Punjab-Haryana High Court
Balwinder Singh And Another vs State Of Punjab on 4 April, 2024
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
2024:PHHC:045160
In the High Court for the States of Punjab and Haryana at Chandigarh
CRA-D-11-DB-2018(O&M)
Date of Decision:- 4.4.2024
Balwinder Singh and another .........Appellants
Versus
State of Punjab ....... Respondent
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
HON'BLE MR. JUSTICE GURBIR SINGH
Present:- Mr. Jashandeep Singh Sandhu, Advocate for the appellants.
Mr. Amit Rana, Sr. DAG, Punjab.
* * * * *
GURVINDER SINGH GILL, J.
1. The appellants Balwinder Singh and Bhola Singh assail judgment and order dated 4.9.2017 passed by learned Judge, Special Court, Bathinda vide which the appellants have been held guilty of having committed offences punishable under Sections 21 and 22 of the NDPS Act and have been sentenced as under :-
Offence Imprisonment Fine In default of fine under Section R.I. for 11 years Rs. 1,10,000/- R.I. of one year 21 of the NDPS Act under Section R.I. for 11 years Rs. 1,10,000/- R.I. of one year 22 of the NDPS Act
2. It is the case of prosecution that on 2.9.2012, a police party headed by ASI Balbir Singh (Investigating Officer) went for patrolling in the area of village KAMAL KUMAR 2024.04.04 14:38 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-11-DB-2018 (O&M) (2) 2024:PHHC:045160 Jajjal. One Jagna Singh was also associated with the police party. When the police party was present near the bridge on minor canal in the area of village Jajjal, two persons were seen coming on foot who were carrying a white coloured heavy plastic bag in their hands. Upon noticing the police party, they threw away the plastic bag and tried to slip away in the fields. However, the police party, getting suspicious, apprehended them. Upon inquiry, they disclosed their names as Balwinder Singh and Bhola Singh. It is further the case of prosecution that a transparent envelope could be seen lying inside the bag which had been thrown by the accused and some intoxicant powder and intoxicant vials of Rexcof were visible. Both Balwinder Singh and Bhola Singh were extended an offer in terms of Section 50 of the NDPS Act but both of them stated that they reposed confidence in the Investigating Officer with regard to search of their bag. A sample of 50 grams of intoxicant powder was separated and the remaining intoxicant powder was found to weighing 250 grams. Similarly, one vial of Rexcof was taken as a sample and the remaining were found to be 61 vials. After completing proceedings at the spot, the case property was deposited in the Malkhana. The samples which had been drawn at the spot were sent for analysis to FSL on 12.9.2012 through Head Constable Baldev Singh. As per the report of FSL, the recovered intoxicant powder was found to be containing 'Methamphetamine' and the vial were found to contain 'Codeine'.
3. Upon completion of investigation, challan was presented against the accused on 28.4.2014.
4. The Special Court, Bathinda, initially framed charges for offence punishable under Sections 21 of the NDPS Act on 8.5.2014. However, subsequently KAMAL KUMAR 2024.04.04 14:38 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-11-DB-2018 (O&M) (3) 2024:PHHC:045160 amended charges for offences punishable under section 21 and 22 of the NDPS Act were framed on 4.9.2017.
5. The prosecution, in order to substantiate its case, examined as many as 5 prosecution witnesses. PW-1 ASI Balbir Singh (Investigating Officer) stated in detail with regard to the entire investigation conducted by him right from apprehension of the accused on 2.9.2012 upto the presentation of challan. He duly proved all the documents prepared including recovery memo, consent memo, rough site plan etc.
6. PW-2 Head Constable Iqbal Singh, who was also comprised in the police party when the accused had been apprehended, corroborated the prosecution story and broadly stated in tune with the testimony of the PW-1 ASI Balbir Singh (Investigating Officer).
7. PW-3 Head Constable Baldev Singh deposed that on 12.9.2012, ASI Darshan Singh SHO had handed over sample parcels to him for depositing the same in the office of FSL, Mohali which he accordingly deposited the same with FSL. PW-4 ASI Darshan Singh stated that on 2.9.2012, he was working as ASI- cum-officiating SHO and that ASI Balbir Singh produced before him the accused alongwith sample parcels and the bulk parcel of recovered intoxicants duly sealed, upon which he also affixed his seals and that the case property was kept in safe custody. He further deposed that on 12.9.2012, he handed over the sample parcels to Head Constable Baldev Singh for depositing the same in the office of Chemical Examiner, Kharar which was deposited on 13.9.2012. He stated that as long as the sample parcels remained in his possession, the same were not tampered with. PW-5 MHC Jagrant Singh is a formal witness who stated that on 2.9.2012, the regular KAMAL KUMAR 2024.04.04 14:38 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-11-DB-2018 (O&M) (4) 2024:PHHC:045160 SHO of the Police Station namely Inspector Paramjit Singh was away in connection with official duty and that in his absence ASI Darshan Singh was working as officiating SHO.
