Dyal Singh vs State of Punjab

P.K. Jain, J.

This appeal is directed against the judgment and order dated December 22, 1986, passed by the Addl. Sessions Judge, Gurdaspur, whereby the appellant has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act'') and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/, or in default of payment of which to undergo further rigorous imprisonment for five years.

The prosecution case as unfolded by H.C. Gulzar Singh (PW 2) is that on 20.11.1985, he along with Constable Joginder Singh was patrolling the area of village Dhianpur towards village Kotli via link road. At about 3.00 p.m. they met H.C. Dalbir Singh and Constable Virkha Singh who had come from the side of village Kotli. When they were just talking, the appellant is alleged to have come from the southern side and on seeing the police party sat down at a distance of about 10 paces on the pretext of urinating. Suspicion having arisen, H.C. Gulzar Singh detained him and conducted his search. From the front pocket of the shirt worn by the appellant 200 grams of opium wrapped in a glazed paper was recovered. Five grams of the contents were separated by way of sample. The sample contents and the remaining contents were converted into sealed parcels with the seal of ''GS'', which after use was handed over to HC Dalbir Singh. Recovery memo Exhibit PA was prepared. Since the appellant could not produce any permit for keeping the said opium with him, H.C. Gulzar Singh sent ruqaExhibit PC to Police Station, Dera Baba Nanak, on the basis of which Additional MHC Lakhwinder Singh recorded FIR, copy of which is Exhibit PC/I Rough site plan Exhibit PD of the site of recovery was prepared. The sample parcel was sent to the Chemical Examiner and report Exhibit PE was received. After completing the investigation, a chargesheet was filed against the appellant.

In support of its case the prosecution examined five witnesses. HC Dalbir Singh (PW 1) is a witness of the recovery. HC Gulzar Singh (PW 2) is the Investigating Officer. HC Lakhwinder Singh (PW 3) had recorded the FIR of this case. HC Gurdip Singh (PW 5) had taken the sample parcel to the office of the Chemical Examiner.

In his statement under Section 313, Code of Criminal Procedure, the appellant denied the allegations of the prosecution and stated that opium was planted upon him by the police. He examined three witnesses in his defence. HC Malkiat Singh (DW 1) had brought the roznamcha regarding the duties of HC Gulzar Singh and Additional MHC Lakhwinder Singh. Santokh Singh (DW 2) is the Sarpanch and RakhaDW 3 is the Chowkidar of village Gowara. Both these witnesses have deposed that a person in plain clothes had come and taken away the appellant to the Police Station.

The learned trial Court, placing reliance on the testimony of HC Gulzar Singh (PW 2), HC Dalbir Singh (PW 1) read with the report Exhibit PE received from the Chemical Examiner, convicted and sentenced the appellant as stated above.

I have heard the learned counsel for the appellant as well as the learned counsel for the State. With their help I have also gone through the record of the trial Court.

Learned counsel for the appellant has argued that HC Gulzar Singh was not an empowered officer under the provisions of the Act to detain and search the appellant, nor he was authorised under the Act to investigate this case. It has been further argued by the learned counsel that the provisions of Sections 50, 53, 55 and 57 of the Act have not been complied with which is fatal to the prosecution case. It has been highlighted by the learned counsel that HC Gulzar Singh never made any effort to join independent public persons to witness the search of the appellant. It has been pointed out that HC Gulzar Singh could not be on patrolling duty as deposed by him, since he was posted for a specific purpose at a specified place. Thus, it is argued by the learned counsel that the conviction and sentence of the appellant are not sustainable.

On the other hand learned counsel for the State has argued that there was no prior information with HC Gulzar Singh and he had detained and conducted the search of the appellant merely on the suspicion having been arisen and as such the provisions of the Act are not attracted. It has also been pointed out that the place of recovery was not frequented by visitors or passersby and as such no independent public person could be joined to witness the said search. While supporting the judgment of the trial Court, learned counsel for the State has pointed out that HC Gulzar Singh (PW 2) and HC Dalbir Singh (PW 1) had no enmity or any motive to implicate the appellant falsely in this case.

