, Darshan Lal – accused, on an application moved in this Court,
was ordered to be discharged.
The trial Court on 20.12.2003, sentenced the appellant Joginder
Singh and Bakshish Singh to undergo rigorous imprisonment for a period of
14 years and to pay a fine of Rs.1.50 lacs each, under Section 15(c) of the Act
with a default clause. Co-accused Bhal Singh was sentenced to undergo
rigorous imprisonment for a period of 14 years and to pay a fine of Rs.1.50
lacs for commission of an offence under Section 25 of the Act with a default
clause. Hence, these appeals.
Prosecution’s story, as noted by the trial Court in paragraph
No.2 of its judgment, reads thus:-
“In brief, the case of the prosecution is that on 26.9.1995 Daya
Kishan, the then DSP Tohana alongwith the staff was present at
the bridge of the canal in the area of the Mayond village for
Criminal Appeal No.142-DB of 2004 3checking and patrolling and he received a secret information
that accused Bhal Singh son of Shingara Singh has stocked
heavy quantity of Chura post in his Dhani and he is a habitual
in selling of the same, if a raid be conducted, the above accused
alongwith the remaining accused persons could be apprehended
while selling the chura post. On receiving this information,
Daya Kishan, DSP reduced the same into writing and sent the
same to the SHO Police Station Jakhal through a constable. He
also furnished a wireless message to SHO Police Station, Jakhal
for reaching in the Dhani of Bhal Singh in the area of village
Sandanwas. He also started for Dhani Bahl Singh and on
reaching Dhani Bhal Singh, he cordoned the premises of Bhal
Singh with the help of his staff. After sometime SI Raghubir SHO
Police Station, Jakhal also reached there along with his staff.
In the early morning Balbir Singh, Ex-Sarpanch was also
reached there and a raid was conducted in the Dhani and
during the raid, accused Joginder Singh, Bakshish Singh and
Bhupender Singh (since P.O.) were found sitting on a cot inside
the room of the Dhani and Partap Singh was found keeping a
watch around the Dhani and on further search some bags of
poppy husk covered with a black coloured tripoleen were found.
Daya Kishan, DSP being suspected that accused are habitual
offenders of dealing in contraband substances, served notices
under Section 50 of NDPS Act upon all the three accused
Bakshish Singh, Bhupender Singh and Joginder Singh to the
Criminal Appeal No.142-DB of 2004 4effect that being suspecting of some contraband substance, he
intend to take the search of their Dhani and if they so desire, a
Gazetted officer or a Magistrate can be called at the spot.
Notices were read over and explained to the accused persons,
who signed and thumb marked the same. As per their respective
replies, all the accused persons named above reposed
confidence in the police party.
3. Thereafter, on search of the bags, it was found that there
were 73 bags containing poppy husk stocked in the room. One
weighing scale alongwith some weights of 5 kg, 2 kg., 1 kg., 200
grams, 100 grams etc. were also found there. Daya Kishan,
DSP conducted the investigations and separated a sample of
200 grams from each of the bag and converted all the samples
into sealed parcel sealed with the seal of DK. On weighment of
the remainder, it was found that there was 44 kg. 800 grams
poppy straw in the each of the bag and the same was also
converted into sealed parcel. The entire case property
alongwith the sample, weighing scale, weights etc. were taken
into police possession as per separate seizure memo.
Thereafter, the I.O. recorded the statement of the witnesses at
the spot and prepared the rough site plan of the place of
recovery with correct marginal notes. All the three accused
named above were formally arrested.”
It is apparent from the facts extracted above, that the appellant –
Joginder Singh, co-accused Bakshish Singh and Bhupinder Singh were
Criminal Appeal No.142-DB of 2004 5
arrested at the spot. During interrogation, they intimated the investigating
officer that the contraband in question was supplied to them by Balwinder
Singh and Darshan Lal. Bhal Singh was also arrayed as an accused being
owner of Dhani, from where contraband was recovered. Partap Singh,
Darshan Lal and Balwinder Singh were not shown as accused in the final
report, put in Court, for trial. However, subsequent thereto, after re-
investigation, they were also shown as accused and a supplementary challan
was put in Court for their trial. All the accused were charge sheeted on
20.5.1999. As has been mentioned earlier, accused Darshan Lal was
discharged by this Court, by passing an order in Criminal Misc. No.998 of
1999 on 25.2.2002. Accordingly, his name was deleted from the list of
accused persons.
