{"id":54981,"date":"2009-03-16T00:00:00","date_gmt":"2009-03-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kulwant-singh-vs-the-state-of-punjab-on-16-march-2009"},"modified":"2015-11-21T18:38:07","modified_gmt":"2015-11-21T13:08:07","slug":"kulwant-singh-vs-the-state-of-punjab-on-16-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kulwant-singh-vs-the-state-of-punjab-on-16-march-2009","title":{"rendered":"Kulwant Singh vs The State Of Punjab on 16 March, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Kulwant Singh vs The State Of Punjab on 16 March, 2009<\/div>\n
Criminal Appeal No.732-DB of 2007                                 -1-\n\n\n\n\nIN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.\n\n\n\n\nKulwant Singh                                        APPELLANT\n\n\n                          VERSUS\n\n\nThe State of Punjab                                  RESPONDENT\n\n\n\n\nCORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL\n        HON'BLE MR.JUSTICE L.N.MITTAL\n\n\n\nPresent:-    Shri S.P.S.Sidhu, Advocate with Shri Kulwant Singh, Advocate\n             for the appellant.\n\n             Ms.Sonika Kapadia, Advocate, Amicus Curiae for the appellant\n             (in Cr.A.895-DB of 2007.\n\n             Shri Gurmail Singh, Advocate.\n\n             Shri Satinder Singh Gill, Additional A.G. Punjab.\n\n\n\n\nMEHTAB S.GILL, J.\n<\/pre>\n
             We will be deciding Criminal Appeal No.732-DB of 2007 and<\/p>\n
Criminal Appeal No.895-DB of 2007 by this common judgment, as they arise out<\/p>\n
of the same judgment\/order dated 1.8.2007 of the learned Special Judge, Moga<\/p>\n
whereby he convicted Kulwant Singh son of Bachittar Singh and Gurmail Singh<\/p>\n
son of Sadhu Singh under Section 15 of the Narcotic Drugs and Psychotropic
\n Criminal Appeal No.732-DB of 2007                                    -2-<\/span><\/p>\n
Substances Act, 1985 (hereinafter referred to as the Act) and sentenced them to<\/p>\n
undergo RI for 12 years and to pay a fine of Rs.1,25,000\/- each, in default, to<\/p>\n
further undergo RI for one year and six months.\n<\/p>\n
             The case of the prosecution is unfolded by the Ruqa Ex.P6 sent by<\/p>\n
SI Sukhmander Singh, S.H.O., Police Station Nihansinghwala. In the Ruqa he<\/p>\n
stated that he along with the Assistant Sub Inspector, HC Raj Singh, HC Jasbir<\/p>\n
Singh, Constable Naib Singh, Constable Jagtar Singh and PHG Ranjit Singh were<\/p>\n
on patrol duty in Govt. Gypsy No.PB08-L-2280 driven by HC Satpal Singh. When<\/p>\n
they were going from the side of Village Khai on the kacha path towards Village<\/p>\n
Pakharwadh (Kishangarh), on the curve, Nirmal Singh son of Mahla Singh Harijan<\/p>\n
of Village Khai met them. They joined him in their party. The police patty<\/p>\n
proceeded to Village Pakharwadh. When they reached the semnala in the area of<\/p>\n
Village Khai, the police party saw that two persons were sitting on the bags lying<\/p>\n
on the northern bank of the semnala. On seeing the police party, one of the said<\/p>\n
persons ran through the semnala towards Village Pakharwadh. The Assistant Sub<\/p>\n
Inspector stopped the Jeep and came down and with the help of other officials<\/p>\n
apprehended the man sitting on the bags. He disclosed his name as Gurmel Singh<\/p>\n
alias Gela son of Sadhu Singh of Village Khai. The Assistant Sub Inspector then<\/p>\n
asked about the name of the other person who ran away. Nirmal Singh said that<\/p>\n
his name was kulwant Singh alias Kanta son of Bachittar Singh resident of Village<\/p>\n
Khai. SI Sukhmander Singh and the Assistant Sub Inspector asked Gurmel Singh<\/p>\n
that the bags seem to contain some intoxicant substance. He was asked as to<\/p>\n
whether he wanted to be searched by the Assistant Sub Inspector or by a Gazetted<\/p>\n
Officer. Gurmel Singh stated that his search be conducted by a Gazetted Officer.<\/p>\n
A memo was prepared by SI Sukhmander Singh and the Assistant Sub Inspector<\/p>\n
requested Raghbir Singh Sandhu, D.S.P., Baghapurana to reach the spot. The<\/p>\n
D.S.P. Baghapurana along with his Reader Gursewak Singh reached the spot on a
\n Criminal Appeal No.732-DB of 2007                                     -3-<\/span><\/p>\n
Govt. Gypsy.    The D.S.P. disclosed his identity to Gurmel Singh and asked<\/p>\n
whether he had confidence in him. Gurmel Singh stated that he had no objection if<\/p>\n
the bags are now searched. The D.S.P. directed the Assistant Sub Inspector to open<\/p>\n
the bags and check the same. The Assistant Sub Inspector then opened the mouths<\/p>\n
of the bags which were found to contain poppy husk. Thereafter out of each bag<\/p>\n
two samples each weighing 250 grams were separated and each of the remaining<\/p>\n
bags came to be 31 kg. 50 grams. Six bags and 12 parcels of samples were tied<\/p>\n
and converted into parcels and the same were sealed with the seal bearing “RS”<\/p>\n
