Darshan Khan vs State of Punjab

R.L. Anand, J.

Darshan Singh alias Darshan Khan son of Shri Chanan Singh, a young man of 29 years, resident of village Bhadson District Patiala has filed the present criminal appeal and it has been directed against the judgment and order dated 5.5.1998 passed by the Additional Sessions Judge, Ludhiana who convicted the appellant under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for a period of one and half years for having been found in possession of 10 kilograms of opium without any licence or permit, on 5.12.1995 in the area of Bus Stand Khanna falling within the revenue limits of District Ludhiana. The facts of the case are being gathered by me from the evidence which has been recorded by the Trial Court as well as from the impugned judgment of the learned trial Court.

On 5.12.1995, there was a secret information with the Senior Superintendent of Police, Khanna and Superindent of Police, Khanna Shri Gurmit Singh. On that day, Shri Bhupinder Singh. S.H.O., P.S. City, Khanna in the company of Head Constable Harbans Lal, Head Constable Hardev Singh and other members of the police party was present at New Bus Stand Khanna in connection with special nakabandi which was conducted under the directions of Senior Superintendent of Police, Khanna and Shri Rajbir Singh Inspector/S.H.O., Police Station Sadar Khanna. The police party had gone there under the supervison of Gurmit Singh, Superintendent of Police Head Quarter. Two persons alighted from the bus which came from the side of G.T. road. On seeing the police party those persons became perplexed. One of them started running towards the taxi stand and the other towards Amlon chowk. The person who was running towards taxi stand was chased by Bhupinder Singh (P.W.5), Head Constable Hardev Singh and other members of the police party. Shri Darshan Singh was apprehended and at the point of time he carried jhola in his right hand. On the basis of the suspicion Bhupinder Singh inquired from the appellant that the latter was in possession of some incriminating articles in the jhola, whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. The appellant replied that any officer may be called and he would not give search to Bhupinder Singh. Statement Ex.PC of the appellant was recorded in this case and it was signed by the appellant and attested by Head Constable Hardev Singh. Thereafter a wireless message was flashed and Ashwani Kapoor, Deputy Superintendent of Police came at the spot. Devinder Singh son of Jaswant Singh was also associated in the police party. On arrival of Shri Ashwani Kumar D.S.P. statement Ex.PA of the appellant was recorded which was signed by him and attested by Head Constable Hardev Singh and also by Devinder Singh. Bhupinder Singh gave his search to Shri Devinder Singh the independent witness and then in the presence of DSP Ashwani Kapoor, search of jhola being carried by the appellant, was taken. Opium was found lying wrapped in glazed paper. On weighment it came to 10 kilograms. Shri Bhupinder Singh separated 40 grams of opium and divided it into two parcels each weighing 20 grams. Remaining opium weighing 9.960 Kgs. was put in a tin of plastic and the entire case property was sealed by Bhupinder Singh with his own seal bearing inscription BS. Case property was taken into possession vide memo Ex.PD attested by Devinder Singh independent witness, Head Constable Hardev Singh and D.S.P. Ashwani Kumar. Personal search of the appellant was conducted and a sum of Rs. 462/ was recovered. This currency was taken into possession vide memo Ex.PD. Seal after use was handed over to Devinder Singh. Accused could not produce any permit or licence for the possession of opium. Ruqa Ex.PE/1 was sent to the Police Station on the basis of which formal F.I.R. Ex.PE/3 was recorded. Investigating Officer prepared rough site plan Ex.PF. He also recorded statement of the witness under section 161. Appellant was formally arrested. The case property was also handed over to Additional MHC Manjit Singh with seals intact and the appellant was put behind the bars in the Police Station. Later on samples of opium with specimen of the seal was sent to the Director, Forensic Science Laboratory who found the contents as morphine and on completion of the investigation appellant was challaned under Section 18 of the N.D.P.S. Act in the court of the Illaqa Magistrate who supplied copies of the documents to the accused and committed the appellant to the court of Sessions.

