Chander Pal vs State of Haryana

Dr. Sarojnei Saksena, J.

Accusedappellant Chander Pal has preferred this appeal against his conviction and sentence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ''Act'').

In a nutshell the prosecution case was that on 7.1.1986 ASI Satyabir Singh, Head Constable Raghbir Singh, Head Constable Daulat Ram and Constables Randhir Singh and Balraj Singh were patrolling in front of liquor vend opposite Bus Adda, Panipat, At about 3.30 p.m. they saw accused coming from the Bus Adda Panipat carrying a bag. Seeing the police party, accused turned back. On suspicion ASI Satyabir Singh apprehended the accused, took his personal search and found opium wrapped in a wax paper weighing 2 Kgs. The accused was not having licence for its possession. 30 gms. of opium was taken out for sample. Both the packets were sealed with seal ''SS''. Ruqa Ex.PC was sent to Police Station City, Panipat, for registration of a case. Contraband articles were deposited in the Malkhana. Sample was sent to Chemical Examiner for analysis, who opined that it contained opium.

Charge under Section 18 of the Act was framed against the accused appellant who abjured the guilt. His plea is that of false implication.

During the trial prosecution examined ASI Satyabir Singh (PW1), HC Raghbir Singh (PW2), HC Bhala Ram (PW3) and Constable Sunder Lal (PW4).

The learned trial court relying on the prosecution evidence held that it is proved beyond doubt that at the relevant time accused was in conscious possession of two Kgs. of opium without a licence. Thus he was convicted and sentenced to 10 years R.I. with a fine of Rs. 1 lakh, in default of payment to undergo further R.I. for 5 years.

Learned appellant''s Counsel assailed the conviction and sentence on the ground that the mandatory provisions of the Act contained in Sections 41, 42, 50, 52 and 55 were not complied with. He referred to the statements of ASI Satyabir Singh (PW1), and HC Raghbir Singh (PW2) and commented that about the socalled compliance of the mandatory provisions of Section 50, the ocular evidence of these two witnesses is inconsistent and incredible. According to Satyabir Singh (PW1) the accused was given the option that if he wants his person can be searched in the presence of a gazetted officer or a Magistrate, but he candidly admitted that this fact is not recorded by him in the case diary. According to H.C. Raghbir Singh (PW2) the accused was asked that his search can be taken either before them or before the DSP. No documentary evidence was prepared to that effect that the accused was appraised of this right and he declined to avail of it.

Relying on State v. Kulwant Singh, 1994(1) Recent Criminal Reports 303 , State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 736 , State of Punjab v. Chuhar Singh, 1992(3) Recent Criminal Reports 313 , and Harnarain Singh v. State of Haryana, 1992(1) Recent Criminal Reports 133 , the appellant''s Counsel contended that the provisions of Section 50 are mandatory and their noncompliance vitiates the trial.

Counsel appearing for the State stressed that Raghibir Singh has categorically stated that the accused was apprised of his this valuable right and as he opted to give personal search to ASI Satyabir Singh, the search was taken by him.

Such an oral and that too contradictory evidence about the compliance of this mandatory provision is not trustworthy. If this would have been the fact ASI Satyabir Singh would have recorded it in the case diary or some separate panchanama would have been prepared by him to prove the compliance of this mandate. The absence of such a documentary evidence belies the oral contradictory statements of these two witnesses on this point. I find that since the mandatory provisions of Section 50 are not complied with, it vitiates the trial and on this account alone, the accused is entitled to be acquitted.

The second contention of the appellant''s learned counsel is that initially the case registered under the Opium Act, ruqa was sent under the Opium Act and hence at the time of arrest, seizure and search of the contraband opium, ASI Satyabir Singh was not aware of the provisions of the Act. No independent witness was joined at the time of search and seizure though the search was taken near the Bus Stand which is a thickly populated area. He pointed out that to save his skin he had the audacity to give a false explanation that at the time he asked few rickshaw/rehriwalas to witness the search and seizure, but they declined and he has noted their names on a piece of paper, which is attached with the case diary.

The above explanation of the Investigating Officer is a hollow one. Had it been true he would have recorded these names in the case diary. Satyabir Singh had to admit that the names of these alleged persons are not mentioned in the case diary. Thus, it is evident that no independent witness was joined at the time of search and seizure and it renders the ocular version of these official witnesses to be tainted and incredible and unfit for conviction.

It is further pointed out that even the provisions of Section 55 are not complied with. There is no reliable evidence on the record to prove that immediately after the search the report was sent to SHO P.S. City, Panipat and seizure contraband articles were also delivered to SHO, who affixed his seal thereon.

Satyabir Singh (PW1) has tried to state in his statement, but even this fact is not recorded in the case diary, which reveals that the oral testimony of Satyabir Singh on this point is totally incredible and untrustworthy.

Thus it is apparent that in this case the mandatory provisions of Sections 50, 52 and 55 were not complied with. The prosecution evidence is contradictory and unreliable. It suffers from inherent infirmities. Trial Court failed to notice these infirmities.

Accordingly, I find that the prosecution by failed to prove beyond doubt that on 7.1.1986 accused was having in his conscious possession 2 Kgs. of opium. Consequently, accusedappellant is hereby acquitted of the aforesaid charge and his sentence is set aside. The appeal is allowed. Bail bonds of the accused/appellant are discharged.