Balbir Singh vs Punjab State

R.L. Anand, J.

This is a criminal appeal filed by Balbir Singh, and has been directed against the judgment and order dated 7.4.1999 passed by the court of Addl. Sessions Judge, Ludhiana, 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 period of 10 years and to pay a fine of Rs. 1 lac; 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 15.12.1997 ASI Darshan Mal of Police Station Dakha along with HC Gulzar Singh, Gurdev Singh and Kulwant Singh, Constables, went for patrolling and nakabandi on private scooters. They were present on the bridge of the canal in the area of village Bassian Bet. In the meanwhile, the appellant was found coming from the side of village Bassian Bet a about 3 PM. On seeing the police party, the appellant felt perplexed and tried to take a turn along the bank of the canal. However, on the basis of suspicion, he was apprehended. At that time, the appellant was carrying a plastic bag on his head. The appellant was made aware by the I.O. that he wanted to conduct his search and in case he so desires, some gazetted officer or Magistrate could be called. The accused, however, reposed confidence in the I.O. for the search. Consent statement, Ex.PA, was recorded, which was thumb marked by the appellant and attested by HC Gulzar Singh and Constable Kulwant Singh. Thereafter, the I.O. conducted the search of the bag and poppy husk was found. Accused could not produce any licence or permit for the possession of the same. Two samples of poppy husk each weighing 250 grams were drawn from the poppy husk in the plastic bag. They were converted into two separate parcels and sealed with the seal bearing inscription `DM''. The remaining poppy husk came out to be 20 kgs. It was, again, put in the same plastic bag, which was sealed with the seal bearing inscription `DM''. Impression of the seal used was retained on the chit Ex. P1. Seal after use was handed over to HC Gulzar Singh. The entire case property was taken into possession vide recovery memo, Ex.PG, attested by HC Gulzar Singh and Constable Kulwant Singh. Thereafter, a ruqa, Ex.PE, was sent to the police station for the registration of the case, on the basis of which formal FIR, Ex.PE/1, was recorded. From the personal search of the appellant, a sum of Rs. 25/ was recovered and the same was taken into possession vide recovery memo, Ex.PC. The I.O. prepared the rough site plan of the place of recovery. Appellant was formally arrested after disclosing the grounds of arrest, Ex.PD. The statements of the witnesses were recorded and on return to the police station, the entire case property and the accused were produced before Mohan Singh, SHO, who verified the investigation and resealed the case property with his own seal bearing inscription `MS''. Impression of the seal used was retained in chit, Ex.P1. Mohan Singh, SHO, deposited the case property with the MHC on the same day. On 16.12.1997, the accused and the case property were taken by the I.O. from MHC Kewal Singh and produced before the Magistrate vide request, Ex.PG. and the order, Ex.PG/1, was passed by the Magistrate. On the same day, the I.O. deposited the case property with the MHC. One part of the sample was sent to the office of the Chemical Examiner, who vide report, Ex.PK, declared the contents as chura of the poppy head containing meconic acid and morphine.

On the completion of the investigation of the case, the appellant was challaned in the Court of the Special Judge, who supplied the copies of the documents free of cost as required under the law and vide order dated 10.3.1998, the accused was chargesheeted u/e 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 Gulzar Singh, PW1, ASI Darshan Lal, PW2 SI, Mohan Singh, PW3 and HC Kewal Singh, PW4. The affidavit, Ex.PK of Baldev Singh was also tendered. The prosecution gave up Constable Kulwant Singh and Shri Raj Kumar Garg, JMIC, Ludhiana, as unnecessary. Finally, the prosecution tendered into evidence the report of the Chemical Examiner, Ex.PK, and closed the case.

On the closure of the prosecution evidence, the 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 appellant. The appellant denied those circumstances and stated that nothing was recovered from his possession and that he has been falsely implicated in this case.

When called upon to enter into defence, the accused did not lead any evidence.

The learned trial Court, however, 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 K.S. Ahluwalia, Advocate, on behalf of the appellant and Shri S.S. Randhawa, DAG, Punjab, appearing on behalf of the State, and with their assistance have gone through the record of this case.

It was submitted on behalf of the counsel for the appellant that Section 50 of the Act has not been complied with in this case in letter and spirit. The learned counsel for the appellant submitted that section 50 of the Act has been introduced into the Act with a specific purpose to guard the rights of the accused. Section 50 of the Act confers a very valuable right upon the accused giving him an option as to whether he wanted to be searched in the presence of a gazetted officer or a Magistrate. The counsel submitted that when the accused had allegedly reposed confidence in the I.O. shedding his right to be searched in the presence of a gazetted officer or a Magistrate, in such a situation, his statement should have been verified or attested by an independent witness, so as to lend confidence in the mind of this court about the genuineness of this case.

