Criminal Appeal No.1020-SB of 2003 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Crl. Misc. No.43409 of 2003 &
Crl. Misc. No.78754 of 2006 in
Criminal Appeal No.1020-SB of 2003
Date of Decision:03.09.2009
Ajit Singh and another
.....Appellants
Vs.
State of Punjab
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. S.S. Rana, Advocate for the appellants.
Mr. Arshvinder Singh, Deputy Advocate General, Punjab.
****
JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ order of sentence
dated 17.4.2003 rendered by the Court of learned Special Judge, Moga
whereby he convicted and sentenced the accused Ajit Singh as well as
Mewa Singh (since deceased) to undergo rigorous imprisonment for ten
years and to pay a fine of Rs.1 lac each under Section 15 of the Narcotic
Durgs and Psychotropic Substances Act, 1985 (for brevity, `the Act’) and in
default of payment of fine, the defaulter to further undergo rigorous
imprisonment for one year.
The facts in brief are that on 15.12.1991, SHO Naginder Singh
of Police Station Mehna amongst other police officials laid naka on the
Dhudila Road in the area of Village Daudhar. Around 12:15 A.M., he
Criminal Appeal No.1020-SB of 2003 (O&M) -2-
received secret information that the accused Ajit Singh as well as Mewa
Singh are present in the house of the latter at Village Daudhar and are in
possession of poppy husk in the said residential house of Mewa Singh. A
large number of bags of poppy husk are still in Mewa Singh’s house. If
timely raid is conducted, large number of poppy husk bags could be
recovered. On receipt of this secret information, he along with other police
officials conducted raid at the house of accused Mewa Singh, who along
with Ajit Singh was found present in the house. It was noticed from above
the wall that they were settling the gunny bags. When the police party
entered the house, the accused Mewa Singh escaped from the spot through
the other side of his house on catching sight of the police party. The
accused Ajit Singh was apprehended from varandah of the house while he
was standing with the bags of poppy husk. The SHO asked this accused to
tell whether he wanted to have search of the bags in the presence of a
Gazetted Officer or a Magistrate. He reposed confidence in the SHO who
on search recovered 35 bags of poppy husk. A sample of 100 grams each
was drawn from each bag and converted into parcels. The remainder of
each bag when weighed came to 40 kgs. which was also turned into parcels.
All these parcels were sealed with seals `NSR’. The seal after use was
handed over to ASI Balbir Singh. The case property along with sample
parcels was seized vide separate recovery memo. The ruqa was sent to the
police station where on its basis, formal FIR was registered. The accused
Ajit Singh was put under arrest. Mewa Singh accused was also arrested.
After completion of investigation, the charge-sheet was laid in the Court for
trial of the accused.
Criminal Appeal No.1020-SB of 2003 (O&M) -3-
The accused were charged under Section 15 of the Act to which
they did not plead guilty and claimed trial. To bring home guilt against the
accused, the prosecution examined ASI Harinder Singh PW1, Gurbax Singh
PW2, Sawaran Singh HC PW3, SI Balbir Singh PW4, Constable Jasbir
Singh PW5, Naginder Singh Inspector PW6, PW7 Balkaran Singh and
closed its evidence. When examined under Section 313 of Cr.P.C., both the
accused denied all the incriminating circumstances appearing in the
prosecution evidence against them and pleaded innocence as well as false
implication. In their defence, they examined DW1 Balbir Singh, DW2
Sudagar Singh, DW3 Balbir Singh and DW4 A.K. Jain.
After hearing the learned Additional Public Prosecutor for the
State, the learned defence counsel and examining the evidence on record,
the learned trial Court convicted and sentenced the accused as noticed at the
outset. Feeling aggrieved therewith, they have preferred this appeal. Before
proceeding further, it is pertinent to point out that as per death certificate,
Mewa Singh accused had expired on 23.8.2003.
I have heard the learned counsel for the parties, besides
perusing the record with due care and circumspection.
