Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001 v. State of Punjab

Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. This judgment will dispose of the aforesaid appeals as they arise out of the same First Information Report. Appellants Jasbir alias Maru, Surinder Pal alias Chhinda, Balbir Singh alias Beera and Darshan alias Kala have filed these appeals against the judgment of conviction and the sentence order dated 1.6.2001 passed by the Judge, Special Court, Jalandhar, whereby they were convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay Rs.1 lac as fine, each, in default whereof to undergo further rigorous imprisonment for two years. The facts of the prosecution case, in brief, are that on

27.9.1998, Deputy Superintendent of Police Pargat Singh along with Assistant Sub Inspector Som Nath, Assistant Sub Inspector Bahadur Singh and other police officials was present at T-Point, Bhar Singh Pura in connection with picket duty. Amarjit, Ex-Sarpanch, met them per chance and he was joined in the police party. At about 1 P.M, vehicle Tata 407 bearing registration No.PB-10-X-9459 came from the side of Phillaur. The Deputy Superintendent of Police got the -3- Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001. same stopped by giving a signal. Two persons sitting in the body of the tempo succeeded in running away from the spot. In the cabin of the tempo a driver and one other person were sitting. They were intercepted. On inquiry by the Deputy Superintendent of Police, the Driver told his name as Balbir Singh alias Beera and his companion told his name as Darshan alias Kala. These two persons told the names of those two who had run away from the spot as Surinder Pal alias Chhinda and Jasbir alias Maru. Thereafter, the two persons, who had been apprehended, were told turn by turn by the police that there appeared to be something suspicious in the tempo and its search was to be conducted. These persons were apprised of their right to be searched in the presence of a Magistrate or a gazetted officer. The accused reposed faith in the Deputy Superintendent of Police and asked him to search the tempo. Consent memos (Exhibits P.B and P.C) of the accused were reduced into writing. Appellant Darshan alias Kala thumb marked the same and accused Balbir Singh alias Beera put his signatures on his consent memo. The memos were attested by Amarjit, Ex Sarpanch and Assistant Sub Inspector Bahadur Singh. Then search of the tempo was conducted and from underneath the tarpaulin 12 bags containing poppy husk were recovered. Arrangement for weighing the bags was made through Assistant Sub Inspector Bahadur Singh. 250 grams of poppy husk were taken out from each bag and converted into parcels. Then the bags were weighed and each bag was found to contain 39 Kgs and 750 grams -4- Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001. poppy husk. The sample parcels and the bags were sealed by the Deputy Superintendent of Police with his seal bearing impression `PS'. Sample seal was prepared separately. The sample parcels, the bags of poppy husk, duly sealed with seal `PS', sample seal along with tempo Tata 407, its registration certificate and Tarpaulin were taken into possession vide recovery memo Exhibit P.D attested by P.W Amarjit and Assistant Sub Inspector Som Nath. Seal after use was handed over to Assistant Sub Inspector Som Nath. Deputy Superintendent of Police Pargat Singh then sent ruqa (Exhibit P.E) to the Police Station, on the basis of which First Information Report (Exhibit P.E/1) was registered against the accused for the offence punishable under Section 15 of the Act. The Investigating Officer prepared site plan (Exhibit P.F) of the place of recovery. After completion of investigation and due formalities, challan against the accused was presented in Court. Charge was framed against the appellants for the offence punishable under Section 15 of the Act. They did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined Constable Ashok Kumar (P.W.1), Kiranjit Kaur, Clerk, D.T.O. Office, Ludhiana (P.W.2), Assistant Sub Inspector Bahadur Singh (P.W.3), Assistant Sub Inspector Som Nath (P.W.4), Pargat Singh, Superintendent of Police, Investigating Officer (P.W.5) and Head Constable Amarjit Singh. -5- Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001. In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded innocence. In his statement recorded under Section 313 of the Code of Criminal Procedure, appellant Balbir Singh alias Beera stated as under:- “I am innocent. I along with Darshan Singh was taking Tata bearing registration No.PB- 10-X-9459 full of Bananas which was apprehended by police officials of P.S. Phillaur. They wanted the truck for `Baigaar' purpose to which we refused as the Bananas were perishable commodity. There was exchange of hot wards between us and the police officials. Thereafter police of Police Station Phillaur falsely implicated me in the present case in the presence of Mohinder Singh, Sarpanch, of Ashahoor and Amarjit.” In his statement recorded under Section 313 of the Code of Criminal Procedure, appellant Darshan alias Kala stated as under:- “I am innocent. I along with Balbir Singh was -6- Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001. taking Tata 407 bearing registration No.PB-10- X-9459 full of Bananas which was apprehended by police officials of P.S. Phillaur. They wanted the truck for `Baigaar' purpose to which we refused as the Bananas were perishable commodity. There was exchange of hot words between us and the police officials. Thereafter police of Police Station Phillaur falsely implicated me in the present case in the presence of Mohinder Singh, Sarpanch of Ashahoor and Amarjit.” In his statement recorded under Section 313 of the Code of Criminal Procedure, appellant Surinder Pal alias Chhinda stated as under:- “I am innocent. I was not present in Tata 407 bearing registration No.PB-10-X-9459 on

