Baldev Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 19.1.1996, passed by the court of Addl. Sessions Judge, Amritsar, who convicted the appellant Baldev Singh u/s 21 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 two years.

Baldev Singh s/o Ajit Singh s/o Natha Singh r/o Attari, District Amritsar, faced charge in the trial Court on the allegation that on 8.9.1988 in the area of Village Kot Khalsa, District Amritsar, he was allegedly found in possession of 19 Kgs. of Heroin (Smack) by way of 1 packets of heroin, each containing 1 Kg. and thereby he committed an offence punishable u/s 21 of the Act. It may be mentioned here at the first instance that earlier the appellant was chargesheeted u/s 17 of the Act due to mistake on 19.9.1990 but this charge was later on amended on 9.11.1993 and after the framing of the charge, the appellant pleaded not guilty to the same and claimed a trial.

The story of the prosecution can be described as follows :

On 8.9.1988, Inspector Sukhdev Singh SHO Police Station Sadar, Amritsar, along with HC Joginder Singh, HC Ajmer Singh, HC Kulwant Singh and other members of the police party were travelling in a vehicle driven by Constable Kashmir Singh. One more police party comprised of Sita Ram, Inspector (Anti Smuggling Staff) along with ASI Kuldip Singh and others were travelling in a govt. jeep driven by Constable Laljit Singh and this police party was being supervised by Tajinderpal Singh, DSP. Both the police parties were proceeding from the side of Kot Khalsa towards the G.T. Road near Khalsa College, after patrolling the area of village Dhapai. When the police vehicles were a little behind the railway crossing, 3 persons were noticed coming and they were carrying trunks on their respective heads. On seeing the police party, they at once took a turn towards the road. On suspicion, they were chased under the directions of the DSP. Out of the 3 persons, one was apprehended by Inspector Sukhdev Singh. He was interrogated. He disclosed his name as Baldev Singh alias Bhiti, s/o Ajit Singh caste Mehra, r/o Attari. He was apprehended along with the trunks. The other two persons accompanying the present appellant were also apprehended. Sita Ram, Inspector, apprehended Puran Singh s/o Teja Singh, caste Mazbhi, r/o Village Bhandial, along with the trunk and out of his possession, 20 packets of Smack (Brown Sugar) were recovered. ASI Atma Singh, one of the members of the police party, apprehended Bakshish Singh s/o Tarlok Singh, caste Mazbhi, r/o Village Kucha Killa, Attari, and from his possession 20 packets of smack were recovered. Sukhdev Singh, Inspector, told the appellant that his personal search was to be conducted and whether he wanted to give his personal search before the DSP. The appellant stated that he has no objection if his person was searched by Inspector Sukhdev Singh. Thereafter, in the presence of the witnesses, the Inspector took the search of the person of the appellant as well as of the trunk, which was being carried by the appellant. From the personal search of the appellant, a key was found from the right pocket of the pant and with the help of that key, the lock of the trunk was opened. 19 packets of smack (Brown Sugar) were recovered from that trunk. Those packets were wrapped in glazed papers and were stitched with clothes. Before that, those packets were weighed. Each packet weighed 1 Kg. In this manner, Smack weighing 19 kg was recovered. Inspector separated 10 gm. of smack from each of the packets for the purpose of sample and sealed the same with his own seal bearing inscription "SS". The remaining bulk of packets were separately sealed. The key was also taken into possession separately. Appellant could not produce any licence or permit for the possession of the smack. Resultantly, Ruqa was sent to the police station for the registration of the case u/ss. 17/18 of the Act, on the basis of which formal FIR 374 was recorded against the present appellant as well as his companions. The I.O. also prepared the rough site plan of the place of recovery. He recorded the statements of the witnesses and on return to the police station, he deposited the case property with the Maharrir Head Constable with seals intact. Ultimately, the sample of Brown Sugar was sent to the office of the chemical examiner, who vide report, Ex. PE, declared the presence of Diacetyl Morphine, which was an active ingredient of smack. The percentage of Diacetyl Morphine in each packet was mentioned in the report itself starting from 4.20% to 4.40%. On the completion of the investigation of the case, the appellant was challaned in the court of the Illaqa Magistrate, who supplied the copies of the documents to the appellant free of cost as required under the law and vide commitment order dated 28.8.1990, committed the appellant to the court of Sessions to face trial u/ss 17/18 of the Act. As I have stated earlier, the appellant was chargesheeted u/s 17 of the Act on 19.9.1990. This mistake was later on rectified by the trial court on 9.11.1993 and the appellant was chargesheeted u/s 21 of the Act. The charge was read over and explained to the appellant, who pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution tendered into evidence, the affidavit of Moharrir Head Constable Tirath Singh, PW1, and affidavit of Constable Angrez Singh, PW2. HC Ajmer Singh appeared as PW3, Inspector Sukhdev Singh, who became DSP by the time he gave his statement on 2.12.1994, appeared as PW4 and Tajinderpal Singh, DSP, who was supervising the police party, appeared as PW5. The prosecution also tendered into evidence the report, ex. PE, of the Chemical Examiner and closed the case.

