Chand Singh and others vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Chand Singh and others (hereinafter described as the appellants) directed against the judgment and order of sentence passed by the Learned Additional Sessions Judge, Ludhiana dated 4.3.1994. By virtue of the impugned judgment and order of sentence, learned trial Court held the appellants guilty of the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as the ''Act''). The appellants were sentenced to undergo rigorous imprisonment of 10 years each and to pay a fine of Rs. 1 lakh. In default of payment of fine, they were to undergo further rigorous imprisonment for 2 years each.

The sum and substance of the relevant facts are that on 31.12.1990, A.S.I. Gurcharan Singh was posted at Police Station Dakha. Accompanied by Constables Amar Singh, Maghar Singh besides Special Police Officer, Malkiat Singh and officials of BSF, he was present at the Railway Crossing Rurka Kalan Road. Secret information was received that appellants Chand Singh, Makhan Singh and Gaggi indulge in sale of poppy husk in Village Dakha and that they would be coming in a tractortrolley and passing through that road. On the basis of this information A.S.I. Gurcharan Singh scribed a Ruqa and sent it to the Police Station through Constable Amar Singh. On basis of that, ASI Malook Singh recorded the formal First Information Report (in short ''F.I.R.''). No public witness was available. The police party held the picket. At about 12.30. a.m. a tractortrolley driven by Gaggi, appellant arrived at the spot. Chand Singh and Makhan Singh were sitting over the gunny bags in the trolley. A.S.I. Gurcharan Singh asked them to stop. Appellant Gaggi stopped the tractor. Appellants were asked to alight from the tractortrolley, but the appellants taking advantage and under the cover of darkness escaped.

The search of the trolley was effected. It was found to contain 23 bags of poppy husk. The bags were weighed and found to contain 39 kgs 500 gms. of poppy husk in each bag. 250 gms was taken as a sample from each bag. The samples and rest of bags were covered into different parcels and sealed with the seal of ''GS''. Specimen of the seal was effected and seal after use was given to Head Constable of B.S.F. All these articles were taken into possession vide a recovery memo duly attested by the witnesses Rough site plan was prepared and intimation was sent to the Senior Officers. All seized articles including samples were produced before Inspector Rupinder Singh, OfficerIncharge, P.S. Dakha. He verified the facts and affixed his own seal of ''RS'' on all the articles, which earlier had been sealed. Even Inspector Rupinder Singh affixed his seal of ''RS'' on the chit in the form of specimen seal. The case property was deposited in the Malkhana.

The samples were sent to Chemical Examiner, Patiala and report was received that it was poppy husk. Appellants were arrested on 3.2.1991 from Ludhiana and on these broad facts, report under section 173, Code of Criminal Procedure was filed against the appellants.

Learned trial Court had framed a charge against the appellants with respect to the offence punishable under section 15 of the Act, to which they pleaded not guilty and claimed trial.

On appraisal of evidence, learned trial Court concluded that prosecution has successfully proved its case beyond all reasonable doubts and that it has been proved that appellants were all in possession of 23 bags of poppy husk containing about 40 kgs. poppy husk in each bag. With these basic findings, the impugned judgment and order of sentence were passed.

Learned counsel for the appellants highlighted the fact that in the present case, provisions of subsection (1) to Section 50 of the Act have not been complied with and, therefore, prejudice has been caused to the appellants. In fact the arguments, in the face of it, is without merit and, therefore, obviously it was pressed half heartedly. Subsection (1) to Section 50 of the Act reads as under :

"50. 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 to the nearest Magistrate."

A glance at the above provision would show that when search of any person is to be effected under provision of Sections 41, 42 or 43 of the Act, in that event if such person so requires, he is to be produced to the nearest Gazetted Officer or Magistrate for search. Right indeed is of the person, who is to be searched. This has been enacted so as to lend authenticity and credibility of search that is effected. But the provisions will not help the appellants because the appellants are alleged to have made good their escape. No search could be effected on them nor any recovery was made from them. They were arrested after 11/2 months. When the search was not effected at the relevant time, subsection (1) to Section 50 of the Act cannot be pressed into service.

All the same it was in that event point out that it is not established that appellants were the persons driving the tractortrolley or sitting on it.

A.S.I. Gurcharan Singh, PW 5 had supported the prosecution case in its entirety. He added that appellants were previously known to him and also to Constable Maghar Singh. During crossexamination, the witness only could state that he had identified the appellants in the tragon light. He admitted, before the present recovery from the appellants he had never remained posted at P.S. Sidhwan Bet. The village of the appellants is adjacent to the territorial boundary of P.S. Dakha. No recovery was effected from the appellants on earlier occasions. According to ASI Gurcharan Singh the police party was standing towards the West of the tractortrolley while the appellants ran towards the East. Support was claimed from the statement of Maghar Singh, P.W. 6.

In a criminal trial, prosecution has to travel the entire distance from may have to must have. It has to prove the case beyond all reasonable doubts. Exhibit PE is the alleged site plan prepared at the spot. No attempt has been made to indicate in the site plan as to what was the position of the police party. It is not clear as to where they were stationed. When secret information had already been received that certain persons are coming on a tractor trolley with poppy husk in the trolley, it is not understood as to why proper position had not been taken. ASI Gurcharan Singh was accompanied by couple of Constables besides officials of B.S.F. It is, therefore, difficult to believe the version that they were all standing towards West while appellants ran towards East, when they (appellants) were asked to alight from the tractortrolley.

The incident is of 31.12.1990 while appellants were arrested on 3.2.1991, after a period of more than a month, but the State wanted the Court to believe that all the appellants were earlier known to the police party and, therefore, there was no difficulty of identification. Constable Maghar Singh did not make any such statement when he stepped into the witness box that appellants were earlier known to him. ASI Gurcharan Singh who appeared as PW5 had added that appellants used to sell poppy husk within the jurisdiction of Village Sidhwan Bet and therefore he knew them. He had never arrested any one of them or effected recovery of any such article before 31.12.1990. He was not posted at Sidhwan Bet Police Station. Consequently, the statement made by ASI Gurcharan Singh cannot be accepted that appellants were earlier known to them. Once appellants were not earlier known to the Investigating Officer, ASI Gurcharan Singh, it is difficult to believe as to how he could arrest the appellants suddenly after more than a month. The identity of the appellants cannot be held to have been established merely because their names find a mention in the F.I.R. It cannot, therefore, be held that prosecution successfully proved that appellants were in possession of poppy husk powder. In that view of the matter, they are held entitled to the benefit of doubt.

For these reasons, I accept this appeal and set aside the impugned judgment and order of sentence. The appellants may be released, if not wanted in any other case.