8. Upon closure of prosecution evidence, statements of accused were recorded in terms of Section 313 Cr.P.C. wherein the entire incriminating evidence was put to the accused/appellants to enable them to explain the same but the appellants denied the entire prosecution case in toto and pleaded innocence and false implication. The accused in their defence examined DW-1 Jagna Singh, who had initially been cited as prosecution witness having been associated with the police party on the day of the alleged recovery. DW-1 Jagna Singh stated that he had never joined the police party headed by ASI Balvir Singh on 2.9.2012 and no recovery had been effected in his presence.
9. The learned trial Court, upon appraisal of the evidence on record, returned findings to the effect that prosecution had duly established its case to the effect that both the accused were in possession of contraband i.e. intoxicant powder containing 'Methamphetamine' and the vials containing 'Codeine' and accordingly, vide impugned judgement dated 4.9.2017, held them guilty of having committed offences punishable under Sections 21 and 22 of the NDPS Act.
10. The learned counsel for the appellants, while assailing the impugned judgment, made the following submissions :-
(i) that it is a case where the appellants have been falsely implicated and that the falsity of case of prosecution would be evident from the fact that one of the prosecution witnesses who was given up by the prosecution but examined by the accused categorically KAMAL KUMAR 2024.04.04 14:38 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-11-DB-2018 (O&M) (5) 2024:PHHC:045160 stated that he was never associated with the police party on 2.9.2012 and that no recovery had ever been effected in his presence;
(ii) that the alleged offer in terms of Section 50 of the NDPS Act is admittedly a joint offer and in respect of which a joint consent memo(Ex. P-1) had been prepared, which would be a defective offer as has been held repeatedly by the Courts;
(iii) that the false implication and over-zealousness of the prosecution would also be evident from the fact that two persons are stated to be jointly carrying a bag of contraband, the total weight of which would be barely 7 kilograms. It has been submitted that normally a bag which has such a meager weight would be carried by one person with one hand only but the police in order to implicate both the accused falsely have shown that both the accused were together carrying the bag in question;
(iv) that there is delay in sending the sample parcels for analysis and that while the recovery was effected on 2.9.2012, the sample parcels were sent through Head Constable Baldev Singh on 12.9.2012 and actually came to be deposited on 13.9.2012 which creates a doubt as regards the genuineness of the sampling process and;
(v) that no sanctity can be attached to the drawing of samples at the spot and that as per the dictum of Hon'ble Supreme Court in Union of India vs. Mohan Lal (2016) 3 SCC 379, the samples ought to have been drawn only in the presence of the Magistrate. KAMAL KUMAR 2024.04.04 14:38 I attest to the accuracy and authenticity of this document Chandigarh
CRA-D-11-DB-2018 (O&M) (6) 2024:PHHC:045160
11. On the other hand, the learned State counsel submitted that the instant case is not a case of recovery from personal search of accused but is a case of recovery of a contraband from a bag which had been thrown by the accused on the ground and as such Section 50 of the NDPS Act would have no application and consequently even if there is any defect in the consent memo, the same would not be of any significance. It has been submitted that delay in sending sample parcels ipso facto will not matter unless it is shown that the samples had been tampered with which is not the case in hand inasmuch as the seals on the sample parcels were found intact. The learned State counsel further submitted that whether a bag is carried by one person or by two persons or is thrown on the ground, both the persons can safely be attributed conscious possession particularly in view of their conduct inasmuch as they tried to slip away after throwing the bag containing contraband. It has also been submitted that the testimony of DW-1 is not worth reliance and he had apparently been won over by the accused and that his testimony can not be held to be sufficient to demolish consistent testimonies of official witnesses who had no axe to grind against the accused. The learned State counsel, thus, submitted that there is no infirmity in the impugned judgment and prayed for dismissal of the appeal.