On 8.4.1996, the trial Court framed a chargesheet under Section 18 of the N.D.P.S. Act against Darshan Khan alleging that on 5.12.1995 in the area of new bus stand Khanna, he was found in possession of 10 kilograms of opium without any licence or permit and thereby he 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 trial.

In order to prove its charge, the prosecution examined D.S.P. Ashwani Kapoor (PW.1), Head Constable Hardev Singh witness of recovery as PW.2, Head Constable Manjit Singh with whom the case property was deposited as PW.3, Constable Bhupinder Singh who handed over case property in the office of the Director, Forensic Science Laboratory as PW.4 and Sub Inspector Bhupinder Singh, Investigating Officer as PW.5. The report Ex.PG of the office of the Forensic Science Laboratory was tendered in evidence.

Statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and stated that he was innocent. Nothing was recovered from him and that he has been falsely implicated.

When called upon to enter into evidence, the accused tendered in evidence copy of the report under section 173 Cr.P.C. in case F.I.R. No. 107 State v. Amarjit Singh, certified copy of the statement of Bhupinder Singh given in the Court of Shri C.D. Gupta, Additional Sessions Judge, Ludhiana on 7.8.1997.

Learned trial Court relied upon the story of the prosecution and rejected the defence version and convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction and sentence the present appeal.

I have heard Shri Kanwaljit Singh, Advocate on behalf of the appellant and Shri Vikas Cuccria, Deputy Advocate General on behalf of the respondents and with their assistance gone through the record of this case.

Before I deal with the arguments raised by the learned counsel for the appellant, I would like to quote reasons in verbatim recorded by the learned trial Court in convicting the appellant. The said reasons are contained in paras No. 12 to 25 of the judgment as follows :

"12. First argument advanced by Shri D.N. Sharma, learned counsel for the accused is that no notice in writing was served upon the accused apprising him of his right to be searched before gazetted officer or Magistrate. He further submitted that even otherwise there is noncompliance of Section 50 of the Act and as such the conviction of the accused cannot be based. In this connection he drew my attention to the authorities Saiyed Mohd. Saiyad Umar Saiyed v. State of Gujarat, 1995(2) R.C.R. 388, Vijay Shankar v. State of Punjab, 1996(3) R.C.R. 446, Teja Singh v. State of Punjab, 1996(1) R.C.R. 753, Om Parkash v. State of Punjab, 1996(2) R.C.R. 757 and Suraj Bhan v. State of Haryana, 1995(3) R.C.R. 515 .

On the other hand, learned Addl. P.P. for the State vociferously argued that there is compliance of section 50 of the Act in this case and the authorities referred to on behalf of the accused are not applicable to the facts of this case.

