Amarjit Singh vs State of Punjab

P.K. Jain, J.

This appeal is directed against the judgment/order dated October 29, 1996, passed by the Additional Sessions Judge, Faridkot, whereby the appellant has been convicted for an offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and sentenced to undergo rigorous imprisonment for a period of 20 years and to pay a fine of Rs. 1,00,000/, in default of payment of fine to further undergo rigorous imprisonment for a period of two years.

The facts necessary for the disposal of this appeal are that on 10.1.1995, a police party headed by Narinderpal Singh, Superintendent of Police, Moga, was present in the area of Village Dalla on the bridge of canal minor, Katcha path leading from Mehna to Tarkhanwadh. At about 7.00 a.m. a tractor bearing registration No. HRJ6493, being driven by the appellant was sighted while coming from the side of village Tarkhanwadh. The same was stopped. There was one gunny bag lying on the tractor near the driver''s seat. S.P. Narinderpal Singh told the appellant that he (S.P.) had suspicion that the appellant was carrying some intoxicant in the gunny bag and accordingly, he (S.P.) wanted to take search of the same. He also informed the appellant that he was Superintendent of Police, Moga, and enquired if the appellant had any objection regarding search being conducted by him (S.P.). The appellant gave his consent in affirmative which was reduced into writing (Exhibit PB). Efforts were made to join independent witness but in vain. On conducting a search of the gunny bag by the said S.P., it was found to contain opium. wrapped in a glazed paper, weighing 50 Kgs. of opium. 100 Gms. of the contents were separated by way of sample. The sample and the remaining opium were converted into separate sealed parcels with the specimen seal of Narinderpal Singh i.e. ''NPS''. The seal after use was handed over to SHO Ajmer Singh, a member of the police party. The sample as well as the remaining opium along with the tractor were seized by preparing a seizure memo (Exhibit PC). Ruqa (Exhibit PE) was sent to the Police Station, on the basis of which formal first information report (Exhibit PE/1) was recorded. Rough site plan (Exhibit PF) of the place of recovery was prepared. The accused along with the case property was produced before the Ilaqa Magistrate with an application, carbon copy of which is Mark ''X'' and then the case property was deposited in the malkhana at Police Station, Mehna. The sampleparcel was sent to the office of the Chemical Examiner and the report (Exhibit PJ) was received. After completing the investigation, a chargesheet was filed in the Court.

A charge under section 18 of the Act was framed against the appellant to which he pleaded not guilty and claimed trial.

In support of its case, the prosecution examined five witnesses. Jaipal Singh (PW 1) is an official of the office of the S.D.M., Moga, who brought the record regarding the registration of the tractor bearing No. HRJ 6493. Constable Darshan Singh (PW 2) had taken the sealed sample parcel from the Moharrir Head Constable Raj Pal (PW 5) and deposited the same in the office of the Chemical Examiner, Chandigarh. S.P. Narinderpal Singh (PW3) and S.I. Ajmer Singh (PW 4) are the witnesses of recovery and investigation of the case.

In his examination recorded under section 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution and pleaded false implication. According to him, on 6.1.1995, he and his co villager Balbir Singh were picked up by the police and brought to the Police Station, that Balbir Singh secured his release for consideration, that on 9.1.1995, his tractor was also brought from his house and he was implicated in this false case. He further stated that telegrams were sent to various higher authorities by his relation. He also stated that the police had got his signatures on certain blank papers under duress.

