Jagjit Singh Vs. State of Punjab and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1094141
CourtPunjab and Haryana High Court
Decided OnOct-03-2013
AppellantJagjit Singh
RespondentState of Punjab and Another
Excerpt:
in the high court of punjab and haryana at chandigarh (i) crl. appeal no.s-2482-sb of 2009 date of decision: october 03, 2013 jagjit singh ...appellant versus state of punjab and another ...respondents (ii) crl. appeal no.s-52-sb of 2010 angrej singh ...appellant versus state of punjab ...respondent coram: hon'ble mr.justice inderjit singh present: mr.j.s.bedi, advocate, for the appellant (in cra no.s-2482-sb of 2009).mr.jagvinder singh santwal, advocate for the appellant (in cra no.s-52-sb of 2010).mr.yogesh gupta, asstt. advocate general, punjab for the respondent-state. ms.ranjana shahi, senior panel counsel for the respondent-union of india. **** inderjit singh, j. this judgment shall dispose of two connected appeals i.e.cra no.s-2482-sb of 2009 and cra no.s-52-sb of 2010 arising out of the same judgment of conviction dated 14.09.2009 and order of gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -2- sentence dated 17.09.2009 passed by learned judge, special court, muktsar, whereby the appellants were held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of ten years each and to pay a fine of ` 1 lac each under section 15 of the narcotic drugs and psychotropic substances, act 1985 (ndps act) and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year each. the brief facts of the prosecution case are that on 11.02.2002, jasvir singh was posted as inspector, customs preventive station, killianwali. on that day, he along with s.k.singla, superintendent, b.s.bedi, superintendent and other officials was holding a naka on rajasthan border near canal bridge adjoining to village kandukhera. at about 7.15 a.m, one jeep make mahindra bearing registration no.did-4428 was seen coming from the side of rajasthan and was got stopped. jagjit singh was driving the jeep. angrej singh and gurmit singh were sitting in the jeep and two gunny bags were found lying on the backside of the jeep. customs officers brought the jeep along with gunny bags and accused to their office situated at killianwali. an option to all the accused under section 50 of the ndps act for conducting search in the presence of gazetted officers of customs department was given. all the accused opted for search in the presence of gazetted officer. gurmit singh on interrogation was found innocent and was released. chhaju ram and ramesh kumar, independent witnesses reached in the office. on search of the firs.gunny bag, 400 packets of poppy husk were gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -3- recovered. on weighment each packet came to be of 100 gms.from the second gunny bag, 80 packets of poppy husk were recovered and on weighment, each packet came to be of 500 gms.in total, the recovered poppy husk came to be 80 kgs. from the firs.bag, 100 gms.of poppy husk was separated by taking out small quantity from each packet. similarly, from the second bag, 100 gms.of poppy husk was separated by taking small quantity from each packet and the separated poppy husk was converted into 8 representative samples and said samples were sealed with the seal bearing no.“47”.remaining packets were transferred to the respective gunny bags and both the gunny bags were also sealed with the seal bearing no.“47”.case property was taken into possession along with jeep vide recovery memo ex.p4. both the accused were explained about section 108 of the customs act. thereafter, investigating officer jasvir singh, inspector customs got recorded statements of both the accused. statement of angrej singh was recorded before b.s.bedi, superintendent. angrej singh admitted that poppy husk belonged to him and it was to be distributed among the voters as the elections were to be held on 13.02.2002 in punjab state. before recording statement, investigating officer also informed superior officers of customs department regarding recovery. accused jagjit singh himself wrote his statement ex.p6 before s.k.singla, superintendent and investigating officer. he disclosed that at the instance of angrej singh, he went to village haripur in rajasthan and brought poppy husk from there. he also deposed that jeep was attached with the gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -4- election party and on the way, gurmit singh had taken lift. both the accused were arrested. they were produced along with case property and jeep in the court of illaqa magistrate. the case property was deposited in the malkhana of the customs department at ferozepur with seals intact. on 14.02.2002, investigating officer sent two parcels to crcl, new delhi through registered post. on the same day, he sent two samples to central custom preventive division, ferozepur through registered post. postal receipt is ex.p12. on 15.02.2002, he sent the copy of test report to crcl, new delhi through registered post and postal receipt is ex.p13. report of crcl is ex.p14. after receipt of the report, complaint against the accused- appellants was filed by investigating officer. finding prima facie case, accused-appellants were charge-sheeted under section 15 of the ndps act, to which they pleaded not guilty and claimed trial. in support of its case, complainant jasvir singh examined himself as pw-1 and deposed as per prosecution version. pw-2 s.k.singla, superintendent, also deposed as per prosecution version. pw-3 bhupinder singh bedi, who was posted as superintendent, custom preventive station, killinwali also deposed as per prosecution version and also deposed regarding recovery from the jeep. 