Criminal Appeal No.2111-SB of 2004 v. State of Haryana

CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. Kuldeep V.Singh Advocate for the appellant. Ms. Sushma Chopra, Additional Advocate General, Haryana for the State-respondent. -.- MOHINDER PAL, J. Appellant Maghar Singh @ Toti has filed this appeal against the judgment of conviction and the sentence order dated

11.09.2004 passed by the Additional Sessions Judge, Sirsa, whereby he was convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as -2- Criminal Appeal No.2111-SB of 2004 `the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- , in default whereof to undergo further rigorous imprisonment for two years. The prayer made in this appeal is to set aside the impugned judgment and the sentence order by way of acceptance of this appeal and to acquit the appellant of the charge framed against them under Section 15 of the Act. A few facts of the prosecution case may be noticed. On

15.06.2002, Assistant Sub Inspector Kamal Singh, Special Staff, Sirsa along with Head Constable Ram Mehar, Head Constable Ram Murti, Head Constable Shayam Dass, Constabhle balwan Singh and Constable Ajaib Singh was going in a government Gypsy bearing registration No. HR-24-F-7908 which was being driven by Constable Ajmer Singh in connection with patrolling and crime detection duty. The police party was proceeding from Village Jhiri to Panjmala and when it reached at T Point Alika in the area of Village Panjmala, one person was seen concealing one gunny bag in a Roori (Manure Pit) with a Kassi (spade). On seeing the police vehicle, the accused left the spade and gunny bag and ran away towards the fields. Assistant Sub Inspector Kamal Singh along with other police officials gave a hot chase to the accused but he succeeded in fleeing away from the spot. The accused- appellant had allegedly been identified as Maghar Singh alias Toti by Head Constables Ram Mehar and Shyam Dass as the accused- appellant was previously known to them. The police party then returned to the spot where the accused-appellant was concealing a gunny bag in the manure pit. In the meantime, Satnam Singh, an -3- Criminal Appeal No.2111-SB of 2004 independent witness, was joined in the police party to witness the recovery. On reaching the spot, the police party found three bags concealed in the manure pit. When the same were opened and checked, poppy straw was found therein. Two samples of 100 grams were separated from each bag. These samples were converted into parcels, which were sealed. The poppy husk, on weighment, was found to be 40 Kgs in two bags and 14 kgs in one bag. These three bags were also sealed. The parcels containing samples and the poppy husk contained in thre bags were thereafter taken into possession. Rough site plan was prepared showing the place of recovery. The Investigating Officer then sent `ruqa' to Station House Officer of police station Rori through constable Ajaib Singh and on its basis formal First Information Repot under section 15 of the Act was recorded by Moharrir Head Constable Nafe Singh. Rough site plan was prepared showing the place of recovery. Statements of the witnesses recorded under Section 161 of the Code of Criminal Procedure. After receipt of the report of Forensic Science Laboratory and on completion of investigation of the case, challan under Section 173 of the Code was presented against the accused-appellant in Court. Charge under Section 15 of the Act was framed against the appellant to which he did not plead guilty and claimed trial. In order to prove its case against the accused, the prosecution examined as many as five witnesses namely Head -4- Criminal Appeal No.2111-SB of 2004 Constable Nafe Singh (P.W.1), Constable Sita Ram (P.W.2), Satnam Singh (P.W.3), Assistant Sub Inspector Kamal Singh (P.W.4) and Head Constable Ram Mehar (P.W.5) In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded false implication due to party faction in the village. In his defence, the appellant examined Moharrir Head Constable Madan Lal (D.W.1) and Constable Ajmer Singh (D.W.2). I have heard Kuldeep V.Singh Advocate, appearing for the appellant and Ms. Sushma Chopra, Additional Advocate General, Haryana, appearing for the State-respondent and have gone through the records of the case. Learned counsel for the appellant argued that the case of the prosecution is based only on the statements of the official witnesses and the independent person, namely, Satnam Singh (P.W.3) did not support the prosecution. According to the learned counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. After giving a careful thought to the argument raised by the learned counsel, I find sufficient