To the charge sheet, all the accused pleaded not guilty and
claimed trial. The prosecution produced nine witnesses and also brought on
record documentary evidence to prove its case. On closure of the
prosecution’s evidence, separate statements of all the accused were recorded
under Section 313 Cr.P.C. Incriminating material existing on record was put
to them, which they denied, pleaded innocence and false implication.
However, they led no evidence in defence.
The trial Court on appraisal of evidence on record, acquitted
Partap Singh and Balwinder Singh accused, however, appellant Joginder
Singh, co-accused Bakshish Singh and Bhal Singh were held guilty. They
were convicted and sentenced vide judgment, under challenge, as mentioned
in earlier part of this order.
Criminal Appeal No.142-DB of 2004 6
Counsel for the appellant Shri .D.N.Ganeriwala, Advocate has
vehemently contended that there was non-compliance with the provisions of
Section 42(2) of the Act. Alleged secret information against the accused was
not reduced into writing and it was not forwarded to the superior officers. He
further argued that as per version of the prosecution, three accused, namely,
Joginder Singh, Bakshish Singh and Bhupinder Singh were found sitting in a
room from where 73 bags of poppy husk were recovered. The poppy husk
was lying covered under black polythene sheet. By making reference to the
statements made by the prosecution witnesses, he argued that one material
witness has stated that all the three, above named accused, were sitting on a
cot outside the room, which was owned by Bhal Singh. The appellant and his
co-accused, namely, Bakshish Singh has no relation with Bhal Singh. They
belong to different villages and were falsely implicated in this case. Their
conscious possession over the contraband was not proved. He further argued
that independent witness though joined, was not examined during trial. There
was delay of 15 days in sending sample of the contraband for chemical
examination. Sample impression of the seal on a paper was not created and
the seal, after use, was not handed over to the independent witness. He
further brought it to our notice that only one sample parcel was sent for
chemical examination. He further submitted that as per prosecution
evidence, raid was conducted at 8.00 AM on 26.9.1995.
Seizure memo was prepared at 8.40 AM. Counsel, Shri
Ganeriwala argued that within 40 minutes it would not have been possible for
the police party to separate 73 samples and weigh 73 bags of poppy husk. He
Criminal Appeal No.142-DB of 2004 7
argued that appeal be allowed, conviction and sentence awarded to the
appellants be set aside.
Shri K.S.Dhaliwal, who has put in appearance for the legal heirs
of the deceased Bhal Singh, argued that above said appellant-accused was not
available at the spot, the prosecution has failed to bring any evidence, worth
the name to prove that the room from where contraband was recovered was
his ownership. By making reference to Jamabandi (Ex.PB) and Khasra
Girdawari (Ex.PC), he argued that Bhal Singh was not owner of the property,
in dispute. He prayed that conviction awarded to above said accused be also
set aside.
First of all we will deal with the case of Joginder Singh and
Bakshish Singh, appellants. As per case of the prosecution when raid was
conducted in early hours of 26th of September 1995 at the Dhani (out house)
of Bhal Singh, above named accused along with Bhupinder Singh was found
sitting on a cot in the room from where 73 bags of poppy husk were
recovered. Admittedly, those bags were lying covered with a black polythene
sheet. On suspicion, notice was served upon the above said accused. PW6
SI Raghbir Singh has deposed that all the three accused were found sitting on
a cot outside the room from where contraband was recovered. PW6 named
above and PW7 Daya Krishan Bhardawaj, DSP (IO) have candidly admitted
that the above named accused do not have any connection with the said
Dhani or Bhal Singh, who was alleged to be the owner. It was further
admitted by them that family members of the inhabitants of Dhani were
present and they were doing their own work. It was further deposed by them
that they had not joined any other inhabitant of the Dhani in the investigation.
Criminal Appeal No.142-DB of 2004 8
It is further an admitted fact that Partap Singh was found doing the guard
duty near the Dhani, however, initially, neither he was arrested nor joined as
an accused. During re-investigation, supplementary challan was put against
him by naming him as one of the accused. Admittedly appellants were not
known to the police officials, how their identity was established, it has not
come on record. Independent witness was joined, however, not produced in
Court simply by stating that the witness was won over by the appellants. No
attempt was made by the police officials to know whether the appellants were
owners of the contraband in dispute and further that how it was transported to
and had come to the place of recovery. Bhupinder Singh (PO) is resident of
Sirsa, Joginder Singh appellant is resident of Suba Khera and Bakshish Singh
is resident of village Rupanwali present Dharsul Khurd. They were not
related to Bhal Singh. Under these circumstances, their conscious possession
over the contraband in dispute cannot be presumed. Under similar
circumstances, their Lordships of the Supreme Court in State of Punjab v.
