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TMI Blog2010 (9) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... ed-handed. On the basis of the aforesaid secret information, Inspector Balwinder Singh sent ruqa (Ex.PB) through C. Tarsem Singh, on the basis of which formal First Information Report (Ex.PB/1) was registered at Police Station Kotwali Bathinda. Inspector Balwinder Singh sent the message to ASP P.K. Rai, who also reached the place of information i.e. Fauzi Chowk. After apprising him of the information, he along with other police officials, including ASP P.K. Rai and after associating PW Gurtej Singh, an independent witness, reached the disclosed place i.e. the rented house, allegedly owned by Kaur Singh. When they reached near the gate of the house, accused Surender Singh was seen sewing the gunny bag, whereas, accused Shashi Atwal was standing near him. On seeing the police party, both of them fled away from the scene. Inspector Balwinder Singh, on checking of the gunny bag, being sewned as well as another bag lying nearby, found to be containing poppy husk. On weighment, each gunny bag containing poppy husk came to be 30 kilograms. Both the bags were marked as Sr. No. 1 and 2 and samples of 250 grams from each bag were taken out. Thereafter, the bags as also the sample parcels wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.7.20001 was posted as Cashier Police Line, Bathinda to distribute the salaries of police personnel, who are working under the jurisdiction of SSP Bathinda. During my tenure, Shri Jatinder Kumar Jain misused his powers and misused government funds due to misuse of his power, because according to the orders of DGP, Punjab, SSP Bathinda can only take ₹ 4350/- as advance, but he misused lot of funds to settle down a famous firing case known as 'Jethuke firing case'. This money was allegedly used from the police funds. A dispute arose between me and Shri Jatinder Kumar Jain, SSP, Bathinda with regard to the return of the said amount. I requested him to refund all the money, otherwise, I will bring all these things to the notice of my seniors. So, he got annoyed and on 31.6.2000, he deputed Shri Harbhaj Singh SP(H) to check and make corrections in the record. SP(H) only attested the cash book of Police Lines Bathinda and not attested the Chest Register of safe (where money is deposited, is, known as Chest Register). On 7.7.2000, SSP Bathinda ordered his colleague ASP P.K. Rai, to make checking of the record to save his own skin in money matter. SSP P.K. Rai with his acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SP P.K. Rai had checked the Register. On the said date, a sum of ₹ 17,19,972/- was in the charge of this witness and an amount of ₹ 8,00,000/- was in the Chest which amount-was handed over to Sub- Inspector Balwinder Singh on 15.7.2000. Key of the safe was also taken from HC Sat Pal. HC Sandhura Singh (DW3) has stated from Daily Diary Register No. 19 of the year 2000 that there is no entry regarding the departs and arrival of Constable Manjit Singh on 19.7.2000 to the office of Chemical Examiner. However, the trial resulted into conviction. 6. The counsel for the accused in order to prove the innocence of the Appellants has raised multifold contentions; firstly that no sufficient evidence has been led on the record to prove if the house in question from where the recovery was effected, was in occupation of Surender Singh as tenant; no reinitiate, much less a rent receipt was proved or produced to prove the tenancy; the name of the accused Shashi Atwal has been introduced later on, as his name does not find mention in the Ruqa (Ex.PB) or the FIR(Ex.PB/l); his mere alleged presence in the room does not invite any inference with regard to his possession of the poppy hus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same Department, some sort of corroboration from independent source becomes essential and, rather is the rule of prudence. In the instant case, the prosecution allegedly joined Gurtej Singh, the son of the landlord at the time of effecting the recovery and to attest the recovery memo, but his joining at the time of raid is doubtful. Admittedly, Gurtej Singh was not associated at the time of sending the ruqa. Had he been associated at that time, then his name would have figured in the ruqa. It cannot be denied that as per allegations, the accused were not found in the room and they had allegedly run away from the backside of the house. It cannot be believed that they had run away in the presence of such a heavy police force consisting of one ASP and 11/12 police personnel. At the same time, I have my reservations to believe the joining of Gurtej Singh at the time of the raid. First of all, it is not explained as to why only Gurtej Singh was joined. Secondly, record reveals that after sending the Ruqa, the police party consisting of 11/12 police officials/officers, including ASP P.K. Rai, Inspector Balwinder Singh and Sub-Inspector Janak Singh proceeded to raid the place of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Kaur Singh. 