Gurcharan Singh vs State of Punjab

R.L. Anand, J.—This criminal appeal has been directed against the judgment and order dated 16th August, 1996 passed by the Court of Additional Sessions Judge, Faridkot, who convicted Appellant Gurcharan Singh u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ''''Act'') in case F.l.R. No. 115, dated 1st October, 1994 registered at Police Station Lambi, and sentenced the Appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000. In default of payment of fine the Appellant was further directed to undergo rigorous imprisonment for a period of one year more. Against the order of conviction and sentence, the Appellant has filed the present appeal.

Brief facts of the case are that on 1st October, 1994 A.S.I. Mukhtiar Singh of Police Post Killian Wali, along with Head Constable Mohinderjit Singh, P.H.G. Ajit Singh and other police officials were returning from the side of village Singhewala Fatuhiwala after patrolling in Government vehicle bearing registration No. PB-04B-9568 and the police party was proceeding towards police post Killian Wali. When the police party crossed village Singhewala Fatuhiwala and covered about one kilometre via kacha path, accused Gurcharan Singh was seen coming from the opposite side. He was having a bag in his hand and on seeing the police party, he turned towards the fields towards his right side. On suspicion, he was stopped. In the meanwhile, independent witness Hansa Singh of village Singhewala Fatuhiwala came there and he was associated. Thanedar Shri Mukhtiar Singh told Gurcharan Singh accused that the former had suspicion upon the latter and whether the latter wanted to give the search in the presence of a Gazetted Officer or a Magistrate. The accused, however, reposed confidence in the Thanedar, who recorded the consent statement (Exhibit PA), which was read over and explained to the Appellant, who signed the same in token of its correctness and it was attested by Head Constable Mohinderijt Singh and independent witness Shri Hansa Singh. The statement was also attested by A.S.I. Mukhtiar Singh. Thereafter the search of the person of the Appellant was taken. From the bag, which the accused was holding in his right hand, opium was recovered. On, weighment, it came to 2 kgs. The Thanedar took out 10 grams of the opium as a sample and made a sealed parcel thereof. The remaining opium was separately sealed. Both the parcels were sealed with the seal of Mukhtiar Singh, A.S.I. The seal after use was handed over to independent witness Hansa Singh. The entire case property was taken into possession vide recovery memo. Exhibit PB, which was attested by the said witnesses. From the Jama Talashi of the Appellant, a sum of Rs. 5,000 was recovered and this currency was taken into possession vide recovery memo. Exhibit PC. The grounds of arrest were also supplied to the accused vide memo. Exhibit PD. The accused could not produce any licence or permit for the possession of the opium. Resultantly, Ruqa Exhibit PG was sent to Police Station for the registration of the case through Constable Nirmal Singh, on the basis of which formal first information report (Exhibit PG/1) was recorded. Rough site plan of the place of recovery was prepared, which is Ex. PH. Thanedar recorded the statements of the witnesses. Thereafter, the accused and the case, property along with the sample of the opium and the seal were produced before S.H.O. Pirthi Singh. The S.H.O. checked the seal on the case property, sample and found the same intact. The S.H.O. then put his seal thereon. Thereafter, the accused along with the case property was also produced before the Illaqa Magistrate on the same day, vide application Exhibit PF, on which the Magistrate made an endorsement Exhibit PF/1. Finally, the case property was deposited with Moharrir Head Constable Major Singh at Police Station Lambi. The sample of the opium was sent to the office of the chemical examiner, who vide report Exhibit PK declared the contents as opium. On the completion of the investigation of the case, the accused was challaned in the Court of Illaqa Magistrate, who supplied copies of the documents to the accused and vide commitment order dated 2nd January, 1995 committed the accused to the Court of Session in order to face the trial. On 1st February, 1995, the Additional Sessions Judge, Faridkot, framed a formal charge u/s 18 of the Act. It was read over and explained to the accused-Appellant, to which he pleaded not guilty and claimed the trial.

