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2008 DAILYLAW 17 (PNJ)

Karnail Singh v. State Of Punjab

2008-01-08

R.S.MADAN

body2008
Judgment R.S.Madan, J. 1. The instant Criminal Appeal has been filed by Shri Karnail Singh Son of Kaka Singh, resident of Village Gaggerpur, Police Station, Sangrur, against the judgment and order dated August 19, 1994, passed by Additional Sessions Judge, Sangrur, who convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the "Act") and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. one lac, for keeping in his possession 3,500 grams of Opium without any permit or licence. In default of payment of fine, he was further ordered to undergo rigorous imprisonment for a period of one year. 2. In brief the facts of the case are that on 23.03.1989, a police party head by ASI Parkash Chand of Police Station, Sangrur, was proceeding from Village Gaggerpur towards Village Sajuma on patrol duty, in Gypsy which was being driven by HC Hans Raj. He was accompanied by ASI Nirbhai Singh, constables Hakam Singh and Jora Singh. When they reached near the bridge of Sem Nala, at about 3.15 p.m. the accused was seen coming from the opposite side holding a bag in his right hand, it is alleged that the accused on seeing the police party tried to slip towards his right hand side and on suspicion he was stopped and apprehended. After the completion of all the requisite formalities, the person of the accused was searched and he was found to be in possession of 3.500 grams of opium wrapped in a glazed paper, contained in the bag. Two samples of 10 grams each were drawn out of the recovered stuff. The samples and the remaining opium weighing 3.480 grams were sealed separately by the ASI with his seal bearing the seal impression PC and the case property was taken into possession. Information was sent to the Station. House Officer regarding the apprehension of the accused and the recovery of contraband, whereupon the present case was registered against the accused. After complying with all other formalities, in course of time, the report was sought from the Chemical Examiner who found the contents of the sample as opium. Information was sent to the Station. House Officer regarding the apprehension of the accused and the recovery of contraband, whereupon the present case was registered against the accused. After complying with all other formalities, in course of time, the report was sought from the Chemical Examiner who found the contents of the sample as opium. After the completion of the investigation of the case, report under Section 173 of the Code of Criminal Procedure was filed in the court of Area Magistrate who after supplying the copies of the documents to the accused, committed the case to the court of Sessions vide order dated 01.08.1989. 3. On appearance of the accused before the Additional Sessions Judge, Sangrur, the report under Section 173 Cr.P.C. and all other documents were taken into consideration and prima facie a case under Section 18 of the NDPS Act was found to have been made out against the accused. He was accordingly charge-sheeted thereunder on 23.8.1989 but lateron vide order dated September 14, 1990 the charge was amended, which was read over and explained to the accused in Punjabi, to which he pleaded not guilty and claimed trial. 4. The prosecution in support of its case examined ASI Nirbhai Singh, ASI Parkash Chand and Constable Ajaib Singh. They have disclosed in unison that on 25.03.1989 they were members of the police party headed by ASI Parkash Chand, who has since expired and at the relevant time they were in Govt. Jeep. When they reached near the bridge of seepage drain in the area of Village Gaggerpur, the accused was seen coming from the opposite direction holding a Jhola in his right hand and on seeing the police party, the accused tried to turn back towards his right side and was apprehended by the ASI with the help or other police officials. They further stated that on search of the accused 3.500 grams of Opium was recovered. Two samples of 10-grams each were separated from the bulk and were sealed into separate sealed parcel with the seal PC and the seal after use was handed over to ASI Nirbhai Singh. The parcels and the jhola were also taken into possession vide recovery memo Ex. PA. From the personal search of the accused, he was found to be having Rs. 20/-, which was also taken into possession vide recovery memo Ex. PB. The parcels and the jhola were also taken into possession vide recovery memo Ex. PA. From the personal search of the accused, he was found to be having Rs. 20/-, which was also taken into possession vide recovery memo Ex. PB. The case property was proved in the court as Ex.P1 and the sample chit as Ex. P2. The above statement of the witnesses were further supported by the other witnesses examined by the prosecution. SI Gurdev Singh, who was then station house officer of the police station, Sangrur, while appearing as PW1 stated that on 25.03.1989 ASI Parkash Chand had produced before him the parcel containing the contraband stuff alongwith two parcels containing 10 grams of opium each, sealed with the seal PC and that after verifying the facts he affixed his own seal bearing the impression GS on the parcels and on the sample seal chit Ex. P2. He further stated that he directed the ASI to deposit the case property with the MHC. Head Constable Ajaib Singh proved his affidavit Ex. PE and identified the signatures of SI Gurdev Singh on the ruqa Ex. PC. He also identified his signatures on the ruqa Ex. PC and stated that the formal FIR Ex. PC/1 was recorded by SI Gurdev Singh. According to this witness MHC Maghar Singh handed over to him a sample pertaining to case FIR No. 72 dated 25.03.1989 sealed with the seals bearing impressions PC and GS along with the sample seal and the road certificate with the direction to take the same to the office of the Chemical Examiner, Chandigarh after getting the docket prepared from the office of SSP Sangrur. He further stated that he had done the needful but an objection was raised by the office of the Chemical Examiner, Chandigarh and on 28.03.1989 he had returned back the sample and the seal alongwith the docket to MHC Maghar Singh, which were again deposited with the office of the Chemical Examiner, Chandigarh on 04.04.1989. The Chemical Examiner submitted his report Ex. PG, a perusal of which shows that the contents of the exhibit were of opium. Ex. PD is the site plan prepared by the investigating officer, showing the mark A to be the place from where the accused was apprehended and the other points from where the accused had tried to retaliate after seeing the police party. 