Judgment:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (i) Crl.
Appeal not D-1061-DB of 2011 Date of Decision: March 26, 2013 Gurtej Singh @ Teji ...Appellant VERSUS State of Punjab ...Respondent (ii) Crl.
Appeal not D-1180-DB of 2011 Kulwant Singh ...Appellant VERSUS State of Punjab ...Respondent CORAM: HON'BLE Mr.JUSTICE JASBIR SINGH HON'BLE Mr.JUSTICE INDERJIT SINGH 1
To be referred to the Reporters or not?.”
2. Whether the judgment should be reported in the Digest?.
Present: Mr.Kuldeep V.
Singh Ahluwalia, Advocate for the appellant (in CRA not D-1061-DB of 2011) Mr.S.S.Tiwana, Advocate for the appellant.
(in CRA not D-1180-DB of 2011) Mr.B.S.Bhalla, Addl.
Advocate General, Punjab for the respondent-State.
**** INDERJIT SINGH, J.
This judgment shall dispose of two connected criminal appeals i.e.CRA not D-1061-DB of 2011 and CRA not D-1180-DB of 2011 arising out of the same judgment of conviction and order or sentence dated 14.09.2011 passed by Judge, Special Court, Bathinda Crl.
Appeal not D-1061-DB of 2011 & connected appeal -2- convicting and sentencing the appellants Gurtej Singh @ Teji and Kulwant Singh to undergo rigorous imprisonment for twelve years and to pay a fine of ` 1,00,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year each, under Section 15(C) of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, whereas co-accused Pargat Singh was not found guilty and accordingly he was acquitted of the charges framed against him.
The brief facts of the prosecution case are that on 26.04.2007, Harbans Singh, SHO, P.S.Nahianwala along with other police officials was present at Nahianwala Bus Stand at about 9.00 P.M.SI Bawa Singh received information that Gurtej Singh, Chamkaur Singh, Pargat Singh and Kulwant Singh are habitual of bringing the poppy husk from Rajasthan in trucks by displaying fake numbers for sending the same in the different parts of the Punjab.
SI Bawa Singh also informed SHO Harbans Singh that truck bearing registration not RJ-19G-7156 loaded with heavy poppy husk was coming from Lakhi Jungle side to Goniana and if the 'naka' is held, it can be apprehended.
Feeling the information as correct, ruqa Ex.PC was sent to the police station on the basis of which FIR was registered.
Lal Singh of Jeeda village was also joined in the police party.
'Naka' was held at 09.45 P.M.at T-point of Lakhi Jungle.
A truck bearing registration not RJ-19G-7156 was seen coming from side of Lakhi Jungle and signal by torch light was flashed to stop.
Truck was stopped at a distance of 15-20 karaMs.Accused Kulwant Crl.
Appeal not D-1061-DB of 2011 & connected appeal -3- Singh was driving the truck and he was apprehended on the spot and other persons Gurtej Singh, Pargat Singh and Chamkaur Singh ran away from the spot taking the benefit of the darkness.
Kulwant Singh was informed regarding his legal right to be searched in the presence of Gazetted Officer or Magistrate to which he told that he want the search to be conducted in the presence of a Gazetted Officer.
Then the Investigating Officer contacted DSP(R) Amarjit Singh, Bathinda and requested him to come on the spot and at about 10.40-10.50 P.M., DSP Amarjit Singh reached on the spot.
He introduced himself to Kulwant Singh that he is a DSP and a Gazetted Officer of police department.
He also informed the accused regarding his legal right to be searched before any other Gazetted Officer or Magistrate.
The accused reposed the confidence in him.
Ex.PA was prepared in this regard which was thumb marked by accused Kulwant Singh.
On the direction of DSP Amarjit Singh, search was conducted.
8 bags of poppy husk were recovered.
100 grams of poppy husk from each bag were separated as samples and total poppy husk came to be 320 Kgs.
Samples and bulk were taken into police possession after preparing sealed parcels which were sealed by the Investigating Officer with his seal impression 'HS'.
Separate sample seal was also prepared.
Case property including the above-said truck was taken into police possession vide memo Ex.PB.
Rough site plan of place of recovery Ex.PE was prepared.
After search of the truck, two registration certificates of truck bearing not RJ-31G-6820 and RJ-19G- 4704 and driving licence of Gurtej Singh were found and both the Crl.
Appeal not D-1061-DB of 2011 & connected appeal -4- registration certificates were registered in the name of Gurtej Singh and fitness certificate was also recovered, which was issued from Rajasthan State.
These documents were taken into police possession vide memo Ex.PF.
Accused were arrested.
200 bags of soap powder containing 50 kgs.
each were also taken into police possession.
Special report was sent to the higher officeRs.Statements of witnesses were recorded.
Case property was produced before Illaqa Magistrate vide memo Ex.PM and the Illaqa Magistrate passed order Ex.PM/1.
The Investigating Officer also gave the application Ex.PN to deposit the case property in NDPS Godown and the Illaqa Magistrate passed order Ex.PN/1.
