Harjinder Singh @ Raju vs State of Punjab

K.S. Kumaran, J.

F.I.R. No. 57 dated 13.5.1999 under Sections 18, 61 and 85 of the N.D.P.S. Act has been registered against the petitioner at Police Station, Khalra. The allegation against the petitioner is that he was having 500 grams of opium in a cotton cloth tied around his waist. According to the Investigating Agency, the S.I./S.H.O. of the above said police station along with Constables Paramjit Singh, Kartar Singh and others was going on patrol duty and at that time they found the petitioner coming. It is also alleged that petitioner was informed that they had suspicion that he was having opium or some other intoxicating substance and an offer was made that the petitioner could be searched by the S.H.O. or in the presence of some Gazetted Officer or a Magistrate. According to the Investigating Agency, on petitioner''s unwillingness to be searched by the S.H.O., D.S.P., Bhikhiwind was asked to come, who also made an offer that the petitioner could be searched before him or before a Magistrate. It is further alleged that the petitioneraccused reposed confidence in the D.S.P. and therefore, the search was conducted and it was found that he had in his possession 500 grams of opium as mentioned already.

Petitioner''s application for bail was dismissed by the learned Special Judge, Amritsar and therefore, he has approached this Court under Section 439 Cr.P.C.

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

The contention of the learned counsel for the petitioner is that Constables Paramjit Singh and Kartar Singh of the above police station are inimically disposed towards the petitioner and the petitioner and his father were taken by them to the police station on 11.5.1999, but while releasing the father of the petitioner, the petitioner was kept in illegal custody and implicated in a false case. The learned counsel for the petitioner contends that no recovery was effected from the petitioner and no recovery memo has also been prepared for taking opium, as alleged. He further contends that Baljit Singh, the alleged independent witness, who is stated to have been present at the time of occurrence, is a stock witness of this police station and he is a witness in two (three ?) other cases of the same police station namely F.I.R. No. 4 dated 5.1.1999, F.I.R. No. 100 dated 28.9.1999 and F.I.R. No. 172 dated 13.11.1998 of Police Station, Bhikhiwind, all under the N.D.P.S. Act. To support his contention, the learned counsel for the petitioner has produced copies of the recovery memo in F.I.R. No. 4 of 1999 and F.I.R No. 100 of 1998, wherein the same Baljit Singh has attested as witness, as also the report under Section 173 in F.I.R. No. 172 dated 13.11.1998 wherein also, said Baljit Singh has been shown to have been present at the time of the occurrence. But the fact that same Baljit Singh happens to be a witness in some of the cases, has to be correct, how far it will affect the case of the prosecution, has also to be seen at the time of the trial, because there are other witnesses whose evidence has also to be taken into consideration before deciding the main case, one way or the other. Therefore, on the ground that Baljit Singh is a stock witness, this Court cannot at this stage come to the conclusion that the petitioner is not guilty of the offence alleged against him.

The learned counsel for the petitioner relied upon a decision of this Court in Ajay Kumar v. State of Punjab, 1999(1) RCR 194 where this Court found that the police had made an offer that the accused therein could be searched in the presence of a big police officer. Therefore, the Court considered that it was a fit case for granting bail since the contention raised was that there was noncompliance of the provisions of Section 50 of the N.D.P.S. Act. But the position is not the same in the present case. Therefore, this decision will not be applicable to this case.

The learned counsel for the petitioner also relied upon another decision of this Court in Mahi Pal Singh v. The Chandigarh Administration, Chandigarh 1998(1) RCR 519, wherein this Court was of the view that the accused in that case was entitled to bail as the recovery had been made in the presence of a police officer, since the police officers are usually interested in the success of the case. But with respect, I am of the view that there is no prohibition in the N.D.P.S. Act to the effect that the search should not be conducted in the presence of a police officer in order to be a valid search. Therefore, with respect, I disagree with this view and am of the view that if there has been compliance of the provisions of Section 50 of the N.D.P.S. Act, simply because the search had been conducted in the presence of a police officer, it cannot be said to be illegal. Therefore, this decision relied upon by the learned counsel for the petitioner will not help him.

Learned counsel for the petitioner also relied upon another decision of this Court in Kitab Singh v. State of Haryana, 1998(1) RCR 692 wherein also bail was granted to the accused on the ground that the recovery had not been made before any independent witness and only the police officer had been called to be present at the time of the recovery. So far as the search in the presence of the police officer is concerned, I have already expressed my view that it cannot affect the search and the seizure. So far as the absence of independent witness is concerned, this is a matter which will have to be considered at the time of the trial, because the Investigating Agency may be able to give an explanation, if any, for the nonjoinder of any independent witness. But in this case, as pointed out already, a witness who does not belong to the police force, has been associated, but the contention of the petitioner is that he is not an independent witness, but a stock witness, which again is a matter which will have to be taken into consideration at the time of the trial. Therefore, this decision also will not help the petitioner.

The learned counsel for the petitioner also relied upon another decision of this Court in Surinder Singh v. State of Punjab, 1999(3) RCR 495 wherein also the accused had been granted bail due to nonassociation of independent witness. Yet another decision of this Court relied upon by the learned counsel for the petitioner is in Kikkar Singh v. State of Punjab 1999(3) RCR 517. That was a case where no Gazetted Officer or a Magistrate had been called and the accused is alleged to have reposed confidence in the A.S.I. There was also no independent witness. Therefore, the Court had granted bail to the accused. I have already expressed my view with regard to the nonassociation of the independent witness. In the present case, according to the Investigating Agency, the D.S.P. was called at the time of the recovery, and therefore, these decisions relied upon by the learned counsel for the petitioner cannot also help the petitioner.

In these circumstances, I am of the view that the petitioner is not entitled to be released on bail.

Accordingly this petition is dismissed. But whatever observations have been made in this order, shall not influence the trial Court while deciding the main case.