Criminal Appeal No.S-869-SB of 1998 v. Mr. Manish Deswal, Deputy A.G., Haryana

Police Station, Jhansa, on the basis of which FIR No. 79 dated 1.4.1997 under Section 15 of the Act was registered against the appellants. Thereafter, Nakabandi was held on the western bank of SYL canal where both the appellants came on a motor cycle from the side of village Udarsi. They were made to stop. Mangal Singh appellant was driving the motorcycle whereas Pala Singh appellant was the pillion rider. There was a gunny bag lying in between them. A notice was served on the appellants asking them for their choice of officer to witness the search and they the search before the Gazetted Officer. As M.L.Mangal, A.E.T.O. was there, he was joined and 36 kgs. of poppy husk was found in the gunny bag. Two samples were drawn the bulk and samples and the remainder were sealed with the seal 'SL'. The seal was handed over to ASI Varinder Singh. Sample and the remaining bulk were also sealed with the seal of 'ML' belonging to A.E.T.O., which was retained by the A.E.T.O. Recovery memo was prepared. The appellants were arrested. Upon completion investigation Criminal Appeal No. S-869-SB of 1998 -3- presentation of the challan, followed by its commitment to the Court of Sessions, charge under Section 15 of the Act was framed against the appellants, to which they pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 Constable Sulender Singh, PW2 HC Sushil Kumar, PW3 M.L.Mangal, E.T.O., Karnal, PW4 ASI Varinder Singh and PW5 SI Shayam (Sham) Lal. When examined under Section 313 Cr.P.C., the appellants denied all the allegations of the prosecution and stated that they had been falsely implicated in this case. In defence, they did not examine any witness. After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court believed the prosecution version and convicted and sentenced the appellants, as mentioned above. I have heard learned counsel for the parties and perused the evidence with their able assistance. Learned counsel for the appellants submitted that though after receipt of the secret information, SI Sham Lal prepared ruqa Ex.PE and sent the same to the Police Station for registration of a case yet the various documents, prepared by him while effecting the recovery of the contraband and conducting other proceedings, bore the Criminal Appeal No. S-869-SB of 1998 -4- FIR number which could not have been there as by that time no FIR on the basis of ruqa stood registered. The mentioning of the FIR number on the various documents goes a long way to show that the appellants were falsely implicated in the case. It is the prosecution case that SI Sham Lal, alongwith ASI Varinder Singh and other police officials was present at Salpani chowk in connection with patrolling when a secret information was received against the appellants of transporting poppy husk on a motorcycle and driving on the embankment of the canal. On the basis of the said secret information, SI Sham Lal Lal prepared ruqa Ex.PE on 1.4.1997 at 6.15 p.m. and sent the same through Constable Krishan Kumar to Police Station Jhansa for registration of the FIR. On receipt of the said ruqa, HC Sushil Kumar registered FIR Ex.PE/1 on 1.4.1997 at 6.25 p.m. However, without waiting for the intimation regarding registration of the FIR and rightly so as no time was required to be wasted, SI Sham Lal and his fellow officials reached the canal embankment and setup a Naka. Both the appellants were noticed coming on a motorcycle from the side of village Udarsi. There was a bag lying in-between them. The search of the bag led to recovery of 36 kgs. of poppy husk. Accordingly, memo. Ex.PC regarding recovery of the contraband was prepared by SI Sham Lal, which was attested by ASI Varinder Singh and Excise Inspector Gian Chand. Rough site plan Ex.PF of the place Criminal Appeal No. S-869-SB of 1998 -5- of occurrence was also prepared by SI Sham Lal and the memo Ex.PG regarding conveying of information to the relatives of the appellants regarding their arrest. A perusal of the aforementioned documents would make out that number of the FIR stood duly mentioned therein. It has come in the testimony of PW3 M.L. Mangal, E.T.O. that after receiving the secret information, the police party reached the place of recovery at about 6.30 p.m. PW4 ASI Varinder Singh also deposed that the Constable, who had taken the ruqa to the police station returned to the spot at 7.30 p.m. Thus, it is evident that the recovery was effected at around