He also moved application Ex.PO and the Illaqa Magistrate passed the order to take the sample from the bulk and in the presence of the Court 100 grams of poppy husk from each bag was separated as sample and Illaqa Magistrate passed the order Ex.PO/1.
After report of chemical examiner and after necessary investigation, challan was presented against the accused-appellants.
On presentation of challan, copies of challan and other documents were supplied to the accused-appellants under Section 207 Cr.P.C.Finding prima facie case, appellants Gurtej Singh @ Teji and Kulwant Singh and co-accused Pargat Singh were charge- sheeted under Sections 15(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 Crl.
Appeal not D-1061-DB of 2011 & connected appeal -5- Amarjit Singh, SP, Mansa (the then DSP).who mainly deposed as per prosecution version and also deposed regarding search of accused in his presence and also deposed regarding the recovery in this case.
PW-2 Inspector Harbans Singh, is the Investigating Officer.
He mainly deposed regarding recovery of 320 kgs.
of poppy husk from accused and investigation conducted by him in the present case.
PW-3 Head Constable Balwinder Singh, is a formal witness, who tendered into evidence his affidavit Ex.PW3/A.
Learned Public Prosecutor tendered the report of DTO Hanumangarh Ex.PY and annexure Ex.PZ and also tendered report of chemical examiner Ex.PR.
At the close of prosecution evidence, the accused- appellants were examined under Section 313 Cr.P.C.and they denied the correctness of the evidence and pleaded themselves as innocent.
It is also stated by the accused-appellant Kulwant Singh that FIR No.39 dated 26.04.2007 under Section 15 of the NDPS Act is also registered in same police station and inquiry was conducted.
In the inquiry, all the accused-appellants were found innocent and in the above-said FIR police officials were found guilty and in FIR No.39 dated 26.04.2007 some accused had been acquitted by this Hon'ble Court.
In defence, accused examined DW-3 Jagsir Ram, Munshi, Truck Union Bhagta Bhai Ka, mainly brought the summoned record.
Truck not RJ-31G-6820 which is of Chamkaur Singh is running in their union since 2007 and the vehicle was also running in April, 2007.
He further stated that payment was made through cheque to Chamkaur Singh.
DW-4 Head Constable Bhola Singh mainly brought the record Crl.
Appeal not D-1061-DB of 2011 & connected appeal -6- of Register No.19 qua entry No.1030 which is Ex.DB and he proved the copies of the DDR.
(DW-1 and DW-2 were examined before the amendment of chargesheet.) On the basis of the evidence produced by the prosecution, accused-appellants were convicted and sentenced as stated above by the Judge, Special Court, Bathinda, whereas co-accused Pargat Singh was found not guilty and acquitted of the charge framed against him.
At the time of arguments, learned counsel for the appellant Gurtej Singh @ Teji argued that there is no cogent evidence on the record to prove the guilt of the appellant Gurtej Singh @ Teji.
No identification parade was conducted in the present case.
There is no evidence that any member of the police party was knowing Gurtej Singh @ Teji earlier to the occurrence.
As per prosecution version, he ran away from the spot.
Learned counsel for the appellant Gurtej Singh @ Teji further argued that only on the basis of registration certificates and driving licence recovered from the truck he has been convicted.
Therefore, he argued that the appeal filed by Gurtej Singh @ Teji should be accepted and he be acquitted.
On the other hand, learned counsel for the appellant Kulwant Singh argued that in the present case neither independent witness not the recovery witness SI Bawa Singh was examined.
Therefore, a reasonable doubt exists in the prosecution case.
He further argued that presence of DSP Amarjit Singh is also doubtful on the spot.
Learned counsel for the appellant Kulwant Singh further Crl.
Appeal not D-1061-DB of 2011 & connected appeal -7- argued that an inquiry was conducted against the Investigating Officer in another FIR No.39 dated 26.04.2007 of the same day, which further creates doubt in the prosecution version.
On the other hand, learned Additional Advocate General, Punjab for the respondent-State has argued that case of the prosecution has been duly proved by the Investigating Officer PW-2 Inspector Harbans Singh and PW-1 DSP Amarjit Singh, who is also witness to the recovery.
Both these PWs have consistently deposed as per prosecution version.
There is no enmity or motive of police officials to falsely implicate the accused-appellants.
Such huge recovery cannot be planted upon the accused.
Link evidence is complete.
Therefore, learned State counsel argued that the appeal having no merit, should be dismissed.
We have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellants and learned Addl.
Advocate General, Punjab for the respondent-State.
From the evidence on record, we find merit in the arguments of learned counsel for the appellant Gurtej Singh @ Teji.
PW-2 Inspector Harbans Singh, Investigating Officer, in cross- examination has stated that the truck in question bears registration not RJ-19G-7156, Model 1997.
During the couRs.of investigation, he did not verify regarding the ownership of the truck in question as to in whose name it stand.
