CRA No.1040 SB of 2004 1
IN THE HIGH COURT OF PUNJA B AND HARYANA AT
CHANDIGARH
CRA No.1040 SB of 2004
Date of Decision:10th August, 2009
Nirmal Singh alias Polu
...Appellant
Versus
The State of Haryana
...Respondent
CORAM: HON'BLE MR.JUSTICE HARBANS LAL
Present: None for the appellant
Mr.Amit Kaushik, Assistant Advocate General, Haryana
**
JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment dated
24.3.2004/order of sentence dated 25.3.2004 rendered by the Court of
learned Judge, Special Court, Kaithal, whereby he convicted and sentenced
Nirmal Singh alias Polu accused /appellant to undergo rigorous
imprisonment for a period of ten years and to pay a fine of Rs.1 lac and in
default of the same, to further undergo rigorous imprisonment for 2 years
under Section 15 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for brevity ‘the Act’).
The minimal facts of the prosecution case are that on
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15.2.2003 ASI Baldev Raj amongst other police officials happened to be
present at Kacha passage leading from Daban Kheri to Sheo Majra in
Government jeep in connection with the detection of crime. Meanwhile,
accused came from the side of Sheo Majra on an unnumbered motorcycle,
which was carrying two gunny bags on its pillion seat. On catching sight of
the police party, he got perplexed. He was made to stop and served with a
notice under Section 50 of the Act. He opted to have search in the presence
of a Gazetted Officer. Thereafter, he alongwith the motorcycle, bags and
witnesses was produced before the DSP Guhla Dharampal Singh Dalal in
his office. On his direction, the search of the bags was carried out. These
bags were found containing poppy husk. Two samples of 100 grams each
were drawn from each bag and were converted into separate parcels. The
remainder of each bag, when weighed came to 34.800 grams, which were
also turned into parcels. All the parcels were sealed with seals ‘DS’ and
‘BR’, whereafter, these were seized. The specimen seal impressions were
retained. The Investigating Officer handed over his seal after use to ASI
Dhoop Singh. The motorcycle was also taken into possession. Ruqa was
sent to the police station, where on its basis formal FIR was recorded. The
rough site plan showing the place of recovery was prepared. The accused
was arrested. After completion of investigation, the charge-sheet was laid in
the court for trial of the accused.
The accused was charged under Section 15 of the Act, to which
he did not plead guilty and claimed trial. As many as eight witnesses were
examined by the prosecution. On close of the prosecution evidence, when
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examined under Section 313 Cr.P.C., the accused denied all the
incriminating circumstances appearing in the prosecution evidence against
him and pleaded innocence. He has put-forth that “I am innocent and have
been involved in a false case. Nothing was recovered from me. I was
illegally detained from my house and motorcycle was brought from the
house of Richhpal for verification as the same was without registration
number and later on, planted in this case.” In defence he did not adduce any
evidence.
After hearing the learned Public Prosecutor for the State, the
learned defence counsel and examining the evidence on the record, the
learned trial Court convicted and sentenced the accused Nirmal Singh @
Polu as noticed at the outset. Feeling aggrieved with his conviction /order of
sentence, he has preferred this appeal.
This case was adjourned for number of times for arguments.
This apart, it was also displayed on the net for arguments, but despite that
none had put in appearance on behalf of the appellant. I have heard the
learned counsel for the State, besides perusing the record with due care and
circumspection.
As per the grounds of appeal, the motorcycle in question did
not belong to the appellant, rather the same was the ownership of Richhpal
Singh and so is the plea taken by the appellant in his statutory statement.
This material infirmity belies the prosecution story. The learned State
counsel could not controvert this plea in a successful manner. In paragraph
No.21 of the impugned judgment, the learned trial court has observed that
CRA No.1040 SB of 2004 4
“In the present case, an attempt was made by the Investigating Officer to
prove that the motorcycle recovered belongs to the accused and to prove
this fact the prosecution examined PW-7 Richhpal Singh, who has not
supported the prosecution case and PW8 Subedar Khushal Singh but the
prosecution has failed to prove that in fact the motorcycle recovered belongs
to the accused rather it is proved that the motorcycle recovered belongs to
PW-7 Richhpal Singh, who is a registered owner of the said motorcycle.” It
is deducible from these clear and candid observations that the prosecution
had set up that this motorcycle was the ownership of the appellant, but later
on, it was found to be that of Richhpal Singh the registered owner. Thus,
palpably the prosecution has failed to discharge the requisite onus.
