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2013 Supreme(P&H) 664
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Jitendra Chauhan
CRA No.1133-SB of 2000
Pappu Singh & Ors.
v.
State of Haryana
{Decided on 16/07/2013}
For the Appellants in CRA No.1133-SB of 2000:Mr. Ashwani Verma, Advocate.
For the Appellants in CRA No.1167-SB of 2000
and CRA No.273 SB of 2001:Mr. Rahul Vats, Advocate.
For the Respondent:Mr. Deepak Jindal, Deputy Advocate General, Haryana.
Headnote:(A) Narcotic Drugs & Psychotropic Substances Act, 1985, Ss.15, 35, 54--Conscious possession--Presumption as to--Recovery of poppy straw--A huge recovery of poppy straw was effected from brick kiln--Nobody was arrested from the spot--No specific question was put by trial Court to accused persons while recording statements u/s.313 CrPC regarding the presumption which is sought to be raised either u/s.35 or 54 of the Act--Held, presumption to the effect that accused were in conscious possession of bags cannot be drawn against them--Criminal Procedure Code, 1973, S.313. (Para 14)
(B) Narcotic Drugs & Psychotropic Substances Act, 1985, Ss.15, 35, 54--Identification of Accused--Case of mistaken identity--Acquittal--Recovery of poppy straw--None of the accused was arrested from the spot--No explanation on record as to how the police officials identified the accused--Nothing on record to suggest that members of police party knew the accused earlier, if so, the context as to how police party knew them has not been cited--No test identification parade was got conducted by prosecution--Held, identity of the accused, who ran away from the spot, could not be matched with the present accused, who were suspected to be the actual culprits--There are chances of mistaken identity in this case--There is possibility of framing the present accused merely on suspicion. (Para 15)
(C) Narcotic Drugs & Psychotropic Substances Act, 1985, Ss.15, 35, 54--Seal--Non handing over of--Acquittal--Seal after use remained with Investigating Officer for a period of fifteen days--It was not handed over to any independent witness, who were part of the team--In his cross-examination, PW1 has stated that when recovery memo was signed by him, it was blank and no recovery was effected in his presence--He did not know the accused present in the Court--PW2 deposed that he did not see any person uploading the bags from the truck--Held, in the instant case, the above lacunae are fatal to the prosecution case--Prosecution has failed to prove its case against the accused beyond reasonable doubt--Conviction set aside. (Paras 16, 17, 21 & 22)
(D) Narcotic Drugs & Psychotropic Substances Act, 1985, Ss.15 & 55--Sample--Taking of--Recovery of poppy straw--Only one sample of 100 grams was separated from each bag--Held, two samples should have been drawn in view of the provisions of S.55 of the Act--Accused acquitted. (Para 18)
(E) Narcotic Drugs & Psychotropic Substances Act, 1985, S.15--Non apprehending of any accused from spot--Acquittal--There were large number of police officials in the raiding party in the jeeps--As per the version of Investigating Officer, they were at a distance of some yards from the accused, when they ran away--Held, all police officials were armed with dandas and other weapons--Prosecution failed to explain as to how all accused escaped and trained police officials could not capture a single accused--Conviction set aside. (Paras 19, 21 & 22)
(F) Narcotic Drugs & Psychotropic Substances Act, 1985, S.15--Doubtful recovery--Acquittal--Owner of brick kiln from which recovery of contraband was made was not examined--No gazetted officer was present at the spot at the time of recovery--When truck number was verified, it was found to be issued to a scooter owner--Held, in the circumstances, recovery of poppy straw is highly doubtful and material on record is not sufficient to connect the accused--Conviction set aside. (Paras 20, 21 & 22)
Mr. Jitendra Chauhan, J.: - This judgment shall dispose of three appeals i.e. CRA No.1133 SB of 2000, filed by Pappu Singh, Dhola alias Banta, Babu alias Tunda and Koshala alias Kushal Chand; CRA No.1167-SB of 2000, filed by Lakha Singh and CRA No.273 SB 2001, filed by Jarnail Singh @ Russi, against the judgment and order dated 18/21.10.2000, whereby all the appellants were convicted and sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.One lac each; in default of payment of fine, the defaulter to further undergo RI for one year under Sections 15 of the Narcotic Drugs and Psychotropic Substances Act, whereas Sanwar Mal, Om Parkash, Ranbir and Pawan Singh were acquitted by the trial Court as the prosecution has failed to prove charge against the said persons.
2. The facts necessary for adjudication of the matter as narrated in para no.2 of the impugned judgement are as under:-
“Inspector Dharambir Singh (PW14) was posted as SHO in Police Station Ratia on 9.8.1996. On that day he was present at bridge of Bhakhra Canal in the area of village Baliala in a jeep accompanied by Head Constable Sher Singh, Constables Rameshwar Dass, Krishan Kumar, Nihal Singh, Ishwar Singh and Sumer Singh. Head Constable Ram Phal was driver of the jeep. Inspector Sh.Dharambir Singh received secret information that truck No.2829 RSN in which bags containing poppy straw and khal were loaded had gone from Ratia towards village Baliala via village Ratangarh and Lakha Singh, Russi alias Jarnail Singh, residents of village Baliala, Khoshala alias Kushal Chand, Dhalla alias Banta Singh, Pappi and Tunda alias Babu residents of Mehmadqi were accompanied poppy straw in the truck. The secret information was reduced by Inspector Dharambir Singh in writing (Ex.PG) and sent to the police station for registration of the case, on the basis of which, formal FIR (Ex.PG/1) was registered by ASI Jai Singh (PW6). Inspector Dharambir Singh transmitted message to police post Mehmhra, Police Post Khai and Police Post, Madh on wireless system directing the police officers and men posted in these police posts to meet him at Ratangarh and another message to police station Ratia for bringing either Tehsildar Ratia or DSP Fatehabad to Ratangarh if they were available. After transmitting this message, Dharambir Inspector went to Ratangarh turning from where a road leads to village Baliala. ASI Hari Chand, Incharge Police Post Madh and ASI Katar Singh, Incharge Police Post Mehmhra met him at Ratangarh turning as they had reached there on receiving the message on wireless system. ASI Katar Singh and ASI Hari Chand were accompanied by the constables posted in police Posts Mehmhra and Madh. Inspector Dharambir Singh then proceeded to village Baliala accompanied by ASI Katar Singh, ASI Hari Chand and Constables. At village Baliala, he received information that the gunny bags had been unloaded on the site of abandoned brick kiln of Pardeep Kumar in the area of village Baliala and Lakha Singh, Russi alias Jarnail Singh, Koshala, Dhalla alias Banta Singh and Tunda alias Babu were selling poppy straw at the site of abandoned brick kiln. Kesar Singh Sarpanch of village Baliala and Swaran Singh another resident of village Baliala were associated by Dharambir Singh Inspector in the raiding party. In the meantime, message was received on wireless system that neither Tehsildar Ratia nor BDO Ratia, nor DSP Fatehabad were available at the Headquarter. Dharambir Inspector then proceeded to brick kiln of Pardeep Kumar with the raiding party. When the jeep turned towards site of abandoned brick kiln, Jarnail Singh alias Russi, Lakha Singh, Banta Singh alias Dhalla, Tunda alias Babu Ram, Koshala and Pappu who were seen sitting on the gunny bags fled away on noticing the police party coming in a jeep. Police Personnel persued them to some distance, but they could not be apprehended. When the gunny bags were checked 60 bags were found containing poppy straw an
