Bhushan Lal vs State of Haryana

Dr. Sarojnei Saksena, J.

Accusedappellant was indicted, convicted and sentenced under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) for keeping in his possession 2 Kgs of opium without a licence on May 21,1986.

The adumbrated facts of the case are that on May 21, 1986, ASI Puran Chand along with ASI Amar Nath and other police officials was going on excise checking to village Bakali in a Matador. When they reached near Sanjay Gandhi Memorial School at Ladwa, they noticed the accused going on foot, carrying a bag. On seeing the Police party, the accused took to his heels towards the ground of the school. Puran Chand PW2 got the Matador stopped, chased the accused and caught him. He and Amar Nath offered their personal search. On suspicion his personal search was taken. The bag which he was carrying was found to contain 2 Kgs of opium wrapped in a wax paper. 100 grams were taken out as a sample, which was sealed separately and the remainder was sealed separately. The seal of ''AN'' was used. After use seal was handed over to Amar Nath ASI Thereafter usual investigation was conducted. Recoveries were made, FIR was registered, site plan was also prepared and after concluding the investigation at the spot, the seized contraband along with the sample and the accused were brought to the police station. The seized contraband and the sample were deposited in the Malkhana of Police Station Ladwa. The sample was sent to the Chemical Examiner, Haryana, Karnal, for analysis on May 28, 1986. On analysis, it was found to contain opium. On these facts, charge under section 17 of the Act was framed against the accused, who denied the guilt and claimed trial.

During trial, the prosecution examined Amar Nath ASI as PW1 and Puran Chand ASI as PW2 Affidavit of Constable Dharam Singh Exhibit PF and that of Head Constable Ved Singh Exhibit PG were tendered in evidence. They were not required for crossexamination by the accused. Expert report was also tendered in evidence.

Accusedappellant had taken a plea that on that date the police party searched the house of his sister''s husband''s brother Prita in village Chand and recovered the contraband therefrom. Prita ran away. The police party pressurised him to produce Prita. As he could not produce Prita, he had been falsely implicated in this case. He has examined Kehar Singh DW1 and Roop Ram DW2 in his defence.

The learned trial Judge, evaluating the evidence on record and scanning it minutely, came to the conclusion that the contraband opium was seized from the possession of the accused on May 21, 1986, for which he was not having any licence. The defence evidence was disbelieved. Thus, the appellant was convicted and sentenced to 10 years'' rigorous imprisonment with a fine of Rs. one lac and in default of payment of fine, to undergo further rigorous imprisonment for two years, by judgment dated December 10, 1986.

The appellant''s learned counsel, relying on Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994(3) Recent CR 595 , Manak Chand Jain v. The State, 1994(3) RecentCR 449 and State of Punjab v. Balbir Singh, 1994(1) Recent CR 737 , vehemently argued that from the statements of both the prosecution witnesses as well as first information report, it is evident that the mandatory provisions of section 50 of the Act were not complied with and on this count alone, the trial is vitiated and the accused is entitled to acquittal. He further pointed out that the seal of ''AN'' (Amar Nath) was used for sealing the contraband and after use the seal was given to Amar Nath PW1. Hence, there is a possibility of sample being tampered with. The prosecution has not ruled out this possibility beyond doubt. Lastly, it is contended that at the time of alleged search and seizure, no independent witness was joined. Thus, the investigation does not inspire confidence. It is a tainted one as the accused has explained that he has been falsely implicated in this case. According to the accused, this contraband was seized from the house of Prita, his relation, but it has been wrongly foisted upon him. The trial Court has wrongly disbelieved the defence witness Roop Ram Sarpanch DW2.

