BUTA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS judgment shall also dispose of two connected Crl. Appeals, 1601-SB of 2002 and 1664-SB of 2002 as all the Criminal Appeals arise out of a common judgment dated 25.9.2002 passed by learned Special Judge, Bathinda, in NDPSA File No. 8 of 1.2.1997 (RT No. 24 of 15.4.1998), holding all the accused-appellants guilty of offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and sentencing them to undergo RI for ten years and to pay fine of Rs. 1,00,000/-, each. In default of payment of fine, they have been each directed to undergo further two years RI. The brief facts of the prosecution case are that on 2.10.1996 Inspector Parvinder Singh was holding pickets with HC Babu Singh and other police officials near a bus stand at Seikhpura. Gurmail Singh, a public witness, was also joined in the police party. In the meantime one Maruti car bearing No. CHK-6519 came from the direction of Talwandi Sabo. The car was stopped by Inspector Parvinder Singh. However, one occupant of the car ran away from the spot. His name was later on disclosed as Buta Singh son of Lal Singh, r/o V. Burj Dhilwa. But driver of the car namely accused Amin Chand was apprehended at the spot itself. Four bags were found lying in the car; the I.O. apprehended some contraband article in the bags; he expressed his suspicion to the accused, and asked as to whether he wanted to be searched in the presence of a Magistrate or gazetted officer, to which the accused consented for search in the presence of some gazetted officer. Consent memo Ex. PG of the accused was thumb marked by him and attested by PWs. Thereafter on a wireless message received from the I.O., DSP Bal Krishan reached the spot; he disclosed his identity to the accused, and he gave a further option to the accused that he has a right to get the search conducted before any other gazetted officer or Magistrate. But accused Amin Chand reposed confidence in DSP Bal Krishan and he gave his consent statement Ex. PB, which was also thumb marked by him and attested by PWs. Thereafter on the direction of the DSP, Inspector Parvinder Singh conducted search of four bags lying in the car and they all were found to contain poppy husk. A sample of 200 grams of poppy husk was separated from each bag and they were put into parcels. The residue of each bag came to 37 kgs and 800 grams. All the four samples and the bags were sealed. The sample parcels were sealed with seal of IO bearing impression PS. Sample seal Ex. P-1 was also prepared. All the parcels and sample seal were then taken into possession vide recovery memo Ex. PC, which were attested by the PWs. On personal search of accused Amin Chand, currency notes of Rs. 350/- were also recovered and were taken into possession vide recovery memo Ex. PE attested by PWs. Grounds of arrest were disclosed to the accused vide memo Ex. PH. A ruqa (Ex. PJ) was sent to the Police Station, on the basis of which a formal FIR Ex. PJ/1 was recorded. Statements of PWs under Section 161 Cr. P.C. were recorded. DSP Bal Krishan having received some wireless message on the spot went away. During further interrogation, accused Amin Chand made a disclosure statement regarding concealment of 14 bags of poppy husk near the house of Hakam Singh in an open place under some wild bushes and cotton plants within the revenue limits of village Seikhpura and accused Malkiat Singh alias Mita was sitting to take care of the same. Accused Amin Chand volunteered to get the contraband recovered from that place. A disclosure statement (Ex. PK) of the accused was recorded with his thumb impression, which was attested by PWs. Hence, a wireless messages was again sent to DSP Bal Krishan to reach the spot and the police party proceeded towards the spot along with accused Amin Chand. DSP Bal Krishan also reached the spot. On having seen the arrival of the police party, accused Malkiat Singh alias Mita who was on watch fled away from the spot. The DSP showed his identity to the accused and directed the I.O. to get the search of gunny bags conducted. At the instance of accused Amin Chand 14 bags of poppy husk were recovered from the place indicated by him. 200 grams of poppy husk was separated towards sample from each bag. The residue of each bag on weighment came to 37 kgs. and 800 grams. All the samples and the bags were thereafter sealed by the I.O. with his seal PS and taken into possession vide a memo (Ex. PD) attested by PWs. A rough site plan Ex. PL was prepared and statements of witnesses under Section 161 Cr. P.C. were recorded. Accused Malkiat Singh alias Mita was arrested later on, on 10.10.1996. Another accused Buta Singh was arrested subsequently. Accused Amin Chand and the case property were produced before the Ilaqa Magistrate the next day vide application (Ex. PH) and the Court passed an order (Ex. PN/1). Inventory (Ex.PO) was also produced before the Ilaqa Magistrate. As per procedure the sample parcels were sent to the office of Chemical Examiner and on completion of investigation, a challan was laid against the accused in the Court.

