Gurmeet Singh vs State of Punjab

Harbans Lal, J.—This appeal is directed against the judgment/order of sentence dated 14.8.2001 passed by the Court of learned Judge Special Court, Rupnagar whereby he convicted and sentenced the accused Gurmeet Singh to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lac and in default of the same to further undergo rigorous imprisonment for two years u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, `the Act'').

As set up by the prosecution, on 19.2.1997, the Sub Inspector Gurvinder Pal Singh among other police officials including ASI Malwinder Singh happened to be present near Village Mianpur being on patrol duty, where he received secret information that the accused Gurmeet Singh is selling poppy husk near Sagrao River in the area of Panjola by sitting beneath the Kikkar tree and if a raid is conducted, he can be caught red handed. This information was embodied into the ruqa and sent to the Police Station where on its basis formal FIR was registered. Jarnail Singh an independent witness was co-opted with the police party. When the police party arrived at the aforesaid place, the accused was found in possession of 3 bags of poppy husk. He was allegedly sitting on two bags, whereas the third one was lying in front of him. One lantern and a dibba of one litre were also lying there. The accused was offered to be searched before a Gazetted Officer or a Magistrate. He opted to be searched in the presence of a Gazetted Officer. Thereafter DSP Joginder Kumar was called through wireless message. He disclosed his identity to the accused and asked as to whether he wants to have search of the bags before him or in the presence of a Magistrate. He expressed his faith in the DSP. On search, the bags were found containing poppy husk. Their contents when weighed came to 79 kgs in all. Two samples of 250 grams were drawn from each bag. The same were converted into parcels. The remainder of each bag was also made into parcel. These parcels were sealed with seal `MS''. The signed chit of the aforesaid DSP was also affixed on the bags as well as the sample parcels. All the parcels were seized. The accused was arrested. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused.

The accused was charged u/s 15 of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined MHC Nikka Ram PW1, ASI Malwinder Singh PW2, DSP Joginder Kumar PW3, SI Gurvinder Pal Singh PW4, Constable Harnek Singh PW5 and closed its evidence. When examined u/s 313 of Cr.P.C, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication. He did not adduce any evidence in defence. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has come up in this appeal.

This case was listed number of times for arguments and was also displayed on the net, but despite that none had come forward to argue the same on behalf of the appellant.

I have heard the learned State Counsel, besides perusing the record with due care and circumspection.

The first ground taken up in the grounds of appeal is that the learned trial Court has erred in not taking into consideration the fact that the provisions of Section 50 of the Act have not been complied with. To gloss over it, Mr. Salana on behalf of the State argued that the recovery was effected from the bags and that being so, the provisions of Section 50 of the Act were not attracted. This contention merits rejection.

It is in the evidence of SI Gurvinder Pal Singh PW4 Investigator that "I asked the accused whether he wanted to be searched by me or from Gazetted Officer or a Magistrate. He requested that he wanted to be searched in the presence of a Gazetted Officer." It is in his cross-examination that I also did not prepare the consent memo before the wireless was sent to the DSP. Consent of the accused was not taken into writing regarding the search to be conducted by the DSP. When the DSP came to the spot, he also did not reduce into writing the consent memo. Even the witnesses also did not state before him at the spot that the accused was given option to be searched in the presence of a Magistrate or a Gazetted Officer and this fact was not recorded in the statements of the witnesses, namely, Malwinder Singh, Jarnail Singh. It is a fact that there is no writing or note in any document prepared at the spot to show that the accused was given offer or option to be searched in the presence of a Magistrate or a Gazetted Officer, at the spot." It is in the cross-examination of Joginder Kumar DSP PW3 "I did not record the option of the accused for search of his person, in writing. I cannot give any reason for not recording the consent of the accused for conducting his search." It can be reasonably culled out from this evidence that the appellant was asked to tell whether or not he wanted to have his body subjected to personal search. This being so, it was incumbent upon the investigator to reduce the consent of the appellant into writing. In re: Dilip and Another v. State of M.P. 2007 (1) RCR Cri 586 : 2007 (2) RAJ 488, it has been observed in paragraphs No. 12, 15 and 16 as under :

Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with.

Indisputably, however, effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case."

In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW10 to comply with the said provisions. It was not done.

The rule laid down in Dilip and another''s case (supra) also echoed in re: Union of India v. Shah Alam and another, 2009 (3) R.C.R. Cri 158 : 2009 (3) RAJ 695, wherein it has been observed that on the facts of the case, we find that the alleged recovery of heroin from the respondents was made in complete violation of the provisions of Section 50 of the Act. In re: Dilip and Another''s case (supra), the contraband was recovered from scooter. The person of the appellants was also searched without complying with the provisions of Section 50 of the Act. It was in these circumstances held that it was obligatory upon the investigator to have adhered to the said provisions. Herein, if the offer of personal search to the accused had not been made, the provisions of Section 50 ibid, would have not been attracted as the recovery was effected from bags. Once the accused was offered to have his search in the presence of a gazetted officer or a Magistrate, it was obligatory upon the Investigating Officer to comply with the mandatory provisions of Section 50 ibid in strictu sensu. There being lapse in this behalf, the appellant has been prejudiced in his right. In other words, the said mandatory provision has been given a go-by.