In his defence, the appellant examined six witnesses. Baltej Singh (DW 1) and Shri Ram Lal Bhalla (DW 3) are from Telegraph Office. They have proved the certified copies of the telegrams (Exhibits D.1 to D.4 and D.11) and the receipts (Exhibits D.5 to D.10). H.C. Rajesh Kumar (DW 2) is a Head Clerk in the Office of Senior Superintendent of Police, Moga. He brought the character roll of Shri Narinderpal Singh (PW 3), and disclosed that Shri Narinderpal Singh was an officer of the rank of an Inspector and was not a Gazetted Officer. Sarbjit Singh (DW 4) and Taja Singh (DW 5) are the two relations of the appellant, according to whom the appellant was lifted away by the police on the night of 6.1.1995 at about 11.00 p.m. along with one Balbir Singh, and they had sent various telegrams, referred to above. Shri Sarwan Kumar (DW 6) is the Malkhana Clerk of the office of Chief Judicial Magistrate, Faridkot. On the basis of the Malkhana register, he disclosed that on 2.4.1992, Opium weghing 111 Kgs. was sent to Gazipur Government Opium and Alkaloid Works Undertaking, Gazipur, and by letter dated 5.3.1993, office of the Chief Judicial Magistrate was informed that the said opium had been chemically analysed in the quality control section and was found unfit for manufacturing alkaloid, for which no payment was admissible. Exhibit D.12, a certified copy of the judgment dated 19.9.1995 was also produced in defence.

On an appraisal of the evidence produced on the record, the trial Court came to the conclusion that the prosecution had proved its case beyond reasonable doubt, and while disbelieving the defence version, convicted and sentenced the appellant, as stated above. Hence the appeal.

We have heard the learned counsel for the parties and have perused the record of the trial Court.

Shri K.S. Sidhu, Advocate, learned counsel for the appellant, has assailed the conviction of the appellant on several grounds, of which two are technical in nature, i.e. (i) that there is noncompliance of section 50 of the Act, and (ii) that the possibility of tampering with the sample parcel till it reached the hands of the Chemical Examiner has not been ruled out. It has been argued by the learned counsel that S.P. Narinderpal Singh (PW 3) did not inform the appellant regarding his right to be searched before a Gazetted officer or a Magistrate, and this omission is fatal to the prosecution case. In support of this plea, the learned counsel has placed reliance upon the decisions rendered by the apex Court in State of Punjab v. Balbir Singh, 1994(1) R.C.R. (Crl.) 737 : AIR 1994 Supreme Court 1872, Saiyad Mohd. Saiyad Umar Saiyed and others v. State of Gujarat, 1995 Cri.L.J. 2662 : 1995(2) RCR (Crl.) 388 and State of Punjab v. Jasbir Singh and others, 1996 Supreme Court Cases (Crl.) 1.

On the other hand, Shri Nardeep Singh, Assistant Advocate General, while appearing on behalf of the State of Punjab, has argued that an offer was given to the appellant that if he so desired, he could be searched before a Gazetted officer or a Magistrate and that the appellant was also informed that Narinderpal Singh, who was Superintendent of Police, Moga, was a Gazetted Officer. It has been further pointed out that the appellant gave his consent in writing (Exhibit PB) that he could be searched by S.P. Narinderpal Singh. Thus, it has been contended that the search was conducted by the S.P., Narinderpal Singh (PW 3) after duly complying with the provisions of the Act. Reliance has been placed on two decision of the apex Court rendered in Manohar Lal v. State of Rajasthan, 1996(1) RCR (Crl.) 660 : JT 1996(1) S.C. 480, and Raghbir Singh v. State of Haryana, 1996 Supreme Court Cases (Crl.) 266.

We have given our considered thought to the respective arguments advanced at the Bar. Section 50 of the Act, so far as it is relevant for our purposes, reads as under :

"50. Conditions under which search of persons shall be conducted :

(1) 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 nature and scope of this provision was considered for the first time by their Lordships of the Supreme Court in Balbir Singh''s case 1994(1) RCR (Crl.) 737 (supra) and the following law was laid down :

"On prior information, the empowered officer or authorised officer while acting under S. 41(2) or 42 should comply with the provisions of S. 50 before the seareh of the person is made and such person should be informed that if he so requires, he shall be ''produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate would amount to noncompliance of S. 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial."

