Darshan Singh vs State of Punjab

Harphul Singh Brar, J.

This is an appeal against the judgment/order dated 6.7.95/28.9.1995, of Additional Sessions Judge, Ambala, vide which accused appellant Darshan Singh was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called ''the Act'') and sentenced to undergo ten years rigorous imprisonment and a fine of rupees one lac. In default of payment of fine he was further ordered to undergo rigorous imprisonment for a period of two years.

Briefly stated the facts of the case are that on 15.6.1992, Harpal Singh, Sub Inspector, accompanied by H.C. Hari Singh, H.C. Karan Singh, constable Suresh Chand, Inder Singh and Jagat Singh, left the Police Station, C.I.A. Staff, Panchkula in connection with patrol duty and crime detection and when they were present on the crossing of industrial area, received a secret information that a young sikh boy aged about 23/24 years is coming from the side of Sector19, Panchkula, carrying some opium and can be apprehended red handed. On this information police party formed a raiding party and informed the D.S.P. Panchkula regarding the raid on wireless. In the meantime, the accused was seen coming from the side of Sector19, Panchkula who on seeing the policeparty tried to turn back but on suspicion he was apprehended. In the meantime, the D.S.P. also appeared who enquired into the matter and asked Harpal Singh S.I. to conduct the search of the accused. The search was conducted and from the search one kilogram of opium wrapped in a cloth tied across the waist was recovered. Out of the recovered opium two samples weighing 100 grams each were taken out and sealed into parcels by using the seal B.S. and were taken into possession vide memo Ex.PA. Ruqa Ex.PB was sent to the PoliceStation on the basis of which FIR Ex. PB/1 was recorded. Site Plan Ex.PC was also prepared. Case property was deposited with the MHC. In due course, sample was sent to the office of Forensic Science Laboratory, Madhuban, for analysis and vide report Ex.PZ the sample was declared to be of opium. After completion of investigation, the accused was challaned and was sent to the Court to face trial. The case was committed to the Court of Session by the learned Ilaqa magistrate. The accusedappellant was charge sheeted under Section 18 of the Act to which he did not plead guilty and claimed trial.

The prosecution in order to substantiate its story has examined as many as five prosecution witnesses and also tendered into evidence affidavits Exs. PX and PY and report Ex.PZ of the Forensic Science Laboratory.

Statement of the accused under Section 313 Cr.P.C was recorded and all the incriminating circumstances were put to him. He denied all the incriminating circumstances put to him and claimed himself to be innocent. The accused took a specific stand that he was having nothing in his possession when he was apprehended by the police and that he has been falsely implicated in this case.

After hearing the learned counsel for the parties and perusing the record, the learned Additional Sessions Judge convicted and sentenced the accused appellant as stated above.

Learned counsel for the appellant submits that the appellant is liable to be acquitted as mandatory provisions of Section 50 of the Act have not been complied with; independent witnesses have not been jointed inspite of secret information, link evidence is missing and there is delay in sending the sample to the Chemical Examiner.

Section 50 of the Act provides that 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.

There is no denying the fact that no offer was made to the accused as envisaged under Section 50 of the Act. Harpal Singh, SI, PW.5 who conducted the search of the accused did not mention at all at the trial in his examinationinchief about the offer given to the accused as is provided under Section 50 of the Act. He simply mentioned in his examinationinchief that the D.S.P. had told him to conduct the search of the accused. He then conducted the search of the accused and found 1 Kilogram of opium wrapped in a cloth tied across the waist of the accused. When crossexamined he only stated as under :

"I asked the accused whether he wanted his search before any gazetted Officer or not. The accused consented his search before me or D.S.P. I did not record the statement of the accused in this regard."

P.W.3, Hari Pal, ASI who was also one of the members of the raiding party also did not say any thing in his examinationinchief as to whether any offer having been given to the accused for search being conducted before the gazetted Officer or a Magistrate. He has simply stated in his examination inchief that Harpal Singh, SI searched the person of the accused and he found one Kilogram of opium wrapped in a cloth tied on the waist of the accused.

Bishan Singh, DSP, PW 2 also did not say anything which could show that Section 50 of the Act was complied with. He simply stated in his examinationinchief at the trial that the accused was apprehended and was searched in his presence.

It is, thus, amply proved from the statements of these PWs themselves that mandatory provisions of Section 50 of the Act were not complied with. Appellant''s conviction is liable to be set aside on the ground of non compliance of mandatory provisions of Section 50 of the Act itself.

The learned counsel for the appellant has further submitted that even the link evidence is missing in this case. It has come in the evidence of PW.3 ASI Hari Pal and P.W.5 S.I. Harpal Singh who allegedly recovered opium after searching the accused that two samples of 100 grams each were taken out from the recovered opium and were sealed into parcel by using the seal ''BS'' and then was taken into possession vide memo. Ex. PA. Satish, Head Constable had tendered into evidence his affidavit Ex.PX. In his affidavit he has stated that on 15.6.1992 Shri Harpal Singh, SI had deposited with him case property consisting of two samples of 100 grams each. He further stated in his affidavit that on 20.7.1992, after taking out one parcel of the above two parcels from the malkhana sealed with the seal of ''BS'' he handed over to Constable Babu Ram for sending the same to the Director, Forensic Science Laboratory, Madhuban who after sending the sample gave the receipt showing the deposit of the parcel with the Forensic Science Laboratory to him. He then stated in his affidavit that during the period the case property and the sample remained with his possession neither he tampered with it nor he allowed any body to tamper with it.

Thus, it is evident that the sample of opium alleged to have been recovered from the accused consisted of 100 grams of opium but the report of the Chemical Examiner discloses that the sample of opium which was sent to him for analysis consisted of only 83.3 grams of opium. It means the sample alleged to have been recovered from the accused was not the same which was sent to the Forensic Science Laboratory for analysis.

It is further an admitted case of the prosecution that the sample of opium which was alleged to have been recovered from the accused on 15.6.1992 was sent to the Forensic Science Laboratory only on 20.7.1992. This delay in sending the sample to the Forensic Science Laboratory also causes a dent in the prosecution story and when read with the above said facts it is further fortified that the sample allegedly recovered from the accused was not the same which was sent to the Forensic Science Laboratory and, thus, it is proved that the alleged sample of opium taken from the accused was not the same which was sent to the Forensic Science Laboratory and it was tampered with. The accused, thus, cannot be said to be in possession of opium alleged to have been recovered from him as the sample taken out of the opium allegedly recovered from the accused was not sent to the Chemical Examiner as the sample taken in this case from the accused was of 100 grams but the sample which was tested in the Laboratory by the Chemical Examiner consisted only of 83.3 grams of opium.

In these circumstances, nonjoining of independent witnesses despite secret information to the police also causes a doubt on the alleged recovery of opium from the accused and in the circumstances to rely upon the police witnesses only shall not be safe to convict the accused for the charge framed against him.

In view of my discussion made above and particularly when mandatory provisions of Section 50 of the Act have not been complied with, link evidence is missing to connect the accused with the alleged recovery and independent witnesses have not been joined despite the secret information available with the police about the accused having opium in his possession, I find the conviction of the accused is not in accordance with law.

Resultantly, this appeal is accepted, judgment/order dated 6.7.95/28.9.1995 of Additional Sessions Judge, Ambala convicting the appellant Darshan Singh is set aside and the appellant is acquitted of the charge framed against him.