KAUR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE present appeal arises out of judgment and order dated 4.5.1993 passed by learned Additional Sessions Judge, Faridkot, convicting the accused-appellant under Section 15 of the NDPS Act and sentencing him to undergo rigorous imprisonment for a period of 10 years and imposing a fine of Rs. 1 lac and in default of payment of fine to further undergo rigorous imprisonment for 2 years, 6 months.

(2.) THE case of the prosecution, in brief, is that on 6.5.1991, the then Sub- Inspector Anokh Singh, ASI-Arjan Singh and other police officials of Police Station Nihalsinghwala were present at the bus stand of Village Himatpura. Sub-Inspector Anokh Singh received a secret information that two persons namely, Kaur Singh and Ashok Kumar were dealing in the sale of poppy husk and in case fields of Kaur Singh in the area of village Himatpura were raided, they could be apprehended. Accordingly, Ruqa Exhibit-PA was sent to Police Station on the basis of which formal FIR Exhibit PA-1 was recorded. The Investigating Officer constituted a raiding party in which Jagir Singh, PW, was joined as independent witness. When the fields of Kaur Singh were raided, he was found present in the tubewell kotha and apprehended at the spot while Ashok Kumar, accused managed to escape. Appellant Kaur Singh was informed by the Investigating Officer, whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate. The accused, however, waived his right of being searched in the presence of a Gazetted Officer or a Magistrate and expressed confidence in the Investigating Officer vide Memo, Exhibit PB, which was thumb-marked by him. Thereafter, his personal search was conducted. On further search of the premises, 20 bags of poppy husk were found lying in the Kotha, which were taken into possession. Each bag was found containing 40 kgs. poppy husk. 250 grams of poppy husk was drawn from each bag as sample. The samples and remainder were sealed by Sub-Inspector Anokh Singh with the seal marked 'AS'. The poppy husk bags, Exhibits P-1 to P-20 and the samples were taken into possession vide recovery memo Exhibit PD attested by PWs Gurcharan Singh, Arjan Singh and Jagir Singh. The Investigating Officer prepared the seal impression, Exhibit P-21 and formally arrested Kaur Singh after disclosing the grounds of arrest vide Memo Exhibit PE. Thereafter, rough site plan, Exhibit PF with regard to recovery was prepared by the Sub- Inspector and statements of PWs were recorded. On return to Police Station, the case property was deposited with MHC Gurcharan Singh and accused Kaur Singh was lodged in police lock-up. Subsequently, accused Ashok Kumar was also apprehended. The samples were sent to Public Analyst, who vide his report Exhibit PG found the presence of maconic acid and morphine in the samples and declared the contents to be poppy heads.

(3.) LEARNED counsel for the appellant argued that judgment of conviction is based only on the statement of official witnesses. Though police had joined Jagir Singh, but he has not supported the prosecution case and, therefore, the alleged seizure, search and recovery do not inspire confidence. It is further argued that link evidence in the present case is totally missing. The Investigating Officer Anokh Singh who appeared as PW-1 did not state that he had prepared the sample seal or handed over the same to any of the witnesses present at the spot, meaning thereby, the seal remained with the Investigating Officer, therefore, there were ample chances of tampering with the samples as well as the remaining case property. There is no evidence to prove that the case property or the samples remained untampered till these were deposited with the MHC. The learned counsel further argued that appellant has categorically denied the ownership of the fields as well as Kotha from where the alleged recovery has been made. The prosecution has miserably failed to prove that the land and the Kotha from where the contraband is alleged to have been recovered, belong to appellant. Learned counsel for the appellant further argued that testimonies of police officials suffer from material contradictions and the prosecution has miserably failed to bring home the guilt of the accused beyond reasonable shadow of doubt. It is argued that after search, seizure and recovery of contraband, the Investigating Officer did not inform the gazetted officer with regard to alleged recovery and as such, no compliance of Section 42 of the Act was made. Even after the alleged recovery, no gazetted officer or Magistrate was informed. Moharrir Head Constable Gurcharan Singh, who was handed over the case property to be placed in the malkhana, has not been produced in the witness box to depose as to whether the seal affixed on the samples or the case property was intact while it was being deposited in the malkhana and also when it was handed over to Constable Karnail Singh for depositing the same in the forensic science laboratory. The appellant has placed on record plaint and judgment as Exhibits D-1 and D-2 relating to a litigation between his brother Labh Singh and Nazar Singh, cousin of ASI-Gurcharan Singh.