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. accused-appellant angrej singh further pleaded that there were gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -5- assembly elections in punjab state two days before the alleged occurrence. the office of customs department is situated at mandi killianwali in the house of supporter of akali party and at the instance of the owner of the house, he and his co-accused have been involved in this case falsely because they are the supporters of congress party. he further pleaded that confessional statements were not recorded and their signatures were obtained by the investigating officer on blank papers.no poppy husk was ever recovered from them. similar is the plea taken by accused-appellant jagjit singh. in defence, accused-appellants examined dw-1 jagtar singh, who deposed as per defence version. on the basis of the evidence produced by the prosecution, accused-appellants were convicted and sentenced by the learned judge, special court, muktsar, as stated above. at the time of arguments, learned counsel for the appellant angrej singh argued that there are discrepancies in the statements of the pws. he further argued that one of the pw has stated that they have measured the quantity of poppy husk by mechanical balance whereas other pw has stated regarding measuring the quantity by simple balance. he next argued that pw-2 s.k.singla has stated that jeep was the firs.vehicle, which was stopped at the naka whereas pw-3 bhupinder singh bedi has stated that before checking of the said jeep involved in the occurrence, 5-6 vehicles earlier were checked at the naka. he further argued that the defence version is more probable and accused has been falsely implicated in this case. gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -6- learned counsel for the appellant angrej singh further contended that it is improbable to collect 100 gms.of poppy husk from 400 packets. he next contended that independent witnesses were not examined. he also argued that the statement under section 108 of the customs act is inadmissible and this statement has been fabricated by obtaining signatures of accused on blank papers.learned counsel for the appellant jagjit singh argued that the statement given to custom officer under section 108 of the customs act is per se admissible. it can be used as confessional statement of the accused against the co-accused. the statement ex.p6 recorded under section 108 of the customs act is admissible in evidence and prosecution has relied upon that statement. therefore, he argued that this statement ex.p6 of appellant jagjit singh shows that he was not aware of the contents of the gunny bags. the jeep was on election duty with accused-appellant angrej singh and angrej singh brought those two gunny bags and there is no evidence on record to show conscious possession of appellant jagjit singh regarding poppy husk in those gunny bags. learned counsel for the appellant jagjit singh further argued that case of jagjit singh is at par with gurmeet singh against whom no proceedings were initiated. both the learned counsel for the appellants, therefore, argued that there being merit in both the appeals, the same should be allowed and appellants should be acquitted. on the other hand, learned asstt. advocate general, punjab for the respondent-state as well as learned counsel for gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -7- respondent-union of india argued that case of the prosecution has been duly proved. conscious possession of appellant jagjit singh has been duly proved. they further argued that non-examination of independent witness, in no way can be held as fatal to the prosecution case. the defence version is not believable. they next argued that the discrepancies pointed out are minor in nature and do not go to the root of the case. there is nothing on the record to show that statement under section 108 of the customs act is fabricated. they further contended that statement under section 108 of the customs act is admissible in evidence. all the mandatory provisions of the ndps act have been complied with. learned state counsel and learned counsel for union of india, therefore, argued that there being no merit, both the appeals should be dismissed. i have gone through the evidence on record minutely and carefully and have heard learned counsel for the appellant and learned asstt. advocate general, punjab