Gurmit Singh vs State of Punjab

Appellant-Gurmit Singh faced trial before the Learned Additional Sessions Judge, Patiala, in Sessions Case No. 39-T of 28-5-1990 u/s 15 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as N.D.P.S. Act) and was accordingly convicted and sentenced to undergo Rigorous Imprisonment for ten years, to pay a fine of Rs. 1 lakh and in default to undergo further rigorous imprisonment for two years. Aggrieved by the same accused-Gurmit Singh has preferred this appeal.

The case of the prosecution is as follows :-

On 7-1-1990 ASI-Darbara Singh along with the other members of the police party was checking on the Canal Bridge in the revenue limits of village Dhanetha, Dalip Singh was also associated with them. At about 6 a.m. a truck bearing registration No. HNQ-3900, driven by accused-appellant-Gurmit Singh came from the side of village Retgarh, and was stopped. Co-accused-Nishan Singh who died during the pendency of the trial, was sitting near the driver. ASI Darbara Singh (PW-6) informed them that he wanted to search their person and the truck and that they could be searched in the presence of a Gazetted Officer or a Magistrate. The accused are alleged to have expressed confidence in ASI-Darbara Sing conducting the search, who recorded their consent statements (Exhibits PA and PB) duly signed by them. On a search of the truck, it was found to contain 100 bags of poppy husk. 250 grams of husk was taken out from each bag as sample, and thereafter each bag was found to contain 35 kgs. of poppy husk on weighment. The samples and the remaining gunny bags were sealed and taken into possession, apart from the Tarpauline, rope and the truck as per memo Ex. P.C. By searching appellant-Gurmit Singh Rs. 120/-, and accused Nishan Singh Rs. 250/- respectively were seized under memo Ex. PD and Ex. PE. The R.C. of the truck and the driving license of the appellant were seizued under memo Ex. PF. ASI-Darbara Singh sent memo to the police station on which the formal F.I.R. was registered. The case property was deposited with MHC Gurdial Singh as the Station House Officer was not present in the police station. On receipt of the report of the Chemical Examiner, the accused were charge-sheeted accordingly.

The prosecution examined ASI-Darbara Singh as PW-6, Madan Lal Clerk of the office of the Registration Authority as PW-1 and the other police officials as PWs. 2 to 5.

When questioned u/s 313, Cr.P.C., accused-appellant-Gurmit Singh stated that he was not the driver of the truck in question, and also pleaded false involvement.

The learned Additional Sessions Judge, after considering the materials placed before him found the accused-appellant-Gurmit Singh guilty u/s 15 of the N.D.P.S. Act and sentenced him as mentioned already, against which this appeal has been filed.

I have heard the counsel for both the sides and perused the records.

The learned counsel for the appellant pointed out certain legal infirmities in the case of the prosecution which, according to him, go to the root of the prosecution case, and contended that in view of these fatal legal infirmities, the prosecution must fail. I will now take up for consideration these contentions raised on behalf of the appellant.

The first contention of the learned counsel for the appellant is that even according to the case of the prosecution, the offending vehicle carrying the contraband came to the place where the police party was checking at 6 a.m., and therefore, the officer effecting the search should have complied with the provisions of Section 42 of the N.D.P.S. Act before undertaking the search of the vehicle in which the contraband was allegedly carried. The learned counsel for the appellant contends that inasmuch as the mandatory provisions of Section 42 of the N.D.P.S. Act have not been complied with, the prosecution and the trial are vitiated. Sub-section (1) of Section 42 of the N.D.P.S. Act provides that a search can be conducted between sunrise and sunset. According to the proviso to that section, if the officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, the officer may enter and search any building, conveyance or enclosed place at any time between sunset and sunrise after recording grounds of his belief.

The learned counsel for the appellant contends that in this case, the alleged search was conducted before sunrise and, therefore, the officer who conducted the search, should have recorded the reasons for doing so without a warrant before having undertaken the search. We will have to now consider whether this contention can be accepted.

