Harnam Singh vs State of Punjab

Naresh Kumar Sanghi, J.—Challenge in this appeal is to the judgment of conviction and the order of sentence, dated 14.11.2000, whereby the appellant was held guilty for the offence punishable u/s 15 of the Narcotic Drugs and Psychotropic Substances Act (in short, ''NDPS Act''), for having in possession 148 kilograms of poppy husk without any permit or licence; and sentenced to undergo rigorous imprisonment for 10 years besides payment of fine of Rs. 1,00,000/- . In default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year. The brief facts of the case are that on 09.6.1996, ASI Kundha Singh (PW1) along with other police officials were going in a police vehicle from Village Noorpur Hakima to Village Mussewala. In the way, the police party saw that the appellant, Harnam Singh, was sitting on the gunny bags in the area of Village Noorpur Hakima. After alighting from the vehicle, ASI Kundha Singh (PW1), suspected some intoxicant in the gunny bags, on which the appellant was sitting. Therefore, ASI Kundha Singh (PW1) apprised the appellant of the fact that the search of the bags was to be conducted and if so desired by him the presence of a Gazetted Officer or a Magistrate could be secured. The appellant expressed his desire to be searched in the presence of a Gazetted Officer. Memo in that respect was prepared, which was attested by ASI Gurcharan Singh (PW5) and HC Gurdip Singh. Thumb impression of the appellant was also obtained on the said memo. Deputy Superintendent of Police, Baljinder Singh Grewal (PW4), was informed through wireless, who reached at the spot. He disclosed his identity to the appellant that he was a Gazetted Officer by virtue of his post as Deputy Superintendent of Police and if the appellant desired then the search could be conducted in his (Deputy Superintendent of Police) presence. The appellant reposed faith in the Deputy Superintendent of Police. Efforts were made to join some person from the public but failed to do so. The consent memo of the appellant to the effect that he wanted his search to be conducted in the presence of the Deputy Superintendent of Police, was prepared, which was thumb marked by the appellant and attested by the witnesses. Poppy husk was found in all the four bags, on which the appellant was found sitting. One sample weighing 250 grams of poppy husk was drawn from each gunny bag. On weighment, each bag was found containing 37 kilograms of the poppy husk. All the four samples and the four bags containing the poppy husk were sealed by the investigating officer, i.e. ASI Kundha Singh (PW1), with his seal ''KS''. Separate parcel of seal impression was prepared and the seal after use was handed over to ASI Gurcharan Singh (PW5). The case property was taken into police possession vide recovery memos, which were attested by ASI Gurcharan Singh (PW5), HC Gurdeep Singh and the Deputy Superintendent of Police, Baljinder Singh Grewal (PW4). The memo regarding recovery of the poppy husk was prepared and sent to the police station, on the basis of which FIR of the present case was registered by Sub Inspector Bakhshish Singh. After apprising the grounds of arrest, the appellant was arrested. Rough site plan of the place of recovery with correct marginal notes was prepared. Statements of the witnesses in terms of Section 161, Cr.P.C., were recorded. After arrival at the police station, the entire case property with seals as well as the appellant were produced by ASI Kundha Singh (PW1) before the Station House Officer/Inspector Gurmel Singh (PW6), who also put his seal on the entire case property with his own seal ''GS'' and took the same in his possession vide separate memo, which was attested by ASI Kundha Singh. The samples were sent to the office of the Chemical Examiner for analysis. On receipt of the report and after completion of other formalities of the investigation, report u/s 173, Cr.P.C., was presented for prosecution of the appellant.

The charge u/s 15 of the NDPS Act was framed against the appellant to which, he pleaded not guilty and claimed trial.

In order to prove its case the prosecution examined:

PW1 ASI Kundha Singh

He being investigating officer deposed about the recovery of the contraband from the possession of the appellant and other formalities of the investigation conducted by him.

PW2 Constable Kuldeep Kumar

He had delivered the special report to the higher officers.

PW3 L.C. Baldhir Singh

He had taken the samples to the office of the Chemical Examiner.

PW4 Baljinder Singh Grewal, Asstt. Commandant

He was the then Deputy Superintendent of Police in whose supervision the search of the gunny bags was effected and the poppy husk was recovered.

PW5 ASI Gurcharan Singh

He was accompanying the investigating officer and in his presence the appellant was apprehended, the recovery was effected and other formalities of the investigation were completed.

PW6 Inspector Gurmel Singh

He was the Station House Officer at the relevant time and after arrival of the police team in the police station, the appellant and the alleged contraband recovered were produced before him (PW6).

Thereafter the prosecution evidence was closed. Statement of the appellant in terms of Section 313, Cr.P.C., was recorded in which he denied the entire incriminating evidence appearing against him and claimed innocence. No evidence in defence was led.