12. This Court has considered rival submissions addressed before this Court.
13. As far as the contention of the appellants regarding a defective offer in terms of Section 50 of the NDPS Act is concerned, the position stands settled by Hon'ble Supreme Court in State of Rajasthan vs Parmanand and another 2014(5) SCC 345 that a joint offer is a defective offer. However, it needs to be borne in mind that the instant case is a case of recovery from a bag and not KAMAL KUMAR 2024.04.04 14:38 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-11-DB-2018 (O&M) (7) 2024:PHHC:045160 from personal search of accused. As a matter of fact, the bag had also been thrown on the ground by the accused. Under these circumstances, Section 50 of the NDPS Act was infact not even required to be complied with by the police and thus, defect, if any, would be inconsequential. While the contention of delay in sending samples for chemical examination is indeed borne out from the record but it is well settled that the delay ipso facto will not lead to throwing out the case of prosecution. It is not the case that the samples had either been tampered with at any stage or that the seals were not found intact by the Chemical Examiner. Rather, a perusal of the testimonies of HC Baldev Singh and ASI Darshan Singh Singh show that the samples were not tampered with. Similarly, a perusal of the report of the FSL also shows that the Chemical Examiner had found the seals to be intact. In the absence of any such circumstance which could be suggestive of tampering with the samples, the delay in the present case cannot be said to be fatal to the case of prosecution.
14. In the present case, this Court finds that the police party had associated one Jagna Singh as an independent witness when the police party went out for patrolling. However, the said witness was not examined by the prosecution but came to be examined by the accused. The testimony of said witness is reproduced herein-under :-
"I am working at police station Rama from the last 10 years as a sweeper, to wash the vehicles of the police officials and to serve tea etc. to the police official and the visitors. I do not know the accused persons present in the court today. I never join the police party headed by ASI Balvir Singh on 02.09.2012 nor any recovery was effected in my presence. Police official used to take my thumb impression on the papers. I am illiterate person.KAMAL KUMAR 2024.04.04 14:38 I attest to the accuracy and authenticity of this document Chandigarh
CRA-D-11-DB-2018 (O&M) (8) 2024:PHHC:045160 I cannot read the contents of Ex.P3, Ex.P4, Ex.P1 and Ex.P7. Police use to took my thumb impression on papers regularly. Police has also kept me as a witness in a case registered under NDPS Act at PS Rama."
15. Although, the aforesaid witness was cross-examined at length by the prosecution but nothing substantial could be elicited during the course of cross-examination. The said factum needs to be borne in mind while evaluating the evidence led by prosecution, particularly as regards the veracity of the case of prosecution.
16. Interestingly, as per the case of prosecution both the appellants are alleged to have been seen by the police while carrying the bag in their hands. The relevant translated gist of the FIR, as also stated by the Investigating Officer is reproduced herein-under :-
".........after taking him along, reached at bridge minor canal in the area of village Jajjal then two clean shaven young men were seen coming by feet from opposite side who held white colour heavy plastic bag in their hands.............."
17. In the present case, the recovered intoxicant powder (Methamphetamine) was found to weigh 300 grams. The 61 vials containing 100 ml each of Rexcof would contain the total of 6.1 liters of Rexcof in liquid form. By a vague estimation, it can safely be said that the same would be weighing about 6 kilograms. In any case, the total recovered contraband would not be more than 7 kilograms. During the course of cross-examination, the Investigating Officer admitted that the recovered contraband can be carried easily by a person in one hand. The relevant extract from his cross-examination is reproduced herein-under :-
KAMAL KUMAR 2024.04.04 14:38 I attest to the accuracy and authenticity of this document Chandigarh
CRA-D-11-DB-2018 (O&M) (9) 2024:PHHC:045160 ".........The bag was not weighed, the weight of powder was 300 gram and 61 vials of Rexcof, 100 gram each. I am not aware that the weight amount to 7 Kg., of Rexcof. It is correct that the alleged contraband can be carried by a person easily in one hand by one person................."
18. Evidently, the story of prosecution that two persons were jointly carrying one bag which weighed less than 7 kilograms does not sound very convincing. Further, the aforesaid version, coupled with the fact that even the independent witness who has been examined by the defence has negated the case of prosecution regarding recovery, puts this Court at caution particularly in view of the fact that a stringent punishment is provided under the Act. Hon'ble Apex Court in Mousam Singha Roy v. State of West Bengal, (2003) 12 SCC 377, held that it is a settled principle of criminal jurisprudence that more serious the offence, stricter the degree of proof required to convict the accused.
19. Under these circumstances, we are of the opinion that the prosecution has not fully been able to substantiate its case which rather smirks of doubt. The impugned judgment, thus, cannot sustain and is hereby set aside. Both the accused are acquitted of all the charges framed against them. Their release warrants be issued.
20. Appeal stands accepted accordingly.
( GURVINDER SINGH GILL )
JUDGE
4.4.2024 ( GURBIR SINGH )
kamal JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
KAMAL KUMAR
2024.04.04 14:38
I attest to the accuracy and
authenticity of this document
Chandigarh