This view was reiterated by the apex Court in Saiyad Mohd. Saiyad Umar''s case, 1995(2) RCR (Crl.) 388 (supra) and Jasbir Singh''s case (supra).

In Manohar Lal''s case, 1996(1) RCR (Crl.) 660 (supra) their Lordships explained the provisions of section 50 as under :

"..... The provision only requires the option to be given to the accused to say whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate; and on exercise of that option by the accused, it is for the Officer concerned to have the search made in the presence of the nearest Gazetted officer or the nearest Magistrate whosoever is conveniently available for the purpose in order to avoid undue delay in completion of that exercise. It is clear from section 50 of the N.D.P.S. Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer taking the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate. The choice of the nearest Gazetted officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused."

In Raghbir Singh''s case (supra) their Lordships further elaborated the said provision as under :

"Finding a person to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to severe punishment. It is, therefore, that the Act affords the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be Gazetted Officer or a Magistrate, depending upon who is conveniently available."

It was further explained that the option under Section 50 of the Act is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted officer or of being searched in the presence of a Magistrate. Although reference has not been made at the Bar by either side to another decision rendered by the apex Court in State of H.P. v. Pirthi Chand and another, 1996(2) RCR (Crl) 759 : 1996 Supreme Court Cases (Crl.) 210, yet we have noticed that in that case also their Lordships were pleased to lay down that the requirement on the part of the searching officer to inform the accused of his right to choose to be searched in the presence of a Gazetted officer or a Magistrate is mandatory.

A careful perusal of the above decisions does not reveal any inconsistency among them. On the other hand, all these decisions do recognise a valuable right of an accused enshrined in section 50 of the Act to the effect that if an authorised officer has a suspicion that a particular person is in possession of some prohibited drug or substance in contravention of the Act, he would inform the person to be searched regarding his suspicion and further that if he so desired, he could be searched either before a Gazetted officer or a Magistrate. This provision has been held to be sacrosanct and mandatory in nature and violation thereof strikes at the core of the prosecution case. The only departure made by the apex Court in the two decisions rendered in Manhar Lal''s case, 1996(1) RCR 660 (supra) and Raghbir Singh''s case (supra) from the other decisions cited above, relates only to the nature of option to be given to a person to be searched. The earlier view was that the person to be searched must be informed that he had a right to be searched in the presence of a Gazetted officer or a Magistrate, and if such person opted to be searched before either of the two officers, the authorised officer was required to take the said person before that authority for conducting his search. However, this interpretation was elaborated in the later two decisions in Manohar Lal''s case, 1996(1) RCR (Crl) 660 (supra) and Raghbir Singh''s case (supra) and it has been held that the option is to be given to the person to be searched that he could either get himself searched by the authorised officer apprehending him or before a Gazetted officer or a Magistrate who may be conveniently available. In other words, once the person to be searched exercises his option to be searched before a Gazetted officer or a Magistrate, then it is for the authorised officer to take such person either before a Gazetted officer or a Magistrate, who may be conveniently available. It has been further clarified that even if the offer had been given that the said person could be searched before a Gazetted officer, that would be enough compliance of Section 50 of the Act.

Keeping in view the law as expounded by their Lordships of the Supreme Court regarding the interpretation of section 50 of the Act, we proceed to analyse the evidence produced by the prosecution to see if the provisions of section 50 of the Act have been complied with or not in the present case.

To begin with, in the ruqa (Exhibit PE), on the basis of which formal first information report (Exhibit PE/1) of this case was recorded, and which contains the earliest version of the prosecution, it is stated :

"I, the Supdt. of Police asked him that I had suspicion and want to conduct the search of Gunny bag lying near Driver''s seat. I am Supdt. of Police, Moga. Have you any objection regarding search by me ? Then he gave his consent in affirmative. Accordingly a separate memo was prepared."

