Gejo vs Punjab State

R.L. Anand, J.

This is a criminal appeal filed by Smt. Gejo, and has been directed against the judgment and order dated 22.8.1998, passed by the Court of Addl. Sessions Judge (Special Judge), Mansa, who convicted the appellant u/s 15 of the NDPS Act and sentenced her 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 prosecution story are that on 21.1.1996, the police party headed by SI/SHO Hardavinder Singh, Police Station, Joga, was on patrol duty and they were going in a private jeep towards Village Makha Chehlan. When the police party reached on the bus stand of Village Ralla, Baldev Singh, Sarpanch, was associated with the police party. Thereafter, the policeparty proceeded further on the side road of Canal minor. They noticed the appellant going towards village Makha Chehlan carrying a bag on her head. On seeing the police, party, the appellant tried to escape but was apprehended on the basis of suspicion. She disclosed here named as Gejo wife of Biru resident of Village Handiaya. The Incharge of the police party, Hardavinder Singh told the appellant that he wanted to take search of the bag and whether she was interested to give the search in the presence of a Magistrate or a gazetted officer. The appellant told to the SHO that she was not ready to give the search to him, rather she was ready to give the search in the presence of a female police constable in the presence of a senior officer. The consent memo of the appellant was prepared. Thereafter, DSP Joginder Singh was requested to come at the spot along with some lady Constable. DSP Joginder Singh reached at the place along with lady Constable Virpal Kaur and in the presence of DSP Joginder Singh, the search of the bag was taken and on search of the bag being carried by the appellant, poppy husk was found. The SHO separated 100 grams of poppy husk by way of sample and the remaining poppy husk was weighed, which came to 15 kgs. The same was also put in a bag and the entire case property was sealed with the seal of the SHO bearing inscription `HS'' and it was taken into possession. The appellant was formally arrested. The grounds of arrest were also given to her. The case property was deposited in the police station on the same day in safe custody. Ultimately, the sealed sample with the sample seal were sent to the office of the Chemical Examiner, who vide separate report declared the contents as Chura of Poppy Head and on the completion of the investigation of the case, the appellant was challaned in the court of the Illaqa Magistrate, who supplied the copies of the documents to the appellant free of cost as required under the law and vide commitment order dated 24.4.1996 committed the appellant to the court of sessions.

Vide order dated 10.5.1996, the appellant was chargesheeted u/s 15 of the Act on the allegation that on 22.1.1996 in the area of Village Ralla, she was found in possession of Poppy Husk weighing 15 kgs without any licence or permit and, thereby, 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 DSP Joginder Singh, PW1, Constable Gurjant Singh, PW2, and IO Hardavinder Singh, PW3. Baldev Singh, independent witness, was given up as having been won over by the accused and finally the prosecution tendered into evidence the affidavits of the formal witnesses besides the report, Ex. PK, of the Chemical Examiner 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. Accused denied those circumstances and stated that she had been falsely implicated. She had come to her parents'' house to see her parents. Her father''s sister who is working in police Station, Joga, quarrelled with her and on her instance she had been falsely implicated in this case.

In defence, the accused examined Dev Singh, DW1, who stated that there was a dispute between the present appellant and Smt. Bibo, who used to go to the police station for doing labour work. At her instance Gejo has been falsely implicated. This witness went to the police station for the release of the appellant and it was assured that she would be let off in a short while. Later on, the present case was planted upon her.

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 her conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Shri A.S. Jattana, counsel for the appellant and Shri Randhir Singh, DAG, Punjab, appearing on behalf of the State of Punjab, and with their assistance have perused the record of this case.

After going through the record, I am of the considered opinion that the prosecution has not been able to prove the charge against the appellant beyond a reasonable doubt. There is a glaring procedural defect in the investigation of this case as the mandatory provisions of section 50 of the Act have not been complied with in a proper manner. It was the case of the prosecution at the very beginning that the I.O. told the appellant as to whether she wanted to give her search in the presence of a Gazetted Officer or a Magistrate. It is also the case of the prosecution that before the apprehension of the appellant, the services of one Baldev Singh, Sarpanch of village Ralla were taken. Baldev Singh was not been examined in this case. Now, it is to be seen whether the mandatory provisions of Section 50 of the Act have been complied with in this case or not. The substantive statement of Hardavinder Singh would show that in fact he gave a partial offer, though it was mentioned in the Ruqa, Ex. PF that he enquired from the appellant as to whether she wanted to give the search of the bag in the presence of a Gazetted Officer or a Magistrate. I would like to reproduce the statement made by Hardavinder Singh, IO, in his own words. The same reads as under :

"I told that some incriminating articles were seemed to be in gunny bag. Her personal search could be got conducted. I asked her whether she wanted to be searched in the presence of lady police, Gazetted Officer or higher officer.

The IO nowhere states while making the substantive statement in court that he asked the appellant as to whether she wanted to give the search in the presence of a Magistrate also. Section 50 of the Act which has been incorporated for the benefit of the accused, lays down that it is obligatory on the part of the IO to apprise the person to be search of his right. This section talks of Magistrate, or Gazetted Officers as mentioned in Section 42 of the Act. If an enactment prescribes a particular mode of taking the search, it has to be taken in that very fashion and the I.O. is not left with any discretion of his own but to comply with the statute and its enactment.

There is one more defect for which a reasonable benefit of doubt can be given to the appellant. As per section 50 of the Act, the search of a female has to be taken in the presence of a female. According to the prosecution, the services of two lady constables were taken and one of them was Virpal Kaur. But, strange enough, Virpal Kaur has not been examined. The non examination of lady constable in whose presence, admittedly, the search was conducted, is fatal in this case. Due to the nonexamination of lady Constable and Baldev Singh, implicit reliance on the testimony of DSP Joginder Singh and IO Hardavinder Singh, cannot be placed.

In this view of the matter, I allow this appeal, set aside the judgment and order of the trial court and acquit the appellant of the charge framed against her. The case property stands confiscated to the State and shall be destroyed according to law. Information about the acceptance of this appeal be sent to the Superintendent, District Jail, Bathinda, and the appellant shall be released forthwith, it not wanted in any other case.

Before I part with this judgment, I would like to bring to the notice of the I.O. and the prosecution agency that when a lady has been arrested in such like cases in the presence of a lady Constable or lady officer, the prosecution should make sincere efforts for the examination of such lady constable or lady officer in court so that the witness should be able to corroborate the allegations of the prosecution.

Let a copy of this judgment be sent to the Director General of Police, with the directions to circulate the same to the SSPs concerned so that the matter should be brought to the notice of the Investigating Agency/prosecution agency.