I have given my thoughtful consideration to the rival arguments and feel myself inclined to agree with the learned Addl. P.P. for the State. It has been held by Hon''ble Division Bench of Punjab and Haryana High Court in the case of Roop Singh v. State of Punjab, 1996(1) R.C.R. 146 that there is no mandate or requirement of Section 50 of the Act that the offer given to the accused ought or must have been reduced into writing. In my view the authorities referred to above are distinguishable on facts. In the case of Suraj Bhan (supra) the contention of police officer was that the accused was informed in writing of his right to be searched before Magistrate or Gazetted Officer and no such writing was produced before the Court. In this case as it evident from the statement of PW.2, the Investigating Officer had apprised the accused that he was in possession of some incriminating thing and on that account his search was to be conducted. PW.2 has further stated that S.H.O. had further told the accused that if he wanted his search before him, gazetted officer or Magistrate and that accused replied that he would not give his search before him and that he would give search before the gazetted officer. Ex.PC is the consent memo of accused recorded in this case. A perusal of this document also shows that offer was given to the accused and that he was told that for search gazetted officer or Magistrate could be called and that accused replied that he would not give search to Bhupinder Singh. From the statements of PW.2 and PW.5 it is evident that wireless message was flashed and Deputy Superintendent of Police, Shri Ashwani Kapoor came at the spot. Deputy Superintendent of Police has stepped into the witness box as PW.1. DSP Shri Ashwani Kapoor disclosed his identity to the accused. He also made the accused aware that he had come before him as Deputy Superintendent of Police and if he wanted his search before him and the accused showed his willingness for his search before him. Again consent memo Ex.PA was prepared. It has been signed by the accused and attested by Hardev Singh HC and Devinder Singh independent witness. It has been observed by Hon''ble Division Bench in the case of Raj Kumar v. State of Haryana, 1997(2) RCR 798 that in the case of Manohar Lal v. State of Rajasthan 1996(1) RCR (Crl.) 660 , their Lordships of Supreme Court came to the conclusion that section 50 of the Act affords the persons to be searched safeguard that he may require the search to be conducted in the presence of senior officer. Senior Officer may be gazetted officer or Magistrate depending upon, who is conveniently available. It has been held in the case of Raj Kumar (supra) by Hon''ble Division Bench that only option to be given to a person who is in possession of articles which are illicit under the Act is whether he will like to be searched in the presence of Senior Officer and that it will be for the police officer who is to conduct the search, to conduct it in the presence of whosoever is most conveniently available whether gazetted officer or Magistrate. Even from the perusal of ruqa Ex.PE/2 it becomes evident that the suspicion of the investigating officer aroused and he enquired from the accused that he was in possession of some incriminating thing in the jhola. Accordingly offer was given by him for search before gazetted officer or Magistrate, but the accused replied that he would not give search before him (investigating officer) and that any officer (gazetted officer or Magistrate) be called. Accordingly, Shri Ashwani Kapoor D.S.P. came on the basis of wireless message and search was conducted in his presence. No doubt Ex.DB which is the statement of PW.2 Hardev Singh H.C. there is no mention that accused was apprised of his right of search specifically before gazetted officer or Magistrate and that he has been confronted with his statement Ex.DB but this fact cannot assume significance particularly in view of the contents of consent memo Ex.PC and ruqa Ex.PE/2. The accused gave his consent for his search before D.S.P. vide consent memo Ex.PA and accordingly his search was conducted by the investigating officer in the presence of Deputy Superintendent of Police. HC Hardev Singh and Devinder Singh independent witness and 10 Kgs. opium was recovered from his possession. Fact that Bhupinder Singh deposed that accused told him that he would not give search to him, is no ground to throw away the case of the prosecution to the waste paper basket particularly when Bhupinder Singh has proved the consent memo Ex.PC. Ex.PC was recorded by PW.5 himself. According to it accused was made aware of his right of search before Magistrate or Gazetted Officer. In these circumstances it is difficult to conclude that there is noncompliance of Section 50 of the Act, in this case.

Next argument pressed into service by the learned counsel for the accused is that the grounds of arrest were not disclosed to the accused in writing. Similarly purpose of search was not told to the accused in writing and that senior officers were not informed regarding the arrest of accused and the recovery of contraband and as such there is violation of sections 52 and 57 of the Act. I have considered this submission. PW.5 has made it clear that he had flashed wireless message to the senior officers regarding this recovery, as regards the grounds of arrest in writing, matter has been set at rest by Hon''ble Division Bench of Punjab and Haryana High Court in the cases of Roop Singh v. State of Punjab, 1966(1) RCR 146 and Balwinder Singh v. State of Haryana, 1998(1) R.C.R. (Crl.) 191 in which it has been held that the objection of the accused that he was not informed of the grounds of arrest, is not tenable. Circumstances of recovery and arrest, themselves are sufficient to make the accused know the substance of the offence and it is due compliance of Section 52 of the Act. Apart from this, sections 52 and 57 have been held to be not mandatory as held in the case of Balwinder Singh (supra). 10 Kgs. opium was recovered from the accused and for recovery he was arrested. Even if it is assumed for argument''s sake that grounds of arrest should have been disclosed to the accused in writing, no prejudice can be said to have been caused to the accused particularly when opium had been recovered from him and he was arrested. In other words he became aware of the reasons of arrest automatically. The learned counsel for the accused, failed to show me the mandatory provisions of the Act, according to which the purpose of search is to be told to the accused in writing. Hence the arguments of the learned counsel for the accused do not cut any ice and no dent can be said to have been caused in the case of the prosecution.

