Balwinder Singh vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Balwinder Singh (hereinafter described as the appellant/accused) directed against the judgment and order of sentence passed by the learned Additional Sessions Judge, Patiala, dated 4th February, 1994. By virtue of the impugned judgment and order of sentence, the learned trial Court held the appellant guilty of the offence punishable under Section 18 of the Narcotic Drugs and Psychotopic Substances Act, 1985 (hereinafter described as the Act). The appellant was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lac. In default of payment of fine he was to further undergo rigorous imprisonment for two years.

The relevant facts are that on 9.4.1991, SubInspector Sukwinder Singh who was posted as Officer Incharge of Police Station Julkan, accompanied by Head Constable Amrik Singh and Constable Balwinder Singh besides others had held a Nakabandi on the bridge of Tangri in the area of village Hari Garh. In the meantime Balbir Singh s/o Chajju Ram came there. At about 2 p.m. the appellant alighted from the Bus which had come from the side of Pehwa.

The appellant started going towards the side of Hari Garh. He was having a bag on his right shoulder. He was stopped on suspicion that he was carrying opium or poppy husk in his bag.

The appellant was informed that he was to be searched. He was told that if he liked, search could be effected in the presence of the Gazetted Officer or a Magistrate. The appellant declined the offer and signed a statement in this regard. The bag was searched. It was found to contain opium wrapped in a glazed paper. The contents were weighed and was found to be five kilograms. 10 grams was taken as sample. Sample and rest of the opium were converted into two parcels, and sealed with the seal of ''S.S.''. Packet was taken into his possession vide a recovery memo. It was attested by H.C. Amrik Singh and Balbir Singh s/o Chajju Ram.

SubInspector, Sukhwinder Singh sent a Ruqa through Constable Major Singh to Police Station. On the basis of this, formal F.I.R. was recorded by M.H.C. Gurdial Singh. Rough site plan was prepared. The accused was arrested. The articles seized were deposited in the Malkhana. Subsequently representative sample was sent to the Chemical Examiner. On receipt of the report it was found that its contents were opium. Final report against the appellant was submitted under Section 173 Cr.P.C.

On 4th of October, 1991 charge was framed against the appellant for the offence punishable under Section 18 of the Act. The prosecution examined three witnesses. The defence of the accused was that he has been falsely implicated.

The learned trial court on appraisal of the evidence and the respective contentions raised, concluded that the prosecution has successfully proved its case beyond all reasonable doubt. The learned trial court has fully discussed the contention with regard to noncompliance of certain provisions of the Act. This led to the passing of impugned judgment and order of sentence.

Subsection (1) of Section 50 of the Act reads as under :

"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 the nearest Magistrate."

A glance to the provisions quoted above shows that if search of any person is to be affected and such a person so requires, then his person can only be searched in the presence of nearest Magistrate or Gazetted Officer. The controversy whether such provisions are mandatory or directory, has been set at rest by the Supreme Court in State of Punjab v. Balbir Singh, JT 1994(2) SC 108. The Supreme Court while replying to the abovesaid question gave the following answer :

"On prior information, the empowered officer or authorised Officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search 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. Failure 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 section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact."

The provisions are thus mandatory in nature.

The facts of the present case reveal that it is in the evidence of S.I. Sukhminder Singh as well as H.C. Amrik Singh that the appellant was informed in terms that if he likes his person can be searched before a Gazetted Officer or a Magistrate and the appellant replied that he had full faith in them. Testimony gets corroboration from Exh. P.A. which is signed by the appellant. The appellant did not accept the offer as such. In the face of the aforesaid, the conclusion becomes inescapable that the desired offer was given to the appellant. There is no other material to permit the court to draw any adverse inference against the State. In the absence of there being any other ground I hold that the compliance of Section 50(1) of the Act has been effected.

The feeble attempt made to draw the benefit of Section 55 of the Act fails because under the said provisions, a duty has been cast on the officer incharge of police Station to affix his seal on the recovered property, so that the officer can permit the sample to be taken. It is the statutory obligation of the officer incharge of the Police Station. S.I. Sukhminder Singh was himself incharge of the Police Station and he had investigated the case, affixed his seal on the sample and arrested the appellant. Therefore, I hold that in the facts of this case, there was compliance of the provisions of section 55 of the Act.

There are only three police officers who were examined. Consequently public witness joined in the raid was given up as having been won over by the appellant. Instead he appeared as defence witness. He deposed in the trial court that he had not joined any police party headed by S.I. Sukhminder Singh. The witness went on saying that the appellant was not arrested in his presence nor any recovery was effected from the appellant. Version of the witness was that he had gone to police station Julkan and his signatures were obtained on 23 blank papers. During the cross examination he admitted that he came to know that a false case has been registered against the appellant before a year back. He had not taken any action. Appraisal of the statement of the witness shows that he is on low moral fibre. It is not being denied that he signed the relevant papers relied upon by the prosecution. According to him the same were blank, but as already mentioned above he had not pointed out on earlier occasion that his signatures has been obtained on blank papers. The statement of this witness cannot be accepted on its face value and one is constrained to observe that he was not telling the truth. The learned Public Prosecutor had given him up being won over by the appellant.

The testimony of Sukhminder Singh S.I. PW 1, H.C. Amrik Singh PW 2 was assailed on the ground that they were official witnesses, interested in the success of the case and no conviction should be based on their testimony.

The case of Hazari Lal v. The State (Delhi Admn.), 1980(1) Cr.LJ. 564 provides guidelines. The Supreme Court held :

"We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case, a court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case, the court may unhesitatingly accept the evidence of such an officer."

As a matter of caution the Supreme Court further concluded that it is a matter of appreciation of evidence and there can be no hard and fast rule of any precedential guidance. Consequently the arguments of the learned counsel for the appellant in this behalf must fail.

Appraisal of the statement of S.I. Sukhminder Singh shows that though he was subjected to crossexamination on behalf of the appellant but he has not been able to shake his testimony. The statement of the witness is consistent. He gets support from the statement of H.C. Amrik Singh PW2. In addition to that there is no assertion as to why he would be interested to implicate the appellant falsely. In that background there is no ground to reject their testimony whereby it is established that the alleged opium was recovered from the appellant.

The appellant examined Lehna Singh DW. 2 According to this witness on 9.4.1991, at about 10 a.m. police of Police Station Julka had conducted a raid in their village. In his presence the house of the appellant was searched, nothing was recovered. The appellant was taken to police station. On the next day he received information that the appellant is falsely implicated. During crossexamination this witness stated that he did not render any other help to the appellant. He even did not lodge any complaint before the higher authorities.

What is important in this regard is that when the appellant was examined in terms of Section 313 of the Criminal Procedure Code, he did not make any statement that in the presence of Lehna Singh his house was searched and nothing was recovered. Specific suggestion was not even given to the prosecution witnesses. In these circumstances Lehna Singh DW 2 does not inspire much confidence with respect to his testimony.

For all these reasons given above, the learned trial Court has rightly believed the prosecution witnesses who have proved its case beyond all reasonable doubt.

For these reasons, appeal fails and is dismissed.