Furthermore, Richhpal Singh has not been challaned under Section 25 of the
Act for the reasons best known to the prosecution. To the utter
consternation of the prosecution, the Investigating Officer Baldev Raj ASI
has stated in his cross-examination that “I do not know Richhpal Singh s/o
Des Raj r/o Kalara (Pb.).” The prosecution has not given any explanation as
to under what circumstances, this motorcycle came into the possession of
the accused-appellant for transporting the alleged poppy husk. Richhpal
Singh PW7 has been declared hostile. When he was cross-examined by the
learned Public Prosecutor, he did not budge even an inch from his firm
stand. It is the specific plea of the appellant that he was illegally detained
and by fetching an unnumbered motorcycle from the house of Richhpal
Singh on the pretext of verification, was planted upon him, later on. This
plea competes in probability with the prosecution case. Where such is the
CRA No.1040 SB of 2004 5
state of affairs, it is very difficult to say that the poppy husk was recovered
from the possession of the appellant in a manner as suggested by the
prosecution.
It is in the cross-examination of Dharampal Singh Dalal DSP,
Guhla PW1 that “particulars of the case were written on the gunny bags. No
separate paper slip was affixed. It is correct that on Ex.P1 and Ex.P2, gunny
bags, particulars of the case are not visible today.” It is also in the cross-
examination of Baldev Raj ASI, the Investigator that “The particulars of the
case were written on Ex.P1 and Ex.P2 by sketch pen. No separate slip was
affixed. It is correct that today the particulars written on gunny bags Ex.P1
and Ex.P.2 are not visible.” This evidence go a long way in proving that the
bags which were produced in the court did not bear the particulars of the
case nor any chit containing such particulars or the item number of
Malkahana. In their absence, it is very difficult to say that the bags produced
in the court were the same as were allegedly recovered from the possession
of the appellant.
The next plea taken up by the appellant is that no independent
witness was joined in the investigation and that being so, no implicit
reliance should be placed upon the testimonies of official witnesses, who
are highly interested in the success of the case.
As against this, the learned State counsel has maintained that
as is well settled that the evidence of the police official has to be weighed in
the same scales as of others.
I have well considered the stated plea as well as the argument
CRA No.1040 SB of 2004 6
raised on behalf of the State. To be seen as to whether the Investigator had
got the time as well as the opportunity to associate the independent witness.
As per record, the ruqa Ex.PB was despatched on 15.2.2003 at 12.15 P.M.
It leaves no room for doubt that the recovery in fact was effected in the
broad day light and that too on the public place, where could be no dearth
as to the availability of the independent witnesses. It is in cross-examination
of Baldev Raj (sic) that “H.C. Balbir Singh was sent to bring the witnesses
from the village, who told that none was available. I did not mention this
fact in the zimni.” To me it appears that he was lying while in the witness
box, when he said so. Had he sent the aforesaid Head Constable to procure
some public man from the village, he in all probabilities would have made
mention of this fact in the zimni (case diary). Thus, the testimony of this
witness on this aspect stands discredited. It is own case of the prosecution
that the police party was already present on the kacha passage leading from
Daban Kheri to Sheo Majra in connection with the detection of the crime.
The aforesaid passage being frequented by members of public, some
independent witness could have been joined in the investigation, if sincere
efforts had been made in this behalf by the Investigator. Thus, in my
estimation, it was a case where the Investigator had got sufficient
opportunity as well as time to join some independent witness. Nay this, the
appellant was taken to the camp office of DSP Dahrampal Singh Dalal at
Guhla, where the search of the bags was carried out. This DSP says in his
cross-examination that “The road passing nearby my office is busy road.
The abadi area is at the distance of one furlong from my office.” This
CRA No.1040 SB of 2004 7
evidence speaks volumes of the fact that even this DSP had ample
opportunity to associate some public man in the investigation. These
witnesses having not furnished any cogent explanation for non-joining of
some independent witness in the recovery proceedings, it would be very
difficult to believe the prosecution version.
In view of the preceding discussion, this appeal is accepted,
setting aside the impugned judgment/order of sentence. The
accused/appellant is hereby acquitted of charged offence.
10th August, 2009 (HARBANS LAL) gsv JUDGE Whether to be referred to the Reporter? Yes/No.