JUDGMENT
Kanwaljit Singh Ahluwalia, J.
1. Appellant Jeet Singh son of Bhagwan Singh, resident of Village Mitheri, District Sirsa stands convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as ‘the Act’) and has been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac, in default thereof to further undergo RI for two years. He was sought to be prosecuted in case FIR No. 167 dated 19-6-1992 registered in police station Sadar Dabwali.
2. The case as set out in the FIR is that ASI Kartar Singh along with his companion police officials was patrolling in a private jeep in search of suspicious persons, when a secret information is said to have been received by him that Jeet Singh son of Bhagwan Singh indulges in sale of poppy straw from his residential house and in case a raid is conducted, heavy quantity of contraband can be recovered. The ASI along with his companions proceeded towards the house of the appellant. In the way Gurbaksh Singh PW met them, who was joined in the raiding party. On reaching the house of the appellant, the latter was found present there. The search was carried. Gunny bags were found lying under turi in a kotha, adjoining his house. On enquiry, the appellant told that these bags contained poppy straw. The ASI gave him a notice in writing offer to get the search conducted in the presence of a gazetted officer or Magistrate or the Illaqa Magistrate. It is stated that the appellant declined the offer and reposed his faith in ASI Kartar Singh. The ASI found 15 gunny bags under the Turi of the Kotha. 100 grams of poppy straw was separated from each of the bags as sample. Thereafter the remaining bulk in each bag was weighed to be 39.900 Kgs.
3. On analysis, vide report of the Forensic science Laboratory (Exhibit PK), the substance of the samples was found to be poppy straw( Chura Post).
4. After completion of investigation, report under Section 173 Cr.P.C. was submitted. The learned Additional Sessions Judge framed charge against the appellant for having in his possession 6 Quintals of poppy straw, unlawful possession of which was punishable under Section 15 of the Act, to which he pleaded not-guilty and claimed trial. The prosecution examined six witnesses in all:
PW 1 Om Parkash tendered his affidavit Exhibit PA.
PW 2 Constable Sampuran Singh also tendered his affidavit Exhibit PB in order to establish link evidence.
PW 3 S.I. Dharam Pal was posted as SHO of the concerned police station at the relevant time, who deposed that on 19-6-1992 at 440 PM, ASI Kartar Singh produced before him the accused, witnesses and the case property. He proved the gunny bags Exhibits P1 to P15. In cross-examination, this witness admitted that Gurbaksh Singh PW was Sarpanch of Village Mitheri, who normally does the work of the panchayat.
PW 4 is Gurbaksh Singh, who denied any recovery having been effected from the appellant in his presence. He was declared hostile. He also denied having made any previous statement before the police.
PW 5 is H.C. Piare Lal, who was a member of the raiding party and has supported the prosecution version regarding search, seizure and the recovery. In cross-examination he stated that they went in a private jeep, which was taken on hire. He admitted that the Kotha from where the recovery was effected, was without roof and that there was another kotha with roof, adjacent to the said kotha of the appellant.
PW 6 ASI Kartar Singh gave details of investigation and reiterated the version given by him in the FIR.
5. Statement of the appellant in terms of Section 313 Cr.P.C. was recorded. In answer to the last question, he stated that the poppy husk in fact belonged to one Gian Chand Bania and he has been falsely implicated.
6. In defence, the appellant examined Hukam Chand, Complaint Clerk, Office of Superintendent of Police, Sirsa, who proved the application Exhibit PA, a perusal of which goes to show that on 296-1992 a complaint was submitted to Superintendent of Police, Sarsa that one Gian Chand was selling poppy husk and the applicant approached him and requested not to sell the same. He replied that he was paying Rs. 25,000/-per month to the police for the same. It is further stated that another complaint was also lodged with the police but no action was taken. These complaints are said to have been made by Malkiat Singh and Jagat Pal.
7. Exhibit DB is another application submitted to the Superintendent of Police, praying for transfer of Dharam Pal SHO as the latter had falsely implicated the present appellant in collusion with Gian Chand.
8. Malkiat Singh, who had submitted the applications Exhibit DA and DB, appeared as DW 2 and admitted that the appellant was his brother in 4/5th degree.
