Gurnam Singh vs State of Punajab

R.L. Anand, J. (Oral)

This is the Criminal Appeal and has been directed against the judgment and order dated 15.7.1997 passed by the Court of Additional Sessions Judge, Ludhiana who convicted the appellant Gurnam Singh under Section 18 of Narcotic Drugs & Psychotropic Substances Act and sentenced him to undergo rigorous imprisonment for ten years and the appellant was further directed to pay a fine of Rs. 1 lac. In default of payment of fine, he was further sentenced to undergo R.I. for two years.

The brief facts of the prosecution can be described in the following manner :

Gurnam Singh appellant faced the criminal trial on the allegations that on 14.12.1994 at about noon time in the area of village Sattowal he was allegedly found in possession of opium weighing 500 gms. without any permit or licence and thus he allegedly committed an offence U/S 18 of the NDPS Act.

As per the prosecution on that day Police Party headed by ASI Jasmer Singh (PW2) Incharge P.P. Bassian alongwith Head Constable Karamjit Singh (PW1) and others was going on patrol on bicycles from village Bassian to village Jhodran. PW Surinder Singh son of Ranjit Singh resident of Akhara was also going to village Bassian and he was associated in the Police Party near the crossing of the road leading to village Jhodran. At about 12 noon when the Police Party reached at Tpoint in the area of village Sattowal the accused was seen coming from the opposite direction. On seeing the Police Party, he tried to take turn towards village Sattowal. On the basis of suspicion, he was apprehended by the Thanedar. Accused at that time was carrying a plastic bag in his hand. The Thanedar told the accused that he wanted to search the bag and whether the latter wanted to be searched in the presence of a Gazetted Officer or Magistrate. Statement Ex. PA of the accused was recorded. It was read over and explained to the accused who signed the same and was attested by Karamjit Singh HC and Surinder Singh aforesaid witnesses. Thereafter, ASI Jasmer Singh PW2 took the search of the bag and found opium in it. On weighment, it came into 500 grams. The Thanedar separated 20 grams of opium from the bulk and made two sealed parcels each containing 10 grams of opium with his own seal bearing inscription ''JS''. The remaining bulk of the opium and the entire case property was taken into possession vide recovery memo Ex. PB attested by the said witnesses. Accused could not produce any permit or licence for the possession of the opium. Ruqa Ex. PE was sent to the Police Station for the registration of the case and on the basis of which formal FIR Ex. PE/1 was recorded in the Police Station on 14.12.94 vide DDR No. 13. Jamatalashi memo Ex.PC after arrest of the appellant was prepared. It was attested by HC Karamjit Singh and independent witness Surinder Singh. The Thanedar also prepared rough site plan of the place of recovery. On the same day, the appellant was produced before the Inspector Ajit Singh along with the case property who resealed the case property with his own seal bearing inscription ''AS''. Thereafter the case property was deposited in the Malkhana with the Moharrir Head Constable.

On 15.12.94 case property was again produced before the Illaqa Magistrate who ordered the police to keep it in a safe custody.

Sample of the opium was sent to Chemical Examiner who vide his report Ex. PG declared the contents of the sample as opium and on completion of the investigation of this case, accused was challaned under section 18 of the NDPS Act in the Court of Illaqa Magistrate who supplied the copies of documents to the accused as required under the law and vide commitment order dated 24.5.1995 committed the appellant to the Court of Sessions.

On 7.7.95 the trial Court framed the charge under Section 18 of the NDPS Act against the appellant. It was read over and explained to the appellant to which he pleaded not guilty and claimed trial.

To prove the charge, prosecution had examined Karamjit Singh (PW1), ASI Jasmer Singh (PW2), Inspector Ajit Singh (PW3) and Dilbag Singh (PW4). Prosecution gave up independent witness Surinder Singh as having been won over by the accused. After tendering into evidence the statements of the formal witnesses and report of Chemical Examiner, prosecution closed the case.

