State Of Punjab vs Gurnam Kaur & Ors

Gurnam Kaur & Ors. ... RESPONDENTS

JUDGMENT

S.B. Sinha, J.

1. State of Punjab is in appeal before us aggrieved by and dissatisfied

with a Judgment and Order of acquittal dated 17th July, 2006 passed by the

High Court of Punjab & Haryana in Criminal Appeal No. 157-DB of 2004.

2. Respondents herein are three ladies, viz., Gurnam Kaur, Ranjit Kaur

and Gurjit Kaur. Gurnam Kaur is wife of Pargat Singh. Paramjit Singh @

Pamma, Amolak Singh and Hira Singh are sons of Pargat Singh.

Respondent Nos. 2 & 3, namely, Ranjit Kaur and Gurjit Kaur are wives of

Hira Singh and Paramjit Singh respectively.

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3. On or about 16-06-2000 one Shri S.S. Mand, DSP (D), Kapurthala

purported to have received a secret information. He, pursuant to the

direction of SSP, Kapurthala, was standing at the turning of Dhilwan Road,

Dhussi Bundh in connection with a `nakabandi' arranged on the basis of the

said secret information. Inspector Gurmukh Singh, SI Nirmal Singh, ASI

Jaswinder Pal Singh, ASI Paramjit Singh, Head Constable Manohar Singh,

Head Constable Surinder Kumar, Head Constable Gurmail Singh, Head

Constable Swaran Singh, Constable Harjit Singh, Constable Malkiat Singh,

Constable Raj Kumar, Constable Swaran Singh, Constable Surinder Pal

Singh, Constable Lakhwinder Singh, Constable Baljinder Singh were with

him. One U.P. Bhatt, Intelligence Officer of Narcotics Control Bureau

(NCB) was also present.

4. At about 7:30 a.m., one Maruti Car bearing registration No.HR03A-

2642 was found coming from the side of Amritsar town. Allegedly on

seeing the police party, the driver of the car stopped the vehicle at a distance

of about 50 yards from them and made an attempt to turn the car backwards.

Three persons came out of the car and ran towards the fields. The driver of

the car was, however, apprehended. He disclosed his name as Gurlal Singh

@ Lalli. He was taken in custody. He alleged that other three persons who 3

had fled away were Paramjit Singh @ Pamma, Amolak Singh and Hira

Singh.

5. He was allegedly asked as to whether he would like to get his car

searched by a Gazetted Officer or a Magistrate, he expressed no objection to

the searched by the officer himself. On search narcotics were recovered

from the said car.

Five packets of heroin marked `333' were recovered from a gunny

bag. Each packet weighed one kg. Samples therefrom were taken. Some

narcotics were also found in the car, total being 55 Kgs. of heroin and 22

Kgs. of opium.

A First Information Report was lodged. Gurlal Singh allegedly made

a statement that if the houses of Hira Singh and Pargat Singh are raided, a

large quantity of contraband would be recovered. Pursuant thereto a raid

was arranged. DSP Baldev Singh, PW3 and other police officials went to

village Thatha. They met DSP Ashutosh, PW8, of Amritsar district in the

said village itself.

6. All the respondents were said to have been found sitting in one of the

rooms of the said house. From the box which was in the back of the bed in

the room where respondents were sitting, opium wrapped in a glazed paper 4

and two packets of heroin were recovered. Sample thereof was said to have

been taken.

7. A First Information Report was lodged at about 5:15 p.m. on 16-06-

2000. Indisputably, Parmajit Singh by that time was already arrested and in

the custody of the investigating officer.

No independent witness was examined by the prosecution.

Respondents herein were prosecuted for commission of offence under

the said Narcotic Drugs and Psychotropic Substances Act (for short, `the

Act').

8. The learned Trial Judge found the respondents guilty of commission

of an Offence under Sections 18 and 20 of the Act and convicted them to

undergo rigorous imprisonment for a period of twelve years and fine of

Rs.1,00,000/- (Rupees One Lakh only).