He also did not examine any official of the transport authority or any other person regarding the ownership of the truck bearing registration not RJ-19G-7156.
The documents relates to Crl.
Appeal not D-1061-DB of 2011 & connected appeal -8- other truck having earlier registration not RJ-13G-4704 and new allotted registration number of the same truck was RJ-31G-6820, which was in the name of Gurtej Singh.
He also stated in cross- examination that he also did not verify or ever taken into police possession truck bearing registration not RJ-31G-6820 bearing earlier registration not RJ-13G-4704.
So, he cannot say whether the said truck is still plying in truck union Bhagta.
He also deposed in cross- examination that he never taken into police possession the said truck and he did not try to verify the authenticity of the same.
Even on that day, he could not say that the truck bearing registration not RJ-19G- 7156 stands in whose name.
From this cross-examination of the Investigating Officer, it is clear that the truck in question from which the recovery was effected, was not owned by Gurtej Singh @ Teji appellant.
Therefore, the documents recovered from the truck stated to be two registration certificates and one driving licence of Gurtej Singh @ Teji, itself are not sufficient to prove the possession of poppy husk by Gurtej Singh @ Teji not it can be presumed on the basis of these documents that Gurtej Singh @ Teji was travelling in the truck and he ran away from the spot.
It is the case of the prosecution that Gurtej Singh @ Teji had run away from the spot but at the same time, nobody from the police party had identified him or knew him earlier to the occurrence.
No identification parade has taken place in the present case.
PW-2 Inspector Harbans Singh, Investigating Officer, has stated that none of the accused who escaped from the spot were earlier known to him or to any police official not their names were Crl.
Appeal not D-1061-DB of 2011 & connected appeal -9- known to them.
No identification parade was ever got conducted when the escaped accused were arrested.
Keeping in view this cross-examination, the identity of Gurtej Singh @ Teji is not established beyond reasonable doubt.
In view of the above, we find that prosecution has failed to prove the guilt of the accused-appellant Gurtej Singh @ Teji beyond reasonable doubt by leading cogent evidence.
Therefore, he is held not guilty and acquitted of the charges framed against him.
As regarding accused-appellant Kulwant Singh, we find that he was apprehended on the spot.
His name was also there in the secret information.
The Investigating Officer PW-2 Inspector Harbans Singh and PW-1 SP Amarjit Singh, who was DSP at that time, have consistently deposed regarding the recovery of 8 bags of 40 kgs.
of poppy husk each from the truck, which he was driving.
All the provisions of NDPS Act have been duly complied with.
Special report was also sent to higher officer.
Case property was also produced before the Illaqa Magistrate.
Link evidene is complete.
There are no material contradictions or material improvements pointed out in the statements of PWs.
Search was made after informing the accused of his legal right.
The recovery was effected in the presence of PW-1 SP Amarjit Singh, who was DSP at that time.
The mere fact that independent witness and other police official SI Bawa Singh who was recovery witness, have not been examined, will not effect the prosecution case.
Similarly, the person who received the secret information and gave the same to the Investigating Officer is not Crl.
Appeal not D-1061-DB of 2011 & connected appeal -10- necessary and in no way non-examination of these witnesses can be held doubtful.
Further, from the evidence on record, we find that there is nothing in the cross-examination of PW-1 SP Amarjit Singh from where it can be inferred that he was not present on the spot.
The presence of DSP Amarjit Singh on the spot cannot be doubted.
As regarding the judgment Ex.DE, it relates to an inquiry in another case.
No inference can be drawn on the basis of any complaint in the other case or acquittal of any accused in that case.
There is nothing on the record to show that Inspector Harbans Singh, Investigating Officer has been punished after finding him guilty of any charges in that case.
Therefore, no benefit can be given on the basis of judgment Ex.DE not it creates doubt in the prosecution version as regarding the recovery of the present case from appellant Kulwant Singh.
From the evidence on record, we find that prosecution has duly proved conscious possession of Kulwant Singh.
Recovery of narcotics i.e.8 bags containing 320 kgs.
of poppy husk is duly proved from Kulwant Singh by the PWs.
Link evidence is complete.
Therefore, from the statements of the PWs and the report of the chemical examiner, the prosecution has proved the guilt of the accused Kulwant Singh beyond reasonable doubt by producing cogent evidence.
The witnesses are truthful witnesses.
It is settled law that testimony of police official is as good as of any other witness unless some enmity or motive is alleged and proved.
In the present case, no such enmity or motive of police officials has been alleged or Crl.
Appeal not D-1061-DB of 2011 & connected appeal -11- proved.
The defence version is not believable.
Therefore, we find no merit in the arguments of the learned counsel for the appellant Kulwant Singh.
In view the above, CRA not D-1061-DB of 2011 filed by Gurtej Singh @ Teji is allowed.
He be released forthwith if he is not required in any other case.
Further, CRA not D-1180-DB of 2011 is dismissed having no merits.
(JASBIR SINGH) (INDERJIT SINGH) JUDGE JUDGE March 26, 2013 Vgulati