Next point urged before me by the learned counsel for the accused is that passengers from the buses were coming and going at the time of recovery and that there are shops, fruits stalls at the taxi stand and that there are offices of Punjab Roadways, Pepsu Road Corporation and private bus operators whose employees and officers were present near the place of recovery as admitted by PW.1 but no independent witness was associated with the party and that the only witness allegedly joined is Devinder Singh who has been given up by the prosecution as having been won over by the accused. He further argued that even if Devinder Singh was won over by the accused, it was duty of the prosecution to examine him and as such this fact is fatal to the case of the prosecution. In this connection reliance has been placed on the authorities Bhoolan v. State of Punjab, 1995(3) R.C.R. 505 and Satnam Singh v. State of Punjab, 1996(3) Recent Criminal Reports 369 . He further argued that since the seal has been shown to have been handed over the Devinder Singh, his non examination in suicidal to the case of prosecution.

Learned Addl. P.P. for the State countered the submissions of the learned counsel for the accused by submitting that the nonexamination of Devinder Singh would not adversely affect the case of the prosecution particularly when he was won over by the accused and especially when the statements of PW2 an PW5 are worth placing credence.

I have given by anxious thought to these rival contentions and I feel myself inclined to agree with the learned Addl. P.P. for the State.

No doubt, the recovery was effected from the place where independent witness has been joined by the investigating officer. No evidence is on the file that Devinder Singh is a witness who is at beck and call of the police. The seal was handed over to him. The fact that he has not been examined being won over by the accused, cannot lead the court to draw an adverse inference against the prosecution. Generally, in such like cases independent witnesses do not want to incur the displeasure of the accused without any rhyme and reason. Independent witnesses being human beings are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements Matter has been set at rest by Hon''ble Division Bench in the case of Roop Singh (supra) wherein it was held that witnesses being won over is fully justified in present day situation prevailing in society. Prosecution witnesses examined by the prosecution are not in any way inimical to the accused. They have no motive to implicate the accused. Testimony of PW1, PW2 and PW5 have not been shaken on material points in their detailed crossexamination. Accordingly, the fact that Devinder Singh to whom the seal was handed over by accused, cannot be suicidal to the case of the prosecution.

Learned counsel for the accused, further argued that prosecution has not been able to establish that specimen of seal used was prepared at all, as such specimen of the seal was not deposited in the Mall Khana nor sent to the Forensic Science Laboratory. For this reliance has been placed on Dud Nain v. State of (Union Territory) Chandigarh, 1996(3) R.C.R. 455 in which no evidence was there that specimen of the seal was deposited in Mall Khana and no evidence was there that specimen of the seal was sent to Forensic Science Laboratory. Learned Counsel for the accused has also drawn my attention to Ex.DF i.e. statement of Manjit Singh PW3 recorded under Section 161 Cr.P.C. and his statement made as PW3. Manjit Singh stated that case property of the case has been entered at Serial No. 386 dated 5.12.95 in Register No. 19 and that there is no mention regarding the deposit of three slips having impressions of the seal used. In Ex.DF the statement of Manjit Singh recorded u/s 161 Cr.P.C. the specifimen of seal has been shown to have been deposited. No doubt in register No. 19 the deposit of three slips having the impressions of the seal used has not been shown. In the facts and circumstances of this case, it appears to me that it is merely an omission. Rather ample evidence is on the file that specimen of the seal used was prepared. This fact is clear from ruqa Ex.PE/2 and FIR Ex.PE/3, statements of PW1, PW2 and PW5 on oath. Not to speak of this, PW3 Manjit Singh who was additional M.H.C. in Police Station City Khanna on 5.12.95 stated on oath that specimen of the seal used which was on three slips were also deposited with him and on 8.12.95 he handed over one sealed parcel and specimen of seal on the slip to constable Bhupinder Singh for getting prepared the docket from the office of the Senior Superintendent of Police, Khanna and thereafter to take them to the office of Forensic Science Laboratory Punjab, Chandigarh. This statement of PW3 stands corroborated with the statement of constable Bhupinder Singh who has appeared as PW4. In these circumstances, it cannot be concluded that specimen of the seal used was not kept separate or was not prepared and that the specimen of the seal used was not sent to the office of Forensic Science Laboratory, Chandigarh. If somehow or the other, PW3 omitted to mention it in register No. 19 it is no ground to hold that the specimen of the seal used, was not prepared.