The statement of the accused was recorded u/s 313, Cr.P.C. and all the incriminating circumstances were put to the accused. Accused denied those circumstances and stated as follows :

"I am innocent. I was arrested from my house at Attari on 27.8.1988 and was detained illegally by the police and later on, I was involved in the present case, whereas, nothing was recovered from me."

When called upon to enter his defence, the accused examined HC Malkiat Singh, who could not bring the Roznamcha dated 9.9.1988 because it had already been destroyed. He brought register No. 19 and deposed that entry regarding the deposit of the case property has been mentioned at Sr. No. 941. According to this register, 19 samples were taken out from the Malkhana and entry to this effect was made on 13.2.1991.

I will presently show that there is a mistake with regard to entry dated 13.2.1991 because the report of the Chemical examiner indicates that the sample of the Brown Sugar was received on 13.10.1988. This witness further deposed in defence that as per entry No. 942, the sample of the case was sent to the office of the Chemical Examiner on 11.10.1988 and for this reason, it has been rightly remarked by the Director, Forensic Science Laboratory, that the sample of this case property was received in the shape of 19 packets, each sealed with the seal of "SS" on 12.10.1988.

The learned trial court convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction and sentence, the present appeal which I am disposing of with the assistance rendered by Mr. A.S. Sandhu, counsel for the appellant and Mr. S.K. Sharma, DAG, Punjab, for the respondents, and with their assistance have gone through the record of this case.

Before I give my findings on the submissions raised by the counsel for the parties, It will be useful for me to first refer to the substantive statement made by Inspector Sukhdev Singh and the corroborative statement made by HC Ajmer Singh and Tajinderpal Singh, DSP, who appeared as PW4, PW3 and PW5, respectively. According to Sukhdev Singh, on the relevant day, he was posted as Inspector in Police Station Sadar, Amritsar. He along with the police party consisting of HC Ajmer Singh, HC Kulwant Singh, Constable Milkha Singh and others constituted one police party. DSP Tajinderpal Singh and others were constituting a different police party. Both the police parties were in separate Govt. vehicles. The police party was in 3 groups and was proceeding towards Khalsa College after patrolling the area of village Dhapai. When the police party was a little behind the railway crossing of Kot Khalsa, 3 persons were spotted and at that time they were carrying trunks on their respective heads. All the 3 persons tried to take a turn on seeing the police party. It was about 10 PM at the time when all those 3 persons were caught on the directions of the DSP. Baldev Singh was arrested by this witness. After his arrest, Inspector Sukhdev Singh asked from the appellant whether he wanted to be searched by a gazetted officer whereupon the appellant told to the Inspector that he had full faith in him and he wanted to be searched by him. Appellant was directed to open the trunk. He took out the key from the right pocket of his pant and opened the trunk. The trunk contained 19 packets of Brown Sugar wrapped in glazed paper and thereafter in a piece of cloth separately. Inspector took out 10 gm. of sample from each packet which sample was put in a sealed tin. 19 samples each weighing 10 grams, were sealed with his own sealed bearing inscription "SS". The case property was taken into possession vide recovery memo Ex. PA. The seal after use was handed over to HC Ajmer Singh. According to this witness, ruqa, Ex. PC, was sent to the Police Station Sadar, Amritsar for the registration of the case, on the basis of which, formal FIR, Ex. PC/1, was recorded by SI Randhir Singh. It has further been deposed by this witness that from the possession of the present accused a sum of Rs. 240/ were recovered and this currency was taken into possession vide recovery memo, Ex. PB, which was thumb marked by the appellant and attested by HC Ajmer Singh and HC Kulwant Singh. The case property was deposited with the Moharrir Head Constable with the seals intact. The witness further deposed that he did not tamper with the case property as long as it remained with him. The case property was also produced along with the accused before Tajinderpal Singh, DSP.