27.9.98 nor I jumped from the said vehicle as alleged by the police officials of P.S.Phillaur. I was falsely implicated in the present case on the basis of suspicion only and due to party faction in the village. I was arrested from my house in the presence of Balwinder Singh alias Billa, President Welfare Society and Darshan -7- Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001. Singh.” In his statement recorded under Section 313 of the Code of Criminal Procedure, appellant Jasbir alias Maru stated as under:- “ I am innocent. I was not present in Tata 407 bearing registration No.PB-10-X- 9459 on 27.9.1998 nor I jumped from the said vehicle as alleged by the police officials of P.S. Phillaur. I was falsely implicated in the present case on the basis of suspicion only and due to enmity and party faction in the village. I was arrested from my house in the presence of Sheesh Singh, Sarpanch and Piara Singh, Lambardar.” Amarjit (D.W.1), Mohinder Ram (D.W.2) and Balwinder Singh (D.W.3) were examined by the appellants in their defence. Amarjit Singh (D.W.1) deposed that on 26.9.1998 he went to police station Phillaur to see his aunt Nirmala who was posted as S.P.O. Two persons whom he recognized but did not know their names were present in the police station. He further stated that there was an altercation of accused Balbir Singh alias Beera and Darshan Singh alias Kala with the police on account of one truck as the police -8- Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001. wanted to take the truck for `baigaar' purpose but they refused to meet the said demand of the police. The accused were pleading that the truck was loaded with bananas as the same were perishable commodity. He knew Assistant Sub Inspector Som Nath who also remained posted at Ganna Pind. Assistant Sub Inspector Som Nath was also having dispute with them. The police pushed the said accused and put them in the lock up and got their thumb impressions on the blank papers. No recovery of poppy husk was effected in his presence. He did not make any statement to the police in this regard. Mohinder Ram (D.W.2) deposed that he was Sarpanch of village Ashahoor. He stated that accused Balbir Singh belonged to his village. On 26.9.1998 he came to know that one truck loaded with bananas was detained by the police of Police Station, Phillaur, and the said accused was also arrested by the police. He along with 4-5 persons went to the police station and inquired from the police but they were assured that the accused would be released. The truck was loaded with bananas but no recovery of poppy husk was effected from the accused. Balwinder Singh (D.W.3) deposed that he knew accused Surinder Pal alias Chhinda. He was resident of Street No.5 Amar Nagar, Ludhiana. He further deposed that he was President of Amar Nagar. On 26.9.1998, the wife of accused Surinder Pal alias Chhinda, namely Sarbjit Kaur, came to him and brought to his notice that police had come to her house and wanted to take Chihinda with them. He -9- Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001. visited the house of accused Surinder Pal alias Chhinda and made inquiries from police. The police assured him that the accused was being taken to Police Station Phillaur. When approached at the Police Station, the police told that on the directions of higher officer, the accused had to be challaned in the case under the Act. I have heard the learned counsel for the parties and have gone through the records of the case. No doubt, the case of the prosecution is based on the statements of the official witnesses, namely, Assistant Sub Inspector Bahadur Singh (P.W.3), Assistant Sub Inspector Som Nath (P.W.4) and Pargat Singh, Superintendent of Police, Investigating Officer (P.W.5), who are witnesses of the recovery and their statements cannot be disbelieved merely because of their official status if they otherwise inspire confidence. However, taking into account the evidence on record, I am of the considered opinion that the statements of Assistant Sub Inspector Bahadur Singh (P.W.3), Assistant Sub Inspector Som Nath (P.W.4) and Superintendent of Police Pargat Singh, Investigating Officer (P.W.5) do not stand the scrutiny of the Court. Assistant Sub Inspector Bahadur Singh (P.W.3) deposed that when the vehicle was stopped on 27.9.1998, on a signal by the Police party, the driver and another person i.e. Balbir Singh and Darshan Singh, were apprehended at the spot while the absconders were Jasbir Singh alias Maru and Surinder Pal alias Chhinda. He further deposed that he had arrested Surinder Pal and Jasbir Singh on 25.11.1998 and -10- Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001. they were present in Court. During cross-examination on behalf of the accused, he stated that he did not know accused Jasbir Singh alias Maru and accused Surinder Pal alias Chhinda earlier, who had run away from the spot. He stated that they came to know the names and whereabouts of these accused from other accused at the spot and they had no other source. He stated that no identification parade was conducted of the accused. He further stated that he had seen the accused for the first time in the Court. Assistant Sub Inspector Som Nath (P.W.4) also deposed that accused Surinder Pal alias Chhinda and Jasbir Singh alias Maru had absconded from the spot. He had identified both the accused in the Court. During cross-examination on behalf of the accused, he also stated that he did not know accused Jasbir Singh and Surinder Pal and had seen them for the first time in the Court. He stated that the description of accused Jasbir Singh and Surinder Pal was not mentioned in the report. He also stated that no identification parade was conducted of the accused. Superintendent of Police (the then Deputy Superintendent of Police) Pargat Singh (P.W.5) deposed that at the instance of the co-accused the names of the persons who ran away from the spot were known as Surinder Pal alias Chhinda and Jasbir Singh alias Maru. During cross-examination, he also stated that he did not know the accused earlier who had run away from the spot. He stated that no identification parade of the accused who had run away from the spot was conducted. He further stated that he had seen both the accused in the court for the first time. The examination in- chief of Assistant Sub Inspector Bahadur Singh (P.W.3) and Assistant -11- Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001. Sub Inspector Som Nath (P.W.4) was conducted on 25.9.2000 and

