Kulwinder Ram alias Gogi v. State of Punjab

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 pooja/mohinder ( DAYA CHAUDHARY ) JUDGE Whether this judgment be referred to Reporter or not ? Yes/No