The next point argued by the learned counsel for the accused is that the investigating officer is a liar as he states that he had handed over the seal to Devinder Singh and that he returned the seal to him after 45 days. He further submitted that PW5 has admitted that on 6.12.95 opium was recovered from Amarjit Singh in the morning. He further drew my attention to the statement of PW5 who stated that he does not remember if he had used his seal bearing impression B.S. even in that case. Mark DK is the copy of the report under section 173 Cr.P.C. of the case of Amarjit Singh. From this statement of PW5 it cannot be inferred that the seal used in this case was not returned to him by Devinder Singh after 45 days. It is in the statement of PW1 that seal after use was handed over to Devinder Singh. Likewise are the statements of PW2 and PW5. It has been made specifically clear from PW5 that he had no other seal except the seal used by him in this case. One investigating officer may have more seals with same letters but of different shapes. Even if it is taken that on 6.12.95, PW5 used the seal in the case against Amarjit Singh, is no ground to hold that the seal used in this case was not handed over to Devinder Singh and that the same seal was used in the case of Amarjit Singh.

As regards the manner of search, the contention of the learned counsel for the accused is that it is in the ruqa Ex.PE/2 that investigating officer gave his search to Devinder Singh and thereafter gave his search of the accused and that likewise are the statements of PW2 and PW5, but PW1 did not make statement to the effect nor this fact has been recorded in the recovery memo. After lapse of time human memory gives away. Camera type observations cannot be expected from human being. Statements of the witnesses are unanimous on material points and minor variations cannot assume significance. In the recovery memo Ex.P8, search has been shown to have been conducted as per rules. Accordingly the contention of the learned counsel for the accused cannot fetch significance to make the case of the prosecution suspicious.

It was also argued by the learned counsel for the accused that the case property and the accused were not produced before the other police officer who was incharge of the police station in the absence of SI/SHO Bhupinder Singh and as such there is violation of section 55 of the Act. Section 55 of the Act requires that every person arrested and article seized shall be forwarded to the Officer Incharge of near Police Station. Bhupinder Singh himself was the Station House Officer and Officer incharge of the police station. There is nothing in section 55 of the Act that if the officer incharge himself arrests a person, he should produce that person and the article seized by him before junior to him, working in the police station, as incharge. In this case accused was arrested by the officer incharge of the Police Station himself and as such it was not expected from PW5 to produce the accused and the case property before Sarwan Singh A.S.I. who was next officer in the police station after him. No prejudice can be said to have been caused to the accused particularly when there is nothing on the file to hold that the case property was ever tampered with.

In the crossexamination of PW2, he has stated that weights were of 5 Kgs. two of 2 Kgs, one of 1 Kg. and another one of 500 grams. From this submission of the learned counsel for the accused is that two samples for opium each of 20 grams could not be drawn. Again this argument is devoid of any force. PW2 has stated that these weights were brought by the official. It has not been got clarified that no other weight was with the investigating officer or other police officials for weighing the opium taken out for samples. In such a situation it cannot be said that two samples each of 20 grams opium could not be drawn.