It is in the cross-examination of Malwinder Singh (sic.) that "It is correct that there are holes in the sacks (property). These might have been made by the rats. Some of the seals are also broken." If the rats had caused the holes by gnawing at the bags, it was imperative upon the concerned Moharrar Head Constable to make an entry to this effect in the daily diary register. There being holes in the bags, the possibility of tampering with their contents cannot be ruled out. Such being the state of case property, it would be very difficult to say that the bags which were produced in the Court as case property were the same as were recovered from the appellant.

In re: Kashmir Singh v. State of Punjab, 2006 (2) RCR Cri 477, the Full Bench of this Court ruled that "there is presumption that the accused was in conscious possession. This presumption, however, will not apply unless an opportunity is given to the accused to rebut and explain the presumption by putting question u/s 313 of Cr.P.C. Presumptions are, however, rebuttable. These presumptions will not be available to prosecution unless trial Judge gives an opportunity to accused to rebut the presumption by putting question u/s 313 of Cr.C. Therefore, the accused should be given an opportunity to lead evidence in defence in support of his stand. A fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probabilities." Reverting back to the instant case, the question of conscious possession has not been put to the accused, when he was being examined u/s 313 of Cr.P.C. Consequently, in view of the ratio laid down in Kashmir Singh''s case (supra), it is very difficult to draw presumption against the appellant that he was in conscious possession of the stated contraband.

It is in the cross-examination of Malwinder Singh SHO PW2 that "the statement of Joginder Kumar DSP was not recorded. He did not record case diary." In the absence of the statement of Joginder Kumar DSP u/s 161 of Cr.P.C., there could be no vouch for the fact that the recovery was effected within his view. It is in the cross-examination of Malwinder Singh (sic.) that "the accused was sitting near the bushes about two feet from the bags and the third bag was in between his two legs," whereas according to Joginder Kumar DSP PW3 "the accused was sitting on two poppy husk bags and out of them one was lying open." Axiomatically, these witnesses are in sharp contradiction on a very material point, which further renders the presence of Joginder Kumar DSP at the spot highly doubtful.

It is in the cross-examination of Joginder Kumar DSP PW3 that "I did not see any person from the public at the spot," whereas according to Malwinder Singh PW, Jarnail Singh, an independent witness was with them and the seal after use was handed over to him (Jarnail Singh PW). Gurvinder Pal Singh PW4, investigator has also stated in identical terms. When all these material discrepancies are put together, there could be no escape from the finding that indeed at the time of recovery, the aforesaid DSP was not in attendance. As testified by SI Gurvinder Pal Singh PW4, the Investigator "the accused was found sitting on two bags of poppy husk and one bag was lying in front of him." Again this witness sharply contradicts Malwinder Singh PW2 who as noted (supra) has solemnly affirmed that the accused was sitting near the bushes two feet from the bags and third bag was in between his two legs.

It is in the cross-examination of Constable Harnek Singh PW5 who carried the sample parcels of this case to the Chemical Examiner that "It is correct that I have written the particulars of the sample and date on my left hand with ink and have made statement by seeing the writing from my hand. I do not know as to which part of my affidavit is correct to my knowledge and which para is correct to my belief. I had scribed the affidavit at the instance of Nikka Ram, MHC, otherwise I do not know about the contents of the affidavit. Nikka Ram had dictated the affidavit and I got it. Para No. 4 of the affidavit Ex.PJ is not written at my instance." This evidence leaves no scope for doubt that this witness was unaware of the contents of this affidavit and the same was in fact got dictated by Nikka Ram. It implies that the contents contained therein are neither based on the information nor knowledge of this witness. In other words, he is not the author of this affidavit. That being so, his affidavit Ex.PJ cannot be looked into evidence and, consequently, the dent is caused in the prosecution case.

State of Punjab Vs. Balkar Singh and Another, , the police had searched a spot near a river, where they found bags lying in a field and the accused were sitting on them. The accused were convicted for the possession of 100 bags of poppy husk. On appeal, the accused were acquitted by the Supreme Court on the ground that there was no enough proof of conscious possession and the police had not conducted further investigation to prove that the accused were in real possession of the bags. Here in this case too, the investigating officer has not conducted further investigation to demonstrate that the appellant was in real possession of bags. In retrospect, different versions are coming as somewhere it has been said that the appellant was sitting on two bags and the third one was lying in front of him and at other times, it has been said that the two bags were lying away from him and the third one was lying in between his legs. This flaw cuts down the fibres of the prosecution edifice. If the matter is viewed in the light of Balkar Singh''s case (supra) as well, the conscious possession of the appellant has not been established.

In view of the infirmities enumerated above, this appeal is accepted, setting aside the impugned judgment/ order of sentence. The appellant is hereby acquitted of the charged offence.