Abdul Khan vs State of Punjab

R.L. Anand, J.

This is a Criminal Appeal filed by Shri Abdul Khan son of Lal Din and has been directed against the judgment and order dated 5.5.1995 passed by Sessions Judge, Faridkot who convicted the appellant under section 18 of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for a period of one year.

The brief facts of the case are that on 18.5.1993, the police party headed by Shri Jagjit Singh, A.S.I. of Police Station Saddar Muktsar, was going for patrolling from village Roorianwali to village Balamgarh. When the party reached near the bridge of the drain in the area of village Roorianwali, the accused Abdul Khan was seen coming from the side of village Balamgarh and on noticing the police party he tried to retreat. He was asked whether he wanted to be searched before a Gazetted Officer or a Magistrate, but the accused reposed confidence in the ASI vide consent memo Ex.P.C. On the search of the bag of the accused, the ASI recovered 10 Kgs. of opium and the accused failed to produce any licence or permit for its possession. 20 grams opium was separated as a sample which was sealed in a separate parcel with the seal mark JS and the remaining opium weighing 9.980 Kgs was sealed in a separate parcel with the said seal and both the parcels were taken into possession vide recovery memo Ex.PD attested by ASI Waryam Singh and H.C. Major Singh. The seal impression was prepared. On personal search of the accused Rs. 55/ were recovered. The ASI sent ruqa to the Police Station on the basis of which formal F.I.R was recorded. The rough site plan of the place of recovery was prepared. On personal search of the accused, one .38 bore revolver and three live cartridges of the same bore were also recovered and the accused failed to produce any licence for their possession. Regarding that recovery separate case was got registered. On their return to the police station, the A.S.I produced the case property before the S.H.O. Gurdarashan Singh who verified the recovery and affixed his own seal mark GS alongwith the seal of the Investigating Officer. Sample of the opium was sent to the office of the Chemical Examiner who declared the contents as opium. On completion of the investigation of the case, the accused was challaned in the court of Area Magistrate who supplied copies of the documents to the accused as required under the law and vide order dated 16.11.1993, the case was committed to the Court of Sessions on 30.11.93. Charge under section 18 of the N.D.P.S. Act was framed against the accused on the allegations that on 18.5.1993, in the area of village Roorianwali, appellant retained in his possession 10 Kgs opium without any permit or licence and thereby committed an offence punishable under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The charge was read over and explained to the accused to which he pleaded not guilty and claimed a trial.

In order to prove the charge, prosecution examined Karamjit Singh, MHC as PW.1 who gave his statement on affidavit Ex.PA. PW.2 Constable Parghat Singh also gave his statement on affidavit Ex.PB. I will deal and dilate their statements in the subsequent portion of the judgment. ASI Waryam Singh (PW.3) is the witness of recovery while ASI Jagjit Singh, Investigating Officer appeared as PW.4. Shri Gurdarshan Singh appeared as PW.5. Finally prosecution tendered in evidence report of the Chemical Examiner Ex.PH and closed the case of the prosecution.

Statement of the accused was recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied those circumstances and stated as follows :

"I was brought from village Mahan Badhar where alteration took place due to purchase/sale of cattle with the persons of that village and I was brought by the police in the presence of Fateh Singh and Jagdev Singh etc. After my illegal detention I was falsely implicated in this case. During that period, I had sent letters to Virsa Singh Sarpanch of village Wadhai, who came and met the police but in vain."

I have heard Shri R.S. Ghai, Senior Advocate assisted by Shri Bipan Ghai Advocate on behalf of the appellant and Shri S.S. Randhawa, DAG, Punjab on behalf of the State and with their assistance have gone through the record of this case.

