Faquria Khan vs State of Punjab

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 18.9.1996, passed by the court of the Additional Sessions Judge, Sangrur, who convicted the present appellant Faquria Khan, u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, the appellant was directed to undergo R.I. for one year.

The brief facts of the case are that on 18.6.1994, ASI Surinderpal Singh accompanied by Head Constable Bikar Singh, Constable Bhupinder Singh and other police officials of Police Station, Malerkotla, set out for patrol and detection of suspects. They were proceeding towards Takhar Khurd from the side of Rajkot along with the bank of canal minor. When they were at a distance of 200 yards ahead of Raikot Road, appellant came there from the side of Takhar Khurd. In order to avoid detection, the appellant took turn towards the right side. At that time, he was carrying a gunny bag on his head. He was apprehended. The I.O. enquired from him as to whether he wanted to give the search of the bag in the presence of a Magistrate or a Gazetted Officer. The accused reposed confidence in the police party as a result of which, his statement, Ex.PA, was recorded. It was read over and explained to the appellant, who thumb marked the same in token of its correctness. Thereafter, the search of the bag was taken and poppy husk weighing 22 Kgs. was found. The I.O. prepared two samples of 250 grams each. The samples and the remaining poppy husk were separately sealed after making a sealed parcel with the seal bearing inscription `SS''. The seal after use was handed over to HC Bikar Singh. On further search of the appellant, a sum of Rs. 20/ was recovered. Accused could not produce any licence or permit for the possession of the poppy husk. Resultantly Ruqa Ex. PD, was sent to Police Station for the registration of the case and the formal F.I.R., Ex. PD/1, was registered. The I.O. also prepared the rough site plan, Ex. PE of the place of recovery. The accused and the case property were produced before Sampuran Singh, SHO, who verified the facts an resealed the case property with his own seal also bearing inscription `SS''. Thereafter, the case property was entrusted to the M.H.C. for safe custody. Ultimately, on 20.6.1994 the sample of poppy husk was sent to the office of the Chemical Examiner, through Constable Manoj Kumar, which was delivered on 21.6.1994. Vide report, Ex. PH, the Chemical Examiner declared the contents as chura of the poppy head and on the completion of the investigation of the case, the appellant was challaned in the court of the Sub Divisional Judicial Magistrate, who supplied the copies of the documents to the appellant free of cost as required under the law and vide commitment order dated 7.9.1994 committed the appellant to the court of sessions to face trial. Vide order dated 29.9.1994, the appellant was chargesheeted u/s 15 of the Act on the allegation that on 18.6.1994 at about 12.10 PM in the area of Village Sherwani Kot, he was found in conscious of 22 Kgs. of poppy husk without any licence or permit and thereby he allegedly committed an offence u/s 15 of the Act. The charge was read over and explained to the appellant, who pleaded not guilty and claimed a trial.

In order to substantiate the charge, the prosecution examined ASI Surinderpal Singh, PW1, PW2 Sampuran Singh and PW3 HC Bikar Singh. Constable Manoj Kumar, gave his statement on affidavit, Ex. PF. Finally, the prosecution tendered into evidence the affidavit, Ex. PG, of MHC Gurmail Singh, and the report of the Chemical Examiner, Ex. PH, and closed the case.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The appellant denied those circumstances and stated that he was taken away from his village and after illegal detention for a week, he was implicated falsely in this case.

In defence, the accused did not lead any evidence and closed the case.

The learned trial court believed the prosecution story and rejected the defence version. The appellant was convicted and sentenced in the manner as stated above and aggrieved by his conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Shri R.S. Rai, counsel for the appellant and Shri Randhir Singh, D.A.G., Punjab, appearing for the State and with their assistance have gone thorough the record of this case.

The frontal argument of the learned counsel for the appellant is that section 50 of the Act has not been complied with in a satisfactory manner. He submitted that the socalled consent memo, Ex. PA, is a fake document, as it does not lend any credence in the mind of the court that the alleged statement made by the accused was his genuine statement, especially when he has thumb marked underneath the said statement.

On the contrary, the learned counsel for the respondent submitted that the accused through his statement, Ex. PA, had categorically stated that he did not want to give the search of the bag in the presence of a gazetted officer or a Magistrate and that in this regard the statements of ASI Surinderpal Singh and Constable Bikar Singh are there and their statements should be believed.

After considering the rival contentions of the parties, I am of the considered opinion that the provisions of section 50 of the Act have not been complied with in a satisfactory manner. Section 50 has been introduced in the Act for the benefit of the accused. The recovery in this case is a day time recovery from a public place. It is the case of the prosecution that vide his statement, Ex. PA, the appellant wanted to shed his valuable right by stating that the search of the gunny bag can be taken by the I.O. in whom he had the confidence. In such a case, the expectation of the law would be that such a statement should be attested by an independent witness so as to lend credence in the mind of the court about the genuineness of the statement. In the present case, the statement has been attested by HC Bikar Singh and Constable Bhupinder Singh alone. It has not been shown by the I.O. in the said statement that he ever tried to associate any independent witness at the time of the recording of the statement, Ex. PA. In this view of the matter, a very long rope to the police cannot be given otherwise the liberty of no individual will be safe. It will give a blanket licence to an I.O. to put the liberty of a individual into jeopardy by taking the assistance of two police officials. Had it been the case of the prosecution that the recovery of the poppy husk was effected from the accused at odd hours and that in that situation it was not possible on the part of the I.O. to associate an independent witness, there would have been some merit in the contention of the counsel for the respondents, but in the present case, it is the admitted case of the prosecution that after the alleged recovery, a Constable was sent to bring the weights and scales to a nearby village. Such Constable could be asked to bring an independent witness before taking the search of the gunny bag when the I.O. conceived a reasonable belief that the appellant was carrying poppy husk. He could associate any passerby before recording the statement, Ex. PA. Even at the spot, the I.O. has not supplied the grounds of arrest nor he has issued any special report to the high authorities so as to lend credence in the mind of this court. Accordingly, I am inclined to hold that section 50 of the Act has not been complied with in a satisfactory manner and, therefore, the search and the seizure from the appellant are illegal.

Resultantly, I accept all this appeal, set aside the judgment and order of the trial court and acquit the appellant of the charge framed against him. The case property stands confiscated to the State and shall be destroyed according to the rules. The information regarding the acceptance of this appeal be sent to the Superintendent, Central Jail, Sangrur, so that the appellant may be set at large forthwith, if not required in any other case.