5.12.2000 respectively, whereas these witnesses were cross-examined on behalf of the accused on 9.4.2001 and the statement of Superintendent of Police Pargat Singh (P.W.5) was recorded on

24.4.2001. The occurrence had taken place on 27.9.1998. Thus, it would be clear that the evidence of the witnesses had been recorded after more than two years of the alleged recovery. As per the case of the prosecution, the witnesses did not know two of the accused -appellants earlier, as mentioned above, and no test identification parade of the said accused was held and the witnesses had seen these accused-appellants for the first time in the Court. Taking this evidence of the prosecution into consideration, the case of the prosecution against the accused is not free from doubt. Besides, ruqa (Exhibit P.E) was recorded after getting the search conducted of the tempo and a Constable was sent to the Police Station to lodge the First Information Report. Obviously, by that time the First Information Report number was not known to the police. However, First Information Report No.136 dated

27.9.1998 under Section 15-61-85 of the Act had been mentioned on the top of the recovery memo (Exhibit P.D). It is not understandable as to how the number of First Information Report appeared on the top of the recovery memo (Exhibit P.D) when the First Information Report number was not mentioned in the consent memo (Exhibits P.B) of appellant Darshan alias Kala and consent memo (Exhibit P.C) of appellant Balbir Singh -12- Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001. alias Beera when all these documents were prepared at the same time and in the same transaction. The documents Exhibit P.B, P.C and P.D were prepared at the spot. The insertion of First Information Report number in the recovery memo (Exhibit P.D) leads to the inference that the First Information Report was recorded prior to the alleged recovery of contraband or number of First Information Report was inserted in this document after its registration. In both the situations, this fact, coupled with the evidence of the prosecution discussed above, casts a doubt upon the veracity of the prosecution version. The defence has also relied upon the document (Exhibit D.B) which is recovery memo in respect of personal search of accused- appellant Balbir Singh alias Beera. It has been mentioned in recovery memo (Exhibit D.B) that Rs.50/- had been recovered from appellant Balbir Singh. However, Superintendent of Police Pargat Singh (P.W.5), in his cross-examination, stated that Rs.250/- had been recovered from the personal search of accused-appellant Balbir Singh. In Register No.19 maintained by the police, nothing has been mentioned regarding the recovery of Rs.250/- from the personal search of accused-appellant Balbir Singh. No doubt, it is well-settled that the accused can take advantage of only inherent and major contradictions in the prosecution case and not of small contradictions, but when viewed considering the overall case of the prosecution, discussed above, this discrepancy in the document (Exhibit D.B) prepared at the spot in respect -13- Criminal Appeal No.747-SB of 2001 and Criminal Appeal No.983-SB of 2001. of the personal search of accused Balbir Singh alias Beera casts a serious doubt upon the genuineness of the prosecution version. In view of the above and without dilating any further on the issue, the case of the prosecution is not free from doubt. Resultantly, this appeal succeeds. The same is allowed, the impugned judgment of conviction and the sentence order are set aside and the accused-appellants are acquitted of the charge framed against them by giving him the benefit of doubt. March 17, 2010. ( MOHINDER PAL ) JUDGE