Punjab-Haryana High Court
Mukhtiar Singh vs State Of Haryana on 21 September, 2022
CRA-S-29-SB-2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-29-SB-2006 (O&M)
Reserved on:- 13.09.2022
Date of pronouncement: 21.09.2022
Mukhtiar Singh @ Gullu
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR.JUSTICE H.S. MADAAN
Present: Mr. Ashwani Verma, Advocate for the appellant.
Mr. Vijesh Sharma, Addl. A.G., Haryana.
*****
H.S. MADAAN, J.
1. Appellant Mukhtiar Singh @ Gullu, an accused in FIR
No.174 dated 12.05.2000, for an offence under Section 15 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the
Act'), registered with Police Station Sadar, Fatehabad, was tried by
Addl. Sessions Judge, Fatehabad on the allegations that on 12.05.2000
in the area of Aherwa bridge on Ratia road, he was found in possession
of 40 kg of poppy husk without any license or permit.
Vide judgment dated 21.11.2005, the accused was
convicted for an offence under Section 15(b) of the Act and in terms of
the order passed on 23.11.2005, he was sentenced to undergo rigorous
imprisonment for a period of 04 years and to pay a fine of Rs.20,000/-;
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in default of payment of fine, to further undergo simple imprisonment
for one year.
2. Feeling aggrieved by the judgment of his conviction and
order of sentence, the appellant had preferred an appeal before this
Court which was Admitted for regular hearing on 09.01.2006, and on
an application having been filed under Section 389 Cr.P.C., the
remaining sentence of the appellant was suspended during the
pendency of the appeal, subject to his furnishing requisite bonds to the
satisfaction of Chief Judicial Magistrate, Fatehabad. Now the appeal
has come up for final arguments.
3. Briefly stated facts of the case, as per prosecution story are
that on 12.05.2000, a police party led by ASI Ghisa Ram [hereinafter
referred to as the Investigating Officer/IO] was present at Aherwa
bridge on Ratia road, Fatehabad in connection with patrolling; Narveer
Singh, Lamberdar, who had come from the side of village Aherwa was
talking with the IO; in the meanwhile, accused Mukhtiar Singh was
spotted coming from the side of village Aherwa carrying a bag, having
contents, on his head; on seeing the police party, he tried to turn back,
however, he was apprehended on the basis of suspicion; his name and
other particulars were enquired about, which he disclosed; since the
IO suspected that there was some narcotic substance in the bag being
carried by the accused, he served a notice under Section 50 of the Act
Ex.P7 upon the accused, informing him that the IO wanted to search
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the bag being carried by him on suspicion of the same containing some
contraband and the accused had a right to get the search conducted in
the presence of some Gazetted Officer or a Magistrate; however, the
accused reposed faith in the IO vide his reply Ex.P8; thereafter the IO
searched the bag of the accused which was found to contain poppy
husk; the IO took out sample of 100 gm from the contents of the bag
and on being weighed, the residue poppy husk in the bag came out to
39 kg 900 gm; the sample and bag containing residue poppy husk were
converted into parcels, sealed with the seal of IO having impression
'GR'; specimen of seal impression was taken, then the sample parcel,
bulk parcel as well as sample seal impression chit were taken into
police possession; the IO had handed over his seal after use to HC
Kailash Chand; the accused was accordingly arrested in this case as per
rules, preparing requisite documents; the IO had sent ruqa Ex.P3 to the
police station on the basis of which formal FIR was registered; the IO
prepared rough site plan Ex.P10 of the place of recovery and recorded
statements of witnesses.
On return to the police station, the IO produced the
accused along with case property and witnesses as well as report U/s
57 of the Act before SHO Shingara Singh, who verified the facts from
the accused and witnesses and put his own seal having impression 'SS'
on the sample parcel and bulk parcel; thereafter, on instructions of
SHO Shingara Singh, the IO deposited the case property with ASI Raj
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Singh, In-charge of the malkhana and put the accused in the lockup.
During the course of investigation, a sample parcel was
sent to Forensic Science Laboratory, Madhuban, Haryana (for brevity
'FSL') and as per report received there from Ex.P13, it was found to be
that of poppy straw; on completion of investigation and other
formalities, challan against the accused was prepared and filed in the
Court.
4. On receipt of the challan, the Court of SDJM, Fatehabad
supplied copies of documents relied upon therein to the accused free of
costs as provided under Section 207 Cr.P.C., and committed the case to
Addl. Sessions Judge-I, Fatehabad where finding a prima facie case,
charge for an offence under Section 15 of the Act was framed against
the accused, to which he pleaded not guilty and claimed trial.
5. During the course of prosecution evidence, prosecution
examined the following witnesses:-
PW-1 Constable Ram Chander, the carrier of the sample
parcel to FSL, Madhuban, Haryana on 22.05.2000 tendered in evidence
his affidavit Ex.P1.