Statement of the accused under section 313 Cr.P.C. was recorded and all the incriminating circumstances appearing in the prosecution were put to the accused. Accused denied the circumstances of the prosecution and stated as follows : "The PWs are police officials and are interested in the success of the case. I was brought from my village regarding dispute and have been falsely implicated in this case".

When called upon to enter into defence, accused did not lead any defence and accused closed the defence.

Learned trial Court believed the prosecution version and rejected the defence story and convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence the present appeal which has been disposed of by me with the assistance of learned counsel for the appellant Sh. A.S. Jatana Advocate and learned counsel for the State Sh. J.S. Brar.

Assailing the judgment and the order of learned trial Court it was submitted by the learned counsel for the appellant that mandatory provisions of Section 50 of the NDPS Act have not been complied with. In support of his assertion, learned counsel for the appellant has referred to the consent memo Ex. PA and submitted that offer allegedly given by Investigating Officer was partial. Submission of Sh. Jatana has been refuted by the State counsel by stating that there is a categoric statement of both HC Karamjit Singh and ASI Jasmer Singh which primafacie indicates that Section 50 of the NDPS Act has been complied with and moreover no prejudice has been caused to the appellant even if it is assumed for the sake of arguments that Section 50 has not been complied with.

After considering the rival contention raised by learned counsel for the parties, I am of the view that there is force in the contention raised by the counsel for the appellant.

So far factual position in the present case is concerned, the reasonable suspicion arose in the mind of the Investigating Officer that appellant was in possession of some incriminating articles for which he could be punished under the Act and in these circumstances he was supposed to comply with the provisions of Section 50 of the NDPS Act. Now it is to be seen whether the provisions of Section 50 of the NDPS Act have been complied with in the present case or not. According to Section 42 any officer of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or the Border Security Force has been empowered to seize the narcotic drugs as well as psychotropic substance. A close reading of the consent memo Ex. PA would show that the Investigating Officer gave a partial offer to the appellant when he told to him that whether the former wanted the search before the Executive Magistrate or Gazetted Police Officer. Investigating Officer did not give option to the accused that he could be searched in the presence of Gazetted Officer. Thereafter, it was for the appellant to say whether he wanted search before a Magistrate or before a gazetted officer. The Thanedar has only confined a gazetted officer of the police department which is not in consonance with the provisions of Section 42 of the NDPS Act. By restricting the option of the appellant, the mandatory provisions of Section 50 have not been complied with in this case. There are further reasons to hold that the consent memo Ex. PA has not been voluntarily executed by Gurnam Singh accused. Admittedly Suridner Singh independent witness, who attested the consent memo, has not been examined by the prosecution. Equally, it is true that Surinder Singh independent witness has also not been examined by the defence but in such like cases when the Legislature has prescribed harsh punishment it becomes necessary on the part of the prosecution to clear all doubts about the genuineness of the recovery. The nonexamination of Surinder Singh coupled with the defence which I pointed above strenghthens the doubt of this Court that recovery has not been effected in the manner as stated by the prosecution.

Graver the offence, stricter the proof is the well settled principle of law of Criminology. After arrest of the appellant, the conduct of the Investigating Officer also does not inspire confidence in the mind of the Court. The Officer does not inform the appellant the grounds of the arrest. He does not comply with the directory provisions of Sections 52 and 57 of the NDPS Act. All the above lapses make a reasonable dent in the prosecution story. At no point of time investigation of this case was ever verified by a Gazetted Officer.

From the above discussion, I am of the opinion that the case of the prosecution remains with the circular of suspicion and such suspicion cannot take a place of proof. There is a yawning gap between the suspicion and proof and this gap has to be bridged by the prosecution by leading cogent, reliable and satisfactory evidence which is totally missing in the present case.

Resultantly, I accept this appeal, set aside the conviction order passed by the trial Court and acquit the appellant of the charge framed against him. He shall be released forthwith if not required in any other case.

Intimation be sent to the jail authorities forthwith about the decision of the present case.

Case property shall stand confiscated to the State.