Gurnam Singh vs State of Punjab

Virender Singh, J.—Appellant stands convicted vide impugned judgment of Judge, Special Court, Jalandhar dated 5.4.2002 u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and has been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac, in default of payment of fine to further undergo RI for two years.

It is worth mentioning here that another Gurnam Singh alias Jeona son of Kala Singh son of Mohan Singh resident of Chak Bandala was also booked along with the appellant. He, however, died during the trial.

The case in brief is that on 22.9.1999, SI Surjit Singh, SHO, Police Station Lohian along with other police officials was present in the area of village Majrajwala on patrolling duty. During the intervening night of 22/23.9.1999, he received secret a information that the present appellant and aforesaid Gurnam Singh alias Jeona (since dead) were unloading bags containing poppy husk on the western side of the village Chak Wadala near Dhus Band river Sutlej and if a raid is conducted they could be apprehended. The aforesaid SI Surjit Singh knew them previously. The case of the prosecution further goes that DSP Harjit Singh PW1 was informed to reach the spot and SI Surjit Singh along with other police official reached there. After parking their vehicle at a particular place they saw that two persons with gunny bags on their heads were going towards the river and some bags were lying nearby. They were identified as Jagir Singh and Gurnam Singh the present appellant. He asked them to stop but they did not. It is then the case of the prosecution that the gunny bags were put in a boat by aforesaid two persons which was being rowed by Gurnam Singh alias Jeona (since dead) and all the three accused managed to row away along with gunny bags. On the arrival of DSP Harjit Singh, the gunny bags lying nearby were counted which were seven in number. The search of those bags was conducted under the supervision of DSP Harjit Singh and it was found that they were containing poppy husk. Sample of 250 grams was separated from each bag and the remainder was weighed as 34.750 kilograms in each bag. All the seven samples and bags were sealed with seal bearing the inscription HS (stands for Harjit Singh) and SS (stands for Surjit Singh); sample seal impression was also prepared at the spot. The sample and the case property were taken into possession vide recovery memo Ex. PA and was witnessed by ASI Bhupinder Singh and HC Surinder Singh and the same was attested by DSP Harjit Singh. The seal was handed over to ASI Bhupinder Singh. However, DSP kept his seal with him. Ruqa Ex. PB was sent to the Police Station on the basis of which FIR Ex. PB/1 was recorded. Rough site plan was also prepared at the spot. The case property was deposited on 23.9.1999 with MHC Surjit Singh. On receipt of report of Chemical Examiner, the present appellant and his co-accused Gurnam Singh were charged u/s 15 of the Act.

The prosecution in order to prove the recovery has examined Harjit Singh DSP PW1, SI Surjit Singh PW2 who is the Investigating Officer, ASI Bhupinder Singh PW3 who is also a witness to the recovery and has corroborated the statement of SI Surjit Singh on all aspects, Constable Bhajan Lal PW4 stated that on 29.9.1999, MHC Surjit Singh had handed him over seven samples of poppy husk containing 250 grams each for depositing in the office of Chemical Examiner, Amritsar which he did. HC Surjit Singh PW5 deposed that on 23.9.1999, when he was posted as MHC, Police Station Lohian, SI Surjit Singh had deposited the case property with him containing poppy husk duly sealed with the seal bearing letters HS and SS along with sample seals and on 29.9.1999, he had handed over samples to Constable Bhajan Lal.

The plea taken by the appellant was of false implication and stated that in fact he had a dispute with his wife and he was implicated in this case at the instance of his in-laws who had connived with the police. In defence, the appellant has examined one Kikkar Singh DW1 to strengthen his case.

The learned trial Court after appreciating the entire evidence convicted and sentenced the appellant as stated herein above. Hence, this appeal.

I have heard Mr. APS Srawan, learned counsel for the appellant and Mr. Ramandeep Sandhu, learned Deputy Advocate General, Punjab. With their assistance, I have gone through the records of the case.

Mr. Srawan states that not only the case of the prosecution is suffering from many material infirmities which knock at the bottom but the vital flaw in it is that there is non-compliance of Section 42 of the Act and this infirmity alone is enough to discard the case of the prosecution in its entirety. He states that provisions of Section 42 of the Act are mandatory as held in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 (1) RCR(Cri) 611 (SC) which view is reiterated in a latest judgment of Hon''ble the Apex Court rendered in G. Srinivas Goud v. State of A.P., 2005 (4) RCR(Cri) 353.

Relying upon the aforesaid judgment rendered in G. Srinivas''s case (supra), Mr. Srawan states that if the search, seizure and arrest is made by gazetted officer without warrant, it is not necessary for him to comply with the provisions of Section 42 of the Act i.e. sending of information to the immediate superior official but the non-gazetted officer has to comply with the provisions of Section 42 of the Act while making search and seizure under the Act. In the present case, information was received by SI Surjit Singh. He is a non-gazetted officer. Therefore, it was mandatory for him to comply with the provisions of Section 42 of the Act. Calling of the gazetted officer subsequently at the spot will not amount to compliance. The learned counsel then submits that in the aforesaid judgment, Hon''ble Apex Court while considering Abdul Rashid''s case (supra) and another judgment of Apex Court rendered in State of Punjab v. Babu Singh, 2004 (4) RCR(Cri) 253, observed that wherever the said provisions are attracted, the compliance is mandatory. The case of the appellant on facts is squarely covered by the ratio of aforesaid two judgments discussed in G. Srinivas Goud''s case (supra) and as such he deserves acquittal on this count alone.

