Criminal Appeal No. 845-SB of 2005 v. State of Haryana

CORAM : HON'BLE MR.JUSTICE MOHINDER PAL.

1. Whether Reporters of Local papers may be allowed to see the judgment ? To be referred to the Reporters or not ?

2. 3. Whether the judgment should be reported in the Digest ? Present: Mr. K.S. Dhaliwal, Advocate for appellant Satnam Singh alias Bittu . None for appellant Dalwinder Singh -2- Criminal Appeal No. 845-SB of 2005, Criminal Appeal No. 920-SB of 2005 and Criminal Appeal No. 3155-SB of 2009. Mr. Shakun Chaudhar, Advocate for Mr. L.M. Gulati, Advocate, for appellant Pargat Singh alias Bhaggu. Ms. Sushma Chopra, Additional Advocate General, Haryana for the State-respondent. -.- MOHINDER PAL, J. This judgment will dispose of the afore-stated three appeals as they arise out of the same First Information Report. Satnam Singh alias Bittu (accused-appellant) has filed Criminal Appeal No. 845-SB of 2005 and Dalwinder Singh(accused- appellant) has filed Criminal Appeal No. 920-SB of 2005 against the judgment of conviction dated 30.09.2004 and the sentence order dated 1.10.2004 passed by the Judge, Special Court, Kaithal, 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 each, as fine, in default whereof to undergo further rigorous imprisonment for two years. Pargat Singh alias Bhaggu (appellant) has filed Criminal Appeal No. 3155-SB of 2009 against the judgment of conviction and the sentence order dated 10.11.2009 passed by the Judge, Special Court, Kaithal, whereby he was convicted under Section 15 of the Act and sentenced to undergo rigorous imprisonment for a period of ten years and to pay Rs.1 lac each, as fine, in default whereof to undergo further rigorous imprisonment for a period of -3- Criminal Appeal No. 845-SB of 2005, Criminal Appeal No. 920-SB of 2005 and Criminal Appeal No. 3155-SB of 2009. two years. Didar Singh and Gurtej Kaur (co-accused of appellant Pargat Singh), who are parents of accused-appellant Pargat Singh, were acquitted of the charge framed against them by the trial Court. Accused-appellant Pargat Singh alias Bhaggu had earlier absconded during trial and was declared a Proclaimed Offender. After his re-arrest as per arrest memo (Exhibit P.M) trial against him had commenced. It may be mentioned here that Didar Singh and Gurtej Kaur had been arrested in this case on the basis of confessional statement (Exhibit P.L) made by appellant Pargat Singh that his parents used to provide him financial aid in a `Gurdwara' while he was living there after having fled away from the police custody on 3.7.2002. This evidence against Didar Singh and Gurtej Kaur was not found sufficient by the trial Court and, accordingly, they (Didar Singh and Gurtej Kaur ) were acquitted in the case. Sher-Singh (co-accused of the appellants) had absconded and was declared Proclaimed Offender by the trial Court. As per allegations of the prosecution, on 03.07.2002, Sub Inspector Sultan Singh along with Assistant Sub Inspector Dharambir, Head Constable Krishan Lal, Head Constable Dharambir Singh, Head Constable Dalbir Singh, UGC Mahender Singh and Constable Pritam Singh reached village Majri by a Government Jeep being driven by Constable Raj Kumar while patrolling the area. Head Constable Om Parkash, Head Constable Kehar Singh, Constable -4- Criminal Appeal No. 845-SB of 2005, Criminal Appeal No. 920-SB of 2005 and Criminal Appeal No. 3155-SB of 2009. Dalbir Singh, Constable Balbir Singh, Constable Chatter Singh and Constable Suresh Kumar of Police Post Ramthali, who were members of the police party headed by Assistant Sub Inspector Hem Chander came across them. Sub Inspector Sultan Singh took them along and reached `Kacha Rasta', Village Hansu Majra turn, for patrolling and excise checking. In the meantime, a Canter was seen coming from the side of Village Agondh. On seeing the police party, the Canter driver started turning back the Canter. It aroused suspicion of the police party. Sub Inspector Sultan Singh, with the help of the police officials, was able to reach the Canter. At that time, accused Sher Singh (Proclaimed Offender) and appellant Satnam Singh alias Bittu, who were previously known to Sub Inspector Sultan Singh and were sitting on the loaded gunny bags, jumped out of the Canter and succeeded in fleeing away from the spot. Appellants Dalwinder Singh and Pargat Singh alias Bhaggu, who were sitting in the front portion of the Canter, were apprehended at the spot. Suspecting some narcotic substance