(2.) HEARD learned counsel for the parties and perused the records. Learned Sr. counsel for the appellants argued that the first part of recovery of 4 bags of poppy husk was a chance recovery which was effected on 2.10.1996 at 11.15 AM when, as per prosecution case, one person sitting in the car had run away, who was later on identified and named to the police as Buta Singh but it is not the prosecution case that co-accused Amin Chand gave the name of Buta Singh to the police. Learned Sr. counsel also submitted that Gurmail Singh, an independent witness, remained with the police throughout, during the search and seizure but he was given up and not produced in witness box by the prosecution. Learned Sr. counsel also submitted that the seal of the Station House Officer was not handed-over to the independent witness but rather it was entrusted to another police official. According to learned Sr. counsel, the samples of the contraband item were sent with a delay after a gap of 8 days. As regards the second recovery of 14 bags of poppy husk at a disclosure statement of co-accused Amin Chand, according to learned Sr. counsel, it can, at the best, be used as a substantive piece of evidence under Section 27 of the Indian Evidence Act only against the person, who has made the statement. Learned Sr. counsel referred to a judgment of Hon'ble the Apex Court reported in 2002 Supreme Court Cases (Criminal) 1080 (Sasi and another v. State of Kerala). Learned Sr. counsel also submitted that from the cross-examination of Head Constable Babu Singh (PW-4), Malkiat Singh was found sitting on 14 bags of the contraband in an open space and having seen the police, he had run away. Learned Sr. counsel contended that it appears quite unnatural and improbable that in both the cases of recovery, the accused could not be over- powered by the police and they had run away from the spot of incident. Further, if there was no conduction of test identification parade after the accused were arrested, the disclosure statement of co-accused Amin Chand could not have been used against them. Learned Sr. counsel also submitted that at the time of the disclosure statement given by Amin Chand, the DSP (PW-3) was not present there. Thus, the credibility of disclosure statement itself becomes doubtful. Learned Sr. counsel also urged that two defence witnesses were examined on behalf of appellant Amin Chand and according to the defence version, the police after having effected the recoveries have implicated the accused. It is also a defence case that on the same date, the police had registered 5-6 cases against the accused persons. Learned Sr. counsel further submitted that none of the accused was connected with the vehicle, which belonged to some other person and further the place wherefrom the recovery of 14 bags of contraband was made, belonged to one Hakam Singh, who is neither an accused nor a witness in this case. Learned Sr. counsel also submitted that according to a standing instruction of the Ministry of Finance, Government of India, as reproduced in a judgment of the Bombay High Court reported in 2004(2) RCR (Criminal) 403 (Mohammad Salim Bashir Shaikh v. State of Maharashtra), a sample of the contraband item should be sent to Chemical Examiner within 72 hours of seizure.

(3.) ON a careful consideration of rival submissions, it appears that all the prosecution witnesses produced are only police/official witnesses, therefore, their testimonies need to be examined carefully, looking to the object of the Act and the quantum of punishment prescribed thereunder. Gurmeet Singh (PW-1) is a formal witness, who submitted his evidence on affidavit (Ex. PA). He had been handed over the samples and the seals to be delivered at the Forensic Science Laboratory for chemical examination. He has taken one day's time and, admittedly, delivered it the next day at about 1 O'clock. He has not been cross-examined as to why he could not deliver it on the same day. Jasbir Singh (PW-2) is a Head Constable, who produced the Police Station register to show the criminal antecedents of accused Amin Chand. Bal Krishan (PW-3) was the DSP, in whose presence, the recoveries were effected. His evidence (being a gazetted officer) is very relevant and particularly, in the absence of evidence of SHO/IO, due to his death. He visited both the spots. During the first visit, four bags of poppy husk were recovered from a car. According to him, accused Amin Chand was introduced to him by Inspector Parvinder Singh (SHO). The Inspector also told that co-accused Buta Singh and Malkiat Singh were accompanying Amin Chand in the car but they managed to flee away although according to the prosecution story only one person had run away, who was later on named as Buta Singh. This is also a prosecution case that co-accused Malkiat Singh was found sitting near 14 bags of poppy husk and he also ran away having seen the police. Moreover, PW-3 in his cross-examination has denied the suggestion that he gave a statement before the police that Malkiat Singh and Buta Singh had accompanied accused Amin Chand in the car and had fled away from the spot on interception by the police. In reply to some suggestions during his cross-examination on behalf of accused Buta Singh and Malkiat Singh this witness has showed his ignorance about their arrests as they were not produced before him. He admitted that he had not collected any evidence against them. Thus, his evidence does not disclose any worthwhile incriminating material against accused Buta Singh and Malkiat Singh. As regards accused Amin Chand, PW-3 has stated to have given a complete offer to him to be searched before a Gazetted Officer or a Magistrate and on his consent, the search was conducted in the presence of this witness. PW-3 has stated that he had received the special report but has not pointed out the time of its receipt. Moreover, he also stated that as per the special report, one Mita Singh, resident of Jodhpur Pakhar, was sitting on guard of the above said 14 bags of poppy husk. Besides, he was not in position to give the names of the scribes of his statements under Section 161 Cr. P.C. and further stated that he did not make any efforts to associate an independent witness. Another prosecution witness Head Constable Babu Singh (PW-4) appears to corroborate the evidence of PW-3 in material particulars. He has stated that accused- appellant Amin Chand had opted to be searched before a higher police officer. Though this witness has stated that the seal 'PS' of the SHO was handed over to him but nowhere in his evidence, it is clear that the same seal was also used during the second recovery as after that also, a seal with impression 'PS' was handed over to him. PW-4 has deposed that the police party consisted of six police personnel, but they could not apprehend accused Buta Singh, nor was any effort made in that direction. At the time of the second recovery as per prosecution case, accused Malkiat Singh was seen sitting near the contraband but again no efforts were made to overpower him despite the presence of the DSP and other police personnel. According to this witness, accused/appellant Malkiat Singh @ Mita was arrested on 10.10.1996, obviously after a gap of 15 days, and nothing was recovered from his personal search. He has admitted that accused Buta Singh was arrested later on and has said nothing about any recovery from him. He has deposed that with an application (Ext. PN), all the samples, the sample seal and accused Amin Chand were produced before the Ilaqa Magistrate by Inspector Parvinder Singh. As Inspector Parvinder Singh died during the pendency of trial, PW-4 has identified his hand-writings and signatures in the Court. It is noticed in his evidence that the house of one Hakam Singh was situated near the place of second recovery but none of his family members nor any other independent witness from that locality was associated with the conduction of the recovery. In his cross-examination, PW-4 has admitted about presence of one Mita Singh (not Malkiat Singh) near 14 bags of poppy husk lying in an open space being accessible to all. According to his version, the accused had fled away from the spot on the arrival of the police party. Like PW-3, he has could not identify the hand-writings of the scribe of his statement under Section 161 Cr. P.C.