Gurcharan Singh vs State of Haryana

Dr. Sarojnei Saksena, J.

The appellant accused was convicted by the trial Court in Sessions Case No. 50/2 of 1986 under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the ''Act'') on the ground that on 2.2.1986 he was having in his possession 10 Kgs. of crushed poppy heads without any licence.

Prosecution case in short was that on 2.2.1986 SI Ram Singh (PW2) and HC Zile Singh (PW1) alongwith other police officials were present in Village Hinga Kheri in the evening. Ram Kishan (PW2) got secret information and on that basis the police party proceeded towards the house of the accused at 4.20 PM. They saw the accused coming out of his house carrying a gunny bag. On suspicion, he was apprehended and 10 Kgs of poppy husk was recovered from the gunny bag. He could not produce any permit or licence for its possession. 200 Gms. of the contraband article was separated and sealed in a packet as sample. The remaining contraband was sealed in the same gunny bag. Both the sealed parcels were brought to the Police Station and were kept in the Malkhana The accused was arrested. FIR was lodged. Site plan was also prepared. After completing usual investigation, challan was put up under the Act though initially FIR was recorded under Section 9 of the Opium Act.

The accused denied guilt. His plea is that of false implication. He examined Jagraj Singh in his defence.

During trial, prosecution examined SI Ram Kishan (PW2) and HC Zile Singh (PW1) submitted affidavits of HC Ishawar Singh and Constable Om Parkash. Report of the Chemical Examiner was also filed.

The learned trial Court weighed the prosecution evidence and came to the conclusion that the charge has been proved beyond doubt against the accused. He was convicted and sentenced to undergo R.I. for 10 years.

The State also filed Criminal Appeal No. 131SB of 1987 against the same judgment for enhancement of sentence as the trial Court has simply convicted the accused for 10 years R.I. without imposing sentence of fine of Rs. One Lac which is the minimum sentence of this offence. By this judgment both these appeals are disposed of.

The appellant''s learned counsel contended that though the accused was arrested on 2.2.1986 and this Act came into force on 14.11.1985 report was registered under Section 9 of the Opium Act. The mandatory provisions of the Act are not followed. No independent witnesses were joined at the time of search and seizure. Though the Investigating Officer received secret information, but he has failed to comply with the mandatory provisions of Section 50 of the Act. Thus, simply on the ground of violation of the these provisions, the trial is vitiated and the appellant is entitled to acquittal. He has relied on State of Punjab v. Balbir Singh, 1993(1) Recent Criminal Report 736) and Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, (1994(3) Recent Criminal Report 593) .

The learned Counsel appearing for the State contended that the Investigating Officer SI Ram Kishan (PW2) has clearly stated that he tried to join independent witnesses and Village Chowkidar also, but none was present. In these circumstances if independent witnesses were not joined at the time of search and seizure, the evidence of these police officials cannot be disbelieved. At the most Court is required to scrutinise the prosecution evidence with more care and caution. To strengthen the above contentions, she has relied on State of Punjab v. Ram Parkash (1977 P.L.R. 571). She further contended that this Act came into force on 14.11.1985 and on 2.2.1986 this contraband article was seized from the possession of the accused. Thus on the date of search the Investigating Officer was not aware of the provisions of this Act. Therefore, case under Section 9 of the Opium Act was registered.

From the statement of the Investigating Officer SI Ram Kishan (PW2) it is apparent that before this search he had secret information and thereupon he went towards the house of the accused. At that time he saw accused coming out of his house and proceeded in the lane carrying a gunny bag. In the lane itself the accusedappellant was apprehended and contraband article was seized from his possession. Prosecution has examined Ram Kishan (PW2) and Zile Singh (PW1) only to prove its case. Their statements are inconsistent. According to Zile Singh the accused was moving towards the east while according to Ram Kishan (PW2) the accused was moving towards the north. Zile Singh has further deposed that they went in a Matador which was parked on the road near the Chakki while according to Ram Kishan (PW2) they went in a jeep and left the jeep near the pond in the charge of ASI Koora Ram at a distance of about 1 Killa from the Chakki. Further as is contended by the appellant''s learned counsel, after receiving secret information the Investigating Officer Ram Kishan arrested the accused and took his personal search. Admittedly no independent witness was joined nor any attempt was made by the I.O. to give his personal search before he took the search of the accusedappellant. No doubt these two witnesses cannot be disbelieved simply on the ground that they are police officials. It their evidence inspires confidence and there is no oblique motive to implicate the accused falsely, the accused can be convicted on the basis of their sworn testimony. In this case I have noted above that the statements of these witnesses are discrepant on material points.

Further there is flagrant violation of the mandatory provisions of Section 50 of the Act. In Ali Mustaffa Abdul Rahman Moosa''s case (supra) and Balbir Singh''s case (supra) their Lordships of the Supreme Court have clearly laid down that if after receiving secret information (if it is not a chance recovery) any accused is arrested and his search is taken, he is required to be given an option to be searched before a Gazetted Officer or a Magistrate. Both the prosecution witnesses are totally silent on this point. The above argument that since the Act was enforced only few months back of the alleged search, Ram Kishan (PW2) was not aware of the provisions of this Act and hence he registered the case under Section 9 of the Opium Act, will not absolve the prosecution from the duty of complying with the mandatory provisions of Section 50 of the Act. The mandate is that if Section 50 is not complied with, the prosecution is vitiated and accused is entitled to acquittal. Ignorance of law cannot be an excuse for not following the provisions of law. These procedural safeguards are provided in the Act because the sentence provided for the offence under the Act is stringent. Hence I find that the evidence of these two prosecution witnesses is not wholly reliable and further as the mandatory provisions of section 50 are not compiled with, the prosecution is vitiated and the accused is entitled to acquittal on this count also.

Accordingly, the appeal filed by the accused appellant is allowed. His conviction and sentence are set aside. Bail bond is discharged.

Consequently, the appeal filed by the State (Crl. No. 131.SB/87) is hereby dismissed.