Hardial Singh vs State of Punjab

R.L. Anand, J. (Oral)

This is a Criminal Appeal and it has been directed against the judgment and order 9.10.1996 passed by the court of Additional Sessions Judge, Sangrur who convicted the appellant Hardial Singh under Section 15 of the Narcotic Drugs and Psychotropic Substances Act and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. one lac. In default of payment of fine, he was further directed to undergo rigorous imprisonment for a period of one year.

The brief facts of the case are that on 16.4.1995 SubInspector Harpreet Singh of Police Station Dhuri alongwith ASI Shalinder Singh, Head Constable Jagmel Singh and other police officials were going from main road to Jahangir in connection with patrolling in the government vehicle. When the police party reached near the railway crossing bridge of the canal in the revenue limits of village Daulatpur, appellant was seen standing in the ditches under the kikar tree. He was standing near two gunny bags and something was filled in those gunny bags. On seeing the police party, the appellant got perplexed and tried to slip away but on the basis of the suspicion he was apprehended by S.I. Harpreet Singh with the help of other members of the police party. S.I. Harpreet Singh enquired from the accused that he wanted to take search of the gunny bags and whether he wanted to give search in the presence of a Gazetted Officer or a Magistrate. The appellant declined the offer and reposed confidence in favour of the SubInspector who recorded statement Ex. PA which was read over and explained to the appellant and he signed the same in token of its correctness and attested by ASI Shalinder Singh and Head Constable Jagmel Singh. Thereafter search of the bags was taken by S.I. Harpreet Singh in the presence of the PWs and poppy husk was found to contain in the gunny bags. On weighment it came to 29.750 Kgs. in each bag. The Investigating Officer separated 250 grams of poppy husk from each of the bags and made sealed parcel thereof by using the seal bearing inscription HS and the seal after use was handed over to ASI Shalinder Singh. Accused could not produce any licence or permit for possession of poppy husk. Ruqa Ex. PD was sent to the Police Station on the basis of which formal FIR Ex. PD/1 was registered. Investigating Officer further conducted personal search of the appellant and prepared jamatalashi memo Ex. PC. A sum of Rs. 140/ were recovered from the bag of the accused. The Investigating Officer prepared rough site plan Ex.PE of the place of recovery with correct marginal notes and on return to the Police Station he deposited case property with AMHC Nachhatar Singh. A sample of the poppy husk was sent to the office of the Chemical Examiner who vide report Ex.PF declared the contents of the sample as chura of poppy husk. On completion of investigation, appellant was challaned in the court of Illaqa Magistrate who supplied copies of the documents to the accused and vide commitment order dated 9.8.1995 committed the accused to the court of Sessions to face trial. Vide order dated 8.9.1995, the appellant was charge sheeted on the allegations that on 16.4.1995 at about 12.30 P.M. within the revenue limits of Daulatpura, he was found in possession of 60 kilograms of poppy husk without any permit or licence and thereby he allegedly committed an offence punishable under Section 15 of the N.D.P.S. Act.

In order to prove the charges, the prosecution examined Investigating Officer, S.I. Harpreet Singh as PW.1, Head Constable Jagmel Singh as PW.2 and MHC Bhim Sain ass PW.3 and Head Constable Nachhatar Singh as PW.4. Prosecution also tendered in evidence affidavit of Constable Harjinder Singh No. 1470 Ex.PH besides report of the Chemical Examiner.

Statement of the accused under Section 313 of the Cr.P.C. was recorded and all the incriminating circumstances appearing in the prosecution evidence were put to the accused and he denied those circumstances and stated as follows :

"I am innocent. I am retired army personnel and after my retirement I joined Punjab Home Guard. I was posted in P.P. Cheema. SI Harpreet Singh is S.H.O. of P.S. Longowal. P.P. Cheema falls in P.S. Longowal. I had taken two bags of wheat from someone as free of costs due to which the said S.I. abused me and he developed strained relations with me. After that I left the job. I was captured from my house on 14.4.1995 and brought to Police Station Dhuri where this false case has been planted upon me."

In defence the appellant examined Shri Mahinder Singh son of Jang Singh as DW. 1 of village Lakhmirawala who deposed that the appellant was arrested in his presence and no incriminating article was recovered from his possession.

The learned trial Court relying upon the story of the prosecution and rejecting the defence version, convicted and sentenced the appellant in the manner stated above. Feeling aggrieved against his conviction and sentence, the present appeal.

I have heard Shri Kanwaljit Singh Advocate appearing on behalf of the counsel for the appellant and Shri Vikas Cuccria, learned AAG, appearing on behalf of the State of Punjab and with their help have gone through the record of the present case.