for the respondent-state as well as learned counsel for the respondent-union of india. from the evidence on record, i find that pw-1 jasvir singh, inspector customs.who also investigated the case, has consistently deposed as per prosecution version. there is nothing in his cross-examination, which may make his statement unreliable. his statement is supported and corroborated by two senior officers of customs department i.e.pw-2 s.k.singla, superintendent vigilance and pw-3 bhupinder singh bedi, superintendent. there are no material improvements or material contradictions in their statements, gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -8- which may go to the root of the case. the discrepancies pointed out by learned counsel for the appellant angrej singh are minor in nature and such type of discrepancies occur in the statements of truthful witnesses. none of the discrepancies pointed out by learned counsel for the appellant angrej singh goes to the root of the case. as regarding defence version which was taken in statement under section 313 cr.p.c.and also statement of dw-1 jagtar singh, cannot be believed. if the customs officers have their office in the building of supporters of akali dal, even then, officers of customs cannot be held under the influence of landlord. the department might have been paying rent to the landlord. otherwise also, the perusal of statement of dw-1 jagtar singh does not inspire confidence. such type of witnesses can be produced at any stage. there is nothing on the record to show that he had made complaint to higher authorities regarding false implication of the accused in this case. it is in the statement of pw-1 jasvir singh, inspector customs that a small quantity from each of the gunny bag was separated and then representative samples were made. in no way, on this ground it can be held as improbable or unnatural version. as regarding independent witness, as per complainant version, two independent witnesses chajju ram and ramesh kumar were joined during the proceedings. their non-examination will not create any reasonable doubt in the complainant’s version. otherwise also, there is nothing on the record to show any enmity or motive of the customs officers against the accused-appellant angrej singh to gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -9- falsely implicate him or to fabricate his statement under section 108 of the customs act. there is nothing on the record as to why the customs officers would depose falsely against appellant angrej singh and why they would falsely implicate him. there is also no evidence on the record to support and corroborate the version of angrej singh appellant that his statement has been fabricated and his signatures have been obtained on blank papers.he has never made any complaint to any of the higher authority that his signatures have been obtained on blank papers.it is settled law that customs officers are not police officers and the statements recorded under section 108 of the customs act are not hit by section 25 of the evidence act. the statements under section 108 of the customs act are admissible in evidence as has been held by the hon'ble supreme court in ram singh versus central bureau of narcotics, 2011 (2) rcr (criminal) 850, in which it is held that recovery of opium was from accused by officers of narcotic bureau. accused made confession before said officers.officers of central bureau of narcotics are not police officers within the meaning of section 25 and 26 of the evidence act and hence, confessions made before them are admissible in evidence. accused was convicted on the basis of said confession which was found to be voluntary. learned counsel for the respondent-union of india on the same point cited judgment passed by this court in basharat ali and another versus inspector of customs.2006(4) rcr (criminal) 250, in which it is held that confessions made by accused before custom officer is admissible in evidence. she further cited gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -10- judgment passed by the hon'ble supreme court in francis stanly @ stalin versus intelligence bureau, narcotic control bureau, 2007(1) rcr (criminal) 505, in which it is held that confession made before an officer of department of revenue intelligence under ndps act, such a confession is not hit by section 25 of the evidence act. i have gone through the statement got recorded under section 108 of the customs act by accused-appellant angrej singh. the confession made by him supports and corroborates the prosecution version that those gunny bags belonged to him and he has brought the same from rajasthan. the statement given by appellant jagjit singh under section 108 of the customs act also states that those bags were brought by accused-appellant angrej singh from rajasthan. therefore, his statement also supports and corroborates the version of the complainant. learned counsel for the appellant angrej singh has cited judgment passed by this court in mangal singh versus punjab state, 1999(3) rcr (criminal) 373. i