Admittedly, that consent memo is Exhibit PB, which reads as under :

"In the presence of the undermentioned witnesses, accused Amarjit Singh alias Billu son of Pritam Singh Jat resident of Dala, confessed that I have no objection to the search of my Gunny bag gatta, which is lying on my tractor Escort No. HRJ6493 Mark335 driven by myself, for which consent memo has been prepared."

From a conjoint reading of ruqa (Exhibit PE) and consent memo (Exhibit PB), as reproduced above, it becomes evident that S.P. Narinderpal Singh never informed the appellant about his right to be searched before a Gazetted officer or a Magistrate. He merely asked the appellant if the latter had any objection to the search of his bag to be conducted by the said Superintendent of Police, which does not amount to the compliance of the mandatory provisions of Section 50 of the Act.

When SP Narinderpal Singh (PW 3) came into the witnessbox, he had deposed that he apprised the appellant of his legal right and told him as to whether he wanted to give search in the presence of a Gazetted officer or a Magistrate. The said S.P. also disclosed that he was an S.P. and a Gazetted officer. On it, the appellant reposed his faith in the said S.P. and told that he could conduct his search in the presence of other police officials. In the first instance, this version given on oath by Narinderpal Singh is contrary to the one contained in the ruqa (Exhibit PE), which was also prepared by S.P. Narinderpal Singh, on the basis of which the first information report of this case was recorded. Further, consent memo (Exhibit PB) does not support this version at all. Still further, S.I. Ajmer Singh (PW 4), who is stated to be an eyewitness to the recovery, has stated that S.P. Narinderpal Singh disclosed his identity to the appellant, told him that he had suspicion that the appellant was keeping some intoxicant in the gunny bag and he wanted to conduct his search. On it, the appellant stated that he had no objection and offered his personal search. Consent memo (Exhibit PB) was prepared. Thus, Sub Inspector Ajmer Singh (PW 1) does not corroborate the testimony of S.P. Narinderpal Singh (PW 3) regarding informing the appellant of his right to be searched either before a Gazetted officer or a Magistrate, or even before a Gazetted officer.

Let us assume for the sake of argument that the appellant was made aware of his right to be searched before a Gazetted officer as required by Section 50 of the Act, the question arises whether S.P. Narinderpal Singh (PW 3) was a Gazetted officer on 10.1.1995. He was crossexamined on this point. In this said crossexmination, he denied that his actual designation was Inspector of Police and that he was not a Gazetted officer. He explained that his name was published in the Punjab Government Gazette but he was unable to give the particulars of the said notification. The appellant examined H.C. Rajesh Kumar (DW 2), Head Clerk from the office of the Superintendent of Police, Moga. He brought the character roll of Shri Narinderpal Singh and on the basis of the said record, he deposed that Shri Narinderpal Singh was drawing the pay of the rank of an Inspector of Police, that there was no Gazetted notification of his being a Gazetted officer as per character roll and that Inspector of Police is not a Gazetted officer. In his cross examination by the State, he categorically denied the suggestion that Shri Narinderpal Singh was a Gazetted officer. The mere fact that he was performing the duties of a Superintendent of Police would not make him a Gazetted officer. The appellant produced (Exhibit D.12) a certified copy of a judgment in Sessions case No. 93 of 25.11.1994, decided on 19.9.1995 by the Sessions Judge, Faridkot, in respect of F.I.R. No. 101 dated 18.8.1994, registered at Police Station, City Moga, for an offence under section 18 of the Act. In para 13 of that judgment, it has been found as a fact on the basis of the admissions made by S.P. Narinderpal Singh that he was an officer of the rank of an Inspector of Police but was working as ad hoc promotee. The matter does not rest here. In Jagir Singh v. State of Punjab, 1997(1) Recent C.R. 9, a case under Section 18 of the Act, decided by a Single Bench of this Court, contains a specific finding in para 6 thereof, that Shri Narinderpal Singh was only an officer of the rank of an Inspector in June 1994 and he became Deputy Superintendent of Police in the year 1995 only. In view of the testimony of H.C. Rajesh Kumar (DW 2), the certified copy of the judgment (Exhibit D.12) and the decision of this Court in Jagir Singh''s case, 1997(1) RCR (Crl.) 9 (supra) we are constrained to hold that Shri Narinderpal Singh (PW 3) was not a Gazetted officer on 10.1.1995. Once it is so held, the necessary conclusion is that he misrepresented himself to be a Gazetted officer and thereby obtained the consent of the appellant as contained in Exhibit PB. Still further, the said consent does not authorize him to conduct search. It is silent as to in whom the appellant had reposed his faith and who was to conduct the search. Exhibit PB is quite vague and indefinite, and it cannot be said by the stretch of any imagination that with this consent memo, the Provisions of section 50 of the Act had been complied with before conducting the alleged search of the bag lying on the tractor. In other words, there is a violation of the mandatory provisions of section 50 of the Act, which strikes at the root of the prosecution case.