Another submission of the learned counsel for the accused is that in the recovery memo Devinder Singh has been recorded as son of Shri Jaswant Singh but his residential address has been left blank above his signatures and this casts suspicion about that joining of Devinder Singh. There is abundant evidence on the file that Devinder Singh was joined with the party. Ruqa was sent after the preparation of the recovery memo. In the ruqa Ex.PC/2 the name, parentage and residential address of Devinder Singh have been given. If somehow or the other, the investigating officer has omitted to write the residential address of Devinder Singh, it cannot fetch significance and the case cannot be thrown to the winds.

Ex.DL is the copy of the statement of constable Bhupinder Singh recorded in the court of Shri C.D. Gupta, learned Addl. Sessions Judge, Ludhiana on 7.8.97 in the case of State v. Bahadur Singh. In that statement constable Bhupinder Singh has stated that the sample parcel remained with him and that he handed over the docket to Head Clerk in the office of Senior Superintendent of Police, who obtained the signatures of Senior Superintendent of Police and returned the docket to him. It is further in the copy of the statement Ex.DL that the sample of cases FIRs Nos. 105, 106, 107 and 108 were also with him and that he went to Chandigarh to deposit the sample. The learned counsel for the accused put to PW4 that his statement was recorded in the court of Shri C.D. Gupta. He has admitted this fact. This accused cannot derive any benefit in this case from the statement pertains to the case against Bahadur Singh although Bhupinder Singh constable took the samples of other cases as well i.e. of case FIRs No. 105 to 108. No doubt PW4 has been confronted with his statement under section 161 Cr.P.C. which is Ex.DK as well Bhupinder Singh has been shown to have deposited the sample and the specimen of the seal used and the docket in the office of Forensic Science Laboratory Punjab, Chandigarh."

Shri Kanwaljit Singh, learned counsel appearing on behalf of the appellant submitted that Section 42 of the N.D.P.S. Act in this case has not been complied with by the Investigating Officer Shri Bhupinder Singh (PW.5). Learned counsel submitted that it was a case of secret information received by Shri Bhupinder Singh and it was obligatory on the part of Bhupinder Singh to record that secret information into writing. Mandatory compliance of Section 42 has not been done in this case and therefore, the appellant is liable to be acquitted. The submission raised by the learned counsel for the appellant may look lashing at the first instance but on deeper skull, I am of the opinion that it is devoid of any merit. The secret information was recieved by Shri Bhupinder Singh. It was with the Senior Superintendent of the Police of the District who shared that secret information with Shri Gurmit Singh, Superintendent of Police Head Quarter. On the direction of the Senior Superintendent of Police and Superintendent of Police two special naka parties were constituted. Those two naka parties held nakas at the bus stand Khanna in order to apprehend suspects. Had the secret information been received by Shri Bhupinder Singh, there would have been some logic in the arguments of the learned counsel. Secret information was with the Senior Officers. It has been categorically stated by Shri Bhupinder Singh in the crossexamination that "I did not receive any secret information. Volunteered, we had gone under the direction of S.S.P. Khanna. S.S.P. Khanna has not disclosed that two persons will be coming with opium and in that connection nakabandi be held at the bus stand." Of course, Shri Bhupinder Singh had stated in examinationinchief to the effect that "On that day I alongwith HC Harbans Lal, HC Hardev Singh and other police officials, were present at bus stand Khanna, under the JUDGMENT of S.S.P. Khanna on the basis of the secret information. We had held nakabandi there." The reading of the above statement alongwith crossexamination would show that the secret information was with the S.S.P. and not with Shri Bhupinder Singh. He simply complied with the directions of his superiors and constituted one of the naka party. In these circumstances, first argument of the learned counsel falls to the ground when he submitted that Section 42 has not been complied with.

