Chhabil Das vs State of Haryana

Harphul Singh Brar, J.

The prosecution version has been supplied by Dharamvir, SI, SHO who appeared as PW.2 at the trial. He has stated that on 3.2.1986 he was posted as ASI in CLA, Tohana. On that day at about 4.30 p.m. he and Pyara Lal, Head Constable and Constable Jagjit Singh, Bhagat Singh and Raj Singh were on patrolling duty and were going from village Kulan to village Jabta Khera. Chhabil Das, accused, came from the side of village Jabta Khera who on seeing the police party turned back. On suspicion he was apprehended and the said ASI recovered 4 kg. opium from the thela (bag) which was being carried by the accused at that time. 10 gms. was separated as sample and then the sample and the remaining opium were sealed separately with the seal of DR and the seal after use was given to Head Constable vide memo. Ex. PA. He sent ruqa Ex. PB to the police station on the basis of which formal FIR Ex. PB/1 was registered by Moharer Head Constable Ishwer Singh. After the completion of investigation, the challan was prepared by SHO Bishan Dayal whose signatures he identified.

The accused was charged vide order dated 15.6.1995 for having committed an offence punishable under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as `the Act'') to which the accused pleaded not guilty and claimed trial.

Head Constable Pyara Lal (PW 1) has broadly corroborated the prosecution story narrated by PW 2 Dharamvir at the trial. PW (sic) Singh, ASI, P.S. Narnaund appeared as PW 3 and tendered into evidence an affidavit Ex. PD. He had received ruqa on 3.2.1986 and registered the FIR vide Ex. PB.

Bhim Singh, Head Constable, P.S. Tohana, appeared as PW4 and he tendered his affidavit Ex. PE in evidence. The chemical report Ex. PF was also tendered into evidence.

While examined under section 313 Cr.P.C., the accused denied the prosecution case as false and stated that nothing was recovered from him and he was falsely implicated in the present case. He did not lead any evidence in defence.

Learned Additional Sessions Judge, Hisar vide his judgment/order dated 19.7.1995 convicted the accused of the charge and sentenced him to undergo R.I. for a period of ten years and a fine of Rs. 1.00 lac; in default of payment of fine the accused was ordered to undergo further R.I. for one year.

Learned counsel for the appellant has assailed the judgment of the trial Court on the following grounds :

(i) Mandatory provisions of Sections 50, 52, 55 and 42 of the Act have been violated.

(ii) Independent witnesses have not been joined by the prosecution.

Learned counsel for the appellant contends that Sections 50, 52, 55 and 42 of the Act have been violated. PW.2 Dharamvir, SI, has stated at the trial that he apprehended the accused on suspicion and recovered 4 kg. opium from the thela which was being carried by the accused at that time. He has admitted in his crossexamination that he did not serve any notice to the accused. Grounds of arrest were also not supplied to the accused and the accused was not produced before the SHO. This statement of PW 2 has not been denied even by PW 1. He has rather corroborated the same.

Learned counsel for the appellant has submitted that the Supreme Court in Mohinder Kumar v. The State of Panaji, Goa, 1995(2) RCR 599 has ruled that even in case of a chance recovery of contraband, mandatory provisions of Sections 42 and 50 are to be followed from the stage when the officer comes to believe that the accused persons were in custody of narcotic drugs.

In the case in hand, admittedly, no offer as provided under section 50 of taking the accused to the nearest gazetted officer of any of the department mentioned in Section 42 or nearest to the Magistrate was given.

Then as provided under section 55, an Officer incharge of the police station did not take charge and keep in safe custody pending the orders of the Magistrate the opium seized from the accused within the local area of that police station. He did not even affix his seal on the opium seized. Even two samples as required under the Act were not taken; only one sample was taken. This has been so admitted by PW.2 Dharamvir before the trial. He has clearly stated at the trial that 10 grams was separated as a sample and the remaining opium was sealed separately with the seal of DR. He has further stated that he did not serve any notice to the accused and grounds of arrest were not supplied to the accused in writing. He has further admitted in his cross examination that the accused was not produced before the SHO.

Thus, admittedly, Sections 50, 52, 55 and 42(3) of the Act have been violated. Admittedly, no offer as provided under Section 50 of the Act was made to the appellant. Grounds of arrest were not supplied to the accused. The case property was not produced before the SHO and affixation of seals on samples as provided under Section 55 was also not made.

Learned counsel for the State has no answer to these points made out by the learned counsel for the appellant before me.

The learned trial Court did not give any valid reasons for ignoring the noncompliance of mandatory provisions of law in this case. The argument was simply brushed aside by saying that the occurrence is dated 3.2.1986 and the Act had come into force only on 16.9.1985 and the police officials may not have been fully aware of the various steps required to be taken while making the arrest under the Act.

Ignorance of law is no excuse. The statutory provisions of law should be complied with before any accused person is to be convicted and sentenced under that statute. Moreover, a very heavy dose of sentence is to be given in such a case if the accused is found guilty.

I have gone through the record of this case and found that the mandatory provisions of Sections 50, 52, 55 and 42, as discussed above, have not been complied with. Noncompliance of mandatory provisions of the Act would naturally vitiate the trial.

It may further be noticed that no independent witness except two police officials has been joined in this case. The explanation given by the officer who apprehended the accused is that Constable Raj Singh was sent to fetch independent witnesses but none had come forward to join. The same is the explanation given by the other police official, PW 1. This explanation given by the police witnesses does not inspire confidence. First of all, it has been admitted by PW 2, Dharamvir, SI, that on the day of alleged recovery they were on patrol duty. When on a patrol duty the patrolling party is expected to join one or two independent witnesses with them. Further the same witness has admitted that the place of recovery is situated at a distance of hardly 250 yards from the village abadi and there were shops and houses near the place of recovery. He did not even ask the name of those persons who refused to become witnesses from Constable Raj Singh who was sent to fetch those witnesses. Constable Raj Singh was not even produced as a witness to testify that he was sent to fetch the independent witnesses but they were not available.

In these circumstances, no reliance can be placed on the testimony of the official witnesses. They did not even try to join independent witnesses at the time of search. If it is so, then the nonjoining of independent witnesses is also one of the grounds which causes a serious dent in the prosecution case.

In view of my discussion made above, I set aside the judgment/order dated 19.7.1995 of the Additional Sessions Judge, Hisar and acquit the accused (appellant) of the charge framed against him.

Resultantly, this Appeal is allowed. The accused shall be released forthwith, if not required in any other cognizable offence.