Crl.A.No.510-DB of 1998 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Date of decision: 4.11.2008
Kulwinder Ram alias Gogi ... Appellant
Versus
State of Punjab ... Respondent
CORAM: Hon'ble Mr.Justice Uma Nath Singh.
Hon'ble Mrs.Justice Daya Chaudhary.
Present: Mr.H.S. Gill, Senior Advocate
with Mr. Hari Chand, Advocate
for the appellant.
Ms. Gurveen H. Singh, Additional Advocate General, Punjab.
...
UMA NATH SINGH, J.
This criminal appeal arises out of judgment dated 10.10.1998
passed by learned Special Judge, Hoshiarpur, in sessions Case No. RBT 60
of 1997 recording conviction of accused-appellant Kulwinder Ram @ Gogi
under Section 15 of the Narcotic Drugs and Psychotropic Substance Act,
1985 (for short ‘the Act’) and sentencing him to undergo rigorous
imprisonment for 12 years with a fine of Rs.1.00 lac; in default of payment
of fine, to further undergo rigorous imprisonment for 2 years.
It appears from the case record that the investigation was set in
motion pursuant to receipt of a secret information by SI Ajay Singh (PW-3)
at 6.30 am on 18.11.1996, when he was present in police station.
Information was also passed on to Assistant Superintendent of Police,
Gurpreet Deo, immediately at 6.30 a.m. itself on telephone, on the same day
and she was requested to reach the spot. An FIR was also registered at 6.30
a.m. on the basis of secret information which is reproduced as under:-
Crl.A.No.510-DB of 1998 2
“At this time I was present in the police station. Informer
has informed me that Kulwinder Ram @ Gogi s/o
Mohinder Ram Saini, r/o Mohalla Langeri Road, Mahilpur,
within the area of Toto Majara is doing the business of sale
of poppy husk and if a raid is conducted immediately a
large quantity of poppy husk can be recovered. The
information was true then I recorded formal FIR that the
poppy husk was recovered from the possession of the
accused. Accused made the offence u/s 15/61/85 NDPS
Act. A wireless message is sent to the control room and
wireless message is sent to the ASP, Garhshanker, with the
request to reach at Adda Toto Mazara. The special reports
were sent to the concerned officers through C. Mohinder
Singh No.773. I the SHO along with HC Gurnam Singh
No.1133, HC Jasbir Singh No.741, C. Kamaljit Singh
No.1924, Balbir Kumar No.1952, SPO Som Nath 26977,
PHG Gurvinder Singh 26912, PHG Daljit Singh 26928 and
C. Roshan Lal No.1457, going to the spot in a private four
wheeler and I have also taken up the investigation bag with
me.”
SI Ajay Singh with a raiding police party, as detailed in the
FIR, proceeded towards village Tuto Majra. Near new bus stand Mahilpur,
Makhan Singh (PW-4), an independent witness, met the police party and
joined them. ASP Gupreet Deo (PW-1) reached Adda Tuto Majara and was
briefed about the details of the case. She took over the investigation from SI
Ajay Singh. Police party while moving in the area of Tuto Majara was
Crl.A.No.510-DB of 1998 3
caught in a heavy deposit of sand in a choe (bed of rivulet), therefore, they
parked their vehicle there itself. When they were crossing the choe on foot,
the accused was spotted at a distance of 10 karmas. As having seen the
police party, he turned towards left, he was apprehended on suspicion.
During the course of interrogation by ASP Gurpreet Deo (PW-1), the
accused disclosed the information regarding concealment of eight bags of
poppy husk by burying the same inside the cheo (bed of a rivulet) which he
alone knew and could get the same recovered. That disclosure statement
was reduced into writing vide Ex.PA, and was also thumb marked by the
accused. Ex.PA was attested by SI Ajay Singh and independent witness
Makhan Singh, Lambardar. An option was given to the accused by ASP
Gurpreet Kaur (PW-1) as to whether he wanted to be searched in presence
of a Gazetted Officer or a Magistrate. The accused reposed confidence in
the ASP who was a Gazetted Officer. That statement was recorded vide Ex.