After hearing both the sides, the learned Special Judge convicted and sentenced the appellant as has been discussed in the initial part of this judgment.

The learned counsel for the appellant submitted that there was non-compliance of Section 50 of the NDPS Act, which was mandatory in nature. It was further argued that no independent witness was joined during the course of investigation, therefore, no credence can be attached to the testimonies of the official witnesses. He further submitted that the seal after use was not handed over to an independent witness, therefore, there was possibility of tampering with the samples alleged to have been drawn from the bags so recovered from the appellant. The learned counsel also submitted that the complainant and the investigating officer was one and the same person, therefore, the fair investigation was not expected from him.

On the other hand, learned counsel for the State has vehemently controverted the submissions advanced by the learned counsel for the appellant. He submitted that though there was no requirement for compliance of Section 50 of the NDPS Act in this case because the contraband was not recovered from the personal search of the appellant, yet the investigating officer (PW1) had issued notice to the appellant to apprise him of his right to be searched in the presence of a Gazetted Officer or a Magistrate. At the request of the appellant, the Deputy Superintendent of Police Baljinder Singh Grewal (PW4) was requested to arrive at the spot and in his presence the gunny bags containing the poppy husk were searched. Therefore, Section 50 of NDPS Act was duly complied with. He further submitted that it has specifically come on record that no person from the public was available at or nearby the place of recovery, therefore, it was not possible to join a person from the public. In such a scenario, it cannot be urged by the appellant that the investigating officer deliberately did not join a person from the public. He further submitted that the seal after use was handed over to another police official only because no person from the public was available. He further submitted that the Deputy Superintendent of Police as well as the Station House Officer had affixed their respective seals on the samples and on the bags so recovered from the appellant, therefore, the appellant cannot plead any prejudice. He also submitted that the appellant can not plead innocence merely because the complainant happened to be investigating officer of this case.

I have heard the learned counsel for the parties and meticulously examined the material available on record with their assistance.

It is now settled that if the personal search of the accused has to be conducted, in that eventuality the compliance of Section 50 of the NDPS Act has to be made. In the present case the contraband was not recovered from the person of the appellant. In fact, he was found sitting on the four bags containing the poppy husk. As a matter of precaution, the Investigating Officer did call DSP Baljinder Singh Grewal, PW4, in whose supervision the search of the four bags was effected. Therefore, the argument of the learned counsel for the appellant is not tenable in this regard.

It has specifically come on record that no person from the public was available at the spot, therefore, there was no question of joining of any person from the public. Even otherwise it is not the rule of law that in the absence of a public witness the testimony of the police officials should not be believed. As a matter of precaution, the Courts insist that some person from the public should witness the recovery. However, if the Investigating Officer is able to explain the circumstances for not joining a person from the public to witness the recovery, in that situation the Courts do not hesitate to believe the testimony of the Investigating Officer. It is consistent case of the prosecution that no person from the public was available at the spot at the time recovery of the contraband from the possession of the appellant. Therefore, no benefit can be extended to the appellant on this score.

The submission of the learned counsel for the appellant that the seal allegedly used by the Investigating Officer was handed over to another police official accompanying the Investigating Officer, had caused prejudice to the appellant, is not tenable. Once this Court accepts the explanation of the Investigating Officer that no person from the public was available, in that eventuality there was no occasion for the Investigating Officer to hand over the seal used for sealing the samples etc. to a person from the public. Even otherwise, DSP Baljinder Singh Grewal, PW4, had affixed his seal on the samples and the residue poppy husk at the spot. After reaching to the police station, the samples and the residue poppy husk, were produced before the Station House Officer, Inspector Gurmail Singh, PW 6. He too affixed his seal on the sample parcels and the bags containing the residue poppy husk. Therefore, there is no substance in the argument raised by the learned counsel for the appellant in this regard.

The submission of the learned counsel for the appellant that the complainant was the Investigating Officer, therefore, the case of the prosecution should not be believed, is not tenable. ASI Kundha Singh, PW 1, had himself witnessed the appellant sitting over the bags and he sent the memo to the police station and after receipt of the FIR number etc. of this case, completed the investigation at the spot in the presence of DSP Baljinder Singh Grewal. In such circumstances, it cannot be said that any prejudice has been caused to the appellant. It is not a case that a private person had investigated the matter and thereafter filed a complaint. In fact, it is the duty of a police officer to detect a crime and investigate the matter. Therefore, this Court does not find any substance in the argument raised by the learned counsel for the appellant.

No other argument was raised. Keeping in view the totality of the circumstances of the case, it is held that the prosecution has established beyond shadow of reasonable doubt that the appellant was found in conscious possession of four bags containing poppy husk. Therefore, this Court is of the considered opinion that the learned Trial Court had rightly convicted and sentenced the appellant. Resultantly, the appeal lacks merit and the same is hereby dismissed.