have gone through this judgment. it is held that punishment for offence under ndps act is very hard. stricter the punishment graver the proof. the prosecution has to take every care by leading cogent, reliable and satisfactory evidence. it is also held that defence witness has to be treated in the same fashion as that of the prosecution witness. i find that this judgment is of no benefit to appellant angrej singh. he also cited judgment passed by this court in thandi ram versus state of haryana, 1995(3) rcr (criminal) 327, in which it is held that accused is not required to gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -11- prove his case beyond reasonable doubt. if by adducing defence evidence, he creates a doubt in the prosecution version, he is entitled to benefit of doubt. i have gone through the judgment and the same having distinguished facts will not apply in the present case. learned counsel for the appellant angrej singh has further cited judgment passed by the hon'ble supreme court in u.o.i.versus bal mukund and others.2009(2) rcr (criminal) 574, in which it is held that retraction made by accused only when the accused was being examined under section 313 cr.p.c.no credence could be given to such a retraction made after a long time. i have gone through the judgment and the same having distinguished facts will not apply in the present case. learned counsel for appellant angrej singh further cited judgments passed by this court in joga singh versus state of punjab, 2006(3) rcr (criminal) 480, state of haryana versus kewal ram, 2007(3) rcr (criminal) 393, jaswant singh versus the state of punjab, 2008 (4) rcr (criminal) 28. i have gone through all the above cited judgments and the same having distinguished facts, will not apply in the present case. therefore, from the evidence on the record, i find that complainant has duly proved its case by leading cogent evidence against appellant angrej singh. the confession of appellant angrej singh further supports and corroborates the complainant’s version. therefore, the judgment of conviction and order of sentence passed by learned judge, special court, muktsar qua appellant angrej singh are correct and the same are upheld. gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -12- as regarding appellant jagjit singh, it is in the evidence that he was driver of the jeep and jeep was hired by accused angrej singh for election purposes earlier to the occurrence. it is also in the statement recorded under section 108 of the customs act that he went with accused angrej singh to rajasthan and he was sitting outside and angrej singh brought two gunny bags and kept in the jeep. the perusal of the statement got recorded by appellant jagjit singh ex.p6, nowhere shows that he was having knowledge regarding the articles of the gunny bags, which belonged to accused angrej singh, who brought the same from village haripur in rajasthan. nowhere this statement shows that appellant jagjit singh was aware of the contents in the gunny bags. therefore, conscious possession of appellant jagjit singh is not proved beyond reasonable doubt. as the statement ex.p6 recorded under section 108 of the customs act is admissible in evidence and the prosecution has relied upon the same, therefore, this statement goes in favour of appellant jagjit singh and the benefit is to go to him by holding that he was not in conscious possession of the incriminating articles. otherwise also, there is nothing in the statement of investigating officer pw-1 that appellant jagjit singh has not given the correct statement under section 108 of the customs act or there is also no evidence that he was knowing the contents of the gunny bags. he was the driver of the jeep and the jeep was hired by accused angrej singh, who brought the gunny bags. angrej singh in his statement under section 108 of the customs act has stated that the bags belonged to him, which gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh crl. appeal no.s-2482-sb of 2009 and connected appeal -13- shows innocence of appellant jagjit singh. in view of the above, i find that complainant has failed to prove conscious possession of the appellant jagjit singh. rather, statement recorded under section 108 of the customs act by appellant jagjit singh, goes in his favour. therefore, a reasonable doubt exists in the prosecution version and benefit of doubt is to go to appellant jagjit singh. hence, giving benefit of doubt, appellant jagjit singh is acquitted of the charges framed as against him. the judgment of conviction and order of sentence recorded by the trial court qua appellant jagjit singh are set aside. he be set at liberty forthwith, if his custody is not required in connection with any other case. resultantly, cra no.s-2482-sb of 2009 filed by appellant jagjit singh stands allowed and cra no.s-52-sb of 2010 filed by appellant angrej singh stands dismissed. (inderjit singh) october 03, 2013 judge vgulati gulati vineet 2013.10.11 16:24 i attest to the accuracy and integrity of this document chandigarh
Judgment:

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (i) Crl.

Appeal No.S-2482-SB of 2009 Date of Decision: October 03, 2013 Jagjit Singh ...Appellant VERSUS State of Punjab and another ...Respondents (ii) Crl.

Appeal No.S-52-SB of 2010 Angrej Singh ...Appellant VERSUS State of Punjab ...Respondent CORAM: HON'BLE Mr.JUSTICE INDERJIT SINGH Present: Mr.J.S.Bedi, Advocate, for the appellant (in CRA No.S-2482-SB of 2009).Mr.Jagvinder Singh Santwal, Advocate for the appellant (in CRA No.S-52-SB of 2010).Mr.Yogesh Gupta, Asstt.

Advocate General, Punjab for the respondent-State.

Ms.Ranjana Shahi, Senior Panel Counsel for the respondent-Union of India.

**** INDERJIT SINGH, J.

This judgment shall dispose of two connected appeals i.e.CRA No.S-2482-SB of 2009 and CRA No.S-52-SB of 2010 arising out of the same judgment of conviction dated 14.09.2009 and order of Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -2- sentence dated 17.09.2009 passed by learned Judge, Special Court, Muktsar, whereby the appellants were held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of ten years each and to pay a fine of ` 1 lac each under Section 15 of the Narcotic Drugs and Psychotropic Substances, Act 1985 (NDPS Act) and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year each.

The brief facts of the prosecution case are that on 11.02.2002, Jasvir Singh was posted as Inspector, Customs Preventive Station, Killianwali.

On that day, he along with S.K.Singla, Superintendent, B.S.Bedi, Superintendent and other officials was holding a naka on Rajasthan border near canal bridge adjoining to village Kandukhera.

At about 7.15 A.M, one jeep make Mahindra bearing registration No.DID-4428 was seen coming from the side of Rajasthan and was got stopped.

Jagjit Singh was driving the jeep.

Angrej Singh and Gurmit Singh were sitting in the jeep and two gunny bags were found lying on the backside of the jeep.

Customs Officers brought the jeep along with gunny bags and accused to their office situated at Killianwali.

An option to all the accused under Section 50 of the NDPS Act for conducting search in the presence of Gazetted Officers of Customs department was given.

All the accused opted for search in the presence of Gazetted Officer.

Gurmit Singh on interrogation was found innocent and was released.

Chhaju Ram and Ramesh Kumar, independent witnesses reached in the office.

On search of the fiRs.gunny bag, 400 packets of poppy husk were Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -3- recovered.

On weighment each packet came to be of 100 gMs.From the second gunny bag, 80 packets of poppy husk were recovered and on weighment, each packet came to be of 500 gMs.In total, the recovered poppy husk came to be 80 kgs.

From the fiRs.bag, 100 gMs.of poppy husk was separated by taking out small quantity from each packet.

Similarly, from the second bag, 100 gMs.of poppy husk was separated by taking small quantity from each packet and the separated poppy husk was converted into 8 representative samples and said samples were sealed with the seal bearing No.“47”.Remaining packets were transferred to the respective gunny bags and both the gunny bags were also sealed with the seal bearing No.“47”.Case property was taken into possession along with jeep vide recovery memo Ex.P4.

Both the accused were explained about Section 108 of the Customs Act.

Thereafter, Investigating Officer Jasvir Singh, Inspector Customs got recorded statements of both the accused.

Statement of Angrej Singh was recorded before B.S.Bedi, Superintendent.

Angrej Singh admitted that poppy husk belonged to him and it was to be distributed among the voters as the elections were to be held on 13.02.2002 in Punjab State.

Before recording statement, Investigating Officer also informed superior officers of Customs Department regarding recovery.

Accused Jagjit Singh himself wrote his statement Ex.P6 before S.K.Singla, Superintendent and Investigating Officer.

He disclosed that at the instance of Angrej Singh, he went to village Haripur in Rajasthan and brought poppy husk from there.

He also deposed that jeep was attached with the Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -4- election party and on the way, Gurmit Singh had taken lift.

Both the accused were arrested.

They were produced along with case property and jeep in the Court of Illaqa Magistrate.

The case property was deposited in the malkhana of the Customs Department at Ferozepur with seals intact.

On 14.02.2002, Investigating Officer sent two parcels to CRCL, New Delhi through registered post.

On the same day, he sent two samples to Central Custom Preventive Division, Ferozepur through registered post.

Postal receipt is Ex.P12.

On 15.02.2002, he sent the copy of test report to CRCL, New Delhi through registered post and postal receipt is Ex.P13.

Report of CRCL is Ex.P14.

After receipt of the report, complaint against the accused- appellants was filed by Investigating Officer.

Finding prima facie case, accused-appellants were charge-sheeted under Section 15 of the NDPS Act, to which they pleaded not guilty and claimed trial.

In support of its case, complainant Jasvir Singh examined himself as PW-1 and deposed as per prosecution version.