The matter does not rest here. After the alleged recovery of opium, SP Narinderpal Singh (PW 3) did not comply with the provisions of section 55 of the Act, which read as under :

"55. Police to take charge of articles seized and delivered :

An officerincharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officerincharge of the police station."

This Section enjoins a duty upon an officerincharge of the Police Station to receive and keep the goods and articles seized under this Act within the local area of the Police Station. He is also required to affix his own seal to all the samples. The clear intention of the Legislature was a fair investigation by putting the seized material beyond the reach of the seizing officer and by eliminating the possibility of the sample being tampered with till the same reached the hands of the Chemical Examiner.

In the present case, S.I. Ajmer Singh (PW 4), who was the officerin charge of Police Station, Mehna, on that day, was allegedly present at the spot of occurrence. After the opium was recovered, the sample was separated, and the sample as well as the remaining contents were converted into sealed parcels and were taken into possession after preparing a seizure memo. It was the bounden duty of SP Narinderpal Singh (PW 3) to entrust the entire case property along with the sealed parcels to SI Ajmer Singh as required under section 55 of the Act. But instead, he entrusted his seal, alleged to have been affixed on the parcels, to SI Ajmer Singh, which was not envisaged by the Act. According to the testimony of SP Narinderpal Singh (PW 3), he had produced the case property as well as the sample seal before the Ilaqa Magistrate on that very day by moving an application, carbon copy of which is mark ''X'', and the Ilaqa Magistrate had instructed him to deposit the case property in the Malkhana and made his endorsement on his application. This part of his testimony is not corroborated by Mark ''X'' at all. The original application was not got produced on the record by the prosecution for the reasons best known to it. Mark ''X'', in itself, does not contain any endorsement by the Ilaqa Magistrate or any direction issued by the Ilaqa Magistrate as claimed by SP Narinderpal Singh (PW 3). The only requirement of law immediately after the recovery was effected and the sealed parcels were prepared, was to hand over the case property to the officerincharge of the Police Station i.e. S.I. Ajmer Singh (PW 4), who, in turn, was required to affix his own seal on the sample parcel as well as the parcel containing the remaining opium. But the case property was never entrusted to SubInspector Ajmer Singh (PW 4), nor he has affixed his own seal thereon. This is another violation of the provisions of Section 55 of the Act. When the prescribed procedure is abandoned, it gives rise to a gnawing suspicion that the officer/officers, could have, for certain oblique reasons, roped in an innocent individual.

Another weighty argument advanced by Shri K.S. Sidhu, Advocate, the learned counsel for the appellant, is that the prosecution has failed to prove that the sample parcel was not tampered with till it reached the hands of the Expert and as such it cannot be said that the opium was recovered from the possession of the appellant. The learned counsel has taken us through the testimony of Constable Darshan Singh (PW 2), SP Narinderpal Singh (PW 3), SI Ajmer Singh (PW 4) and MHC Raj Pal (PW 5) and has argued that the sample parcel delivered in the office of the Chemical Examiner, cannot be said to be the same which is alleged to have been prepared at the time of the recovery by SP Narinderpal Singh (PW 3). On the other hand, Shri Nardeep Singh, Assistant Advocate General, Punjab, has invited our attention to Exhibit PJ, the report of the Chemical Examiner to show that the seal of the sample parcel was intact and tallied with the specimen seal sent along with it.