ASI-Jaswinder Singh (PW-2) who was also in the police party which was checking, stated in his evidence that at 6 a.m., the offending truck came, was stopped, and searched. Darbara Singh (PW-6) who was heading the checking party, stated in his evidence that it was a bit dark when the offending truck came and the same was stopped by giving signal with the help of a torch. S.I-Sukhdev (PW-4) who was also in the checking party, stated in his evidence that the search was conducted after the bags were unloaded and placed on the ground. According to him, the bags were placed on the ground at 6.45 a.m. The learned counsel for the appellant contended that on the 7th of January, when the occurrence is alleged to have taken place, the sun rose at 7.28 a.m. and this statement of the learned counsel for the appellant has not been disputed by the prosecution. He, therefore, contended that in view of this fact and in view of the admission of the abovesaid PWs, it is clear that the sun had not risen when the vehicle was allegedly stopped and it was decided to search the vehicle. He further contended that there is no-evidence on the side of the prosecution that anyone of the officers conducting the search especially ASI-Darbara Singh (PW-6) who was heading the party, had recorded the reasons or apprehensions as contemplated in the proviso to sub-section (1) of Section 42 of the N.D.P.S. Act and, therefore, the prosecution and the trial are vitiated. I am also of the view that from the evidence of PWs. 2, 4 and 6, it is clear that the search was conducted before the sunrise and the failure on the part of the police to comply with the provisions of the proviso to Section 42(1) of the N.D.P.S. Act certainly affects the prosecution and the trial. This Court in Jarnail Singh and Others Vs. State of Haryana, relying upon the decision of the Hon''ble Supreme Court in State of Punjab Vs. Balbir Singh, held that the trial is vitiated for non-compliance of the provisions of the proviso to Section 42(1) of the N.D.P.S. Act. The Hon''ble Supreme Court in Balbir Singh''s case (supra) held as follows (at page 3718 of Cri LJ)) :-

"Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial."

ASI-Darbara Singh (PW-6) stated in his evidence that he stopped the truck in question and gave option to the accused to be searched before a Magistrate or a Gazetted Officer. There was no necessity to give such an offer unless he had suspected that the truck in question contained a contraband in violation of the provisions of the N.D.P.S. Act. But yet he did not say that he recorded the reasons as contemplated under the proviso to Section 42(1) of the N.D.P.S. Act. PW-6 also admitted that he did not send any information to the D.S.P. after the truck was seized at the place of recovery.

Taking into consideration the facts and the circumstances of the case where the police had not recorded the grounds of the belief, before entering upon search that they had reason to believe some contraband offending this Act was being carried in the vehicle in question, and that its attempt to get a search warrant from a competent Magistrate would frustrate the object or facilitate the escape of the offender, I hold that the prosecution and the trial are vitiated for non-compliance of the proviso to Section 42(1) of the N.D.P.S. Act.

The next contention of the learned counsel for the appellant is that ASI-Darbara Singh (PW-6) who arrested the accused, searched the vehicle in question and made the alleged recoveries of the contraband was also the investigation officer in this case, which is not permissible. In this connection, the learned counsel for the appellant relied upon the decision of the Hon''ble Supreme Court in Megha Singh Vs. State of Haryana, , wherein it has been held as follows (at page 3989 of Cri LJ) :-

".... We have also noted another disturbing feature in this case. PW-3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in this case he carried on with the investigation and examined witness under S. 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."

Darbara Singh (PW-6) stated in his evidence that he held the checking along with other officials, stopped the truck in question, searched it, recovered the contraband, searched the person of the accused, recovered some money from them and also seized the R. C. Book of the vehicle and the driving-licence of the accused-appellant. He also stated that he arrested the accused and sent the ruqa, on the basis of which the formal F.I.R. was registered. Though he stated that he did not record the statement of the witnesses u/s 161, Cr.P.C. in his hand, he admitted that he dictated it to the Head Constable-Sukhdev Singh. Therefore, it is clear that he was not only the arresting officer, but had also conducted the search and seizure. He had also given the complaint on the basis of which the formal F.I.R. was registered. It is also evident that he had conducted the investigation. In these circumstances, I am of the view that it cannot be stated that the investigation of the case was impartial. This again is a point which goes against the prosecution.

