MUKHTIAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is an appeal against the judgment/order dated 13.5.2005/ 14.5.2005 of the Special Judge, Moga, whereby the trial Court convicted Mukhtiar Singh @ Mukha son of Mohinder Singh and Ginder Singh son of Naranjan Singh under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") and sentenced them to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1,50,000/-, in default to undergo rigorous imprisonment for a period of one year.

(2.) THE case of the prosecution is unfolded by ruqa Ex.P18, sent by SI Dev Raj, SHO Police Station, Dharamkot from the area of Village Badhuwal at 11.35 P.M. to the MHC Police Station, Dharamkot. He stated in the ruqa that he along ASI Harjit Singh, ASI Subhash Chand, ASI Darshan Singh, ASI Manjit Singh, HC Krishan Kumar, HC Santokh Singh and HC Pritam Singh in official Gypsy No. PB- 08-2272 driven by Constable Kuldeep Kumar, were present near the bus stand of Village Badhuwal, in connection with patrolling on 18.12.2002. At about 8.45 P.M., a special informer gave the information that Mukhtiar Singh alias Mukha son of Mohinder Singh, resident of Kot Mohammad Khan and Ginder Singh son of Niranjan Singh, resident of Village Daulewala PS Kot Ise Khan, have brought bags containing poppy husk in a truck and they have kept them concealed in a drain dug by the telephone department about 100 yards short of bus stand Kot Mohammad Khan. They were standing there in order to take the bags to some other place. SI Dev Raj believing the information to be correct, brought it to the notice of SP (D) Moga, Sh. Ashok Kumar through wireless and requested him to reach the spot. Thereafter SI Dev Raj along with police officials proceeded to conduct the raid. They reached the spot at about 9.15 P.M. Two persons succeeded in running away from the spot on seeing the lights of the gypsy. The persons who ran away were Mukhtiar Singh alias Mukha and Ginder Singh, who were identified by HC Krishan Kumar, who knew them. At about 10.00 P.M., SP (D) along with his gunmen reached the spot in his official gypsy. On the directions of SP (D) Ashok Kumar, SI Dev Raj opened the gunny bags, wherein there was poppy husk, in all 19 bags lying there. Out of these bags, 250 grams of poppy husk was taken out as sample from each bag. After taking the samples from each bag, the bags weighed 34 Kgs. 750 grams each. 19 bags containing the poppy husk were converted into separate parcels. The parcels containing the samples and the parcels of gunny bags were sealed by SI Dev Raj with his seal "DR" and the SP (D) also sealed the bags with his seal "AK". A specimen seal was prepared separately. After its use, the seal was handed over to ASI Harjit Singh. The parcels of samples and gunny bags were taken into possession vide separate memos. On the basis of this ruqa, FIR Ex.P18/A was registered.

(3.) LEARNED counsel for the appellants has argued that no test identification parade was held to identify the appellants, who had run away from the place of occurrence. The information given to SI Dev Raj PW8 was on the basis of secret information. The two persons, who had run away when the police gypsy approached them, would not have done so as they did not know that the gypsy coming towards them was that of the police officials. The police officials in the raiding party were 9 in number. They were armed. No effort was made by them either to catch hold of the appellants or at least to fire in the air to scare them so that they would surrender. Appellants were identified for the first time in Court. The poppy husk was recovered from a public place as alleged by the prosecution. There was a drain of the telephone department, in which it was lying. Conscious possession of the appellants could not be established, as they were mere strangers to the place where the contraband was lying. Section 42 of the NDPS Act was not complied with. Though as per the prosecution it is on secret information the raid was conducted, but no ruqa was sent to the superior police officer or to the police station to register a case before the raid was conducted. No independent witness was joined nor the Investigating Officer tried to join any independent witness. There are material discrepancies in the statements of the prosecution witnesses. ASI Harjit Singh PW6 has stated that the bags of poppy husk were not lying in the pit which had been dug by the telephone department, while SI Dev Raj PW8, has stated that some of the gunny bags were lying in the pit and the others were placed next to them.