PB and thumb impressed by the accused and then attested by the aforesaid
set of witnesses. The accused led the police party to the place as disclosed
in his statement (Ex.PB) during further interrogations and got eight bags of
poppy husk recovered from under sands with the help of Kassi (spade). On
verification of the content of bags, it was found to be poppy husk.
Accordingly, small quantity of 250 gms from each bag was separated for
sample and were put into eight separate potlies (small bags). On weighing
the residue quantity of poppy husk of each bag, it was found to contain 34
kg 750 grams. The residue quantities of eight bags were put back into the
same. These eight sample parcels and eight bags with residue quantities
were sealed by ASP Gurpreet Deo with her seal impression ‘GD’.
Thereafter, that Seal was handed over to independent witness Makhan
Crl.A.No.510-DB of 1998 4
Singh, Lambardar. CSFL Form 29 was filled up by ASP Gurpreet Deo
herself at the spot. Besides that, she also took some snaps of the scene of
recovery, which are exhibited as Ex.P-9 to Ex.P-23 with their negatives
being Ex.P-24 to Ex.P38. A rough site plan (Ex.PE) with correct marginal
notes was drawn and the ASP handed over all the eight bags (Ex.P-1 to
Ex.P-8) and eight samples to SI Ajay Singh vide memo (Ex.PE). Accused
appellant Kulwinder Ram was also handed over to SI Ajay Singh. On return
to Police Station, SI Ajay Singh deposited eight sample parcels, eight bags
of residue quantities (with seal intact there on), and a sample of seal
impression with MHC Ashwani Kumar (PW-2) and the accused was put in
police lock up. Finally, these samples were sent to chemical examiner
concerned for analysis, and vide its report (Ex.PH), they were found to
contain the ingredients of poppy husk. On completion of investigation, a
challan was filed in the Court of competent jurisdiction against the accused-
appellant and on a careful scrutiny of testimonies of prosecution witnesses
and the case records during trial, learned trial Judge recorded the conviction
and sentence of the accused-appellant vide the impugned judgment.
We have heard learned counsel for parties and perused the
records.
Learned senior counsel Mr.H.S.Gill appearing for the accused-
appellant, inter alia, submitted that there was a delay of four days in sending
the samples of contraband to FSL and the affidavits of official police
witnesses also suffer from serious defects. This is not clear as to which part
of their affidavits is based on personal knowledge and which on the
informations derived by them. Independent witness Makhan Singh,
Lambardar (PW-4) is a stock police witness who also appeared earlier for
Crl.A.No.510-DB of 1998 5
police in three similar cases. Secret information received by SI Ajay Singh
was not reduced into writing, which has caused a serious prejudice to the
interest of accused. Besides, Mr. Gill also submitted that the son of witness
Makhan Singh was involved in a criminal case, therefore, this witness has
deposed against the appellant under police pressure.
On the other hand, Ms. Gurveen H.Singh, learned Additional
Advocate General for State of Punjab, submitted that there is no delay in
recording the secret information which formed the basis for immediate
recording of FIR at 6.30 a.m. and further the special report was also sent
timely at 9.00 am. Moreover, throughout the investigation, ASP (PW-1)
Gurpreet Deo was associated with police party. Contraband item was
recovered from the place as indicated during interrogation by the accused.
Though the secret information was not reduced into writing but that has not
caused any prejudice to the accused in view of timely action on the part of
police. Independent witness Makhan Singh cannot be branded as a stock
witness without a valid reason. He appeared in other three cases of
Balachaur, District Nawanshahr and not in any case of Police Station
Mahilpur, District Hoshiarpur. This is also her submission that the accused-
appellant was involved also in some other NDPS case earlier, which resulted
in acquittal only in appeal in High Court on the ground that no independent
witness was available. This is her further submission that if there was any
defect in affidavits of Police witnesses, that could have been put to them
during their cross-examinations which was not done.
We have carefully considered the rival submissions and
examined the case records. Prosecution case is based on testimonies of
official police witnesses and independent witness Makhan Singh,
Crl.A.No.510-DB of 1998 6
Lambardar, (PW-4). Prosecution case originates in a secret information,
that was received at 6.30 am from an informer by SI Ajay Singh (PW-3) in
Police Station, which was incorporated in FIR registered at that time itself.
