Baldev Singh @ Deba vs State of Punjab

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(P&H) 57

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Mehinder Singh Sullar
CRA No.836-SB of 2009
Baldev Singh @ Deba
v.
State of Punjab & Ors.
{Decided on 28/01/2013}

Advocates:
For the Appellant:Mr. Bhanu Pratap Singh, Advocate.
For the Respondent No.1-State: Mr. K.S. Aulakh, AAG Punjab.
For the Respondent Nos.2 to 5: Nemo.

Headnote:(A) Narcotic Drugs & Psychotropic Substances Act, 1985, S.21--Identification of accused--Non-Cross examination of material witness--Head Constable has identified the appellant and he was not cross-examined on behalf of appellant--Statement of Head Constable was recorded in absence of defence counsel--Held; it was the mandatory duty of trial Court either to adjourn the case for cross-examination or ought to have appointed some counsel as amicus curiae to cross-examine the material witness on behalf of the appellant--Cross-examination of a witness in such a case is of very vital, important, valuable right of an accused, integral part and essential ingredient of a fair trial in such criminal cases--Therefore, a great prejudice has been caused to the appellant in this relevant connection--Criminal Procedure Code, 1973 S.137 (Para 15)
       (B) Narcotic Drugs & Psychotropic Substances Act, 1985, S.21--Identification of accused--Acquittal--Head Constable stated since the father of the appellant was of a bad character, so, he used to raid their house and he knew the appellant--He has not mentioned in his statement as to how, when, in which case, in what manner and by whom, the father of the appellant was declared a "Bad Character"--No implicit reliance can be placed on his solitary statement in this relevant behalf. (Para 16)
       (C) Evidence Act, 1872, S.154--Independent Witness--Non-examination of--Even if he was won over by the appellant, even then, it was necessary on the part of the prosecution that such witness must be examined, so that he could be confronted with his earlier statement duly recorded by the police to reveal the truth in this context, as contemplated u/s 154(1) of the Evidence Act--Narcotic Drugs & Psychotropic Substances Act, 1985, S.21. (Para 17)
       (D) Narcotic Drugs & Psychotropic Substances Act, 1985, S.21--Sample--Delay in Sending--Acquittal--Held; There is a delay of about one month in sending the samples to the laboratory and possibility of tampering with the case property and the samples of parcels could not be ruled out, particularly when the seals, after use, remained with the police officials throughout--No explanation whatsoever has been furnished by the prosecution witnesses, with regard to delay of about one month in sending the samples to the office of Chemical Examiner. (Para 19)
       (E) Narcotic Drugs & Psychotropic Substances Act, 1985, S.21--Contradiction in testimony of police officials--Acquittal--Prosecution is not sure as to whether the recovery was effected at 2:40 a.m. (midnight) or 2:45 p.m. (afternoon). (Para 20)
       (F) Narcotic Drugs & Psychotropic Substances Act, 1985, S.21--Case Property--Not produced in intact/sealed contention--Acquittal--Held; IO has categorically stated that he had seen the plastic Cans outside the Court in a broken condition when his part statement was recorded--He has again not seen the case property in the Court on when his statement was completed--That means, the case property was not produced in the Court intact/sealed, which also demolishes the prosecution version--No cogent explanation for non-production of case property intact/sealed in the Court is forthcoming on record, which renders the prosecution version importable and doubtful. (Para 20)

JUDGMENT

Mr. Mehinder Singh Sullar, J. (Oral) - Assailing the impugned judgment of conviction & order of sentence dated 19.11.2008, appellant-convict Baldev Singh alias Deba son of Bawa Singh (for brevity “the appellant”) has preferred the instant appeal, vide which, he was convicted & sentenced to undergo rigorous imprisonment for a period of ten years, to pay a fine to the tune of Rs.1 lac and in default thereof, to further undergo RI for a period of one year, on accusation of having committed an offence punishable under section 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as “the NDPS Act”) by the Judge, Special Court.

2. Tersely, the facts, material and evidence, unfolded during the course of trial, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record, are that, on 8.8.1997, a police party headed by Mandeep Singh (PW3) SI/SHO of Police Station Sarhali received a secret information that Jaswant Singh, Hira Singh (acquitted accused) and Baldev Singh (appellant) were indulging and bringing some oil, used for preparing Heroin in a truck, bearing registration No.PB-02-D-9621. On the basis of secret information, a Naka was arranged near the Canal bridge of village Billianwala. On receiving the information, DSP Jarnail Singh (PW2) also reached the spot at 12.15 AM (mid night) and Rasal Singh son of Chanan Singh was joined as an independent witness in the raiding party.

3. The prosecution claimed that in the meantime, a truck came from the side of village Jamarai. Its driver was signaled by SI/SHO Mandeep Singh and the truck was stopped. Thereafter, three persons alighted from it and they ran away, taking the benefit of darkness. Rasal Singh, independent witness, identified Jaswant Singh alias Jassa accused, whereas the appellant was stated to have been identified by HC Gurbax Singh (PW4) and 3rd person could not be identified. In the wake of search, 40 Cans, containing 20 liters each and 2 Cans, containing 35 liters each of oil were recovered. 180 ML oil was separated as sample from each Can. The samples and the remaining bulk of recovered oil were separately sealed with the seals ‘MS’ and ‘JS’’. The samples and the residue of oil were taken into possession, vide recovery memo (Ex.PB). The oil was chemically examined and it was found to be Acetic Anhydride by the Laboratory, by way of report (Ex.PX). Subsequently, the accused were arrested on 19.8.1997 by PW3.

4. Leveling a variety of allegations and narrating the sequence of events, in all, according to the prosecution that 40 Cans, containing 20 liters each and 2 Cans, containing 35 liters each of oil were recovered from the truck. In the background of aforesaid recovery and allegations, a criminal case was registered against the indicated persons, by virtue of FIR No.118 dated 8.8.1997 (Ex.PD), for the commission of offences punishable u/ss 22 and 23 of the NDPS Act by the police of Police Station Sarhali, District Amritsar in the manner depicted here-in-above.

5. After completion of the investigation, the police submitted the final police report (challan) against the accused. Consequently, they were charged on accusation of having committed the offences punishable under sections 21, 22 & 29 of the NDPS Act by the Judge, Special Court, by means of charge-sheet dated 10.9.2005 and the case was slated for prosecution evidence.

6. The prosecution, in order to substantiate the charges framed against the accused, examined PW3 SI/SHO Mandeep Singh, who has, inter-alia, stated, on oath, that on 8.8.1997, he received a secret information and recorded the FIR (Ex.PD). He arranged a raiding party and the information was conveyed to PW2 DSP Jarnail Singh through wireless. He was requested to spare time to accompany the raiding party. He has also joined Rasal Singh PW as an independent witness. He signaled and the driver stopped the truck. Three accused, namely, Jaswant Singh, Baldev Singh an

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2013 Supreme(P&H) 57

IN THE HIGH COURT OF PUNJAB AND HARYANA Before The Hon’ble Mr. Justice Mehinder Singh Sullar CRA No.836-SB of 2009 Baldev Singh @ Deba v. State of Punjab & Ors. {Decided on 28/01/2013}

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Mehinder Singh Sullar
CRA No.836-SB of 2009
Baldev Singh @ Deba
v.
State of Punjab & Ors.
{Decided on 28/01/2013}