I agree with the contention of the counsel for the appellant. If the I.O. had the opportunity to associate an independent witness and if the accused reposes confidence in the police party, in such a situation, such statement should be invariably attested by an independent witness. In the present case, the recovery has been effected from a public place at 3 P.M. The police party remained at the spot for hours together. The I.O. had ample opportunity to get attestation on the statement of the appellant, who is an illiterate person as is evident from the thumb impression which he put on the statement, Ex.PA, which has only been attested by HC Gulzar Singh and Constable Kulwant Singh. By nonassociation of an independent witness by the I.O., a doubt has crept in the mind of this court about the genuineness of the statement, Ex.PA. It has been held in State of Punjab v. Om Parkash, 1996(3) RCR 145 in para5 as follows :

"5. The investigating Officer (P.W. 2) did not state in his evidence that he informed the accused of the grounds of arrest or that he sent intimation to the superior officer about the arrest of the accused. By failing to do so, the investigation agency has failed to comply with the provisions of Sections 52 and 57 of the NDPS Act. Of course, the provisions of both sections 52 and 57 of the said Act are not mandatory, and the accused will have to establish prejudice to earn acquittal. When the investigating officer does not send a report immediately to the superiors, then the accused loses an opportunity to bring forth before the court the material, namely, the report to be sent by the investigating agency to the superior officer, so that the court can crosscheck and find out whether the allegations in the FIR and the evidence put forth before the Court are true. To that extent there will be prejudice to the accused. But whatever it is, the prosecution has to fail on the sole ground that there was no compliance with the provisions of section 50 of the Act in view of the Division Bench decision of this court in Amrik Singh v. State of Haryana, 1990(2) RCR 525. It was held in that case as follows :

"To give meaning and content to the clear legislative intent underlying the safeguard provided by Section 50 of the Act cogent and reliable evidence and not merely the statement of a Police Officer, must be brought on record to establish that the person to be searched was informed of his right to be searched in the presence of a gazetted officer or Magistrate, but he chose to decline this offer. In Sudarshan Kumar''s case, (supra), it has no doubt been suggested that such offer should be made before two reliable and independent witnesses, but with respect, it would be appropriate and more in consonance with the interests of justice that as a rule of general practice, the person apprehended should be taken before a gazetted officer or Magistrate and searched in his presence. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Search otherwise than before a gazetted officer or Magistrate should, therefore, be the exception and that too for sound and convincing reasons founded upon reliable material on record, the onus of showing that the person to be searched declined such option being upon the prosecution."

So, on this short ground that the provisions of section 50 of the Act have not been effectively complied with, the prosecution has to fail. The prosecution cannot, by simply producing a memo, that too alleged to have been got from an illiterate person, and without associating an independent witness, be heard to say that the accused reposed confidence in the investigating agency and agreed to be searched by the investigating officer. So, we find no ground to interfere with the judgment of the trial court."

This view has also been followed in Randhir Singh v. State of Haryana, 1999(1) RCR(Criminal) 734 and State of Punjab v. Bhola Singh, 1998(3) RCR(Criminal) 717.

In the present case, PW1 HC Gulzar Singh admits in his crossexamination as follows :

"Place of recovery is a thoroughfare. The road is connecting village Khanjarwal and Bassian Bet. We remained at the spot for about 4/5 hours. During this period number of persons passed by that side."

The above statement of HC Gulzar Singh would show that inspite of the fact that ample opportunity was there on the part of the I.O. to associate an independent witness to give authenticity to the statement, Ex.PA. Non association of an independent witness has created a reasonable doubt in the mind of this court about the genuineness of the story of the prosecution.

The learned State counsel has, however, contended that even if no independent witness has been associated, still conviction can be based on the testimony of the police officials.

I partly accept the contention of the learned State counsel that conviction can be based on the testimony of the police officials but here is a noncompliance of procedure. Section 50 of the Act is mandatory as held in State of Punjab v. Balbir Singh, 1994(1) RCR 736. When a procedure has not been complied with in a proper manner, the seizure and the recovery will become illegal. In this case, the mandatory provisions of section 50 of the Act have not been complied with in a proper manner.

Resultantly, I accept 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, Central Jail, Ludhiana, so that the appellant should be set at large forthwith, if not required in any other case.