PW-2 ASI Raj Singh, who was In-charge of malkhana at
Police Station Ratia with whom the case property had been deposited
after search and seizure vide his affidavit Ex.P2 testified that it
remained in safe custody so long as it was in his possession.
PW-3 ASI Ishwar Singh deposed that on 12.05.2000 while
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he was posted at Police Station Sadar, Fatehabad, on that day, on
receipt of written information from ASI Ghisa Ram, he had recorded
formal FIR Ex.P4 under his signatures.
PW-4 SI Jagdish Kumar deposed that on 04.06.2000 while
he was posted at PS Sadar, Fatehabad, he had carried out the
investigation in this case in part inasmuch as he had recorded
statements of PWs ASI Raj Singh and Constable Ram Chander under
Section 161 Cr.P.C.
PW-5 Inspector Shingara Singh, retired, before whom the
case property along with accused and PWs had been produced by the
IO after search and seizure and who after satisfying himself had affixed
his own seal having impression 'SS' on the sample parcel and sealed
parcel as well as preparing sample seal impression of his seal deposed
in that regard. He stated that he had put his endorsement Ex.P5/A on
report Ex.P5 sending that report to DSP (HQ) Fatehabad on 13.05.2000
and on completion of investigation, he had prepared final report under
Section 173 Cr.P.C., against the accused and filed it in the Court.
PW-6 ASI Ghisa Ram, who was leading the police party
which had apprehended the accused on 12.05.2000 and effected
recovery of contraband in the form of 40 kg of poppy husk from him,
deposed in that regard in tune with the prosecution story. He further
testified with regard to the investigation carried out by him proving
various documents.
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PW-7 HC Kailash Chand, a witness of recovery supported
the prosecution story on material aspects.
The Public Prosecutor for the State by making a statement
in the Court on 27.11.2002 had given up PW Narveer Singh,
Lamberdar for the reason of his having been won over by the accused
and on 02.03.2004, after tendering in evidence report of FSL Ex.P13,
the Public Prosecutor closed the evidence of prosecution.
6. Thereafter, statement of the accused was recorded under
Section 313 Cr.P.C., in which all the incriminating circumstances
appearing in prosecution evidence against the accused were put to him
but he denied the allegations contending that he was innocent. Nothing
was recovered from his possession. He was already in custody of the
police, since he had been taken away by the police from village
Aherwa due to party factionalism and later on falsely implicated in this
case.
7. The accused did not led any evidence in his defence.
8. After hearing arguments, the trial Court convicted and
sentenced the accused as mentioned supra.
9. I have heard learned counsel for the appellant/accused,
learned State counsel besides going through the record.
10. Learned counsel for the appellant has argued that the link
evidence in this case is missing inasmuch as according to the
prosecution story and as deposed by PW-2 ASI Raj Singh, who was In-
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charge of the malkhana of Police Station Ratia on 12.05.2000 with
whom the case property is said to have been deposited in his affidavit
in para No.3 has testified that on 22.05.2000, he had handed over the
sample parcel sealed with the seals having impression 'GR' and 'SS'
and specimen seal impressions chit to Constable Ram Chander, 9201
for the purpose of depositing those articles in FSL, Madhuban,
Haryana. Constable Ram Chander accordingly did so and on return
handed over receipt to him. PW-1 Constable Ram Chand in his
affidavit Ex.P1 has also testified in that regard. Both of them have
mentioned the RC number as 281 dated 22.05.2000, however, in the
report of Chemical Examiner, the RC number is mentioned to be 354
dated 19.06.2000 and sent through Constable Kamal Singh received in
the laboratory on 20.06.2000. According to learned counsel for the
appellant, the sample which was analyzed by FSL, was not the one
relating to this case but to some other case.
11. Though, learned State counsel has tried to counter the
argument but he could not explain as to how under what circumstances,
it should be taken that the necessary link evidence in this case comes
out to be there.
This very contention had been raised before the trial Court
also. The trial Court could not meet with this contention in a proper
and appropriate manner and chose to ignore the same by giving reasons
which were least convincing. As pointed out by learned counsel for the
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petitioner, necessary link evidence in this case is certainly missing, and
it cannot be said that the sample which had been analyzed by the FSL
related to this very case. A reasonable doubt arises in the mind about
guilt of the accused, and rather the prosecution has failed to prove its
charge against the accused beyond a shadow of reasonable doubt. As
per law, the benefit of doubt goes to the accused which was wrongly
denied to the appellant/accused by the trial Court.
The judgment of conviction and order of sentence passed
by the trial Court are not sustainable and are liable to be set aside. The
appeal has merit. The same is accordingly allowed. Resultantly, the
impugned judgment of conviction and order of sentence passed against
the appellant/accused are set aside and he is acquitted of the charge
framed against him.
21.09.2022 (H.S. MADAAN)
sumit.k JUDGE
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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