Gurmez Singh vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Gurmez Singh (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Amritsar dated 2.5.1995. By virtue of the impugned judgment the learned trial court held the appellant guilty of the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ''the Act'') and subsequently by the order of even date, the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac. In default of payment of fine, he was to undergo further rigorous imprisonment for two years.

The relevant facts are that on 28.3.1989 Inspector Suba Singh who was officerincharge of Police Station Chheharta was accompanied by ASI Shingara Singh and HC Gurbachan Singh. They were going to chowk Chheharta on G.T. Road via byepass Chheharta. When the police party was near the drain, the appellant was seen coming on a scooter bearing registration number PAQ2350. He made an attempt to escape but was stopped after a chase of about 400 yards. He was suspected to be in possession of some contraband. He was asked whether he wanted to be searched in presence of a Magistrate or a Gazetted Officer. The appellant replied that he would like to be searched by Inspector Suba Singh. The search was conducted. From the cavity underneath the petrol container of the scooter, the opium was recovered. It was found to be 11 kilograms. 100 grams was taken as the sample. The sample and the rest of the opium were converted into two separate parcels and sealed with the seal of ''SS''. Both the packets were taken into possession vide a recovery memo Ex. PA.

The seal after use was given to ASI Shingara Singh. Ruqa was sent to the police station, on the basis of which ASI Ajit Singh recorded the formal first information report. The site plan was prepared and the statements of the witnesses were recorded. The case property and the sample were produced before the Illaqa Magistrate. Inspector Suba Singh kept the recovered packets in his lock and key. The sample was delivered by the Investigating Officer in the office of Chemical Examiner along with the specimen seal. On receipt of the report of the Chemical Examiner that the contents were of opium, report under Section 173 Cr.P.C. was submitted.

The learned trial court framed a charge punishable under Section 18 of the Act. The appellant pleaded not guilty and claimed trial. The prosecution examined two witnesses namely SI Gurbachan Singh and Inspector Suba Singh. The said evidence was put to the appellant in his statement recorded under Section 313 Cr.P.C. The appellant denied recovery of opium. He stated that he was apprehended 8 or 9 days before alleged recovery by SI Suba Singh. He was confined wrongfully at Police Station Chheharta. He was suspected to be a member of gang of scooter thieves. Subsequently, he was falsely implicated in this case.

In defence the appellant examined ASI Bhupinder Singh as DW1 who had brought register No. 19 of the Malkhana of Police Station Chheharta. The witness stated that at serial No. 152 against FIR No. 58 dated 28.3.1989, one Bajaj Chetak scooter was deposited in the Malkhana. The engine and chassis number has been deleted in column No. 4. The column 5, 6, 7 and 8 of the said entry were blank and it did not indicate as what happened to the said scooter. No other article was deposited. He further stated that at serial No. 160 there is an entry about deposit of the opium recovered, in the Malkhana. During crossexamination by the Public Prosecutor, he admitted that certain articles in case of heavy recovery are kept in with the double lock system by the officerincharge.

Lakhwinder Singh DW2 had again brought the Malkhana register and added that opium of this case was deposited on 12.4.1989 by Inspector Suba Singh but no sample was deposited.

The learned trial court on appraisal of evidence held that it is established beyond all reasonable doubt that the opium was recovered from the person of the appellant. The discrepancies pointed out were not accepted. The learned trial court further held that nonproduction of the scooter will not be an end to the factum of recovery of opium. There was violation of the provisions of Section 50 of the Act was repelled.

Aggrieved by the said judgment and the order of sentence, the present appeal has been filed.

At the outset it was argued that mandatory provisions of subsection (1) of Section 50 of the Act have been violated and, therefore, the recovery by itself must be held to have not been established.

In the well known decision of the Supreme Court in the case of State of Punjab v. Balbir Singh, 1994(2) Recent Criminal Reports 736 : 1994(3) SCC 299 , the controversy as to if the provisions of substation (1) of Section 50 of the Act are mandatory or not have been set at rest. The Supreme Court held:

The words "if the person to be searched so desires" are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search could be conducted. In the context in which this right has been conferred it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right."

The same fact was again considered in the case of Saiyad Mohd. Saiyad Umar Saiyed & Ors. v. State of Gujarat, 1995(2) Recent Criminal Reports 388 : JT 1995(3) SC 489 and it was observed:

"Having regard to the object for which the provisions of Section 50 have been introduced into the NDPS Act and when the language thereof obliges the officer concerned to infrom the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under Section 114, illustration (e) of the Indian Evidence Act, 1872. By reason of Section 114 a court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular cases. It may presume "(a) that the judicial and official acts have been regularly performed." There is no room for such presumption because the possession of illicit articles under the NDPS Act has to be satisfactorily established before the court."