Balkar Singh and another ((2004) 3 SCC 582, have noticed as under:-
“We heard the counsel for the appellant. The High Court
by the impugned judgment stated that the prosecution failed to
prove that these respondents were in conscious possession of
the poppy husk recovered by the police. The evidence by the
prosecution consisted of the testimony of PW1 Balbir Singh and
PW2 ASI Jarnail Singh. Both these witnesses deposed that they
found the respondents sitting on the bags of poppy husk. The
recovery was effected from a field in Village Lohgarh. The
respondents belonged to different villages. The respondent
Criminal Appeal No.142-DB of 2004 9Balkar Singh is a resident of village Bira Bedi in District Hisar
while respondent Munish Chand is a resident of Farukhabad.
The police did not make any investigation as to how these 100
bags of poppy husk were transported to the place of incident.
They also did not adduce any evidence to show the ownership of
the poppy husk. The presence of the respondents at the place
from where the bags of poppy husk were recovered itself was
taken as possession of these bags by the police. In fairness, the
police should have conducted further investigation to prove that
these accused were really in possession of these articles. The
failure to give any satisfactory explanation by the accused for
being present on that place itself does not prove that they were
in possession of these articles. Though the respondents raised a
plea before the Sessions Court, the same was not considered by
the Sessions Judge in the manner in which it should have been
considered. We do not think that the High Court erred in
holding that there was no evidence to prove that the respondents
were in conscious possession of the poppy husk recovered by the
police. The prosecution failed to discharge its obligation to
prove the possession of the poppy husk by the respondents. We
do not find any infirmity in the judgment passed by the High
Court.”
Similarly, in Avtar Singh and others v. State of Punjab, (2002) 7
Supreme Court Cases 419, it was held that merely because some accused was
found sitting on the bags containing contraband, in the absence of proof of
Criminal Appeal No.142-DB of 2004 10
anything more, that accused cannot be presumed to be in possession of the
contraband. A Full Bench of this Court in Kashmir Singh versus State of
Punjab, 2006(2) RCR (Criminal) 477, has specifically held that to raise
presumption against an accused under the Act, it is necessary that a specific
question be put to the accused regarding his conscious possession of the
contraband when recording statement under Section 313 Cr.P.C. In the
present case, no such question appears to have been put to the appellants
when their statements were recorded as above. The facts of the case are such
that reasonable presumption under Sections 35 and 54 of the Act could not
have been raised against the appellants to convict them.
Furthermore, it has come on record that neither the investigating
officer Daya Krishan Bhardawaj DSP (PW7) nor SI Raghbir Singh (PW6)
have stated that sample impression of the seal used was prepared at the time
of recovery. This fact also does not find any mention in the recovery memo
(Ex.PL). Malkhana Head Constable Bani Singh in his affidavit (Ex.PD) has
no where stated that any sample of seal impression was deposited with him.
Similarly, no mention of above said seal impression found in Ex.PE affidavit
of Constable Rai Singh, who has deposited sample of contraband in Forensic
Science Laboratory. Investigating Officer states that seal, after use was
handed over to independent witness, however, PW6 Raghbir Singh states tha
seal after use was handed over to him. To the contrary, report of Forensic
Science Laboratory (Ex.PV) indicates that specimen of the seal was handed
over in the laboratory for verification, who created that sample impression,
how reached at the Forensic Science Laboratory, is a complete mystery.
Above said facts create a hole in the story of the prosecution.
Criminal Appeal No.142-DB of 2004 11
Contention of counsel for the appellant is correct that sample of
contraband was deposited with the Forensic Science Laboratory after a gap of
about 15 days. Under normal circumstances, unless prejudice to the accused
is proved, delayed deposit of sample may not be very relevant but in the
present case, facts are such, that the above said fact, we feel, is very
important to decide culpability of the appellants. A Division Bench of this
Court, in Parminder Singh v. State of Haryana, 2006(4) RCR (Criminal) 495,
has held that delay of 25 days in depositing sample parcels in Forensic
Science Laboratory was fatal to the case of the prosecution. Bhal Singh had
died during pendency of this appeal.
