Atma Singh vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Atma Singh (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Sessions Judge, Faridkot dated 13.8.1994. By virtue of the impugned judgment, the learned trial Court held the appellant guilty of the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). Subsequently, the appellant was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One Lac. In default of payment of fine he was to undergo further rigorous imprisonment for a year.

The sum and substance of the facts are that on 26.4.1993 Assistant Sub Inspector Joginder Singh while posted at City Muktsar was going in a Government Canter for patrolling. He was accompanied by Head Constables Paramjit Singh, Jarnail Singh and Constable Sukhdev Singh. While patrolling they reached Burha Gujjar road at Ferozepur road byepass. The appellant was sighted. He was coming from the side of Burha Gujjar road towards Muktsar side on foot. On seeing the police party the appellant became nervous and turned towards the village. It aroused suspicion of Assistant Sub Inspector Joginder Singh. He stopped the appellant who was apprehended with the help of Head Constable Paramjit Singh.

Appellant was holding a bag in his right hand. Assistant Sub Inspector Joginder Singh suspected him to be in possession of some contraband material. The appellant was told that if he likes, his search can be effected in the presence of a Gazetted Officer or a Magistrate. The appellant spurned the offer. The statement of the appellant in this regard was recorded and he thumb marked it. The bag was checked and was found to be containing opium wrapped in a glazed paper. The contents were weighed and the opium was found to be 5 kilogram. 50 grams was taken as the sample. The sample and rest of the opium were converted into two sealed parcels, sealed with the seal of ''JS''. Both the parcels were taken into possession vide recovery memo attested by Head Constable Paramjit Singh and Constable Jarnail Singh. The accused was arrested. Ruqa was sent to the police station for registration of the case. On the basis of that, formal First Information Report was recorded by Assistant Sub Inspector Sadlm Singh. Rough site plan was prepared. Recovered articles of the appellant were produced before Inspector Sadhu Singh, Officer Incharge of police station City Muktsar. Inspector Gian Singh verified the facts and affixed his seal on the two parcels. The said articles were deposited in the Malkhana by Inspector Gian Singh. Subsequently, a representative alongwith the parcels was sent to the Chemical Examiner for examination of the opium. On receipt of the report that contents were opium, challan as against the appellant was filed in Court.

The learned trial Court on appraisal of the evidence held that the prosecution evidence established beyond all reasonable doubt and that the appellant was found in possession of 5 kilogram of opium without any valid licence or permit. Accordingly, the impugned judgment and the order of sentence were passed.

The case of the prosecution rests primarily on the testimonies of two official witnesses namely Head Constable Paramjit Singh PW4 and Assistant Sub Inspector Joginder Singh PW5. It is in their presence that the opium as such was recovered.

Head Constable Paramjit Singh supported the prosecution case in terms that he was in the police party when appellant was apprehended and 5 kilogram of opium was recovered. To the same effect is the statement of Assistant Sub Inspector Joginder Singh who had headed the police party while the appellant was apprehended and the alleged opium was recovered. No public witness as such has been joined. It has never been accepted as a rule of law that public witness must be joined in each and every such raid. It is the quality of evidence that matters. Merely because public witness has not been joined, the recovery would not itself become suspicious. No hard and fast rule can be made in this regard. Each case has to be determined on its own facts. If public witness had not been joined, the Court would be on its guard. If reasonable explanation is forthcoming or there was no occasion to join the public witnesses, it will not be appropriate for the Court, still to insist upon to join public witnesses.

In the present case, it transpires from the evidence of Head Constable Paramjit Singh that residential area is half a kilometre from the place of recovery. Tibbi Sahib Gurdwara is located on the road which goes along side the same. Head Constable Paramjit Singh further added that the plastic cane and the plastic box had been brought by Head Constable Sukhdev Singh. In other words he had been sent to fetch the same from a residential colony so close. It is somewhat surprising that no public witness was called even at that time when a Constable was sent to get those articles. Therefore, the evidence as such has to be examined with greater care even while analysing if the strict provisions of law have been complied with or not.

It is not the subject matter of controversy that provisions of sub Section (1) of Section 50 of the Act are mandatory in nature. An offer must be given to the person suspected to be in possession of contraband that if he likes, his person can be searched before a Gazetted Officer or a Magistrate. The said offer is not an idle formality. It is the valuable right of the accused to insist that his person be searched before a Gazetted Officer or a Magistrate to lend authenticity and credibility to the search. Head Constable Paramjit Singh who appeared as PW4 in the first instance in the sequence of evidence as recorded by the trial Court stated that after the appellant was apprehended his bag was searched. This led to a leading question by the public prosecutor that consent of the appellant was obtained before the bag was searched. The answer was in affirmative. In addition to that the witness stated that he had deposed in his statement recorded under Section 161, Code of Criminal Procedure that before the accused was arrested, grounds of arrest were disclosed to him. His attention was drawn to the said statement Ex.DA where this fact had not been recorded. The improvement so made in Court was material. The testimony of the witness becomes shaky in light of the aforesaid as to if any such offer contemplated under sub Section (1) of Section 50 of the Act was given to the appellant. Assistant Sub Inspector Joginder Singh PW5 in this regard did support the prosecution case pertaining to the offer that was given to the appellant contemplated under sub section (1) of Section 50 of the Act. But in the peculiar facts, it becomes difficult to act on his sole testimony which is not fully corroborated by the shaky statement made by the other official witness.

Otherwise also, all was not well about the case property being kept in the Malkhana and the chance of tampering could not be ruled out. Assistant Sub Inspector Joginder Singh during crossexamination had admitted that opium was taken from the Malkhana on 27.4.1993 to be taken to the Court of Judicial Magistrate but there is no such entry in the Malkhana register. The very credibility in the Malkhana in the facts of the present case is badly affected. It must, therefore, be held that the property could not have been said to be in custody where it could not be tampered with. The care required to be taken was ignored.

For these reasons given above, the appellant must be held entitled to the benefit of doubt. Accordingly, this appeal is accepted. The judgment and order of sentence are set aside. The accused appellant be set at liberty, if not required in any other case.