It is obvious from aforesaid that the concerned person must be informed about his right to be searched in the presence of a Gazetted Officer or a Magistrate. This right could only be exercised by the person concerned if he is informed as to why his person is to be searched. More so in cases whether secret information has been received or there is a lurking suspicion of any contraband material with such a person. The present case is not one where on accidental search the recovery was effected.

SI Gurbachan Singh PW1 made a statement that appellant was asked whether he had opium or that whether he wanted his search in the presence of a Gazetted Officer or a Magistrate. The appellant reposed faith/satisfaction in the Sub Inspector. Though this witness stated that the appellant was conveyed as to what is suspected in this process but Suba Singh PW2 the Investigating Officer made totally a different statement. He simply stated that the appellant was told if he wanted to be searched in the presence of a Magistrate or a Gazetted Officer. He makes no reference that the suspicion as to why the search is to be effected, was conveyed to the appellant. Once it has not been so conveyed, the appellant could not effectively exercise his right to be taken to a Gazetted Officer or a Magistrate. Therefore, he has a legal grievance to urge that prejudice was caused to him.

In addition to that provisions of Section 55 of the Act enacted with the same object that there should be no tampering with the property reads:

"55. An officerincharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officerincharge of the police station."

Learned Counsel for the appellant argued that the recovered opium was not deposited in the Malkhana and that the officerincharge of the police station kept the same with him. Since under the provisions of the Act, the responsibility is of the officerincharge to keep the property in his safe custody, there is no illegality if as is being stated that property was kept in double key lock by the officerincharge. If the officerincharge felt and was overconscious, perhaps there can be no illegality in it.

What about the facts of the present case ? Suba Singh PW2 is the officerincharge of the police station and investigated the case. He testified that he kept the case property, sample and the specimen seal in custody under lock and key. Moharrir Head Constable also put his lock where those articles were kept. He added that challan was presented on 28.4.1989. In this regard he was crossexamined. He made a statement that there is no double lock system in the police station but added that case property and sample were entered in the register No. 19. He denied that he did not deposit the case property in the Malkhana up to 11.4.1989. On further probing he answered that he was transferred from the police station on 14.5.1989. On his transfer he handed over the case property to his successor. He admitted that there was no entry made that he has handed over the case property to his successor. This evidence necessarily has to be considered in light of the evidence produced by the appellant in defence. Brief summary of the same has already been given above. The said evidence indicated that on the date of the incident namely 28.3.1989 the scooter was deposited in the Malkhana but not the opium and the sample. Regarding this entry was made on 11.4.1989, in register No. 19 at serial No. 160.

It clearly shows that though in the first instance the recovered opium was not deposited in the Malkhana but the same was deposited in the Malkhana on 11.4.1985. The statement of the Investigating Officer who is the officerincharge of the police station indicates that he was transferred on 14.5.1989 and he handed over the property to his successor. In either event what is being told to the Court, appears to be incorrect. If entry is made on actual deposit of the property in register No. 19, in that event the statement of the officerincharge that he handed over the property to his successor is patently wrong. The converse would be equally damaging. If the property had been deposited in the Malkhana on 12.4.1989, it could not be handed over to the successor on 14.5.1989. This shakes not only the testimonies of the oral witnesses but even reflects badly on the entire investigation. The chances of tampering could not be ruled out because there was one seal and that of the officerincharge of the police station.

In addition to that there is no over emphasizing fact that due care has to be taken for maintaining the recovered articles in proper shape. The very purpose of depositing it in the Malkhana is that it should not be tampered with. When the case property was produced in Court, on reexamination it was noticed as under:

"The tin is filled to the half of case property. (Note: The case property is not sealed). The lid has been opened by the witness, after removing the piece of cloth with which it was wrapped. The cloth is easily removable from the tin. It is also in torn condition."

This shows that seals were removed. The cloth could easily be removed. One can guess as to what might well had happened. The chances of tampering cannot be excluded. There is a total indifferent attitude observed during investigation and subsequently.

In face of these facts, it must be held that oral evidence cannot be acted upon and there is noncompliance of the statutory provisions. The appellant is entitled to the benefit of doubt.

For these reasons, the appeal is accepted. The judgment and the order of sentence passed by the trial court are set aside. The appellant is acquitted giving him the benefit of doubt. The appellant be set at liberty if not required in any other case.