Another contention raised by the learned counsel for the appellant is that the provisions of Section 55 of the N.D.P.S. Act have not been complied with and the accused-appellant has also been prejudiced in this regard. Section 55 of the N.D.P.S. Act provides that an Officer-in-charge of a police station shall take charge of and keep in safe custody, all articles seized under this Act pending orders of the Magistrate. The learned counsel for the appellant contended that in the present case, the contraband and other articles allegedly seized from the accused were handed over only to the Moharrir Head Constable and not to the Officer-in-charge of the police station, namely, the S.H.O. and, therefore, the accused-appellant has been prejudiced. ASI-Darbara Singh (PW-6) stated in his evidence that the articles were handed over to the M.H.C. ASI-Jaswinder Singh (PW-2) stated in his evidence that no S.H.O. was present in the police station when he along with ASI-Darbara Singh, case property and the accused reached police station, Samana. But he also added that Darbara Singh was acting as S.H.O. at the time of the recovery. ASI-Darbara Singh (PW-6) also stated in his evidence that on his return to the police station no senior Officer/S.H.O. was present in the police station and that he was working as in-charge of the police station since the regular in-charge-Gurdip Singh was on leave. But there is no acceptable evidence whatsoever to show that the regular S.H.O. was on leave and that ASI-Darbara Singh was in-charge, except the oral evidence adduced at the time of the trial. This is a matter which could have been proved by production of documentary evidence, but by not placing the same, the prosecution failed to produce the rest evidence. The question that arises further for consideration is how the accused is prejudiced. As per Section 55 of the N.D.P.S. Act, the articles seized will have to be kept in safe custody subject to the orders from the competent Court. If the articles were not handed over to the Officer-in-charge of the police station and if they were not kept safely, it may give rise to a suspicion whether the articles produced in Court are the same as those that were allegedly recovered from the accused. ASI-Jaswinder Singh (PW-2) who stated that he was in the police party headed by ASI-Darbara Singh at the time of the alleged recovery of the contraband, admitted in his evidence that he had not seen the bags of poppy husk on the day when he was giving evidence, though, he has stated in his examination-in-chief about the alleged recovery of 100 bags of contraband. Sukhdev Singh (PW-4) who also stated that he was with the police party which conducted the search and seized the articles, stated in his evidence that the samples and the remaining contraband contained in the gunny bags are Exhibits P4 to P104. But, in cross-examination, he admitted that as on the date of his evidence, the gunny bags, the rope and the tarpaulins did not bear any identification slip. He specifically stated that he had seen the gunny bag Ex. P4 but there was no identification slip on this bag. It was suggested to him that these bags did not contain poppy husk, but husk of the wood, but he denied the same. ASI-Darbara Singh (PW-6) stated in his evidence that he had not even seen the case property on the day when he had given evidence. These damaging admissions made by these witnesses certainly affect the case of the prosecution in view of the prejudice caused to the appellant as there is not even proper identification of the alleged contraband. There is no satisfactory evidence to show that Exhibits P4 to P104 were the same that were recovered from the accused. This Court in Jarnail Singh and Others Vs. State of Haryana, had occasion to consider this aspect of the case and had made the following observations (at page 1607 of Cri LJ) :-

"... This Court in Kashmiri Lal alias Kala v. State of Punjab 1996 (1) RCR 244 held that a duty is cast upon the officer-in-charge of the police station to take charge of the contraband articles, keep them in safe custody, and if necessary, to allow samples to be taken. This Court also held that this is not an idle formality but the provision has been enacted to ensure that the case property remained in safe custody to avoid any tampering of the same.

This Court in another decision in Smt. Jeeto v. State of Punjab 1996 (23) CriLJ 126 also held as follows :-

"It is of utmost importance that the case property should be preserved and kept in safe custody during the course of trial. This helps in establishing the identity. ASI Gulzar Singh PW-2 admitted that there were no identification marks on the bags and even it contained less poppy husk. The explanation forthcoming was that it may be due to wear and tear. The said explanation is totally unconvincing. If there was any wear or tear, then immediately entry must be made in the relevant register of the Malkhana and fact brought to the notice of the authorities. Suddenly coming up in Court and giving such an explanation cuts no ice. In fact during the course of evidence, no attempt had been made by the learned trial Court when case property was produced to make a note that seals were intact or not. However, during cross-examination it transpired that there were no identification marks on the bags. The conclusions are inescapable that no attempt had been made to preserve the property and keep in safe custody. One wonders as to what was produced, was the alleged recovered poppy husk or not."