The statement of this witness has been corroborated in material particulars by HC Ajmer Singh, PW3. PW5 Tajinderpal Singh, DSP, deposed that on the relevant date of recovery, he was posted as DSP(R), Amritsar, and was supervising the 3 groups of the police party. The accused was arrested at about 9 PM and from his possession Brown Sugar weighing 19 kgs. was recovered when it was found lying in a trunk.

The appellant is not satisfied with the judgment of the trial court and the same has been assailed firstly on the ground that the mandatory provisions of section 50 of the Act have not been complied with in this case. In support of his contention, the learned counsel for the appellant has relied upon Tarsem alias Sema v. State of Punjab, 1997(1) RCR 286 , Narain v. State of Haryana, 1997(1) RCR 414 , Prem v. State of Haryana, 1997(1) RCR 554 , State of Punjab v. Labh Singh, 1997(1) RCR 565, a judgment of the Hon''ble Supreme Court, Ravinder Singh v. State of Punjab, 1997(1) RCR 720 and Sohan Lal v. State of Punjab, 1997(1) RCR 783.

I have gone through the citations relied upon by the counsel for the appellant and in my opinion, these judgments are not helpful to him. So far as the proposition of law is concerned, there is no quarrel that the provisions of section 50 of the Act are mandatory in character as held by the Hon''ble Supreme Court of India in the famous judgment of State of Punjab v. Balbir Singh, 1994(1) RCR 736 . The Hon''ble Supreme Court has also taken the view in Mohinder Kumar v. The State, Panaji, Goa, 1995(2) RCR 599, that the provisions of section 50 of the Act will come into play from the stage when the police finds and suspicion arose in the mind of the I.O. that the accused had committed an offence under Chapter IV of the Act. In this regard, I will like to reproduce para27 sub para1 of the judgment in Balbir Singh''s case (supra), which reads as under :

"If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act."

Now, it is to be seen under what circumstances the provisions of section 50 of the Act are to be applied. According to this section, 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 the nearest Magistrate.