The second argument which was raised by the learned counsel for the appellant is that mandatory provisions of Section 50 of the Act had not been complied with. The learned counsel submitted that he socalled consent statement which was recorded by Bhupinder Singh is no statement in the eyes of law as Shri Devinder Singh an independent witness who was associated in the police party has not attested the said statement. Learned counsel submitted that it has been stated by Shri Bhupinder Singh that he made enquiries from the accused as to whether he was in possession of incriminating article upon which the accused told that he would not give search to him and some Gazetted Officer be called for his search. This argument of Mr. Kanwaljit Singh again falls to the ground if we see the proceedings in this case. When the accused was apprehended on the basis of the suspicion he was carrying narcotic drugs. First statement of the accused was recorded by Shri Bhupinder Singh in the presence of Head Constable Hardev Singh. This statement Ex.PC is on the record. At that point of time the police party had not associated Shri Devinder Singh, therefore the attestation on the part of Devinder Singh was not necessary. The mode of recording statement of culprit and skill of the recording of the statement will always vary from person to person. In statement Ex.PC made by the present appellant Shri Darshan Singh alias Darshan Khan, it has been clearly stated to the Investigating Officer Shri Bhupinder Singh that he was not interested to give his search to him and for the purpose of search some Gazetted Officer or a Magistrate be called for. In this context Shri Bhupinder Singh sent wireless message to Shri Ashwani Kapoor D.S.P. who appeared on the spot. Again in the presence of Ashwani Kapoor and Shri Devinder Singh who had been associated in the police party by that time before the arrival of Ashwani Kapoor, yet another statement of Shri Darshan Khan was recorded though it was not obligatory on the part of Bhupinder Singh once the statement Ex.PC. was recorded. Second statement of the appellant is Ex.PA. In this statement Shri Darshan Khan showed his willingness to be searched in the present of some Gazetted Officer. This statement is attested by Shri Devinder Singh, Head Constable Hardev Singh and Ashwani Kapoor DSP besides Shri Bhupinder Singh. It is also signed by the appellant in English. Thereafter actual search of jhola was taken and opium was recovered vide recovery memo Ex.PB. Yet another memo of jamatalashi was prepared vide which a sum of Rs. 462/ was recovered from the appellant. This currency was taken into possession vide recovery memo Ex.PD. The seal, of course, after use was handed over to Shri Devinder Singh who has also not been examined by the prosecution perhaps on the plea that he has been won over by the accused. The point which survives for determination is that whether this court should place implicit reliance on the testimony of Shri Bhupinder Singh, DSP Ashwani Kapoor who was confirmed D.S.P. at that time and Head Constable Hardev Singh or not. So far as position of law is concerned, conviction can be based on the testimony of the official witnesses whose statements should be considered at par with that of nonofficial witnesses. The nonexamination of Shri Devinder Singh in this case will not be fatal because of the examination of Shri Ashwani Kapoor. Section 50 has been introduced for the benefit of the accused. It requires that at the time of recording of statement of the accused there should be an association of some independent witness. In this case firstly Devinder Singh was with the police party, therefore, at the point of time in Ex.PC his attestation could not be procured. When Devinder Singh was associated before the arrival of DSP, he attested Ex.PA. As I have just stated that the benefit of Section 50 will always go to the accused. Secondly, the Investigating Officer Shri Bhupinder Singh has associated a Gazetted Officer of the department concerned, then the appellant has no grouse to say that his search was invalid. The nonexamination of Devinder Singh is not fatal. At the most he may be the witness of corroboration. An independent witness can supersede the statement of D.S.P. i.e. the Gazetted Officer even he may be from the Police Department or that of Magistrate. If we take that the nonexamination of an independent witness who had been associated in the recovery in such like cases is always fatal, then the reliability of a Magistrate or that of a Gazetted Officer would always be affected and they will be considered as second rate witnesses. How a person just roaming in the street can be given better importance than that of a Gazetted Officer or Magistrate. They are officers with responsibility and so much so they are officers who can even direct the Investigating Officer to release the person forthwith if they are satisfied that nothing has been recovered from the person so arrested as per the provisions of Section 50 of the Act. Now it is to be seen that what has been stated by Shri Ashwani Kapoor who appeared as P.W.1. He categorically stated that the accused had a bag in his right hand in which there was opium wrapped in a glazed paper and on weighment it came to 10 kilograms. The accused could not produce any licence or permit for the opium. He further deposed that before taking search of the accused he disclosed his identity and he even made aware to the accused that he was D.S.P. and whether he wanted to give search in is presence or not ? Appellant gave willingness to give search in his presence and later on Statement Ex.PA of the appellant was recorded in the presence of Devinder Singh. Shri Bhupinder Singh also stated that opium weighing 10 kilograms was taken in possession from the jhola which was being carried in the right hand by the appellant. He also proved Ex.PC by deposing that he made enquiries from the accused whether he was in possession of incriminating article upon which the accused stated that he would not give his search to him and that some Gazetted Officer be called for his search. The object of Section 50 is that the search of a person should be taken in the presence of a Superior Officer. This view of the Hon''ble Supreme Court is also affirmed by our High Court in the case of Raj Kumar (supra) which is also relied upon by the trial Court while confirming the appellant.