in the gunny bags loaded in the Canter, Sub Inspector Sultan Singh gave notice under Section 50 of the Act to the accused giving them option to get the gunny bags searched in the presence of a Gazetted Officer or a Magistrate. Appellants Dalwinder Singh and Pargat Singh alias Bhaggu opted to be searched in the presence of a Gazetted Officer. Notice under Section 50 of the Act is Exhibit P.44 and its reply is Exhibit P.45. This notice was given to accused Dalwinder Singh alone. -5- Criminal Appeal No. 845-SB of 2005, Criminal Appeal No. 920-SB of 2005 and Criminal Appeal No. 3155-SB of 2009. Presence of Deputy Superintendent of Police Dharam Pal Singh Dalal was secured at the spot. Thereafter in the presence of the Deputy Superintendent of Police, Sub Inspector Sultan Singh searched the Canter in question. 33 bags loaded in the Canter were found to contain poppy husk. Two samples of 200 grams were separated from each of the bags. The samples and the remaining poppy husk contained in 33 bags i.e 34 Kgs and 66 Gms in each bag, were separately sealed and taken into possession by the police. The Canter was also taken into possession by the police. Ruqa was sent to the Police Station and on its basis formal First Information Report was registered against the accused. Rough site plan of the place of recovery was prepared. After registration of the case against the accused, they were formally arrested and memos containing grounds of their arrest were prepared. After completion of investigation and on receipt of the report of the Forensic Science Laboratory, report under Section 173 of the Code of Criminal Procedure was presented in Court against the accused. Charge was framed against the accused 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 Sub Inspector Mauji Ram, Head Constable Dalbir Singh, Assistant Sub Inspector Baldev Raj, Sub Inspector Jaimel Singh, Constable Chhabag Singh, -6- Criminal Appeal No. 845-SB of 2005, Criminal Appeal No. 920-SB of 2005 and Criminal Appeal No. 3155-SB of 2009. Head Constable Satbir Singh, Deputy Superintendent of Police Dharam Pal Singh Dalal, Sub Inspector Sultan Singh (Investigating Officer), Sub Inspector Raj Singh and Assistant Sub Inspector Jagdish Lal. Thereafter, statements of the accused-appellants were recorded under Section 313 of the Code of Criminal Procedure. Accused-appellant Dalwinder Singh stated that he had been falsely implicated in this case. He had no concern with the Canter in question or the contraband poppy husk. He further stated that the Canter belonged to his father. He was residing separately from his father. He further stated that the documents prepared by the police were false, fabricated and concocted. Accused-appellant Satnam Singh alias Bittu, in his statement recorded under Section 313 of the Code of Criminal Procedure, stated that he was innocent and falsely implicated in this case. He further stated that he had no concern with the Canter in question and the contraband poppy husk. He further stated that neither he was occupant of the Canter nor known to any police official. Accused-appellant Pargat Singh alias Bhaggu, in his statement recorded under Section 313 of the Code of Criminal Procedure, denied the prosecution allegations and pleaded false implication. No witness was examined by the appellants in their defence. However, documents Exhibits D.A to D.D were tendered -7- Criminal Appeal No. 845-SB of 2005, Criminal Appeal No. 920-SB of 2005 and Criminal Appeal No. 3155-SB of 2009. in defence evidence by the accused. Learned counsel for appellant Dalwinder Singh did not appear in Court when the matter was taken up for hearing in spite of the fact that his presence was requisitioned by the Reader of this Court by displaying his name in the notice board through the Computer installed in the Court. I have heard Mr. K.S. Dhaliwal, Advocate, appearing for appellant Satnam Singh alias Bittu, Mr. Shakun Chaudhar, Advocate for Mr. L.M. Gulati, Advocate, appearing for appellant Pargat Singh alias Bhaggu and Ms. Sushma Chopra, Additional Advocate General, Haryana for the State-respondent and have gone through the records of the case. At the outset, it may be mentioned here that accused- appellant Satnam Singh alias Bittu was not arrested at the spot. The case of the prosecution is that Investigating Officer Sub Inspector Sultan Singh knew appellant Satnam Singh alias Bittu before hand. However, it has not been explained on record as to how