Angrez Singh vs Haryana State

R.L. Anand, J.—This is a criminal appeal filed by Angrez Singh, and has been directed against the judgment dated 15.7.1998 and dated 17.7.1998 passed by the Court of Addl. Sessions Judge, Jind, who convicted the appellant u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo R.I. for a periods of 10 years and to pay a fine of Rs. 1 lakh in default of payment of fine, the appellant was directed to undergo R.I. for one year.

The brief facts of the case are that on 5.7.1996 ASI Laxman Singh was present in the area of village Kherakhemawati in a Government vehicle driven by constable Shamsher Singh. Constable Jasbir Singh was also present with the ASI in connection with the investigation of case FIR No. 292 under Sections 363/366, IPC, of Police Station, Safidon. When the police party reached at the Bus Stand of village Kheri Khemawati, HC Dhanpat and Constable Satyawan met the police party and the ASI was talking with them and at the time the ASI received a secret information that Canter bearing registration No. HR-05A-3887 driven by the appellant would be passing from Panipat and would be going to village Didwara loaded with bags of poppy husk and in case a nakabandi is arranged on Canal bridge, Butana Branch, the vehicle could be intercepted. On this information, the ASI organised a raiding party consisting of Constables Dhanpat, Jasbir and Satyawan and the police party reached at the Canal Bridge in the Government vehicle. After some time the Canter in question came from the side of Panipat. The driver on seeing the police party tried to reverse the vehicle and wanted to escape towards Panipat, however, the police party apprehended the accused along with the Canter. The I.O. suspected that the bags lying in the Canter contained some narcotic drugs, therefore, he gave a notice to the appellant as to whether he wanted to give the search before some Gazetted Officer or a Magistrate and in reply, the appellant desired to be searched before some Gazetted Officer. Resultantly, the appellant along with the Canter was produced before DSP Paramjit Singh Ahlawat in his office at Safidon. In the presence of the DSP, the I.O. took the search of the Canter and found 28 bags of poppy husk. Each bag contained 41 kgs. 900 grams of poppy husk. The I.O. separated 200 grams of poppy husk from each of the bags by way of sample and sealed the entire case property with his own seal bearing inscription ''L.S''. The DSP also re-sealed the case property with his own seal bearing inscription ''PSA''. Thereafter, the entire case property was taken into possession vide recovery memo. The Canter was also taken into possession. Accused could not produce any licence or permit for the possession of poppy husk. Resultantly a ruqa was sent to the police station for the registration of the case, on the basis of which formal FIR No. 293 dated 5.7.1996 u/s 15 of the Act was recorded in police station, Safidon. The I.O. prepared the rough site plan of the place of recovery. The case property was deposited with the MHC and, later on, the sealed samples of the poppy husk were sent to the office of the Chemical Examiner, who declared the contents as poppy husk. On the completion of the investigation of the case, the appellant was challaned in the court of the Area Magistrate, who supplied the copies of the documents free of cost as required under the law and vide commitment order dated 20.1.1997 committed the accused to court of session to face trial u/s 15 of the Act.

Vide orders dated 22.1.1997, the accused was charge-sheeted u/s 15 of the Act. The charge was read over and explained to the accused, who pleaded not guilty and claimed a trial.

In order to substantiate the charge, the prosecution examined HC Ram Chander, PW-1, who gave his statement on affidavit Ex. PA. The prosecution also examined Satyawan, PW-2, who too gave this statement on affidavit, Ex. PB, DSP Paramjit Singh Ahlawat appeared as PW-3 and he supported that 18 bags of poppy husk were recovered from the possession of the appellant and those bags were lying in the Canter and in his presence the search was taken. He is attesting witness of the recovery memo. PW-4 Rohtash Singh, ASI, received the formal ruqqa, EX. PD, and recorded the FIR, Ex. PD/1. Dhanpat Singh appeared as PW-5. He is also a witness of recovery and he has supported the statement of his senior officer ASI Laxman Singh, PW-6, who is I.O. and who has supported the story of the prosecution. Finally, the prosecution tendered into evidence the report of the Chemical Examiner and closed the case.

On the closer of the prosecution evidence, the statement of the accused was recorded u/s 313, Cr. PC and all the incriminating circumstances appearing in the prosecution evidence were put to the appellant. The appellant denied those circumstances and stated as under:

I am innocent and I have been falsely implicated by the I.O. in this case. I was arrested by the I.O. on 3.7.1996 in P.S. Safidon while I was carrying the Refrigerators and Washing machines of Videocon to deliver the same in the Safidon city. My Canter bearing No. HR 05-3887 was took into possession on 3.7.1996 in PS city Safidon and the above said Canter was unloaded in the premises of PS Safidon on 4.7.1996 in the evening and the unloaded goods i.e. Refrigerators and washing machines were sent back to Karnal on 4.7.1996 in the evening by loading the same Refrigerators and Washing Machine of Videocon in Tata 407 HR-45-1737 for Karnal.