The third submission which was raised by the learned counsel for the appellant that nonexamination of Devinder Singh is fatal. I have already stated that testimony of Devinder Singh cannot be equated above the testimony of D.S.P. Ashwani Kapoor and that of Shri Bhupinder Singh. If Devinder Singh has not been examined or has been given up by the prosecution it will also be a responsibility upon the shoulders of the court to scrutinise the testimony of both witnesses with care and caution who have certain amount of jealousness. Why Shri Bhupinder Singh and Ashwani Kapoor would plant a huge quantity of opium weighing 10 kilograms upon a person who even does not hail from District Khanna. The appellant Darshan Khan hails from village Bhadson which falls within the District Patiala. The appellant has not even suggested any enmity remotely against Devinder Singh or DSP Ashwani Kapoor or any member of police force in District Khanna. In these circumstances I am inclined to place reliance upon the statements of Shri Ashwani Kapoor and Bhupinder Singh PW.1 and PW.5 respectively.

It was then argued by the learned counsel for the appellant that the seal in this case was handed over to Devinder Singh but he has not been examined, therefore, link evidence in this case is missing. Again the argument is totally devoid of any merit. The case property was handed over on the same day to additional M.H.C. with seals intact. The case property was entered in the register No. 19. It was sent to the Office of the Chemical Examiner with seals intact. The person who took the case property has also been examined on oath. The Director, Forensic Science Laboratory, has also certified that the seals were intact and tallied with the specimen of the seal. In this view of the matter, I do not want to give much important to the submission of the learned counsel for the appellant. It was one of the arguments of the learned counsel that the other man who was apprehended at the spot alongwith accused has been acquitted and therefore, present appellant is also entitled to acquittal. The argument is without any force. I have to examine the evidence which would come on the record of the present case. The acquittal of the companion of the appellant has no relevancy. The judgment of acquittal can be looked into only for a limited purpose with regard to the factum of acquittal but the reasons of acquittal cannot be imported in the present judgment. Moreover, acquittal of the companion of the appellant is subjudice before the High Court as the State has come in appeal in this Court and the appeal has been admitted and the matter has to be heard in due course of law. Even acquittal of the accused in the present case will have no bearing on the State appeal because the law courts will also examine evidence which has been led on the record of a particular case. Moreover, the recovery of opium from the second accused is not by the present set of witnesses. The Investigating Officer might be different or might be the same.

No other point has been urged before me.

Resultantly, I do not see any merit in this appeal and dismiss the same.