Sub Inspector Sultan Singh knew appellant Satnam Singh alias Bittu. As noticed above, the police party consisted of Sub Inspector Sultan Singh, Assistant Sub Inspector Dharambir, Head Constable Krishan Lal, Head Constable Dharambir Singh, Head Constable Dalbir Singh, UGC Mahender Singh and Constable Pritam Singh, Head Constable Om Parkash, Head Constable Kehar Singh, Constable Dalbir Singh, Constable Balbir Singh, Constable Chatter Singh and Constable Suresh Kumar. It is obvious that police -8- Criminal Appeal No. 845-SB of 2005, Criminal Appeal No. 920-SB of 2005 and Criminal Appeal No. 3155-SB of 2009. officials, while on patrol duty, carry with them the arms allotted to them so as to meet any eventuality of confronting with the criminals. It is not possible that appellant Satnam Singh alias Bittu would have been successful in running away from the spot in the presence of so many police officials, mentioned above, who were obviously armed with their service weapons. These facts cast a serious doubt upon the veracity of the prosecution case so far as participation of accused-appellant Satnam Singh in the commission of the instant crime is concerned. Accordingly, he is entitled to acquittal. Insofar as appellants Dalwinder Singh and Pargat Singh alias Bhaggu, the facts of this case, as mentioned above, disclose that there is no doubt about the fact that they were in conscious possession of the quantity of poppy husk recovered from their possession. It has been argued that the case of the prosecution is based only on the statements of the official witnesses and no independent person was joined by the police party. 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. It has been submitted that non-joining of any independent witnesses has upset the balance of the prosecution case, making the alleged recovery doubtful. After giving a careful thought to the argument raised by -9- Criminal Appeal No. 845-SB of 2005, Criminal Appeal No. 920-SB of 2005 and Criminal Appeal No. 3155-SB of 2009. the learned counsel, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the prosecution. Recovery in this case was effected per chance from the Canter belonging to the father of appellant Dalwinder Singh while the police party was patrolling the area. Otherwise also, normally the independent witnesses do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to create ill-will and enmity with criminals. In this case, the official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements qua the participation of appellants Dalwinder Singh and Pargat Singh alias Bhaggu in the commission of the instant crime. In this background, merely the fact that no independent witness was joined to witness the recovery, is not a good ground to discard the testimonies of the official witnesses. It is well-settled that the prosecution story cannot be discarded on the ground that independent witness has not been examined. To cap it all, the fact of recovery of 33 bags of poppy husk, each containing 35 kilograms of poppy husk, from the said accused, which cannot be planted by the police, weighs with the argument raised by the learned counsel with regard to the non-joining of any independent witness. In these circumstances, non-joining of any independent witness by the police in this case does not at all affect the veracity of the prosecution case. -10- Criminal Appeal No. 845-SB of 2005, Criminal Appeal No. 920-SB of 2005 and Criminal Appeal No. 3155-SB of 2009. In this case, there was compliance of the mandatory provisions of Section 50 of the Act as Deputy Superintendent of Police Dharam Pal Singh Dalal, a Gazetted Officer, was called to the spot and the recovery of poppy husk was effected from appellants Dalwinder Singh and Pargat Singh alias Bhaggu in his presence. For the aforesaid reasons, Criminal Appeal No.845-SB of 2005 filed by appellant Satnam Singh alias Bittu is allowed, the impugned judgment of conviction and the sentence order qua him are set aside and he is acquitted of the charge framed against him by giving them the benefit of doubt. Criminal Appeal No. 920-SB of 2005 and Criminal Appeal No. 3155-SB of 2009 filed by appellants Balwinder Singh and Pargat Singh alias Bhaggu, respectively, are dismissed being without any merit. The Canter belonging to the father of appellant Dalwinder Singh, in which the contraband poppy husk was being transported, is ordered to be confiscated to the State. May 11, 2010. ( MOHINDER PAL ) JUDGE