Bhola vs Union Territory of Chandigarh

R.L. Anand, J.—This is a criminal appeal and has been directed against the judgment dated 23.9.1996 passed by the Court of Additional Sessions Judge, Chandigarh vide which the learned Additional Sessions Judge convicted the Appellant Sri Bhola Son of Shri Bant Singh u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as �the Act�) and this appeal is further directed against the order dated 28.9.1996 vide which Appellant Bhola was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac. In default of payment of fine, the Appellant was directed to further undergo rigorous imprisonment for one year.

The brief facts of the case are that on 23.12.1995 the Appellant was allegedly found in possession of 14 kgs. of poppy husk in the area of Sector 22B. Chandigarh by S.I. Jarnail Singh P.W. 8, who was present in that area along with other members of the police party, in connection with patrolling.P.Ws. Harish Sharma and Avtar Singh were also the members of the police party. Appellant appeared there and on seeing the police party, he tried to retrace his steps and on the basis of suspicion, he was apprehended by S.I. Jarnail Singh P.W. 8, who enquired from the Appellant about his option to be searched either in the presence of a Gazetted Officer or a Magistrate. The Appellant told to Shri Jarnail Singh, S.I. that he had no objection if he was searched by any of the said officers. Resultantly, S.I. Jarnail Singh flashed a wireless message through his control room at which D.S.P. Satnam Singh Randhawa reached at the spot. Shri Randhawa also disclosed his identity to the Appellant and asked whether he wanted to give the search in his presence or some Magistrate, on which the Appellant replied that he had no objection if the search may be taken in the presence of D.S.P. Then Shri Randhawa directed S.I. Jarnail Singh to take the search of the Appellant, who was earlier apprehended on the basis of suspicion that he was carrying some contraband. The search of the Appellant was taken by S.I. Jarnail Singh and poppy husk was found which weighed 14 kgs. A sample of 500 grams of poppy husk was separated and a sealed parcel was prepared. The remaining poppy husk was also sealed in a different parcel with the seal of S.I. Jarnail Singh bearing inscription J.S.� and the seal after use was handed over to P.W. Harish Sharma. The sample along with parcel Ex. P1 was taken into custody vide recovery memo Ex. PE attested by the marginal witnesses. On further search of the Appellant, one wrist watch, Rs. 52 and one purse were also recovered and these articles were also taken into possession vide memo Ex. PE/1. The Investigating Officer S.I. Jarnail Singh also prepared the rough site plan Ex. PF of the place of recovery with correct marginal notes. The Appellant could not produce any licence or permit for the possession of the poppy husk. Resultantly, ruqa Ex. PB was sent to Police Station Central, Sector 17. Chandigarh on the basis of which formal F.I.R. was recorded. The Appellant later on was produced before Arjun Singh Jaggi, S.H.O., Police Station, Central, Chandigarh, who re-sealed the case property with his own seal and thereafter the case property was ordered to be deposited with the M.H.C. of the police station. The sample of the poppy husk was sent to the office of the Director, F.S.L., Chandigarh, who vide report Ex. PG declared the contents as poppy husk and on completion of the investigation of the case the Appellant was challaned in the Court of Illaqua Magistrate, who supplied the copies of the documents and committed the Appellant to the Court of Session. Vide order dated 18.4.1996 the learned Additional Sessions Judge, Chandigarh, framed a charge u/s 15 of the Act against the Appellant on the allegations that on 23.11.1995 in the area of Sector 22B, Chandigarh the Appellant was allegedly found in possession of poppy husk weighing 14 kgs. without any licence or permit and thereby allegedly committed an offence punishable u/s 15 of the Act. The charge was read over and explained to the Appellant to which he pleaded not guilty and claimed trial.

In order to prove the charge against the Appellant, the prosecution examined in the trial Court H.C. Amrik Singh P.W. 1, who gave his statement by way of affidavit Ex. PA, S.I. Phool Singh P.W. 2 who proved ruqa Ex. PB and formal FIR. PB/1 ; Draftsman Jaswant Singh P.W. 3, who proved scaled site plan Ex. PC, M.M.H.C Dalip Singh P.W. 4, who proved DDR No. 46 dated 23.11.1995 with the help of Register No. 19 ; D.S.P. Satnam Singh Randhawa P.W. 5, Inspector A.S. Jaggi P.W. 6, who proved double seal ; Harish Sharma P.W. 7, the independent witness, and S.I. Jarnail Singh, P.W. 8, the Investigating Officer. Finally, the learned PP tendered in evidence the report Ex. PG of the office of Director, Forensic Science Laboratory, Chandigarh and closed the case after giving up P.W. Avtar Singh as having been won over by the Appellant.

The statement . of the Appellant was recorded u/s 313, Code of Criminal Procedure and all the incriminating circumstances appearing in the prosecution evidence were put to him. The Appellant denied those circumstances and stated as follows :

I am innocent. Nothing was recovered from me and I was unlawfully detained by the police in C.I.A. Staff on 19.11.1995 in some theft case and later on the present false case planted upon me and I was made victim of false recovery.