Information was also passed on to a superior police officer ASP Gurpreet
Deo (PW1) as required under Section 42 of the Act. She was also requested
to reach the spot as indicated in the information. SI Ajay Singh (PW3)
himself, with other police personnel, constituted a raiding party and
proceeded towards the spot. On the way, they also met an independent
witness, Makhan Singh (PW4), who joined the police party. ASP Gurpreet
Deo (PW1) met the police party at a place close to the destination. She was
briefed about the background of the case and then she took over the
investigation. Police party proceeded further and having reached the drain,
they found the area full of sand, therefore, they parked their vehicles there
itself. They proceeded further on foot and noticed the the accused appellant
was coming, who having seen the police party, turned left but on suspicion,
he was over powered and put to interrogation. During interrogation,
accused appellant disclosed the fact of concealment of 8 bags of contraband
poppy husk at a place, which was exclusively within his knowledge. He led
the police party to that spot and got 8 bags of poppy husk recovered at his
instance from inside a rivulet which covered with sand. Procedures as
required to be followed under the Act in case of search and seizure were
duly complied with. Memos of disclosure statement made by accused,
recovery of poppy husk, preparation of 8 samples and seal impression of
ASP as `GD’ were completed on the spot. Even CFSL Form 29 was also
filled up by the ASP on the spot. Contraband item, 8 samples, sample seal
impression and accused were handed over to SI Ajay Singh (PW3). SI Ajay
Crl.A.No.510-DB of 1998 7
Singh having reached the police station, deposited the case properties,
containing 8 bags of residue quantities of poppy husk, 8 samples and sample
seal impression, with Moharrir Head Constable Ashwani Kumar (PW2) and
the accused was put in police lock up. Thus, there was no procedural
infirmity right since receiving secret information to depositing the case
properties and lodging of the accused in police lock up.
Regarding the submission of learned senior counsel for
appellant that there was a delay of 4 days in sending the samples to
Chemical Examiner, which created a doubt about the credibility of samples,
we notice that the recovery of contraband item was effected on 18.11.1996
and the samples were received by Chemical Examiner on 22.11.1996, but
during that period, the seal impressions of case properties were found to be
intact as it could be noticed from the testimonies of SHO as also the report
of Chemical Examiner. Thus, 4 days’ delay in sending the samples to FSL
did not cause any prejudice to the rights of accused-appellant nor was there
any such allegation that the police had some motive to falsely implicate him
in this case. Coming to the second submission of learned senior counsel that
affidavits submitted by police officials, namely, MHC Ashwani Kumar
(PW2), vide Ex.PF, and Constable Prem Chand (PW5), vide Ex.PK, suffer
from serious defects, these police personnel were produced in witness box
but no such suggestion was put to any of them that their affidavits were
defective. Moreover, they are only formal witnesses and appellant has not
attributed any motive to them for false implication, therefore, their
testimonies cannot be disbelieved on such ground. Hence, the judgment of a
learned Single Judge of this Court reported in 1994(2) RCR (Crl.) 84
(Bakshi Ram versus State of Punjab) and placed reliance by learned senior
Crl.A.No.510-DB of 1998 8
counsel, would not apply in the facts and circumstances of this case. For the
same reason, an earlier judgment of a Division Bench of this Court reported
in 1991(1) PLR 552 : 1991(3) RCR (Crl.) 306 (State of Punjab versus Leela
Singh) would also not be attracted. There is no dearth of link evidence to
substantiate the factum of search and seizure and dispatch of samples to
Chemical Examiner. So far as the argument of learned senior counsel that
the secret information received by SI Ajay Singh (PW3) was not reduced
into writing, is concerned, it stands answered by the fact that the said
information was immediately incorporated in the FIR. A superior police
officer ASP Gurpreet Deo (PW1) was also informed on time and the Judicial
Magistrate concerned was also sent an special report by 9.00 a.m. that day
itself. Therefore, there was no such irregularity which could go to the roots
of prosecution case. Regarding the credibility of independent witness
Makhan Singh, Lambardar (PW4), learned senior counsel has not placed
before us any cogent material to discard his evidence. Undoubtedly, he had
appeared earlier in three cases as a prosecution witness, but those cases
related to a different police station of a different district. Besides, if his son
was facing trial in some criminal case which was pending before a Court,
the police had no further role to play in that matter. Moreover, this witness
has categorically stated in his cross-examination that his son Gurcharan
Singh was in jail and he had no concern with his son. He has denied a
defence suggestion that he is a stock police witness and he has admitted that
accused made a disclosure statement after his arrest. He has denied a further
defence suggestion that his signatures were obtained in the police station on
a blank paper. He has furthermore denied the defence suggestion that no
recovery of contraband from the accused was effected by the police and he
Crl.A.No.510-DB of 1998 9
deposed falsely in Court. Besides, the accused-appellant also had a
background of drug peddling and selling contraband items as in some other
case also, he was prosecuted and convicted by trial Court, though earned the
order of acquittal in appeal on the ground that no independent witness was
associated with investigation.