We have carefully considered the respective contentions advanced at the Bar. It is interesting to note that according to the testimony of Constable Darshan Singh (PW 2), he had taken the sealed parcel form MHC Raj Pal (PW 5) on 16.1.1995 to deliver it in the office of the Chemical Examiner, Chandigarh, but the sample parcel was returned with certain objections about which he is not aware. The objections were recorded on the paper which he had taken with him for depositing the sample. He again took the sealed sample parcel on 24.1.1995 from the same Moharrir Head Constable and deposited the same in the office of the Chemical Examiner, Chandigarh. MHC Raj Pal (PW 5) was the Moharrir Malkhana posted at Police Station, Mehna. According to his testimony, the sealed sample parcel of this case was deposited with him by SP Narinderpal Singh and the same was sent to the office of the Chemical Examiner through Constable Darshan Singh (PW 2) but the same was received back with some objections on 17.1.1995 for which Daily Diary Report was recorded at Sr. No. 16. In his crossexamination he has stated that in Register No. 19, it is not mentioned as to what objections were raised by the office of the Chemical Examiner, nor there is anything in the register as to how those objections were removed before sending the sample for the second time. However, in the same breath he has stated that the objection was that there was no seal affixed on the knot on the sample, that this objection was removed by the SP Narinderpal Singh, who came to the Police Station and affixed his seal on the knot of the sample. On the other hand, neither SP Narinderpal Singh (PW 3), nor SI Ajmer Singh (PW 4) has anywhere stated in his entire deposition that SP Narinderpal Singh had visited Police Station, Mehna, to remove the objection raised by the office of the Chemical Examiner and he had affixed his seal on the knot of the sample parcel. It is also interesting to note that according to the prosecution, after the recovery was effected 100 Gms. of the contents were separated by way of sample and the same were converted into a sealed parcel with the seal of SP Narinderpal Singh i.e. ''NPS'' and that the seal after use was handed over to SI Ajmer Singh. S.H.O., Police station, Mehna. It cannot be disputed that the Station House Officer is the Incharge of the Malkhana of the Police Station. The sample parcel was not sealed with any other seal. In other words, SI Ajmer Singh (PW 4) had the time and opportunity to tamper with the sample and to reaffix the seal having the impression ''NPS''. In these circumstances, one cannot rule out the possibility of the sample having been tampered with till it reached the hands of the Chemical Examiner on 24.1.1995. The least that can be said is that what was seized from the appellant was never sent for analysis and, therefore, it is impossible to say that what was seized from the appellant was opium.

At the conclusion of the trial, the prosecution can succeed only on discharging the unshifting burden of proving its case against the accused and strongest of suspicion does not constitute the proof required. One of the essential facts to be proved affirmatively by the prosecution is that right from the stage of the seizure till it reaches the hands of the Chemical Analyst, there was no possibility to change or tamper with the recovered material. In the present case, the prosecution has failed to prove this essential ingredient to prove the guilt of the appellant. In the absence of this vital link, the conviction of the appellant is flawed. It is well known in criminal law that "fouler the crime, the greater the evidence." The word ''greater'' does not signify '' in quantity'' but denotes ''in quality''. In our considered view, the prosecution has failed to prove its case against the appellant beyond reasonable doubt.

As a result of the above discussion, this appeal succeeds. The conviction and sentence of the appellant are set aside and he is acquitted of the charge under section 18 of the Act. The appellant be released forthwith, if not wanted in any other case. The amount of fine, if deposited, shall be refunded to him.