Learned Counsel for the appellant submitted that in this case provisions of Section 50 of the N.D.P.S. Act have been complied with in a perfunctory manner and implicit reliance cannot be and should not have been placed on the testimony of SI Harpreet Singh when he stated that he recorded statement Ex.PA of the appellant and that was voluntary statement made by the appellant vide which he stated that the Investigating Officer could take the search of the bags. I fully subscribe to the arguments raised by the learned Counsel for the appellant. It is the case of the prosecution that the police party was going on patrolling and the object of patrolling was to apprehend suspicious persons with some incriminating articles. The present recovery has been effected from a public place. As per allegations of the prosecution two bags of poppy husk were allegedly recovered. The police must have spent a lot of time at the spot by writing certain lengthy documents like consent statement, recovery memo, jamatalashi memo and rough site plan. In this process the police party must have spent three to four hours minimum in order to complete the investigation. I fail to understand as to why an independent witness has not been associated by the Investigating Officer at the time of recording of Ex.PA of the accused vide which he allegedly deposed that he does not want to take assistance of a Gazetted Officer or a Magistrate and that he has no objection if the Investigating Officer takes search of the bags alone. In such like cases when the person to be searched is shedding is very valuable right under Section 50 in favour of the Investigating Officer, there should be inspiring evidence which may be led on behalf of the prosecution so as to convince this court that the statement which the accused made was voluntary. A perusal of the statement Ex.PA would show that it is attested by an independent witness. In such like offences, where the punishment is very harsh, the mandatory provisions is required to be complied with on the part of the prosecution. There are other circumstances which indicate that the investigation in this case was also done in a perfunctory manner. No special report has been issued to the higher authorities with regard to the present detection. Grounds of arrest have also not been supplied to the appellant. Though these provisions are directory in nature but their cumulative effect read with noncompliance of the provisions of Section 50 is that serious prejudice has been caused to the appellant. Even after investigation the appellant has not been produced before any Gazetted Officer who has verified the investigation of this case. In these circumstances it will be very risky affair if the conviction of the appellant is maintained on the testimony of official witnesses.

Learned Counsel for the appellant submitted that the link evidence in this case is incomplete and on this circumstance also the appellant is entitled to acquittal. In is the case of the prosecution that after seizure of the poppy husk the seal was allegedly handed to ASI Shalinder Singh who has not been produced. The case property was directly given to AMHC Nachhatar Singh. Nachhatar Singh appeared as PW.4 and he stated that he had handed over the case property with seals intact to MHC Bhim Singh who gave his statement on affidavit Ex.PG. According to this witness he handed over the sample of poppy husk to Constable Harinder Singh who ultimately delivered the sample in the office of the Chemical Examiner. Harjinder Singh gave his affidavit Ex.PH. The record of this case shows that no opportunity was granted by the trial Court to the accused to crossexamine Shri Harjinder Singh but just tendered his statement Ex.PH in this manner from which it can be said that the evidence of Harjinder Singh has been taken on record without affording opportunity of crossexamination by the accused. Even in this case charge has not been happily worded by the trial Court. The weight of the each bag at the time of recovery was 29.750 grams and in this manner the total weight comes to 59.500 but as per charge the alleged recovery is of 60.00 kilograms. Thus the charge in this case is defective. As per statement of S.I. Harpreet Singh (PW.1) each bag contained 30 kilograms of poppy husk which is not in consonance with the allegations of the ruqa which was sent to the Police Station for the registration of the case. S.I. Harpreet Singh appeared as PW. 1 and deposed as follows :

"Two samples of the weight 250 grams each were taken out of the gunny bags and these were made into sealed parcels. Remaining poppy husk was found to be 29.500 Kgs. in each bag."

Head Constable Jagmel Singh (PW.2) also deposed to the above fact. Thus there is material discrepancy coming in the statement of HC Jagmel Singh and S.I. Harpreet Singh so far as the actual allegations contained in the ruqa are concerned. The totality of the above discussion would show that section 50 in this case has not been complied with in a proper manner; that charge is defective; that the investigation is also defective and that the link evidence is missing. All the above facts create reasonable dent in the story of the prosecution and I am inclined to give benefit of doubt to the appellant.

Resultantly I accept the appeal and acquit the appellant of the charges framed against him. The case property stands confiscated to the State and shall be destroyed according to rules. Let intimation of acceptance of this appeal be sent to the Superintendent, Central Jail, Sangrur. The appellant shall be released forthwith if not wanted or convicted in any other case.