To begin with, the learned counsel for the appellants urged that
Ajit singh appellant was arrested 5/6 days before the alleged recovery. The
telegrams were sent to the higher authorities in this regard. The appellants
were arrested in the area of Police Station Badni Kalan by the S.H.O. of
Police Station Mehna without any prior information to Badni Kalan Police
Station. The SHO of Badni Kalan Police Station was not present at the time
of alleged recovery. Thus, the SHO of Police Station Mehna Naginder
Criminal Appeal No.1020-SB of 2003 (O&M) -4-
Singh Investigator has committed grave illegality while planting the alleged
recovery on the appellants without informing the local police station in
whose area, the alleged recovery was effected. Furthermore, the safeguards
as provided under Section 50 of the Act have not been observed, rather the
provisions of this Section have been flagrantly violated. The provisions of
Section 42 of the Act have also been given a go-by. He has sought to place
abundant reliance upon Directorate of Revenue and Another v.
Mohammed Nisar Holia, 2008(1) Recent Criminal Reports (Criminal)
241, Chhunna alias Mehtab v. State of M.P., 2006(2) Recent Criminal
Reports (Criminal) 227, State of Orissa v. A. Rajeswar Patra, 2006(2)
Recent Criminal Reports (Criminal) 129, State of Punjab v. Gurnam
Kaur and others, 2009(2) Recent Criminal Reports (Criminal) 309 and
State of Punjab v. Hari Singh and Others, 2009(2) Recent Criminal
Reports (Criminal) 143.
To controvert these submissions, the learned State Counsel
maintained that the provisions of Section 50 are not attracted as the
recovery was effected from the bags and not from the person. He further
puts that the recovery having been effected from the house, the conscious
possession of the appellants stands abundantly established.
I have well considered the rival contentions.
It is own case of the prosecution that the recovery has been
effected from the house. In re: Mohamad Nisar Holia (supra), the
recovery of contraband was conducted from a room in a hotel occupied by
the accused. It was held by the Apex Court that hotel is a public place but a
room in hotel occupied by guest is not a public place. Provisions of Section
Criminal Appeal No.1020-SB of 2003 (O&M) -5-
42 of the Act were not required to be complied with. Herein this case, the
house being not a public place, the provisions of Section 42 were required
to be adhered to, as it is own case of the prosecution that the recovery has
been effected in pursuance of the secret information. The prosecution has
not assigned any reason for non-observance of the mandatory provisions of
Section 42. Naginder Singh PW6 Investigator has stated in categoric terms
in his cross-examination that “I did not write down the information given by
informer before departure. I did not inform my senior officers regarding
said information before conducting the raid.” In re: Chhunna alias
Mehtab (supra), the Apex Court observed that “It is not in dispute that the
entry in search of the premises in question took place between sunset and
sunrise at 3:00 A.M. This being the position, the proviso to Section 42 of
the Act was applicable and it is admitted that before the entry for effecting
search of the building neither any search warrant or authorisation was
obtained nor were the grounds for possible plea that if opportunity for
obtaining search warrant or authorisation is accorded, the evidence will
escape indicated. In other words, there has been a non-compliance with the
provisions of Proviso to Section 42 and, therefore, the trial stood vitiated.”
Herein this case, as noted supra, the recovery was effected in the mid night.
The prosecution has not come up with the plea that if the Investigator had
got busy in taking down the secret information in writing and in forwarding
the same to the superior officers, the accused would have escaped. To add
further to it, as per prosecution version, the appellants were in the house. It
being a midnight time, they could not be expected to leave the house unless
warranted by the situation. The search warrant or authorisation was also not
Criminal Appeal No.1020-SB of 2003 (O&M) -6-
obtained. Thus, the facts of Chhunna alias Mehtab (supra) are identical
with the one in hand. Sequelly, the trial stands vitiated.