PW-2 S.K.Singla, Superintendent, also deposed as per prosecution version.

PW-3 Bhupinder Singh Bedi, who was posted as Superintendent, Custom Preventive Station, Killinwali also deposed as per prosecution version and also deposed regarding recovery from the jeep.

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.

Accused-appellant Angrej Singh further pleaded that there were Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -5- assembly elections in Punjab State two days before the alleged occurrence.

The office of Customs department is situated at Mandi Killianwali in the house of supporter of Akali party and at the instance of the owner of the house, he and his co-accused have been involved in this case falsely because they are the supporters of Congress party.

He further pleaded that confessional statements were not recorded and their signatures were obtained by the Investigating Officer on blank papeRs.No poppy husk was ever recovered from them.

Similar is the plea taken by accused-appellant Jagjit Singh.

In defence, accused-appellants examined DW-1 Jagtar Singh, who deposed as per defence version.

On the basis of the evidence produced by the prosecution, accused-appellants were convicted and sentenced by the learned Judge, Special Court, Muktsar, as stated above.

At the time of arguments, learned counsel for the appellant Angrej Singh argued that there are discrepancies in the statements of the PWs.

He further argued that one of the PW has stated that they have measured the quantity of poppy husk by mechanical balance whereas other PW has stated regarding measuring the quantity by simple balance.

He next argued that PW-2 S.K.Singla has stated that jeep was the fiRs.vehicle, which was stopped at the naka whereas PW-3 Bhupinder Singh Bedi has stated that before checking of the said jeep involved in the occurrence, 5-6 vehicles earlier were checked at the naka.

He further argued that the defence version is more probable and accused has been falsely implicated in this case.

Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -6- Learned counsel for the appellant Angrej Singh further contended that it is improbable to collect 100 gMs.of poppy husk from 400 packets.

He next contended that independent witnesses were not examined.

He also argued that the statement under Section 108 of the Customs Act is inadmissible and this statement has been fabricated by obtaining signatures of accused on blank papeRs.Learned counsel for the appellant Jagjit Singh argued that the statement given to Custom Officer under Section 108 of the Customs Act is per se admissible.

It can be used as confessional statement of the accused against the co-accused.

The statement Ex.P6 recorded under Section 108 of the Customs Act is admissible in evidence and prosecution has relied upon that statement.

Therefore, he argued that this statement Ex.P6 of appellant Jagjit Singh shows that he was not aware of the contents of the gunny bags.

The jeep was on election duty with accused-appellant Angrej Singh and Angrej Singh brought those two gunny bags and there is no evidence on record to show conscious possession of appellant Jagjit Singh regarding poppy husk in those gunny bags.

Learned counsel for the appellant Jagjit Singh further argued that case of Jagjit Singh is at par with Gurmeet Singh against whom no proceedings were initiated.

Both the learned counsel for the appellants, therefore, argued that there being merit in both the appeals, the same should be allowed and appellants should be acquitted.

On the other hand, learned Asstt.

Advocate General, Punjab for the respondent-State as well as learned counsel for Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -7- respondent-Union of India argued that case of the prosecution has been duly proved.

Conscious possession of appellant Jagjit Singh has been duly proved.

They further argued that non-examination of independent witness, in no way can be held as fatal to the prosecution case.

The defence version is not believable.

They next argued that the discrepancies pointed out are minor in nature and do not go to the root of the case.

There is nothing on the record to show that statement under Section 108 of the Customs Act is fabricated.

They further contended that statement under Section 108 of the Customs Act is admissible in evidence.

All the mandatory provisions of the NDPS Act have been complied with.

Learned State Counsel and learned counsel for Union of India, therefore, argued that there being no merit, both the appeals should be dismissed.

I have gone through the evidence on record minutely and carefully and have heard learned counsel for the appellant and learned Asstt.

Advocate General, Punjab for the respondent-State as well as learned counsel for the respondent-Union of India.

From the evidence on record, I find that PW-1 Jasvir Singh, Inspector CustoMs.who also investigated the case, has consistently deposed as per prosecution version.

There is nothing in his cross-examination, which may make his statement unreliable.