9. By reason of the impugned judgment, the High Court on appeal,

however, reversed the said findings. The High Court found that no

independent witness was examined. Village Thatha is situated in the district

of Amritsar. The raid was conducted by the police officers of another

district, viz., Kapurthala. Admittedly, PW8 DSP Ashutosh had not been

informed about the raid. He was in the said village accidentally. 5

10. The ladies were personally searched by the male officers in violation

of sub-section 4 of Section 50 of the Act.

Prosecution deliberately introduced ASI Rajwinder Kaur, Police

Station Harike. Although according to DSP Ashutosh PW8, there was no

lady police officer posted in the police station.

11. The police officers had to travel for more than eight hours over a

distance of not less than 80 kms. and thus there was no reason as to why

DSP Baldev Singh PW3 could not have sent an information to the officers

of the police station, Thatha or police station, Harike for registering of a

case as per information provided to him by Gurlal Singh @ Lalli.

12. Having been taken through the judgment of the High Court as also

other materials on record, we are of the view that it is not a fit case where

we should exercise our discretionary jurisdiction under Article 136 of the

Constitution of India in interfering with the impugned judgment.

13. There are several infirmities in the prosecution case. Subject to just

exceptions all offences are local. A statement in regard to the possibility of

contraband articles likely to be found at the residence of Pargat Singh was

disclosed by Gurlal Singh. His statement was not recorded in writing.

Admittedly, Pargat Singh has also been arrested and in that view of the 6

matter as to why they were not taken to their village is beyond any

comprehension. The place of occurrence of the first incidence and the

incident in question are situated at distance of 80 kms. whereas Gurlal Singh

was arrested at about 7:30 p.m. on 16-06-2000. The second first

information report was lodged at 4.00 p.m. and it was recorded as 5.15

p.m.

14. Respondent Gurnam Kaur admittedly is an old lady. Respondent

Nos.2 and 3 are her daughters-in-law. Curiously all of them were found

sitting on the same bed beneath whereto the contraband had allegedly been

kept. That by itself does not establish that all of them were in conscious

possession of the narcotics. They were not even asked any question in

regard thereto. Prior to lodging of the first information report, the

respondents did not point out the place where the narcotics were found kept.

How the raiding party found the same has not been disclosed. The ladies in

natural course were in their house. No explanation has been furnished, nor

the statement of the respondent was recorded. The investigating officer

DSP Baldev Singh PW3 was to prove as to where contraband had been kept

not the respondents.

15. If by a reason of statements made by an accused some facts have been

discovered, the same would be admissible against the person who had made 7

the statement in terms of section 27 of the Indian Evidence Act.

Prosecution has not examined any independent witness. Why independent

witnesses could not be found has not been explained.

16. ASI Rajinder Kaur who is said to have been present has not been

examined. Who conducted the personal search of the ladies? It is not the

case of the prosecution that she had searched the ladies. Sub-section 4 of

Section 50 of the Act postulates that personal search of the ladies must be

conducted by a lady police officer. Curiously PW8 in his evidence

categorically stated that there was no lady constable or lady officer posted at

the police station, Harike. If that be so why participation by ASI Rajinder

Kaur was introduced is beyond anybody's comprehension. Personal search

of the accused was conducted by DSP Baldev Singh which as indicated

hereinbefore was violative of the provisions of Sub-section 4 of Section 50

of the Act.

17. It is a matter of great surprise that PW8 DSP Ashutosh, although was

not informed by DSP Baldev Singh PW3, was present in the village. His

presence in the village is highly doubtful. No explanation has been

furnished as to why the first information report was lodged after 11 hours

and why the mandatory provisions of subsection 2 of Section 42 of the Act

had not been complied with.

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18. The jurisdiction of this court to interfere with a judgment of acquittal

is limited. When two views are possible, a judgment of acquittal should not

be interfered with. {See Rangaiah v. State of Karnataka [2008 (16) SCALE

1]}.

19. For the reasons aforementioned we are of the opinion that no case has

been made out for interference with the impugned judgment. The appeal is

dismissed.

.....................................J. [S.B. Sinha]

.....................................J. [Dr. Mukundakam Sharma]

.....................................J. [H.L. Dattu]

New Delhi;

March 6, 2009