In re: A. Rajeswar Patra (supra), the search was carried of
building consisting of house and shop at night time. It was held by the
Supreme Court that it is a composite building and not an exclusive public
place. The failure to comply with mandatory provisions of Section 42 by
the Investigating Officer is fatal.
Naginder Singh (sic.) has testified in his cross-examination that
“It is correct that Village Daudhar falls under the police station of Badhni
Kalan. It is correct that I was posted as SHO at Police Station Mehna on
15,.12.1991. It is correct that I did not give any information to the In-
charge of Police Station Badhni Kalan before conducting the raid as I had
not much time.” This evidence leaves no scope for doubt that the raid was
allegedly conducted by the investigator beyond his own jurisdiction and
even without informing the Police Officers of the concerned police Station
for the reasons best known to him. As per police rules, if a Police Officer
enters the jurisdiction of the other police station for effecting arrest or for
investigation of a case, he is obligated to inform the police officers of the
concerned Police Station. In certain cases, such officer also takes one or two
police officials from such Police Station along. Naginder Singh (sic.) has
not apportioned any reason for not informing the Police Officers of Police
Station Badhni Kalan. This is an other flaw in the prosecution case.
It is in the further cross-examination of Naginder Singh (sic.)
that “It is correct that there is no seal on the case property produced today. I
do not remember how many seals were affixed on the case property. It is
Criminal Appeal No.1020-SB of 2003 (O&M) -7-
correct that the slips are also not on the case property today, which were
affixed at that time.” This evidence clearly indicates that the prosecution has
utterly failed to connect this case property with the appellants. As surfaces
in his further cross-examination “It is correct that statement of ASI Balbir
Singh is in context of FIR No.66 dated 15.12.1991 of PS Badhni Kalan, but
it is correct that in statement of ASI Balbir Singh Ex.DA at Mark A Police
Stand Mehna has been written due to clerical mistake. Similarly in the
statement of Atma Singh Ex.DB at Mark B, Police Station, Mehna has been
written.” This further goes to show that even the statements of the said
witnesses have been recorded in an undesirable manner. At the fag end of
his cross-examination, this witness Naginder Singh has deposed that “I do
not remember whether Ajit Singh has sent telegrams to the higher officers. ”
Thus, he has given an evasive reply to this material question.
Balbir Singh DW1 has solemnly affirmed as under:-
“I know accused Ajit Singh present in court. I remained
Sarpanch of the village from the year 1983 to 1993. Accused
Ajit Singh was picked up by the police on 23.11.1991. I and
father of accused namely Nazar Singh ran from pillar to post
for knowing about whereabouts of the accused Ajit Singh. We
came to know about the illegal detention of the accused on
24.11.1991, but police did not listen our requests. On
7.12.1991, father of the accused Ajit Singh, namely Nazar
Singh son of Natha Singh moved an application to the
Governor Punjab, Chandigarh copy of which bears the thumb
impression of Nazar Singh and who thumb marked the same in
Criminal Appeal No.1020-SB of 2003 (O&M) -8-
my presence and same was also counter-signed by me. I
recognize my signature on copy of application, which is Ex.D1
(objected to) and similar applications dated 7.12.1991 were
sent through registered Post vide receipts no.4449, 4450 and
4451, which are Mark A to Mark C, respectively. The accused
Ajit Singh and other are falsely implicated in this case. Father
of accused namely Nazar Singh has since been died.”
DW2 Sudagar Singh has stated as under:-
“I remained in the service of Punjab Home Guards from the
year 1986 to 1994 and I remained posted in the Police Station
Mehna from the year 1988 till 1993. I know the accused Ajit
Singh present in court. The accused Ajit Singh has been picked
up by the police before the registration of the case. The
accused Ajit Singh remained in illegal detention of the police
for 20-22 days before registration of this very case. I was the
member of the police party on the day 15.12.91, when the
present case was registered against the accused and a house in
village Daudhar was searched. We took the accused Ajit Singh
with us from police station to Village Daudhar where some
police officials were already present in the house where search
was conducted before registration of present case against the
present accused.”
Statement of Balbir Singh DW3 reads as under:-
“I remained in service of Punjab Home Guards from the year
1990 till 1993 at Police Station Mehna. I know accused Ajit
Criminal Appeal No.1020-SB of 2003 (O&M) -9-
Singh present in Court. Accused Ajit Singh remained under my
supervision in police quarters of police station Mehna for some
days before the registration of present case against the accused
on 15.12.1991 and on the evening of 15.12.1991, some police
officials one of them was Paramjit Singh Constable who took
the accused to the police station Mehna from Quarters. On the
next day that is on 16.12.1991, I had come to know that a case
has been registered against the accused Ajit Singh and others.”
DW4 A.K. Jain has solemnly affirmed as under:-
“I joined postal department in the year 1985. I was posted in
Post Office Nihal Singh Wala as Postal Assistant in the year
1991 December. Postal receipts bearing serial No.4450 and
4451 are in my hand writing and I recognize my handwriting
over them and the same were initialled by me. Copies of the
same are mark A, mark B and mark C. These receipts are of
dated 7.12.1991.”
In my estimation, the above evidence go a long way in proving
that this case is not of a genuine recovery, rather the same was foisted upon
the appellants.
Sarwan Singh HC PW3 is the person with whom the case
property was allegedly deposited. He has tendered his affidavit Ex.PD in
this behalf. Under the stress of cross-examination, he says that “It is correct
that on the docket dated 16.12.1991 there is no objection from the office of
Chemical Examiner. I cannot say whether the objections from the Chemical
Examiner was to the effect that the sample bears only one seal. I cannot say
Criminal Appeal No.1020-SB of 2003 (O&M) -10-
whether Gurbax Singh and Naginder Singh reput fresh seal on the sample
after 16.12.1991 and handed over the same to the messenger C. Balkaran
Singh.” Palpably, he has given equivocal and evasive replies to all the
material and relevant questions, the answers of which would have certainly
been within his knowledge. Thus, it has to be presumed that the chemical
examiner had raised objection that there was only one seal on the sample
parcels and then Gurbax Singh ASI PW2 as well as Naginder Singh
Investigator had reput fresh seals thereupon after 16.12.1991 and handed
over the same to Balkaran Singh Constable for being carried to the Office of
Chemical Examiner. In such a situation, the possibility of the contents of
the sample parcels being changed or tampered with in any manner cannot be
ruled out.
Coming to the question of conscious possession in re: Gurnam
Kaur and others (supra), the search of the house was rendered on receipt
of secret information. The contraband was recovered from beneath a bed. It
was held by the Apex Court that the recovery in this manner by itself does
not establish that all of them were in conscious possession of the narcotics.
They were not even asked any question in regard thereto. The acquittal on
this ground was upheld. In the instant case, the recovery being from the
house, which is in joint possession of the members of the family does not
establish the conscious possession of the appellants. In re: Hari Singh and
others (supra), 16 kgs of poppy husk was recovered from the accused who
were sitting atop of bags. The Apex Court observed that no question with
regard to possession or conscious possession was put to the accused during
their examination under Section 313 of Cr.P.C. A circumstance about
Criminal Appeal No.1020-SB of 2003 (O&M) -11-
which the accused was not asked to explain cannot be used against him.
Thus, the conviction was set aside. Herein this case too, the question as to
conscious possession was not put to the appellants while they were being
examined under Section 313 of Cr.P.C. Thus, in view of Hari Singh and
others’ case (supra), it cannot be held that the appellants were in conscious
possession of the alleged poppy husk bags.
As a sequel of the above discussion, this appeal is accepted
setting aside the impugned judgment. The accused is acquitted of the
charged offence.
Crl. Misc. No.43409 of 2003 &
Crl. Misc. No.78754 of 2006
In view of the acceptance of main appeal, all the pending CMs
are dismissed as infructuous.
September 03, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No