His statement is supported and corroborated by two senior officers of Customs department i.e.PW-2 S.K.Singla, Superintendent Vigilance and PW-3 Bhupinder Singh Bedi, Superintendent.

There are no material improvements or material contradictions in their statements, Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -8- which may go to the root of the case.

The discrepancies pointed out by learned counsel for the appellant Angrej Singh are minor in nature and such type of discrepancies occur in the statements of truthful witnesses.

None of the discrepancies pointed out by learned counsel for the appellant Angrej Singh goes to the root of the case.

As regarding defence version which was taken in statement under Section 313 Cr.P.C.and also statement of DW-1 Jagtar Singh, cannot be believed.

If the Customs Officers have their office in the building of supporters of Akali Dal, even then, Officers of Customs cannot be held under the influence of landlord.

The department might have been paying rent to the landlord.

Otherwise also, the perusal of statement of DW-1 Jagtar Singh does not inspire confidence.

Such type of witnesses can be produced at any stage.

There is nothing on the record to show that he had made complaint to higher authorities regarding false implication of the accused in this case.

It is in the statement of PW-1 Jasvir Singh, Inspector Customs that a small quantity from each of the gunny bag was separated and then representative samples were made.

In no way, on this ground it can be held as improbable or unnatural version.

As regarding independent witness, as per complainant version, two independent witnesses Chajju Ram and Ramesh Kumar were joined during the proceedings.

Their non-examination will not create any reasonable doubt in the complainant’s version.

Otherwise also, there is nothing on the record to show any enmity or motive of the Customs Officers against the accused-appellant Angrej Singh to Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -9- falsely implicate him or to fabricate his statement under Section 108 of the Customs Act.

There is nothing on the record as to why the Customs Officers would depose falsely against appellant Angrej Singh and why they would falsely implicate him.

There is also no evidence on the record to support and corroborate the version of Angrej Singh appellant that his statement has been fabricated and his signatures have been obtained on blank papeRs.He has never made any complaint to any of the higher authority that his signatures have been obtained on blank papeRs.It is settled law that Customs Officers are not police officers and the statements recorded under Section 108 of the Customs Act are not hit by Section 25 of the Evidence Act.

The statements under Section 108 of the Customs Act are admissible in evidence as has been held by the Hon'ble Supreme Court in Ram Singh versus Central Bureau of Narcotics, 2011 (2) RCR (Criminal) 850, in which it is held that recovery of opium was from accused by officers of Narcotic Bureau.

Accused made confession before said officeRs.Officers of Central Bureau of Narcotics are not police officers within the meaning of Section 25 and 26 of the Evidence Act and hence, confessions made before them are admissible in evidence.

Accused was convicted on the basis of said confession which was found to be voluntary.

Learned counsel for the respondent-Union of India on the same point cited judgment passed by this Court in Basharat Ali and another versus Inspector of CustoMs.2006(4) RCR (Criminal) 250, in which it is held that confessions made by accused before Custom Officer is admissible in evidence.

She further cited Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -10- judgment passed by the Hon'ble Supreme Court in Francis Stanly @ Stalin versus Intelligence Bureau, Narcotic Control Bureau, 2007(1) RCR (Criminal) 505, in which it is held that confession made before an Officer of Department of Revenue Intelligence under NDPS Act, such a confession is not hit by Section 25 of the Evidence Act.

I have gone through the statement got recorded under Section 108 of the Customs Act by accused-appellant Angrej Singh.

The confession made by him supports and corroborates the prosecution version that those gunny bags belonged to him and he has brought the same from Rajasthan.

The statement given by appellant Jagjit Singh under Section 108 of the Customs Act also states that those bags were brought by accused-appellant Angrej Singh from Rajasthan.

Therefore, his statement also supports and corroborates the version of the complainant.

Learned counsel for the appellant Angrej Singh has cited judgment passed by this Court in Mangal Singh versus Punjab State, 1999(3) RCR (Criminal) 373.

I have gone through this judgment.

It is held that punishment for offence under NDPS Act is very hard.

Stricter the punishment graver the proof.

The prosecution has to take every care by leading cogent, reliable and satisfactory evidence.

It is also held that defence witness has to be treated in the same fashion as that of the prosecution witness.