5. PG, a perusal of which shows that the contents of the exhibit were of opium. Ex. PD is the site plan prepared by the investigating officer, showing the mark A to be the place from where the accused was apprehended and the other points from where the accused had tried to retaliate after seeing the police party. 5. After the closure of prosecution evidence, statement of the accused, as envisaged under Section 313 of the Code of Criminal Procedure, was recorded wherein he has taken up the following plea: "I am innocent. My father Kaka Singh had given application against the police of P.S. Sangrur because the police was illegally harassing him. I was brought from my house by the police after beating me in the presence of Rajwant Singh and Mukand Singh, who were the Member Panchayat and Hari Singh Lambardar, who is also called as Khajanchi as my father had not met the police party in the house at that time. Nothing was recovered from my possession and I have been falsely implicated in this case after bringing me to the police station. All the proceedings have been done in the Police Station falsely." 6. In defence the accused examined DW1 Mukand Singh, Member Panchayat and DW2 Rajwant Singh, another Ex-member Panchayat of the Village. He has also placed on the record carbon copy of the order of S.D.O.(C), Sangrur dated 20.08.1991 mark A and copy of Daily Punjabi Tribune dated 24.05.1991 mark B and the A.D. receipts C1 to C4. 7. After going through the evidence brought on the record and hearing the learned counsel for the parties, the learned Additional Sessions Judge, Sangrur convicted and sentenced the accused as mentioned above. 8. Aggrieved by the impugned order of conviction and sentence, the accused filed the present appeal before this Court. 9. I have heard Shri P.S. Hundal, learned counsel for the appellant, Shri D.K. Mittal, Deputy Advocate General, Punjab and with their assistance have carefully gone through the evidence brought on the record. On behalf of the appellant, it was argued that the link evidence in this case is missing. I find merit in the contention of the learned counsel for the appellant. 10. The case of the prosecution is that after the seizure of the contraband stuff, two samples of 10 grams opium, each, were separated from the bulk opium. On behalf of the appellant, it was argued that the link evidence in this case is missing. I find merit in the contention of the learned counsel for the appellant. 10. The case of the prosecution is that after the seizure of the contraband stuff, two samples of 10 grams opium, each, were separated from the bulk opium. The samples and the residue were sealed with the seal PC and when the case property and the accused were produced before the Station House Officer of Police Station, Sangrur, he affixed his own seal bearing the seal impression GS on the samples as well as on the residue and directed the ASI to deposit the case property with the MHC of the Police Station with seals intact. On 28.03.1989 when the sample bearing the seals-PC and GS was sent to the office of the Chemical Examiner, Chandigarh for analysis, an objection was raised by the Chemical Examiner that it does not bear the seal impression of GS. Hence, the constable Ajaib Singh brought the road certificate, sample and the slip containing the seal impressions back and deposited the same with the MHC of the Police station. After completing the necessary formalities and affixing the seal GS, the sample was again sent to the office of the Chemical Examiner, Chandigarh on 04.04.1989. Thus, it is clear that the seal bearing the impression GS was affixed later on. The report of the Chemical Examiner also certified that both the seals PC and GS were there on the docket. When these facts are taken into consideration, it falsified the case of the prosecution that after the recovery of contraband from the possession of the accused, the case property and the accused was not produced before the Station House Officer of Police Station, Sangrur, who stated to have verified the facts of the case, by putting his seal impression GS on the sample as well as on the residue. This fact of non-affixation of seal GS on the sample parcel and the chit Ex. P2 goes the root of the case of the prosecution. PW3 while tendering his affidavit Ex. PF in the Court, admitted this fact during the cross-examination by the defence counsel that seal GS was not found on the sample when constable Ajaib Singh took the same to the office of Chemical Examiner, Chandigarh, for analysis on 28.03.1989. P2 goes the root of the case of the prosecution. PW3 while tendering his affidavit Ex. PF in the Court, admitted this fact during the cross-examination by the defence counsel that seal GS was not found on the sample when constable Ajaib Singh took the same to the office of Chemical Examiner, Chandigarh, for analysis on 28.03.1989. Thus there is material discrepancy with regard to the-seals on the sample as to whether it contained impression of one seal or two seals. The prosecution is to prove affirmative that right from the stage of seizure till it reached the hands of the Chemical Examiner, there was no possibility of tampering with the material or the sample. In support of his contention, the learned counsel placed reliance on Abdul Khan v. State of Punjab, 1993 (3) RCR(Crl.) 527 (P&H). 11. Another limb of arguments raised by the learned counsel for the appellant was that the accused has been denied his valuable right to cross examine ASI Parkash Chand, who was the investigating officer of the case and apprehended the accused, because of his death during the pendency of the case. Thus on account of death of the investigating officer, the appellant could not have the opportunity to cross-examine the witness. 12. I do not find any merit in the contention of the learned counsel for the appellant because besides ASI Parkash Chand, the other police officials were also members of the police party while the accused was apprehended with the contraband kept concealed in the cotton bag (Jhola). 13. As already discussed above and keeping in view the case law cited by the learned counsel for the appellant, regarding missing of link evidence in the instant case the case of the prosecution is not proved beyond the shadow of doubt. 14. Resultantly, this appeal is accepted. The judgment and order of conviction and sentence passed by the learned trial Court, is set aside and the accused-appellant is acquitted of the charge framed against him.