Bohar Singh vs State of Punjab - State

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 17.8.1994 passed by the Additional Sessions Judge, Sangrur, who convicted the appellant Bohar Singh under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as `the Act'') and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1 lac. In default of payment of fine the appellant was further directed to undergo rigorous imprisonment for 2 years.

The brief facts of the case are that on 12.7.1993 ASI Paramjit Singh, ASI Sukhram Singh, HC Ajit Singh and other members of the police party of Police Station Lehra reached near the bridge over the drain in the area between Phalera and Ratta Khera when the appellant came from the right side of village Dhandra on foot and he was apprehended by the police party on suspicion. ASI Paramjit Singh informed the appellant that the cotton cloth bag carried by him was to be searched and if he so desired the search could be effected in the presence of a Gazetted Officer or a Magistrate, or in the alternative by ASI Paramjit Singh. The appellant reposed confidence in ASI Paramjit Singh and stated that the said ASI could effect the search. Statement Ex. PE of the appellant was recorded to that effect and it was thumb marked by the appellant and was attested by ASI Sukhram Singh and HC Ajit Singh. Thereafter the search of the person of the appellant was taken and opium wrapped in a glazed paper weighing 1 Kg. was found, out of which 2 samples of 10 grams each were taken out and made into separate sealed parcels while the remaining 980 grams opium wrapped in a glazed paper was made into a separate parcel Ex. P.2 which was also sealed with the seal bearing inscription `PS'' belonging to ASI Paramjit Singh, who also prepared samplechit Ex. P1 of the impression of the seal used by him and took the three sealed parcels and samplechit into possession vide recovery momo Ex. PF attested by the said witnesses. As the appellant could not produce any licence or permit for the possession of the opium, ruqa Ex. PH was sent to Police Station on the basis of which formal F.I.R. Ex. PH/1 was recorded in Police Station Lehra, district Sangrur. The Thanedar also prepared the rough site plan Ex. PJ. He prepared the jamatalasi memo Ex. PG. After the recording of the statements of the witnesses he deposited the case property with the MHC Sampuran Singh. Later on the sealed parcels along with the sample seal were sent to the office of the Chemical Examiner, who found the contents as opium. On the completion of the investigation and after the completion of other formalities of the case, the appellant was challaned in the Court of Illaqa Magistrate, who supplied the copies of the documents to the appellant and vide commitment order dated 5.10.1993 committed the appellant to the Court of Session.

2A. Vide order dated 19.10.1993 the learned trial Court framed a charge under Section 18 of the Act on the allegations that on 12.7.1993 at about 2.00 p.m. in the area of village Rattakhera the appellant was found in possession of 1 Kg. of opium without any licence or permit and thereby committed an offence under Section 18 of the Act. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined ASI Paramjit Singh as PW 1 and ASI Sukhram Singh as PW 2, who corroborated the testimony of PW 1. The prosecution also tendered into evidence the affidavits of formal witnesses besides the report of the Chemical Examiner and closed the case.

The statement of the appellant 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 as follows :

"I am innocent. Sohan Singh Mattu who was Sarpanch of the Panchayat of Daska was heading Amrit Parchar Committee. He was baptizing (Amrit Chhakanda See) to young boys and that neither ASI Paramjit Singh nor other police official liked it and that false cases of recovery of poppyhusk were registered again Gurnam Singh son of Sohan Singh of village Daska and others were falsely arrested and involved in similar cases like the present one. However, I resisted the police highhandedness and the present false recovery has been foisted upon me."

When called upon to enter his defence, the appellant stated that he did not want to lead any evidence.

The learned Additional Sessions Judge, Sangrur vide impugned judgment convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence the present appeal.

I have heard Shri Ajay Pal Singh, Advocate, who appeared on behalf of the appellant, Shri Randhir Singh, learned Deputy Advocate General, who appeared on behalf of the State and with their assistance I have gone through the record of this case.

The point for determination in this case would be whether the mandatory provisions of Section 50 of the Act have been complied with in a faithful manner by the Investigating Officer or not. The learned counsel appearing on behalf of the State submitted that option was given to the appellant as to whether he wanted to give the search in the presence of a Gazetted Officer or a Magistrate and since the appellant exercised the option in such a manner that he wanted to give the search only in the presence of the Investigating Officer, therefore, the story of the prosecution cannot be held doubtful on the ground that the Investigating Officer did not take the appellant before any Gazetted Officer or Magistrate or that the statement Ex. PE has not been recorded in the presence of an independent witness. The submission of Shri Randhir Singh may look very attractive at the first instance in the light of the statement Ex. PE which prima facie establishes that the appellant himself had stated before the Investigating Officer that the Investigating Officer could take his search. When the appellant has exercised his right in a particular manner, that remedy has been adopted by the Investigating Officer and, therefore, no fault can be found. But on the deeper scrutiny this argument is very dangerous to be accepted. In such like cases the law courts expect a higher degree of proof keeping in view the fact that the offence is very grave and the legislature has prescribed a punishment of ten years minimum and the degree of proof which the law courts expect should be higher than the ordinary crimes ruling out any possibility on the part of the police that an innocent person has not been falsely implicated. It is equally true that the recovery in this case is 1 Kg. of opium which may not be easily planted by the Investigating Officer but still this court feels that the proof of commission of crime is not sufficient and enough. It is the case of the prosecution that the present recovery was effected at 2.00 p.m. from a public place. In these circumstances the expectation of the Court is that the statement Ex. PE ought to have been attested by an independent witness because the appellant through that statement wanted to shed a very valuable right in favour of the Investigating Officer that he did not want his search in the presence of a Gazetted Officer or a Magistrate. To fasten an innocent person on the bald statements of two police officials would be a dangerous trend settler in the cases like the one in hand especially when the Investigating Officer has not complied even the directory provisions of the Act, such as that the grounds of arrest were not supplied to the appellant at the time of the arrest and no special report to the higher authorities was issued. In other words, the entire game remains with PW 1 and PW 2. I could have appreciated the contention of the learned counsel for the respondent had the alleged recovery of the opium was at odd hours or during the night, where it was difficult on the part of the Investigating Officer to procure the assistance of an independent witness. The police party completed several formalities of the case at the spot such as recording of consent statement; recording of long ruqa; preparation of the site plan; preparation of jamatalasi memo; sealing of the case property and the recording of the statements of the witnesses under Section 161 Cr.P.C. All this procedure must have atleast consumed one hour or so but still the Investigating Officer did not try to associate any independent witness at the time of the recording of the statement Ex.PE. He had even deputed a Constable in order to bring the scales and weights, still he did not make any effort to associate any respectable from the neighbouring villages so as to lend confidence in the mind of the Court about the genuineness of the recovery. In view of this type of evidence solely depending upon the testimony of two police officials even when the investigation has not been verified by a Gazetted Officer, it will be risky and dangerous to sustain the conviction of the appellant.

In this view of the matter and keeping in view the peculiar evidence of this case that the recovery was at broad day hours from a public place, 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, however, stands confiscated to the State and shall be destrobed according to rules.