Therefore, taking into consideration all these aspects, I am of the view that this contention of the learned counsel for the appellant is also well-taken and I hold that there is no positive identification of the contraband allegedly seized from the accused. In the absence of any satisfactory evidence to show that Exhibits P4 to P104 were the same articles that were seized from the appellant, the appellant cannot be convicted.

The next contention of the learned counsel for the appellant is that the police have not joined any independent witness at the time of the alleged search and seizure and even the alleged independent witness-Dalip Singh has not been examined in this case, which goes to affect the case of the prosecution. Of course, the evidence of PW-2-Jaswinder Singh is that Dalip Singh was also with them at the time of the alleged recovery. ASI-Darbara Singh (PW-6) also stated that Dalip Singh was joined in the police party. But he has not been examined as a witness before the Court. PW-2-ASI Jaswinder Singh stated in his evidence that he did not know if Dalip Singh is a convenient witness of the police of Police Station, Samana, and if he had been cited as a witness in any other previous case in which he (PW-2) was a recovery witness or even investigating officer. It is impossible to accept this type of evidence of PW-2. He could have stated that he did not remember if Dalip Singh was a witness in any other case, but, to say that he did not know if Dalip Singh was a convenient witness of the Police Station, Samana, or if he had been cited as a witness in any of his previous case, is wholly unacceptable. It is clear that he had only tried to suppress the fact that Dalip Singh was a stock witness of their police station. Of course, ASI-Darbara Singh (PW-6), who was later examined, made bold to deny that Dalip Singh was joined by him in any other case as a witness. But this still does not have the effect of improving upon the evidence of PW-2 whose evidence shows that Dalip Singh must be a stock witness of the Police Station, Samana. Further, PW-6 admitted in his evidence that he did not try to associate any independent respectable person from the nearby villages before effecting search. He stated that he did not feel the necessity of joining any other independent witness from the passer-by as they already had a respectable witness namely, Dalip Singh. In view of what I have pointed out above, Dalip Singh could not be called a respectable witness much less the respectable witness of the locality. This apart, even this alleged respectable witness who was joined by the police at the time of the alleged search and seizure, was not examined as a witness before the Court. The learned counsel for the appellant relied upon the decision of this Court in Chand Mohd. v. State of Punjab, 1996 (3) Rec Cri R 142, wherein this Court held as follows :-

"At the conclusion of the trial, the prosecution can succeed only on discharging the initial burden of proving its case against the accused, and strongest of suspicion does not constitute the proof required. Even though the statute does not make it obligatory, as a rule of prudence, the Police Officer should carry out the search, if it is possible to secure the presence of independent persons, in their presence. The Court will be extremely reluctant to uphold the prosecution case which is solely based on recovery made as a result of search not witnessed by independent and respectable persons unless it was unreasonable and improbable to procure the presence of such witnesses.

In the present case, there is no reliable and credible evidence on the record to show that ASI Banarsi Dass had made any genuine effort to call for independent public witnesses to witness the search of the appellant or the bag which he was allegedly carrying particularly when he had ample time, means and opportunity to procure the presence of independent public witnesses to witness the search. This serious omission on the part of the Investigating Officer, in itself, is enough to cast a grave suspicion as regards the alleged recovery of the poppy husk from the possession of the appellant."

Of course, it was early in the morning at 6 a.m. that the alleged recovery was made, but still the admission of ASI-Jaswinder Singh (PW-2) shows that Village Dhaneta is at a distance of 1 1/2 kms. from the place of the recovery and Village Retgarh is at similar distance. Therefore, when the police party was checking and had not made any attempt to have an independent and respectable witness of the locality to be present at the time of the alleged recovery, it certainly makes the case of the prosecution suspect. Further, when Dalip Singh is alleged to be an independent witness and when PW-6 had stated that he did not think of associating anybody else in view of the presence of Dalip Singh, the said Dalip Singh should have been examined as a witness in Court. Non-examination of Dalip Singh, in the circumstances of the case, certainly goes against the case of the prosecution.