9. I have heard learned Counsel for both the sides and have perused the entire record.
10. Learned Counsel for the appellant contends that Gurbaksh Singh, who was allegedly joined as an independent witness, has not supported the prosecution, he has rather deposed that no contraband was recovered in his presence from the appellant. He further contends that Gurbaksh Singh being Sarpanch of the village, his words ought to be given credence, especially when it is mandatory that any raid which is conducted in the house, must be in the presence of two independent witnesses and Section 100(4) should be complied with. It is further contended that the site-plan should have been drawn and proved, so that the Court could form its opinion regarding the place of recovery. Mr. Sidhu then contends that in the present case recovery is from a Kotha without roof, adjacent to the house of the appellant and as such the prosecution had no proof regarding conscious possession of the appellant over the contraband and no evidence has been brought on record to show that the said Kotha was in exclusive possession of the appellant and none else had access to the same. It is further contended that the Kotha was in open and accessible to all.
11. Now we are left with the sole testimony of PW 5 HC Piara Singh and PW 6 ASI Kartar Singh. No doubt, conviction can be based on the testimony of police witnesses, yet this Court cannot lose sight of the fact that in the instant case, Gurbaksh Singh, who was stated to be Sarpanch of the village, has not supported the prosecution version. The prosecuting agency has made no efforts to prove ownership or possession of the appellant over the said Kotha. Even no scaled site- plan was prepared by the Draftsman. No Draftsman has been produced. No neighbour or any official of the Panchayat or any documentary evidence has been produced in this regard. This Court cannot lose sight of the fact that there is an application Exhibit DA dated 19-6-1992, whereby a complaint was made that one Gian Chand indulges in the sale of poppy husk in collusion with the police. This complaint has been proved by Hukam Chand DW1, Complaint Clerk from the Office of Superintendent of Police. There is another application dated 13.6.1992, i.e. six days prior to the present occurrence. DW 2 Malkiat Singh appeared in the Court to testify that the the police was in collusion with Gian Chand, who was a trader of poppy husk. His testimony could not be shattered in cross-examination by the Public Prosecutor as he stated that he owns 50 acres of land. A person having 50 acres of land is a respectable. He is a distant relative of the appellant. The very fact that he has mustered courage to enter the witness-box against the police, is sufficient to rely upon his testimony.
12. Mr. Sidhu has stated before me that Gian Chand accused, against whom the complaint has been made, was sentenced under Section 15 of the Act and against his conviction, a criminal appeal is pending in this Court bearing No. 447-SB of 1995.
13. Malkiat Singh DW.2, in his examination has also stated that Gian Chand had also left a threat that nobody can dare to involve him in any case. Malkiat Singh, on the day of occurrence itself, has also submitted an application to the Superintendent of Police, Sirsa stating therein that Jit Singh has been falsely implicated. This fact has been stated by him in his testimony by appearing in the Court as DW.2. Malkiat Singh has also stated that later on Gian Chand was challaned by the police.
14. Making of a complaint by Malkiat Singh to the Superintendent of Police, Sirsa, on the very day of occurrence stating therein that Gian Chand was indulging in smuggling of poppy husk and that Jit Singh has been falsely implicated and he (Gian Chand) is the real accused coupled with the fact that he has been convicted and sentenced under Section 15 of the Act, lend credence to his testimony as DW.2.
15. As already observed earlier, no Draftsman having prepared any scaled site-plan has been examined. From the rough site plan it is evident that the Kotha was without roof, though adjacent to the hose of the appellant, is surrounded by open plot from all sides. Therefore, the place of recovery is open and accessible to all and sundry. No disclosure statement has been recorded. The very fact that on reaching the house of the appellant, the police party immediately found the gunny bags lying there, casts a heavy duty on the police to prove from the documentary or oral evidence the ownership or possession of the appellant over the place of recovery.
16. From the defence evidence and the other attending features of the case, this Court is left with no option except to extend the benefit of doubt to the appellant. Consequently the instant appeal succeeds, conviction and sentence awarded by the Court below is set-aside and he is acquitted of the charges.
17. Criminal Appeal No. 501-SB of 1995 was subsequently sent by the appellant through Jail, impugning the same judgment. It was ordered to be heard along with the instant appeal. As such, no separate orders are called for. The same also stands disposed of accordingly.