Present is at recovery purely per chance. It falls u/s 43 of the Act because the recovery has been effected from a public place. In these circumstances, section 50 of the Act will come into play only if the seizing officer had reasons to believe that the offence punishable under Chapter IV of the Act has been committed. Every conceiving of reasons to believe that some offence has been committed would not attract the provisions of section 50 of the Act. Section 50 of the Act would come into play only if the Seizing Officer had conceived the reasons to believe that the offence punishable under Chapter IV has been committed. If, at no stage, the belief of the Seizing Officer was that the appellant was in possession of heroin/smack before the start of the proceedings, in the opinion of this court, the provisions of section 50 will not come into play, rather the observations of the Supreme Court in para27 sub para1 of the judgment quoted above would come into play. Now, it is to be seen what conversation took place between the appellant and the Inspector before the start of the search proceedings. At no point of time, the Seizing Officer, PW4 had told to the appellant that he had a suspicion that the latter was carrying smack in the truck. In these circumstances, it was not obligatory on the part of the Seizing Officer to comply with the provisions of section 50 of the Act. The judgments relied upon by the learned counsel for the appellant are, on the fact of it, distinguishable. In Tarsem alias Sema''s case (supra), the observations of the Single Bench was that the provisions of section 50 are supposed to be complied with from the stage when the police finds that the accused is roaming about in suspicious circumstances and suspicion arose that the accused was in possession of contraband and such possession of contraband is an offence under the Act. In Narain''s case (supra) also, this suspicion arose in the mind of the I.O. Similarly in Prem''s case (supra), his Lordship has again held that section 50 would come into play when the conduct of the accused arose suspicion that he was in possession of contraband. In the case of Labh Singh (supra), the Hon''ble Supreme Court again relied upon the judgment in Balbir Singh''s case (supra) besides the judgment in State of Himachal Pardesh v. Pirthi Chand and another, 1996(2) RCR (Crl.) 759 (SC) : 1996(2) SCC 37, and it was remarked by the Hon''ble Supreme Court that "Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down. The Court has to consider each case on its own setting". The other citations relied upon by the counsel for the appellant are also not helpful to him.

It was, then, submitted by the counsel for the appellant that no independent witness has been associated in this case and, therefore, the recovery becomes doubtful. Association of independent witnesses is a rule of prudence and not a rule of law because the Hon''ble Supreme Court has several times laid down that the police officials are as good witnesses as nonpolice officials. It depends upon the quality of the evidence which has come on the record. Of course, gospel and whimsical statements of the police officials cannot be believed and if those police officials have been crossexamined at length and no reasonable suspicion has been created in the mind of the court about the genuineness of the statements of such witnesses, the court can always rely upon the testimony of such witnesses. In this case, the recovery was effected at about 10 PM, of course from a public place. There were several members of the police party. In these circumstances, it is highly unlikely that the I.O. of this case would plant smack, the value of which in the international marker is Rs. 19 crores, from his personal pocket. The present recovery was effected in the year 1988, during those days, nobody would like to move from his house after sun seton account of terror. The State was burning during those days. Nobody would like to be entangled in any controversy much less in a case of those who are bootleggers and were carrying a huge quantity of smack, suggestive of the fact that the appellant and his two companions were smugglers. Everybody would like to avoid entering into any controversy. If the independent witnesses have not been associated by the I.O., it is not fatal in the present set of circumstances. I cannot lose sight of the fact that one gazetted officer was already with the police party. The appellant has not come with any defence that the smack has been planted upon him. His plea is only of denial which cannot to readily accepted. Neither the appellant nor any relation of his had made any complaint to the higher authorities that the appellant has been arrested in an illegal manner or that he was likely to be roped in a false case.

It was, then, submitted by the counsel for the appellant that the case property in this case was sent to the Chemical Examiner on 11.10.1988 when the recovery was effected on 9.8.1988. Moreover, as per the statement of DW1, the case property was sent on 13.2.1991. The statement of Malkiat Singh, Head Constable, definitely, cannot be acted upon because of the certificate given by the Chemical examiner. According to the report of the Director, Forensic Science Laboratory, the sample was received in the Laboratory on 12.10.1988 with seals intact. Mere late despatch of the case property per se is not fatal so long the seals of the case property were found intact by the Chemical Examiner and when those tallied with the specimen seal. Right from the stage when the case property was handed over to Moharrir Head Constable and sent to the office of the Chemical Examiner, the prosecution examined two witnesses on affidavit. These affidavits are Exh. PW1 and PW2. Opportunity was given to the accused to crossexamine these witnesses but not an iota of suggestion was put to them that their statements were wrong. In these circumstances, it cannot be readily inferred for the advantage of the appellant that the case of the prosecution becomes doubtful on account of the alleged tampering of the seals. The argument is without any basis.