attested by the D.S.P. Sample seal was prepared separately and it was attested by<\/p>\n
the D.S.P. The D.S.P. also sealed all the parcels with his seal “RS”. The seal after<\/p>\n
use was handed over to HC Raj Singh and the D.S.P. kept his seal with him. SI<\/p>\n
Sukhmander Singh along with the Assistant Sub Inspector then took all the six<\/p>\n
bags and 12 parcels of samples containing poppy husk duly sealed along with the<\/p>\n
sample seal, into his possession vide memo attested by the witnesses. On the basis<\/p>\n
of this ruqa, F.I.R. Ex.P7 was recorded.\n<\/p>\n
             The prosecution to prove its case, brought into the witness-box ASI<\/p>\n
Ruldu Singh PW-1, Nirmal Singh PW-2, Constable Karnail Singh PW-3, HC Raj<\/p>\n
Singh PW-4, HC Sukhmander Singh PW-5, Constable Karnail Singh PW-6,<\/p>\n
Raghbir Singh D.S.P. PW-7, SI Sukhchain Singh PW-8 and                Baljit Singh<\/p>\n
Photographer PW-9.\n<\/p>\n
             Learned counsel for the appellants have argued that recovery was<\/p>\n
made from an open space i.e. semnala. This was government land. Anybody<\/p>\n
could have put the bags there and the appellants were falsely implicated in this<\/p>\n
case as Nirmal Singh PW-2 had a grievance against appellant Kulwant Singh. No<\/p>\n
specific question was put to the appellants when they were examined under<\/p>\n
Section 313 Cr.P.C. regarding the appellants being in conscious possession of the<\/p>\n
bags of poppy husk. This is a legal flaw which itself goes to the root of the case.
\n Criminal Appeal No.732-DB of 2007                                    -4-<\/span><\/p>\n
The Investigating Officer was bound to go further into the aspect as to how the<\/p>\n
case property was lying there, who transported it and to come to a definite<\/p>\n
conclusion that the case property was of the appellants. No neighbouring land<\/p>\n
owners were questioned regarding the case property. Sitting itself on the bags<\/p>\n
does not prove conscious possession.       In fact, as per the prosecution case,<\/p>\n
appellant Kulwant Singh was not arrested from the spot. He was not identified by<\/p>\n
appellant Gurmel Singh, but by Nirmal Singh PW-2.\n<\/p>\n
             There are discrepancies in the statements of the official witnesses<\/p>\n
regarding the running away of       Kulwant Singh.     Some witness stated that<\/p>\n
appellants were wearing shoes, and some stated that appellant did not have the<\/p>\n
shoes. There was no need for the police party to run after Kulwant Singh. When<\/p>\n
he was running through the semnala, the police party being armed, could have<\/p>\n
fired in the air to stop him from running away.\n<\/p>\n
             SI Sukhchain Singh PW-8 after using his seal, should have given it to<\/p>\n
the independent witness Nirmal Singh PW-2, so that no tampering could take<\/p>\n
place, but instead he handed it over to HC Raj Singh PW-4, who is junior to him.<\/p>\n
There was all likelihood of the samples being tampered with.<\/p>\n
             Learned counsel for the State has argued that there was no need for<\/p>\n
the Investigating Officer to go deeply into the matter of conscious possession, as<\/p>\n
the appellants were sitting on the bags of poppy husk when one of them Gurmel<\/p>\n
Singh was apprehended while Kulwant Singh ran away. The poppy bags were<\/p>\n
lying near the semnala on government land. If it had been lying in somebody’s<\/p>\n
private land, then the Investigating Officer was bound to question the owners of<\/p>\n
that land as to how the bags were lying there. But in the case in hand, since the<\/p>\n
appellants were sitting on these bags, the presumption is very clear that the<\/p>\n
possession of these bags was that of the appellants. Appellant Kulwant Singh ran<\/p>\n
away. This also pointed towards the guilt of the accused. There is no suggestion
\n Criminal Appeal No.732-DB of 2007                                     -5-<\/span><\/p>\n
put to SI Sukhchain Singh PW-8 or ASI Ruldu Singh PW-1 regarding any<\/p>\n
tampering being done with the case property. The case property was produced<\/p>\n
before the J.M.I.C. SI Sukhchain Singh PW-8 moved an application Ex.P17<\/p>\n
before the C.J.M.       The C.J.M., Moga then passed the order Ex.P17\/A and<\/p>\n
thereafter the case property was taken to the police station and deposited with the<\/p>\n
M.H.C. As per the F.I.R. Ex.P7 which gets corroboration from the statements of<\/p>\n
ASI Ruldu Singh PW-1 and SI Sukhchain Singh PW-8, all the appellants were<\/p>\n
sitting on the box.\n<\/p>\n
              We have heard the learned counsel for the parties and perused the<\/p>\n
record with their assistance.\n<\/p>\n
              Learned counsel for the appellants have laid much stress in their<\/p>\n
arguments that the recovery was made on the banks of the Semnala. The bags<\/p>\n