Reading of affidavit of Mani Singh, Head Constable (Ex.PD)
shows that the sample parcels were deposited with him on 27.9.1995 whereas
the recovery was made on 26.9.1995. This witness further states that the
aforesaid samples of poppy husk along with specimen seal, were sent to
Forensic Science Laboratory through Rai Singh, Constable No.1564, whereas
Rai Singh, in his affidavit (Ex.PE) had categorically stated that he was
handed over only one parcel containing 250 grams of poppy husk sealed with
seal ‘DK’ on 21.5.1995. This witness further deposed that he has handed
over only one packet of poppy husk in the Forensic Science Laboratory.
This witness does not talk of sample of seal at all, whereas report made by
the Forensic Laboratory (Ex.PV) talks of 73 samples and seal also. Above
said facts are sufficient to create a doubt with regard to case of the
prosecution. Furthermore, as per deposition made by Investigating Officer,
Daya Krishan Bhardawaj, DSP (PW7) he had cordoned off Dhani in question
at about 12 at night. SI Raghbir Singh (PW6) also reached at the spot after
Criminal Appeal No.142-DB of 2004 12
some time. However, raid was conducted only at 8.00 AM in the morning.
Why the police party continued to wait for 8 hours is very surprising. Balkar
Singh, an independent witness arrived at the spot at about 7/8 AM. Notices
to the accused were served thereafter. Recovery memo was prepared at 8.40
AM. During this period of about one hour, this Court feels that it was not
possible for the police party to weigh 73 bags of poppy husk (only one
weighing scale was available) and separate 73 sample parcels from it. It
appears that raid was conducted during night and with a view to ward off
rigor of Section 42 of the Act, story was propagated that after cordoning off
the area at about 12 noon in the night, raid was conducted between 7 to 8 in
the morning.
So far as Bhal Singh, appellant is concerned, he was not arrested
at the spot. Secret information was received by PW7 Daya Krishan
Bhardawaj, DSP that above said Bhal Singh has kept contraband in his out
house, on raid the same can be recovered. Admittedly, Bhal Sinhg was not
found present at the spot. It has come on record that Bhal Singh has three
sons, who are married. It was specifically admitted by PW6 and PW7 that
other inhabitants of the Dhani were available at the spot, however, they were
not associated in the investigation. None out of them was confronted as to
how huge quantity of contraband was lying from where it was recovered.
PW7 has specifically admitted that ’till the time investigation remained with
him he could not collect proof regarding ownership of Dhani to be of Bhal
Singh.’ Similarly, PW3 Inspector Rajender Singh, who has partly
investigated the case, has stated that there was no other evidence against Bhal
Singh except the statements of witnesses already recorded by Daya Krishan
Criminal Appeal No.142-DB of 2004 13
Bhardawaj, DSP. To prove ownership of Dhani, the prosecution has
produced Bhupinder Singh, Patwari as PW1. His examination in chief reads
thus:-
“I have brought the summoned record. The site plan
Ex.PA was drawn by me. This site plan is for the Dhani of Bhal
Singh and others. Its marginal notes are in my hand and they
are true to the spot. It was prepared be me in the presence of
Balbir Singh, Ex. Sarpanch of village Sadhanwas. Ex.PB is the
copy of Jamabandi for the year 1990-91. Ex.PC is the copy of
khasra girdawari for the crops from kharif 94 to kharif 95.”
This witness has admitted that Bhal Singh has three sons and
probably all of them are married. Prosecution’s allegation that Dhani belongs
to Bhal Singh is belied when we look into the Jamabandi (Ex.PB) and Khasra
Girdawari (Ex.PC), brought on record by PW1. In above said documents in
the column of ownership, Bhal Singh’s name does not figure. In the column
of cultivation, he has been shown in cultivation to the extent of 428th share in
the total property. In both the documents, there is no entry that in the khasra
nos. given therein, there exists any construction on any part of the land.
In view of above, we feel that conviction of Bhal Singh, by
invoking provisions of Section 25 of the Act, was not justified. We are of the
opinion that the prosecution has failed to prove guilt of all the three
appellants beyond a shadow of doubt accordingly, we allow all the three
appeals, set aside conviction and sentence awarded to the appellants.
(Jasbir Singh)
Judge
Criminal Appeal No.142-DB of 2004 14
19.1.2009 (Jora Singh)
gk Judge