force therein. No doubt, a verdict of acquittal cannot follow the moment the witnesses turn hostile and dispensation of justice is not dependant upon the witnesses who make efforts to hold the law to ransom. Once the prosecution case is established on record by the other cogent and trustworthy evidence led by the prosecution, -5- Criminal Appeal No.2111-SB of 2004 non-supporting of its case by the witnesses who appeared to have been won over by the accused does not at all affect the prosecution case. However, if the prosecution case is itself doubtful, as in the present case, it entitled the accused to acquittal. As noticed above, the accused-appellant had not been apprehended at the spot. Head Constables Ram Mehar and Shyam Dass had allegedly identified the accused. Out of them Ram Mehar Head Constable has been examined as P.W.5. However, he (P.W.5 Ram Mehar) did not tell anything as to how he identified the accused-appellant. In these circumstances, except the statement made by Ram Mehar (P.W.5) that the accused-appellant was present on the spot and was in conscious possession of poppy husk, there is no other evidence on record to show the ownership of the poppy husk by the appellant. As noticed above, the bags containing poppy husk were recovered from a manure pit at an abandoned place. The police, in all fairness, should have conducted further investigation to prove that accused-appellant Maghar Singh was really in possession of these bags. The police ought to have conducted further investigation as to the transportation of poppy bags to the place of incident, ownership of the poppy hsuk etc. to prove that the accused was really in possession of the said articles. It casts a serious doubt on the prosecution version. There is, thus, no evidence on record to show the ownership of the poppy husk by the appellant. In the case of State of Punjab v. Balkar Singh and -6- Criminal Appeal No.2111-SB of 2004 another, 2004 Supreme Court Cases (Cri.) 838, wherein the accused-respondents, who belonged to different villages as are the appellants in this case, were alleged to have been found present at a place wherefrom about 100 bags of poppy straw were recovered, sitting on such bags, and failed to give any satisfactory explanation for being present at that place, it was held by the Hon'ble Supreme Court that merely by being found present at the place where the poppy bags were found and the failure to give satisfactory explanation for being so present did not prove that the accused persons were in possession of said poppy hags. Holding thus, the Apex Court dismissed the appeal of the State against the acquittal of the accused-respondents. Similar view was taken by a Division Bench of this Court in the case of Bikkar Singh v. State of Punjab, 2006 (3) R.C.R (Criminal) 16 wherein the accused-appellant Balkar Singh was found sitting on 120 bags of poppy husk lying in a sugarcane field and it was held by this Court that custody and control of accused over the substance was not proved beyond doubt. For taking this view, reliance was placed by a Division Bench of this Court on the authority reported as State of Punjab v. Balkar Singh, 2004 Supreme Court Cases (Cri.) 838. In the case of State of Punjab v. Nachhattar Singh alias Bania, 2007 (3) RCR (Criminal) 1040: 2007 (3) P.L.R.122 , wherein the accused therein was found sitting on bags of poppy husk near a river and the police did not ascertain whether bags belonged to accused or not and how bags -7- Criminal Appeal No.2111-SB of 2004 were transported to the place of recovery, it was held by a Division Bench of this Court that it was not sufficient to prove conscious possession of the accused. Accordingly, the appeal filed by the State against the acquittal of the accused therein was dismissed. Further, in the case of Sukhdev Singh alias Sukha v. State of Punjab, 2006 (1) R.C.R (Criminal) 4 : 2006 (1) Cri. C.C 934, where the accused was found sitting on six bags of poppy husk, it was observed by a Division Bench of this Court that the police should have conducted further investigation to prove that the accused was really in possession of these bags and the failure to give any explanation by the appellant therein for being present on that place itself does not prove that he was in possession of these articles. In view of the above, the charge under Section 15 of the Act against the accused-appellant is not proved beyond every reasonable doubt. Resultantly, I accept this appeal and acquit the appellant of the charge framed against him by giving him the benefit of doubt by setting aside the impugned judgment of conviction and the sentencer order. MaY 11, 2010. ( MOHINDER PAL ) JUDGE