After giving my careful thought to the respective arguments advanced at the Bar, I agree with the learned counsel for the appellant that the origin and genesis of the prosecution story appear to be doubtful. HC Malkiat Singh DW I had brought the Daily Diary Register of Police Station, Dera Baba Nanak, where HC Gulzar Sigh (PW 2) was posted at the relevant time. On the basis of the entry made in the said register HC Malkiat Singh DW 1 has categorically stated that HC Gulzar Singh (PW 2) was deputed as defence guard in the premises of the temple of Dhianpur. He has also stated that a temporary Police Post had been established in that village during those days. HC Gulzar Singh (PW 2) has admitted this fact in his crossexamination, but has tried to make out a case that he had the directions from the SHO that they had to keep vigil all around village Dhianpur and to have the round of the premises was within the ambit of his duty. He has also stated that the scales and weights were with him in the investigating bag. When HC Gulzar Singh was deputed for a specific purpose as a defence guard in the premises of the temple of Dhianpur, the question of his going for patrolling duty around the village along with a bag meant for investigating officer, could not have arisen since it was contrary to the duties assigned to him. No entry of any register either of Police Station Dera Baba Nanak or that of the Police Post Dhianpur has been produced on the record to prove that any such duty was assigned to HC Gulzar Singh or that on 28.12.1985 he along with Constable Joginder Singh had gone for patrolling in the area. This fact which creates a dent in the prosecution story cannot be overlooked in a casual manner.

According to the prosecution case, HC Gulzar Singh had no prior information regarding the possession of any narcotic drug by the appellant and as such he conducted the search of the appellant on his suspicion having been arisen and accordingly the provisions of the Act are not attracted to the present case. Earlier there was a lot of controversy on this subject which now stands resolved by the judgment of the Apex Court rendered in State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 736 (SC) : JT 1994(2) SC 108. After examining the various provisions of the Act, read with the relevant provisions of the Code of Criminal Procedure, their Lordships made the following observations :

"If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act."

From a bare perusal of this provision, it is evident that immediately after the opium is alleged to have been recovered from the appellant, it was the bounden duty of HC Gulzar Singh (PW 2) either to hand over further investigation to the Officer Incharge of the Police Station, Dera Baba Nanak, or at least to proceed with further investigation in accordance with the provisions of the Act. Admittedly, HC Gulzar Singh did not hand over the investigation of the case to the Officer Incharge of the Police Station, nor he complied with other provisions of the Act, for the reasons best known to him.

One of such provisions which was essentially to be complied with, is contained in Section 55 of the Act which reads as under :

"55. Police to take charge of articles seized and delivered : An officerincharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officerincharge of the police station."

This section enjoins a duty upon an officerincharge of the Police Station to receive and keep the goods and articles seized under this Act within the local area of the Police Station. He is also required to affix his own seal to all the samples. The clear intention of the Legislature was a fair investigation by putting the seized material beyond the reach of the seizing officer, and by eliminating the possibility of the sample being tampered with till the same reached the hands of the Chemical Examiner. The aforesaid provisions having incorporated with the manifest object that the senior officers can be trusted to be fair in investigation and not indulging in dubious practices. When the prescribed procedure is abandoned, it gives rise to a gnawing suspicion that the officers at the junior level could have, for certain oblique reasons, rope in an innocent individual.

In the present case, it is the admitted case of the prosecution itself that HC Gulzar Singh had not produced the sealed parcels containing the sample opium and the remaining opium before the Officer Incharge of the Police Station i.e. the SHO, Police Station, Dera Baba Nanak, nor the said SHO had affixed his seal at least on the sample parcel. This fact gains importance in the context that the seal after use is alleged to have been handed over by HC Gulzar Singh to his own colleague, HC Dalbir Singh (PW 1), who was also posted at the same Police Station. In other words there was a clear violation of the mandate contained in Section 55 of the Act, which in itself strikes at the root of the prosecution case.

Learned counsel for the appellant is justified, under the circumstances discussed above, to contend that what to speak of joining an independent person to witness the search of the appellant, HC Gulzar Singh did not make any effort to do so. The place of occurrence is admittedly at a short distance i.e. 100 to 200 yards from village Dhianpur, a school and a hospital therein. The time of the alleged recovery is stated to be 3.30 p.m. Once the appellant was detained on the suspicion having arisen, HC Gulzar Singh had the time and opportunity and the means at his hands to procure independent public persons from village Dhianpur before conducting the search of the appellant. The police party at that stage consisted of two Head Constables and two Constables. No explanation, whatsoever, has been given by HC Gulzar Singh for not making any effort to join any independent public person to witness the search of the appellant. Even though the statute does not make it obligatory, as a rule of prudence the police officer should carry out the search, if it is possible to secure the presence of respectable witnesses, in their presence. The Courts will be extremely reluctant to uphold the prosecution case which is solely based on recovery made as a result of search not witnessed by independent and respectable persons, unless it was unreasonable and impracticable to procure the presence of such witnesses. Therefore, the fact that HC Gulzar Singh did not even think of making an effort to join independent public person to witness the search of the appellant further creates suspicion in the alleged recovery from the appellant.

For the foregoing reasons, I hold that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. Consequently this appeal succeeds, the conviction and sentence of the appellant are hereby set aside and he is acquitted of the charge under Section 18 of the Act. The appellant is already on bail. His bail bond and surety bond stand discharged.