Ajaib Singh vs State of Haryana

S.S. Sudhalkar, J.

The appellants were tried for the offences under Sections 15 and 16 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). They were held guilty for the offence under Section 15 of the Act and were sentenced to undergo R.I. for a period of ten years each and fine of Rs. one lac each.

The case of the prosecution is that on 9.8.1991 Balwan Singh A.S.I. alongwith other police officials was in a Govt. Jeep driven by Constable Jagdish Chander and had made Nakabandi in Gehlewala Chowk in the area of village Singhpura where Jagdish son of Jaswant Ram, Jat, resident of Sekhupuria came from the side of village Singhpura and met them. When ASI Balwan Singh was talking with said Jagdish, then in the meantime a tractor trolley No. HRN6799 came there from the side of Dhani Rampura and it was apprehended on suspicion. It was being driven by appellant Ajaib Singh and the remaining appellants, namely, Gurcharan Singh, Gura Singh, Roop Singh, Mithu Singh and Jangir Singh were sitting in the trolley which contained some bags. He then served notice Ex.PB upon the appellants asking them that some gazetted officer could be called on the spot for search of the tractortrolley but they declined this offer vide their reply Ex.PB/1. Then search of the tractortrolley was conducted from which 376 bags of poppy straw were recovered and each of the bags was found containing 40 Kgs. of poppy straw. A sample of 200 grams from each bag was separated and all the samples and the residue were sealed separately. The case property was taken into possession vide recovery memo Ex.PC. The ASI then sent ruqa Ex.PD to the police station through Pokhar Ram constable for registration of the case, on the basis of which formal FIR Ex.PD/1 was recorded by Bhagwan Dass, SI/SHO. He also prepared rough site plan Ex.PE of the place of recovery with correct marginal notes and after completing the necessary formalities, the challan was presented before the court for trial.

During the trial, the prosecution examined the following witnesses :

PW1 HC Budhi Parkash,

PW2 Dilbag Singh,

PW3 ASI Balwan Singh, Investigating Officer,

PW4 SHO Bhagwan Dass

PW5 Jagdish and

PW6 Constable Pokar Singh

Out of the above prosecution witnesses, the main witnesses are PW2 HC Dilbag Singh, PW3 ASI Balwan Singh, PW4 Inspector Bhagwan Dass and PW5 Jagdish Chand. PW1 HC Budhi Parkash has tendered affidavit Ex.PA and PW6 Constable Pokar Singh has also tendered his affidavit at Ex.PG.

I have heard learned counsel for the appellants and the learned Deputy Advocate General, Haryana, for the State.

Learned counsel for the appellants vehemently argued that the provisions of section 50 of the Act have not been complied with inasmuch as there is no offer made to be searched before a Gazetted Officer or a Magistrate. PW2 Dilbagh Singh has stated that the appellants were intimated by ASI Balwan Singh vide Ex.PB that some gazetted officer could be called for the search of the tractortrolley and they declined this offer. PW3 ASI Balwan Singh has stated in his deposition that he intimated the appellants vide notice Ex.PB that some gazetted officer could be called for the search of the tractor trolley but they declined the offer.

It will be interesting to note that the notice Ex.PB is a offer for being searched before a Gazetted Police Officer or a Magistrate, while the above mentioned witnesses state that the notice was whether some Gazetted Officer should be called for the search. In the deposition they do not mention that there was offer to be searched before a Magistrate also. Moreover the offer to be searched before a Gazetted Officer which they state in the deposition is also not the one made in Ex.PB. There is a difference between the offer to be searched before a Gazetted Officer and before a Gazetted Police Officer. No reason is shown for this discrepancy. No reason is again shown for limiting the search before a police Gazetted Officer only so far as the Gazetted Officer is concerned. Here in this case, PW5 Jagdish, the independent witness has not supported the prosecution case; of course, the prosecution has examined him and declared him hostile. He is not asked in his cross examination as to what had actually transpired during the period between arrest and search. This witness has stated in his crossexamination that "...... Statement Ex.PE is read over and explained to me. I never made any such statement before the police. It is incorrect that I am deposing falsely as I have won over by the accused." This part of his crossexamination goes to show that the witness was confronted with the position that he had made statement Ex.PE before the police and he has denied the same. He has not asked a single word as to what had transpired during the period between arrest of the appellants and their search. Moreover, the statement made under section 161 of the Code of Criminal Procedure (hereinafter called as "the Code") can be made use of, for the purpose of contradicting witness in the manner provided under Section 145 of the Indian Evidence Act, by the prosecution with the permission of the court, otherwise there is bar for the use of such a statement in the evidence. Section 145 of the Code provides that a witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. From a reading of section 161 of the Code and Section 145 of the Indian Evidence Act, it is clear that the prosecution should have asked the witness specific question as to what he has stated and got a denial from him. Moreover, as stated above, though this witness has stated that Ex.PE is not made by him before the police, it is not asked to him as to what actually transpired so that the prosecution could show that the witness was confronted with particular suggestion of fact which the witness denied. Even PW5 Jagdish the only independent witness in this particular case had accepted that he had made a statement Ex.PE, that by itself was not sufficient to prove the case without the specific part of it being put to him though he might have denied the same.

Learned counsel for the appellants has relied on the Division Bench judgment of this Court in Gurpreet Singh @ Pappi v. State of Punjab, 1997(1) C.L.R. 275. In the said case the Division Bench has held that the option given to the accused was whether he would like to be searched in the presence of a Gazetted Officer and that there was no option given to him that he could be searched by a Magistrate and this court has held that mandatory provisions of section 50 of the Act were thus violated and the conviction was held to be unsustainable and it was set aside on this score. The D.B. had also considered the judgment in the case of Rabbi Singh v. State of Haryana, 1996(1) All India Criminal Law Reporter 502.

In the present case, there is one more infirmity that even the option of search before the Gazetted Officer is limited to a search before the Gazetted Police Officer.

In view of the above reasons, the conviction of the appellants cannot be sustained. This appeal is, therefore, allowed. The judgment of conviction and order of sentence passed against the appellants are set aside and the appellants are acquitted and are ordered to be set at liberty, if no longer required in custody in any other case. Fine, if paid, is ordered to be refunded.