I find that this judgment is of no benefit to appellant Angrej Singh.

He also cited judgment passed by this Court in Thandi Ram versus State of Haryana, 1995(3) RCR (Criminal) 327, in which it is held that accused is not required to Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -11- prove his case beyond reasonable doubt.

If by adducing defence evidence, he creates a doubt in the prosecution version, he is entitled to benefit of doubt.

I have gone through the judgment and the same having distinguished facts will not apply in the present case.

Learned counsel for the appellant Angrej Singh has further cited judgment passed by the Hon'ble Supreme Court in U.O.I.versus Bal Mukund and otheRs.2009(2) RCR (Criminal) 574, in which it is held that retraction made by accused only when the accused was being examined under Section 313 Cr.P.C.No credence could be given to such a retraction made after a long time.

I have gone through the judgment and the same having distinguished facts will not apply in the present case.

Learned counsel for appellant Angrej Singh further cited judgments passed by this Court in Joga Singh versus State of Punjab, 2006(3) RCR (Criminal) 480, State of Haryana versus Kewal Ram, 2007(3) RCR (Criminal) 393, Jaswant Singh versus The State of Punjab, 2008 (4) RCR (Criminal) 28.

I have gone through all the above cited judgments and the same having distinguished facts, will not apply in the present case.

Therefore, from the evidence on the record, I find that complainant has duly proved its case by leading cogent evidence against appellant Angrej Singh.

The confession of appellant Angrej Singh further supports and corroborates the complainant’s version.

Therefore, the judgment of conviction and order of sentence passed by learned Judge, Special Court, Muktsar qua appellant Angrej Singh are correct and the same are upheld.

Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -12- As regarding appellant Jagjit Singh, it is in the evidence that he was driver of the jeep and jeep was hired by accused Angrej Singh for election purposes earlier to the occurrence.

It is also in the statement recorded under Section 108 of the Customs Act that he went with accused Angrej Singh to Rajasthan and he was sitting outside and Angrej Singh brought two gunny bags and kept in the jeep.

The perusal of the statement got recorded by appellant Jagjit Singh Ex.P6, nowhere shows that he was having knowledge regarding the articles of the gunny bags, which belonged to accused Angrej Singh, who brought the same from village Haripur in Rajasthan.

Nowhere this statement shows that appellant Jagjit Singh was aware of the contents in the gunny bags.

Therefore, conscious possession of appellant Jagjit Singh is not proved beyond reasonable doubt.

As the statement Ex.P6 recorded under Section 108 of the Customs Act is admissible in evidence and the prosecution has relied upon the same, therefore, this statement goes in favour of appellant Jagjit Singh and the benefit is to go to him by holding that he was not in conscious possession of the incriminating articles.

Otherwise also, there is nothing in the statement of Investigating Officer PW-1 that appellant Jagjit Singh has not given the correct statement under Section 108 of the Customs Act or there is also no evidence that he was knowing the contents of the gunny bags.

He was the driver of the jeep and the jeep was hired by accused Angrej Singh, who brought the gunny bags.

Angrej Singh in his statement under Section 108 of the Customs Act has stated that the bags belonged to him, which Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.

Appeal No.S-2482-SB of 2009 and connected appeal -13- shows innocence of appellant Jagjit Singh.

In view of the above, I find that complainant has failed to prove conscious possession of the appellant Jagjit Singh.

Rather, statement recorded under Section 108 of the Customs Act by appellant Jagjit Singh, goes in his favour.

Therefore, a reasonable doubt exists in the prosecution version and benefit of doubt is to go to appellant Jagjit Singh.

Hence, giving benefit of doubt, appellant Jagjit Singh is acquitted of the charges framed as against him.

The judgment of conviction and order of sentence recorded by the trial Court qua appellant Jagjit Singh are set aside.

He be set at liberty forthwith, if his custody is not required in connection with any other case.

Resultantly, CRA No.S-2482-SB of 2009 filed by appellant Jagjit Singh stands allowed and CRA No.S-52-SB of 2010 filed by appellant Angrej Singh stands dismissed.

(INDERJIT SINGH) October 03, 2013 JUDGE Vgulati Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh