{"id":135033,"date":"2009-09-18T00:00:00","date_gmt":"2009-09-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajit-singh-and-another-vs-state-of-punjab-on-18-september-2009"},"modified":"2016-05-30T08:09:30","modified_gmt":"2016-05-30T02:39:30","slug":"ajit-singh-and-another-vs-state-of-punjab-on-18-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajit-singh-and-another-vs-state-of-punjab-on-18-september-2009","title":{"rendered":"Ajit Singh And Another vs State Of Punjab on 18 September, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Ajit Singh And Another vs State Of Punjab on 18 September, 2009<\/div>\n
Criminal Appeal No.1020-SB of 2003 (O&M)                              -1-\n\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA\n                   AT CHANDIGARH\n                         ****\n                                    Crl. Misc. No.43409 of 2003 &\n                                     Crl. Misc. No.78754 of 2006 in\n                                Criminal Appeal No.1020-SB of 2003\n                                    Date of Decision:03.09.2009\n\n\nAjit Singh and another\n                                                          .....Appellants\n            Vs.\n\nState of Punjab\n                                                          .....Respondent\n\n\nCORAM:- HON'BLE MR. JUSTICE HARBANS LAL\n\nPresent:-   Mr. S.S. Rana, Advocate for the appellants.\n\n            Mr. Arshvinder Singh, Deputy Advocate General, Punjab.\n                         ****\nJUDGMENT\n<\/pre>\n
HARBANS LAL, J.\n<\/p>\n
            This appeal is directed against the judgment\/ order of sentence<\/p>\n
dated 17.4.2003 rendered by the Court of learned Special Judge, Moga<\/p>\n
whereby he convicted and sentenced the accused Ajit Singh as well as<\/p>\n
Mewa Singh (since deceased) to undergo rigorous imprisonment for ten<\/p>\n
years and to pay a fine of Rs.1 lac each under Section 15 of the Narcotic<\/p>\n
Durgs and Psychotropic Substances Act, 1985 (for brevity, `the Act’) and in<\/p>\n
default of payment of fine, the defaulter to further undergo rigorous<\/p>\n
imprisonment for one year.\n<\/p>\n
            The facts in brief are that on 15.12.1991, SHO Naginder Singh<\/p>\n
of Police Station Mehna amongst other police officials laid naka on the<\/p>\n
Dhudila Road in the area of Village Daudhar. Around 12:15 A.M., he
\n Criminal Appeal No.1020-SB of 2003 (O&M)                             -2-\n<\/p>\n
received secret information that the accused Ajit Singh as well as Mewa<\/p>\n
Singh are present in the house of the latter at Village Daudhar and are in<\/p>\n
possession of poppy husk in the said residential house of Mewa Singh. A<\/p>\n
large number of bags of poppy husk are still in Mewa Singh’s house. If<\/p>\n
timely raid is conducted, large number of poppy husk bags could be<\/p>\n
recovered. On receipt of this secret information, he along with other police<\/p>\n
officials conducted raid at the house of accused Mewa Singh, who along<\/p>\n
with Ajit Singh was found present in the house. It was noticed from above<\/p>\n
the wall that they were settling the gunny bags. When the police party<\/p>\n
entered the house, the accused Mewa Singh escaped from the spot through<\/p>\n
the other side of his house on catching sight of the police party. The<\/p>\n
accused Ajit Singh was apprehended from varandah of the house while he<\/p>\n
was standing with the bags of poppy husk. The SHO asked this accused to<\/p>\n
tell whether he wanted to have search of the bags in the presence of a<\/p>\n
Gazetted Officer or a Magistrate. He reposed confidence in the SHO who<\/p>\n
on search recovered 35 bags of poppy husk. A sample of 100 grams each<\/p>\n
was drawn from each bag and converted into parcels. The remainder of<\/p>\n
each bag when weighed came to 40 kgs. which was also turned into parcels.<\/p>\n
All these parcels were sealed with seals `NSR’. The seal after use was<\/p>\n
handed over to ASI Balbir Singh. The case property along with sample<\/p>\n
parcels was seized vide separate recovery memo. The ruqa was sent to the<\/p>\n
police station where on its basis, formal FIR was registered. The accused<\/p>\n
Ajit Singh was put under arrest. Mewa Singh accused was also arrested.<\/p>\n
After completion of investigation, the charge-sheet was laid in the Court for<\/p>\n
trial of the accused.\n<\/p>\n
 Criminal Appeal No.1020-SB of 2003 (O&M)                               -3-\n<\/p>\n<\/p>\n
            The accused were charged under Section 15 of the Act to which<\/p>\n
they did not plead guilty and claimed trial. To bring home guilt against the<\/p>\n
accused, the prosecution examined ASI Harinder Singh PW1, Gurbax Singh<\/p>\n
PW2, Sawaran Singh HC PW3, SI Balbir Singh PW4, Constable Jasbir<\/p>\n
Singh PW5, Naginder Singh Inspector PW6, PW7 Balkaran Singh and<\/p>\n
closed its evidence. When examined under Section 313 of Cr.P.C., both the<\/p>\n
accused denied all the incriminating circumstances appearing in the<\/p>\n
prosecution evidence against them and pleaded innocence as well as false<\/p>\n
implication. In their defence, they examined DW1 Balbir Singh, DW2<\/p>\n
Sudagar Singh, DW3 Balbir Singh and DW4 A.K. Jain.\n<\/p>\n
            After hearing the learned Additional Public Prosecutor for the<\/p>\n
State, the learned defence counsel and examining the evidence on record,<\/p>\n
the learned trial Court convicted and sentenced the accused as noticed at the<\/p>\n
outset. Feeling aggrieved therewith, they have preferred this appeal. Before<\/p>\n
proceeding further, it is pertinent to point out that as per death certificate,<\/p>\n
Mewa Singh accused had expired on 23.8.2003.\n<\/p>\n
            I have heard the learned counsel for the parties, besides<\/p>\n
perusing the record with due care and circumspection.<\/p>\n
            To begin with, the learned counsel for the appellants urged that<\/p>\n
Ajit singh appellant was arrested 5\/6 days before the alleged recovery. The<\/p>\n
telegrams were sent to the higher authorities in this regard. The appellants<\/p>\n
were arrested in the area of Police Station Badni Kalan by the S.H.O. of<\/p>\n
Police Station Mehna without any prior information to Badni Kalan Police<\/p>\n
Station. The SHO of Badni Kalan Police Station was not present at the time<\/p>\n
of alleged recovery. Thus, the SHO of Police Station Mehna Naginder
\n Criminal Appeal No.1020-SB of 2003 (O&M)                             -4-\n<\/p>\n
Singh Investigator has committed grave illegality while planting the alleged<\/p>\n
recovery on the appellants without informing the local police station in<\/p>\n
whose area, the alleged recovery was effected. Furthermore, the safeguards<\/p>\n
as provided under Section 50 of the Act have not been observed, rather the<\/p>\n
provisions of this Section have been flagrantly violated. The provisions of<\/p>\n
Section 42 of the Act have also been given a go-by. He has sought to place<\/p>\n
abundant reliance upon Directorate of Revenue and Another v.<\/p>\n
Mohammed Nisar Holia,<\/a> 2008(1) Recent Criminal Reports (Criminal)<\/p>\n
241, Chhunna alias Mehtab v. State of M.P., 2006(2) Recent Criminal<\/p>\n
Reports (Criminal) 227, State of Orissa v. A. Rajeswar Patra,<\/a> 2006(2)<\/p>\n
Recent Criminal Reports (Criminal) 129, State of Punjab v. Gurnam<\/p>\n
Kaur and others<\/a>, 2009(2) Recent Criminal Reports (Criminal) 309 and<\/p>\n
State of Punjab v. Hari Singh and Others,<\/a> 2009(2) Recent Criminal<\/p>\n
Reports (Criminal) 143.\n<\/p>\n
            To controvert these submissions, the learned State Counsel<\/p>\n
maintained that the provisions of Section 50 are not attracted as the<\/p>\n
recovery was effected from the bags and not from the person. He further<\/p>\n
puts that the recovery having been effected from the house, the conscious<\/p>\n
possession of the appellants stands abundantly established.<\/p>\n
            I have well considered the rival contentions.\n<\/p>\n
            It is own case of the prosecution that the recovery has been<\/p>\n
effected from the house.     In re: Mohamad Nisar Holia (supra), the<\/p>\n
recovery of contraband was conducted from a room in a hotel occupied by<\/p>\n
the accused. It was held by the Apex Court that hotel is a public place but a<\/p>\n
room in hotel occupied by guest is not a public place. Provisions of Section
\n Criminal Appeal No.1020-SB of 2003 (O&M)                               -5-\n<\/p>\n
42 of the Act were not required to be complied with. Herein this case, the<\/p>\n
house being not a public place, the provisions of Section 42 were required<\/p>\n
to be adhered to, as it is own case of the prosecution that the recovery has<\/p>\n
been effected in pursuance of the secret information. The prosecution has<\/p>\n
not assigned any reason for non-observance of the mandatory provisions of<\/p>\n
Section 42. Naginder Singh PW6 Investigator has stated in categoric terms<\/p>\n
in his cross-examination that “I did not write down the information given by<\/p>\n
informer before departure. I did not inform my senior officers regarding<\/p>\n
said information before conducting the raid.”         In re: Chhunna alias<\/p>\n
Mehtab (supra), the Apex Court observed that “It is not in dispute that the<\/p>\n
entry in search of the premises in question took place between sunset and<\/p>\n
sunrise at 3:00 A.M. This being the position, the proviso to Section 42 of<\/p>\n
the Act was applicable and it is admitted that before the entry for effecting<\/p>\n
search of the building neither any search warrant or authorisation was<\/p>\n
obtained nor were the grounds for possible plea that if opportunity for<\/p>\n
obtaining search warrant or authorisation is accorded, the evidence will<\/p>\n
escape indicated. In other words, there has been a non-compliance with the<\/p>\n
provisions of Proviso to Section 42 and, therefore, the trial stood vitiated.”<\/p>\n
Herein this case, as noted supra, the recovery was effected in the mid night.<\/p>\n
The prosecution has not come up with the plea that if the Investigator had<\/p>\n
got busy in taking down the secret information in writing and in forwarding<\/p>\n
the same to the superior officers, the accused would have escaped. To add<\/p>\n
further to it, as per prosecution version, the appellants were in the house. It<\/p>\n
being a midnight time, they could not be expected to leave the house unless<\/p>\n
warranted by the situation. The search warrant or authorisation was also not
\n Criminal Appeal No.1020-SB of 2003 (O&M)                               -6-\n<\/p>\n
obtained. Thus, the facts of Chhunna alias Mehtab (supra) are identical<\/p>\n
with the one in hand. Sequelly, the trial stands vitiated.<\/p>\n
             In re: A. Rajeswar Patra (supra), the search was carried of<\/p>\n
building consisting of house and shop at night time. It was held by the<\/p>\n
Supreme Court that it is a composite building and not an exclusive public<\/p>\n
place. The failure to comply with mandatory provisions of Section 42 by<\/p>\n
the Investigating Officer is fatal.\n<\/p>\n
             Naginder Singh (sic.) has testified in his cross-examination that<\/p>\n
“It is correct that Village Daudhar falls under the police station of Badhni<\/p>\n
Kalan. It is correct that I was posted as SHO at Police Station Mehna on<\/p>\n
15,.12.1991. It is correct that I did not give any information to the In-<\/p>\n
charge of Police Station Badhni Kalan before conducting the raid as I had<\/p>\n
not much time.” This evidence leaves no scope for doubt that the raid was<\/p>\n
allegedly conducted by the investigator beyond his own jurisdiction and<\/p>\n
even without informing the Police Officers of the concerned police Station<\/p>\n
for the reasons best known to him. As per police rules, if a Police Officer<\/p>\n
enters the jurisdiction of the other police station for effecting arrest or for<\/p>\n
investigation of a case, he is obligated to inform the police officers of the<\/p>\n
concerned Police Station. In certain cases, such officer also takes one or two<\/p>\n
police officials from such Police Station along. Naginder Singh (sic.) has<\/p>\n
not apportioned any reason for not informing the Police Officers of Police<\/p>\n
Station Badhni Kalan. This is an other flaw in the prosecution case.<\/p>\n
             It is in the further cross-examination of Naginder Singh (sic.)<\/p>\n
that “It is correct that there is no seal on the case property produced today. I<\/p>\n
do not remember how many seals were affixed on the case property. It is
\n Criminal Appeal No.1020-SB of 2003 (O&M)                               -7-\n<\/p>\n
correct that the slips are also not on the case property today, which were<\/p>\n
affixed at that time.” This evidence clearly indicates that the prosecution has<\/p>\n
utterly failed to connect this case property with the appellants. As surfaces<\/p>\n
in his further cross-examination “It is correct that statement of ASI Balbir<\/p>\n
Singh is in context of FIR No.66 dated 15.12.1991 of PS Badhni Kalan, but<\/p>\n
it is correct that in statement of ASI Balbir Singh Ex.DA at Mark A Police<\/p>\n
Stand Mehna has been written due to clerical mistake. Similarly in the<\/p>\n
statement of Atma Singh Ex.DB at Mark B, Police Station, Mehna has been<\/p>\n
written.” This further goes to show that even the statements of the said<\/p>\n
witnesses have been recorded in an undesirable manner. At the fag end of<\/p>\n
his cross-examination, this witness Naginder Singh has deposed that “I do<\/p>\n
not remember whether Ajit Singh has sent telegrams to the higher officers. ”<\/p>\n
Thus, he has given an evasive reply to this material question.<\/p>\n
            Balbir Singh DW1 has solemnly affirmed as under:-\n<\/p>\n
            “I know accused Ajit Singh present in court. I remained<\/p>\n
            Sarpanch of the village from the year 1983 to 1993. Accused<\/p>\n
            Ajit Singh was picked up by the police on 23.11.1991. I and<\/p>\n
            father of accused namely Nazar Singh ran from pillar to post<\/p>\n
            for knowing about whereabouts of the accused Ajit Singh. We<\/p>\n
            came to know about the illegal detention of the accused on<\/p>\n
            24.11.1991, but police did not listen our requests.              On<\/p>\n
            7.12.1991, father of the accused Ajit Singh, namely Nazar<\/p>\n
            Singh son of Natha Singh moved an application to the<\/p>\n
            Governor Punjab, Chandigarh copy of which bears the thumb<\/p>\n
            impression of Nazar Singh and who thumb marked the same in
\n Criminal Appeal No.1020-SB of 2003 (O&M)                          -8-\n<\/p>\n<\/p>\n
          my presence and same was also counter-signed by me. I<\/p>\n
          recognize my signature on copy of application, which is Ex.D1<\/p>\n
          (objected to) and similar applications dated 7.12.1991 were<\/p>\n
          sent through registered Post vide receipts no.4449, 4450 and<\/p>\n
          4451, which are Mark A to Mark C, respectively. The accused<\/p>\n
          Ajit Singh and other are falsely implicated in this case. Father<\/p>\n
          of accused namely Nazar Singh has since been died.”<\/p>\n
          DW2 Sudagar Singh has stated as under:-\n<\/p><\/blockquote>\n
          “I remained in the service of Punjab Home Guards from the<\/p>\n
          year 1986 to 1994 and I remained posted in the Police Station<\/p>\n
          Mehna from the year 1988 till 1993. I know the accused Ajit<\/p>\n
          Singh present in court. The accused Ajit Singh has been picked<\/p>\n
          up by the police before the registration of the case.         The<\/p>\n
          accused Ajit Singh remained in illegal detention of the police<\/p>\n
          for 20-22 days before registration of this very case. I was the<\/p>\n
          member of the police party on the day 15.12.91, when the<\/p>\n
          present case was registered against the accused and a house in<\/p>\n
          village Daudhar was searched. We took the accused Ajit Singh<\/p>\n
          with us from police station to Village Daudhar where some<\/p>\n
          police officials were already present in the house where search<\/p>\n
          was conducted before registration of present case against the<\/p>\n
          present accused.”\n<\/p><\/blockquote>\n
          Statement of Balbir Singh DW3 reads as under:-<\/p><\/blockquote>\n
          “I remained in service of Punjab Home Guards from the year<\/p>\n
          1990 till 1993 at Police Station Mehna. I know accused Ajit
\n Criminal Appeal No.1020-SB of 2003 (O&M)                               -9-\n<\/p>\n<\/p>\n
            Singh present in Court. Accused Ajit Singh remained under my<\/p>\n
            supervision in police quarters of police station Mehna for some<\/p>\n
            days before the registration of present case against the accused<\/p>\n
            on 15.12.1991 and on the evening of 15.12.1991, some police<\/p>\n
            officials one of them was Paramjit Singh Constable who took<\/p>\n
            the accused to the police station Mehna from Quarters. On the<\/p>\n
            next day that is on 16.12.1991, I had come to know that a case<\/p>\n
            has been registered against the accused Ajit Singh and others.”<\/p>\n
             DW4 A.K. Jain has solemnly affirmed as under:-<\/p>\n
             “I joined postal department in the year 1985. I was posted in<\/p>\n
             Post Office Nihal Singh Wala as Postal Assistant in the year<\/p>\n
             1991 December. Postal receipts bearing serial No.4450 and<\/p>\n
             4451 are in my hand writing and I recognize my handwriting<\/p>\n
             over them and the same were initialled by me. Copies of the<\/p>\n
             same are mark A, mark B and mark C. These receipts are of<\/p>\n