In order to prove the charge, the prosecution examined Head Constable Mohinderjit Singh, who appeared as P.W. 1. Head Constable Major Singh (P.W. 2) tendered his statement by way of affidavit Exhibit PE. P.W. Hansa Singh was given up by the prosecution as having been won over by the accused. Inspector Pirthi Singh (P.W. 3) deposed about the double seal. Investigating Officer Mukhtiar Singh appeared as P.W. 4. P.W. 5 Constable Jaspal Singh gave his statement by way of affidavit Exhibit PJ. Finally after tendering into evidence the report of the Chemical Examiner, the case of the prosecution was closed by the prosecution.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313, Code of Criminal Procedure and all incriminating circumstances appearing in the prosecution case, were put to him, who denied the same and stated as follows:

I am innocent. I was brought from my house along with money in the presence of Gurjant Singh son of Sarwan Singh and Wasakha Singh Lambardar, and after my illegal detention this false case was planted upon me though nothing incriminating was recovered from my possession.

In defence Wasakha Singh appeared as D.W. 1, and Sarwan Kumar, Nazir Malkhana, appeared as D.W. 2.

The learned trial court relied upon the story of the prosecution and convicted and sentenced the Appellant in the manner stated above.

I have heard Shri Jaspreet Singh, Advocate, appearing on behalf of the Appellant, and Shri J.S. Brar. Deputy Advocate General, Punjab, appearing on behalf of the State, and with their assistance have gone through the record of this case.

Though it was stressed vehemently by the learned Counsel appearing on behalf of the Appellant that the mandatory provisions of Section 50 of the Act have not been complied with in a lawful manner and for that reason, the Appellant is entitled to acquittal, yet I arn not convinced with the argument raised by the learned Counsel for the Appellant. The counsel elaborated his argument by submitting that the Thanedar Mukhtiar Singh had not given notice in writing to the Appellant in order to inquire about his consent whether the Appellant wanted to give the search in the presence of the Magistrate or a Gazetted Officer. There is no law to this effect that every notice of consent has to be given by the Investigating Officer in writing. Even this type of notice can be oral or in writing. It depends upon person to person how he wants to record the consent statement of the accused. Section 50 of the Act even does not enjoin the duty upon the Investigating Officer to record the statement in writing of the Appellant. It will again depend upon the appreciation of evidence of the Investigating Officer. Rule of prudence, however, requires that when according to the allegations of the prosecution, the accused does not want to avail the benefit of the Magistracy or of a Gazetted Officer, in such like cases it is always expected from the side of the Investigating Officer that he should record the statement of the accused in writing because the accused is shedding a very valuable right in favour of the Investigating Officer, who might be an interested witness in the heart of his hearts in order to achieve the success of the case. Exhibit PA is a document which indicates that there was an oral conversation between the Investigating Officer and the accused. The Investigating Officer did inquire from the Appellant whether he wanted to give the search in the presence of a Gazetted Officer or a Magistrate. The Appellant gave the consent in favour of the Investigating Officer. Resultantly, the consent memo. Exhibit PA was prepared. It is attested by Shri Hansa Singh, Head Constable Mohinderjit Singh besides the Investigating Officer. In these circumstances I do not see any weight in the submission raised by the learned Counsel for the Appellant that the Appellant is entitled to acquittal on the sole ground that the Investigating Officer did not serve the notice in writing before preparing the memo. Exhibit PA.