Police officer Gurpreet Deo (PW1) was the Assistant
Superintendent of Police at that time. She had taken photographs of the spot
of recovery. She has fully supported the prosecution case in material
particulars also by stating that 8 sample parcels were sent to Chemical
Examiner for analysis, vide forwarding letter (Ex.PG), and the report of
Chemical Examiner received in police station was exhibited as Ex.PH. She
has also stated that she received information at 6.30 a.m. and started from
her residence at 7.00 a.m. with Driver and Gunman. As requested by
SI/SHO Ajay Singh (PW3), she reached the place Adda Tuto Majara at 7.15
a.m., and waited for 2/3 minutes for SI/SHO Ajay Singh to reach. There
was a katcha path, leading to place of recovery from Tuto Majra. The
distance between two placed was about 2/3 kms. Police party parked their
vehicles at a distance of 1 km. from Tuto Majara and then walked on foot to
the place of recovery. Accused was noticed a distance of 50/60 yards from
police party and having seen the police, he wanted to slip away. He was
apprehended by police personnel under her direction and interrogated by her
for about 3-4 minutes. Accused Kulwinder Ram was not put under any fear
or threat by police and he was simply asked as to why he was running away.
According to her, police had received an information that the accused had
kept the contraband poppy husk powder concealed, but exact location of
that place was not informed. An option was given to the accused as to
Crl.A.No.510-DB of 1998 10
whether he wanted to be searched before a Gazetted Officer or a Magistrate.
She denied the defence suggestion in her cross-examinations that the
statement of accused (Ex.PB) was recorded after effecting recovery of the
contraband. According to her, the statement of accused (Ex.PB) was also
duly attested by public witness Makhan Singh (PW4) and SI Ajay Singh
(PW3). This witness has also denied a further defence suggestion that the
signatures of witness Makhan Singh (PW4) were taken on some blank paper
or that all writing works were completed inside the police station. As per
cross-examination of this witness, though the place wherefrom recovery
was effected was accessible to all, but bags were concealed under sand and
were not visible to others. Thus, recovery could not have been effected
without knowing the exact location of the contraband item which was
exclusively within the knowledge of the accused. It took almost half an
hour to get the recovery of 8 bags effected. This witness reiterated that
CFSL Form 29 was filled in at the spot under her direction by police and
SI/SHO Ajay Singh was already carrying that form. Further, only after the
Chemical Examiner’s report was received, she received back her seal.
Ashwani Kumar (PW2) is the Moharrir Head Constable. He
has supported the prosecution case vide his affidavit (Ex.PF). He handed
over 8 parcels of sample of poppy husk, each weighing 250 grams, which
were duly sealed with seal `GD’, to Constable Prem Chand, vide Record
No.379/96 dated 22.11.1996 after preparation of dockets. During custody
of those parcels, no one was allowed to tamper with these articles.
Constable Prem Chand (PW5) also tendered his evidence on
affidavit (Ex.PK). Defence could not extract any information in its support.
Crl.A.No.510-DB of 1998 11
He has supported MHC Ashwani Kumar (PW2) in material particulars in his
evidence. In para 4 of his affidavit, he has stated that till 8 samples remained
in his custody, nobody was allowed to tamper with them.