The judgment of the Trial Court has been attacked from different angles. The frontal argument which has been raised by the learned counsel for the appellant is that in this case Section 50 has not been complied with. Learned counsel submitted that in this case, the Investigating Officer had reasonable ground to believe that the appellant was carrying some narcotic substances and therefore, it was obligatory on his part to comply with the provisions of Section 50 of the N.D.P.S. Act in a satisfactory manner. Learned counsel submitted that so called consent statement Ex.PC has not been recorded by the Investigating Officer in the presence of some independent witness inspite of the fact that the had ample opportunity to do so. On the contrary Shri S.S. Randhawa submitted that Section 50 has been complied with and in support of his submission he has referred to consent statement Ex.PC. besides statement of the Investigating Officer. I see merit in the submission raised by the learned counsel for the appellant. Let us first see whether Section 50 in this case is applicable or not. Section 50 lays down that when any officer duly authorised under section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. The present recovery is under Section 43. It has been recovered from a public place. If this court comes to the conclusion that the Investigating Officer had reasons to believe that the appellant committed an offence under Chapter IV he shall comply with the provisions of Section 50 of the N.D.P.S. Act. A reading of Ex.PC would show that the Investigating Officer had allegedly informed the accused whether he wanted to give search in the presence of a Gazetted Officer or a Magistrate. This is the wording of Section 50(1). Moreover, the moment memo Ex.PC is drafted, the Investigating Officer has drafted it under Section 18 of the N.D.P.S. Act. In other words, he had believed that the appellant might be carrying narcotic and psychotropic substances which is an offence under Chapter IV of the Act and in these circumstances, he was supposed to comply with the provisions of Section 50 in a legal and proper manner. Section 50 of the N.D.P.S. Act has been introduced for the benefit of the accused who is going to be searched. If the appellant had made a statement that the did not want to take the assistance of a Gazetted Officer or Magistrate and that in such an eventuality, the law courts would always expect that such statement through which the accused has shattered his valuable right in favour of the Investigating Officer should be attested by an independent witness especially when the Investigating Officer had the opportunity to do so. The position would have been different if A.S.I. Jagjit Singh had no opportunity to associate an independent witness before recording statement Ex.PC. But here is the case where the recovery has been effected from a thorough place. The ruqa was sent to the Police Station at about 1.30 P.M. on 18.5.1993. Formal F.I.R. has been registered in the Police Station at 3.45 P.M. Evidence has also come on the record that Investigating Officer deputed a member of the police party to bring the scale and weights. The police party must have remained at the spot for several hours together. In these circumstances, this court can reasonably infer that the Investigating Officer had ample opportunity to associate an independent witness to seek his attestation on the document Ex.PC. This has not been done so by the Investigating Officer. In these circumstances, it will be a very hazard and slippery on the part of the law court to believe the testimony of one ASI and one Head Constable to convict a person and sentence him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh. When the punishment is so stringent and harsh, the law court would expect that the onus should be discharged in a satisfactory manner and every reasonable doubt must go to the appellant and not to the prosecution. Moreover, in this case the Investigating Officer has not even complied with the directory provisions of the law so as to infuse confidence in the mind of the court about the genuineness of the recovery when the case of the appellant is that he was apprehended from his village in his presence of respectables who have appeared in the witness box. So much so the documentary evidence suggest that the appellant wrote letter to DW.2 Virsa Singh complaining that he had been picked up by the police. At this juncture, I do not want to give much credence to the defence of the appellant but I can say that Section 50 in this case has not been complied with in a satisfactory manner. It has been held in 1992(2) Recent Criminal Reports 403 Faquiria Khan v. State of Punjab in para No. 9 of the judgment as follows :

"After considering the rival contentions of the parties, I am of the considered opinion that the provision of section 50 of the Act have not been complied with in a satisfactory manner. Section 50 has been introduced in the Act for the benefit of the accused. The recovery in this case is a day time recovery from a public place. It is the case of the prosecution that vide his statement Ex.PA, the appellant wanted to shed his valuable right by stating that the search of the gunny bag can be taken by the I.O. in whom he had the confidence. In such a case, the expectation of law would be that such a statement should be attested by an independent witness so as to lend credence in the mind of the court about the genuineness of the statement. In the present case, the statement has been attested by HC Bikar Singh and Constable Bhupinder Singh alone. It has not been shown by the I.O. in the said statement that he ever tried to associate any independent witness at the time of the recording of the statement Ex.PA. In this view of the matter, a very long rope to the police cannot be given otherwise the liberty of no individual will be safe. It will give a blanket licence to an I.O. to put the liberty of an individual into jeopardy by taking the assistance of two police officials. Had it been the case of the prosecution that the recovery of the poppy husk was effected from the accused at odd hours and that in that situation it was not possible on the part of the I.O. to associate an independent witness, there would have been some merit in the contention of the counsel for the respondents, but in the present case, it is the admitted case of the prosecution that after the alleged recovery, a Constable was sent to bring the weights and scales to a nearby village. Such Constable could be asked to bring an independent witness before taking the search of the gunny bag when the I.O. conceived a reasonable belief that the appellant was carrying poppy husk. He could associate any passerby before recording the statement, Ex.PA. Even at the spot, the I.O. has not supplied the grounds of arrest nor he has issued any special report to the higher authorities so as to lend credence in the mind of this court. Accordingly, I am inclined to hold that section 50 of the Act has not been complied with in a satisfactory manner and therefore, the search and seizure from the appellant are illegal."

The position would have been different if the accused was apprehended at some odd hours so as to make a case for the prosecution that no independent witness could be associated by the Investigating Officer. Irrespective of the fact that the recovery of the opium is very huge, still no allowance can be granted to the prosecution which was obliged to prove the charge against he appellant beyond reasonable doubt by leading cogent and reliable evidence. The Investigating Officer did not supply the grounds of arrest to the accused. He did not issue special report of this case to the higher authorities. No D.S.P. or Gazetted Officer was summoned at the spot so as to verify the investigation. The noncompliance of provisions of Sections 52 and 57 of the Act has caused serious prejudice to the appellant and on this score also, coupled with other factors, the appellant is entitled to acquittal.