10. The story of absconding of the accused from the tenanted premises from its backside does not appear to be plausible. About 12 police personnel, including the ASP had raided the premises in three vehicles (one police gypsy, one private jeep and one car). It has also come in evidence that nothing was visible from the main gate of the house. Therefore, the allegation that the police officers had seen the accused in the room, where Surender Singh was allegedly sewing the bag, cannot be believed. The room is the part of the big house. On two sides of the house in question, there are houses and on the third side there is a stadium. It has not been alleged as to through which side of the house, the accused succeeded in running by boarding the Car. Again, it is mentioned that the accused never knew that they could be apprehended and there was no passage or road on the back side of the house as per site-plan, then why they would park the car for the purpose of running from back-side. It is also surprising that in presence of such big number of police personnel, the accused succeeded in running and the police party failed to nab them. 11. It would further be signific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel that is Mohd. A. Khah's case fully supports the plea on behalf of the Appellant, we observe that in addition to the ocular evidence, the prosecution had also put on record a document pertaining to the ownership of the house, but despite this, the Court held as under: The prosecution did not bother to produce any independent evidence to establish that the Appellant was the owner of the flat in question by producing documents from concerned Registrar's office or by examining the neighbours. No statement has been made by the prosecution that in spite of the efforts taken by them, they could not produce the document or examine the neighbours to prove the ownership of the Appellant relating to the flat in question. It is relevant to note here that two independent witnesses attested the panchnama. Only one of them was examined as PW5 who did not support the prosecution version and therefore, was treated as hostile. In this case except the retracted statements of the Appellant to connect the Appellant with the house in question, no other independent evidence is available to sustain the finding of the learned Special Judge extracted in the beginning and confirmed by the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with Surender Singh, without any further evidence. In order to bring home the charge of conscious possession, the prosecution has to prove the knowledge and control of the accused over the said article. Mere presence of the accused at the place, from where the bags of poppy husk were recovered by the police, is hardly sufficient to prove the conscious possession. The Apex Court in case State of Punjab v. Balkdr Singh and Anr. 2004 SCC (Cri.) 838 observed as under: the presence of the Respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the Respondents raised a plea before the sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced in the Court. The argument advanced by the Assistant Advocate General, Punjab* that the bag was changed, as it had torn with the passage of time, cannot be accepted. The bag was neither changed in the presence of the accused or any competent authority, much less the Investigating Officer. 17. There are two fundamental principles in criminal prudence; firstly, in cases involving the police officials, the law requires the prosecution to prove the case by cogent and convincing evidence and remove all suspicion; secondly, that stringent the sentence, the stricter the proof. The instant case is replete with material discrepancies. Inspector Balwinder Singh (PW2) admits that there were many people on the roofs of the house. However, in cross-examination, he states that he had not seen any person on the roofs of the houses. He further states that except sealing the sample and the case property, the seal was not used anywhere, specially to prepare the sample seal chit. Thus, as per his version, the sample seal chit was not prepared at the spot; 18. In case Sukhdev Singh alias Sukha v. State of Punjab 2006 (1) RCR 4, the seal was given to the Sub-Inspector of Police and not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Diary Register report (Ex.D-11) Inspector Balwinder Singh handed over two bags containing 30 kg each of poppy husk to Inspector Mohinder Kumar along with two sample parcels of poppy husk, who in turn attested the same with his seal bearing impression MK'. This report further reveals that the accused were not produced before him. This report is contradictory with the Malkhana Register (Ex.D-10), which reveals that the bags, which had been deposited with the MHC were containing 29.750 gms of poppy husk, each. Had the MHC, with whom the case property was deposited, been examined, then he could disclose if the bags were containing 30 kg or 29.750 kg of poppy husk. Thus, it appears that when the bags were handed over to Inspector Mohinder Kumar, then the weight of these bags was 30 kg, each. Thereafter, the bags were tampered, samples were drawn and then the same were deposited with the MHC and the process as stated by the Investigating Officer having been adopted by him at the spot, as per the Daily Diary Report was not correct. 21. The recovery was effected on 8.7.2000, but the samples were sent to the office of the Chemical Examiner on 20.7.2000. Notwithstanding the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on its own legs and prove the case against the accused beyond reasonable doubt. It is that type of doubt, which convinces the mind of the Court that in all human probabilities, the accused were not found to be in possession of the incriminating article. In this case, the accused were not arrested at the spot and they are stated to have fled away in the presence of the heavy police force. No identification parade was conducted; the case property bearing the seal impressions of the officers was not produced in court; the seal was not handed over to an independent witness; though, Inspector Janak Raj and P.K. Rai, ASP were present in the raiding party, yet their seal was not used; no authentic evidence has been put forth to prove the tenancy of accused Surender Singh over the alleged tenanted premises; it also does not appeal to the reason as to why Kaur Singh, the alleged landlord of the house would allow the accused to use the rented portion for illegal purposes and said Kaur Singh has not supported the prosecution case. Under these circumstances, this Court feels that the prosecution has failed to prove the case against the accused beyond reasonable doubt. 25. This Court is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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