Mr. Srawan further submits that the case of the prosecution as set up does not appeal to reasoning at all. In order to overcome the identification of the appellants, the story projected by the prosecution is that SI Surjit Singh knew the appellant earlier. Even otherwise, it is not believable that he along with the accompanying officials could not apprehend the appellant at the spot. Some of the police officials were expected to keep arms also and how would the police party allow two persons to easily escape after putting two bags in the boat cannot be believed. From this, learned counsel wants to develop that a story has been coined up by SI Surjit Singh after recovering certain bags of poppy husk at an abandoned place and in order to give sanctity to it Harjit Singh PW1 (gazetted officer) was called at the spot for the purpose of completing the formalities.

Mr. Srawan has also pointed out certain infirmities in the statement of SI Surjit Singh PW2, the Investigating Officer and Bhupinder Singh, PW3, the other witness to the recovery stating that these discrepancies coupled with the aforesaid infirmities be also taken note of so as to dislodge the case of the prosecution.

The learned counsel further submits that even otherwise from the evidence as produced by the prosecution, the element of custody or control over the contraband qua the appellant is not proved beyond a shadow of doubt.

Controverting the submissions advanced by Mr. Srawan, Mr. Sandhu, learned State counsel submits that heavy recovery is effected in this case and therefore, there is no reason to disbelieve the statement of two official witnesses. He then states that recovery is also cross-checked by DPS Harjit Singh and, therefore, prosecution story cannot be doubted as the police party had no animosity against the appellant to falsely implicate him. The conviction as recorded by the trial Court deserves to be upheld.

However, the learned State counsel has not been able to show any precedent contrary to the law cited by Mr. Srawan on the point of Section 42 of the Act.

In G. Srinivas Goud''s case (supra) while reiterating the view rendered in Abdul Rashid''s case (supra) and State of W.B. v. Babu Chakraborthy, 2004 (2) RCR(Cri) 252 (SC), it has been held that where the provisions of Section 42 are attracted, its compliance is mandatory. In the aforesaid case while dismissing the appeal of the accused, their Lordships held that when the search, seizure and arrest is made by a gazetted officer, it is not necessary for him to comply with Section 42(2) of the Act i.e. sending the information to immediate superior officer. However, non-gazetted officer on the other hand has to comply with the provisions of Section 42 of the Act. In the said case, while reiterating the view taken in abdul Rashid''s case (supra) it was observed in para No. 12 as under :-

Lastly, the learned counsel for the appellants sought to rely on Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, . In this case the search was carried out by a Police Inspector who admitted that he had failed to take down in writing the information as required u/s 42(1) and also he had failed to send a copy of the information to his immediate official superior as required u/s 42(2) of the Act. The Inspector of Police was not an officer of gazetted rank. Therefore, it was necessary for him to comply with the provisions of Section 42. He having failed to do so, the conviction of the accused was set aside by this Court.

In Babubhai Odhavji Patel, Vs. State of Gujarat, , Hon''ble the Apex Court while dealing with the provisions of Section 42 of the Act has observed that if the raiding party is doing its usual patrol duty and if the vehicle is stopped and no warrant or authorisation is obtained as it is a chance recovery without any previous information, Section 42 cannot be complied with. This shows that in another situation where there is a previous information and it is not a chance recovery, compliance of Section 42 of the Act is a must.

The admitted position in the instant case is that the recovery is effected on the intervening night of 22/23.9.1999 at about 12.15 a.m. and SI Surjit Singh had received the secret information about the unloading of bags containing poppy husk at a particular place. The other admitted position is that he was non-gazetted officer and therefore, compliance of provisions of Section 42 of the Act were mandatory. Since in the instant case, there is no compliance of the said provisions, therefore, that by itself is fatal to the case of the prosecution.

In my considered view, the case as set up by the prosecution is not appealing to the judicial conscience for the reason that it is not believable that in the presence of police party which consisted of many police officials, the present appellant and other two persons could make their escape good in a boat, under their nose. This is the reason that SI Surjit Singh intelligently covers the weakness of identity saying that he knew the appellants.

Besides the aforesaid vital flaw in the prosecution case on the point of non-compliance of the aforesaid provisions of the Act, I find another material weakness in it with regard to custody or control over the contraband. As per the evidence, brought on record SI Surjit Singh had noticed the present appellant and one Jangir Singh carrying gunny bags on their heads. They were asked to stop but they did not and instead boarded the gunny bags in the boat which was ferried by Gurnam Singh alias Jeona. This evidence by itself cannot be said to be enough to infer that the appellant was having custody and control over the gunny bags recovered thereafter. It is quite possible that he might have been engaged as a labourer for the purposes of unloading and boarding the same on the boat of Gurnam Singh (since dead). The possibility cannot be ruled out that aforesaid Gurnam Singh (since dead) was having the custody and control of the aforesaid bags. The role of the present appellant is at par with that Jangir Singh, the third man and his exclusion also creates doubt in the very case set up by the prosecution. In his cross-examination, SI Surjit Singh has categorically stated that Jangir Singh was found innocent in an enquiry conducted by DSP although he stated that it was conducted after his transfer and he was not a member of the inquiry proceedings. Be that as it may, the fact remains that aforesaid Jangir Singh has been found to be innocent.

On the basis of the aforesaid discussion, the net result is that the prosecution case is not free from doubt and in my view, the prosecution has not been able to prove the conscious possession of the contraband i.e. seven bags of poppy husk qua the appellant beyond a reasonable shadow of doubt and while extending him the benefit of doubt, I hereby set aside the impugned judgment of conviction and sentence. Resultantly, the appellant is acquitted of the charge framed against him. He is stated to be in custody and shall now be released forthwith, if not required in any other case.