were allegedly lying in an open space on land which belonged to the State of<\/p>\n
Punjab. Appellants could not be held liable for the recovery of six bags of poppy<\/p>\n
husk. No specific question was also put under Section 313 Cr.P.C. regarding<\/p>\n
conscious possession.\n<\/p>\n
              This argument of the learned counsel for the appellants does not cut<\/p>\n
much ice. As per the statement of ASI Ruldu Singh PW-1, the Investigating<\/p>\n
Officer, he along with the police party was on patrol duty and while going on the<\/p>\n
Kacha path leading to Village Pakharwadh, on reaching near the Kacha path, they<\/p>\n
joined Nirmal Singh PW-2 as an independent witness. When they reached in the<\/p>\n
area of Village Khai near the Semnala, they saw two persons sitting on bags on<\/p>\n
the side of the canal. One of them ran away, while the other was caught at the<\/p>\n
spot. The person who was caught, said that his name was Gurmel Singh. The<\/p>\n
independent witness Nirmal Singh PW-2 identified the person who ran away being<\/p>\n
appellant Kulwant Singh.\n<\/p>\n
              Similarly, the other witness to the recovery HC Raj Singh PW-4 has
\n Criminal Appeal No.732-DB of 2007                                       -6-<\/span><\/p>\n
also stated the same. It is clear from the statements of these witnesses that both the<\/p>\n
appellants were sitting on the bags of poppy husk and Kulwant Singh was<\/p>\n
identified by no other person, than the independent witness Nirmal Singh PW-2.<\/p>\n
The testimony of these witnesses could not be shattered in cross-examination. The<\/p>\n
bags were lying on government land. If they had been lying on land of which<\/p>\n
ownership was of a private person, then the argument of the learned counsel for<\/p>\n
the appellants would have had some weight that the Investigating Officer should<\/p>\n
have investigated further to find out as to how the bags were lying on the land of a<\/p>\n
private person. Then the owner of that land should have been questioned.<\/p>\n
              After the recovery was made and the necessary formalities were gone<\/p>\n
through of taking of the samples, the case property was produced before SI<\/p>\n
Sukhchain Singh PW-8. SI Sukhchain Singh PW-8 further produced the case<\/p>\n
property before the C.J.M., Moga vide application Ex.P17. The C.J.M., Moga<\/p>\n
passed order Ex.P17\/A that the case property be kept in custody in the Malkhana<\/p>\n
of the police station. The next senior person i.e. Raghbir Singh D.S.P. PW-7 knew<\/p>\n
about the recovery as he himself had gone when being asked as the appellants<\/p>\n
wanted to be searched in the presence of a Gazetted Officer. Question No.1 put to<\/p>\n
the appellants in their statements under Section 313 Cr.P.C. has clearly spelt out<\/p>\n
that they were sitting on the contraband in six bags and Kulwant Singh ran away,<\/p>\n
while Gurmel Singh was caught on the spot. The question is elaborate and clear as<\/p>\n
to whether the appellants were consciously in possession of six bags or not.<\/p>\n
Nothing more specific could have been asked from the appellants in their<\/p>\n
statements under Section313 Cr.P.C.\n<\/p>\n
              With the above discussion and observations, we do not find any<\/p>\n
infirmity in the judgment of the learned trial Court. Conviction of the appellants<\/p>\n
is maintained. Sentence seems to be on the higher side. Sentence of the appellants<\/p>\n
is modified from 12 years RI to 10 years RI and fine is also reduced from
\n Criminal Appeal No.732-DB of 2007                             -7-<\/span><\/p>\n
Rs.1,25,000\/- to Rs.1,00,000\/-.\n<\/p>\n
             With the above modification in sentence, both the appeals are<\/p>\n
dismissed.<\/p>\n
\n\n                                          ( MEHTAB S.GILL )\n                                              JUDGE\n\n\n\n\n                                            ( L.N.MITTAL )\nMarch 16, 2009                                  JUDGE\nGD\n\n\n\n\n             WHETHER TO BE REFERRED TO REPORTER? YES\/NO\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Kulwant Singh vs The State Of Punjab on 16 March, 2009 Criminal Appeal No.732-DB of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Kulwant Singh APPELLANT VERSUS The State of Punjab RESPONDENT CORAM : HON’BLE MR.JUSTICE MEHTAB S.GILL HON’BLE MR.JUSTICE L.N.MITTAL Present:- Shri S.P.S.Sidhu, Advocate with Shri Kulwant […]<\/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-54981","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nKulwant Singh vs The State Of Punjab on 16 March, 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\/kulwant-singh-vs-the-state-of-punjab-on-16-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kulwant Singh vs The State Of Punjab on 16 March, 2009 - 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