             dated 7.12.1991.”<\/p><\/blockquote>\n
             In my estimation, the above evidence go a long way in proving<\/p>\n
that this case is not of a genuine recovery, rather the same was foisted upon<\/p>\n
the appellants.\n<\/p>\n
             Sarwan Singh HC PW3 is the person with whom the case<\/p>\n
property was allegedly deposited. He has tendered his affidavit Ex.PD in<\/p>\n
this behalf. Under the stress of cross-examination, he says that “It is correct<\/p>\n
that on the docket dated 16.12.1991 there is no objection from the office of<\/p>\n
Chemical Examiner. I cannot say whether the objections from the Chemical<\/p>\n
Examiner was to the effect that the sample bears only one seal. I cannot say
\n Criminal Appeal No.1020-SB of 2003 (O&M)                             -10-\n<\/p>\n
whether Gurbax Singh and Naginder Singh reput fresh seal on the sample<\/p>\n
after 16.12.1991 and handed over the same to the messenger C. Balkaran<\/p>\n
Singh.” Palpably, he has given equivocal and evasive replies to all the<\/p>\n
material and relevant questions, the answers of which would have certainly<\/p>\n
been within his knowledge. Thus, it has to be presumed that the chemical<\/p>\n
examiner had raised objection that there was only one seal on the sample<\/p>\n
parcels and then Gurbax Singh ASI PW2 as well as Naginder Singh<\/p>\n
Investigator had reput fresh seals thereupon after 16.12.1991 and handed<\/p>\n
over the same to Balkaran Singh Constable for being carried to the Office of<\/p>\n
Chemical Examiner. In such a situation, the possibility of the contents of<\/p>\n
the sample parcels being changed or tampered with in any manner cannot be<\/p>\n
ruled out.\n<\/p>\n
             Coming to the question of conscious possession in re: Gurnam<\/p>\n
Kaur and others (supra), the search of the house was rendered on receipt<\/p>\n
of secret information. The contraband was recovered from beneath a bed. It<\/p>\n
was held by the Apex Court that the recovery in this manner by itself does<\/p>\n
not establish that all of them were in conscious possession of the narcotics.<\/p>\n
They were not even asked any question in regard thereto. The acquittal on<\/p>\n
this ground was upheld. In the instant case, the recovery being from the<\/p>\n
house, which is in joint possession of the members of the family does not<\/p>\n
establish the conscious possession of the appellants. In re: Hari Singh and<\/p>\n
others (supra), 16 kgs of poppy husk was recovered from the accused who<\/p>\n
were sitting atop of bags. The Apex Court observed that no question with<\/p>\n
regard to possession or conscious possession was put to the accused during<\/p>\n
their examination under Section 313 of Cr.P.C.       A circumstance about
\n Criminal Appeal No.1020-SB of 2003 (O&M)                             -11-\n<\/p>\n
which the accused was not asked to explain cannot be used against him.<\/p>\n
Thus, the conviction was set aside. Herein this case too, the question as to<\/p>\n
conscious possession was not put to the appellants while they were being<\/p>\n
examined under Section 313 of Cr.P.C. Thus, in view of Hari Singh and<\/p>\n
others’ case (supra), it cannot be held that the appellants were in conscious<\/p>\n
possession of the alleged poppy husk bags.\n<\/p>\n
            As a sequel of the above discussion, this appeal is accepted<\/p>\n
setting aside the impugned judgment.      The accused is acquitted of the<\/p>\n
charged offence.\n<\/p>\n
Crl. Misc. No.43409 of 2003 &
\nCrl. Misc. No.78754 of 2006<\/p>\n
            In view of the acceptance of main appeal, all the pending CMs<\/p>\n
are dismissed as infructuous.\n<\/p>\n<\/p>\n
September 03, 2009                                ( HARBANS LAL )\nrenu                                                   JUDGE\n\nWhether to be referred to the Reporter? Yes\/No\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Ajit Singh And Another vs State Of Punjab on 18 September, 2009 Criminal Appeal No.1020-SB of 2003 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-135033","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nAjit Singh And Another vs State Of Punjab on 18 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajit-singh-and-another-vs-state-of-punjab-on-18-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajit Singh And Another vs State Of Punjab on 18 September, 2009 - 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