6.30 p.m. The Constable, who had taken ruqa to the police station, had returned about an hour later. During this period, all the relevant proceedings were conducted by SI Sham Lal. As SI Sham Lal was not aware of the FIR number, he could not have mentioned the same while preparing the aforementioned documents. The mentioning of the FIR number is an indication of the fact that the alleged proceedings regarding the apprehension of the accused and the recovery of the contraband had not taken place, as claimed by the prosecution. The non-association of an independent witness is also indicative of the fact that no such recovery, as claimed by the prosecution, was effected. According to PW5 SI Sham Lal, there were about 20/25 shops situated at Salpani chowk where secret information was received. Further, 5/6 persons were present at Salpani chowk. Despite the Criminal Appeal No. S-869-SB of 1998 -6- same, he did not join any person from the public. He admitted that village Salpani fell on the way to the place of recovery and there were also some farm houses. Despite that he did not associate any person from the village as, according to him, there was apprehension of the accused escaping. He also testified that at the time of recovery but before weighing the contraband, two persons from village Salpani were summoned but without waiting for their arrival, he went ahead weighing the contraband and only thereafter those two persons reached the spot. He did not even recorded their statements. According to PW4 ASI Varinder Singh, none passed that way at the time of the recovery. He denied the suggestion that there were farm houses near the place of recovery. From the above, it can be concluded that despite availability of the witnesses from the public, none was joined. The prosecution remained contented with the evidence in the shape of the testimonies of PW5 SI Sham Lal, PW4 ASI Varinder Singh and PW3 M.L. Mangal, E.T.O. It is true that merely because the police did not associate any witness from the public while effecting the recovery, the prosecution case cannot be rejected but it is prudent to associate witnesses from the public so as to lend independent corroboration to the prosecution case. There are also certain discrepancies in the testimonies of the witnesses examined by the prosecution. According to PW3 M.L. Mangal, the accused were seen coming at a distance of about 50 yards. Almost to the same Criminal Appeal No. S-869-SB of 1998 -7- effect was the testimony of PW4 ASI Varinder Singh when he stated that the accused were seen coming at a distance of 60/70 yards. However, PW5 SI Sham Lal stated that the accused were seen for the first time at a distance of 500 yards from the place of Nakabandi. Further, according to the prosecution, before PW5 SI Sham Lal had effected the recovery, he had separated two samples of 200 grams each out of the bulk, i.e. 36 kgs. of poppy husk and then the samples and the remaining bulk were made into sealed parcels. He affixed his seal ‘SL’ and prepared seal impression. The seal after use was handed over to ASI Varinder Singh. Similarly, PW3 M.L. Mangal had also sealed the samples and the remaining bulk with his seal bearing inscription ‘ML’. The samples and the case property were taken into possession vide recovery memo. Ex.PC. Thereafter, SI Sham Lal deposited the case property with the MHC. PW2 HC Sushil Kumar who stood posted as MHC on 1.4.1997 admitted in his cross- examination that the case property was deposited in the Malkhana on 1.4.1997 and entry in the register was made at serial No.141 in that regard. However, there was no reference in the register regarding the sample seal. Further, when the case property was sent to the laboratory, the sample seal was handed over to the Constable but even at that point of time, no reference in this connection was made in register No.19. Thus, the link evidence is missing. In view of the above, this Court is of the Criminal Appeal No. S-869-SB of 1998 -8- considered view that the conviction and sentences of the appellants, as ordered by the trial Court, cannot be upheld. In any case, the appellants deserve the benefit of doubt. Resultantly, the appeal is accepted, impugned judgment of conviction and sentence is set aside and the appellants are acquitted of the charges against them. The appellants are on bail. Their bail bonds and surety bonds shall stand discharged. August 24, 2010 satish ( T.P.S. MANN ) JUDGE Satish Kumar 2014.04.24 15:31 I attest to the accuracy and integrity of this document Chandigarh