The learned counsel for the appellant also contended that the provisions of Section 50 of the N.D.P.S. Act have also not been complied with in this case inasmuch as the consent memos Exhibits-PA and PB have not been attested by any independent witness. ASI-Jaswinder Singh (PW-2) stated in his evidence that ASI-Darbara Singh informed the accused-appellant-Gurmit Singh and accused-Nishan Singh (since deceased) that he had to search the truck, and that both of them reposed confidence in ASI-Darbara Singh, that ASI-Darbara Singh reduced their consent statements to writing. These consent statements are Exhibits-PA and PB. ASI-Darbara Singh also stated about this, and also stated that he recorded the consent statements Exhibits-PA and PB which were signed by the respective accused. But S.I.-Sukhdev Singh (PW-4) who was also in the police-party which held the checking, admitted in his evidence that these statements do not bear the attestation of any of the witnesses. The learned counsel for the appellant relied upon the Division Bench judgment of this Court in Amrit Singh v. State of Haryana, 1990 (2) RCR 525, wherein it was held as follows :-

"The provisions of Section 50 of the Act have thus to be construed in this context. To give meaning and content to the clear legislative intent underlying the safeguard provided by Section 50 of the Act, cogent and reliable evidence and not merely the statement of a Police Officer, must be brought on record to establish that the person to be searched was informed of his right to be searched in the presence of a Gazetted Officer or Magistrate, but he chose to decline this offer. In Sudarshan Kumar''s case (supra), it has no doubt been suggested that such offer should be made before two reliable and independent witnesses, but with respect, it would be appropriate and more in consonance with the interests of justice that as a rule of general practice, the person apprehended should be taken before a Gazetted Officer or Magistrate and searched in his presence. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Search otherwise than before a Gazetted Officer or Magistrate should, therefore, be the exception and that too for sound and convincing reasons founded upon reliable material on record, the onus of showing that the person to be searched declined such option being upon the prosecution."

This decision again supports the contention of the learned counsel for the appellant. In the circumstances of the case where no independent witness of the locality has been associated by the police party at the time of either the accused giving the consent for search by the police officer himself or at the time of alleged search and seizure, and where even the alleged independent witness-Dalip Singh has not been examined before the Court, I am of the view that the prosecution case is affected since I have to hold that there is no satisfactory evidence to show that provisions of Section 50 of the N.D.P.S. Act have been complied with in this case inasmuch as though there was an alleged independent witness, he had not attested the memos Exhibits-PA and PB.

Another contention put forward by the learned counsel for the appellant is that ASI-Gurdial Singh (PW-3) filed an affidavit Ex. PG to show that the seized articles were entrusted to him at the police station; and Balbir Singh (PW-5) tendered an affidavit (Ex. PH) to show that he had taken the samples to the office of the Chemical Examiner, but these two affidavits are not reliable in view of the fact that the verification in these two affidavits is not proper. He contended that in these affidavits, these witnesses have generally affirmed that what they have stated is true to the best of their knowledge and belief without stating specifically as to which of the facts were true to their knowledge and which of the facts were true according to their belief. He, therefore, contended that these affidavits cannot be relied upon to provide the link evidence, that is, to connect the contraband allegedly recovered from the accused with the report of the Chemical Examiner.

A perusal of these affidavits Exhibits-PG and PH shows that this contention of the learned Counsel for the appellant that the verification of the affidavits is not proper is incorrect, and the deponents have sworn to facts specifically with reference to their knowledge or belief.

But, taking into consideration the other aspects, I am of the view that the prosecution has not been able to prove the guilt of the accused-appellant beyond all reasonable doubt.

Accordingly, the appeal is allowed setting aside the conviction of and sentence passed against the accused-appellant. The accused-appellant is acquitted.