When called upon to enter into defence, the accused examine Ajay Malik, DW-1, Joginder Singh, DW-2, Roshan Lal Bhardwaj, DW-3 and Sanjeev Gupta, DW-4, who have supported the defence of the appellant.

The learned trial court relied the story of the prosecution and rejected the defence version and convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Shri Narottam Kaushal, Advocate, on behalf of the appellant and Shri J.S. Ahlawat, Advocate, appearing on behalf of the State, and with their assistance have gone through the record of this case.

The learned Counsel for the appellant has assailed the findings of the trial Court on a convincing ground by submitting that the investigation in this case is faulty, making the search of the bags illegal. The counsel submitted that it was case of secret information received by the I.O. at the Bus Stand and, in these circumstances, it was obligatory on his pat, firstly, to record the secret information and send a ruqa to the police station for the registration of the case and, secondly, it was mandatory on the part of the I.O. to associate an independent witness before taking the search of the bags in the presence of the DSP.

On the contrary, the learned Counsel for the state submitted that since the search has been taken in the presence of DSP, no prejudice has been caused to the appellant. Moreover, there was paucity of time on the part of the I.O. to associate an independent witness and in his anxiety to see that the culprit may not run away with the office, therefore, the I.O. did not record the ruqa at the spot.

Both these submissions raised by the learned State Counsel are devoid of merit. It was a case of secret information. In these circumstances, it was obligatory on the part of the I.O. to associate an independent witness before going to the place of nakabandi. He has not done so. He has violated the provisions of law rendering the search as illegal. The excuse which has been given by the I.O. appears to be coined one. In the ruqa which was sent to the police station, there is no mention that since he was in a hurry, therefore, he could not record the ruqa on receipt of the secret information. He also does not make a mention that on account of paucity of time he had not joined any independent witness. On this aspect, the I.O. has been tested by the defence counsel in the trial Court. The I.O. appeared as PW-6 and he has admitted many factors in favour of the defence from which a reasonable inference can always be drawn that the prosecution has not been able to prove the charge against the appellant beyond reasonable doubt. In the cross-examination the I.O. admitted that the distance between the Bus stand, Khera Khemawati and the place of apprehension of the accused was six kilometre. In these circumstances, it was easy on the part of the I.O. to associate any independent witness from the public. He received the secret information at the Bus Stand which is public place and which is invariably visited by several persons. The information was received in the morning at about 10 A.M. Then I.O. has not associated any independent witness from the Bus Stand though certain persons were passing thereby. The I.O. also admitted in the cross-examination that he made no efforts to join any person between Khemawati and the place of arrest of the appellant. Also, it has been stated by the I.O. that the police party had to wait for one hour before the arrival of the Canter at the spot, Even during the lapse of one hour, no effort was made by the I.O. to take the assistance of any independent witness. In order to cover these problems, the I.O, then, switched his stand by stating that he deputed Constable Shamsher Singh in order to call some independent witness before taking search but when he was tested further, the I.O. has to eat a humble pie when he stated that he did not take any action against any person who was not willing to join the investigation. He could not tell the name of that person. He was specifically asked to consult his case diary to show if he had made any attempt to associate any independent witness. The officer consulted the case diary and had stated that the case diary does not contain any mention that he ever deputed Constable Shamsher Singh in order to associate an independent witness. In such circumstances, the gospel explanation given by the I.O. cannot be digested.

The second argument of the learned State counsel that the search has been taken in the presence of the DSP and that no prejudice has been caused to the appellant, is also devoid of any merit. When the building going to be constructed on the foundations which are so weak, such building is bound to collapse. First thing has to be done first and the second thing has to be done second. Firstly, it was obligatory on the part of the I.O. to associate an independent witness. He has not done so for the reasons best known to him. He has rendered the investigation as illegal, causing serious prejudice to the appellant and any search conducted in the presence of the DSP will not cover the illegality which has been initially committed by the I.O. In such like cases, the law expects the prosecution to lead cogent, reliable and satisfactory evidence. Unforturnately, such type of evidence is lacking in the present case. In these circumstances, I have no hesitation to allow this appeal.

Resultantly, I accept all this appeal, set aside the judgment and order of the trial Court and acquit the appellant of the charge framed against him. The case property stands confiscated to the state and shall be destroyed according to the rules. The information regarding the acceptance of this appeal be sent to the Superintendent, District Jail, Karnal, So that the appellant should be set at large forthwith, if not required in any other case.