It was, then, submitted by the counsel for the appellant that the case property has been changed. In support of his contention, the counsel for the appellant wants to rely upon the statement of PW4 Sukhdev Singh, I.O. It was stated by this witness that "It is correct that brown sugar was in the shape of a powder. The case property produced today in the court and is seen by me is in the shape of solid like a stone and is not a powder. This was in the shape of a powder at the time of apprehension". This part of the statement of the I.O. does not help the appellant. The witness was examined in the year 1994. The sample was sent to the office of the Chemical Examiner in the year 1988. With the passage of time, if the air goes inside the packets, the formation of the powder is bound to change. Moreover, it has already been certified by the Chemical Examiner that the representative samples of the case property contained active ingredient Diacetyl Morphine. Morphine was found to the extent of 4.20% to 4.40%. Thus, it becomes a narcotic drug. The accused did not examine any Chemical Examiner, or any other Expert to show that with the passage of time, the contents of Brown Sugar/Smack will not change. The counsel for the appellant relied upon Jarnail Singh v. State of Haryana, 1997(4) RCR 657 and Surjit Singh v. State of Punjab, 1997(3) RCR 351 and submitted that since the case property had been changed, therefore, the appellant is entitled to acquittal. Both the citations are not helpful to the appellant. In Jarnail Singh''s case (supra) his Lordship simply laid down that the police shall keep the case property in safe custody and the same should be preserved not only upto the stage of trial but at the stage of appeal and revisional stage also. Some suggestions were also recommended that property rooms should be constructed for each criminal court for safe custody of the property to avoid malpractices. Nobody differs with this proposition but in the present case it is not established on the record that any point of time, the prosecution wanted to change the case property nor it can be for the benefit of the prosecution. Delay sometimes does occur in the trial and this has also happened in the present case. It cannot be said that with the delay of the trial, the liberty of the appellant has been affected. It cannot lose sight of the fact that the present is a recovery of those days, when there was terrorism at the peak in the State. The primary duty of the police officials was to apprehend the terrorists to curtail the wave of terrorism. If the case property had changed its shape from powder to stone, it can be due to other reasons but it cannot be said that the I.O. changed the case property for his own benefit or for the benefit of anybody else. The case of Surjit Singh (supra), if read between the lines, also stands on a different footing. His Lordship never took a single circumstance for the benefit of the accused. In the said case, independent witness was present but in spite of the presence of the independent witness the seal used for sealing the property was not handed over to him. Moreover, the property was changed before the decisions of the appeal/revision. Here the property has not been changed. It cannot be said with certainty that with the passage of time, Morphine contents had been reduced or evaporated. There is not an iota of evidence to that effect. The counsel also placed reliance upon Makhan Chand v. State of Punjab, 1997(2) RCR 576. This judgment is also not applicable. It was proved on the record that there was no dearth of witnesses at the place and time when the recovery was effected. It was also proved from the evidence that compliance of section 50 of the Act is bound to be done. Every case has to depend upon its own facts as stated by the. Hon''ble Supreme Court. In such like cases, facts of one case cannot become a precedent for the other unless those facts are all fours.

The basic point in this appeal is whether the provisions of section 50 of the Act are applicable. I have already stated above that it is a case of recovery purely by chance and as per para27 subpara1 of the judgment of the Hon''ble Supreme Court in Balbir Singh''s case (supra), the mandatory provisions of section 50 of the Act are not applicable. I have also held that since the recovery was at night time and during sensitive days, it cannot be possible for the general public to roam during the night time for safety reasons. The case property in this case had reached intact with the Chemical Examiner on 11.10.1988, delay in sending the sample per se is not fatal to the prosecution. The cumulative effect of the circumstances proved on the record tend to show that 19 kgs. of heroin costing about Rs. 19 crores has been recovered from the possession of the appellant and the possession is fully established from the statements of PW3 and PW4 besides the statement of PW5 and their statements cannot be brushed aside simply on the ground that they belong to the police department.

No other point was urged before me.

Resultantly, I do not find any merit in this appeal and the same is hereby dismissed.