In defence he did not lead any evidence and closed the case.

The learned Additional Sessions Judge relied the story of the prosecution and rejected the defence version and convicted and sentenced the Appellant. Aggrieved by his conviction and sentence the present appeal, which I am disposing of with the assistance rendered by Shri T.S. Sangha, the Learned Counsel appearing on behalf of the Appellant, Shri Gautam Dutt, the Learned Counsel appearing for the standing counsel of U.T., Chandigarh and with their assistance, I have been-able to go through the records of this case.

Assailing the judgment and order of the trial Court and making an endeavour for acquittal, Shri Sangha submitted that the mandatory provisions of Section 50 of the Act have not been complied with so as to lend any confidence in the mind of the Court about the genuineness of the recovery and if this Court comes to the conclusion that Section 50 has not been honestly complied with by the Investigating Officer or by the D.S.P., the benefit of doubt should go to the Appellant. On the contrary, it was argued by the Learned Counsel for the Respondent that Section 50 in this case has been fully complied with and option was given to the Appellant whether he wanted to give the search in the presence of a Magistrate or a Gazetted Officer. This search was given in the presence of independent witnesses, out of whom one has appeared as P.W. 7. It was further argued by the counsel for the Respondent that the search in this case has been taken in the presence of a Gazetted Officer, who has no axe to grind against the Appellant and in view of the overwhelming evidence led by the Respondent the judgment and order of the trial Court should be upheld.

After considering the rival contentions of the parties, I am of the considered opinion that a reasonable doubt has come on the record and benefit of doubt should go to the Appellant. The provisions of Section 15 of the Act are very stringent in nature. The law on this aspect is that �stringent the punishment stricter the proof. In such like cases, the evidence of the prosecution has to be examined very zealously so as to excuse every chance of false implication. The question of liberty of an individual is involved. The offence, if proved beyond reasonable doubt, can lead to a maximum sentence of ten years with a fine of Rs. 1 lac. The case of the prosecution can be divided in two folds. Firstly, that S.I. Jarnail Singh gave the option to the Appellant to exercise his option u/s 50 of the Act. Further it is the case of the prosecution that the Appellant exercised his option in the presence of two independent witnesses and S.I. Jarnail Singh that he may call the Gazetted Officer. It is true that under the Narcotic Drugs and Psychotropic Substances Act, no form of notice has been prescribed. I am inclined to accept the oral statement of S.l. Jarnail Singh to the effect that he enquired orally from the Appellant whether he wanted to give the search in the presence of a Gazetted Officer or a Magistrate. If the Appellant had exercised his option in favour of a Gazetted Officer, in that eventuality at least the expectation of the Court goes higher. There was no bar on the part of S.I. Jarnail Singh to record the statement, even if corroborated by the statement of Shri Harish Sharma, cannot be accepted. The Investigating Officer prepared several documents according to the prosecution at the spot. There was no bar on the part of the Investigating Officer to record one line of the Appellant to the effect that he wanted to give his search in the presence of a Gazetted Officer. The non-recording of the statement of the Appellant by S.I. Jarnail Singh leads to a reasonable doubt in the mind of the Court about the genuineness of the recovery.

Now it is to be seen what D.S.P. Satnam Singh Randhawa has done on receipt of the wireless message. The statement of this witness does not stand on higher pedestal than that of S.l. Jarnail Singh. He also like his junior colleagues enquired from the Appellant whether he wanted to give the search in the presence of a Magistrate or he may take the search at his own level. As per the story of the prosecution, the Appellant again surrendered his valuable right in favour of Shri Randhawa. This officer also did not record the statement of the Appellant to that effect causing a reasonable dent in the story of the prosecution.

Faced with the difficulty, the Learned Counsel appearing for the respondents submitted that it was a minor lapse which might have been committed by the Investigating Officer and D.S.P. Satnam Singh Randhawa. I do not agree with the contention raised by the Learned Counsel for the Respondent. Before I act upon the statements of D.S.P. Satnam Singh Randhawa and S.I. Jarnail Singh, it has to be shown to this Court that both these witnesses had been deprived by some circumstances so that they could not record the statement of the Appellant. Lengthy ruqa had been allegedly recorded at the spot. The Investigating Officer also prepared the recovery memo and jamatalasi memo besides rough site plan. He did not take the trouble to record the statement of the Appellant shedding his valuable right u/s 50 of the Act. In these circumstances, I am inclined to extend the benefit of doubt to the Appellant. This aspect of the case has not been appreciated by the trial Court in convicting the Appellants.

In view of above, I accept this appeal, set aside the judgment and order of conviction and sentence and acquit the Appellant of the charge framed against him.

The case property stands confiscated to the State and the same shall be destroyed according to rules.

Let the intimation about the acceptance of this appeal be sent to Model Jail, Chandigarh, so that the Appellant may be released forthwith if not wanted or convicted in any other case.