Still the point which survives for determination is whether on the facts in hand, the learned trial court was justified in recording the conviction against the Appellant and the considered answer of this Court is in the negative. As per allegation of the prosecution in this case, the alleged recovery was affected in the presence of Shri Hansa Singh, who has not been examined by the prosecution. He was given up on the plea that he has been won over by the accused as the Public Prosecutor had seen this witness talking with the relatives of the accused outside the Court Room. Learned Counsel for the Appellant submitted that it is highly unsafe to rely upon the statement of Shri Mohinderjit Singh P.W. 1. And S.I. Mukhtiar Singh P.W. 4. When there is no independent corroboration. The contention of the learned Counsel for the Appellant is partly correct to the extent that when the Investigating Officer had not summoned any Magistrate or a Gazetted Officer before taking the search of the person, there should be some corroboration by way of rule of caution, so as to find out whether the testimony of the police officials should be straightaway relied upon or not. There is no rule of law that before acting upon the statements of the police officials/officers, the independent witness must be there. Every case will depend upon facts to facts. In this case, admittedly the recovery was affected in the presence of Shri Hansa Singh, who has not been examined. The Investigating Officer has not taken the assistance of a Gazetted Officer or a Magistrate. No notice in writing was given. The investigation of this case was never verified by a Gazetted Officer. The accused was not produced before a Gazetted Officer after his arrest, so as to lend confidence in the mind of the Court about the statement of the Investigating Officer and that of Shri Mohinderjit Singh, Head Constable. Even the statements of Shri Mohinderjit Singh, Head Constable, and that of Shri Mukhtiar Singh, Investigating Officer, were not recorded by the trial court on one day. The statement of Shri Mohinderjit Singh was recorded on 6th September, 1995. A specific request was made to defer the cross-examination of Shri Mohinderjit Singh, so that the other witness Shri Mukhtiar Singh may be examined on the same day. This was not approved by the learned trial court. Resultantly, Shri Mohinderjit Singh was examined on 6th September, 1995, while the statement of Shri Mukhtiar Singh was recorded on 5th July, 1996.

Further even the statement of Shri Mukhtiar Singh does not inspire any confidence. According to this witness, when the police was earlier patrolling before the arrest of the accused, it did not stop anywhere except at the place of recovery and nobody was checked during the course of patrolling except the accused. It is not legal because the object of the patrolling party was to patrol the area in order to apprehend the suspects. Even the association of Shri Hansa Singh; as alleged by the prosecution, appears to be do".btful and for that reason perhaps he was not inclined to support the allegations of the prosecution. The Investigating Officer took the trouble in deputing a Constable to go to a nearby village in order to bring the scale and the weights for the purpose of weighment of the opium, but he did not give the instructions to the Constable to take the services of a respectable man such as Lambardar or Sarpanch of the village for the purpose of association in the investigation. This would have given a lot of confidence in the mind of the Court about the genuineness of the recovery. Thus, the position which emerges out is that though the consent memo was prepared in the presence of Shri Hansa Singh, yet Shri Hansa Singh has not corroborated anything about this fact. The only independent witness Shri Hansa Singh has been withheld. The Investigation of this case was never verified by a Gazetted Officer nor was the accused produced before the Gazetted Officer or the Magistrate for the purpose of verification of the investigation. No special report was issued to the Higher Authorities about the recovery. The evidence of the police officials/officers can become the basis of conviction only if it inspires confidence in the mind of the Court, which is lacking in thi^ case. It has been held in B. S. Hari, Commandant (Retd.) v. Union of India, 1997 (4) RCR 422: 1998 (2) EFR 209 (P&H), that before recording a conviction under the N.D.P.S. Act, it is for the Court to see that there is overwhelming, cogent and positive evidence available on the record showing that no other view is possible than the one that such an accused has committed an offence under the provisions of the N.D.P.S. Act. By applying the above principle of law, it can be safely concluded in this case that cogent, reliable and overwhelming evidence is totally missing in this case. The fate of the convict cannot be allowed to be adjudicated on the bald and improbable statements of one A.S.I, and one Head Constable when the investigation does not inspire confidence. In Dalbir Singh v. State of Punjab 1998 (1) RCR 879: 1998 (1) ERR 636 (P&H). it was held by the single Bench of this Court that it would not be just to impose heavy punishment on the accused on uncorroborated testimony of official witnesses and that it is a cardinal principle of criminal jurisprudence that "graver the offence, stricter the proof."

In the light of the above discussion, I am of the considered opinion that the trial court was not justified in recording the conviction against the Appellant on the unsatisfactory evidence, which has been led by the prosecution. Therefore, I allow this appeal, set aside the judgment and order of conviction and sentence and acquit the Appellant of the charge framed against him. The case property shall, however, stand confiscated to the State, which shall be destroyed according to the rules.