Learned counsel for the State also placed reliance on State of Punjab v. Balbir Singh, 1994(1) RCR 736 wherein the Supreme Court has clearly held that provisions of section 50 are inapplicable in the case of chance recovery. Ali Mustaffa''s case (supra) was not a case of chance recovery. On this count, Manak Chand''s judgment is also distinguishable. He has further submitted that in the trial Court the accused has not taken a plea that the seal used in the sample tampered with. The affidavit of Constable Dharam Singh Exhibit PF and that of Head Constable Ved Singh Exhibit PG were tendered in evidence, wherein Ved Singh stated that on May 21, 1986, the sample and the remainder opium were deposited in the Malkhana of the police station, duly sealed and till May 28, 1986, the date on which the sample was sent through Dharam Singh Constable to the Laboratory for analysis, the seals were instant. Dharam Singh Constable has also testified on oath by way of this affidavit that a duly sealed packet of sample was handed over to him by Ved Singh on May 28,1986, which he delivered at the Chemical Examiner''s Laboratory. In the report Exhibit PE, it is also specifically mentioned that the seal affixed on the sample was found intact. Specimen impression of the seal used was also there on the first part of this report, along with which the sample was sent for analysis to the Chemical Examiner, Haryana, Karnal. He also submitted that both these witnesses have stated that no independent witness was available at that time, therefore, they could not be joined. According to him, the defence plea is patently false and the trial Court has rightly disbelieved it.

No doubt, from the statements of these prosecution witnesses it is evident that on May 21, 1986, they were on excise check duty, but to make the provisions of section 50 of the Act applicable, it is necessary that before taking the search, the raiding party must have some information that the accused is carrying the contraband. If all of a sudden, due to the conduct of the accused, the police party may arrest him and makes a search on suspicion, then in view of the pronouncement of the Apex Court cited above (Balbir Singh''s and Ali Mustaffa''s case) the provisions of section 50 of the Act are not applicable. Hence as this was a case of chance recovery, I find that the provisions of section 50 of the act were not applicable and simply because of its nonobservance, the prosecution is neither vitiated nor the accused gets a right of acquittal,

So far as nonjoining of independent witnesses is concerned, Amar Nath PW1 in his crossexamination has stated that after the seizure when they were preparing the papers, some persons came there, but they refused to become witnesses. If anybody would have joined the investigation after the seizure, it would not have served any useful purpose. Puran Chand PW2 has stated in the crossexamination that at the time when the accused was apprehended, none was present there and hence none could be joined This explanation cannot be discarded as untrue because even the accused has not stated that at that time anybody was present on the spot. So far as the defence witnesses are concerned, these prosecution witnesses have stated that by the time they arrested the accused, the school was closed. So the question of the presence of Kehar Singh DW1 was doubtful. So far as the statement of Roop Ram DW2 is concerned, had it been true that the contraband was seized from the house of Prita, there was no rhyme or reason not to prosecute Prita for the same. It is unbelievable that so many police officials in a Matador were present and in their presence after the house search Prita could have slipped away therefrom. The defence is patently false and the trial Court has rightly disbelieved this defence plea. Further, even if for argument''s sake it is to be believed that the contraband was not seized from the accused, Roop Ram DW2 who is a Graduate and Sarpanch of the village, could have approached higher police authorities to plead the cause of the accused and to show that he had been falsely implicated in this case, but no step was taken by him to assert the alleged false implication. On this count also, this defence plea is unworthy of credence.

Admittedly, ASI Puran Chand PW2 was the investigating Officer and not ASI Amar Nath PW1. The seal of Amar Nath was used for sealing the sample as well as the remainder of the opium seized. After the use the seal was handed over to Amar Nath. Thereafter Puran Chand deposited the seized articles in the police station Malkhana. No suggestion is given to him or even to Amar Nath that after sealing the sample and before depositing it in the police station Malkhana, the sample was tampered with. From the affidavit Exhibit PG of Head Constable Ved Singh, it is evident that on May 21, 1986, this sample, duly sealed, with the seal of ''AN'' was deposited in the Malkhana and till it was sent for analysis the seal was not tampered with. Even this Head Constable is not crossexamined by the accused. Constable Dharam Singh (affidavit Exhibit PG) took this sample for analysis to the Chemical Examiners laboratory at Karnal. Even he is not crossexamined. He too has stated that the seal was not tampered with, These witnesses were not called for crossexamination. Thus, it amounts to that the accused never contended that the seal put on the sample was tampered with later on. Even in the examination under section 313 of the Code of Criminal Procedure, the accused has not taken the plea that the sample was tampered with.

No other point is pressed before me.

Consequently, finding the appeal merit less, it is hereby dismissed. The conviction and sentence of the accused is confirmed. The accused is directed to surrender to his bail bonds.