It was then submitted by the learned counsel appearing for the appellant that link evidence in this case is incomplete. I again find merit in the contention of the learned Senior Counsel. The story of the prosecution is that after seizure of the opium sample of 20 grams was prepared and bulk was separately sealed by ASI Jagjit Singh bearing inscription JS. Thereafter, the case property and the accrued were produced before Inspector Gurdarshan Singh who resealed the case property by using his own seal bearing inscription GS. Now it is to be seen whether the sample when reached in the office of the Chemical Examiner bore both the seals or not. Report of the Chemical Examiner Ex.PH is on the record. The docket which was issued shows that the sample had one seal bearing inscription JS. There was no mention in the docket that the sample also bore the seal bearing inscription GS. A sample seal affixed on the report shows that both impression JS and GS were there. The report of the Chemical Examiner also certified that the sample tallied with the impression of seal meaning thereby that the Chemical Examiner is certifying both the seals of JS and GS but the docket which was sent to the office of the Chemical Examiner shows that only one seal bearing inscription JS was used. The sample was deposited with MHC Karamjit Singh who gave his statement on affidavit Ex.PA. As per his affidavit when he received the case property including the sample it had only one seal bearing inscription JS. Munshi does not talk of the other seal GS. In these circumstances he should have handed over the sample on which two seal impression JS and GS where there. There are two affidavits of Shri Parghat Singh Constable on record Ex.PB and Ex. DA. Ex.DA was attested and sworn by the witness on 21.8.1993. This is his earlier statement and a reading of the same would show that there is mention of one seal JS and in the subsequent affidavit attested on 22.9.1994 Ex.PA Constable Parghat Singh talks of two seals bearing inscription JS and GS. Parghat Singh appeared as PW.2 and he gave his statement on affidavit Ex.PB but when he was confronted with his earlier affidavit Ex.DA with his statement under section 161 Cr.P.C and he stated as follows :

"Ex.DA affidavit bears my signatures. That affidavit was correctly sworn by me. In my statement before the police I had mentioned that the parcel contained two seals mark `JS'' and `GS'' (confronted with his statement Ex.DB portion A to A where it is not so recorded and rather only one seal mark `JS'' is mentioned)."

Thus there is a material discrepancy with regard to the seals on the sample as to whether it contained one or two seals of impressions JS and GS. So far as the position of law is concerned, it has been laid down repeatedly by the HOn''ble Supreme Court as well as by the High Courts that prosecution is to prove affirmatively that right from the stage of seizure till it reached the hands of the Chemical Analyst, there was no possibility to change or tampering with the material or the sample and support can be taken in this regard from 1997(4) Recent Criminal Reports 172, Padam Singh v. State of Haryana in which decision of the Hon''ble Supreme Court in State of Rajasthan v. Daulat Ram, A.I.R. 1980 S.C. 1341 has been relied upon. 1997(1) Recent Criminal Reports 332, Mehandi Hassan v. State is another authority where it has been laid down that burden lies on prosecution to prove that during the time the sample and article remained with Moharrir Malkhana, they were not tampered with. Further it has been laid down in this citation that the prosecution is to be prove that right upto the stage when the sample reaches to the office of the Laboratory, it has not been tampered with and no link evidence is missing. Through the above discussion I have tried to show that in this case the possibility is there that the sample has been tampered with when it was in the custody of the police because it is the case of the police itself that the sample had one seal bearing inscription JS and it does not talk of other seal bearing inscription GS.

I had already stated that the benefit of reasonable doubt is to go to the accused and not to the prosecution. In this case prosecution has not complied in a satisfactory manner Section 50 when it has not taken the assistance of independent witness inspite of the fact that the Investigating Officer had opportunity to do so. Directory provisions of Sections 52 and 57 have not been complied with in this case. THe case property has not been preserved. Its sanctity has been violated. Cumulative effect of all these circumstances is that prosecution has failed to prove its case against the accused beyond reasonable doubt.

Resultantly, I accept this appeal and set aside the judgment and order of the Trial Court and acquit the appellant of the charge framed against him. The case property shall be destroyed according to rules. Let intimation of acceptance of this appeal be sent to Superintendent Central Jail, Ferozepur so that the appellant may come out from the jail, if not convicted or wanted in any other case.

Before parting with this judgment, I may make mention that any observations by the High Court in this case shall have no bearing on the other connected appeal filed by the appellant under section 25 of the Arms Act.