SI Ajay Singh (PW3) is the author of FIR, who had received
secret information from an informer. He has fully supported prosecution
case to the extent he was associated with investigation. In his cross-
examinations, he stated that accused was in police custody for about 2
minutes before he made disclosure statement. He has reiterated that from
each bag, one sample was taken. He has also stated that only one CFSL
form was filled in at the spot. He has denied all defence suggestions
contrary to prosecution case as under:
“I recorded the FIR on the secret information before departure
from the police station. The special report was sent by the other
police official as I went to the place of recovery. We usually
visit the said place including the other area adjoining to the
place of recovery for patrolling. I never raided any person in
this area prior to this occurrence. It is wrong to suggest that no
recovery was effected from the accused and he has been falsely
implicated in this case. It is further incorrect that there was no
secret information against the accused and that no FIR was
registered on the basis of secret information and that ASP was
not present at the spot nor she took out any sample. It is
incorrect to suggest that I have deposed falsely.”
Thus, from the aforesaid evidence, it is established that SI Ajay
Singh (PW3) received secret information on 18.11.1996 at Police Station
Mahilpur that accused was dealing in poppy husk powder and if a raid is
conducted immediately, a large quantity of poppy husk powder could be
recovered. Said secret information was incorporated in FIR (Ex.PJ) and a
wireless message was sent to ASP Gurpreet Deo (PW1) to reach Adda Tuto
Crl.A.No.510-DB of 1998 12
Majara. SI Ajay Singh with other police personnel rushed to the scene of
occurrence. On the way, public witness Makhan Singh (PW4) also joined
the police party. ASP Gurpreet Deo (PW1), who had been informed
immediately on receipt of secret information, also reached that place and she
was briefed about the case. ASP Gurpreet Deo (PW1) then started for the
place of recovery i.e., a chao (bed of a rivulet) of village Tuto Majara along
with police party. They parked their vehicles near the chao and proceeded
in the directions of bed of rivulet. While they were crossing the chao, at a
distance of about 10 karams, the accused was seen coming. Having seen the
police party, he wanted to take a left turn, but he was apprehended on
suspicion. The accused-appellant was then put to interrogation when he
disclosed that he had concealed 8 bags of poppy husk powder by burying
them in the bed of rivulet, and his disclosure statement was recorded vide
Ex.PA. He was then given an offer to be searched by a Gazetted Officer or
a Magistrate. Accused appellant Kulwinder Ram reposed confidence in ASP
vide his statement (Ex.PB). He led police party to the disclosed place and
got recovered 8 bags of poppy husk buried under the bed of rivulet. 250
grams of poppy husk was separated towards sample from each of 8 bags.
Bags containing residue quantities of poppy husk and 8 parcels containing
samples were sealed with seal impression `GD’, and recovery memo was
attested by this witness. CFSL form was filled in at the spot, and
photographs of the scene of recovery (Ex.P-9 to Ex.P-23) were taken.
Finally, the case properties with the accused were handed over to SI Ajay
Singh (PW3) by ASP Gurpreet Deo (PW1). On reaching the Police Station,
the case properties and the accused were handed over by SI Ajay Singh
(PW3) to MHC Ashwani Kumar (PW2). Samples and sample seal were sent
Crl.A.No.510-DB of 1998 13
to Chemical Examiner’s office on 21.11.1996 and received there on
22.11.1996. Report (Ex.PH) of Chemical Examiner was made available and
then a challan was put up. Prosecution witnesses have consistently
supported prosecution case and thus, the arguments of learned senior
counsel for appellant, as discussed herein above, are found to be devoid of
any force.
Hence, the impugned judgment is hereby affirmed and this
Crl.Appeal No.510-DB of 1998 is dismissed. Accused-appellant Kulwinder
Ram alias Gogi, who is stated to be on bail pursuant to the order dated
25.11.1998, shall surrender to his bail bonds to undergo the remaining part
of jail sentence.
( UMA NATH SINGH )
JUDGE
4.11.2008 ( DAYA CHAUDHARY )
pooja/mohinder JUDGE
Whether this judgment be referred to Reporter or not ? Yes/No